47046 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

of a court order, was married to the 

employee and that marriage has not 

ended by final decree of divorce, 

dissolution, or annulment. 

§ 295.3 [Amended] 

■ 4. Section 295.3, paragraph (d) is 

amended by removing all references to 

‘‘Deputy General Counsel’’ and adding 

in their place references to ‘‘General 

Counsel’’. 

■ 5. Section 295.4 is amended as 

follows: 

■ a. By removing wherever they appear 

all references to ‘‘Deputy General 

Counsel’’ and adding in their place 

references to ‘‘General Counsel’’. 

■ b. By removing all references to the 

‘‘Associate Executive Director for 

Retirement Claims’’ and adding in their 

place references to the ‘‘Director of 

Retirement Benefits’’. 

■ c. By removing ‘‘bs’’ and adding in its 

place ‘‘be’’ in the second to last sentence 

of paragraph (b)(2)(ii). 

■ d. By adding the phrase ‘‘pertaining to 

the employee’’ at the end of the second 

sentence of the introductory paragraph 

of paragraph (c). 

■ e. By adding the phrase ‘‘pertaining to 

the employee’’ at the end of the first 

sentence of paragraph (d)(2). 

■ f. By capitalizing the word ‘‘Board’’ at 

the end of the last sentence in paragraph 

(d)(2). 

■ g. By capitalizing the word ‘‘Board’’ in 

the last sentence of paragraph (d)(4). 

■ h. By adding the following new 

paragraph (b)(4) to read as follows: 

§ 295.4 Review of documentation. 

* * * * * 

(b) * * * 

(4) Unless the order expressly 

provides otherwise, the Board will 

deduct the amount specified by the 

order from any annuity paid to the 

employee, whether the employee has 

retired based on age or on disability. 

* * * * * 

■ 6. Section 295.5 is amended as 

follows: 

■ a. By adding in paragraph (a) the 

phrase ‘‘, except as provided in 

paragraph (f)(4) of this section,’’ in the 

second sentence between the words 

‘‘and’’ and ‘‘shall’’. 

■ b. By removing the phrase ‘‘in behalf’’

and adding in its place the phrase ‘‘on 

behalf’’ in the first sentence of 

paragraph (d). 

■ c. By adding the phrase ‘‘Except as 

provided in paragraph (f)(4) of this 

section’’ to the beginning of the first 

sentence of the introductory text to 

paragraph (f). 

■ d. By removing references to ‘‘Deputy 

General Counsel’’ and adding in their 

place references to ‘‘General Counsel’’

in paragraph (g) and 

■ e. By adding a new paragraph (f)(4) to 

read as follows: 

§ 295.5 Limitations. 

* * * * * 

(f) * * * 

(4) If the employee dies on or after 

August 17, 2007, a former spouse who 

is receiving a portion of the employee’s 

annuity pursuant to a court decree or 

property settlement compliant with this 

part may continue to receive a portion 

of the employee’s tier II benefit 

component unless the court decree or 

property settlement requires such 

payment to terminate upon the death of 

the employee. 

* * * * * 

§ 295.6 [Amended] 

■ 7. Section 295.6 is amended as 

follows: 

■ a. In paragraph (b) by removing 

‘‘Deputy General Counsel’’ and adding 

in its place ‘‘General Counsel’’, and by 

removing all references to the 

‘‘Associate Executive Director for 

Retirement Claims’’ and adding in their 

place references to ‘‘Director of 

Retirement Benefits’’. 

■ b. By adding the word ‘‘a’’ to the first 

sentence of paragraph (b) before the 

word ‘‘request’’. 

■ c. By adding the word ‘‘a’’ to the first 

sentence of paragraph (c) before the 

word ‘‘signed’’. 

■ 8. Section 295.7 is amended by 

redesignating paragraph (e) as paragraph 

(e)(1) and adding a new paragraph (e)(2) 

to read as follows: 

§ 295.7 Miscellaneous. 

* * * * * 

(e) * * * 

(2) Where all documentation required 

by this part is in the Board’s records 

pertaining to the employee prior to the 

time the employee annuity is awarded, 

but where the Board due to clerical 

oversight fails to withhold the amount 

awarded by the court order, then the 

Board shall begin deduction from the 

employee annuity with the month the 

error is discovered, and shall pay the 

amount which should have been 

withheld pursuant to this part to the 

spouse or former spouse. The amount 

paid to the spouse or former spouse 

representing months for which the 

amount under the order was not timely 

withheld shall be an erroneous payment 

to the employee within the meaning of 

section 10 of the Railroad Retirement 

Act. This section shall not apply where 

the Board has attempted to contact the 

spouse or former spouse at the time the 

employee annuity is awarded pursuant 

to § 295.4(d). 

Dated: August 6, 2008. 

By authority of the Board. 

Beatrice Ezerski, 

Secretary to the Board. 

[FR Doc. E8–18439 Filed 8–12–08; 8:45 am] 

BILLING CODE 7905–01–P 

DEPARTMENT OF LABOR 

Office of Labor-Management 

Standards 

29 CFR Part 215 

RIN 1215–AB58 

Amendment to Guidelines for 

Processing Applications for 

Assistance To Conform to Sections 

3013(h) and 3031 of the Safe, 

Accountable, Flexible, and Efficient 

Transportation Equity Act—A Legacy 

for Users and To Improve Processing 

for Administrative Efficiency 

AGENCY: Office of Labor-Management 

Standards, Department of Labor. 

ACTION: Final rule. 

SUMMARY: The Department of Labor 

(‘‘Department’’), through the Office of 

Labor-Management Standards 

(‘‘OLMS’’), issued proposed changes to 

its Guidelines for the Department’s 

administration of the Secretary of 

Labor’s (‘‘Secretary’’) responsibility 

under the Federal transit law, 49 U.S.C. 

5333(b). This document sets forth the 

Department’s review of and response to 

comments on the proposed revisions, as 

well as the changes made to the 

Guidelines in response to those 

comments. 

Pursuant to section 5333(b) of the 

Federal transit law, the Department 

must certify that, as a condition of 

certain grants of Federal financial 

assistance, fair and equitable labor 

protective provisions are in place to 

protect the interests of employees 

affected by such Federal assistance. The 

Department administers this program 

through Guidelines set forth at 29 CFR 

Part 215. The Department’s proposed 

changes are intended to conform the 

Guidelines to amendments to the 

Federal transit law made by sections 

3013(h) and 3031 of the Safe, 

Accountable, Flexible, and Efficient 

Transportation Equity Act—A Legacy 

for Users (‘‘SAFETEA–LU’’), Public Law 

No. 109–59, 119 Stat. 1144 (2005). In 

addition to changes mandated by 

statute, the Department proposed 

revisions to the Guidelines that are 

intended to enhance the speed and 


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Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47047 

efficiency of the Department’s 

processing of grant certifications. The 

revisions to existing procedures for 

processing grant applications under the 

Federal transit law are intended to 

ensure timely certifications in a 

predictable manner, while remaining 

consistent with the transit law’s 

objectives. The Department invited 

written comments on the proposed 

revisions from members of the public. 

EFFECTIVE DATE: This rule is effective 

October 1, 2008. 

FOR FURTHER INFORMATION CONTACT: Ann 

Comer, Chief, Division of Statutory 

Programs, Office of Labor-Management 

Standards, U.S. Department of Labor, 

200 Constitution Avenue, NW., Room 

N–5112, Washington, DC 20210, OLMSTransitGrant@dol.gov, (202) 693–0126. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On September 14, 2007, the 

Department, through OLMS, issued 

proposed revisions to the Guidelines it 

employs to administer the Department’s 

program under 49 U.S.C. 5333(b), which 

requires the Secretary to certify that 

labor protections are in place for 

employees who may be affected by 

certain grants of Federal financial 

assistance. See Amendment to 

Guidelines for Processing Applications 

for Assistance To Conform to Sections 

3013(h) and 3031 of the Safe, 

Accountable, Flexible, and Efficient 

Transportation Equity Act—A Legacy 

for Users and To Improve Processing for 

Administrative Efficiency (‘‘NPRM’’), 72 

FR 52521. The Department invited 

written comments on the proposed 

revisions from interested parties. The 

written comment period closed on 

October 15, 2007, and the Department 

has considered all timely comments 

received in response to the proposed 

Guidelines revisions. 

The Department received 10 timely 

comments in response to its proposed 

revisions, including five comments from 

various labor organizations (the 

Transportation Trades Department of 

the AFL–CIO; the Amalgamated Transit 

Union; a joint submission from the 

United Transportation Union and the 

Sheet Metal Workers International 

Association; the Transportation 

Communications International Union, 

and a joint submission by the American 

Train Dispatchers Association, the 

Brotherhood of Locomotive Engineers 

and Trainmen/IBT, the Brotherhood of 

Maintenance of Way Employees 

Division/IBT, the Brotherhood of 

Railroad Signalmen, the International 

Brotherhood of Boilermakers and 

Blacksmiths, the National Council of 

Firemen and Oilers/SEIU, the Sheet 

Metal Workers International 

Association, and the Transport Workers 

Union of America (rail division)); two 

comments from transit associations 

(American Public Transportation 

Association and Taxicab, Limousine & 

Paratransit Association); two public 

transit authorities (the Texas 

Department of Transportation and the 

Regional Transportation Commission of 

Southern Nevada); and one private 

consulting firm (Jim Seal Consulting 

Services). 

Under 49 U.S.C. 5333(b), when 

Federal funds are used to acquire, 

improve, or operate a transit system, the 

Department must ensure that the 

recipient of those funds establishes 

arrangements to protect the rights of 

affected transit employees. Federal law 

requires such arrangements to be ‘‘fair 

and equitable,’’ and the Department 

must certify the arrangements before the 

U.S. Department of Transportation’s 

Federal Transit Administration (FTA) 

can award certain funds to grantees. 

These employee protective 

arrangements must include provisions 

that may be necessary for the 

preservation of rights, privileges, and 

benefits under existing collective 

bargaining agreements or otherwise; the 

continuation of collective bargaining 

rights; the protection of individual 

employees against a worsening of their 

positions related to employment; 

assurances of employment to employees 

of acquired transportation systems; 

assurances of priority of reemployment 

of employees whose employment is 

ended or who are laid off; and paid 

training or retraining programs. 49 

U.S.C. 5333(b)(2). 

II. Summary of the Final Guidelines 

and Discussion of the Comments 

The development of these Final 

Guidelines has included a careful 

review of the public’s timely comments. 

All timely comments received are 

addressed in this Section. In those cases 

in which comments made suggestions 

that, in the Department’s view, 

improved or corrected the proposed 

Guidelines, such changes have been 

incorporated. In some cases, no change 

to the proposed language was deemed 

necessary. 

A. Processing of Grant Applications To 

Replace Equipment or Facilities of 

‘‘Like-kind’’ 

In its NPRM, the Department 

proposed amending the guidelines to 

conform to section 3031 of SAFETEA–

LU, which added a new subparagraph to 

section 5333(b) relating to grants for the 

purchase of ‘‘like-kind’’ equipment or 

facilities. As amended by SAFETEA–

LU, section 5333(b)(4) now requires that 

employee protective arrangements for 

grants requesting assistance to purchase 

like-kind equipment or facilities be 

certified by the Department without 

referral to the parties. The current 

Guidelines, at section 215.3(b)(1), reflect 

this practice, except that the current 

provision creates an exception to nonreferral if the Department determines 

that the grant application has a 

‘‘potentially material effect on 

employees.’’ To conform the guidelines 

to the statutory mandate, the proposed 

guidelines, at section 215.3(a)(4)(iii), 

provided that employee protections 

relating to grants funding equipment 

and/or facilities of like-kind shall be 

certified without a referral, and deleted 

the ‘‘material effect’’ exception. 

Proposed Section 215.3(a)(4)(iii) also 

addressed the terms the Department will 

apply in like-kind grant applications. 

That section states that where 

‘‘application of the existing protective 

agreement(s) or the Unified Protective 

Arrangement would not satisfy the 

requirements of the statute in the 

circumstances presented, the 

Department will make any necessary 

modifications to the existing protections 

to ensure that the requirements of the 

statute are satisfied.’’

The Department received five 

comments regarding its proposed 

change to its processing of grant 

applications to replace like-kind 

equipment or facilities, and the 

comments addressed the following three 

issues: Whether it is appropriate for the 

Department to eliminate its current 

exception to its practice of non-referral 

of grant applications for like-kind 

purchases in those cases in which the 

funding would result in a ‘‘potentially 

material effect on employees’’ under the 

current Section 215.3(b)(1); whether the 

Department appropriately included new 

language in Section 215.3(a)(4)(iii) 

permitting it to make ‘‘any necessary 

modifications to the existing 

protections’’ when certifying grant 

applications for like-kind purchases; 

and whether the Department will notify 

the labor organizations representing 

employees who may be affected by grant 

applications for like-kind purchases that 

the Department has received such an 

application but has made no referral. 

Addressing the last issue first, the 

Department has included a subsection 

in Section 215.3(a) to confirm its current 

practice that the Department will 

‘‘notify labor organizations representing 

potentially affected transit employees of 

the certification of grants without 

referral under paragraph (a)(4) and 


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47048 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

1Under the Department’s current practice, the 

FTA first determines, pursuant to that agency’s 

grant administration authority, whether a proposed 

change or modification to an existing assistance 

agreement (the contract of assistance) constitutes a 

budget revision, an administrative amendment, or 

a grant amendment, based on the FTA’s own 

criteria it has established for such categories. See 

FTA Circular C 5010.1C: Grant Management 

Guidelines, Chapter 1.6 (Project Administration and 

Management: Grant Modifications), October 1, 

1998; see also FTA Proposed Circular C 5010.1D: 

Grant Management Requirements, Chapter 3.4 

(Grant Administration: Grant Modifications), 

September 28, 2007. Following that categorization, 

the FTA then transmits only grant amendments to 

the Department for processing, in accordance with 

the statute and the Department’s guidelines. Once 

grant amendments are received from the FTA for 

processing, the Department reviews each grant 

amendment to determine whether, as the statute 

now explicitly requires, it ‘‘materially amend[s] 

existing assistance agreements [,]’’ which requires a 

inform them of their rights under the 

applicable protective arrangements.’’

See Section 215.3(a)(5). 

The Department has fully considered 

the first issue regarding the deletion of 

the current exception to the practice of 

non-referral of grant applications for 

like-kind purchases in those cases in 

which the funding would result in a 

‘‘potentially material effect on 

employees,’’ currently found at Section 

215.3(b)(1). The amendments to 49 

U.S.C. 5333(b) enacted by SAFETEA–

LU incorporate the following provision 

into the statute: 

Fair and equitable arrangements to protect 

the interests of employees utilized by the 

Secretary of Labor for assistance to purchase 

like-kind equipment or facilities, and grant 

amendments which do not materially revise 

or amend existing assistance agreements, 

shall be certified without referral. 

49 U.S.C. 5333(b)(4). The Department 

interprets this statutory provision as 

permitting no exception for the referral 

of grants for like-kind purchases in any 

case, and no comments provide a 

persuasive reason for adopting a 

different interpretation. As a result, the 

Department, as proposed, is deleting the 

provision in the current guidelines 

permitting referral of grant applications 

for the purchase of like-kind equipment 

in cases in which the purchase may 

have a material effect on employees. 

The remaining issue addressed by the 

comments dealing with the 

Department’s non-referral of grants for 

like-kind purchases is the Department’s 

proposal in Section 215.3(a)(4)(iii) to 

‘‘make any necessary modifications to 

the existing [non-referred] protections to 

ensure that the requirements of the 

statute are satisfied’’ in those cases in 

which application of the existing 

protective agreement(s) or the Unified 

Protective Arrangement would not 

satisfy the requirements of the statute. 

One comment in particular noted that 

where changes to existing arrangements 

are ‘‘deemed necessary [they] should be 

referred to the parties for resolution or, 

at a minimum, such imposed changes 

should be made without prejudice to 

any future objections or proposal by the 

parties.’’ Comment submitted by 

Transportation Communications 

International Union in response to 

NPRM, October 15, 2007 (‘‘TCU 

Comment’’), page 2. 

With one modification, the 

Department will retain the proposed 

language in Section 215.3(a)(4)(iii) to 

permit it to modify those non-referred 

arrangements to comply with the statute 

in the event that circumstances 

associated with a grant for a like-kind 

purchase indicate that application of the 

current protective arrangement would 

no longer satisfy the statute’s 

requirements. Because referrals are not 

permitted for like-kind grants, and 

situations may arise where the existing 

protections are not statutorily sufficient, 

the Department must retain the 

authority to unilaterally apply 

protections as an alternative to referral. 

Situations that may give rise to the 

Department’s need to make a unilateral 

change to existing protections include a 

change to the framework of state or local 

law, a court decision interpreting 

existing protections, or where the 

Department’s periodic review of an 

agreement has disclosed that required 

protections are missing or inadequate 

based on current policies and standards. 

This retention of authority to 

unilaterally modify non-referred 

arrangements to ensure statutory 

sufficiency is consistent with the 

Department’s treatment of other grant 

programs subject to non-referral, see, 

e.g. , 29 CFR 215.3(a)(4), 215.3(b)(3), and 

is necessary in order to ensure that the 

Department certifies only those 

arrangements that are statutorily 

sufficient. In some circumstances the 

Department will need to modify 

protections to simultaneously ensure 

satisfaction of the statutory 

requirements and to conform to the 

SAFETEA–LU requirement that 

certification be made without referral. 

However, in response to comments by 

labor organizations suggesting that the 

proposed language was too broad and 

created uncertainty, the Department will 

delete the word ‘‘any,’’ which may be 

broadly construed, from the proposed 

Section 215.3(a)(4)(iii) so that the final 

Guidelines limit the Department to 

‘‘make necessary modifications to the 

existing protections to ensure that the 

requirements of the statute are 

satisfied.’’ See Section 215.3(a)(4)(iii). 

The Department agrees with the 

comment, noted above, suggesting that 

imposed changes should be made 

without prejudice to any future 

objections or proposals by the parties. 

Therefore, should the Department 

determine unilaterally that changes are 

necessary to arrangements applicable to 

a particular like-kind grant in order to 

satisfy the requirements of the statute in 

the circumstances presented, those 

changes will be made without prejudice 

to future objections or proposals of 

either of the parties in response to 

subsequent referrals for new grants. 

Accordingly, where subsequent referrals 

contain the unilateral modifications 

made by the Department pursuant to 

Section 215.3(a)(4)(iii), parties to the 

referral may object at that time to the 

proposed terms, including any terms 

that had been unilaterally modified by 

the Department. This approach is 

consistent with the Department’s 

practice, in which it fully considers any 

objections to referral terms, even when 

those terms have been previously 

imposed by the Department. Where 

objections are deemed sufficient in 

subsequent referred protections, the 

Department will require negotiations to 

permit the parties to develop alternative 

employee protections for application to 

the subsequently referred grant. 

B. Processing of Amendatory Grant 

Applications 

The Department has proposed 

amending section 215.5 of the 

guidelines to conform to section 3031 of 

SAFETEA–LU, which provides that 

‘‘grant amendments which do not 

materially amend existing assistance 

agreements’’ will not be subject to the 

Department’s referral procedures. See 49 

U.S.C. 5333(b)(4). The proposed 

guidelines were designed to reflect this 

statutory provision, and to clarify the 

Department’s treatment of grant 

amendments that, on the one hand, 

result in material changes to existing 

assistance agreements and those that, on 

the other hand, make only immaterial 

changes to such agreements. The 

proposed revision also identified as 

examples some types of grant 

amendments that would be certified 

without referral. As set out below, in 

response to certain comments from the 

public, the Department has made some 

revisions to proposed section 215.5. 

As explained in the NPRM, the 

statutory change regarding certification 

of grant amendments essentially 

codifies the Department’s current 

practice, and requires the Department to 

distinguish between ‘‘material’’ grant 

amendments that will be referred and 

‘‘immaterial’’ grant amendments that 

will be certified without referral.1 In 


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referral, or does not ‘‘materially amend existing 

assistance agreements[,]’’ which requires 

certification by the Department without referral. 

making the distinction in the NPRM, the 

Department focused on what constituted 

‘‘immaterial’’ grant amendments, in 

large part because this term already 

appears in the Guidelines, which 

establish that the Department will 

certify ‘‘immaterial’’ grant revisions or 

amendments on the basis of the 

previously certified terms without 

referral. See current 29 CFR 215.5. In 

responding to the statute’s now explicit 

requirement that the Department refer 

only those grant amendments that are 

‘‘material,’’ and building on the 

presence of the term ‘‘immaterial’’ in the 

Guidelines text, the Department 

proposed in the NPRM to add to the 

Guidelines several circumstances in 

which it appeared that ‘‘immaterial’’

changes were present. For reasons 

explained here, the Department has 

rejected this approach, and has revised 

Section 215.5 accordingly. 

Several comments raised concerns 

about the Department’s distinction 

between grant amendments that make 

material changes and those that make 

immaterial changes to existing 

assistance agreements. Two comments 

objected to the Department’s description 

of the nature of an immaterial grant 

amendment. Comments submitted by 

the Amalgamated Transit Union (ATU) 

in response to the NPRM, October 15, 

2007 (‘‘ATU Comment’’), page 3; United 

Transportation Union, October 11, 2007 

(‘‘UTU Comment’’), page 2. 

Additionally, one comment noted 

concern that ‘‘the NPRM does not 

appropriately define the line between 

material and immaterial grant 

amendments’’ and that ‘‘the NPRM 

would actually allow material 

amendments without referral, which 

clearly violates the intent of Section 

3031 of SAFETEA–LU.’’ Comment 

submitted by Transportation Trades 

Department, AFL–CIO, October 15, 2007 

(‘‘TTD Comment’’), page 2. 

As is the Department’s current 

practice, Section 5333(b)(4) now 

explicitly requires the Department to 

review and assess the potential impact 

on employees and existing protections 

in order to distinguish between those 

grant amendments that may ‘‘materially 

revise or amend existing assistance 

agreements,’’ which will be referred, 

and those that do not. In order to clearly 

incorporate the statutory mandate into 

the Guidelines, the Department has 

revised proposed Section 215.5(a)(2) 

(now Section 215.5(a)(1) in the final 

Guidelines) to indicate that material 

changes are those that ‘‘make changes to 

a project that may necessitate alternative 

employee protections.’’ If a grant 

amendment makes changes to a project 

that may necessitate alternative 

employee protections in the 

circumstances presented, a new referral 

will be made. Conversely, those grant 

amendments that do not materially 

revise a grant in such a way that they 

would potentially affect employees will 

not be referred. The Department’s past 

practice and administrative experience, 

upon which the Department will rely to 

administer certification of grant 

amendments, suggests generally that 

material changes that may necessitate 

alternative employee protections 

include those that constitute a 

significant, important or sizeable change 

to items or elements in the federally 

funded project. 

The Department agrees with those 

comments suggesting that the specific 

examples of ‘‘immaterial changes’’

included in the proposed guidelines did 

not provide useful guidance for either 

the Department or the regulated 

community in determining when 

referral would be necessary. The 

examples in the NPRM largely mirrored 

FTA criteria for categorizing the nature 

and type of grant modifications for that 

agency’s determination of whether a 

change was, in fact, a ‘‘grant 

amendment,’’ and did not serve to assist 

with the concept of ‘‘material’’ grant 

amendments as that term is used in 

Section 5333(b)(4). Because conclusions 

regarding the impact of changes may 

vary in differing circumstances, those 

examples may not universally qualify as 

immaterial changes for the Department’s 

statutory purposes. Moreover, the 

comments regarding the NPRM’s 

examples of ‘‘immaterial’’ grant 

amendments reinforce the conclusion 

that the term itself is too dependent on 

specific facts to be capable of a more 

detailed definition in the abstract. 

Under these circumstances, 

hypothetical examples are more likely 

to result in confusion than clarity. 

Upon reconsideration of the approach 

to this subject in the NPRM, the 

Department has made three 

modifications to Section 215.5 (in 

addition to the change noted above 

regarding ‘‘material’’ amendments) to 

clarify the procedures under which 

grant revisions or amendments will be 

certified. First, as an organizational 

matter, the order of the two subparagraphs in subsection 215.5(a) have 

been switched, so that the initial 

subparagraph of the subsection 

addresses the issue of ‘‘material’’

revisions or amendments. Second, the 

term ‘‘immaterial’’ has been deleted 

from Section 215.5, and final 

subparagraph (a)(2) instead addresses 

those cases in which ‘‘an application 

amends in a manner that is not 

material’’ a previously certified grant. 

Finally, those examples of immaterial 

changes to a grant have been deleted, 

and because each grant is fact-specific, 

the Department has concluded that 

including alternate examples of 

‘‘immaterial’’ changes in the Guidelines 

would not assist in the administration of 

the program * * * See 29 CFR 

215.5(a)(1) and (a)(2). As the 

Department does with all non-referred 

grants, informational copies of those 

grant amendments not referred will be 

sent to the affected labor organizations. 

In addition, one comment notes that 

the proposed guidelines did not include 

a provision in this section for the 

Department to ‘‘make any minimal 

modifications necessary to the 

protective terms where application of 

existing protective agreements would 

not satisfy the requirements of the 

statute in the circumstances presented.’’

ATU Comment, page 3. Similar 

authority has been adopted for like-kind 

grants certified without referral, and 

comments suggested that such language 

would be appropriate in any instance 

where protections would be applied 

without referral. The Department has 

determined that such language is not 

necessary to ensure satisfaction of the 

requirements of the statute when grant 

amendments are processed by the 

Department. As noted above, where 

grants materially revise existing 

assistance agreements by making 

changes that may necessitate alternative 

employee protections in the 

circumstances presented, the 

Department will refer the grant 

amendment, and the parties will have 

the opportunity to address employee 

protective provisions that may not 

satisfy the statute in the circumstances 

presented. Where grant amendments 

make changes that require no alternate 

employee protections, then the 

Department need not retain authority to 

make unilateral modifications to 

employee protections. Under either 

process, the requirements of the statute 

will be assured, and there is no need for 

the Department’s retention of this 

authority with regard to grant 

amendments. 

Finally, several comments indicated 

that a copy of applications for grant 

amendments that result in no referral 

must be provided to labor organizations. 

Consistent with the proposed 

guidelines, the Department confirms 

that its ‘‘processing of these applications 

will be expedited and copies will be 

forwarded to interested parties.’’ See 

215.5(a)(2). In addition, the Department 


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47050 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

2The Other Than Urbanized transit grant program 

authorized by 49 U.S.C. 5311 was previously 

known as the ‘‘small urban and rural program.’’ For 

clarity and consistency, this program is generally 

referred to in this document as the Other Than 

Urbanized program and not by its section number 

in Title 49 of the U.S. code. 

3The OTRB program was first established by 

Congress in section 3038 of TEA–21, Public Law 

No. 105–178, 112 Stat. 107 (1998). It has been 

amended a number of times, most recently by 

section 3039 of SAFETEA–LU. The authority for the 

program currently appears in the Historical and 

Statutory Notes to 49 U.S.C. 5310. For clarity and 

consistency, the program is referred to in this 

document by its ‘‘OTRB’’ designation, rather than 

by citation to its public law number or the 49 U.S.C. 

5310 note. 

will forward to service area unions any 

informational copies of budget revisions 

received from the Federal Transit 

Administration. 

C. Special Warranty Procedures for 

Grant Applications for Other Than 

Urbanized Areas and Grant 

Applications for Over-the-Road Bus 

Accessibility Programs 

For grant applications under 49 U.S.C. 

5311 for funding of transit operations in 

Other Than Urbanized areas, 

SAFETEA–LU now requires the use of 

a warranty as the sole mechanism for 

certification of employee protections, 

and eliminates the Secretary of Labor’s 

option to waive the required 

certification. See 49 U.S.C. 5311(i).2

Prior to the enactment of SAFETEA–LU, 

the Department followed procedures 

contained in a ‘‘Guidebook’’ published 

in September 1979 governing the 

processing of small urban and rural 

grants. The Department is discontinuing 

use of the 1979 Guidebook, and has 

included in sections 215.3(a)(4)(i) and 

215.7 procedures to be used for the 

application of a warranty without 

referral when processing Other Than 

Urbanized and Over-the-Road Bus 

(OTRB) grants.3 The comments received 

by the Department raised several issues, 

and particularly addressed two primary 

issues concerning procedures used to 

bind State’s subrecipients to terms of 

the Special Warranty and the 

application of alternative comparable 

arrangements when necessitated by 

requirements of the statute. 

Regarding the subrecipients issue, the 

Department indicated in the NPRM that 

it will include a requirement in the new 

Special Warranty that the protective 

arrangements are binding upon any 

subrecipients assisted under the grant. 

Three comments expressed concern that 

the Department had eliminated the 

requirement contained in the Guidebook 

to have State agencies provide copies of 

assurances to the Department indicating 

each recipient had signed and 

understood the Special Warranty. One 

comment in particular noted that 

‘‘[e]nforcement of employee protections 

under such a provision would * * * be 

problematic at best and more likely a 

practical, or even legal, impossibility.’’

ATU Comment, page 5. Another 

comment indicated that ‘‘transportation 

labor urges the Department to establish 

procedures to guarantee that subrecipients are bound to the protective 

arrangements, perhaps by continuing to 

require written assurances.’’ TTD 

Comment, page 2. Still another 

comment indicated that the Department 

cannot ‘‘bind third parties to 

arrangements simply by proclaiming 

they are bound in a Special Warranty 

that will be incorporated into the 

contract of assistance * * *.’’ UTU 

Comment, page 3. 

In response to these comments, the 

Department notes that the former 

Special Warranty procedures required 

only that a State agency ‘‘certify to the 

Department of Labor that each Recipient 

designated to receive transportation 

assistance under the Project has 

indicated in writing acceptance of the 

terms and conditions of the Warranty.’’

Rural Transportation Employee 

Protection Guidebook, September 1979, 

page 13. Thus, the Department did not 

require fully executed copies of the 

Special Warranty from each 

subrecipient, but instead required only 

that a State agency submit certified lists 

of recipients that it indicated had signed 

the Warranty. Accordingly, the 

obligation to ensure that recipients had 

signed and were thus bound by the 

Special Warranty has long rested with 

the State agencies. The Department has 

not altered the State agencies’

responsibility to ensure that its 

subrecipients are equally bound to the 

terms of the Special Warranty. 

In response to concerns noted above 

regarding a State’s obligation to ensure 

that its subrecipients are bound to the 

terms of the Special Warranty, the 

Department clarifies its proposal in the 

NPRM that it will include language in 

the Special Warranty requiring the State 

agency (Grantee), which signs the 

contract of assistance, to obligate its 

subrecipients to the required protections 

as a condition precedent to the 

subrecipient’s receipt of any funds 

under the contract of assistance. Thus, 

the requirement remains that a State 

agency must ensure that sub-recipients 

have agreed to be bound by the 

protective arrangements. That 

requirement will now be an explicit part 

of the Special Warranty, and the failure 

to comply with this provision may 

impact the State’s eligibility for such 

funds. In addition, should a Grantee fail 

to bind a subrecipient, the alleged 

breach can be pursued in a state court. 

Therefore, the new procedure is an 

adequate, effective alternative to 

assuring that subrecipients are bound 

and their employees are aware that the 

protections of the Special Warranty are 

fully applicable. 

Regarding the ‘‘alternative comparable 

arrangement procedures’’ issue, the 

Department stated in the NPRM that ‘‘as 

required under SAFETEA–LU, the 

Department will eliminate waivers and 

procedures to request alternative 

comparable arrangements.’’ This 

statement raised concerns among 

several commenters. Some noted that 

although SAFETEA–LU eliminated 

procedures to waive application of the 

Special Warranty, the amendment did 

not require that the alternative 

comparable arrangements provision be 

removed. In addition, comments noted, 

some State agencies and subrecipients 

may be deemed ineligible for assistance 

if alternative warranty arrangements 

were not available. 

SAFETEA–LU specifies that employee 

protections will be applicable to Other 

Than Urbanized grants ‘‘if the Secretary 

of Labor utilizes a special warranty that 

provides a fair and equitable 

arrangement to protect the interests of 

employees.’’ 49 U.S.C. 5311(i). To 

clarify our statement in the NPRM, the 

Department interprets this statutory 

provision to preclude the development 

of alternate arrangements through 

special procedures established in the 

Guidelines. However, after considering 

comments, the Department has 

concluded that where a recipient is 

unable to satisfy the specific provisions 

in the Special Warranty because of a 

conflict with State or local law, the 

Department will make every effort to 

develop modifications to the Warranty 

that are necessary to ensure that the 

requirements of the statute are satisfied. 

This approach is consistent with the 

Department’s residual authority, noted 

above in reference to like-kind grants, to 

make modifications to non-referred 

arrangements where necessary. 

Therefore, as with all non-referred 

arrangements that present compliance 

problems for grantees as the result of 

conflict with State or local law, parties 

must notify the Department in writing 

in advance of the Department’s 

certification that modification to the 

terms of the Special Warranty may be 

necessary. In instances in which the 

Department makes necessary 

modifications to the Special Warranty 

for specific recipients or subrecipients, 

a supplementary certification letter will 

be sent to the FTA setting forth the 

alternative provisions to be included in 


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4The NPRM indicated that the Department was 

proposing to amend sections 215.3(b)(2) and (b)(3) 

to address the UPA. The changes in the guidelines, 

however, are in sections (b)(1) and (b)(2), and the 

conflicting section (b)(3) has been deleted in the 

final guidelines. In addition, these changes require 

a corresponding revision to Section 215.3(d)(7), in 

order to delete references to ‘‘§§ 215.3(b)(2) and 

215.3(b)(3)’’ and to substitute ‘‘215.3(b)(1)’’ for 

those references. 

the contract of assistance between the 

recipient and FTA, by reference. 

Other comments concerning the new 

Special Warranty procedures addressed 

the omission of a provision in the 

proposed guidelines to ensure that 

potentially affected transit employees in 

the service area of Other Than 

Urbanized grants, in addition to those 

employees who may be affected by 

Over-the-Road Bus grants, are notified 

of their rights under the Special 

Warranty and receive copies of grant 

applications to facilitate the unions’

administration of protections. This 

inadvertent oversight has been corrected 

in the final guidelines, which now state 

that the ‘‘Department will notify labor 

organizations representing potentially 

affected transit employees of the 

approval of Other Than Urbanized and 

OTRB grants and inform them of their 

rights under the Special Warranty 

Arrangement.’’ See Section 215.7(d)(2). 

Two comments note that proposed 

Section 215.7 states that the revised 

Special Warranty will be ‘‘derived from 

the terms and conditions of the May 

1979 Special Section 13(c) Warranty, 

and the Department’s subsequent 

experience under 49 U.S.C. 5333(b).’’

NPRM Section 215.7. These comments 

request that the Department clarify what 

it means to ‘‘derive’’ protections from 

the current Special Warranty, and that 

it also specify that the terms and 

conditions of any new Warranty 

Arrangement will be ‘‘no less 

protective’’ and ‘‘offer no less 

protection’’ than the version currently 

in place. ATU Comment, page 5; UTU 

Comment, page 3. While the terms and 

conditions of the Special Warranty will 

adopt much of the May 1979 Special 

Section 13(c) Warranty, some additional 

changes are needed to reflect processing 

differences under the new Guidelines, 

to create a self-contained document, and 

to update the language. Most of the 

planned changes are largely procedural 

and were previously described in the 

NPRM, such as the establishment of 

procedures necessary to bind 

subrecipients, the elimination of the 

need for unions to become a party to the 

Special Warranty, the elimination of the 

Department’s finding of noncompliance 

in the Other Than Urbanized program, 

and the adoption of a dispute resolution 

procedure that ends the Department’s 

involvement in claims arbitration. In 

response to concerns that the new 

Special Warranty must not be less 

protective than its predecessor, the 

Department will ensure that the 

provisions of the new Special Warranty 

provide appropriate protections for 

Other Than Urbanized and OTRB grants 

and continue to satisfy all the 

requirements of the statute. 

Two comments note that the 

Department has indicated that it will no 

longer make findings of non-compliance 

and will instead include a dispute 

resolution procedure to address 

compliance issues that arise under the 

Special Warranty. One comment 

indicates that ‘‘provisions must be made 

for the Department to honor an 

arbitrator’s ruling of non-compliance 

and refuse further certifications to stop 

new funding from flowing to the 

recipient until evidence of compliance 

is presented to the arbitrator.’’ ATU 

Comment, page 5. In the absence of such 

provisions, the commenter suggests that 

violators would be free of consequences 

resulting from the failure to abide by the 

Warranty. The Department has 

concluded that the inclusion of a 

standard labor arbitration dispute 

resolution procedure in the Special 

Warranty will ensure that there is a 

process in place to resolve disputes, and 

the arbitrator may direct compliance 

with the terms of the Warranty. A 

prevailing party to an arbitrator’s ruling 

directing compliance with the terms of 

the Warranty can seek enforcement of 

that ruling in the appropriate state 

court. 

Three comments indicate that it is 

unclear how the Special Warranty is to 

be included in the contract of 

assistance. The proposed guidelines 

specified in section 215.7(c) that ‘‘[t]he 

Federal Transit Administration will 

include the current version of the 

Special Warranty, through reference in 

its Master Agreement.’’ The Master 

Agreement is included in each contract 

of assistance with a Grantee receiving 

Federal assistance and the reference in 

the Master Agreement will include 

language which specifies that the 

recipient agrees to comply with the 

terms and conditions of the Special 

Warranty Arrangement which is most 

current as of the date of execution of the 

contract of assistance, and any 

alternative comparable arrangements 

specified by the Department of Labor for 

application to the recipient’s grants.. 

Inclusion of this language in the Master 

Agreement will ensure that the 

protections are binding on the Grantee 

and the specific reference to Special 

Warranty Arrangement that is most 

current as of the date of the execution 

of the contract of assistance will 

eliminate confusion about which terms 

and conditions were applied if changes 

to the Warranty are made in the future. 

Several comments raised concerns 

regarding the procedures the 

Department will use to identify relevant 

labor organizations as a result of the 

Department’s notification provision in 

Section 215.7(d)(2) of the proposed 

guidelines (now Section 215.7(c)(2) of 

the final guidelines). In the past, the 

Department has relied on information 

contained in the grant applications to 

identify labor organizations that may be 

affected by grants and should be 

notified of Federal funding of projects, 

and such information has generally 

proven sufficient to make such 

identification. Accordingly, this 

information will be employed to make 

the notifications required in Section 

215.7(c)(2). Other comments expressed 

doubt that, as asserted in the NPRM, the 

changes to the Special Warranty 

procedures will advance administrative 

efficiency. In response, the Department 

notes a variety of changes that it 

believes will improve the efficiency of 

the Special Warranty program and 

streamline the Department’s processes: 

the provision establishing that the FTA 

will incorporate required employee 

protections into the contract of 

assistance through the Master 

Agreement and proceed with funding of 

Other Than Urbanized and Over the 

Road Bus grants without awaiting the 

Department’s prior approval; the 

elimination of procedures to request to 

become a party to the warranty; the 

elimination of waiver procedures; and 

establishment of third-party neutral 

arbitration of disputes involving labor 

organizations, among others. 

D. Unified Protective Arrangement 

In the NPRM, the Department 

proposed amending section 215.3(b)(1) 

and (2) of the guidelines to implement 

use of a unified protective arrangement 

(UPA) for both operating and capital 

grants except in certain situations set 

forth in the guidelines.4 The use of the 

UPA was primarily proposed because, 

over the past 12 years, administrative 

modifications to the Department’s 

Operating and Capital Assistance 

Arrangements have rendered the two 

documents virtually identical to each 

other. As a result, the Department 

determined that two separate 

arrangements were no longer necessary, 

and administrative efficiency would be 

improved through the application of a 

single arrangement applicable to both 

operating and capital assistance. 

Application of a single UPA to future 


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grants will simplify the preparation of 

referrals, expedite processing of grant 

applications, and, most importantly, 

continue to satisfy the requirements of 

the statute. 

To clarify those circumstances in 

which previously certified arrangements 

will continue to be referred, and those 

circumstances in which the UPA will be 

referred, the Department has made 

organizational and substantive revisions 

to Sections 215.3(b)(1) and (b)(2). 

Section 215.3(b)(1) now sets forth the 

general proposition that the Department 

will refer to applicants with previously 

certified arrangements, and new 

applicants that develop and submit 

protections to the Department before 

applying for assistance, those protective 

terms and conditions that are 

appropriate to the new grant and are set 

by: 

(1) A negotiated agreement developed 

and executed by the parties or the 

parties’ adoption of the Model 

Agreement; 

(2) Terms adopted by a state or local 

government based on agreement 

between the grantee and affected 

employees, where the grantee is a state 

or political subdivision subject to legal 

restrictions on bargaining collectively 

with employee organizations; 

(3) A determination of protective 

terms by the Department that modifies 

in whole or in part negotiated or 

adopted protections; or 

(4) A standardized arrangement 

(either the Operating or Capital 

Arrangement) that has been modified 

through agreement or determination to 

include provisions that are more 

protective than the UPA. 

See 29 CFR 215.3(b)(1). In order to 

improve the logical flow of this 

paragraph in the guidelines, the 

placement of the third and fourth 

categories in Section 215.3(b)(1) have 

been switched from the order set out in 

the NPRM. The Department anticipates 

that applicants with previously certified 

arrangements that fall into the categories 

identified in 215.3(b)(1) will continue to 

constitute the majority of the 

Department’s referrals. The Department 

further anticipates that there will be 

very few situations that fall under the 

fourth type of arrangement listed above. 

An additional organizational change 

made was to Section 215.3(b)(2), which 

now states that in all other 

circumstances, the Department will 

refer the UPA. See revised Section 

215.3(b)(1) and (2). 

In addition to the organizational 

change, the Department has concluded 

that a substantive revision was required 

to Section 215.3(b)(1) (formerly 

proposed 215.3(b)(2)) because the 

standard originally proposed—i.e., 

whether a provision in an arrangement 

modified by negotiation or Department 

determination, was ‘‘addressed by’’ the 

UPA—was ambiguous and would 

permit the substitution of the UPA in 

those cases in which the parties’ may 

have adopted unique provisions that 

may be ‘‘more protective than’’ the UPA. 

Similarly, the language may have 

permitted the substitution of the UPA 

for a negotiated agreement or adopted 

instrument where the Department had 

made a determination addressing one 

issue in that otherwise unique agreed 

upon document. This result was not 

intended, and so the standard for the 

use of the UPA in those cases in which 

the applicant has protective terms 

described in Section 215.3(b)(1)(iii) and 

(iv) has been modified accordingly. 

A number of comments raised 

concerns regarding the continued 

application of previously certified 

arrangements, and whether they would 

be replaced in new grants by new 

arrangements. With the implementation 

of these guidelines revisions, in those 

cases in which the applicant has been 

previously certified on the basis of the 

Operating or Capital Arrangements, and 

there has been no modification to that 

previously certified arrangement 

through negotiation or Departmental 

determination, the UPA will be referred 

to the parties for the next grant. Section 

215.3(b)(2). In those cases in which the 

applicant has been previously certified 

on the basis of the Operating or Capital 

Arrangement that has been modified 

either through negotiation or 

Departmental determination, and that 

modification contains a protective 

provision with an equivalent level of 

protection as a provision in the UPA, 

then the UPA will form the basis of the 

referral for the next grant. Section 

215.3(b)(2). If the applicant has been 

previously certified on the basis of the 

Operating or Capital Arrangement, and 

any negotiated or Department-imposed 

modification thereto contains a 

protective provision that exceeds the 

level of protection established by a 

similar provision in the UPA, then the 

previously certified arrangement and 

not the UPA will be referred for the next 

grant because that arrangement is 

unique to those parties. Section 

215.3(b)(1)(iv). The Department 

considers to be relatively rare those 

cases in which a grantee has been 

previously certified on the basis of 

Operating or Capital arrangement with 

more protective negotiated or 

Departmentally determined 

modifications. If the grantee has been 

previously certified based on protective 

terms and conditions that include, in 

whole or in part, a Departmental 

determination, then the previously 

certified terms and conditions and not 

the UPA will be referred for the next 

grant, again because those protections 

are unique to those parties. Section 

215.3(b)(1)(iii). Finally, if the grantee’s 

previous certifications are based on 

either a negotiated agreement, adoption 

of the Model Agreement, or adoption 

through resolution or other means by a 

state or local government of protective 

terms agreed to by the parties, those 

protections are unique to the parties and 

will form the basis of the Department’s 

referral for the grantee’s next grant. 

Section 215.3(b)(1)(i) and (ii). The same 

is true for new applicants that present 

to the Department proposed terms for 

certification based on either a negotiated 

agreement, adoption of the Model 

Agreement, or adoption through 

resolution or other means by a state or 

local government of protective terms 

agreed to by the parties—the 

Department’s referral in those cases will 

be based on those proposed terms and 

not the UPA. Section 215.3(b)(1). 

Three comments indicated that there 

was support for a UPA, and for 

elimination of the sole provider clause 

from the terms and conditions to be 

applied. The Department received no 

explicit objections to elimination of the 

sole provider clause, but we presume 

that labor organizations that objected to 

the development of the UPA in general 

objected sub silentio to the elimination 

of the sole provider clause. The primary 

goal addressed by the use of the UPA is 

to substitute one instrument in place of 

the two instruments previously used. In 

addition, the terms of the UPA are 

intended to uniformly apply statutorily 

sufficient terms and conditions to future 

grants, where warranted. As a result, the 

UPA will exclude the ‘‘sole provider’’

clause, which has been determined by 

the Department to be unnecessary in 

ensuring compliance with the statute. 

Some comments indicated that 

certifying new arrangements for grant 

applicants that are already a party to 

Department of Labor-crafted 

arrangements would not create 

efficiencies in administration of the 

employee protections and would add to 

the number of arrangements to be 

administered, not reduce their 

proliferation. Currently, each time a 

new union is recognized, service is 

expanded to areas involving new 

unions, or a new project is proposed, 

additional operating and/or capital 

arrangements are put in place to 

accommodate the new unions or new 

service. Applying the UPA will reduce 


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this proliferation of operating and 

capital arrangements through 

application of the same arrangement to 

all those unions that are using standard 

Department of Labor-crafted 

arrangements. As new grant 

applications are submitted, the 

Department will refer the UPA rather 

than the various post-1996 Operating 

and Capital Arrangements. As a result, 

the administrative burden for the 

regulated community, as well as the 

Department, will decrease over time. 

Several comments expressed concerns 

that the Department’s proposed 

adoption of the UPA is not consistent 

with the policy that the Department 

adopted when it revised the guidelines 

in 1996. One comment indicated that 

the earlier guidelines ‘‘sought to 

preserve all terms, including those 

never negotiated or in bilateral 

agreements.’’ ATU Comment, page 7. 

Another comment indicated ‘‘it is 

improper to unilaterally negate 

arrangements that were negotiated in 

good faith or developed by DOL 

determination following briefing by the 

parties.’’ Comment submitted jointly by 

the American Train Dispatchers 

Association, et al. (‘‘ATDA, et al. 

comment’’) in response to NPRM, 

October 15, 2007, page 3. The 

Department recognizes that the 

approach of applying the UPA in lieu of 

previously certified standard protective 

arrangements, i.e., the Operating or 

Capital Arrangements, departs from the 

practice established under the 1996 

guidelines. Pursuant to the 1996 

guidelines revisions, new applicants 

and applicants for which previously 

certified arrangements were not 

appropriate to the pending project 

received a referral based on either the 

Operating Arrangement or the Capital 

Arrangement, and that arrangement 

would continue to be applied to 

subsequent grants unless the parties 

objected and the provisions were 

renegotiated. This system led to the 

proliferation of multiple arrangements 

and created a system that is currently 

difficult to administer. The UPA was 

developed in order to consolidate 

protections into one document that 

satisfies all of the statutory 

requirements. This will eventually 

reduce the grantees’ need to administer 

multiple sets of standard arrangements 

for unions representing affected 

employees in the service area of a 

project. Use of the UPA will also benefit 

International Unions, because their 

oversight of protections applied for their 

local unions should be substantially 

more uniform. Moreover, application of 

the UPA in lieu of existing standard 

arrangements does not ‘‘unilaterally 

negate’’ the existing protective 

arrangements, because those 

arrangements will continue to be in 

force for the projects for which they 

were certified. Only grantees with 

previous certifications that do not fall 

into one of the categories contained in 

Section 215.3(b)(1) will have the UPA 

referred as a standard protective 

arrangement. 

The Department’s administration of 

the program will also be improved using 

the UPA. Initially, as one comment 

suggested, the Department’s decisions 

regarding referrals based on the UPA 

will ‘‘call for a level of discretion in 

individual cases that will render the 

process more, rather than less 

complex.’’ ATDA, et al. comment, p. 3. 

However, once the exceptions have been 

identified, processing of future grants 

will be expedited considerably. It will 

be easier to keep track of the appropriate 

protections to be included in future 

referrals and the parties to those 

protections. In the long run, there will 

be fewer arrangements for the 

Department and the regulated 

community to administer, and it will be 

easier to change a standard arrangement 

such as the UPA to reflect current 

program policies and statutory 

standards applicable to grants whenever 

necessary. As the Department 

previously indicated, it will also 

provide administrative certainty for the 

applicant and union because, with the 

exception of existing negotiated 

agreements and certain arrangements 

which are the product of negotiations or 

determinations, only the UPA will be 

applied to any particular grant. 

Finally, one comment expressed 

concern about the referral of the UPA 

should one or more provisions within it 

conflict with State law. The Department 

has determined that a State law conflict 

with one or more provisions of the 

UPA’s protective terms and conditions 

will not render the entire document 

‘‘inappropriate’’ for referral. In the event 

that a State law conflict is raised in 

connection with the provisions in the 

UPA, the Department will resolve such 

a conflict in the same manner that it 

currently does—by negotiation or 

Departmental determination of a 

substitute term required as the result of 

a sufficient objection raised under 

Section 215.3(d)(3). 

E. Exclusion of Over-the-Road Bus 

Accessibility Program From the 

Department’s Referral Process 

The Department proposed amending 

Section 215.3(a)(4) of the guidelines to 

specify that OTRB grants will no longer 

be subject to its referral process, but 

instead will be certified on the basis of 

the Special Warranty. The NPRM 

indicated that by eliminating referrals 

for OTRB grants and using the Special 

Warranty for certification, the 

Department intended to fully implement 

a requirement in the legislation 

establishing the OTRB program 

(Transportation Equity Act for the 21st 

Century ‘‘TEA–21’’, Public Law 105–178 

(1998)) that OTRB grants ‘‘shall be 

subject to all of the terms and 

conditions applicable to subrecipients 

who provide intercity bus transportation 

under section 5311(f) of title 49.’’

Section 3038(f) of TEA–21. The 

Department reasoned that because 

grants under 49 U.S.C. 5311(f) are 

certified on the basis of the Special 

Warranty without referral to the parties, 

TEA–21 contemplated that OTRB grants 

would be certified on the basis of the 

Special Warranty without referral. 

Three comments challenged the 

Department’s stated interpretation of 

TEA–21. Commenters suggested that in 

the absence of specific exclusionary 

language, TEA–21 cannot be read to 

preclude the use of the referral process 

for OTRB grants, particularly in light of 

the fact that Congress subsequently 

employed specific exclusionary 

language in SAFETEA–LU with regard 

to the Other Than Urbanized grant 

program. 

Upon reconsideration, the Department 

agrees with those comments stating that 

TEA–21 does not require OTRB grants 

to be certified without referral. Indeed, 

in 1999, when finalizing revisions to the 

Guidelines following the passage of 

TEA–21, the Department concluded that 

TEA–21 requires only that OTRB grants 

be subject to certification by the 

Secretary under Section 5333(b), and 

that ‘‘neither th[at] statute nor [its] 

legislative history specify the 

procedures for processing these grants.’’

See 64 FR 40,990, 40,992 (July 28, 

1999). Accordingly, ‘‘the Department 

has flexibility to develop and 

implement procedures appropriate to 

carry out its section 5333(b) 

responsibilities’’ as to these grants. Ibid. 

In employing its administrative 

discretion under TEA–21, the 

Department at that time decided to 

employ the use of its referral procedures 

to OTRB grants. 

Although the Department agrees that 

TEA–21 does not require OTRB grants 

to be certified without referral, the 

Department nevertheless adheres to its 

proposal in the NPRM that such grants 

will be processed in that manner. While 

one comment appears to argue that 

TEA–21 mandates the use of referral 

(ATU Comment, page 7), such an 

argument is premised on the incorrect 


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assumption, which the Department 

rejected in 1999, that the ‘‘terms and 

conditions’’ guaranteed by TEA–21 

include the referral procedure. Thus, the 

comment has provided no basis for 

concluding that referral is required. As 

a result, in employing its discretion, the 

Department now concludes that use of 

the Special Warranty without referral is 

the preferred policy in the OTRB 

context. As explained in the NPRM, the 

Department’s experience with the OTRB 

program has led to the conclusion that 

use of the Special Warranty will 

improve administration of the program. 

See 72 FR at 52,522. Use of the 

Warranty streamlines the Department’s 

processing of grants that have limited 

potential for adversely affecting 

employees and historically have been 

the subject of very few objections, while 

continuing to ensure that the 

requirements of the statute are satisfied 

through application of a Special 

Warranty. Accordingly, the Department 

will administer grants under the OTRB 

program through application of the 

warranty arrangement set forth in 

Section 215.7, which also provides 

procedures to be followed for the Other 

Than Urbanized program. See Section 

215.7. 

F. Administrative Changes 

Several adjustments were proposed in 

the NPRM to reflect current 

administrative practices. 

First, the Department has eliminated 

language contained in Section 215.2 of 

the guidelines indicating that it will 

process applications that are in 

‘‘preliminary’’ form. This section now 

requires that applications ‘‘be in final 

form,’’ based on the Department’s 

determination that its administrative 

processes should not be engaged until 

the grant application reflects the actual 

project activities to be undertaken. 

Although all project activities must be 

firmly established, it is not necessary 

that project funding be available for the 

entire grant before the Department 

processes its certification of the grant. In 

addition, Section 215.8 will be modified 

to add an e-mail address and correct the 

room number of the Division of 

Statutory Programs office. Finally, the 

text of Section 5333(b) of the Federal 

transit law, which was set out in its 

entirety in Section 215.1 of the current 

Guidelines, has been removed from that 

section in the Final Guidelines so that 

modifications of the Guidelines will not 

be necessary each time statutory 

changes are enacted. The Department 

received no comments addressing these 

proposed administrative changes. As a 

result, the Final Guidelines will 

incorporate these revisions as proposed 

in the NPRM. 

As part of its administrative changes, 

the Department proposed to amend 

Section 215.6 to further explain how 

interested parties may utilize the July 

23, 1975 National (Model) Agreement. 

In particular, the Department proposed 

to add procedures in Section 215.6, 

comparable to those in paragraphs 26, 

27, and 28 of the Model Agreement 

itself, by which applicants and unions 

may become a party to or withdraw 

from the Model Agreement. One 

comment objected to the inclusion of 

these National Agreement paragraphs as 

untimely and unnecessary, indicating 

that they provide an ‘‘incomplete 

explanation containing only a fraction 

of the procedures under the National 

Agreement.’’ ATU Comment, page 8. 

Furthermore, it was indicated that 

additional parties no longer sign on to 

the National Agreement, and that those 

that are a party require no additional 

explanation and have access to the 

National Agreement itself or can access 

it through the Department’s Web site. 

The Department’s proposed 

guidelines were intended to increase 

awareness that the Model Agreement 

remains an appropriate instrument for 

the parties to agree to and apply to 

operating assistance projects. If grant 

recipients choose to do so, they, along 

with labor organizations representing 

employees in the service area, may 

continue to sign on to the Model 

Agreement and the Department will 

utilize this as a basis for referral of 

operating grants. Upon reconsideration, 

the Department concludes that it is not 

necessary to include in the Final 

Guidelines procedures regarding 

becoming a party to or withdrawing 

from the Model Agreement, particularly 

because the entire Model Agreement is 

available on the Department’s Web site. 

Accordingly, section 215.6 of the 

guidelines will remain unchanged from 

its current version, except to make a 

technical correction so that this section 

accurately refers back to a revised 

portion of Section 215.3, and to reflect 

the current name of the American 

Public Transportation Association. See 

29 CFR 215.6. 

G. Las Vegas Decisions 

Several comments addressed the 

Department’s discussion of Section 3031 

of SAFETEA–LU, which directs the 

Department to follow certain 

substantive principles enunciated in the 

Department’s decisions for grant NV–

90–X021 (decision of September 21, 

1994, supplemented by decision of 

November 7, 1994, also called the ‘‘Las 

Vegas decisions’’) when making 

determinations involving assurances of 

employment when one private transit 

bus service contractor replaces another 

through competitive bidding. See 49 

U.S.C. 5333(b)(5). The Department 

stated in the NPRM that because the 

Guidelines are procedural in nature, and 

do not encompass discussion governing 

the adjudication of substantive rights of 

parties, this provision of SAFETEA–LU 

would not be addressed in the revisions 

of the Guidelines. 

In response to the NPRM, two 

comments requested that the 

Department address the Las Vegas 

decisions in its final rule, one suggested 

that the Department use only the precise 

language of the decisions, and the other 

suggested that the Department fully 

analyze and explain those decisions in 

the final rule. One comment in 

particular, submitted on behalf of the 

Regional Transportation Commission of 

Southern Nevada (‘‘RTC’’), took issue 

with the Department’s very limited 

description of the Las Vegas decision in 

the NPRM and asserted that the 

Department had ‘‘mischaracterized’’ and 

‘‘fail[ed] to fairly and honestly explain 

the principles’’ of the Las Vegas 

decisions. Comment of RTC submitted 

in Response to NPRM, Oct. 15, 2007, at 

4. Although the RTC comment urges the 

Department to set forth a substantive 

interpretation of the Las Vegas 

decisions, the comment does not 

discuss the Department’s primary 

justification for not addressing the 

decisions’ principles in the guidelines—

i.e., the Department’s guidelines have, 

since 1978, been intended only to 

establish procedures governing the 

efficient certification of transit grants 

and not substantive interpretation of 49 

U.S.C. 5333(b) guarantees. Moreover, 

the Department’s brief discussion of the 

Las Vegas decisions, in the context of 

explaining why the Department would 

not address them in its procedural 

guidelines, was not intended to 

constitute complete guidance on, or 

interpretation of, the principles 

articulated in those decisions. Thus, it 

is unnecessary to join issue on the 

question whether the Department 

mischaracterized those principles in the 

NPRM. Parties to Departmental 

determinations, in which the Las Vegas 

principles are relevant, will be free to 

present argument about the principles’

meaning and application, and those 

arguments will be considered and 

resolved with reference to specific facts 

presented by that existing case or 

controversy. Thus, the Department 

adheres to its conclusion in the NPRM 

that these procedural guidelines should 

not address the Las Vegas decisions, 


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Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47055 

5Although the rule need not be promulgated 

pursuant to notice and comment procedures, the 

Department has elected to use those procedures in 

order to obtain valuable input from the regulated 

community and to increase government 

transparency and accountability. 

and that application of the Las Vegas 

principles is better carried out on a case 

by case basis. Although not 

incorporated in these Guidelines, the 

Department, of course, will adhere to 

the statutory mandate contained in 49 

U.S.C. 5333(b)(5). The Department’s Las 

Vegas determinations, and subsequent 

determinations made based on 

principles set forth in the Las Vegas 

determinations, will be available for 

review on the Department’s Web site. 

H. Other Comments Addressing Issues 

That Exceed the Scope of Revisions 

Proposed in the NPRM 

The Department received comments 

on issues that exceed the scope and 

nature of the revisions made to the 

Guidelines in the NPRM. For instance, 

one commenter suggested that the 

Department revise the criteria used for 

the determination of sufficiency of 

objections under Section 215.3(d)(3), 

and include in those criteria ‘‘court 

decisions, state law, or age of the 

referred protective arrangement.’’

Comment submitted by Jim Seals 

Consulting Services in response to the 

NPRM, October 15, 2007, page 1. 

Another comment requested that the 

Special Warranty be applied to Job 

Access and Reverse Commute (‘‘JARC’’) 

grants serving populations under 

200,000 to expedite processing of these 

grants because of their similarity to 

grants under the Other than Urbanized 

program. The rural JARC program is 

processed by the Department under 

Section 215.3(a)(4)(ii) without referral to 

affected labor organizations on the basis 

of existing agreements or Department of 

Labor-crafted protective arrangements, 

as appropriate. 

The Department appreciates guidance 

offered by these comments, but because 

no proposals were made regarding these 

topics, they are beyond the scope of the 

revisions contemplated by the NPRM, 

and will not be considered at this time. 

III. Regulatory Procedures 

Executive Order 12866 

This final rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, section 1(b), Principles of 

Regulation. The Department has 

determined that this rule is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review. The 

Department has also determined that 

this rule is not ‘‘economically 

significant’’ as defined in Section 3(f)(1) 

of Executive Order 12866. Therefore, the 

information enumerated in section 

6(a)(3)(C) of the order is not required. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(‘‘RFA’’), 5 U.S.C. 601, et seq., federal 

agencies must consider the impact of 

their rules on small entities. However, 

the requirements of the RFA apply only 

to rules that must be promulgated 

pursuant to notice and comment 

procedures under Section 553(b) of the 

Administrative Procedure Act (‘‘APA’’), 

5 U.S.C. 553(b). 5 U.S.C. 603(a). Section 

553(a) of the APA exempts from notice 

and comment rulemaking interpretative 

rules, general statements of policy, or 

rules of agency organization, procedure 

or practice. 5 U.S.C. 553(a). 

Under the Federal transit law, the 

Department is charged with the duty to 

administer the statutory grant 

certification process, and therefore must 

issue procedural rules to establish 

standards to effectuate this 

Congressionally delegated authority. 

This final rule establishes such 

procedural standards, and therefore is 

exempt from notice and comment 

rulemaking under Section 553(a) of the 

APA.5 As a result, this rule is also 

exempt from the requirements of the 

RFA. The Assistant Secretary for 

Employment Standards has certified 

this conclusion to the Chief Counsel for 

Advocacy of the Small Business 

Administration. 

Unfunded Mandates Reform 

Executive Order 12875—This rule 

will not create an unfunded Federal 

mandate upon any State, local or tribal 

government. 

Unfunded Mandates Reform Act of 

1995—This rule will not include any 

Federal mandate that may result in 

increased expenditures by State, local, 

and tribal governments, in the aggregate, 

of $100 million or more, or in increased 

expenditures by the private sector of 

$100 million or more. 

Paperwork Reduction Act 

These Guidelines contain no new 

information collection requirements for 

purposes of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

A. This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This rule will not 

result in an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of the United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

B. Consistent with the Small Business 

Regulatory Enforcement Fairness Act of 

1996, the Department will, prior to the 

rule’s Effective Date, submit to Congress 

a report regarding the issuance of 

today’s final rule. The report will note 

the Office of Management and Budget’s 

determination that this rule does not 

constitute a ‘‘major rule’’ under the Act. 

5 U.S.C. 801, 805. 

Congressional Review Act 

Consistent with the Congressional 

Review Act, 5 U.S.C. 801, et seq., the 

Department will submit to Congress and 

the Comptroller General of the United 

States a report regarding the issuance of 

this Final Rule prior to the effective date 

set forth at the outset of this document. 

List of Subjects in 29 CFR Part 215 

Grant administration; Grants—

transportation; Labor-management 

relations; Labor unions; Mass 

transportation. 

■ In consideration of the foregoing, the 

Department of Labor, Office of LaborManagement Standards, hereby amends 

part 215 of title 29 of the Code of 

Federal Regulations as set forth below. 

PART 215—GUIDELINES, SECTION 

5333(b), FEDERAL TRANSIT LAW 

■ 1. The authority citation for part 215 

is revised to read as follows: 

Authority: Secretary’s Order No. 4–2007, 

72 FR 26159, May 8, 2007. 

■ 2. Section 215.1 is revised to read as 

follows: 

§ 215.1 Purpose. 

The purpose of these guidelines is to 

provide information concerning the 

Department of Labor’s administrative 

procedures in processing applications 

for assistance under the Federal Transit 

law, as codified at 49 U.S.C. chapter 53. 

§ 215.2 [Amended] 

■ 3. Section 215.2 is amended by 

removing ‘‘may be in either preliminary 

or final form’’ and adding in its place 

‘‘must be in final form’’. 

■ 4. Section 215.3 is amended as 

follows: 

■ a. Revise paragraphs (a)(3), (a)(4), and 

(b); 

■ b. Amend paragraph (d)(7) by 

removing ‘‘§§ 215.3(b)(2) and 


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47056 Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 

215.3(b)(3)’’ and adding in its place 

‘‘215.3(b)(1)’’. 

The revisions read as follows: 

§ 215.3 Employees represented by a labor 

organization. 

(a) * * * 

(3) If an application involves a grant 

to a state administrative agency or 

designated recipient that will pass 

assistance through to subrecipients, the 

Department will refer and process each 

subrecipient’s respective portion of the 

project in accordance with this section. 

If a state administrative agency or 

designated recipient has previously 

provided employee protections on 

behalf of subrecipients in accordance 

with the terms of a negotiated 

agreement, the referral will be based on 

those terms and conditions. 

(4) The referral procedures set forth in 

paragraphs (b) through (h) of this 

section are not applicable to the 

following grants: 

(i) Grants to applicants for the Overthe-Road Bus Accessibility Program, 

and grant applications for the Other 

Than Urbanized Program; a special 

warranty will be applied to such grants 

under the procedures in § 215.7. 

(ii) Grants to applicants serving 

populations under 200,000 under the 

Job Access and Reverse Commute 

Program or grants to capitalize State 

Infrastructure Bank accounts under the 

State Infrastructure Bank Program. 

(iii) Grants involving only capital 

assistance for replacement of equipment 

and/or facilities of like-kind; these will 

be certified by the Department without 

referral on the basis of existing 

agreements or the Unified Protective 

Arrangement as referenced in 

paragraphs (b)(1) or (b)(2) of this 

section. Where application of the 

existing protective agreement(s) or the 

Unified Protective Arrangement would 

not satisfy the requirements of the 

statute in the circumstances presented, 

the Department will make necessary 

modifications to the existing protections 

to ensure that the requirements of the 

statute are satisfied. 

(5) The Department will notify labor 

organizations representing potentially 

affected transit employees of the 

certification of grants without referral 

under paragraph (a)(4) of this section 

and inform them of their rights under 

the applicable protective arrangements. 

(b) Upon receipt from the Federal 

Transit Administration of an application 

involving affected employees 

represented by a labor organization, the 

Department will refer a copy of the 

application and proposed terms for 

certification to that organization and to 

the applicant, and will also provide a 

copy to subrecipients with unions in 

their service area. 

(1) For applicants with existing 

protections the Department’s referral 

will be based on those protective terms 

and conditions that are appropriate to 

the grant and are set by: 

(i) A signed negotiated agreement or 

formal acceptance of the July 23, 1975 

National (Model) Agreement; 

(ii) Agreed-upon terms adopted by a 

State or local government through a 

resolution or similar instrument; 

(iii)) A determination of protective 

terms by the Department that modifies 

in whole or in part negotiated or 

adopted protections; or 

(iv) A protective arrangement that has 

been modified to include provisions 

that are more protective than the 

Unified Protective Arrangement referred 

to in paragraph (b)(2) of this section. 

(2) For applicants without protective 

terms and conditions set by an 

arrangement described in paragraph 

(b)(1) of this section, the referral will be 

based on the terms and conditions of the 

Unified Protective Arrangement. 

* * * * * 

■ 5. Section 215.5 is revised to read as 

follows: 

§ 215.5 Processing of amendments. 

(a) Grant modifications in the form of 

grant amendments will be transmitted 

by the Federal Transit Administration to 

the Department for review. Applications 

amending a grant for which the 

Department has already certified fair 

and equitable arrangements to protect 

the interests of transit employees 

affected by the project, will be 

processed by the Department following 

one of the two procedures described in 

paragraphs (a)(1) and (2) of this section. 

(1) When an application amends a 

grant for which the Department has 

previously certified fair and equitable 

arrangements and the amendment 

makes changes to a project that may 

necessitate alternative employee 

protections, the Department will 

conclude that the amendment materially 

amends the existing assistance 

agreement. The Department will refer 

and/or process the labor certification 

provisions of such an amended grant 

according to procedures specified under 

§§ 215.3 and 215.4, as appropriate. 

(2) When an application amends in a 

manner that is not material a grant for 

which the Department has already 

certified fair and equitable 

arrangements, the Department will, on 

its own initiative and without referral to 

the parties, certify the subject grant on 

the same terms and conditions as were 

certified for the project as originally 

constituted. The Department’s 

processing of these applications will be 

expedited and copies will be forwarded 

to interested parties. 

(b) Budget Revisions that make minor 

changes within the scope of the existing 

grant agreement and do not require a 

Federal Transit Administration grant 

amendment, as set forth in Federal 

Transit Administration guidance, will 

be covered under the Department’s 

original certifications. 

§ 215.6 [Amended] 

■ 6. Section 215.6 is amended as 

follows: 

■ a. Remove ‘‘paragraph (b)(3)(i)’’ and 

add in its place ‘‘paragraphs (b)(1)(i) and 

(b)(2)’’; 

■ b. Following ‘‘American Public 

Transit Association’’ add ‘‘(now known 

as the American Public Transportation 

Association)’’. 

■ 7. Section 215.7 is amended as 

follows: 

■ a. Remove ‘‘(b)(3)(ii)’’ and add ‘‘(b)(2)’’

in its place; 

■ b. Remove the phrase ‘‘small urban 

and rural program under section 5311 of 

the Federal Transit Statute’’ and add in 

its place ‘‘Other Than Urbanized 

program’’. 

■ c. Designate the existing text as 

paragraph (a) and add two sentences to 

the end; and 

■ d. Add new paragraphs (b) and (c). 

The revisions and additions read as 

follows: 

§ 215.7 The Special Warranty. 

(a) * * * The Special Warranty 

Arrangement applicable to OTRB and 

Other Than Urbanized grants will be 

derived from the terms and conditions 

of the May 1979 Special Section 13(c) 

Warranty, and the Department’s 

subsequent experience under 49 U.S.C. 

5333(b). From time to time, the 

Department may update this Special 

Warranty Arrangement to reflect 

developments in the employee 

protection program. 

(b) The requirements of 49 U.S.C. 

5333(b) for OTRB and ‘‘Other Than 

Urbanized’’ grants are satisfied through 

application of a Special Warranty 

Arrangement certified by the 

Department of Labor; a copy of the 

current arrangement will be included on 

the OLMS Web site. 

(c) The Federal Transit 

Administration will include the current 

version of the Special Warranty 

Arrangement, through reference in its 

Master Agreement, in each OTRB and 

Other Than Urbanized grant of 

assistance under the statute. 

(1) The Federal Transit 

Administration will notify the 


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Federal Register / Vol. 73, No. 157 / Wednesday, August 13, 2008 / Rules and Regulations 47057 

Department that it is funding an OTRB 

or Other Than Urbanized grant by 

transmitting to the Department an 

information copy of each grant 

application upon approval of the grant. 

(i) Each grant of assistance for an 

Other Than Urbanized program will 

contain a labor section identifying labor 

organizations representing transit 

employees of each subrecipient, the 

labor organizations representing 

employees of other transit providers in 

the service area, and a list of those 

transit providers. A sample format is 

posted on the OLMS Web site to 

facilitate the inclusion of this 

information in the grant application. 

(ii) OTRB grants of assistance will 

contain a labor section identifying labor 

organizations representing employees of 

the recipient. 

(2) The Department will notify labor 

organizations representing potentially 

affected transit employees of the 

approval of Other Than Urbanized and 

OTRB grants and inform them of their 

rights under the Special Warranty 

Arrangement. 

§ 215.8 [Amended] 

■ 8. Section 215.8 is amended as 

follows: 

■ a. Remove ‘‘Director,’’ and add in its 

place ‘‘Chief, Division of’’; 

■ b. Remove ‘‘Suite N5603,’’; and 

■ c. Add the phrase ‘‘or e-mailed to 

OLMS-TransitGrant@dol.gov’’ at the end 

of the paragraph. 

Signed at Washington, DC, this 4th day of 

August, 2008. 

Victoria A. Lipnic, 

Assistant Secretary for Employment 

Standards. 

Donald Todd, 

Deputy Assistant Secretary, Office of LaborManagement Standards. 

[FR Doc. E8–18497 Filed 8–12–08; 8:45 am] 

BILLING CODE 4510–CP–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2007–0099; FRL–8360–2] 

Flubendiamide; Pesticide Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for residues of the insecticide 

flubendiamide per se, N2-[1,1-Dimethyl2-(methylsulfonyl)ethyl-3-iodo-N1-[2- 

methyl-4-[1,2,2,2-tetrafluoro-1- 

(trifluoromethyl)ethyl]phenyl]-1,2- 

benzenedicarboxamide, in or on certain 

food and raw agricultural commodities. 

Bayer CropScience, LP in c/o Nichino 

America, Inc. (U.S. subsidiary of Nihon 

Nohyaku Co., Ltd.) requested these 

tolerances under the Federal Food, Drug 

and Cosmetic Act (FFDCA). 

DATES: This regulation is effective 

August 13, 2008. Objections and 

requests for hearings must be received 

on or before October 14, 2008, and must 

be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ–

OPP–2007–0099. To access the 

electronic docket, go to http:// 

www.regulations.gov, select ‘‘Advanced 

Search,’’ then ‘‘Docket Search.’’ Insert 

the docket ID number where indicated 

and select the ‘‘Submit’’ button. Follow 

the instructions on the regulations.gov 

website to view the docket index or 

access available documents. All 

documents in the docket are listed in 

the docket index available in 

regulations.gov. Although listed in the 

index, some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Room S–

4400, One Potomac Yard (South 

Building), 2777 S. Crystal Drive, 

Arlington, VA 22202–4501. The Docket 

Facility is open from 8:30 a.m. to 4 p.m., 

Monday through Friday, excluding legal 

holidays. The Docket Facility telephone 

number is (703) 305–5805. 

FOR FURTHER INFORMATION CONTACT: 

Carmen Rodia, Registration Division 

(7505P), Office of Pesticide Programs, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460–0001; telephone 

number: (703) 306–0327; e-mail address: 

rodia.carmen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this Action Apply to Me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. Potentially 

affected entities may include, but are 

not limited to, those engaged in the 

following activities: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

This listing is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

affected by this action. Other types of 

entities not listed in this unit could also 

be affected. The North American 

Industrial Classification System 

(NAICS) codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. If you have any 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed under FOR FURTHER

INFORMATION CONTACT. 

B. How Can I Access Electronic Copies 

of this Document? 

In addition to accessing an electronic 

copy of this Federal Register document 

through the electronic docket at http:// 

www.regulations.gov, you may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr. You may 

also access a frequently updated 

electronic version of EPA’s tolerance 

regulations at 40 CFR part 180 through 

the Government Printing Office’s pilot 

e-CFR site at http://www.gpoaccess.gov/ 

ecfr. To access the OPPTS Harmonized 

Guidelines referenced in this document, 

go directly to the guidelines at http:// 

www.epa.gpo/opptsfrs/home/ 

guidelin.htm. 

C. Can I File an Objection or Hearing 

Request? 

Under section 408(g) of FFDCA, any 

person may file an objection to any 

aspect of this regulation and may also 

request a hearing on those objections. 

You must file your objection or request 

a hearing on this regulation in 

accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ–

OPP–2007–0099 in the subject line on 

the first page of your submission. All 

requests must be in writing, and must be 

mailed or delivered to the Hearing Clerk 

as required by 40 CFR part 178 on or 

before October 14, 2008. 

In addition to filing an objection or 

hearing request with the Hearing Clerk 

as described in 40 CFR part 178, please 

submit a copy of the filing that does not 

contain any CBI for inclusion in the 


hsrobinson on PROD1PC76 with RULES