[Federal Register Volume 81, Number 161 (Friday, August 19, 2016)]
[Rules and Regulations]
[Pages 56072-56469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15975]
[[Page 56071]]
Vol. 81
Friday,
No. 161
August 19, 2016
Part VI
Department of Labor
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Employment and Training Administration
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20 CFR Parts 603, 651, 652, et al.
Workforce Innovation and Opportunity Act; Final Rule
Federal Register / Vol. 81 , No. 161 / Friday, August 19, 2016 /
Rules and Regulations
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 603, 651, 652, 653, 654, 658, 675, 679, 680, 681, 682,
683, 684, 685, 686, 687, and 688
[Docket No. ETA-2015-0001]
RIN 1205-AB73
Workforce Innovation and Opportunity Act
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (DOL or the Department) issues this
Final Rule to implement titles I and III of the Workforce Innovation
and Opportunity Act (WIOA). Through these regulations, the Department
reforms and modernizes our nation's workforce development system. This
rule provides the framework for changes for statewide and local
workforce development systems to increase the employment, retention,
earnings, and occupational skill attainment of U.S. workers,
particularly those individuals with barriers to employment, so they can
move into good jobs and careers and provide businesses with the skilled
workforce needed to make the United States more competitive in the 21st
Century global economy.
DATES: This Final Rule is effective October 18, 2016.
FOR FURTHER INFORMATION CONTACT: Adele Gagliardi, Administrator, Office
of Policy Development and Research (OPDR), U.S. Department of Labor,
Employment and Training Administration, 200 Constitution Avenue NW.,
Room N-5641, Washington, DC 20210, Telephone: (202) 693-3700 (voice)
(this is not a toll-free number). If you use a telecommunications
device for the deaf (TDD), call 1-800-326-2577.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Major Provisions
C. Costs and Benefits
II. Acronyms and Abbreviations
III. Rulemaking Authority and Background
A. Workforce Innovation and Opportunity Act Principles
B. Major Changes From the Workforce Investment Act of 1998
C. Workforce Innovation and Opportunity Act Rulemaking Process
D. Legal Basis
IV. Public Comments Received on the Notice of Proposed Rulemaking
V. Section-by-Section Discussion of the Public Comments and Final
Regulations
A. Part 603--Federal-State Unemployment Compensation Program
B. Part 675--Introduction to the Regulations for the Workforce
Development Systems Under Title I of the Workforce Innovation and
Act
C. Part 679--Statewide and Local Governance of the Workforce
Development System Under Title I of the Workforce Innovation and
Opportunity Act
D. Part 680--Adult and Dislocated Worker Activities Under Title
I of the Workforce Innovation and Opportunity Act
E. Part 681--Youth Activities Under Title I of the Workforce
Innovation and Opportunity Act
F. Part 682--Statewide Activities Under Title I of the Workforce
Innovation and Opportunity Act
G. Part 683--Administrative Provisions Under Title I of the
Workforce Innovation and Opportunity Act
H. Part 684--Indian and Native American Programs Under Title I
of the Workforce Innovation and Opportunity Act
I. Part 685--National Farmworker Jobs Program Under Title I of
the Workforce Innovation and Opportunity Act
J. Part 686--The Job Corps Under Title I of the Workforce
Innovation and Opportunity Act
K. Part 687--National Dislocated Worker Grants
L. Part 688--Provisions Governing the YouthBuild Program
M. Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
N. Part 652--Establishment and Functioning of State Employment
Service
O. Part 653--Services of the Wagner-Peyser Act Employment
Service
P. Part 654--Special Responsibilities of the Employment Service
Q. Part 658--Administrative Provisions Governing the Wagner-
Peyser Act Employment Service
VI. Rulemaking Analyses and Notices
A. Executive Orders 12866 and 13563: Regulatory Planning and
Review
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Paperwork Reduction Act
E. Executive Order 13132 (Federalism)
F. Unfunded Mandates Reform Act of 1995
G. Plain Language
H. Assessment of Federal Regulations and Policies on Families
I. Executive Order 13175 (Indian Tribal Governments)
J. Executive Order 12630 (Government Actions and Interference
With Constitutionally Protected Property Rights)
K. Executive Order 12988 (Civil Justice Reform)
L. Executive Order 13211 (Energy Supply)
I. Executive Summary
A. Purpose of the Regulatory Action
On July 22, 2014, President Obama signed the Workforce Innovation
and Opportunity Act (WIOA) (Pub. L. 113-128), comprehensive legislation
that reforms and modernizes the public workforce system. WIOA reaffirms
the role of the public workforce system, and brings together and
enhances several key employment, education, and training programs. This
new law provides resources, services, and leadership tools for the
public workforce system to help individuals find good jobs and stay
employed and improves employer prospects for success in the global
marketplace. It ensures that the public workforce system operates as a
comprehensive, integrated, and streamlined system to provide pathways
to prosperity for those it serves and continuously improves the quality
and performance of its services.
The Department is publishing this Final Rule to implement those
provisions of WIOA that affect the core programs under title I, the
Wagner-Peyser Act Employment Service (ES) program, as amended by WIOA
title III (ES program), and the Job Corps and national programs
authorized under title I which will be administered by the Department.
In addition to this DOL WIOA Final Rule, the Departments of Education
(ED) and Labor jointly are publishing a Final Rule to implement those
provisions of WIOA that affect all of the WIOA core programs (titles I
through IV) and which will have to be overseen and administered jointly
by both Departments. Readers should note that in this DOL WIOA Final
Rule there are a number of cross-references to the Joint WIOA Final
Rule published by ED and DOL, including those provisions in the Joint
WIOA Final Rule regarding performance reporting. In addition to the
Joint WIOA Final Rule, ED and DOL are issuing separate final rules to
implement program-specific requirements of WIOA that fall under each
Department's purview. DOL is issuing this Final Rule governing program-
specific requirements under WIOA title I and for the ES program, as
amended by WIOA title III. ED is issuing three final rules: One
implementing program-specific requirements of the Adult Education and
Family Literacy Act (AEFLA), as reauthorized by title II of WIOA; and
two final rules implementing all program-specific requirements for
programs authorized under the Rehabilitation Act of 1973, as amended by
title IV of WIOA. The Joint WIOA Final Rule and other Department-
specific final rules are published
[[Page 56073]]
elsewhere in this issue of the Federal Register.
WIOA seeks to deliver a broad array of integrated services to
customers of the public workforce system, which include both
individuals seeking jobs and skills training and employers seeking
skilled workers. The law improves the public workforce system by more
closely aligning it with regional economies and strengthening the
network of about 2,500 one-stop centers. Customers must have access to
a seamless system of high-quality services through coordination of
programs, services, and governance structures. The Act builds closer
ties among key workforce partners--business leaders, State and Local
Workforce Development Boards (WDBs), labor unions, community colleges,
non-profit organizations, youth-serving organizations, and State and
local officials--in striving for a more job-driven approach to training
and skills development.
WIOA will help job seekers and workers access employment,
education, training, and support services to succeed in the labor
market and match employers with the skilled workers they need to
compete in the global economy. The purposes of WIOA described in the
statute include:
Increasing access to and opportunities for the employment,
education, training, and support services that individuals need,
particularly those with barriers to employment.
Supporting the alignment of workforce investment,
education, and economic development systems, in support of a
comprehensive, accessible, and high-quality workforce development
system.
Improving the quality and labor market relevance of
workforce investment, education, and economic development efforts.
Promoting improvement in the structure and delivery of
services.
Increasing the prosperity of workers and employers.
Providing workforce development activities that increase
employment, retention, and earnings of participants and that increase
postsecondary credential attainment and as a result, improve the
quality of the workforce, reduce welfare dependency, increase economic
self-sufficiency, meet skill requirements of employers, and enhance
productivity, and the competitiveness of our nation.
WIOA's passage and implementation builds upon the groundwork
already laid by an Administration-wide review of employment, education,
and training programs to ensure Federal agencies do everything possible
to prepare ready-to-work-Americans with ready-to-be-filled jobs. That
review identified several priorities for Federally supported training
programs, including employer engagement; promoting work-based learning
strategies, such as on-the job training and registered apprenticeships,
career pathways, and regional collaboration; increasing access to
training by breaking down barriers; and data-driven program management
and evaluation.
As WIOA implementation progresses, success in accomplishing the
purposes of WIOA at the State, local, and regional levels, will be
determined by whether:
One-stop centers are recognized as a valuable community
resource and are known for high quality, comprehensive services for
customers.
The core programs and one-stop partners provide seamless,
integrated customer service.
Program performance, labor market, and related data drive
policy and strategic decisions and inform customer choice.
Youth programs reconnect out-of-school youth (OSY) to
education and jobs.
Job seekers access quality career services either online
or in a one-stop center through a ``common front door'' that connects
them to the right services.
One-stop centers facilitate access to high quality,
innovative education and training.
Services to businesses are robust and effective, meeting
businesses' workforce needs across the business lifecycle.
As noted throughout this Final Rule, the Department will be issuing
guidance to help our regulated communities understand their rights and
responsibilities under WIOA and these regulations. Consistent with the
Administrative Procedure Act's exemption from its notice and comment
requirement for general statements of policy, interpretations, and
procedural instructions, this guidance will provide interpretations of
many of the terms and provisions of these regulations and more detailed
procedural instructions that would not be appropriate to set out in
regulations. The Department also will be issuing guidance to provide
information on current priorities and initiatives, suggested best
practices, and in response to stakeholder questions.
B. Summary of Major Provisions
To implement WIOA title I, the Department has added several new CFR
parts to title 20, chapter V (ETA's regulations). In particular,
because the WIA regulations will continue to be referenced in existing
and historic documents for some time after the WIOA transition, the
Department is creating entirely new programmatic regulations to reflect
the requirements of WIOA, rather than amending the WIA title I
regulations found at 20 CFR parts 660 through 672. Table 1 below
presents a crosswalk for these new CFR parts to illustrate how they
relate to the existing WIA regulations.
In addition, the Department is revising in this DOL WIOA Final Rule
certain other CFR parts in accordance with WIOA, rather than creating
entirely new parts, where it was not necessary to retain the WIA
version of the regulation. For example, the Department retains the
Wagner-Peyser Act implementing regulations in 20 CFR parts 651 through
658 and is revising in this Final Rule only those parts that are
affected by WIOA, i.e., parts 651 through 654 and 658. Further, the
Department is amending portions of part 603 (Federal-State Unemployment
Compensation (UC) Program; Confidentiality and Disclosure of State UC
Information) in accordance with WIOA. These CFR parts that are amended
but not new in this DOL WIOA Final Rule are indicated in Table 1 by
showing that they do not change location in the CFR from WIA to WIOA.
The remainder of this section I.B briefly summarizes each CFR part in
this Final Rule and any significant differences between the notice of
proposed rulemaking (NPRM) and Final Rule.
Table 1--Crosswalk of WIA and WIOA Regulations
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Subject matter WIA CFR part WIOA CFR part
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Federal-State UC Program......... 20 CFR part 603....................... 20 CFR part 603.
Definitions/Introduction to 20 CFR part 660....................... 20 CFR part 675.
Regulations.
State and Local WDBs, Local and 20 CFR part 661....................... 20 CFR part 679.
Regional Plans, Waivers.
Adult and Dislocated Workers..... 20 CFR part 663....................... 20 CFR part 680.
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Youth Activities................. 20 CFR part 664....................... 20 CFR part 681.
Statewide Activities............. 20 CFR part 665....................... 20 CFR part 682.
Administrative Provisions........ 20 CFR part 667....................... 20 CFR part 683.
Indian and Native American 20 CFR part 668....................... 20 CFR part 684.
Programs.
National Farmworker Jobs Program. 20 CFR part 669....................... 20 CFR part 685.
Job Corps........................ 20 CFR part 670....................... 20 CFR part 686.
National Dislocated Worker Grants 20 CFR part 671....................... 20 CFR part 687.
YouthBuild....................... 20 CFR part 662....................... 20 CFR part 688.
Wagner-Peyser Act Employment 20 CFR part 651....................... 20 CFR part 651.
Service--Definitions.
Wagner-Peyser Act Employment 20 CFR part 652....................... 20 CFR part 652.
Service--Establishment and
Functioning.
Wagner-Peyser Act Employment 20 CFR part 653....................... 20 CFR part 653.
Service--Services.
Wagner-Peyser Act Employment 20 CFR part 654....................... 20 CFR part 654.
Service--Special
Responsibilities.
Wagner-Peyser Act Employment 20 CFR part 658....................... 20 CFR part 658.
Service--Administrative
Provisions.
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1. Part 603--Federal-State Unemployment Compensation Program
The Department is amending its regulations at 20 CFR part 603 to
help States comply with WIOA. WIOA requires that States use ``quarterly
wage records'' in assessing the performance of certain Federally funded
employment and training programs. In particular, this Final Rule amends
part 603 to clarify and expand, in a limited fashion, those public
officials with whom the State may share certain confidential
information to carry out requirements under WIOA, including the use of
wage records to meet performance reporting requirements and cooperation
with certain DOL and ED evaluations. The Department is amending part
603 as proposed in the NPRM.
2. Part 675--Introduction to the Regulations for the Workforce
Development System Under Title I of the Workforce Innovation and
Opportunity Act
Part 675 discusses the purpose of title I of the WIOA, explains the
format of the regulations governing title I, and provides additional
definitions for terms used in the law.
The most notable changes to this part from the regulatory text
proposed in the NPRM include the addition of a definition of ``family''
and strengthening the definition of ``consultation.'' The DOL WIOA
Final Rule defines ``family'' in the same way as the WIA definition of
``family,'' except that instead of using the gender-specific
``husband'' and ``wife'' terms that were in WIA, it substitutes ``a
married couple.'' This is intended to bring the definition into
conformance with the recent Supreme Court decisions about marriage
equality.
Regarding the revised definition of ``consultation,'' in response
to public comments expressing concern that the proposed definition was
not specific enough, the Final Rule definition better focuses on the
public workforce system and is necessary to clarify that consultation
constitutes a coming together of stakeholders, robust conversation, and
opportunity for all parties to express thoughts and opinions.
The Department also changed the terms ``workforce innovation and
opportunity system,'' and ``workforce investment system'' to
``workforce development system'' throughout this rule. This was done to
enhance consistency across parts and avoid confusion, and to be
emphasize the role of workforce development boards in this system.
3. Part 679--Statewide and Local Governance of the Workforce
Development System Under Title I of the Workforce Innovation and
Opportunity Act
Part 679 addresses the statewide and local governance provisions of
the workforce development system under WIOA title I. This part includes
provisions that govern the conditions under which the Governor must
establish the State WDB (subpart A); the requirements for designation
of regions and local areas under WIOA (subpart B); the role of Local
WDBs, Local WDB membership, and the role of chief elected officials
(CEOs) (subpart C); the requirements relating to regional and local
plans (subpart D); the statutory and regulatory waiver authority
provided by WIOA sec. 189(i), including the requirements for submitting
a workforce flexibility plan under WIOA sec. 190 (subpart E).
As for notable changes to this part from the NPRM regulatory text,
to address concerns about representation of core programs on the State
WDB was raised by many commenters, the Department has revised the final
regulations to clarify that, for the WIOA title I and ES programs, a
single lead State official with primary responsibility for those
programs may represent more than one of those programs. However, WIOA
title II programs must have a single, unique representative, and the
Vocational Rehabilitation (VR) program administered by ED and
authorized under title I of the Rehabilitation Act of 1973, as amended
by WIOA title IV (VR program), must have a single, unique
representative. See Sec. 679.110(b)(3)(iii)(A)(1)(i) through (iii).
Further, the Department clarified the regulatory text by providing
details on the duration of initial local area designation and the
timing of the first available opportunity for local area subsequent
designation to occur. The Department revised the proposed requirement
to clarify that initial designation is applicable only to Program Year
(PY) 2016 and PY 2017. Noting the commenters' concerns regarding
availability of WIOA performance data, which is required for the
determination of designation, the Department added Sec. 679.250(c) to
clarify that no determination of subsequent designation may be made
before the conclusion of PY 2017. The section-by-section discussion of
part 679 below details other changes to the part 679 regulatory text,
as well as Department responses to all substantive public comments.
4. Part 680--Adult and Dislocated Worker Activities Under Title I of
the Workforce Innovation and Opportunity Act
In this part of the Final Rule, the Department describes
requirements relating to the services that are available for adults and
dislocated workers under WIOA title I. Under WIOA, adults and
dislocated workers may access career services and training services.
Training is provided through a robust eligible training provider and
program list (ETPL), comprised of entities with a demonstrated
capability of training
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individuals to enter quality employment. WIOA also provides enhanced
access and flexibility for work-based training options, such as on-the-
job training (OJT), customized training, and incumbent worker training.
In this part, the Department also discusses supportive services and
needs-related payments that can be provided, based on customer needs,
to enable them to participate in WIOA career and training services.
Some of the notable changes to this part from the NPRM regulatory
text include that the Final Rule clarifies that the priority of service
in the adult program for individuals who are public assistance
recipients, other low-income individuals and for individuals who are
basic skills deficient exists at all times, not just when funds are
limited.
Regarding the role of registered apprenticeship programs, the Final
Rule emphasizes the key role WIOA envisions for registered
apprenticeship programs by highlighting these programs as a training
service for both Individual Training Accounts (ITAs) and as OJT. The
Final Rule allows apprenticeship programs that are not registered to go
through the eligible training provider (ETP) process if they want to be
on the ETP list; the rule does not provide apprenticeship programs that
are not registered special access to the ETPL. The Department also
clarifies in this Final Rule that registered apprenticeship programs
are automatically eligible for the ETPL and the State is required to
notify them of their automatic eligibility and allow the registered
apprenticeship program an opportunity to consent to be on the State
ETPL (see Sec. 680.470). This mechanism must be minimal burden to
registered apprenticeship programs and must comply with Federal
guidance. The Department further clarifies in this Final Rule that
local areas, which have the authority to set more stringent standards
than the State for eligibility of training providers, may not do so for
registered apprenticeship programs that are on the State ETPL. Finally,
the Department clarifies in this Final Rule that registered
apprenticeship programs may be removed from the State ETPL for
enforcement reasons other than performance, such as a clear violation
of WIOA (see Sec. 680.470). Although registered apprenticeship
programs are not required to report in the same way as other ETPs, they
are required to be a part of the State annual ETP performance report
under WIOA sec. 116(d)(2).
5. Part 681--Youth Activities Under Title I of the Workforce Innovation
and Opportunity Act
Part 681 describes requirements relating to the services that are
available to youth under WIOA title I, subtitle B, as part 664 did for
youth activities funded under WIA. The most significant change to the
youth formula program under WIOA is the shift to focus resources
primarily on OSY. WIOA increases the minimum percentage of program
funds required to be spent on OSY from 30 to 75 percent. The Department
plans to release subsequent guidance and technical assistance on how
States and local areas can incorporate strategies for recruiting and
serving more OSY.
In addition, WIOA includes a major focus on providing youth with
work experience opportunities with a requirement that local areas must
spend a minimum of 20 percent of local area funds on work experience.
And although work experience becomes the most important of the program
elements, WIOA also introduces 5 new program elements: Financial
literacy; entrepreneurial skills training; services that provide labor
market and employment information about in-demand industry sectors or
occupations available in the local areas; activities that help youth
prepare for and transition to postsecondary education and training; and
education offered concurrently with and in the same context as
workforce preparation activities and training for a specific occupation
or occupational cluster.
The most significant change between the NPRM and the Final Rule
occurs in Sec. 681.400. This section clarifies that youth activities
may be conducted by the local grant recipient and that when the Local
WDB chooses to award grants or contracts to youth service providers,
such awards must be made using a competitive procurement process in
accordance with WIOA sec. 123. The section-by-section discussion of
part 681 below details other changes to the part 681 regulatory text,
as well as Department responses to all substantive public comments.
6. Part 682--Statewide Activities Under Title I of the Workforce
Innovation and Opportunity Act
WIOA provides a reservation of funds for statewide employment and
training activities. These activities are undertaken by the States,
rather than by Local WDBs; both the required and allowable activities
are addressed by part 682. WIOA designates the percentage of funds that
may be devoted to these activities from annual allotments to the
States--up to 15 percent must be reserved from youth, adult, and
dislocated worker funding streams, and up to an additional 25 percent
of dislocated worker funds must be reserved for statewide rapid
response activities.
Some of the notable changes to this part from the NPRM regulatory
text include the specification that layoff aversion is a required rapid
response activity, as applicable. Layoff aversion activities may
include employer-focused activities such as providing assistance to
employers in managing reductions in force, funding feasibility studies
to determine if the employer's operation may be sustained through a
buy-out, etc. Further, the DOL WIOA Final Rule specifies that a
successful rapid response system includes comprehensive business
engagement. Finally, the DOL WIOA Final Rule specifies that rapid
response funds may be used to pay for incumbent worker training as long
as it is part of a broader layoff aversion strategy. Incumbent worker
training is also a valuable layoff aversion tool and, under WIA, many
States requested a waiver to allow such training with rapid response
funds. This Final Rule change recognizes the value of incumbent worker
training for this purpose and includes it as allowable under rapid
response within the context of layoff aversion activities.
7. Part 683--Administrative Provisions Under Title I of the Workforce
Innovation and Opportunity Act
Part 683 establishes the administrative provisions for the programs
authorized under title I of WIOA. Some of the provisions are also
applicable to grants provided under the Wagner-Peyser Act, as indicated
in specific sections of the part. The remaining Wagner-Peyser Act
administrative regulations are located in part 658. Additionally,
please note that administrative provisions for Job Corps (subtitle C of
title I of WIOA) contracts are addressed separately in part 686.
This DOL WIOA Final Rule adds a requirement that the Governor
establish criteria or factors for approving Local WDB transfers of
funds between the adult and dislocated worker programs and that these
criteria must be in a written policy, such as the State Plan or other
written policy.
Regarding Pay-for-Performance contract strategies, the final
regulations made a change from the NPRM in that the Department has
added a new section that maintained the requirement for a feasibility
study prior to implementing a Pay-for-Performance contract strategy
[[Page 56076]]
but removed it from the 10 percent limitation of funds.
8. Part 684--Indian and Native American Programs Under Title I of the
Workforce Innovation and Opportunity Act
Part 684 governs the Indian and Native American (INA) program
authorized under WIOA sec. 166. WIOA and part 684 streamline the
competitive process for awarding the INA program grants. Section 166 of
WIOA requires both that grants be awarded through a competitive process
and that grantees submit a 4-year plan (WIOA secs. 166(c) and 166(e)).
These WIOA regulations streamline the grant award process to ease the
administrative burdens. The Department will no longer designate
grantees or require a notice of intent. Moreover, the part 684 WIOA
regulations have incorporated the 4-year plan into the competitive
grant award process. Because these changes will help streamline the
process for awarding grants, these WIOA regulations should result in
less of an administrative burden on both applicants and the Department.
Other than a few technical, non-substantive edits, the Department
has made no changes to the regulatory text in part 684.
9. Part 685--National Farmworker Jobs Program Under Title I of the
Workforce Innovation and Opportunity Act
The purpose of part 685 is to implement WIOA sec. 167, which
authorizes migrant and seasonal farmworker (MSFW) programs. In drafting
these regulations, the Department consulted with States and MSFW groups
during stakeholder consultation sessions conducted in August and
September 2014, as required by WIOA sec. 167(f). MSFW programs include
career services and training, housing assistance, youth services, and
related assistance to eligible MSFWs.
The regulations in part 685 support strategic alignment across
workforce development programs by: Aligning the definition of
``farmwork'' found in this part with that used in the ES program;
adjusting the upper and lower age ranges of eligible MSFW youth to
conform to those established in WIOA sec. 129 for OSY and ISY; and
requiring that grantees coordinate services, particularly outreach to
MSFWs, with the State Workforce Agency (SWA) in their service area and
the State Monitor Advocate. These changes are intended to support
coordination between MSFW programs and other workforce programs such as
the ES program, and facilitate MSFW youth co-enrollments with other
WIOA title I programs.
Part 685 includes language regarding training services that
reinforces that training must be directly linked to an in-demand
industry or occupation that leads to economic self-sufficiency and
encourages the attainment of recognized postsecondary credentials when
appropriate (see Sec. 685.350).
Part 685 also establishes that grantees funded under WIOA sec. 167
can serve eligible MSFW youth participants (see Sec. Sec. 685.320 and
685.510). These regulations also require that a percentage of the total
funds appropriated each year for WIOA sec. 167 activities must be used
for housing grants, and described specific housing assistance
activities to better articulate the types of services that can be
delivered to eligible MSFWs (see Sec. 685.360).
Based on the public comments received in response to the NPRM, the
Department made the following significant changes to part 685 as
proposed:
The Final Rule permits a National Farmworker Jobs Program
(NFJP) grantee some flexibility to increase the OJT reimbursement rate
up to 75 percent of the wage rate of a participant, provided that such
reimbursement rates are consistent with the rates set by the Governor
in the State or Local WDB(s) in the local area(s) in which the grantee
operates in accordance with WIOA sec. 134(c)(3)(H)(i);
The Final Rule revises Sec. 685.360(d) to clarify that
NFJP-funded permanent housing development activities that benefit
eligible MSFWs do not require individual eligibility determinations;
The Final Rule clarifies in Sec. 685.360 that development
of on-farm housing located on property owned and operated by an
agricultural employer is an allowable activity; and
In response to commenters' concerns regarding the negative
impact that would result on performance indicator calculations by
including individuals who receive only certain minimal ``related
assistance'' services, which do not require a significant investment of
staff time and resources, the Department has added language to Sec.
685.400 that puts the NFJP program in alignment with other WIOA
authorized programs regarding performance accountability calculations.
10. Part 686--The Job Corps Under Title I of the Workforce Innovation
and Opportunity Act
This part establishes regulations for the Job Corps program,
authorized in title I, subtitle C of WIOA. The regulations address the
scope and purpose of the Job Corps program and provide requirements
relating to site selection, protection, and maintenance of Job Corps
facilities; funding and selection of center operators and service
providers; recruitment, eligibility, screening, selection and
assignment, and enrollment of Job Corps students; Job Corps program
activities and center operations; student support; career transition
services and graduate services; community connections; and
administrative and management requirements. The regulations carry out
Congressional direction on contracting and competition for centers and
incorporate the requirements of title I, subtitle C of WIOA.
Specifically, the regulations describe how the Job Corps program is
operated in order to deliver relevant academic and career technical
training (CTT) that leads to meaningful employment or postsecondary
education and explain the requirements necessitated by the unique
residential environment of a Job Corps center.
Although the Department received some public comments that opposed
the proposed provision stating that the Secretary of Labor, in
consultation with the Secretary of Agriculture, may select an entity to
operate a Civilian Conservation Center (CCC) or close low performing
CCCs if the Secretary of Labor deems appropriate (Sec. 686.350(e)
through (f)), the DOL WIOA Final Rule retains these paragraphs as
proposed because the regulatory text mirrors the statutory requirements
at WIOA sec. 159(f)(2). In addition, regarding concerns expressed by
commenters that the proposed high-performing center criteria were too
difficult to achieve, the Department is retaining Sec. 686.320 as
proposed because the language in the regulation mirrors that of WIOA
and the Department does not have the discretion to loosen the criteria.
11. Part 687--National Dislocated Worker Grants
National Dislocated Worker Grants (DWGs) are discretionary awards
that temporarily expand service capacity at the State and local levels
through time-limited funding assistance in response to significant
dislocation events. These grants are governed by sec. 170 of WIOA. The
part 687 regulations set forth the key elements and requirements for
DWGs. Additional guidance on DWGs and the application requirements for
these grants was published separately by the Department in Training and
Employment Guidance Letter (TEGL) No. 01-15, ``Operational Guidance for
National Dislocated Worker Grants, pursuant to the
[[Page 56077]]
Workforce Innovation and Opportunity Act (WIOA or Opportunity Act).''
The part 687 regulations establish a framework that will enable
eligible applicants to apply quickly for grants to relieve the impact
of layoffs, emergencies, and disasters on employment in the impacted
area and to meet the training and reemployment needs of affected
workers and to enable them to obtain new jobs as quickly as possible.
These regulations call for early assessment of the needs and interests
of the affected workers, through either rapid response activities or
other means, as well as an indication of the other resources available
to meet these needs, to aid in the creation of a customer-centered
service proposal. The early collection of information about affected
workers will allow applicants to have an understanding of the needs and
interests of the impacted workers to enable a prompt application for
the appropriate level of DWG funds. Early collection of information
also will facilitate the receipt of DWG funds when the Secretary
determines that there are insufficient State and local formula funds
available. Early intervention to assist workers being dislocated is
critical to enable them to access work-based learning opportunities and
other types of training that lead to industry-recognized credentials,
as appropriate, to help them find new employment in in-demand
industries and occupations as soon as possible after their dislocation
occurs.
The Department has made several global changes and technical edits
to the part 687 regulations proposed in the NPRM for clarity and
technical accuracy. For example, ``National Dislocated Worker Grants''
will be referred to by the acronym ``DWGs'' in this part for
simplicity. In addition, the Department has determined it is necessary
to alter the labels of what the NPRM called ``Regular'' and
``Disaster'' DWGs to describe more accurately their purpose and
intended use. ``Regular'' DWGs have been renamed ``Employment
Recovery'' DWGs, and ``Disaster'' DWGs have been renamed ``Disaster
Recovery'' DWGs. Further, the terms ``career services'' and
``employment-related assistance'' have been changed to ``employment and
training assistance'' to clarify that the use of DWG funds is not
limited to only career services. Training and supportive services also
may be provided as appropriate and in accordance with the requirements
of part 687. Finally, the term ``temporary employment'' has been
replaced with the term ``disaster relief employment'' to better align
the text of this part 687 with that of WIOA sec. 170. In addition, this
DOL WIOA Final Rule clarifies that individuals who relocate to another
State, tribal, or outlying area after a disaster may receive services
in either the disaster area or the area to which they relocate.
However, the Final Rule also includes a provision for the Secretary to
allow, in certain circumstances, individuals to receive services in
both the disaster and the relocation area. Other non-substantive
changes and technical edits are described in detail in the section-by-
section discussion of part 687 below.
12. Part 688--Provisions Governing the YouthBuild Program
The YouthBuild program authorizes grants for job training and
educational activities for at-risk youth who, as part of their
training, help construct or rehabilitate housing for homeless
individuals and families and low-income families in their respective
communities. Participants receive a combination of classroom training,
job skills development, and on-site training in the construction
trades. The Department wants to emphasize the connections across all of
our youth-serving programs under WIOA, including the WIOA youth formula
program and associated boards and youth committees, connections to pre-
apprenticeship and registered apprenticeship programs, and Job Corps
centers across the country. WIOA is an opportunity to align and
coordinate service strategies for these ETA youth training programs, as
well as to align with our Federal partners that serve these same
customers. WIOA also ensures that these programs are using common
performance indicators and standard definitions, which includes
aligning the definitions for homeless youth, basic skills deficient,
occupational skills training, and supportive services. Additionally,
the YouthBuild regulation adopts the six new performance indicators
that were codified across WIOA youth-serving programs and aligns
YouthBuild with the WIOA youth formula program performance outcomes.
WIOA affirms the Department's commitment to providing high-quality
education, training, and employment services for youth and young adults
through YouthBuild grants by expanding the occupational skills training
offered at local YouthBuild programs. YouthBuild programs can offer
occupational skills training in in-demand occupations, such as health
care, advanced manufacturing, and IT, as approved by the Secretary and
based on the maturity of the program and local labor market
information.
Other changes include revisions to the duration of the restrictive
covenant clause, clarifying eligibility criteria for participation, and
describing qualifying work sites and minimum criteria for successful
exit from the YouthBuild program. Beyond these regulations, the
Department will continue to develop guidance and technical assistance
to help grantees and the workforce development community operate highly
effective YouthBuild programs.
13. Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
The Wagner-Peyser Act of 1933 established the ES program, which is
a nationwide system of public employment offices that provide public
labor exchange services. The ES program seeks to improve the
functioning of the nation's labor markets by bringing together
individuals seeking employment with employers seeking workers. In 1998,
the ES program was amended to make it part of the one-stop delivery
system established under WIA. The ES program has now been amended again
under title III of WIOA.
WIOA expands upon the previous workforce reforms in the WIA and,
among other provisions, identifies the ES as a core program in the one-
stop delivery system, embeds ES State planning requirements into a
unified planning approach, and requires the colocation of ES offices
into the one-stop centers. The regulations in parts 651, 652, 653, 654,
and 658 update the language and content of the regulations to implement
amendments made by title III of WIOA to the Wagner-Peyser Act. In some
areas, these regulations establish entirely new responsibilities and
procedures. In other areas, the regulations clarify and update
requirements already established. The regulations make important
changes to the following components of the ES program: definitions,
data submission, and increased collaboration requirements, among
others.
Part 651 sets forth definitions for 20 CFR parts 652, 653, 654, and
658. The Department received several comments regarding these
definitions and has eliminated, revised, and added definitions, as
needed. Some commenters suggested new terms they would like to see
defined in part 651, and other commenters expressed concerns or
suggestions relating to specific proposed definitions. Additionally,
the Department has made technical and clarifying changes to some of the
definitions.
[[Page 56078]]
14. Part 652--Establishment and Functioning of State Employment Service
The regulations at 20 CFR part 652 set forth standards and
procedures regarding the establishment and functioning of State ES
operations. These regulations align part 652 with the WIOA amendments
to the ES program, and with the WIOA reforms to the public workforce
system that affect the ES program. The WIOA-amended Wagner-Peyser Act
furthers longstanding goals of closer collaboration with other
employment and training programs by mandating colocation of ES offices
with one-stop centers; aligning service delivery in the one-stop
delivery system; and ensuring alignment of State planning and
performance indicators in the one-stop delivery system. Other new
Wagner-Peyser Act provisions are consistent with long-term Departmental
policies, including increased emphasis on reemployment services for UI
claimants (sec. 7(a)); promoting robust Workforce Labor Market
Information (WLMI); the development of national electronic tools for
job seekers and businesses (sec. 3(e)); dissemination of information on
best practices (sec. 3(c)(2)); and professional development for ES
staff (secs. 3(c)(4) and 7(b)(3)).
Several public comments received in response to the NPRM prompted
the Department to make minor changes to parts of the regulations in
this section. For example, the Department agreed with comments
regarding ensuring comprehensive front-line staff training; and direct
language has been added to Sec. 652.204 from sec. 3(c)(4) of the
Wagner-Peyser Act (as amended by WIOA sec. 303(b)(4)) to indicate that
professional development and career advancement can be supported by the
Governor's Reserve. The Department agreed with the commenter-suggested
benefits of aligning definitions across the core programs, and as a
result, the terms ``reportable individual'' and ``participant'' have
been revised to align with the performance accountability of the other
core programs. The Department also agreed with commenters who suggested
that career services under WIOA are not a substitute for Wagner-Peyser
Act sec. 7(a) services; Sec. 652.3(f) has been amended to reference
sec. 7(a) of the Wagner-Peyser Act. The Department continues to seek
alignment of service delivery with WIOA core programs.
The Department received several varying comments regarding
colocation. This part clarifies the intent of colocation; how ES-only
affiliate sites do not meet the intent of WIOA; the Department's
decision to broaden language in 20 CFR 678.315(b) to allow multiple
programs to meet the more than 50 percent threshold by combining the
time their staff members are physically present (see Joint WIOA Final
Rule); and the expectation that colocation should be completed as
expeditiously as possible, and that the Department will issue future
guidance on this topic. Many commenters also raised questions and
provided comments regarding the allowable uses of Wagner-Peyser Act
funds. The Department clarified that there are no changes in the
activities that may be funded by Wagner-Peyser Act funds. Specifically,
training services may not be provided with sec. 7(a) of the Wagner-
Peyser Act funding; however, appropriate career services and labor
exchange services may be provided to individuals in training and there
is no restriction on funding training services with sec. 7(b) funds
under the Wagner-Peyser Act.
In regard to WLMI, some of the clarifications identified in this
part include: There is a need to provide extensive education and
technical assistance with regard to accessing wage record data; the
Workforce Information Advisory Council (WIAC) will advise on WLMI and
may consider what kind of information is needed for planning, but it
will not be involved in developing State Plans; and the Departments of
Labor and Education will issue joint guidance with regard to use of
wage data for performance in the context of the confidentiality
requirements for the use of UI wage record data and education data
under the Family Educational Rights and Privacy Act (FERPA). The
Department also made other clarifying changes to part 652, as discussed
elsewhere in this Final Rule.
15. Part 653--Services of the Wagner-Peyser Act Employment Service
Part 653 sets forth standards and procedures for providing services
to MSFWs and provides regulations governing the Agricultural
Recruitment System (ARS), a system for interstate and intrastate
agricultural job recruitment. In subparts B and F of part 653, the
Department is implementing the WIOA title III amendments to the Wagner-
Peyser Act, as well as streamlining and updating certain sections to
eliminate duplicative and obsolete provisions. Despite these changes,
part 653 remains consistent with the ``Richey Order.'' NAACP v.
Brennan, 1974 WL 229, at *7 (D.D.C. Aug. 13, 1974).
Upon the consideration of comments suggesting that the Department
require outreach workers to be trained on not only how to identify and
refer possible incidents of sexual harassment, but also on similar
issues such as sexual coercion, assault, and human trafficking, the
Department has added such language to the regulatory text at Sec.
653.107(b)(7). Training outreach workers in this way is key in helping
to connect victims with appropriate resources and support networks.
16. Part 654--Special Responsibilities of the Employment Service System
In 1980, the Department published amended regulations at 20 CFR
part 654, subpart E, providing agricultural housing standards for
MSFWs. In the NPRM, the Department proposed to revise these
agricultural housing regulations (hereinafter ``ETA standards'') by
updating outdated terminology and by establishing an expiration date
for the ETA standards. This proposed expiration date was intended to
transition housing currently governed by the ETA standards to the
Occupational Safety and Health Administration (OSHA) regulations
governing temporary labor camps for agricultural workers as set forth
at 29 CFR 1910.142. After considering the public comments received on
this aspect of the proposal, the Department is rescinding its proposal
to establish an expiration date for the ETA standards in order to
transition housing currently governed by the ETA standards to the OSHA
standards, as explained in further detail in this Final Rule.
17. Part 658--Administrative Provisions Governing the Wagner-Peyser Act
Employment Service
Part 658 sets forth systems and procedures for complaints,
monitoring for compliance assessment, enforcement, and sanctions for
violations of the ES regulations and employment-related laws, including
discontinuation of services to employers and decertification of SWAs.
The Department's proposed changes to part 658 updated terminology and
responsibilities and reorganized various regulations to increase the
clarity and efficiency of the provisions involved. Additionally,
headings were revised, when necessary, to reflect changes to the
regulations, and language was added to permit, where relevant, the use
of electronic mail and electronic signatures.
Overall, the Department received several comments seeking
clarification on processing complaints and apparent violations,
attempting informal
[[Page 56079]]
resolution, and the role of MSFW complainant's representatives, among
many others. The Department has addressed these requests for
clarification in the responses to public comments contained in the part
658 section-by-section discussion below (see section V.Q).
Additionally, the Department will issue guidance on the Complaint
System, informal resolution, referring complaints and apparent
violations, and on part 658, subpart F (Discontinuation of Services to
Employers by the Employment Service System).
C. Costs and Benefits
This Final Rule has been designated an ``economically significant
rule'' under sec. 3(f)(4) of Executive Order (E.O.) 12866. Therefore,
the Office of Management and Budget (OMB) has reviewed the Final Rule,
and the Department has conducted a regulatory impact analysis to
estimate the costs, benefits, and transfers associated with the Final
Rule, which is detailed in full in section V.A of the Final Rule below.
In total, the Department estimates that this Final Rule will have an
average annual net benefit of $14,806,210 and a total 10-year net
benefit of $95,836,706 (with 7-percent discounting).
The Department estimates that this Final Rule will have an average
annual cost of $35,037,540 and a total 10-year cost of $278,750,652
(with 7-percent discounting). The largest contributor to the cost is
the requirement related to the development and continuous improvement
of the workforce development system, followed by the career pathways
development and the colocation of ES services.
The Department quantified the expected incremental benefits
associated with this Final Rule relative to the baseline of the current
practice under the Workforce Investment Act of 1998 (WIA), where
possible. Specifically, the Department quantified the benefits expected
to result from required competition for all one-stop operators.
Competition for all one-stop operators will result in cost reductions
for Local WDBs due to increases in efficiency, which are estimated to
amount to approximately $49,843,750 per year and $374,587,357 over the
10-year period (with 7-percent discounting). This quantified benefit
resulting from increased competition for all one-stop operators,
however, does not account for several other important benefits to
society that the Department was unable to quantify due to data
limitations or lack of existing data or evaluation findings. Based on a
review of empirical studies (primarily studies published in peer-
reviewed academic publications and studies sponsored by the
Department), however, the Department identified a variety of societal
benefits: (1) Training services increase job placement rates; (2)
participants in occupational training experience higher reemployment
rates; (3) training is associated with higher earnings; and (4) State
performance accountability measures, in combination with the board
membership provision requiring employer/business representation, can be
expected to improve the quality of the training and, ultimately, the
number and caliber of job placements. The Department identified several
channels through which these benefits might be achieved: (1) Better
information about training providers will enable workers to make better
informed choices about programs to pursue; (2) sanctions to under-
performing States will serve as an incentive for both States and local
entities to monitor performance more effectively and to intervene
early; and (3) enhanced services for dislocated workers, self-employed
individuals, and workers with disabilities will lead to the benefits
discussed above.
In addition, the Final Rule will result in transfer payments, i.e.,
a shift in costs or benefits from one group to another that does not
affect total resources available to society. The Department estimates
that this Final Rule will result in annual average transfer payments of
$12,887,628 and a total 10-year transfer payment of $96,853,514 (with
7-percent discounting). These transfers result from increased funding
for targeting OSY.
The Department has determined that the Final Rule will have no cost
impact on small entities and will not impose an unfunded mandate on
Federal, State, local, or tribal governments as defined by the Unfunded
Mandates Reform Act of 1995.
II. Acronyms and Abbreviations
AEFLA Adult Education and Family Literacy Act
ALJ Administrative Law Judge
ACS American Community Survey
ADA Americans with Disabilities Act
ANRC Alaska Native Regional Corporation
ANVSA Alaska Native Village Service Area
AOP Agricultural Outreach Plan
ARC Analyst Resource Center
ARS Agricultural Recruitment System
ATAP Assistive Technology Act Program
AWPA Migrant and Seasonal Agricultural Worker Protection Act
AWOL Absent Without Official Leave
BCL Business and Community Liaison
BLS Bureau of Labor Statistics
CBO Community-based organization
CCC Civilian Conservation Center
CDBG Community Development Block Grant
CEO Chief elected official
CEP Concentrated Employment Program
CFR Code of Federal Regulations
Complaint System Employment Service and Employment-Related Law
Complaint System
COO Chief operating officer
COSO Committee of Sponsoring Organizations of the Treadway
Commission
CPARS Contract Performance Assessment Reports
CPP Career Preparation Period
CRIS Common Reporting Information System
CTS Career Transition Services
CTT Career Technical Training
DACA Deferred Action for Childhood Arrivals
DINAP Division of Indian and Native American Programs
DOL Department of Labor
DVOP Disabled Veterans Outreach Program
DWG Dislocated Worker Grant
EBSS Enterprise Business Support System
ED Department of Education
EEOC Equal Employment Opportunity Commission
E.O. Executive Order
EO Equal opportunity
ES Employment Service
ESA Employment Standards Administration
ESARS Employment Security Automated Reporting System
ETA Employment and Training Administration
ETP Eligible training provider
ETPL Eligible training provider list
FAR Federal Acquisition Regulations
FECA Federal Employees Compensation Act
FEIN Federal employer identification number
FEMA Federal Emergency Management Agency
FERPA Family Educational Rights and Privacy Act
FLSA Fair Labor Standards Act
FOA Funding Opportunity Announcement
FPO Federal Project Officer
FR Federal Register
FTE Full Time Equivalent
GED General Educational Development
GIS Geographic information system
GPRA Government Performance and Results Act
HEARTH Homeless Emergency Assistance and Rapid Transition to Housing
Act of 2009
HHS Department of Health and Human Services
HOME HOME Investment Partnerships
HSD High School Diploma
HSE High School Equivalent
HUD U.S. Department of Housing and Urban Development
IC Information collection
ICR Information Collection Request
IEP Individual Employment Plan
IEVS Income and Eligibility Verification System
INA Indian and Native American
IRFA Initial Regulatory Flexibility Analysis
IRS Internal Revenue Service
ISDEAA Indian Self-Determination and Education Assistance Act
[[Page 56080]]
ISS Individual Service Strategy
ISY In-school youth
IT Information technology
ITA Individual Training Account
JIS Job Information Service
JS Job Service
JTPA Job Training Partnership Act
JVSG Jobs for Veterans State Grants
LEARS Labor Exchange Agricultural Reporting System
LEHD Longitudinal Employer-Household Dynamics
LEP Limited English proficiency
LEWIS Local Employment and Wage Information System
LLC Limited Liability Corporation
LLSIL Lower Living Standard Income Level
LMI Labor Market Information
Local WDB Local Workforce Development Board
MOU Memorandum of Understanding
MPO Management Performance Outcome
MSFW Migrant and Seasonal Farmworker
MSWR Medical Separation with Reinstatement Rights
NAA National Apprenticeship Act
NAACP National Association for the Advancement of Colored People
NAETC Native American Employment and Training Council
NAFTA North American Free Trade Agreement
NAICS North American Industry Classification System
NDWG National Dislocated Worker Grant
NEG National Emergency Grant
NFJP National Farmworker Jobs Program
NICRA Negotiated Indirect Cost Rate Agreement
NIEM National Information Exchange Model
NLX National Labor Exchange
NPRM Notice of Proposed Rulemaking
OA Outreach and Admissions
OALJ Office of Administrative Law Judges
OBS On-board strength
ODEP Office of Disability and Employment Policy
OFLC Office of Foreign Labor Certification
OIG Office of the Inspector General
OJT On-the-job training
OMB Office of Management and Budget
OMS Outcome Measurement System
OPDR Office of Policy Development and Research
OSHA Occupational Safety and Health Administration
OSY Out-of-school youth
OTSA Oklahoma Tribal Service Area
OWI Office of Workforce Investment
PART Program Assessment and Rating Tool
PBP Program Budget Plan
PEDCS Post Enrollment Data Collection System
PIA Privacy Impact Assessment
PII Personally identifiable information
PIP Performance improvement plan
PIRL Participant Individual Record Layout
PMP Projections Managing Partnership
PPACA Patient Protection and Affordable Care Act
PRA Paperwork Reduction Act of 1995
PREP Profiling Reemployment Program
PRH Policy and Requirements Handbook
Pub. L. Public Law
PY Program year
REA Reemployment and Eligibility Assessment
RESEA Reemployment Services and Eligibility
RFA Regulatory Flexibility Act
RFP Requests for proposals
RHY Runaway or Homeless Youth
Richey Order Judge Richey Court Order
RIN Regulatory Information Number
RMA Regional Monitor Advocate
RSA Rehabilitation Services Administration
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SDA Service delivery area
sec. Section of a Public Law or the United States Code
SESA State Employee Security Act
S-FTP Secure File Transfer Protocol
SMA State Monitor Advocate
SOC Standard Occupational Classification
SNAP Supplemental Nutrition Assistance Program
SSA Social Security Act
SSDI Social Security Disability Insurance
SSN Social Security Number
State WDB State Workforce Development Board
STAWRS Simplified Tax and Wage Reporting System
SWA State Workforce Agency
SWCAP Statewide Cost Allocation Plans
TAA Trade Adjustment Assistance
TANF Temporary Assistance for Needy Families
TAPR Trade Act Participant Report
TAT Technical Assistance and Training
TDD Telephone device for the deaf
TEAP Trainee Employee Assistance Program
TEGL Training and Employment Guidance Letter
TEN Training and Employment Notice
UC Unemployment Compensation
UCX Unemployment Compensation for Ex-service members
UI Unemployment insurance
U.S.C. United States Code
VA Department of Veterans Affairs
VETS Veterans' Employments and Training Service
VR Vocational rehabilitation
Wagner-Peyser Act Wagner-Peyser Act of 1933
WARN Worker Adjustment and Retraining Notification
WDB Workforce Development Board
WHD Wage and Hour Division
WIA Workforce Investment Act of 1998
WIAC Workforce Information Advisory Council
WIASRD Workforce Investment Act Standardized Record Data
WIB Workforce investment boards
WIC Workforce Information Council
WIOA Workforce Innovation and Opportunity Act
WLMI Workforce and Labor Market Information
WLMIS Workforce and Labor Market Information System
WPRS Worker Profiling and Reemployment Services
WRIS Wage Record Interchange System
YB-TAP YouthBuild Trainee Apprenticeship Program
ZT Zero Tolerance
III. Rulemaking Authority and Background
A. Workforce Innovation and Opportunity Act Principles
On July 22, 2014, President Obama signed WIOA, the first
legislative reform of the public workforce system in more than 15
years, which passed Congress by a wide bipartisan majority. WIOA
supersedes WIA and amends the Adult Education and Family Literacy Act
(AEFLA), the Wagner-Peyser Act, and the Rehabilitation Act of 1973.
WIOA presents an extraordinary opportunity for the public workforce
system to accelerate its transformational efforts and demonstrate its
ability to improve job and career options for our citizens through an
integrated, job-driven public workforce system that links diverse
talent to our nation's businesses. It supports the development of
strong, vibrant regional economies where businesses thrive and people
want to live and work.
WIOA reaffirms the role of the customer-focused one-stop delivery
system, a cornerstone of the public workforce development system, and
enhances and increases coordination among several key employment,
education, and training programs. Most provisions in WIOA took effect
on July 1, 2015, the first full program year after enactment, although
the new statutory State Plans and performance accountability system
requirements take effect July 1, 2016. Title IV of WIOA, however, took
effect upon enactment.
WIOA is designed to help job seekers access employment, education,
training, and support services to succeed in the labor market and to
match employers with the skilled workers they need to compete in the
global economy. WIOA has six main purposes: (1) Increasing access to
and opportunities for the employment, education, training, and support
services for individuals, particularly those with barriers to
employment; (2) supporting the alignment of workforce investment,
education, and economic development systems in support of a
comprehensive, accessible, and high-quality workforce development
system; (3) improving the quality and labor market relevance of
workforce investment, education, and economic development efforts; (4)
promoting improvement in the structure and delivery of services; (5)
increasing the prosperity of workers and employers; and (6) providing
workforce development activities that increase employment, retention,
and earnings of participants and that increase
[[Page 56081]]
postsecondary credential attainment and as a result, improve the
quality of the workforce, reduce welfare dependency, increase economic
self-sufficiency, meet skill requirements of employers, and enhance
productivity and competitiveness of the nation.
Beyond achieving the requirements of the new law, WIOA offers an
opportunity to continue to modernize the public workforce system, and
achieve key hallmarks of a customer centered public workforce system,
where the needs of business and workers drive workforce solutions,
where one-stop centers and partners provide excellent customer service
to job seekers and businesses, where the public workforce system
pursues continuous improvement through evaluation and data-driven
policy, and where the public workforce system supports strong regional
economies.
Regulations and guidance implementing WIOA titles I and III are
issued by DOL, with the exception of the joint regulations issued by
DOL and ED on the provisions in title I relating to unified and
combined planning, performance, and the one-stop delivery system.
Regulations and guidance on implementing titles II and IV of WIOA are
issued by ED. The Joint WIOA Final Rule and the ED WIOA Final Rules are
published elsewhere in this issue of the Federal Register.
WIOA retains much of the structure of WIA, but with critical
changes to advance greater coordination and alignment. Under title I,
subtitle A, each State will be required to develop a single, unified
strategic plan that is applicable to six core workforce development
programs. The core programs consist of the adult, dislocated worker,
and youth formula programs administered by the Department under WIOA
title I; the Adult Education and Family Literacy program administered
by ED under WIOA title II; the ES program administered by the
Department and authorized by the Wagner-Peyser Act, as amended by WIOA
title III; and the VR program administered by ED and authorized under
title I of the Rehabilitation Act of 1973, as amended by WIOA title IV
(VR program). In addition to core programs, WIOA provides States the
opportunity to include other key one-stop partner programs such as the
Supplemental Nutrition Assistance Program (SNAP), Unemployment
Insurance (UI), Temporary Assistance for Needy Families (TANF), and
Perkins Career Technical Education in a Combined State Plan. The law
also includes a common performance accountability system applicable to
all of the core programs.
The remainder of WIOA title I authorizes the adult, dislocated
worker, and youth formula programs; the State and local WDBs (formerly
workforce investment boards or WIBs); the designation of regions and
local areas; local plans; the one-stop delivery system; national
programs, including Job Corps, YouthBuild, Indian and Native American
(INA) programs, and Migrant and Seasonal Farmworker (MSFW) programs;
technical assistance and evaluations; and general administrative
provisions currently authorized under title I of WIA. Title II retains
and amends the Adult Education and Family Literacy Program currently
authorized under title II of WIA. Title III contains amendments to the
Wagner-Peyser Act relating to the ES and Workforce and Labor Market
Information System (WLMIS), and requires the Secretary to establish a
WIAC. Title IV contains amendments to the Rehabilitation Act of 1973,
which were also included under title IV of WIA; it also requires the
Secretary of Labor to establish an Advisory Committee on Increasing
Competitive Integrated Employment for Individuals with Disabilities.
Finally, title V contains general provisions similar to the provisions
applicable under title V of WIA as well as the effective dates and
transition provisions.
B. Major Changes From the Workforce Investment Act of 1998
This section contains a summary of the major changes from WIA. As
indicated above, WIOA retains much of the structure of WIA. Major
changes in WIOA are:
Aligns Federal investments to support job seekers and
employers. The Act provides for States to prepare a single Unified
State Plan that identifies a 4-year strategy for achieving the
strategic vision and goals of the State for preparing an educated and
skilled workforce and for meeting the skilled workforce needs of
employers. States govern the core programs as one system assessing
strategic needs and aligning them with service strategies to ensure the
public workforce system meets employment and skill needs of all workers
and employers.
Streamlines the governing bodies that establish State,
regional and local workforce investment priorities. WIOA makes State
and Local WDBs more agile and well positioned to meet local and
regional employers' workforce needs by reducing the size of the WDBs
and assigning them additional responsibilities to assist in the
achievement of the State and local strategic workforce vision and
goals. The State WDBs continue to have a majority of business
representation and a business chair and work for all workers and job
seekers, including low-skilled adults, youth, and individuals with
disabilities, while they foster innovation, and ensure streamlined
operations and service delivery excellence.
Creates a common performance accountability system and
information for job seekers and the public. WIOA ensures that Federal
investments in employment, education, and training programs are
evidence-based and data-driven, and accountable to participants and the
public. It establishes a performance accountability system that applies
across the core programs, by generally applying six primary indicators
of performance: Entry into unsubsidized employment at two points in
time, median earnings, attainment of postsecondary credentials,
measurable skill gains, and effectiveness in serving employers.
Fosters regional collaboration to meet the needs of
regional economies. WIOA promotes alignment of workforce development
programs with regional economic development strategies to meet the
needs of local and regional employers.
Enhances access to high quality services through the
network of one-stop delivery system. WIOA helps job seekers and
employers acquire the services they need in centers and online,
clarifies the roles and responsibilities of the one-stop partner
programs, adds the TANF program as a required one-stop partner unless
the Governor objects, requires competitive selection of one-stop
operators, and requires the use by the one-stop delivery system of a
common one-stop delivery identifier or brand developed by the Secretary
of Labor (``American Job Center,'' see Joint WIOA Final Rule).
Improves services to individuals with disabilities. WIOA
stresses physical and programmatic accessibility, including the use of
accessible technology to increase individuals with disabilities' access
to high quality workforce services.
Makes key investments for disconnected youth. WIOA
emphasizes services to disconnected youth to prepare them for
successful employment by requiring that a minimum of 75 percent of
youth formula program funds be used to help OSY, in contrast to the 30
percent required under WIA. WIOA increases OSYs' access to WIOA
services, including pre-apprenticeship
[[Page 56082]]
opportunities that result in registered apprenticeship. It adds a
requirement that at least 20 percent of formula funds at the local
level be used on work-based training activities such as summer jobs,
OJT, and apprenticeship.
Helps employers find workers with the necessary skills.
WIOA contributes to economic growth and business expansion by ensuring
the public workforce system is job-driven--matching employers with
skilled individuals. WIOA requires Local WDBs to promote the use of
industry and sector partnerships that include key stakeholders in an
industry cluster or sector that work with public entities to identify
and address the workforce needs of multiple employers.
Additionally, successful implementation of many of the approaches
called for within WIOA, such as career pathways and sector strategies,
require robust relationships across programs and with businesses,
economic development, education and training institutions, including
community colleges and career and technical education, local entities,
and supportive services agencies.
C. Workforce Innovation and Opportunity Act Rulemaking Process
Since the enactment of WIOA, the Department has used a variety of
means to coordinate with other Federal agencies that have roles and
responsibilities under the Act. The Department works closely with staff
at ED and the Department of Health and Human Services (HHS) on all
shared policy and implementation matters. Key areas of collaboration
include the Unified State Plan, performance reporting, one-stop service
delivery, and services to disconnected youth and to individuals with
disabilities. WIOA created an opportunity to enhance coordination and
collaboration across other Federal programs through the Combined State
Plan and the Department meets with the other Federal agencies regarding
those plans.
Before publishing the WIOA NPRM (80 FR 20690, Apr. 16, 2015), the
Department solicited broad input through a variety of mechanisms
including:
Issued Training and Employment Notice (TEN) No. 05-14 to
notify the public workforce system that WIOA was enacted, accompanied
by a statutory implementation timeline, a fact sheet that identified
key reforms to the public workforce system, and a list of frequently
asked questions.
Issued TEN No. 06-14 to announce a series of webinars to
engage WIOA stakeholders in implementation of WIOA.
Issued TEN No. 12-14 to provide guidance to States and
other recipients of funds under title I of WIA on the use and reporting
of PY 2014 funds for planning and implementation activities associated
with the transition to WIOA.
Established a WIOA Resource Page (www.doleta.gov/WIOA) to
provide updated information related to WIOA implementation to the
public workforce system and stakeholders;
Established a dedicated email address for the public
workforce system and stakeholders to ask questions and offer ideas
related to WIOA ([email protected]);
Conducted, in conjunction with ED and HHS, outreach calls,
webinars, and stakeholder and in-person town halls in each ETA region.
The Department and its Federal partners hosted 10 town halls across the
country, reaching over 2,000 system leaders and staff representing core
programs and one-stop partners, employers, and performance staff. This
included a town hall with INA leaders and membership organizations
serving Indians and Native Americans, Hawaiians, and Alaskan Natives as
well as a formal consultation with members of the Native American
Employment and Training Advisory Council to the Secretary of Labor.
Conducted readiness assessments to implement WIOA in all
States and 70 local workforce areas to inform technical assistance.
Since the DOL WIOA NPRM was published, the Department has issued
additional WIOA guidance using various mechanisms including the
following:
Issued numerous pieces of official guidance to the public
workforce system on policies related to WIOA implementation (some
jointly with ED), including ``Vision for the One-Stop Delivery System
under WIOA'' (Aug. 13, 2015) and TEGL No. 14-15, ``Workforce Innovation
and Opportunity Act (WIOA) Requirements for Unified and Combined State
Plans.'' See http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
Provided on-going technical assistance to the public
workforce system in the form of Frequently Asked Questions. See https://www.doleta.gov/wioa/FAQs.cfm.
Developed a network of peer learners titled the Innovation
and Opportunity Network (ION) that is designed to help all levels of
workforce development professionals, stakeholders, and partners connect
with others throughout the public workforce system who are working to
implement WIOA. ION's in-person collaboration is provided through the
Department's regional Federal Project Officers, and regional meetings
with State and local stakeholders. Regarding online collaboration, the
ION Web site provides webinars, quick start action planners, podcasts
from voices in the field describing their experiences in
implementation, and other online resources.
Conducted, in conjunction with ED and HHS, webinars for
stakeholders on a variety of topics, including: Credentials that Count
for Youth (Apr. 29, 2015); ION (May 13 and June 3, 2015); Firing Up
Youth Standing Committees (May 27, 2015); Making the Shift--
Successfully Leveraging In-School Youth (ISY) and OSY Resources and
Services (June 24, 2015); WIOA Act Now Series: Partnerships in Action
(July 1, 2015); Webinar Series Act Now: Governance, Leadership, and
Building a Strategic Board (July 15, 2015); Collaborative Partnerships
Serving Youth wish Disabilities (July 29, 2015); Customer-Centered
Design Implementation WIOA (July 29, 2015); WIOA Eligible Training
Provider Provisions: The First Year (Aug. 5, 2015); WIOA Performance
Accountability Reporting Requirements--Overview of Layout and Templates
(Aug. 12 and 13, 2015); Career Pathways for Youth (Aug. 26, 2015);
Proposed Information Collection: Required Elements for Submission of
the Unified or Combined State Plan and Plan Modifications Under WIOA
(Aug. 27, 2015); Implementing WIOA in Rural Areas (Sept. 30, 2015); DEI
Lessons Learned for WIA/WIOA: How Integrated Resource Teams Achieved
WIA Outcomes for Populations that Experience Multiple Challenges to
Employment and Implications for WIOA (Oct. 22, 2015); ApprenticeshipUSA
Online Toolkit: A New Tool to Advance Apprenticeship Under WIOA (Oct.
26, 2015); Partnership Between WIOA and TANF to Serve Youth (Oct. 28,
2015).
Workforce Innovation and Opportunity Act Information Collection
Requests
There are two new Information Collection Requests (ICRs) and six
existing OMB-approved information collections that are being revised as
part of this DOL WIOA Final Rule. Section V.B of the NPRM (Paperwork
Reduction Act) included descriptions of the new ICRs and how the
proposal would change each of the existing information collections.
Section VI.D of this Final Rule (Paperwork Reduction Act) provides
summary information about the public comments received on these
[[Page 56083]]
ICRs and details the final burden estimates for the revised information
collections.
Soon after publication of the DOL WIOA NPRM and the Joint WIOA
NPRM, DOL and ED published a notice in the Federal Register announcing
the joint ICR for the WIOA Performance Management, Information, and
Reporting System (80 FR 43474, July 22, 2015) and requested comments on
this ICR during a 60-day public comment period (hereinafter ``WIOA
Joint Performance ICR'') (see https://www.regulations.gov/#!docketDetail;D=ETA-2015-0007). On September 1, 2015, DOL solicited
comments on its own WIOA performance accountability ICR to require the
following programs to report on a standardized set of data elements
through the WIOA Workforce Performance Accountability, Information, and
Reporting System: WIOA adult, dislocated worker, and youth, ES,
National Farmworker Jobs, Trade Adjustment Assistance, YouthBuild, INA,
and the Jobs for Veterans' State Grants (80 FR 52798) (hereinafter
``DOL Performance ICR'') (see https://www.regulations.gov/#!docketDetail;D=ETA-2015-0008). On April 16, 2015, ED solicited
comments on its ICR related to the VR program Case Service Report (RSA-
911) to require VR agencies to report data required under sec.
101(a)(10) of the Rehabilitation Act of 1973, as amended by WIOA, as
well as performance accountability data under title I of WIOA
(hereinafter ``RSA-911''). DOL and ED received 112 public comment
submissions in response to the WIOA Joint Performance ICR, DOL received
public comments on the DOL Performance ICR, and ED received public
comments on the RSA-911, respectively. The Departments address those
comments in the final WIOA Joint Performance and DOL WIOA ICRs.
On August 6, 2015, the U.S. Departments of Labor, Education, Health
and Human Services, Agriculture, and Housing and Urban Development
proposed a new information collection regarding required elements for
submission of the Unified or Combined State Plan and Plan modifications
under WIOA (hereinafter ``WIOA State Plan ICR'') (80 FR 47003) (see
https://www.regulations.gov/#!docketDetail;D=ETA-2015-0006). The WIOA
State Plan ICR received a total of 16 public comments. These public
comment submissions informed the development of the final WIOA State
Plan ICR, which OMB approved on February 19, 2016. See http://www.reginfo.gov/public/do/PRASearch (ICR Reference No. 201601-1205-
001).
D. Legal Basis
On July 22, 2014, the President signed WIOA (Pub. L. 113-128) into
law. WIOA repeals WIA (29 U.S.C. 2801 et seq.). As a result, the WIA
regulations no longer reflect current law. Section 503(f) of WIOA
required that the Department issue an NPRM and then a Final Rule that
implements the changes WIOA makes to the public workforce system in
regulations. Therefore, the Department has developed and issued this
Final Rule that implements WIOA. The Department has issued regulations
regarding the WIOA sec. 188 nondiscrimination and equal opportunity
provisions through separate rulemaking. See 80 FR 43872 (July 23, 2015)
(establishing WIOA sec. 188 implementing regulations at 29 CFR part
38); 81 FR 4494 (Jan. 26, 2016) (proposing updates to 29 CFR part 38
consistent with current equal opportunity law).
IV. Public Comments Received on the Notice of Proposed Rulemaking
The Department's NPRM to implement titles I and III of WIOA was
published on April 16, 2015 (80 FR 20690). During the 60-day public
comment period, the Department received a total of 767 public comments
on the WIOA NPRM. In addition to these submissions, the Department also
considered portions of 84 public comment submissions from the Joint
WIOA NPRM docket that the Department determined related to the DOL WIOA
NPRM. The Joint WIOA NPRM, which proposed regulations to implement
jointly administered activities authorized under WIOA title I, was also
published on April 16, 2015 (80 FR 20574).
General Comments
Comments: Several commenters expressed general support for the
proposed regulation, commenting that the regulations would increase
employment, make the United States more competitive, lead to higher
wages, and produce other benefits. Some of these commenters expressed
confidence that that the Department can deliver on this proposal, and
that the associated expense is necessary. Several comments made general
positive remarks about WIOA, and specifically cited an emphasis on one
or more specific aspects of the law, such as adult education, college
and career readiness, strengthening connections among programs and
recognizing the role of distance learning and technology in reaching
broader audiences. The commenters suggested that WIOA provides adequate
flexibility to accommodate differences among States (e.g., size,
population density and population diversity. Some commenters discussed
workforce development-related services currently provided or cited
statistics that they asserted illustrate the current or historical use
of the public workforce system in terms of services and participant
demographics. For example, one organization cited statistics regarding
which aspects of titles I and II are being used by LEP individuals.
Department Response: Since these comments require no response, they
are not addressed in this DOL WIOA Final Rule. No submissions expressed
general opposition to the proposal. Instead, many commenters discussed
their disagreement with specific aspects of the proposal. These
comments are addressed in the associated and appropriate sections of
the section-by-section discussion of the Final Rule (see section V
below).
Requests To Extend the Comment Period
Comments: A few commenters requested a 60-day extension of the
comment period. The commenters cited the size and complexity of the
five proposed NPRMs implementing WIOA.
Department Response: While the Department recognizes that the
issues addressed in the DOL WIOA NPRM are complex and important, the
Department concluded that the 60-day comment period was sufficient to
provide the public a meaningful opportunity to comment, and this
conclusion is supported by the hundreds of complex and thoughtful
comments received. Additionally, the NPRM was available to the public
for a preliminary review on the Federal Register Web site upon
submission of the NPRMs to the Federal Register, which was several
weeks prior to publication, thereby providing stakeholders additional
time prior to the publication date.
Coordination and the WIOA Rulemaking Process
Comments: A commenter urged the Departments of Labor and Education
to increase collaboration, including more coordinated implementation
guidance, providing incentives for programs within the two Departments
to participate in a Combined Plan, and affording flexibility in use of
funding streams and on performance accountability. Two commenters said
that aspects of the proposed regulations suggest lesser coordination of
WIOA
[[Page 56084]]
guidance and oversight across Departments than envisioned by WIOA.
Further, these commenters expressed concern that the lack of
specificity in areas of the proposed regulations could result in the
issuance of Federal guidance on levels that should be in regulation to
ensure that States and local areas have an opportunity to comment.
Department Response: The Departments of Labor and Education have
taken great care to coordinate the issuance of collaborative guidance
regarding WIOA implementation, including TEGL No. 14-15, ``Workforce
Innovation and Opportunity Act (WIOA) Requirements for Unified and
Combined State Plans''; TEGL No. 04-15, ``Vision for the One-Stop
Delivery System under the Workforce Innovation and Opportunity Act
(WIOA).'' The Departments will continue to issue guidance
collaboratively. As appropriate, the Department will reach out and
consult other stakeholders as it develops guidance and technical
assistance. As the Department implements WIOA, it anticipates lots of
stakeholder outreach, building on our long established relationships.
The Department will continue this robust outreach throughout
implementation.
V. Section-by-Section Discussion of Public Comments and Final
Regulations
The analysis in this section provides the Department's response to
public comments received on the DOL WIOA NPRM. If a proposed CFR
section is not addressed in the discussion below, it is because the
public comments submitted in response to the NPRM did not substantively
address that specific section and no changes have been made to the
regulatory text. Further, the Department received a number of comments
on the NPRM that were outside the scope of the proposed regulation and
the Department offers no response to such comments. Lastly, the
Department has made a number of non-substantive changes to correct
grammatical and typographical errors to improve the readability and
conform the document stylistically that are not discussed in the
analysis below.
A. Part 603--Federal-State Unemployment Compensation Program
Relationship Between 20 CFR part 603 and WIOA
The disclosure of wage record data is governed by 20 CFR part 603,
which establishes requirements for maintaining the confidentiality of
unemployment compensation (UC) information along with standards for
mandatory and permissive disclosure of such information. Part 603
permits State agencies to disclose confidential unemployment
compensation information--including ``wage information'' (referred to
in Sec. 603.2(k))--to ``public officials'' (defined at Sec. 603.2(d))
under limited circumstances (under Sec. 603.5), and authorizes such
public officials in turn to use the information to meet certain Federal
requirements in the performance of their official duties.
The Department has decided to amend 20 CFR part 603 as proposed in
the NPRM. These Final Rules amend current regulations to clarify and
expand, in a limited fashion, those public officials with whom the
State may share certain confidential information to carry out
requirements under WIOA. The regulations enumerate certain additional
public officials who may access confidential State wage records for the
State's performance reporting. Ensuring such access to these State
records will allow State agencies to manage better the information for
the purpose of making Federally required reports on certain program
outcomes, and to cooperate more effectively and be more informative
with respect to Federal program evaluations.
WIOA sec. 116(i)(2) and 20 CFR 677.175(a) (see Joint WIOA Final
Rule) require State workforce, training, and education programs to use
quarterly wage records to measure the progress of the State on State
and local performance accountability measures. The Department
interpreted at 20 CFR 677.175(b) the reference to ``quarterly wage
records'' in WIOA sec. 116(i)(2) to require States to use the
confidential UC information in the employer-provided wage reports
collected under sec. 1137 of the Social Security Act (SSA), 42 U.S.C.
1320b-7. These are the reports that the State UC agency obtains from
employers for determining UC tax liability, monetary eligibility, or
for cross-matching against State UC agencies' files to determine if
improper payments have been made.
The regulation at 20 CFR 677.175(b) (see Joint WIOA Final Rule)
defines ``quarterly wage record information'' to include three data
elements or categories of data elements: (1) A program participant's
Social Security Number (SSN); (2) information about the wages that
program participants earn after exiting from the program; and (3) the
name, address, State, and (when known) Federal Employer Identification
Number (FEIN) of the employer paying those wages. The ``wage
information'' defined in Sec. 603.2(k)--which the regulations allow
State agencies to disclose under limited circumstances--includes the
three data categories or elements (wages, SSN(s), employer information)
that States must use as their data source for State and local
performance reporting under WIOA. These terms are different but refer
to the same information: wage records.
As explained in greater detail below, in the NPRM the Department
proposed to change and expand Sec. 603.2 (definition of ``public
official'') and change Sec. 603.5 (governing disclosures to public
officials) to help States comply with WIOA's performance requirements,
including the performance reports of the States, local areas, and
Eligible Training Providers (ETPs). In addition, the Department amended
Sec. 603.6 to add a provision requiring disclosure of confidential UC
information to a Federal official (or an agent or contractor of a
Federal official) requesting such information to meet the new statutory
requirement on State cooperation with certain DOL and ED evaluations.
These changes facilitate States' obligations to report on performance
through the use of quarterly wage records, and to cooperate in DOL and
ED evaluations.
The amendments to 20 CFR part 603 only relate to State agency
disclosures necessary to comply with certain provisions of WIOA. Much
of part 603 was left intact and was not considered for amendment in the
NPRM, the purpose of which was to implement WIOA, not to otherwise
impact partner programs. The Department invited comments on the
proposed amendments to part 603, but did not consider comments on other
portions of part 603 or other UC matters that are outside the scope of
the proposed rulemaking.
The Department received 22 comments in response to the proposed
changes to part 603. While normally the Department does not discuss
comments that are outside the scope of the amendment, the Department
notes that only the portions of part 603 that are being amended were
part of the NPRM and open for comment. The existing data protections
required under other portions of part 603 will continue and will be
enforced. These required protections, laid out in Sec. Sec. 603.8,
603.9, 603.10, and 603.12, ensure that confidential UC data are secure.
These portions of part 603 were not considered for amendment and so
were excluded from the NPRM.
The analysis that follows provides the Department's response to
public comments received on the proposed part 603 regulations. If a
section is not addressed in the discussion below, it is because the
public comments submitted
[[Page 56085]]
in response to the NPRM did not substantively address that specific
section and no changes have been made to the regulatory text. Further,
the Department received a number of comments on this part that were
outside the scope of the regulation and the Department offers no
response. Lastly, the Department has made a number of non-substantive
changes to correct grammatical and typographical errors to improve the
readability and conform the document stylistically that are not
discussed in the analysis below.
Section 603.2 What definitions apply to this part?
Definition of ``public official'': The changes to this section
amend the definition of ``public official'' as used throughout part
603. The changes to Sec. 603.2(d), to facilitate State compliance with
WIOA's reporting requirements, clarify and expand the definition of who
and what entities are considered ``public officials.'' The amendments
to Sec. 603.2(d) clearly enumerate that ``public official'' includes
officials from public postsecondary educational organizations; State
performance accountability and customer information agencies; the chief
elected officials of local areas (as that term is used in WIOA sec.
106); and a public State educational authority, agency, or institution.
Some of these officials already would meet the definition of ``public
official'' under current Sec. 603.2(d); however, the amendments make
this clear.
Comments: The Department received some comments suggesting
clarification of the definition and application of the phrase ``chief
elected official.''
Department Response: No changes were made to the regulatory text in
response to these comments. Such clarification is best accomplished
through guidance and technical assistance as needed.
Disclosure to public postsecondary institutions: Section
603.2(d)(2) permits disclosure to public postsecondary educational
institutions, regardless of how those institutions are structured or
organized under State law. Section 603.2(d)(2) clearly delineates the
types of postsecondary educational institutions that are allowed access
to confidential UC information:
(1) Public postsecondary educational institutions that are part of
a State's executive branch, i.e., that derive their authority either
directly from the Governor or from an entity (State WDB, commission,
etc.) somewhere in that line of authority (see Sec. 603.2.(d)(2)(i));
(2) Public postsecondary educational institutions that are
independent of the State's executive branch, which means those
institutions whose directors derive their authority either directly
from an elected official in the State other than the Governor or from
an entity (again, a State WDB, commission, or other entity) in that
line of authority. This covers any public postsecondary educational
institution established and governed under State law, for example, a
State Board of Regents (see Sec. 603.2(d)(2)(ii));
(3) State technical colleges and community colleges, which may also
be covered under (1) or (2) (see Sec. 603.2(d)(2)(iii)).
Section 603.2(d)(5) permits disclosure to a public State
educational authority, agency, or institution; the Department considers
the heads of public institutions deriving their authority from a State
educational authority or agency to be ``public officials'' for purposes
of part 603.
These changes are designed to help States comply with WIOA's
requirement to use wage records to measure performance (WIOA sec.
116(i)(2)) and to facilitate the performance reporting required for
ETPs under secs. 116(d) and 122 of WIOA. As long as the recipients of
the data adhere to all of the requirements in 20 CFR part 603, this
section permits States to make these disclosures to comply with WIOA
requirements for Federal, State, or local government reporting on
program outcomes and for other specified purposes.
Comments: The Department received several comments requesting that
non-public educational institutions, community-based organizations, and
for-profit educational institutions be added to the list of entities
included in the term ``public official.''
Department Response: As explained in the NPRM, non-public
educational institutions, including non-profit or for-profit
educational institutions, community-based organizations, and eligible
training providers that are not subject to the authority of the
executive branch of a State or other elected official, are not
permitted to obtain confidential UC information, including wage
information, under this authority. In first proposing the ``public
official'' exception to the UC confidentiality requirement in 69 FR
50,022, 50,027 (2004), the Department explained that ``there is less
risk of unauthorized use or disclosure of UC information if
responsibility for safeguarding confidentiality rests within the
executive or legislative branches of government.'' Any disclosures of
confidential UC information to those entities for purposes of complying
with WIOA must be authorized under an exception contained in Sec.
603.5 other than Sec. 603.5(e). The Department is issuing guidance to
address how non-public entities that need wage record information to
complete reports required under WIOA will be able to obtain access to
aggregate wage record information for this purpose. No changes were
made to the regulatory text in response to these comments.
Section 603.6(b)(8) What disclosures are required by this subpart?
Section 603.6(b)(8) makes the disclosure of confidential UC
information mandatory for certain Federal evaluations when the
disclosure does not interfere with the efficient administration of
State UC law. The addition of Sec. 603.6(b)(8) implements the
requirement that States cooperate in conducting evaluations under the
authority of either the Secretary of Labor or the Secretary of
Education under WIOA sec. 116(e)(4). This cooperation, defined in WIOA,
must include ``the provision of data (in accordance with appropriate
privacy protections established by the Secretary of Labor)''; this
includes 20 CFR part 603 and any other privacy protections the
Secretary may establish. The final regulation requires disclosure of
confidential UC information to Federal officials or their agents or
contractors, requesting such information in the course of an evaluation
covered by WIOA secs. 116(e)(4) and 116(e)(1) to the extent that such
disclosure is ``practicable.''
The Department interprets ``to the extent practicable'' to mean
that the disclosure would not interfere with the efficient
administration of State UC law. This interpretation is consistent with
the application of regulations that apply to disclosures under Sec.
603.5. The introductory language to Sec. 603.5 provides that, in
situations where the disclosure of confidential UC information is
permitted, the State may make the disclosure only if doing so would not
interfere with the efficient administration of State UC law. In effect,
Sec. 603.6(b)(8) requires that State UC agencies make disclosures to
DOL and ED for the purposes of the Departments' conducting evaluations,
when the disclosures do not interfere with the efficient administration
of the State UC law. The Department expects this cooperation and
related disclosures to include responding to surveys and allowing site
visits, as well as disclosing confidential UC information needed for
evaluations.
Comments: The Department received two comments that raised concerns
that the adoption of Sec. 603.6(b)(8) would
[[Page 56086]]
allow the creation of a national UC database and require a State's
``entire UI file.''
Department Response: The information required to be disclosed for a
given evaluation is considerably less than what may be included in a
State's UC file. Additionally, these disclosures are required only for
research, evaluation, and investigation purposes found in WIOA, the
Rehabilitation Act of 1973, and the Wagner-Peyser Act, as well as
evaluations under other laws. The information disclosed may not be used
for purposes other than that for which it was obtained. These
disclosures are subject to the appropriate privacy and confidentiality
protections found throughout 20 CFR part 603. Research projects,
evaluations, and investigations have set time frames for which data are
being reviewed and are generally limited in scope. In general, the
Department would not be in possession of any of the information
requested under the disclosure provisions at Sec. 603.6(b)(8). The
researcher, evaluator, or investigator would be in possession of the
information and use it for their stated purposes under proper authority
or would be subject to sanctions for breach of the agreement under
which the data were obtained. No changes were made to the regulatory
text in response to these comments.
B. Part 675--Introduction to the Regulations for the Workforce
Development Systems Under Title I of the Workforce Innovation and
Opportunity Act
Part 675 discusses the purpose of title I of the WIOA, explains the
format of the regulations governing title I, and provides additional
definitions which are not found and defined in WIOA.
Section 675.100 describes the purposes of title I of WIOA.
Section 675.200 outlines the structure of the WIOA regulations.
Section 675.300 provides a list of definitions that are applicable
across the WIOA regulations.
Included in this list of definitions, the Department includes the
following relevant definitions from the Office of Management and
Budget's (OMB) ``Uniform Administrative Requirements, Cost Principles
and Audit Requirements for Federal Awards'' found at 2 CFR part 200:
Contract, Contractor, Cooperative Agreement, Federal Award, Federal
Financial Assistance, Grant Agreement, Non-Federal Entity, Obligations,
Pass-Through Entity, Recipient, Subaward, Subrecipient, Unliquidated
Obligations, and Unobligated Balance. All other definitions at 2 CFR
part 200 apply to these regulations where relevant, but have not been
included in this section.
Contract. The definition for ``contract'' incorporates the
definition established by OMB at 2 CFR 200.22. Specifically, the term
``contract'' refers to the legal document that a non-Federal entity
uses to purchase property or services used to carry out its duties
under a grant authorized under WIOA. If the Department determines that
a particular transaction entered into by the entity is a Federal award
or subaward it will not be considered a contract.
Contractor. The definition of ``contractor'' incorporates the
definition contained in OMB's Uniform Guidance at 2 CFR 200.23. The
Uniform Guidance has replaced the term ``vendor'' with the term
``contractor.'' As used in these regulations, the term ``contractor''
includes entities that WIOA refers to as ``vendors.'' Additionally, it
is important to note that contractors are not subrecipients. Additional
guidance on distinguishing between a contractor and a subrecipient can
be found at 2 CFR 200.330.
Cooperative Agreement. The definition of ``cooperative agreement''
incorporates the definition contained in the Uniform Guidance at 2 CFR
200.24.
Department or DOL. This term refers to the United States Department
of Labor, its agencies, and organizational units.
Employment and Training Activity. As used in these regulations, the
term ``employment and training activity'' refers to any workforce
investment activities carried out for an adult or dislocated worker
under sec. 134 of WIOA and 20 CFR part 678 (see Joint WIOA Final Rule).
Equal Opportunity (EO) Data. This term refers to the data required
by the Department's regulations at 29 CFR part 37 implementing sec. 188
of WIOA.
ETA. This term refers to the Employment and Training
Administration, which is an agency of DOL, or its successor
organization.
Federal Award. This definition incorporates the definition in the
Uniform Guidance at 2 CFR 200.38.
Federal Financial Assistance. The definition of ``Federal financial
assistance'' incorporates the definition contained in the Uniform
Guidance at 2 CFR 200.40.
Grant or Grant Agreement. The definition of ``grant agreement''
incorporates the definition contained in the Uniform Guidance at 2 CFR
200.51. Because both WIOA and these regulations use ``grant'' and
``grant agreement'' interchangeably, the inclusion of both terms here
clarifies that the terms are synonymous.
Grantee. The definition of ``grantee'' refers to a recipient of
funds under a grant or grant agreement. Grantees are also referred to
as recipients in these regulations.
Individual with a Disability. This definition uses the definition
from sec. 3 of the Americans with Disabilities Act, as amended, and is
further defined at 29 CFR 37.4.
Labor Federation. This definition remains unchanged from the
definition used in the regulations under WIA at 20 CFR 660.300.
Literacy. The definition for ``literacy'' as used in these
regulations is a measure of an individual's ability to participate and
successfully function both in the workplace and in society.
Local WDB. This definition clarifies that the term ``Local WDB'' as
used in these regulations refers to the Local Workforce Development
Boards (WDB) established under WIOA sec. 107, to set policy for the
local workforce development system.
Non-Federal Entity. The definition of ``non-Federal entity''
incorporates the definition contained in the Department's Exceptions to
the Uniform Guidance at 2 CFR 2900.2.
Obligations. The definition of ``obligations'' incorporates the
definition contained in the Uniform Guidance at 2 CFR 200.71.
Outlying Area. The term ``outlying area'' refers to those
Territories of the United States which are not within the definition of
``State,'' including the U.S. Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, and, in certain
circumstances, the Republic of Palau.
Pass-through entity. The definition of pass-through entity
incorporates the definition in the Uniform Guidance at 2 CFR 200.74.
Recipient. The definition of ``recipient,'' which is different than
the current definition of recipient under WIA at 20 CFR 660.300,
incorporates the definition in the Uniform Guidance at 2 CFR 200.86.
Register. The definition of ``register'' means the point at which
an individual seeks more than minimal assistance from staff in taking
the next step towards self-sufficient employment. This is also when
information that is used in performance information begins to be
collected. At a minimum, individuals must provide identifying
information to be registered.
Secretary. This term refers to the Secretary of the U.S. DOL, or
their officially delegated designees.
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Secretaries. This term refers to the Secretaries of the U.S. DOL
and the U.S. ED, or their officially designated designees.
Self-Certification. The term ``self-certification'' refers to the
certification made by an individual that they are eligible to receive
services under title I of WIOA.
State. The term ``State'' refers to each of the several States of
the United States, the District of Columbia, and the Commonwealth of
Puerto Rico.
State WDB. This definition clarifies that the term ``State WDB'' as
used in these regulations refers to the State Workforce Development
Boards (WDB) established under WIOA sec. 101.
Subgrant or Subaward. This term incorporates the definition of
``subaward'' in the Uniform Guidance at 2 CFR 200.92. This term
replaces the term ``subgrant'' found in WIA at 20 CFR 660.300. Because
both WIOA and these regulations use ``subgrant'' and ``subaward''
interchangeably, the inclusion of both terms here clarifies that the
terms are synonymous.
Subrecipient. The definition of ``subrecipient'' incorporates the
definition in the Uniform Guidance at 2 CFR 200.93. This term is
synonymous with the term ``subgrantee.''
Unliquidated Obligations. The definition of ``unliquidated
obligations'' incorporates the definition contained in the Uniform
Guidance at 2 CFR 200.97.
Unobligated Balance. The definition of ``unobligated balance''
incorporates the definition in the Uniform Guidance at 2 CFR 200.98.
Wagner-Peyser Act. As used in these regulations, the term ``Wagner-
Peyser Act'' refers to the Wagner-Peyser Act passed on June 6, 1933,
and codified at 29 U.S.C. 49 et seq.
WIA Regulations. The term ``WIA Regulations'' as used in this
regulation or subsequently by the Department refers to the regulations
20 CFR parts 660 through 672. This definition is necessary because, as
described in the introduction to these regulations, the Department has
chosen to retain the WIA regulations at parts 660 through 672 of title
20 of the CFR.
WIOA Regulations. This term, as used in this regulation or
generally by the Department means those regulations in 20 CFR parts 675
through 687, the Wagner-Peyser Act regulations in 20 CFR part 652,
subpart C, and the regulations implementing WIOA sec. 188 in 29 CFR
part 37.
Workforce Investment Activities. The term ``workforce investment
activities'' is a general term that describes the broad array of
activities and services provided to eligible adults, dislocated
workers, and youth under secs. 129 and 134 of title I of WIOA.
Youth Workforce Investment Activity. The term ``youth workforce
investment activity'' refers to those activities carried out for
eligible youth that fall within the broad definition of ``workforce
investment activity.''
Section 675.100 What are the purposes of title I of the Workforce
Innovation and Opportunity Act?
Comments: An advocacy organization urged the Department to include
in Sec. 675.100 a reminder to States and employers of their existing
obligations under the Americans with Disabilities Act (ADA),
notwithstanding anything else reflected in the WIOA regulations.
Department Response: The Department takes nondiscrimination
seriously and addresses it in the regulation at 20 CFR part 38. No
change to the regulatory text was made in response to this comment.
Section 675.200 What do the regulations for workforce development
systems under title I of the Workforce Innovation and Opportunity Act
cover?
Comments: Some commenters provided feedback on technical
corrections for this section, while others provided comments that
addressed specific provisions found elsewhere in this regulation.
Department Response: Technical corrections were made to this
section. In addition, several comments that referenced this section
were more appropriately addressed in other parts of the regulation, and
have been so addressed.
Section 675.300 What definitions apply to these regulations?
Comments: Some commenters suggested that the Department should
provide additional detail on what is involved in a requirement to
consult. These commenters generally emphasized the importance of
meaningful consultation. For example, referring to the proposed
definition of consultation, a Local WDB commented that ``exchanging
viewpoints and ideas'' is only helpful when both parties feel equally
empowered to influence the outcome of the discussion. Two commenters
expressed concern that the requirement to consult could be interpreted
to mean just share information or whatever else is in the best interest
of the entity required to consult. Another commenter suggested that
consultation should be defined as strongly as possible to stress
advanced notice, robust conversation, and collaborative efforts with
local areas prior to the State's decision-making process. Some
commenters made specific suggestions for what the Department should or
could include in a definition of consultation, including active
engagement, good faith discussion and decision-making agreement and
consent from local elected officials, the Local WDB, and the State WDB,
provision of written notice of intended changes with a cost-benefit
analysis and a specific timeframe for public comment, process to
contest decisions through a formal grievance process, requiring
consultation with the largest and smallest local areas in the State,
and requiring State WDB members to visit and engage local areas.
Department Response: The Department agrees with the need to
emphasize meaningful consultation and revised the definition of
consultation in this section to emphasize convening, robust
conversation, and an opportunity for all stakeholders to share their
thoughts and opinions. In addition, some of the specific suggestions
not incorporated into this definition are addressed in other parts of
this regulation and the Joint WIOA Final Rule. For example, 20 CFR part
676 requires public comment on Unified and Combined State Plans (see
Joint WIOA Final Rule), and part 679 of this regulation requires
governors to appoint only persons who have been nominated by certain
stakeholder organizations to certain positions on the State WDB.
Comments: A commenter recommended clearly defining ``career
pathways'' in this regulation in such a way to ensure flexibility in
deviation from a pathway if education and employment requirements are
met.
Department Response: WIOA secs. 3(7)(A) through (G) define career
pathways as a combination of rigorous high-quality education, training,
and other services that meet specified guidelines. The Department
agrees that additional guidance would help State and Local WDBs
implement career pathways. With the Department of Education, the
Department has published a Career Pathways Toolkit, which can be found
at www.DOLETA.gov, and continues to provide guidance and technical
assistance on the implementation of career pathways under WIOA.
Comments: Asserting that neither WIOA sec. 3 nor the WIOA NPRMs
include a definition of ``family,'' some commenters suggested that the
Department provide clarification on this term.
Department Response: The Department agrees that ``family'' is a
term that should be defined in this
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regulation and has added a definition of family that is based on the
WIA definition and has been updated to reflect the Supreme Court
decision in United States v. Windsor, 133 S. Ct. 2675 (2013). While
this definition applies to all parts of this regulation, the Department
notes that part 681 of this regulation adds a reference to dependents,
per specifications of the Internal Revenue Service, when this
definition is considered as part of a determination of eligibility to
participate in the WIOA youth programs described in that part.
Comments: Several commenters recommended adding to this part
definitions of terms not addressed above or in the NPRM. Most of them
were related to indicators of performance of WIOA title I programs,
which are addressed in 20 CFR part 677 of the Joint WIOA Final Rule.
Several other comments focused on defining or revising definitions of
terms that are used in regulations applying solely to Department of
Education programs. The Department worked with the Department of
Education to ensure they were addressed where they most appropriately
fit, which was often in the Joint WIOA Final Rule and sometimes in
specific parts of this regulation.
Department Response: The Department considered these comments and
addressed them in other parts of this regulation, as appropriate, and
worked with the Department of Education to address these comments in
the most relevant part of the most appropriate regulation. For example,
some commenters suggested definitions of terms related to performance
under WIOA title I programs are addressed in 20 CFR part 677 (see Joint
WIOA Final Rule) and comments related to serving youth under WIOA title
I programs are addressed in part 681.
In addition, the Department realized that the NPRM contained minor
inconsistencies in how it defined ``individual with a disability''
across parts. The Department therefore edited such definitions using
the statutory definition at WIOA sec. 3(25), which uses the definition
from the Americans with Disabilities Act (ADA), to make them consistent
with each other. The Department interprets all references to the ADA to
include case law and interpretive guidance. The Department also changed
the terms ``workforce innovation and opportunity system,'' and
``workforce investment system'' to ``workforce development system''
throughout this rule. This was done to enhance consistency across parts
and avoid confusion, and to be emphasize the role of workforce
development boards in this system.
C. Part 679--Statewide and Local Governance of the Workforce
Development System Under Title I of the Workforce Innovation and
Opportunity Act
20 CFR part 679 addresses the Statewide and Local Governance
provisions of the Workforce Development System under title I of WIOA.
This part includes provisions on the State WDB, the Workforce
Innovation and Opportunity Act Local Governance (Workforce Development
Areas), Local WDBs, Regional and Local Plans, and Waivers/Workforce
Flexibility Plans.
The analyses that follows provides the Department's response to
public comments received on the proposed Statewide and Local Governance
regulations. If a section is not addressed in the discussion below, it
is because the public comments submitted in response to the NPRM did
not substantively address that specific section and no changes have
been made to the regulatory text. Further, the Department received a
number of comments on this part that were outside the scope of the
regulation and the Department offers no response. Lastly, the
Department has made a number of non-substantive changes to correct
grammatical and typographical errors to improve the readability and
conform the document stylistically that are not discussed in the
analysis below.
1. Subpart A--State Workforce Development Board
Subpart A sets forth the conditions under which the Governor must
establish the State WDB. 20 CFR 679.100(a) through (e) explain the
purpose of the State WDB. The State WDB represents a wide variety of
individuals, businesses, and organizations throughout the State. WIOA
is designed to help job seekers and workers access employment,
education, training, and support services needed to succeed in the
labor market, and match employers with the skilled workers needed to
compete in the global economy. The State WDB has the critical role of
leading and guiding the State's implementation of WIOA, which requires
aligning Federal investments in job training, integrating service
delivery across programs, and ensuring that workforce investments are
job-driven and match employers with skilled workers. The State WDB
serves as a convener of State, regional, and local workforce system
partners to enhance the capacity and performance of the workforce
development system and align and improve employment, training, and
education programs, and through these efforts, promote economic growth.
The State WDB's role as a strategic convening place where key
stakeholders and partnerships come together can be accomplished only if
each State WDB member is an active participant in the business of the
board. State WDB members must establish a platform in which all members
actively participate and collaborate closely with the required partners
of the workforce development system, and other stakeholders, including
public and private organizations. This engagement is crucial in the
State WDB's role to help integrate and align a more effective job-
driven workforce development system that invests in the connection
between education and career preparation.
Overarching Comments on State WDBs
Comments: Commenters expressed concern with the WIOA implementation
timelines for establishing compliant State WDBs. They said that States
should have more flexibility in the time allowable to become compliant
with new requirements, including new membership requirements and the
new State WDB role, which could require changes by the State
legislature.
Department Response: WIOA called for the implementation of most of
WIOA, including the State WDB requirements, by July 1, 2015. State WDB
requirements are outlined in WIOA sec. 101 and Sec. 679.100. The
Department issued operating guidance in TEGL No. 27-14 on April 15,
2015, titled ``Workforce Innovation and Opportunity Act Transition
Authority for Immediate Implementation of Governance Provisions.'' This
guidance can be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
Comments: One commenter was concerned with potential political
influence the Governor holds over State and Local WDBs as well as
procurement requirements.
Department Response: WIOA vests certain authority with the
Governor, including State WDB appointments, and the Department has no
authority to change it.
WIOA sec. 107(e) requires Boards to operate in a transparent
manner; Sec. Sec. 679.140 and 679.390 set forth the parameters for
State and Local WDBs to conduct business in an open and transparent
manner. Transparency in operations also assures that all parties are
held accountable to the public and can mitigate concerns of
inappropriate influence. Transparency promotes
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accountability and provides valuable information to citizens on the
Federal, State, and local government's activities. The State WDB must
make available to the public on a regular basis, through electronic
means and open meetings, information about State WDB activities such as
the State Plan, modifications to the State Plan, board membership, the
board's by-laws, and the minutes of meetings. This information must be
easily accessed by interested parties. Ensuring that this information
is widely available promotes transparency and provides access to the
public on how the State WDB works to align, integrate, and continuously
improve the workforce development system. No change to the regulatory
text was made in response to this comment.
Comments: Another commenter recommended that developing an
overarching vision for the workforce development system and monitoring
of progress toward that vision should be a function of the State WDB.
Department Response: These actions are a function of the State WDB.
20 CFR 679.100 implements WIOA sec. 101(d) and outlines the vision and
purpose of the State WDB. Among other responsibilities, the State WDB
is required to assist the Governor in the ``development,
implementation, and modification of the State Plan'' (WIOA sec.
101(d)(1)) and to support the function of the public workforce system
enumerated in WIOA sec. 101(d)(2) through (12). The State Plans must
detail the State's strategic workforce approach and vision as outlined
in 20 CFR 676.100(a) (see Joint WIOA Final Rule) and no change to the
regulatory text was made in response to this comment.
Section 679.100 What is the purpose of the State Workforce Development
Board?
20 CFR 679.100 implements WIOA sec. 101 and outlines the purpose of
the State WDB. A key goal of Federally-funded training programs is to
get more U.S. workers jobs and marketable skills and support businesses
to find workers with the skills that are needed. The State WDB is
responsible for engaging employers, education providers, economic
development, and other stakeholders to help the workforce development
system achieve the purpose of WIOA and the State's strategic and
operational vision and goals outlined in the State Plan.
The Department encourages the State to take a broad and strategic
view when considering representatives of the State WDB, and also in
establishing processes which it will use to include necessary
perspectives in carrying out State WDB functions. For example,
alignment of required one-stop partner investments is essential to
achieving strategic and programmatic alignment at the State, regional,
and local level. Further, States are encouraged to examine factors like
the natural bounds of regional economies, commuting patterns, and how
economic sectors impact the State, which may benefit from inputs either
from formal members of the board, or through other engagement. Broad
geographic representation as well as a reflection of diversity of
populations within the State is critical.
Comments: A commenter emphasized the need for Boards to remain
connected to local and regional programs, and another requested more
information on how employer engagement would be measured and how a
State WDB would know if their engagement was successful. This commenter
suggested surveys of partners (both pre-WIOA and annually) to determine
the level of engagement.
Department Response: There is a primary indicator of performance in
WIOA sec. 116(b)(2)(i)(vi) to gauge the system's effectiveness in
serving business. WIOA does not provide parameters for measuring the
Board's effectiveness in engaging employers. However, this engagement
is crucial in the State WDB's role to help integrate and align a more
effective job-driven workforce development system that invests in the
connection between education and career preparation. The Department
will continue to provide technical assistance and guidance to Boards to
assist their efforts to fulfill this vision. The Department envisions
that the State WDB will serve as a convener of State, regional, and
local workforce system partners to enhance the capacity and performance
of the workforce development system; align and improve employment,
training, and education programs, and through these efforts, promote
economic growth.
Comments: A commenter suggested that more information regarding the
State Plan and how States will satisfy the needs of individuals with
disabilities, and the specific performance metrics that will be used
for systemic improvement be included in Sec. 679.100.
Department Response: State Plan requirements as a function of the
State WDB are addressed in Sec. 679.130. WIOA sec. 102 describes the
requirements for the State Plan; State Plan requirements are also
addressed in 20 CFR part 676, including requirements to address the
needs of the State's workforce and services to individuals with
barriers to employment (see Joint WIOA Final Rule). No change to the
regulatory text was made in response to this comment.
Section 679.110 What is the State Workforce Development Board?
Local Elected Officials
Comments: Commenters citing the needs of large and diverse States
that are concerned with adequate representation of local level
interests recommended that Governors include the chief elected official
from the smallest and largest workforce areas on the State WDB.
Similarly, other commenters recommended that the local elected
officials be increased from a minimum of two representatives to a
percentage of the Board.
Department Response: Both WIOA and the regulations offer the
Governor the flexibility to ``include other appropriate representatives
and officials designated by the Governor'' as detailed in Sec.
679.110(b)(3)(iii)(B). The Governor has the flexibility to appoint more
local elected officials to the State WDB as he/she sees fit and a
Governor may seek to have such officials represent the range of local
government entities. The Department encourages the Governor to use this
authority, which may include increasing the representation of CEOs, to
ensure accurate representation of the interests of job seekers and
businesses in the State. No change to the regulatory text was made in
response to these comments.
Representation of Core Programs
Comments: Commenters opposed the Department's interpretation of
WIOA allowing for representation of multiple core programs by a single
person (as proposed in Sec. 679.110(b)(3)(iii)(A)) and indicated that
this situation fails to adequately represent adult education. Some
commenters called for specifically mandating the State director of
adult education on the State WDB. Others were concerned that the
Department's interpretation does not satisfy the requirement to have a
representative of the lead State official with primary responsibility
for each of the core programs.
Department Response: The Governor is responsible for ensuring
adequate representation of the core programs, which the Department
interprets to mean that the core program's State WDB representative has
not only primary responsibility for the program, but also the expertise
to actively and meaningfully contribute to the State WDB's
understanding of the program's role in the public workforce system,
especially with regard to the strategic
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planning for that system, and in the development and implementation of
the State Plan. The Department has added Sec.
679.110(b)(3)(iii)(A)(1)(i) through (iii) to clarify that, for title I
and Wagner-Peyser Act programs, a single lead State official with
primary responsibility for those programs may represent more than one
of those programs. However, the WIOA title II and VR programs must have
a single, unique representative. When appointing a board member to
represent multiple core programs under Sec. 679.110(b)(3)(iii),
Governors should take into account the requirement that the
representative has the primary responsibility for the core program
which includes direct responsibility for, and understanding of, policy
issues involving the core program and the public workforce system. The
Department encourages Governors to ensure an ongoing role for all core
programs to inform the Boards' actions. Meeting these requirements may
be achieved in a number of ways, such as directly appointing a State's
director for those core programs to the Board, gathering direct input
from program administrators via a subcommittee or staffing structure,
or frequent efforts to gather input.
These provisions are intended to ensure that all core programs have
meaningful input on the State WDB, but neither WIOA nor the regulation
requires that the adult education director be appointed to the State
WDB. The regulation is not changed to require a specific title be named
as representative; however, representatives must meet the requirement
of primary responsibility.
The Department will issue guidance to support the implementation
and maintenance of compliant State WDBs.
Labor Union, Small Business, and Registered Apprenticeship
Representation
Comments: Comments on the membership requirements of
representatives of labor organizations and registered apprenticeship
included multiple suggestions for regulatory text changes. One
commenter suggested changing ``exists'' in Sec. 679.110(b)(3)(ii)(B)
to ``operating,'' because ``exists'' could cause confusion. Another
commenter suggested that the term ``registered'' precede
apprenticeship, out of concern that the NPRM language would allow low-
quality apprenticeship programs that are not registered be considered.
Department Response: The Department disagrees that ``exists'' will
cause confusion in reference to registered apprenticeship programs
available in the State. The Department agrees that the reference to
apprenticeship should be changed to ``registered apprenticeship''
because references throughout WIOA are generally references to
registered apprenticeship.
No change to the regulatory text was made in response to these
comments, with the exception of revising Sec. 679.110(b)(3)(ii)(B) to
refer to apprenticeship as ``registered apprenticeship.''
Comments: Commenters requested clarification of the total number of
labor representatives required on the State WDB, and suggested labor
representatives include employee representatives for non-unionized
employees.
Department Response: WIOA requires at least two representatives of
labor organizations nominated by State labor federations, and a
representative of a registered apprenticeship program. Because State
WDB members may not serve multiple roles for the categories included in
WIOA sec. 101(b)(1)(C)(ii) (as outlined in WIOA sec. 101(b)(3)(B)), the
Department's proposed language clarified that, at minimum, two labor
representatives and one joint labor-management of a registered
apprenticeship program are required. The State WDB must include not
less than 20 percent representation of the workforce, including at a
minimum these three representatives.
In addition to these representatives, WIOA sec.
101(b)(1)(C)(iii)(II) and Sec. 679.110(b)(3)(iii)(B), give the
Governor the flexibility to appoint ``other representatives and
officials as the Governor may designate.'' This would allow the
Governor to designate non-union employee organizations as additional
members of the State WDB. No change to the regulatory text was made in
response to these comments.
Nominations
Comments: Two union commenters urged the Department to clarify that
the nominations for representatives of joint labor-management
registered apprenticeship programs on State and Local WDBs should be
made by State and local building and construction trades councils,
except where none exist in the State, in which case the
representative(s) should be nominated by the local Building Trades
Councils within the State.
Regarding the proposed Sec. 679.110(b)(3)(i)(C) requirement that
the Governor must appoint required representatives of businesses or
organizations based on nominations from business organizations and
trade associations in the State, a commenter asked what would qualify
these organizations to submit such nominations and requested that the
Department clarify the definition of these organizations.
Department Response: Paragraph (b)(3)(i)(C) of Sec. 679.110
implements WIOA sec. 101(b)(1)(C)(i)(III), which requires State WDB
members who represent businesses or organizations representing
businesses to be appointed from a list of potential members nominated
by State business organizations and business trade associations. WIOA
does not further define trade associations; restricting the nominating
entity would not comply with WIOA sec. 101(b)(1)(C)(i)(III), but
Governors may accept nominations of representatives to the State WDB
from Trade Councils. Furthermore, WIOA does not require that the
representatives of joint labor-management registered apprenticeship
programs (under WIOA sec. 101(b)(1)(C)(ii)(II) be nominated by any
organization. The Department declines to add the requirement that
trades councils must nominate these members. No change to the
regulatory text was made in response to these comments.
Single-Area States
Comments: Relating specifically to concerns for single-area States,
one commenter suggested that the core programs can be improved by CEOs
on the State WDB and that the Departments of Labor and Education must
look critically at any Unified or Combined State Plan that is submitted
from a single-area State that does not obviously and fully represent
the local viewpoint from a diverse set of stakeholders, as is the
intention of this section. Another commenter stated that because local
control is primarily with the State WDB in single-area States, the
local community advisory groups, who are more familiar with the
specific community needs, do not have the influence that they should.
Multiple commenters also requested that the Department clarify the
meaning of the proposed Sec. 679.110(b)(3)(iii)(A)(2) requirement that
the State WDB include two or more CEOs (collectively representing both
cities and counties ``where appropriate'') and indicate whether this
language would exempt single-area States from requiring CEOs to serve
on the State WDB.
Department Response: 20 CFR 679.270 implements WIOA sec. 107(c)(4),
which describes the requirements of Local WDBs in single-area States.
Section 679.270 requires that the State WDB, acting as the Local
[[Page 56091]]
WDB, carry out the functions of both Boards except that the State is
not required to meet and report on a set of local performance
accountability measures. Section 679.110(b) requires CEO representation
on the State WDB. There is no exemption for membership categories on
the State WDB in single-area States. No change to the regulatory text
was made in response to these comments.
Community-Based Organizations
Comments: A few commenters recommended that State WDBs should be
required to have at least one representative from community-based
organizations (CBOs) with experience and expertise in addressing
individuals' training, employment, and educational needs. For example,
one commenter suggested adding Sec. 679.110(b)(3)(ii)(E) that states
``State Boards are strongly encouraged to include organization
representatives in (C) and (D).''
Department Response: Many comments from stakeholders with mandated
representation on the Board under WIA requested that they again be
mandated Board members or that they be referenced in regulation. WIOA
reduced mandated Board membership in an effort to streamline State WDBs
and provide Governors the flexibility to establish Boards that best
reflect the diversity of the State's job seeker and employer
communities. The Department recognizes that many important system
partners with experience with specific job seeker populations, such as
required one-stop partner programs, tribal organizations, other
Department program grantees, and those serving the disadvantaged and
disabled populations are no longer required members of the Board.
However, Sec. 679.110(b)(3)(ii) permits representatives of community-
based organizations that have demonstrated experience and expertise in
addressing the employment, training, or education needs of individuals
with barriers to employment to contribute to the 20 percent workforce
threshold. Paragraph (b)(3)(iii)(B) says the Governor has the
flexibility to appoint ``other appropriate representatives and
officials designated by the Governor'' which does not preclude any
organization as the Governor deems appropriate for the State. The
Department encourages the Governor to ensure that State WDB members
represent the diversity of job seekers, and employers across the State,
which includes ensuring adequate representation on the State WDB. The
Department has made no changes to the regulatory text in response to
these comments.
Chairperson Requirements
Paragraph (c) of Sec. 679.110 implements WIOA sec. 101(c)
requiring the Governor to select a chairperson of the Board from among
the business representatives on the Board who are the owner or chief
executive officer for the business or organization, or a person who is
an executive with the business or organization with optimum policy-
making or hiring authority.
Comments: One commenter requested amending the statutory language
to allow outlying areas to appoint a representative from a non-
governmental organization, a community-based organization, or a small
business rather than a business as chair of the State WDB, expressing
concern about finding a chairperson who would be willing to dedicate
the time and effort to the Board.
Department Response: A small business owner would meet the
qualifications outlined in the statue and would not require a change to
the regulations. However, WIOA does not delineate specific Board
membership exemptions for outlying areas. No change to the regulatory
text was made in response to these comments.
Individuals With Disabilities and Other Barriers to Employment
Comments: Many commenters from stakeholders with mandated
representation on the Board under WIA and from other interest groups
requested that they again be mandated Board members or that they be
referenced in regulation. Various commenters suggested that Governors
be required to appoint individuals with disabilities, disability
service providers, and direct support professionals, lead State
officials from agencies with primary responsibility for providing
services to individuals with intellectual, developmental, and other
significant disabilities as members of the State WDB. Another commenter
recommended that because it is not required, the Department should
strongly urge representation of populations with disabilities on State
and Local WDBs.
Department Response: WIOA reduced mandated Board membership in an
effort to streamline State WDBs and provide Governors the flexibility
to establish Boards that best reflect the diversity of the State's job
seeker and employer communities. The Department recognizes that many
important system partners with experience with specific job seeker
populations, such as required one-stop partner programs, tribal
organizations, other Department program grantees, and those serving the
disadvantaged and individuals with disabilities are no longer mandated
members of the Board. However, Sec. 679.110(b)(3)(ii) requires not
less than 20 percent of the Board be comprised of workforce
representatives which may include one or more individuals who have
demonstrated experience and expertise in addressing the employment,
training, or education needs of individuals with barriers to
employment. Paragraph (b)(3)(iii)(B) says the Governor has the
flexibility to appoint ``other appropriate representatives and
officials designated by the Governor,'' which does not preclude
representatives of any required partner program, community based
organizations or other organizations as the Governor deems appropriate
for the State. The Department encourages the Governor to ensure that
State WDB members represent the diversity of job seekers, and employers
across the State, which includes ensuring adequate representation on
the State WDB. The Department has made no changes to the regulatory
text in response to these comments.
Work-Relevant Training
Comments: Relating to the WIOA provision that provides that State
WDB business representatives may represent businesses that provide
``employment opportunities that, at a minimum, include high-quality,
work-relevant training and development in in-demand industry sectors,''
some commenters asked the Department to clarify the definition of
``work-relevant training'' in proposed Sec. 679.110(b)(3)(i)(B). In
particular, some of these commenters asked whether it pertains to for-
profit training providers. Another commenter stated while the
definition of ``in-demand'' is located at WIOA sec. 3(23), there are no
definitions for the terms ``high-quality'' and ``work-relevant.'' This
commenter recommended that the Department allow definition of these
terms at the State or local level.
Department Response: Paragraph (b)(3)(i)(B) of Sec. 679.110
implements WIOA sec. 101(b)(1)(C)(i)(II), which provides that State WDB
business representatives must represent businesses that provide
``employment opportunities that, at a minimum, include high-quality,
work-relevant training and development in in-demand industry sectors.''
WIOA sec. 3 provides definitions used in the law, however the terms
``work-relevant'' training and ``high quality'' are not defined in
WIOA. The State WDB, in conjunction with the Governor, is responsible
for crafting appropriate parameters to address
[[Page 56092]]
circumstances in the State; States are therefore responsible for
defining ``work-relevant'' and ``high-quality'' in accordance with the
particular circumstances faced by that State. The Department has made
no changes to the regulatory text in response to these comments.
Comments: Other commenters said that while they agree that
customized training, registered apprenticeship, or OJT are all work-
relevant, the Department should clarify that these are just a few
examples and not a comprehensive list because such limitation could
deem ineligible representatives of the business community who may
successfully offer alternative types of training such as a non-
registered apprenticeship. Similarly, another commenter recommended
that Sec. 679.110(b)(3)(i)(B) should clarify that ``a representative
of a business providing an alternative form of training can serve on
the State Board.''
Department Response: The Department acknowledges that the training
options mentioned in this section are illustrative, and that other
training strategies could reasonably satisfy this requirement. The
Department has determined that no further definition is required and
has made no changes to the regulatory text in response to these
comments.
Voting Rights
Comments: Expressing concern that allowing a Governor to
selectively grant voting rights among non-required members could skew a
Board or lead to the appearance of discrimination against some of the
non-required member interests, a commenter recommended that Sec.
679.110(g) state clearly that the Governor may grant voting privileges
to either all or none of the non-required members of the State WDB.
Another commenter said that allowing a CEO to give voting rights to
non-required members could lead to political tension. Some commenters
were concerned that a Governor's authority to convey voting privileges
to non-required members, as stated in Sec. 679.110(g), would be used
to circumvent the requirement of a business majority on the State WDB,
or otherwise impact the functionality of the Board.
Department Response: WIOA sec. 101(b)(1) mandates certain State WDB
members in order to ensure a core set of interests are represented.
Title 20 CFR 679.110(g) requires all mandated Board members to have
voting rights. This section also permits the Governor to grant voting
privileges to the non-required members of the board, and the Department
encourages the Governor to do so, if doing so would further the mission
and goals of the board. Additionally, as described below, the Governor
may not award voting rights in such a way that would upset the balance
of required membership categories. Under the regulations as proposed,
Governors cannot circumvent membership requirements by granting voting
rights to non-mandated State WDB members because the membership
requirements explained in paragraph (b) will always cause the majority
of members on the Board to be mandated members. No change to the
regulatory text was made in response to these comments.
Indian and Native American Representation
Comments: Paragraph (b) of Sec. 679.110 implements WIOA sec.
101(b) describing the required State WDB membership. Many comments from
stakeholders with mandated representation on the Board under WIA and
other interest groups requested that they again be mandated Board
members or that they be referenced in regulation. Several commenters
suggested that Indian and Native American representatives be required
as Board members. As part of a Council resolution submitted as a public
comment, the Native American Employment and Training Council (NAETC)
proposed that each State WDB should have a representative from a tribe
or tribal organization.
Department Response: WIOA reduced mandated Board membership in an
effort to streamline the State WDBs and provide Governors the
flexibility to establish Boards that best reflect the diversity of the
State's job seeker and employer communities. Many important system
partners with experience with specific job seeker populations, such as
tribal organizations, other Department program grantees, and those
serving the disadvantaged and disabled populations are no longer
required members of the Board. However, Sec. 679.110(b)(3)(ii)
requires not less than 20 percent of the Board be representatives of
the workforce, which may include representatives of community-based
organizations that have demonstrated experience and expertise in
addressing the employment, training, or education needs of individuals
with barriers to employment. It also says the Governor has the
flexibility to appoint ``other appropriate representatives and
officials designated by the Governor'' (Sec. 679.110(b)(3)(iii)(B));
the Department encourages the Governor to ensure that State WDB members
represent the diversity of job seekers and employers across the State.
No change to the regulatory text was made in response to these
comments.
Section 679.120 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
Paragraph (a) of Sec. 679.120 defines the term ``optimum policy-
making authority'' as an individual who can reasonably be expected to
speak affirmatively on behalf of the entity he or she represents and to
commit that entity to a chosen course of action. This section retains
the same requirements that were included in the WIA regulations at 20
CFR 661.203(a). Paragraph (b) of Sec. 679.120 defines the term
``demonstrated experience and expertise'' as an individual who has
documented leadership in developing or implementing workforce
development, human resources, training and development, or a core
program function.''
Comments: The Department sought comment on the definition of
optimum policy-making authority, and demonstrated experience and
expertise. Commenters recommended adding education and training
expertise to Sec. 679.120 by indicating that documented leadership in
any of the areas in Sec. 679.110(b)(3)(ii)(C) and (D) also would be
considered.
Department Response: The Department agrees with these commenters
and changed the regulatory language in Sec. 679.120 to reference Sec.
679.110(b)(3)(ii)(C) and (D).
Comments: Commenters also recommended in-depth criteria including:
A successful track record, leveraging of funds, documented service
track record, quality partnerships, culturally competent, and a
physical location in the area. However, the majority of commenters
supported leaving the definition open to State and local discretion.
Some commenters expressed concern that the definition proposed in Sec.
679.120 was too specific and may limit the types of representatives on
the State WDB to those with experience in human resources.
Department Response: With the clarification that demonstrated
experience and expertise may include individuals with experience in
education or training of job seekers with barriers to employment as
described in Sec. 679.110(b)(3)(ii)(C) and (D), the Department has
determined that the definition is sufficiently clear to provide
parameters to State WDBs.
[[Page 56093]]
Comments: Another commenter suggested removal of the term
``documented,'' referencing experience in the areas described in Sec.
679.120, to avoid added administrative burdens of processing
documentation.
Department Response: The use of the term ``documented'' assures
that the selected representatives meet the criteria necessary to
contribute meaningfully to the Board's actions for job seekers but does
not require any specific administrative burden. Processes and
procedures related to membership are the responsibility of the elected
official. No change to the regulatory text was made in response to
these comments.
Section 679.130 What are the functions of the State Workforce
Development Board?
20 CFR 679.130 implements sec. 101(d) of WIOA and describes the
role and functions of the State WDB. Paragraphs (a), (d) through (e),
and (g) through (k) of Sec. 679.130 reiterate the relevant statutory
requirements at WIOA secs. 101(d)(1), (4) and (5), and (7) through
(11). These functions are the primary functions of the State WDB.
Comments: A few commenters suggested text changes such as requiring
State WDBs to partner with public television stations due to those
stations' experience creating instructional materials on employability
skills for job agencies and one-stop centers, providing professional
development tools like workshops, and hosting job fairs.
Department Response: The Department encourages State WDBs to
partner with a wide variety of organizations, however it declines to
require entities not identified in statute. No change to the regulatory
text was made in response to these comments.
Comments: One commenter suggested that Sec. 679.130(a) and (b)
should require State WDBs to create and implement an appeal process for
all policies, monitoring, and negotiations that take place by the
Governor, State WDB, or State pass-through entity and the Local WDBs.
Department Response: Section 679.130 implements WIOA sec. 101(d),
which does not include the requirement to establish such an appeals
process. No change to the regulatory text was made in response to these
comments.
Clarification of Role of the State WDB
Comments: Commenters requested clarification of the roles of the
State WDB such as how the State WDB is to assist in reviewing
recommendations ``on actions that should be taken by the State to align
workforce development programs to support a comprehensive and
streamlined workforce development system'' and whose recommendations
the Board is to review.
Department Response: WIOA sec. 101(d) indicates that the role of
the State WDB is to assist the Governor in the development,
implementation, and modification of the State Plan. To that end the
Board is to review policies, programs, and recommendations on actions
that should be taken by the State to align workforce development
programs in the State. The State WDB is not limited in the types of
recommendations that can be reviewed. The Board may consider
recommendations from any number of areas, not limited to those
resulting from the public comment on the State Plan, from State WDB
meetings, or standing committees. In its role in assisting the
Governor, the State WDB should review relevant comments regarding State
WDB actions, as well as provide its own recommendations of actions to
the Governor. No change to the regulatory text was made in response to
these comments.
Comments: Commenters requested clarification of the role of the
State WDB when other entities perform the same functions such the
development and oversight of the State's labor market information (LMI)
system, which involves the State WDB and State Unemployment Insurance
(UI) Administrator.
Department Response: State WDBs have several roles related to the
use of LMI in the State. Paragraph (e)(3) of Sec. 679.130 implements
WIOA sec. 101(d)(5)(C) and requires State WDBs to develop effective
training programs that respond to real-time data analysis of the labor
market. WIOA sec. 101(d)(11) and Sec. 679.130(k) require the
development of the statewide workforce and labor market information
system described in sec. 15(e) of the Wagner-Peyser Act which refers to
the State's responsibilities. The responsibilities are complementary
rather than duplicative of the roles of other State agencies in these
areas. The State WDB should coordinate with all relevant parties to
develop and implement a plan for ensuring activities are cohesively
leveraged rather than duplicated. No change to the regulatory text was
made in response to these comments.
Comments: Two commenters urged the Department to incorporate into
Sec. 679.130 an active review of State policies that encourage
innovation or hinder innovative strategies that are developed at the
local level and both cautioned against over-regulation by the State.
Department Response: Under Sec. 679.130 State WDBs are already
required to review policies, programs, and recommendations on actions
that should be taken by the State to align workforce development
programs in the State. No change to the regulatory text was made in
response to these comments.
Comments: A commenter asked whether, for the purpose of carrying
out sec. 101(d), WIOA authorizes the Governor to ignore or otherwise
disregard existing State laws with regard to agency rulemaking.
Department Response: WIOA does not provide this authority to the
Governor. However, States are required to comply with the Final Rule as
a condition of the WIOA grant. The Governor should follow applicable
State laws in a manner best designed to comply with these regulations
when implementing the functions of the State WDB.
Single-Area States
Comments: Single-area States, which operated as such under WIA, are
permitted under WIOA. A commenter urged the Department to mandate use
of Local WDBs and/or regional consortia in single-area States.
Department Response: WIOA sec. 107(c)(4) requires that State WDBs
operating as the Local WDB carry out the same functions, except as
noted, required of the Local WDB as detailed in Sec. 679.270.
Therefore, State WDBs in single-area States are already required by
statute and regulation to meet all requirements of membership and
functions of both State and Local WDBs. No change to the regulatory
text was made in response to these comments.
Career Pathways (Sec. 679.130(c)(2))
WIOA sec. 101(d)(3)(B) outlines ``the development of strategies to
support the use of career pathways for the purpose of providing
individuals, including low-skilled adults, youth, and individuals with
barriers to employment (including individuals with disabilities), with
workforce investment activities, education'' as a function of the State
WDB and is described in Sec. 679.130(c)(2). WIOA sec. 107(d) and Sec.
679.300 extends the requirement to Local WDBs. WIOA sec. 3(7)(A)
through (G) defines career pathways as a combination of rigorous and
high-quality education, training, and other services that meet
specified guidelines.
Comments: Commenters requested that the Department provide more
comprehensive guidance on the implementation of career pathways.
[[Page 56094]]
Several commenters provided recommended changes to the regulatory text
that included adding criteria, including a section specific to Local
WDB implementation of career pathways, requiring the State and Local
WDBs to define the roles and responsibilities of WIOA programs related
to career pathways, listing required partners (such as Job Corps, and
public television), and developing strategies to include job seekers
with specific barriers.
Department Response: The ideas and suggestions provided by the
commenters support career pathways as a dynamic topic that involves
input of multiple partners and stakeholders throughout the system. The
statutory language provides general criteria for both State and Local
WDBs to reference in developing career pathway strategies. The
Department has concluded that more prescriptive regulatory language may
limit State WDBs' innovation in developing career pathways to support
individuals to retain and enter employment; however, the Department
will issue further guidance and technical assistance to help States. No
change to the regulatory text was made in response to these comments.
Industry or Sector Partnerships (Sec. 679.130(c)(4))
Paragraph (c)(4) of Sec. 679.130 implements WIOA sec. 101(d)(3)(D)
states that the roles and functions of the State WDB include the
development and expansion of strategies to meet the needs of employers,
workers, and job seekers particularly through industry or sector
partnerships related to in-demand industry sectors and occupations.
Comments: A commenter suggested that the Department should revise
Sec. 679.130(c)(4)'s requirement for State WDBs to assist with
strategies related to industry or sector partnerships to include the
language ``with an emphasis on attainment of recognized post-secondary
credentials.''
Department Response: Title 20 CFR 679.130(c)(4) states that State
WDBs have responsibility for the development and expansion of
strategies to meet the needs of employers, including sector strategies.
State WDB functions already include the requirement to develop and
update comprehensive State performance and accountability measures to
assess core program effectiveness under WIOA sec. 116, which includes a
credential attainment measure. Therefore, attainment of credentials,
including postsecondary credentials, should already be a State WDB
priority, as should sector strategies. No change to the regulatory text
was made in response to these comments.
Best Practices (Sec. 679.130(e))
Paragraph (e) of Sec. 679.130 requires the Board to identify and
disseminate best practices in a number of areas (paragraphs (e)(1)
through (3)).
Comments: Commenters had concerns about dissemination of best
practices surrounding assessments. One commenter urged the Department
to explain further how States would use assessments by including how to
report this in title-specific data. This commenter expressed concerns
that the value of requiring these assessments could be undercut through
a perverse incentive for programs to avoid co-enrollment if the
assessments' use in an accountability system is not clearly defined and
recommended that States ensure that title II providers have processes
for sharing assessment data with title I providers and vice versa.
Department Response: The regulation does not require the reporting
of the use of assessments in this section. The State WDB's purpose, as
outlined in WIOA sec. 101 and Sec. 679.100, is to convene State,
regional, and local workforce system, and partners to align and improve
the outcomes and effectiveness of Federally-funded and other workforce
programs and investments. Therefore, the Board' responsibility already
includes aligning the strategies related to best practices in
assessments. The State Plan should address the State's strategic and
operational vision. No change to the regulatory text was made in
response to these comments.
State WDB One-Stop Delivery System Guidance (Sec. 679.130(f))
Paragraph (f) of Sec. 679.130 requires the State WDB to develop
and review statewide policies affecting the coordinated provision of
services through the State's one-stop delivery system which is to
include developing objective criteria and procedures for the Local
WDBs' use in assessing the physical and programmatic accessibility of
one-stop centers.
Comments: A commenter suggested that the language in Sec.
679.130(f) should be strengthened to better reflect the importance of
including programmatic and physical accessibility in the assessment of
one-stop centers. This commenter recommended that accessibility of one-
stop centers must include the removal of barriers as defined in the
Americans with Disabilities Act (ADA) and 28 CFR 36.304 and should
extend to technological accessibility, citing sec. 508 of the
Rehabilitation Act of 1973.
Department Response: The Department agrees that accessibility is
paramount for all job seekers, and it is the State WDB's function to
develop the tools to assist local areas to ensure that one-stop centers
are both physically and programmatically accessible to all job seekers.
As noted by the commenter, physical accessibility is already required
under existing statute and individual State laws as well as the
regulation implementing WIOA sec. 188 at 29 CFR part 38. WIOA sec.
102(2)(vii) and the WIOA State Plan ICR require that the State Plan
address how the one-stop delivery system will comply with the Americans
with Disabilities Act of 1990. No change to the regulatory text was
made in response to these comments.
Strategies for Technological Improvements To Improve One-Stop Services
(Sec. 679.130(g)) and Strategies for Aligning Technology and Data
Systems Across One-Stop Partner Programs (Sec. 679.130(h))
Comments: A State agency expressed concern that the requirement
that State WDBs develop strategies to ensure technology is accessible
to individuals with disabilities and individuals residing in remote
areas (Sec. 679.130(g)(4)) could become costly and asked the
Department for information on if each State would create its own plan
and for the expectations for the scope of available technology. A
commenter expressed concern that the requirement that State WDBs
develop strategies to for aligning technology and data systems across
one-stop partner programs in Sec. 679.130(h) could become costly, and
asked the Department for an explanation of why this responsibility is
necessary and what the plan development schedule would look like.
Department Response: Paragraph (g)(4) of Sec. 679.130 and
paragraph (h) of Sec. 679.130 address technology improvements, and
data system alignment across one-stop partner programs. Neither
paragraph (g) nor (h) require the development of a plan, or outline
specific technology expectations; rather, the Board is responsible for
developing strategies for technological improvements. Although the
State WDB may choose to develop a technology plan to achieve those
requirements, neither WIOA nor the regulations require the submission
of a formal technology plan. No change to the regulatory text was made
in response to these comments.
[[Page 56095]]
Development of Statewide Workforce and Labor Market Information System
(Sec. 679.130(k))
Comments: WIOA sec. 101(d)(11) and Sec. 679.130(k) require the
development of the statewide workforce and labor market information
system described in sec. 15(e) of the Wagner-Peyser Act which refers to
the State's responsibilities. A commenter requested clarification of
the role of the State WDB in the development and oversight of the
State's labor market information (LMI) system. State WDBs have several
roles related to the use of LMI in the State.
Department Response: Paragraph (e)(3) of Sec. 679.130 implements
WIOA sec. 101(d)(5)(C) and requires State WDBs to develop effective
training programs that respond to real-time data analysis of the labor
market. WIOA sec. 101(d)(11) and Sec. 679.130(k) require the
development of the statewide workforce and labor market information
system described in sec. 15(e) of the Wagner-Peyser Act which refers to
the State's responsibilities. The responsibilities are complementary
rather than duplicative of the roles of other State agencies in these
areas. The State WDB should coordinate with all relevant parties to
develop and implement a plan for ensuring activities are cohesively
leveraged rather than duplicated.
Section 679.140 How does the State Workforce Development Board meet its
requirement to conduct business in an open manner under ``sunshine
provision'' of the Workforce Innovation and Opportunity Act?
Title 20 CFR 679.140 implements WIOA sec. 101(g) requiring the
State WDB to conduct business in an open manner.
Comments: A commenter recommended the Department revise Sec.
679.140(b)(3) to require State WDBs to make available the minutes of
meetings and any public comments, feedback, or requests for service,
and to provide a written response to such comments or requests.
Department Response: The Department notes that paragraph (b)(3)
already implements the WIOA sec. 101(g) requirement that meeting
minutes be available to the public upon request. The Department
encourages all State WDBs to operate with transparency; State WDBs are
free to make additional information, such as public comments and other
information it deems appropriate, available to the public. No change to
the regulatory text was made in response to these comments.
Section 679.150 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Development Board?
Title 20 CFR 679.150 implements WIOA sec. 101(e), which authorizes
the use of alternative entities to the State WDB under the following
conditions: The alternative entity was in existence on the day before
the date of enactment of the Workforce Investment Act of 1998; is
substantially similar to the WIOA State WDB; and includes
representatives of business and labor organizations in the State. As
outlined in Sec. 679.150(c), if the alternative entity does not
provide representatives for each of the categories required under WIOA
sec. 101(b), the State Plan must explain the manner in which the State
will ensure an ongoing role for any unrepresented membership group in
the workforce development system. The State WDB must maintain an
ongoing and meaningful role for an unrepresented membership group,
including entities carrying out the core programs.
Comments: Commenters disagreed with the interpretation at Sec.
679.150(d) that required a new State WDB if the membership of the
alternative entity had changed significantly after August 7, 1998 and
paragraph (e) that defined the criteria for a significant change.
Commenters interpreted the alternate entity provisions of WIOA to mean
that an alternative entity may add or remove membership categories and
maintain alternative entity status unless those changes make the State
WDB ``substantially dissimilar'' to the State WDB. Commenters requested
the Governor be given the authority to make a determination regarding
the definition of ``substantially similar.''
Department Response: The Department agrees and has deleted the
proposed text at Sec. 679.150(d) and (e) from the Final Rule. The
Department declines to further define ``substantially similar'' in
Sec. 679.150 but considers substantially similar to be aligned with
the composition of the WIOA compliant State WDB as outlined in WIOA
sec. 101(a) through (c) and Sec. 679.110. The Department considers
changes to the alternative entity membership or structure that are
contrary to the requirements of WIOA sec. 101(a) through (c) and Sec.
679.110 or those that make the alternative entity less aligned with
WIOA State WDB compliance to result in an alternative entity that is
not substantially similar to a compliant WIOA State WDB.
Comments: Commenters requested that the Department require a
business majority for alternative entities.
Department Response: WIOA sec. 101(e) and Sec. 679.150(b)(3)
require alternative entities to have representatives of businesses in
the State, however lacks a requirement for a business majority. The
Department strongly encourages alternative entities to seek a majority
business participation in State WDB activities and decisions. No change
to the regulatory text was made in response to these comments.
2. Subpart B--Workforce Innovation and Opportunity Act Local Governance
(Workforce Development Areas)
This subpart provides the requirements for identification of
regions and designation of local areas under WIOA. WIOA envisions a
workforce development system that is customer focused on both the job
seeker and business, and is able to anticipate and respond to the needs
of regional economies. It requires Workforce Development Boards and
CEOs to design and govern the system regionally, aligning workforce
policies and services with regional economies and supporting service
delivery strategies tailored to these needs. To support this regional
approach, this subpart requires States to identify intrastate or
interstate regions. When the region contains more than one local area,
the local areas are required to plan regionally. WIOA envisions a
regional system where public workforce system leaders partner and
provide leadership as part of a comprehensive, regional workforce and
economic strategy. The majority of comments in this section pertained
to the structure of regions, and initial and subsequent designation of
workforce development areas.
Section 679.200 What is the purpose of requiring States to identify
regions?
Title 20 CFR 679.200 implements requirements found at both WIOA
sec. 101(d)(3)(E), and WIOA sec. 106(a), which require the Governor to
identify regions with consultation from the CEOs and Local WDBs in the
affected region. The development of comprehensive regional partnerships
facilitates alignment of workforce development activities with regional
economic development activities, and better supports the execution and
implementation of sector strategies and career pathways. Regional
cooperation may also lower costs and increase the effectiveness of
service delivery to businesses that span more than one local area
within a region and to job seekers through coordination of shared
[[Page 56096]]
services, processes, and operations. The Department encourages States
to ensure that local and regional planning areas are aligned to support
improved service delivery, improved training and employment outcomes,
better meet employer needs, and greater effectiveness and efficiency in
achieving these outcomes.
Comments: A commenter expressed concern that defining boundaries of
a region at the State level could result in a lack of coordination
among locals in different regions. A different commenter suggested that
the Department require cooperation between core partners to align
existing services into the appropriate regions and ``to reject plans
where Governors have not effectively assigned local areas to regions.''
Department Response: State WDBs are required to identify regions in
consultation with local chief elected officials and Local WDBs. The
State WDB is also tasked with ensuring the overall alignment of the
public workforce system. The function of identifying regions should not
limit coordination among Local WDBs outside of the identified region;
in fact, the State WDB function is to ensure that the system becomes
more, rather than less, cohesive. No change to the regulatory text was
made in response to these comments.
Comments: One commenter said that the market of a local area may
lend itself to more than one region and in instances such as this they
could exist as a singular local region and partner with the neighboring
areas.
Department Response: The Department agrees that the State WDB could
reach such a conclusion. No change to the regulatory text was made in
response to these comments.
Section 679.210 What are the requirements for identifying a region?
Title 20 CFR 679.210 addresses the requirements for identifying a
region and requires a process that includes consultation with Local
WDBs and CEOs.
Comments: Commenters suggested additional clarification regarding
how consultation will take place including requiring memorandums of
agreement, and a detailed policy of the process.
Department Response: The term consultation is used in Sec. 679.210
as a requirement for identifying a region; the Department added a
definition of consultation to part 675. This clarifies that
consultation constitutes a robust conversation in which all parties are
given opportunity to share their thoughts and opinions. The Department
declines to add additional requirements.
Comments: The Department requested comment on additional data that
may be considered other than that laid out in Sec. 679.210(c)(1)
through (8). Commenters provided suggestions for new data points as
well as adjustments to those in paragraphs (c)(1) through (8), such as
including public transportation when considering commuting patterns,
adding the workforce participation rate of people with barriers to
employment, especially individuals with disabilities and out of school
youth with disabilities, administrative efficiencies, and existing
regional capacity and a history of local areas working together.
Department Response: The data points in Sec. 679.210(c)(1) through
(8) are for illustrative purposes and should not limit the State's
decision-making when identifying regions. The Department will review
the suggestions when determining and issuing guidance on any additional
factors as outlined in Sec. 679.210(c)(8). No change to the regulatory
text was made in response to these comments.
Comments: WIOA sec. 102(b)(2)(D)(i)(II) and Sec. 679.210 require
the Governor to develop a policy and processes for identifying regions.
Commenters suggested that local areas designated under WIA be able to
join one or more region or have the opportunity to remain a single
region. Another commenter suggested that any current local areas that
incorporate multiple jurisdictions should automatically be considered a
region. A commenter requested clarification regarding the difference
between the identification of regions and the designation of local
areas.
Department Response: Local area designation is addressed in
Sec. Sec. 679.220 and 679.230; the purpose of a local area is to
administer workforce development activities. The purpose of a region is
addressed in Sec. Sec. 679.200 and 679.210; the purpose of a regional
area is to align workforce development activities and resources with
larger regional economic development areas and resources. The regional
plan should describe the Governor's processes for ensuring the
requirements outlined in WIOA sec. 102 for the identification of
regions are met. Local areas designated under WIA are not exempt from
the regional identification process. No change to the regulatory text
was made in response to these comments.
Comments: Those regions comprised of two or more contiguous local
areas are planning regions as described in WIOA sec. 3(48). Commenters
have suggested that a single area could participate in multiple
planning regions by being a member, or through a memorandum of
agreement.
Department Response: In accordance with WIOA sec. 106(a)(2), a
single local area may not be split across two planning regions. Local
areas must be contiguous in order to be a planning region and
effectively align economic and workforce development activities and
resources. The Department encourages States confronted with this issue
to reevaluate whether the local areas in question are consistent with
labor market areas and with regional economic development areas in the
State. If these criteria are not met, the State should consider how
best to recast local areas for the purposes of subsequent designation
and regional integration. Local areas only may be part of one region,
however, local areas within planning regions are not prohibited from
working or coordinating with other local areas, and regions may
coordinate with other planning regions. Coordination may be especially
vital across States; the Department anticipates providing additional
guidance regarding the creation and management of interstate planning
regions. No change to the regulatory text was made in response to these
comments.
Comments: A commenter requested that the Governor be provided
flexibility to add more criteria to Sec. 679.210(c) for use when
identifying a region.
Department Response: The Department has determined that the
Governor must use the criteria at Sec. 679.210 in determining a region
in order to ensure consistency among States. However, the list of
factors in paragraph (c) is illustrative and additional factors may be
considered. The Department will review the criteria when determining
and issuing guidance on any additional factors as outlined in Sec.
679.210(c)(8), which states that the Secretary of Labor may provide
additional considerations for the development of regions according to
the policy priorities of the Department. No change has been made to the
regulatory text in response to this comment.
Section 679.230 What are the general procedural requirements for
designation of local areas?
Title 20 CFR 679.230 describes a general public comment process and
the general procedural requirements for designation of local areas,
which include consultation with the State WDB, chief elected officials
and affected Local WDBs. The Governor has the discretion to establish
the process and procedures to solicit comments that it determines
appropriate. However, a
[[Page 56097]]
wide-reaching, inclusive process allows sufficient time for
stakeholders to provide substantive comments that will enable the
Governor to receive meaningful feedback from all interested
stakeholders, ensuring that the Governor is able to consider all
relevant information, data, and opinions before making a decision to
designate or redesignate a local area. WIOA sec. 102(b)(2)(D)(i)(II)
requires the State Plan to describe the Governor's processes for
designating local areas. In addition, the State Plan must detail how
the State will ensure the requirements outlined in WIOA sec. 102
regarding public comments and consultation are met.
Comments: Commenters suggested that regulations require additional
clarification regarding consultation.
Department Response: The Department agrees with the comment and has
added a definition of consultation to the regulatory definitions in
part 675 of the Final Rule. The term ``consultation'' is used
throughout WIOA to describe the process by which State and/or local
stakeholders convene to discuss changes to the public workforce system.
The Department has concluded that this definition is necessary to
clarify that consultation constitutes a robust conversation in which
all parties are given opportunity to share their thoughts and opinions.
Written correspondence or other simple communication methods do not
constitute consultation. This definition applies to all provisions that
use the term unless otherwise specified. With the addition of the
definition in part 675 of the Final Rule, the Department considers the
requirements of Sec. 679.230 to be clear. No changes were made to the
regulatory text in response to these comments.
Comments: Many commenters expressed their agreement with the
general procedural language in this section and commented that pursuant
to WIA sec. 189(i)(2), Texas's workforce areas were designated before
WIA took effect and therefore, they may continue to be used as local
areas. One of the commenters agreed commenter, stating that for these
reasons, ``Texas should continue to operate pursuant to the waiver
authority afforded under WIOA.''
Department Response: Throughout the sections pertaining to Local
WDBs several similar comments referenced operations in Texas as
approved under WIA. The Department's response to all comments
pertaining to Texas's operation under special rule authority in WIA is
that WIOA sec. 193 continues the provisions in effect in WIA and the
Department will continue to administer them in the same manner under
WIOA.
Section 679.240 What are the substantive requirements for designation
of local areas that were not designated as local areas under the
Workforce Investment Act of 1998?
Title 20 CFR 679.240 implements WIOA sec. 101 and addresses the
substantive requirements for designation of local areas that were not
designated as local areas under the Workforce Investment Act of 1998
and Sec. 679.250 addresses subsequent eligibility of local areas.
Comments: One commenter supported this section as proposed. A few
commenters, including a State WDB, suggested that the Department add
language to the regulation that will provide Governors the flexibility
to apply the factors outlined in Sec. 679.240(a) following subsequent
designation regardless of whether the area was designated previously.
Department Response: WIOA sec. 106(b)(3) outlines the requirements
of subsequent eligibility: ``After the period for which a local area is
initially designated under paragraph (2), the Governor shall approve a
request for subsequent designation as a local area from such local
area, if such area--(A) performed successfully; (B) sustained fiscal
integrity; and (C) in the case of a local area in a planning region,
met the requirements described in subsection (c)(1).'' WIOA does not
require other criteria, and this provision permits existing areas to
continue so long as they meet the statutory criteria. No change to the
regulatory text was made in response to these comments.
Section 679.250 What are the requirements for initial and subsequent
designation of workforce development areas that had been designated as
local areas under the Workforce Investment Act of 1998?
Comments: A couple commenters expressed their support for the
language in Sec. 679.250(a) through (c). One commenter recommended
that in this section and elsewhere in the regulations any language that
``prohibits a rural concentrated employment program (CEP) from applying
for designation as local workforce area'' should be deleted.
Another commenter presented the same suggestion and recommended
deleting language from the rule and preamble discussion that exclude
rural CEPs from being eligible to apply as local workforce areas.
Specifically, the commenter recommended deleting language from the
regulatory text of Sec. 679.250(g), and deleting language discussing
CEPs in the preamble discussion for Sec. 679.250(g), and the preamble
discussion for Sec. 679.290(a), and the commenter provided detailed
rationale to support the deletion of all anti-CEP language.
Department Response: WIOA Technical Amendments Act, enacted on May
22, 2015, amended WIOA sec. 106(b) to allow rural concentrated
employment programs to apply for initial and subsequent designation as
a local workforce area. The regulations have been revised to conform
with the statutory direction and paragraph (g) now reads as follows:
``The Governor may approve, under paragraph (c) of this section, a
request for designation as a local area from areas served by rural
concentrated employment programs as described in WIOA sec.
107(c)(1)(C).''
Comments: Many commenters requested clarification regarding the
requirements of subsequent designation and the associated timelines in
Sec. 679.250.
Department Response: The Department clarified Sec. 679.250 to
provide details on the duration of initial designation and the timing
of the first available opportunity for local area subsequent
designation to occur. The Department revised the proposed requirement
to clarify that initial designation is only applicable to PY 2016 and
PY 2017. Noting the commenters' concerns regarding availability of WIOA
performance data, which is required for the determination of
designation, the Department added Sec. 679.250(c) to clarify that no
determination of subsequent designation may be made before the
conclusion of PY 2017.
Section 679.260 What do the terms ``performed successfully'' and
``sustained fiscal integrity'' mean for purposes of designating local
areas?
Title 20 CFR 679.260 implements the WIOA sec. 106(e)(1) definition
of performed successfully.
Comments: Many commenters asked for guidance in applying the WIOA
sec. 106(e)(1) definition.
Department Response: The Department agrees that additional detail
is necessary to ensure that initial and subsequent designation
requirements are applied consistently. The Department has adjusted the
Final Rule at Sec. 679.260 to detail the performance indicators, and
corresponding timelines, to be considered for initial and subsequent
designation. For clarity and to reduce duplication the Department
deleted Sec. 679.260(a)(1) and (2) pertaining to the negotiated levels
of performance. The details in paragraphs
[[Page 56098]]
(a)(1) and (2) were unnecessarily duplicative to the requirements
covered in the introductory text of paragraph (a), which already
outline the relevant performance goals. The Department added detailed
timeframe information for subsequent designation in Sec. 679.260(b)(1)
and (2).
Comments: Some commenters suggested that performance be measured in
the aggregate based on the total outcomes for all performance
indicators instead of individual performance indicators. Another
commenter requested that success be based on achieving 80 percent of
the negotiated goal.
Department Response: Based on experiences under WIA, the Department
determined that individual indicators of performance provide Governors
more detailed information for making designation determinations. Title
20 CFR 679.260 clarifies that local areas must not fail any individual
measure for 2 consecutive years. Title 20 CFR 679.260(a) clarifies that
the local area must meet or exceed the performance levels the Governor
negotiated with Local WDB and CEO.
Comments: A commenter asked for clarification regarding appeal
rights if a local area is deemed not to have performed successfully if
there was no negotiation between a local area and the State for the
previous 1 to 2 years before enactment of WIOA.
Department Response: WIA sec. 136(c) and Sec. 666.310(a) of the
regulations implementing WIA required the negotiation of local area
performance indicators under WIA. In accordance with WIOA sec.
106(e)(1) and Sec. 679.260(a) and (b), the local performance must be
judged in accordance with the definitions of ``meets'' and ``exceeds''
in place at the time the performance levels were negotiated. Appeals
regarding local area designation must adhere to the requirements in
Sec. Sec. 683.630(a), 683.640, and 679.290.
Comments: Paragraph (c) of Sec. 679.260 implements WIOA sec.
106(e)(2), which defines the term ``sustained fiscal integrity.''
Commenters requested clarification of fiscal integrity, and one
commenter expressed concern that the three criteria used for
determining ``sustained fiscal integrity'' would limit the Governor's
ability to designate local areas and suggested that the Department
clarify that only the first criterion requires a formal determination
by the Secretary of Labor.
Department Response: In WIOA sec. 106(e), ``sustained fiscal
integrity'' means ``that the Secretary has not made a formal
determination, during either of the last 2 consecutive years preceding
the determination regarding such integrity, that either the grant
recipient or the administrative entity of the area misexpended funds .
. . due to willful disregard of the requirements of the provision
involved, gross negligence, or failure to comply with accepted
standards of administration.'' Section 679.260(c) implements the
requirements outlined in WIOA sec. 106(e). No changes were made to the
regulatory text in response to these comments. To the extent that
additional clarification may be needed, the Department will issue
separate guidance.
Section 679.270 What are the special designation provisions for single-
area States?
Title 20 CFR 679.270 implements WIOA secs. 106(d) and 107(c)(4)(A),
which allow for single-area States so designated under WIA to continue,
and requires the State WDB to carry out the functions of the Local WDB
in a single-area State.
Comments: Commenters requested additional clarification on the
roles of the State WDB in single-area States. Several commenters
indicate that single-area States tend to be small or substantially
rural areas and fulfilling the mandates of both the State and Local
WDBs would be both unduly burdensome for single-area States as well as
impractical. Others objected to single-area State WDBs taking on the
role of the Local WDB and expressed concern that such situations are
non-responsive to local needs and to local stakeholders. Commenters
suggested varying solutions which include allowing waivers or
exceptions for single-area States of certain Board functions; mandating
local representation to a broader extent on the single-area State WDB;
creating a specific section regulating exemptions for single-area State
WDB functions; and offering non regulatory technical assistance and
guidance.
Department Response: WIOA sec. 107(c)(4)(A) requires that single-
area States' State WDB carry out the function of the Local WDB with an
exemption only for meeting and reporting on local performance
indicators, so the requirements of Sec. 679.270(c) cannot be reduced.
However, the Department does not intend for single-area States to
conduct the required Board functions in such a way as to be inefficient
or duplicative. To that end, the Department has amended the regulatory
text at Sec. 679.270 by adding paragraph (d), which clarifies that
single-area States must conduct the functions of the Local WDB to
achieve the incorporation of local interests but may do so in a manner
that reduces unnecessary burden and duplication of processes. The
Department will issue guidance regarding how single-area States must
carry out the duties of State and Local WDBs.
The Department encourages the Governor to ensure that State WDB
members represent the diversity of job seekers and employers across the
State, which includes ensuring adequate local elected official
representation on the State WDB. Single-area States have the additional
burden of representing local level interests and stakeholders.
3. Subpart C--Local Workforce Development Boards
Title 20 CFR 679.300 explains the purpose of the Local WDB. The
Local WDB represents a wide variety of individuals, businesses, and
organizations throughout the local area. The Local WDB serves as a
strategic convener to promote and broker effective relationships
between the CEOs and economic, education, and workforce partners. The
Local WDB must develop a strategy to continuously improve and
strengthen the workforce development system through innovation in, and
alignment and improvement of, employment, training, and education
programs to promote economic growth. Local WDB members must establish a
platform in which all members actively participate and collaborate
closely with the required and other partners of the workforce
development system, including public and private organizations. This is
crucial to the Local WDB's role to integrate and align a more
effective, job-driven workforce investment system. In this part the
Department addresses comments on the roles of the Local WDBs, Local WDB
memberships, and the role of local elected officials.
Section 679.300 What is the vision and purpose of the Local Workforce
Development Board?
Title 20 CFR 679.300 establishes the vision for and explains the
purpose of the Local WDB.
Comments: Commenters suggested the Department clarify that Local
WDBs are responsible for organizing the key partners to develop a
vision for the system collectively, implementing that system, and
monitoring performance.
Department Response: These responsibilities are already laid out in
the regulations under Sec. 679.300(b)(1). One of the purposes of the
Local WDB is to provide strategic and operational oversight in
collaboration with required and other partners to help the workforce
[[Page 56099]]
development system achieve the purposes outlined in WIOA sec. 2, and
assist in the achievement of the State's strategic and operational
vision and goals outlined in the State Plan. Paragraphs (b)(2) and (3)
of Sec. 679.300 require the Local WDB to assist in the achievement of
the State's strategic and operational vision and goals as outlined in
the Unified State Plan or Combined State Plan, and to maximize and
continue to improve the quality of services, customer satisfaction, and
effectiveness of the services provided. No change to the regulatory
text was made in response to these comments.
Section 679.310 What is the Local Workforce Development Board?
Title 20 CFR 679.310 implements WIOA sec. 107 by defining the Local
WDB and its functions.
Comments: Commenters suggested changes regarding the function of
establishing by-laws covered in Sec. 679.310(g) including suggesting
that the criteria that apply to the selection of Local WDB members also
should apply to by-laws of the Board, and that Board members should not
be required to actively participate in convening system stakeholders.
Department Response: WIOA sec. 107(b)(1) and Sec. 679.320 describe
the Local WDB membership requirements as enumerated in WIOA. The WIOA
statute does not indicate that by-laws restrict membership. The
Department declines to make the suggested regulatory change. No change
to the regulatory text was made in response to these comments.
Comments: Some commenters stated that Sec. 679.310(g)(7) should
refer to membership on the Local WDB, rather than the State WDB. One
commenter suggested that the authority should fall to Local WDBs and
not CEOs and recommended that the Department reword Sec. 679.310(g)(7)
as follows: ``A description of any other conditions governing
appointment or membership on the Local Board as deemed appropriate by
both the Local Board Chair and the CEO. The rest of these conditions
should be under the authority of the [Local Board] and be included as
requirements in the [Local Board] developed by-laws.''
Department Response: The Department agrees and will make that
technical change to Sec. 679.310(g)(7) to replace State WDB with Local
WDB. The regulatory text has been revised with this change to Sec.
679.310(g)(7).
Comments: A commenter requested clarification regarding the
financial liability for local areas with multiple chief elected
officials.
Department Response: Paragraph (e) of Sec. 679.310 says that if a
local area includes more than one unit of general local government the
chief elected officials may execute an agreement to describe their
responsibilities for carrying out the roles and responsibilities. This
agreement may include the assignment of liabilities among the units of
local government. The chief elected officials should address financial
roles in this agreement. In addition there is authority under WIOA sec.
107(d)(12)(B)(i)(I) that the Governor may agree to take on the
liability of the chief elected official.
Comments: A commenter stated that the term ``elect'' in the
nomination process should be changed to ``appoint.''
Department Response: The Department agrees and has changed the term
``elect'' in Sec. 679.310(g)(1) to ``select.''
Comments: Regarding the nomination process, a commenter asked the
Department to clarify whether the Board chair will be nominated by a
vote of the Local WDB members and not by the chief elected official.
Department Response: The Local WDB is required to elect the
chairperson as outlined in Sec. 679.330 in accordance with WIOA sec.
170(b)(3).
Comments: The proposed regulations in Sec. 679.310(g) would
require the CEO to establish by-laws for Local WDBs. A few commenters
suggested that the Department revise the language in proposed paragraph
(g) to require that CEOs, ``in consultation with the Local Board,''
must establish by-laws consistent with State policy for Local WDB
membership.
Department Response: Paragraph (g) of Sec. 679.310 requires the
local elected official to establish by-laws that include the process to
ensure Local WDB members actively participate in convening system
stakeholders, brokering relationships with a diverse range of
employers, and leveraging support for workforce development activities.
The by-laws will outline the process and roles for Local WDB members.
An effective Local WDB establishes clear roles, responsibilities,
procedures, and expectations through its by-laws, and that these
requirements will help Local WDBs to be more agile and proactive in
reacting to board turnover, increase board participation when board
members are not able to physically attend board meetings, improve board
functionality, and help ensure that the public is informed about the
operation of the board. No changes to the regulatory text have been
made in response to these comments.
Comments: A commenter requested that the Department revise the
section so that the Local WDBs must draft by-laws ``after consultation
with and approval by the chief elected official.''
Department Response: WIOA sec. 107 delegates the establishment of
by-laws to the chief elected official. The chief elected official must
establish the by-laws in order to constitute a Local WDB. Paragraph (c)
of Sec. 679.310 allows the Local WDB and the chief elected official(s)
to enter into an agreement that describes the respective roles and
responsibilities of the parties which does not prohibit the Local WDB's
role in the development of future by-laws. The suggested change is not
necessary and no change to the regulatory text was made in response to
this comment.
Section 679.320 Who are the required members of the Local Workforce
Development Board?
Title 20 CFR 679.320 addresses the required members on the Local
WDB in accordance with WIOA sec. 107.
Comments: The Department received comments of support for this
section but one commenter suggested that it may cause political tension
to allow a Chief Elected Official to appoint Local WDB members.
Department Response: WIOA clearly contemplates that Chief Elected
Officials will use the State established criteria to appoint Local WDB
membership that meets the requirements in WIOA sec. 107(b)(2). Section
679.320(g) requires the Chief Elected Official establish a formal
nomination and appointment process. No change has been made to the
regulatory text in response to this comment.
Overarching Comments on the Required Members of Local WDBs
Comments: Commenters requested guidance on documenting the
inability to find a certain member type.
Department Response: Local WDBs should follow State guidelines for
documenting the lack of member types in the area.
Adult Education Representation
Comments: The Department received several comments suggesting that
a specific entity be named to represent adult education programs at the
local level.
Department Response: WIOA sec. 107(b)(1) and Sec. 679.320(a)
require that the chief elected official use the criteria set by the
Governor, in partnership with the State WDB, to appoint members of the
Local WDBs. The Department concludes that the Governor, in
[[Page 56100]]
partnership with the State WDBs, has authority for creating a policy
regarding the criteria for the membership of the Local WDB, which
includes criteria for selecting the representative of a title II
eligible provider of adult education and literacy activities. No change
has been made to the regulatory text in response to this comment.
Comments: Commenters also recommended that a process be implemented
for selecting a Local WDB representative in the event there are
multiple providers in the area.
Department Response: In accordance with WIOA sec. 107(b)(2)(C)(i),
Sec. 679.320(d)(1) requires that the Local WDB include at least one
eligible provider administering adult education and literacy activities
under title II. Nominations are solicited when multiple entities are in
a local area as described in Sec. 679.320(g)(3) and WIOA sec.
107(b)(6). No change to the regulatory text was made in response to
these comments.
Comments: One commenter asked for clarification between the terms
``education and training activities'' and ``education and training
services,'' stating that they seem to mean the same thing in many
instances.
Department Response: In order to avoid confusion, the Department
eliminated the term ``education and training services'' from the
regulatory text.
Dual Representation
Title 20 CFR 679.320(h) allows an individual to be appointed as a
representative on the Local WDB for more than one entity if the
individual meets all of the criteria for representation.
Comments: Several commenters expressed concern with this approach
because it differs from State WDB requirements; commenters recommended
allowing for all core programs to have separate representation on Local
WDBs. One commenter supported the flexibility in permitting a Local WDB
member to represent multiple entities. Another commenter recommended
that the Department should strongly discourage a Local WDB member from
representing two interests, reasoning that a Board member serving the
interests of two separate functions would not be true to the intent of
WIOA. This commenter also expressed concern that it would create a
conflict of interest under the Sarbanes-Oxley Act and a Board member's
heightened fiduciary responsibilities.
Department Response: The Department recognizes that the structure
of core programs may differ across the country and separate
representation may not be possible or practical in all local areas. The
Department offers Governors and Local Chief Elected Officials the
flexibility for an individual to be appointed as a representative on
the Local WDB for more than one entity if the individual meets all of
the criteria for representation. However, there is no requirement that
this be the case. In accordance with WIOA sec. 107(b)(1) and Sec.
679.320(a) the CEO must follow the process established by the Governor,
in partnership with the State WDB, for appointing members of the Local
WDB. With regard to concerns about conflicts of interest under the
Public Company Accounting Reform and Investor Protection Act (Sarbanes-
Oxley Act) or other applicable laws, neither WIOA nor these regulations
exempt an official serving in a dual representation capacity from any
applicable ethical rules. In fact, Sec. 683.200(c)(5) imposes specific
conflict of interest requirements on WIOA recipients in addition to
those applicable under the uniform administrative requirements. For
these reasons, the Department has determined that the flexibility for
Local WDB membership is appropriate and no change to the regulatory
text was made in response to these comments.
Labor Union, Small Business, and Registered Apprenticeship
Representation
Paragraph (c) of Sec. 679.320 requires that at least 20 percent of
Local WDB membership must be workforce representatives to include
representatives of labor organizations, and a joint labor-management
registered apprenticeship program, or (if no such program exists in the
area) a representative of a registered apprenticeship program in the
area if such program exists.
Comments: Commenters requested clarification of the total number of
labor representatives required on the Local WDB, and suggested labor
representatives include employee representatives for non-unionized
employees.
Department Response: Paragraph (c) of Sec. 679.320 clarified that,
at minimum, three labor representatives must be included in the Local
WDB: Two or more representatives of labor organizations, where such
organizations exist in the local area, and one joint labor-management
representative of a registered apprenticeship program where such
program exists in the local area. In the event that these organizations
are not present in the local area, representatives must be selected
from other employee representatives. For local areas with no union-
affiliated registered apprenticeship program, a representative of a
non-union registered apprenticeship in the area must be appointed if
one exists. The Local WDB may include other individuals or
representatives as outlined in paragraph (e). The Department has
determined that no change is required to the proposed language to allow
for additional representation of the labor force as appropriate.
Regarding the number of small business representation, paragraph
(b) of Sec. 679.320 implements WIOA sec. 107(b)(2)(A)(ii), which
describes Local WDB membership criteria and calls for members that
``represent businesses, including small businesses.'' The Department
interprets WIOA's use of the word ``businesses'' to indicate that the
Local WDB is required to have more than one member representing a small
business.
Comments: One commenter requested a definition of the word
``business'' and asked if it ``may include large non-profit
organizations.'' Another commenter requested a definition of ``business
organization,'' suggesting it ``include trade associations and chambers
of commerce,'' and another commenter also requested clarity that
``business organizations can be a local chamber of commerce or a
regional entity.'' One commenter asked if sector representatives had to
come from an established sector or if they also could represent
``aspirational industries.''
Department Response: WIOA sec. 3 contains definitions of terms used
in the law. This section does not specifically define a business or a
business organization. The groups suggested by the commenters may be
included as long as they meet the membership criteria outlined in Sec.
679.320. Title 20 CFR 679.320 implements WIOA sec. 107(b)(2) by
describing the required members of a Local WDB. Paragraph (b) requires
that a majority of the members of the Local WDB be representatives of
businesses in the local area and paragraphs (b)(1) and (2) outline the
required criteria. The Chief Elected Official (CEO) has the authority
in WIOA sec. 107 and Sec. 679.320(e)(4) to appoint other members as
he/she deems appropriate. Regarding the comment on ``aspirational
industries,'' many organizations can meet the criteria outlined in
Sec. 679.320(b) and the CEO has the authority to appoint additional
members that meet the needs of the local area employers and job
seekers. The Department concludes that no further definition is
required and has
[[Page 56101]]
made no changes to the regulatory text in response to this comment.
Comments: Multiple commenters stated that the Department cites WIOA
sec. 3(25) regarding business representative requirements in Sec.
679.320(b)(2) and it should reference sec. 3(23) instead. A commenter
asked if trained members who have experience with eligible youth, as
referenced in proposed Sec. 679.320(c)(4), would include
representatives from local government funded programs such as 4-H.
Department Response: The Department agrees that the reference to
WIOA sec. 3(25) in Sec. 679.320(b)(2) is incorrect. WIOA sec. 3(23)
defines in-demand industry sector or occupation. WIOA sec. 3(25)
defines an individual with a disability which is not relevant to Sec.
679.320(b)(2). The Department has made the correction in Sec.
679.320(b)(2).
Regarding the question of whether representatives from 4-H programs
would qualify as members having experience with eligible youth, Sec.
679.320 implements WIOA sec. 107(b) which outlines membership criteria
for Local WDBs. As outlined in Sec. 679.320(a), for each local area in
the State, the members of the Local WDB must be selected by the CEO
consistent with the criteria established under statute and criteria
established by the Governor, and must meet the requirements of WIOA
sec. 107(c)(2). CEOs are required to establish a formal nomination and
appointment process (Sec. 679.320(g)), which should answer specific
questions about local area membership requirements. Due to the number
of factors involved, the Department is not able to comment on if a
specific entity would meet the requirements set forth by the Governor
as well as all of the statutory requirements but advises interested
parties to review the CEO's process in their area.
Comments: Paragraph (b)(2) of Sec. 679.320 implements WIOA sec.
107(b)(1)(C)(i)(II), which provides that Local WDB business
representatives represent businesses that provide ``employment
opportunities that, at a minimum, include high-quality, work-relevant
training and development in in-demand industry sectors.'' Some
commenters asked the Department to clarify the definition of ``work-
relevant training'' in proposed Sec. 679.110(b)(3)(i)(B). In
particular, some of these commenters asked whether it pertains to for-
profit training providers. Another commenter stated while the
definition of ``in-demand'' is located at WIOA sec. 3(23), there is no
definitions for the terms ``high-quality'' and ``work-relevant.'' This
commenter recommended that the Department allow these terms to be
defined at the State or local level.
Department Response: WIOA sec. 3 provides definitions of terms used
in the law. The terms ``work-relevant'' training and ``high-quality''
are not defined in WIOA or in the regulations. The Local WDB's
functions under WIOA sec. 107(d) and Sec. 679.370 include employer
engagement, career pathways development, and identifying and
disseminating promising practices. It is incumbent upon the Local WDB
to apply the above terms so that it includes the members it determines
best support its functions. No change to the regulatory text was made
in response to these comments.
Nominations
WIOA sec. 107 and Sec. 679.320 of this part outline the
requirements for Local WDB membership.
Comments: Commenters requested that a nomination process not be
required in communities where there are multiple adult education
providers.
Department Response: WIOA sec. 107(b)(6) requires a nomination
process if there are multiple eligible providers of title II adult
education and literacy activities serving the local area (a similar
process is required for multiple institutions of higher education in a
local area). Section 679.320(g)(3) conforms with WIOA sec. 107(b)(6)
and the Department made no changes to the regulatory text in response
to these comments.
Comments: Another commenter suggested that Local WDB members must
be nominated by an appropriate body, and if no such body is clear, then
the opportunity to present nominations should be required to be widely
publicized.
Department Response: WIOA does not require that the Local WDB
nominations be from particular bodies, except that in instances of
multiple adult education providers in a local area nominations will be
accepted from those institutions in accordance with WIOA sec. 107(b)(6)
and Sec. 679.320(g)(3). In accordance with WIOA sec. 107(b)(1) and
Sec. 679.320(a) the CEO must follow the process established by the
Governor, in partnership with the State WDB, for appointing members of
the Local WDB which may include processes for soliciting nominations.
No change to the regulatory text was made in response to these
comments.
Individuals With Disabilities and Other Barriers to Employment
Section 679.320 implements WIOA sec. 107(b) describing the required
Local WDB membership.
Comments: As with the State WDBs, many commenters from stakeholders
with mandated representation under WIA, requested that they again be
mandated members of the Local WDB, or that they be referenced in
regulation.
Department Response: WIOA reduced required Local WDB membership in
an effort to streamline the Boards and provide Chief Elected Officials
the flexibility to establish Local WDBs that best reflect the diversity
of job seeker and employer communities. The Department recognizes that
many important system partners with experience with specific job seeker
populations, such as required one-stop partner programs, tribal
organizations, other Department program grantees, and those serving the
disadvantaged and disabled populations are no longer required members
of the Board. However, Sec. 679.320(c) and (d) require the Board be
comprised of workforce representatives that can include one or more
representatives of community-based organizations that have demonstrated
experience and expertise in addressing the employment, training, or
education needs of individuals with barriers to employment. Paragraph
(e)(4) of Sec. 679.320 says the CEO has the flexibility to appoint
``other appropriate individuals as determined by the chief elected
official'' which does not preclude any organization as the CEO deems
appropriate. The Department encourages the CEO to ensure that Local WDB
members represent the diversity of job seekers and employers in their
local areas, which includes ensuring adequate representation on the
Local WDB and ensuring appropriate expertise to address needs of
individuals with barriers to employment. No change to the regulatory
text was made in response to these comments.
Voting Rights
Title 20 CFR 679.320 implements WIOA sec. 107 (b) which outlines
Local WDB membership.
Comments: Some commenters recommended that Board members from each
core program must be individuals working specifically with core
programming and they must get a vote on the Local WDB, including
grandfathered Boards.
Department Response: Title 20 CFR 679.320(e)(4) says the CEO has
the flexibility to appoint ``other appropriate individuals as
determined by the chief
[[Page 56102]]
elected official'' which does not preclude any organization as the CEO
deems appropriate. The Department encourages the CEO to ensure that
Local WDB members represent the diversity of job seekers, employers,
and one-stop partner programs in the local area which includes ensuring
adequate representation on the Local WDB. Title 20 CFR 679.320(i),
which requires all required Local WDB members to have voting rights,
also gives the CEO flexibility to convey voting rights to non-required
members. No change to the regulatory text was made in response to this
comment.
Comments: One commenter asked how adult education programs that are
not funded by the State and do not have voting rights can still
contribute.
Department Response: Title 20 CFR 679.360(a) permits the use of
standing committees on the Local WDB. Standing committees may be
established to provide information and assist the Local WDB in carrying
out its responsibilities under WIOA 107. Standing committee members
must include individuals who are not members of the Local WDB and who
have demonstrated experience and expertise in accordance with Sec.
679.340(b) and as determined by the Local WDB. Stakeholders with
expertise may wish to contribute as members of standing committees, if
the Local WDB establishes such committees. No change to the regulatory
text was made in response to these comments.
Section 679.330 Who must chair a Local Workforce Development Board?
Section 679.340 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
Comments: One commenter strongly supported both proposed
definitions. Another commenter expressed concern regarding the language
used to define ``optimum policy-making authority'' because TANF is
administered at the State level and local leadership does not have
``optimum policy-making authority'' for the agency. For this reason,
the commenter requested that the Department clarify what ``optimum
policy-making authority'' is at the local level.
One commenter asked the Department if it thinks local
administrators of State agencies meet the criteria for optimum policy-
making authority or if it expects this regulation will require the
nomination and appointment of State capital-based agency executives.
Regarding demonstrated experience and expertise, one commenter
recommended that all staff working with job seekers and business
customers should receive certification through programs like Certified
Workforce Development Professional (CWDP) by the National Association
of Workforce Development Professionals (NAWDP) to ensure they are
qualified in their role.
Department Response: 20 CFR 679.340 clarifies the term ``optimum
policy-making authority'' as an individual who can reasonably be
expected to speak affirmatively on behalf of the entity he or she
represents and to commit that entity to a chosen course of action. The
section also defines ``demonstrated experience and expertise'' at the
local level, which includes a workplace learning advisor as defined in
WIOA sec. 3(70); an individual who contributes to the field of
workforce development, human resources, training and development, or a
core program function; or someone the Local WDB recognizes for valuable
contributions in education or workforce development related fields. The
Department concludes that the Local WDB has flexibility to make the
determinations of optimum policy-making authority and demonstrated
experience and expertise within the outlined criteria. No change to the
regulatory text was made in response to these comments.
Section 679.350 What criteria will be used to establish the membership
of the Local Workforce Development Board?
Comments: Title 20 CFR 679.350 affirms that the chief elected
official appoints the Local WDB in accordance with the criteria in WIOA
sec. 107(b) and applicable State criteria. Commenters sought additional
detail on which industries can be represented, specifically asking
about the healthcare industry and educational institutions. Commenters
also requested that 501(c)(3) corporations be defined as businesses.
Department Response: WIOA sec. 3 contains definitions of terms used
in the law. This section does not specifically define a business or a
business organization. The entities identified by the commenters may be
included as long as they meet the membership criteria. No change to the
regulatory text was made in response to these comments.
Section 679.360 What is a standing committee, and what is its
relationship to the Local Workforce Development Board?
Comments: 20 CFR 679.360 implements WIOA sec. 107(b)(4) and
establishes the roles and responsibilities of standing committees
within the Local WDB structure. Commenters supported the text, as well
as suggested that the Department require or recommend particular
groups, such as Job Corps, to be members of standing committees.
Department Response: Standing committees were not legislated under
WIA and are optional under WIOA as clarified in Sec. 679.360(b). The
Department declines to mandate a specific entity be represented on a
standing committee, but nothing would prevent Job Corps representatives
from being appointed to standing committees under Sec. 679.360(b).
Standing committees may be used to assist the Local WDB in carrying
out its responsibilities as outlined in WIOA sec. 107.
Comments: One commenter suggested changing the word ``must'' to
``may'' regarding the requirement in Sec. 679.360(a) to include those
appointed by the Local WDB in standing committees but who are not Board
members.
Department Response: The Department encourages the use of standing
committees to expand opportunities for stakeholders to participate in
Local WDB decision-making, particularly for representatives of
organizations that may no longer sit on the Local WDB but continue to
have a stake in the success of Local WDB decisions. Such committees
also expand the capacity of the Local WDB in meeting required functions
and expand opportunities for stakeholders to participate in Local WDB
decision-making. For this reason, it is important to require the
appointment of non-Board members. No change to the regulatory text was
made in response to these comments.
Section 679.370 What are the functions of the Local Workforce
Development Board?
Role and Function of the Local WDB
Title 20 CFR 679.370 lists the functions of the Local WDBs as
enumerated in WIOA sec. 107(d). Under WIOA, the Local WDB, in
partnership with the CEO, must perform a variety of functions to
support the local workforce system.
Comments: Commenters recommended the addition of a variety of Local
WDB functions.
Department Response: In order to preserve Local WDB flexibility,
the Department declines to enumerate additional functions. No change to
Sec. 679.370 was made in response to these comments.
Comments: Paragraph (b) of Sec. 679.370 discusses a new role for
Local WDBs
[[Page 56103]]
that are part of a planning region that includes multiple local areas.
This provision repeats the WIOA requirement that Local WDBs that are
part of a planning region must develop and submit a regional plan in
collaboration with the other Local WDBs in the region. Regarding Sec.
679.370(b), a commenter recommended the Department include language
allowing any local area that includes multiple jurisdictions and
partners to have an automatic designation as a region and to consider
that area's local plan to be a regional plan.
Department Response: WIOA sec. 106(a)(2) clearly assigns the State
the responsibility of identifying regions after consultation with Local
WDBs and chief elected officials. As required in WIOA sec. 106(c)(2),
the local plan is incorporated into the regional plan, where required,
in accordance with Sec. 679.540. No change to the regulatory text was
made in response to this comment.
Career Pathways (Sec. 679.370(f))
WIOA sec. 3(7)(A) through (G) defines career pathways as a
combination of rigorous and high-quality education, training, and other
services that meet specified guidelines. WIOA sec. 101(d)(3)(B)
enumerates ``the development of strategies to support the use of career
pathways for the purpose of providing individuals, including low-
skilled adults, youth, and individuals with barriers to employment
(including individuals with disabilities), with workforce investment
activities, education'' as a function of the State WDB and is described
in Sec. 679.130(c)(2). WIOA sec. 107(d) and Sec. 679.300 extends the
requirement to Local WDBs.
Comments: Commenters requested that the Department provide more
comprehensive guidance on the implementation of career pathways.
Several commenters provided recommended changes to the regulatory text
that included adding criteria, including a section specific to Local
WDB implementation of career pathways, requiring the State and Local
WDBs to define the roles and responsibilities of WIOA programs related
to career pathways, listing required partners (such as Job Corps, and
public television), and developing strategies to include job seekers
with specific barriers to employment.
Department Response: The Department acknowledges the interest in
implementing successful career pathway strategies. The ideas and
suggestions provided by the commenters support that career pathways is
a dynamic topic that involves input of multiple partners and
stakeholders across the public workforce system. The Department agrees
that further guidance and technical assistance is needed and will be
issued. However, the statutory language provides general criteria for
both State and Local WDBs to use in developing career pathway
strategies meeting their needs. More prescriptive language may limit
State and Local WDBs' ability to be proactive and innovative in
developing career pathways to support individuals to retain and enter
employment. No change to the regulatory text was made in response to
these comments.
Strategies for Technological Improvements To Improve One-Stop Services
(Sec. 679.370(h))
Comments: Proposed Sec. 679.370(h)(1) requires that Local WDBs
facilitate connections among the intake and case management information
systems of the one-stop partner programs; a commenter asserted that
connecting intake and case management information systems will raise
significant issues in terms of staffing, technology, and
confidentiality.
Department Response: Title 20 CFR 679.370(h) does not outline
specific technology requirements expectations, but rather the Board is
responsible for developing strategies for aligning technology and data
systems across one-stop partner programs. The Local WDB may connect
intake and case management systems, but neither WIOA nor the
regulations require a single case management system among one-stop
partners. The regulation provides Local WDBs with flexibility to
develop systems that best fit their needs and budgets. No change to the
regulatory text was made in response to these comments.
Review of Adult Education Provider Applications (Sec. 679.370(n))
Paragraph (n) of Sec. 679.370 reflects a number of new functions
for the Local WDB related to coordination with adult education and
literacy providers in the local area. This provision requires the Local
WDB to review applications to provide adult education and literacy
activities under title II to determine whether such applications are
consistent with the local plan; the eligible agency retains approval
authority. It also requires the Local WDB to make recommendations to
the eligible agency to promote alignment with the local plan.
Comments: Commenters requested clarification regarding the
application review process. Further information regarding Local WDB
coordination with adult education and literacy providers is provided at
34 CFR part 463, which requires the eligible agency to establish in its
competition a processes by which applicants must submit an application
to the Local WDB for review prior to its submission to the eligible
agency. This part also includes a role for the Local WDB in replicating
and implementing cooperative agreements in accordance with subparagraph
(B) of sec. 101(a)(11) of the Rehabilitation Act of 1973 (29 U.S.C.
721(a)(11)), and implementing cooperative agreements in accordance with
that section with the local agencies administering plans under title I
of that Act (29 U.S.C. 720 et seq.) other than sec. 112 or part C of
that title (29 U.S.C. 732, 741) to enhance the provision of services to
individuals with disabilities and other individuals.
Commenters expressed concerns that Local WDBs will not have the
appropriate amount of time to review all adult education provider
applications in a timely manner, particularly in large cities with many
programs or for education programs serving jurisdictions with multiple
Local WDBs. One commenter also expressed concern about the title II
adult education provider application review process because Local WDBs
do not understand enough about education programs and recommended that
the regulations contain a clear conflict of interest policy as well as
a process where the adult education stakeholders have the ability to
help shape the local plan. One commenter suggested that the review and
approval process outlined in Sec. 679.370(n) for adult education
providers should be applied to all core partner plans.
Department Response: The Department of Education provides
additional information about the review of local applications for
grants or contracts to provide title I adult education and literacy
services at 20 CFR 463.20 which reiterates that the purpose of the
review is to ensure that the application is consistent with the local
plan. The section also advises that the review is taken into
consideration when making funding decisions. The Department of
Education advises that only appointed local WDB members who do not have
a conflict of interest as defined in sec. 107(h) of WIOA are allowed to
participate in the review of an eligible training provider application.
Boards may arrange to offer training to local WDB members by adult
education experts prior to participating in the review process. No
change to the regulatory text was made in response to these comments.
[[Page 56104]]
Ensuring Appropriate Use and Management of WIOA Funds
Comments: Under paragraph (h), a commenter asked if the State can
limit a Local WDB's authority to increase the on-the-job training
reimbursement rate if all factors required in regulation and policy are
met.
Department Response: Paragraph (h)(4)(i)(2) of Sec. 679.370
requires Local WDBs, in partnership with the chief elected official for
the local area, to ensure the appropriate use and management of funds.
Therefore, local areas should establish policies, interpretations,
guidelines, and definitions to implement provisions of title I of WIOA
to the extent that such policies, interpretations, guidelines, and
definitions are not inconsistent with WIOA and the regulations issued
under WIOA, Federal statutes and regulations governing one-stop partner
programs, and with State policies. States also should establish
policies, interpretations, guidelines, and definitions to implement
provisions of title I of WIOA to the extent that such policies,
interpretations, guidelines, and definitions are not inconsistent with
WIOA and the regulations issued under WIOA, as well as Federal statutes
and regulations governing one-stop partner programs. Local WDBs,
therefore, can set policies but those policies must not conflict with
State policy, or WIOA. No change to the regulatory text was made in
response to these comments.
Negotiation of Local Performance Indicators (Sec. 679.370(j))
Comments: Under paragraph (j), a commenter stated that the
regulations need to indicate that local areas have the final decision
regarding performance negotiations.
Department Response: WIOA sec. 107(d)(9) requires that locals
negotiate performance and Sec. 679.510(a)(1)(viii) requires an
agreement between Local WDBs and chief elected officials for how a
planning region will collectively negotiate and reach agreement with
the Governor on local levels of performance. No change to the
regulatory text was made in response to these comments.
Negotiating Methods for Funding One-Stop Infrastructure Costs (Sec.
679.370(k))
Title 20 CFR 679.370(k) requires that the Local WDB negotiate with
the CEO and required partners on the methods for funding the
infrastructure costs of one-stop centers.
Comments: Comments asked for clarification on the role of CEO.
Department Response: The CEO is not required to provide
infrastructure costs, nor is the CEO required to negotiate the
infrastructure costs, but rather the Local WDB and the CEO must agree
upon the methods that will be applied to determine the infrastructure
funding. Section 678.500 (see Joint WIOA Final Rule) describes what
must be included in the Memorandum of Understanding executed between
the Local WDB, with the agreement of the CEO, and the one-stop partners
relating to the operation of the one-stop delivery system in the local
area, and provides for additional details regarding infrastructure
costs. No change to the regulatory text was made in response to these
comments.
Selection of Youth Services, Training, and Career Services Providers
(Sec. 679.370(l))
Comments: Under paragraph (l), a couple of commenters requested
clarification that Local WDBs only can determine eligibility of
training providers for their local areas and that eligibility is
contingent on the providers being approved on the State eligible
training provider list (ETPL).
Department Response: WIOA sec. 122 and 20 CFR part 677 of the Joint
WIOA Final Rule describe the process for determining the eligibility of
training providers. Providers must be approved via the Governor's
process, however, Local WDBs may set additional criteria for providers
on the local list. No change to the regulatory text was made in
response to these comments.
Section 679.400 Who are the staff to the Local Workforce Development
Board and what is their role?
Title 20 CFR 679.400 describes the Local WDB's authority to hire
staff and the appropriate roles for Board staff as outlined in WIOA
sec. 107(f).
Comments: Commenters suggested that any prior agreements between
Local WDBs and chief elected officials regarding staffing roles and
responsibilities be recognized; that the regulations clarify that the
State agency is to take responsibility for hiring; and that the
regulations should reiterate that the hiring of a director is optional.
Department Response: WIOA sec. 107(f) describes the authority of
the Local WDB to hire a director. There is no mandate that Local WDBs
hire staff. The authority to hire staff to support the Local WDB is
granted under WIOA sec. 107(f) to the Local WDB, not the State agency.
Prior agreements are not automatically recognized. It is in the
best interest of the public workforce system to ensure the director of
the Local WDB is competent and experienced with workforce programs and
service delivery. Paragraph (b) of Sec. 679.400 requires the Local WDB
to apply objective qualifications to the Board director, paragraph (d)
limits the Local WDB staff's role to assisting the Board fulfill the
functions at WIOA sec. 107(d) unless the entity selected to staff the
Board enters into a written agreement with the Board and CEO as noted
in Sec. 679.400(e). Title 20 CFR 679.400 aligns with WIOA sec. 107(f)
and no change to the regulatory text was made in response to these
comments.
Section 679.410 Under what conditions may a Local Workforce Development
Board directly be a provider of career services, or training services,
or act as a one-stop operator?
Selection as a One-Stop Operator (Sec. 679.410(a))
Title 20 CFR 679.410 implements WIOA sec. 107(g) and explains the
situations in which the Local WDB may directly act as a one-stop
operator, a provider of career services, or training services provider.
Comments: The Department received many comments supporting the
requirement that one-stop operators be competitively procured. However,
other commenters recommended waivers or exceptions to the requirement
that one-stop operators be competitively procured. Some commenters
recommended waivers for performance, direct designation of the Local
WDB as the one-stop operator with the agreement of the CEO and
Governor, and allowing Governors to designate the selection of one-stop
operators in single-area States. Several commenters disagreed with the
Department's interpretation that WIOA sec. 107(g), which allows for the
selection of the one-stop operator with the agreement of the CEO and
Governor, is an additional requirement under WIOA sec. 121(d)(2)(A) and
not a separate path to designation.
Department Response: A more detailed discussion of this issue is
contained in 20 CFR part 678 of the Joint WIOA Final Rule. The
Department maintains the interpretation, consistent with 20 CFR 678.605
(see Joint WIOA Final Rule) and WIOA sec. 121(d)(2)(A), that the Local
WDB must select the one-stop operator through a competitive process. In
instances in which a State is conducting the competitive process, the
State must follow the same policies and procedures it uses for
procurement with non-Federal funds. State, Local, and non-Federal
entities should follow the applicable procurement guidelines in the
Uniform Guidance at 2 CFR part 200. Neither WIOA nor Sec. 679.410
[[Page 56105]]
prohibit Local WDBs from competing to become a one-stop operator if
they could do so in accordance with the Uniform Guidance. The provision
requires the competitive procurement of all one-stop operators. No
change to the regulatory text was made in response to these comments.
Career Services Provider (Sec. 679.410(b))
The Department specified in Sec. 679.410(b) that a Local WDB may
act as a provider of career services only with the agreement of the CEO
in the local area and the Governor.
Comments: Commenters requested clarification regarding the
circumstances under which a Local WDB may provide career services.
Department Response: Although WIOA sec. 107(g) requires that one-
stop operators be competitively procured, there is no similarly clear
statutory requirement for provision of career services and therefore
Local WDBs do not have to undertake a competitive process to offer
career services.
Comments: Some commenters suggested that Local WDBs only be
permitted to offer career services if the CEO and Governor agree that
there are insufficient providers of career services in an area. Another
commenter responded that many Local WDBs are currently delivering high
quality career services and should not be forced to procure them.
Department Response: The Department has interpreted WIOA sec.
107(g)(2), which states that a Local WDB may provide career services
described in WIOA sec. 134(c)(2) through a one-stop delivery system or
be designated or certified as a one-stop operator only with the
agreement of the CEO and the Governor, to mean that the Local WDB's
delivery of career services is at the discretion of the CEO and
Governor. Section 679.410(b) offers the CEO and Governor flexibility in
deciding whether to pursue a competitive award of career services.
However, the Department supports competition and maintains the opinion
that Local WDBs acting as direct providers of these services is not
optimal. No change to the regulatory text was made in response to these
comments.
Comments: Commenters also requested clarity regarding the role of
Local WDB members in delivering training and career services but
offered no suggested language changes.
Department Response: Paragraph (d) of Sec. 679.410 provides
language that extends the Local WDB limitations outlined in Sec.
679.410(c) to Local WDB staff. No change to the regulatory text was
made in response to these comments.
Training Services Provider (Sec. 679.410(c))
WIOA sec. 107(g)(B) outlines a waiver process for Local WDBs to
offer training services. Local WDBs wanting to offer training services,
such as GED, are required to apply to the Governor for a waiver and
meet the waiver restrictions outlined in WIOA sec. 107(g)(1) and Sec.
679.410(c).
Comments: Commenters asked for clarification regarding the
penalties for violating this provision.
Department Response: WIOA sec. 183 requires the Governor to monitor
all locals and lays out the course of action for any deficiencies that
are not corrected such as corrective action, sanctions, and
reorganizing the Local WDB. Entities that do not comply are subject to
appropriate administrative and fiscal actions, which may include
revocation of the waiver as described in WIOA sec. 107. No change to
the regulatory text was made in response to these comments.
Section 679.420 What are the functions of the local fiscal agent?
Comments: The Department requested comment on Sec. 679.420 which
addresses the roles of the local fiscal agent. Many commenters agreed
with the regulation as proposed while others provided recommendations
for expanding the role and suggested changes to the regulatory text to
include requiring the permissible functions in Sec. 679.420(c). Other
commenters requested additional guidance on specific concerns such as
fees, policy development, clarification on entities that may act as a
fiscal agent, and the role of the CEO. Noting that most commenters
agreed with the fiscal agent role set forth in the proposed regulatory
text, the Department made no changes to the fiscal agent functions
under Sec. 679.420.
One commenter said that that the definition of fiscal agent
conflicts with Sec. 681.400.
Department Response: The Department disagrees that the two
regulatory sections are in conflict. Paragraph (b) of Sec. 679.420
provides a list of the key functions of a fiscal agent. The appropriate
role of fiscal agent is limited to accounting and funds management
functions rather than policy or service delivery. Section 681.400
provides that the local grant recipient may directly provide youth
services. Entities serving multiple roles must adhere to WIOA title I,
subtitle E (Administration) and Sec. 679.430 to ensure appropriate
firewalls within a single entity performing multiple functions,
including when a fiscal agent also functions as a direct provider of
services. No change to the regulatory text was made in response to
these comments.
Section 679.430 How do entities performing multiple functions in a
local area demonstrate internal controls and prevent conflict of
interest?
Proposed 20 CFR 679.430 specified that a written agreement with the
Local WDB and CEO is required when a single entity operates in more
than one of the following roles: Local fiscal agent, Local WDB staff,
one-stop operator, or direct provider of career services or training
services.
Comments: Several commenters requested clarification regarding how
various entities should function in multiple roles.
Department Response: This section requires a written agreement with
the Local WDB and chief elected official when a single entity operates
in more than one of the specified roles, but does not dictate the
specific contents of the agreement, because the regulation cannot
account for each individual Local WDB situation. However, the agreement
must demonstrate how the organization will carry out its
responsibilities while in compliance with WIOA and corresponding
regulations, relevant Office of Management and Budget (OMB) circulars,
the Uniform Guidance, and the State's conflict of interest policy.
While it may be appropriate in some instances for a single organization
to fulfill multiple roles, a written agreement between the Local WDB,
chief elected official, and the organization fulfilling multiple roles
is the best method to limit conflicts of interest or the appearance of
conflicts of interest, minimize fiscal risk, and develop appropriate
firewalls within a single entity performing multiple functions. Because
the regulation must be adaptable to a variety of potential situations,
the Department has determined that no regulatory change is appropriate
in this section and no change to the regulatory text was made in
response to these comments. However, to clarify the multiple roles this
section is addressing, the regulatory text was revised to refer to
``the direct provider of services'' instead of ``the direct provider of
career and training services'' in order to include cases where the
entity may be directly providing youth services under WIOA.
[[Page 56106]]
Other Comments on Local Workforce Development Boards
Comments: A commenter expressed its support for all of the proposed
part 679, subpart C, regulations. Multiple commenters said that Local
WDBs should have more flexibility in the time allowable to become
compliant with Federal and State laws during the program year 2015-
2016.
Department Response: Regarding timelines, the Department agrees
that clarification of the expectation for the process is needed and
will add Sec. 679.500(c), which requires the Governor to establish and
disseminate a policy for the submission of local and regional plans.
Comments: One commenter asserted that the regulations are missing
the vital role of a ``system coordinator'' that is truly necessary in
complex areas like large metropolitan cities. The commenter described
three options for designating a ``system coordinator'' that it asserted
would maintain the Local WDB's authority to establish a vision for the
local workforce development system, recognize the diversity in models
for implementing WIOA, and maintain a competition to ensure the highest
quality providers are selected to operate one-stop centers. These
options were described as (1) the Local WDB taking on the role of
system coordinator (provided it competitively selected one-stop
operators per WIOA sec. 121(d)); (2) the Local WDB could, with
agreement of the CEO, designate a local public agency or non-profit
organization as the system coordinator (provided it competitively
selected one-stop operators); or (3) a single one-stop operator could
still play this role.
Department Response: WIOA does not define or otherwise reference a
role for a system coordinator. WIOA secs. 101 and 107 allow Boards to
hire staff for the purposes of assisting in carrying out the Board
required functions. The local option to create a role of a system
coordinator is already covered in the Boards' authority to hire staff.
No change to the regulatory text was made in response to these
comments.
4. Subpart D--Regional and Local Plan
Title 20 CFR 679.500 describes the purpose of the regional and
local plans; WIOA provides designated regions and local workforce areas
the responsibility and opportunity to develop employment and training
systems tailored specifically to regional economies. These systems must
meet the needs of the full range of learners and workers, including
those with barriers to employment. The system must also address the
specific needs of regional employers and the skills they require.
WIOA requires the Local WDB, in partnership with the CEO, to submit
a local plan to the Governor. If the local area is part of a planning
region, the Local WDB will submit its local plan as part of the
regional plan and will not submit a separate local plan. The local or
regional plan provides the framework for local areas to define how
their workforce development systems will achieve the purposes of WIOA.
The regional or local plans serve as 4-year action plans to develop,
align, and integrate the region and local area's job driven workforce
development systems, and provides the platform to achieve the local
area's visions and strategic and operational goals. Since the local
plan is only as effective as the partnerships that operationalize it,
it must represent a collaborative process among local elected
officials, boards, and required and other partners (including economic
development, education, and private sector partners) to create a shared
understanding of the local area's workforce investment needs, a shared
vision of how the workforce development system can be designed to meet
those needs, and agreement on the key strategies to realize this
vision. The Department received comments on the purpose, the content,
and the structure of regional and local plans. In this subpart the
Department addresses comments regarding how regions can be aligned.
Section 679.500 What is the purpose of the regional and local plan?
WIOA sec. 106(c) addresses regional coordination and regional plans
are addressed in WIOA sec. 106(c)(2). In accordance with WIOA sec.
106(c), Sec. 679.500 describes the purpose of the regional and local
plans.
Comments: Commenters provided feedback for the content of the
regional plan, expressed concern about the challenges of coordination,
requested additional guidance on plan development, and asked for
clarity regarding plan development and submission.
Department Response: The Department has issued some guidance on
planning and anticipates issuing additional guidance on planning to the
public workforce system. Regarding timelines, the Department agrees
that clarification of the expectation for the process is needed and has
added Sec. 679.500(c), which requires the Governor to establish and
disseminate a policy for the submission of local and regional plans.
Section 679.510 What are the requirements for regional planning?
Participation in a Regional Planning Process (Sec. 679.510(a)(1))
WIOA sec. 106(c) governs regional coordination and regional
planning requirements, which are clarified in Sec. 679.510.
Comments: A commenter asked which local area within a region would
be responsible for the performance negotiation process.
Department Response: The representatives of each local area in the
region are collectively responsible for the process. Establishing an
agreement among the Local WDBs and local CEOs in the region concerning
how the planning region will collectively negotiate and reach agreement
with the Governor on local levels of performance for, and report on,
the performance accountability measures is required by WIOA sec.
116(c)(1)(H) and Sec. 679.510(a)(1)(viii). No change to the regulatory
text was made in response to these comments.
Preparation, Submittal, and Approval of Regional Plans (Sec.
679.510(a)(2))
Comments: Commenters have suggested that a single local area could
elect to participate in multiple planning regions through a memorandum
of agreement.
Department Response: In accordance with WIOA sec. 106, a single
local area may not be split across two planning regions. Local areas
must align with planning regions to align economic and workforce
development activities and resources effectively. Local areas may be
part of only one region. However, local areas are not prohibited from
working or coordinating with other local areas, and regions may
coordinate with other planning regions. Similarly, where a single local
area is identified as a region, such a local area could reasonably
coordinate with other local areas or planning regions. Coordination may
be especially vital across States; the Department anticipates providing
additional guidance regarding the creation and management of interstate
planning regions. As the regulation aligns with WIOA and does not
prohibit coordination, no change to the regulatory text was made in
response to these comments.
Comments: A commenter asked how the plans are to be submitted.
Department Response: The plans must be submitted to the Governor as
outlined in Sec. 679.510(a)(2) and any guidance issued by the
Department (Sec. 679.510(a)(1)(i)).
[[Page 56107]]
Other Requirements for Regional Planning (Sec. 679.510(b), (c), and
(d))
Comments: Commenters suggested specific content for the regional
plan including how the region coordinates core program services,
economic development strategies, education attainment, credentialing of
workforce skills to meet employer skill needs, and data regarding
participants with disabilities.
Department Response: WIOA sec. 106(c)(2) and Sec. 679.510 describe
the requirements for regional planning, which already address the
region's service strategies, regional labor market data, coordination
efforts, etc. The Department plans to issue further guidance.
Section 679.520 What are the requirements for approval of a regional
plan?
Section 679.520 describes the regional plan approval process.
Comments: The Department received comments regarding the timelines,
including suggestions that the timeline for approval in Sec. 679.520
of ``90 days after submission'' is inconsistent with WIOA sec. 108(e),
which says the plan ``shall be considered to be approved by the
Governor at the end of the 90-day period beginning on the day the
Governor receives the plan.''
Department Response: The Department agrees that 90-day period
should be revised to track WIOA and has amended both Sec. Sec. 679.520
and 679.570 to reflect the statutory language of 90 days after receipt
of the local plan.
Section 679.530 When must the regional plan be modified?
Title 20 CFR 679.530 describes when a regional plan must be
modified and Sec. 679.580 requires the Governor to establish
procedures governing local plan review and modification to ensure that
the biennial review and modification of local plans is conducted
consistently throughout the State. The circumstances identified in
Sec. 679.530(b)(1) and (2) identify the significant changes that
require modification but the Governor may require other factors. While
sec. 106(c) of WIOA clearly describes the required contents of the
regional plan, it provides less detail about the approval and
modification process, saying only that officials in the planning region
must ``prepare, submit, and obtain approval'' of the plan.
Comments: Commenters requested that the language in this section
and of Sec. 679.580 be narrowed to specify that modifications are
required only in response to ``changes to local economic conditions,
and any changes in the financing available'' to allow regions more
flexibility.
Department Response: Because the local plan is a component of the
regional plan, the Department decided to apply the approval and
modification requirements to the regional plan, which are reflected in
Sec. 679.530(b)(2), and which require modification based on ``other
factors affecting the implementation of the local plan, including but
not limited to changes in the financing available to support WIOA title
I and partner-provided WIOA services.'' In the Department's view,
ensuring that regional and local plans remain up-to-date and relevant,
and ensuring consistency between regional and local plan requirements,
will improve the effectiveness of the public workforce system. No
change to the regulatory text was made in response to these comments.
Section 679.540 How are local planning requirements reflected in a
regional plan?
Title 20 CFR 679.540 outlines how local planning requirements are
reflected in a regional plan. WIOA is silent on the coordination of the
regional and local plan, noting only that the regional plan must
``incorporate local plans for each of the local areas in the planning
region.'' The Department has determined that the most appropriate and
least burdensome approach to implementing this provision is to include
a copy of each local plan within the regional plan to accompany the
plan's discussion of regional strategies. In this arrangement, the
regional plan is completed in cooperation with the Local WDBs and CEOs
in a planning region, per Sec. 679.510(a). Each individual Local WDB
and CEO will respond to the local planning requirements at Sec.
679.560(b) through (e) individually. The Local WDBs and CEOs in a
planning region must cooperate to develop a common response to the
local planning requirements that discuss regional labor market
information, as required by Sec. 679.540(a), and any other appropriate
requirements permitted by the Governor per Sec. 679.540(b). When these
activities are completed, the planning region submits one regional plan
to the Governor that includes the common discussion of regional labor
market information and other requirements as required by the Governor,
as well as each local plan in a single document.
Comments: A commenter asked the Department to clarify if regions
had to submit all of the separate local plans that are encompassed in
the regional plan.
Department Response: WIOA sec. 106(c)(2) requires the regional plan
to incorporate local plans for each of the local areas in the planning
region. As described above, the Department has determined that the most
appropriate and least burdensome approach to implementing this
provision is to include a copy of each local plan within the regional
plan to accompany the plan's discussion of regional strategies. No
change to the regulatory text was made in response to these comments.
Section 679.550 What are the requirements for the development of the
local plan?
Title 20 CFR 679.550 explains the requirements for the development
of the local plan. This section emphasizes the importance of
collaboration and transparency in the development and submission of the
local plan and subsequent modifications.
Comments: A commenter requested clarification regarding when it was
necessary for a local area to submit a local plan.
Department Response: Paragraph (a) of Sec. 679.550 implements sec.
108(a) of WIOA and describes the general requirements for the
preparation and content of the local plan. If the local area is part of
a planning region, the Local WDB must comply with WIOA sec. 106(c) and
Sec. Sec. 679.510 through 679.540 in the preparation and submission of
a regional plan. The local plan is considered submitted when it is
incorporated in the regional plan.
Comments: Other commenters asked if the terms plan, the local plan,
or the local workforce investment plan are synonymous and recommended
consistency be used throughout the regulation.
Department Response: The Department used all terms to refer to the
local plan required in WIOA sec. 108 and refers to the local plan in
the regulations.
Section 679.560 What are the contents of the local plan?
Contents of a Local Plan
Title 20 CFR 679.560 is consistent with sec. 108(b) of WIOA and
outlines the information that must be included in the local plan. These
requirements set the foundation for WIOA principles, by fostering
strategic alignment, improving service integration, and ensuring that
the public workforce system is industry-relevant, responding to the
economic needs of the local area and matching employers with skilled
workers.
[[Page 56108]]
Comments: The Department received comments supporting the proposed
section, and some recommending changes to the content of the local
plan, as well as comments requesting additional guidance.
Department Response: The Department has determined it is
appropriate for Sec. 679.560 to track closely with WIOA sec. 108(b),
which outlines the content requirements of the local plan. No changes
were made to the regulatory text in response to these comments. The
Department recognizes the need for technical assistance in developing
local plans and will issue guidance for State and Local WDBs to assist
in developing compliant plans.
Local Levels of Performance
Title 20 CFR 679.560(b)(4) explains that the Local WDB must
describe how it will coordinate local workforce investment activities
with regional economic development activities that are carried out in
the local area and promote entrepreneurial skills training and
microenterprise services.
Comments: Commenters requested additional information on
performance criteria for the ETPL and ``microenterprise development.''
Department Response: Alignment between the public workforce system
and local economic development activities is critical in order to
identify and fulfill industry talent needs by training customers for
emerging and in demand job skills. Furthermore, microenterprise
development refers to training for the purposes of self-employment.
This training strategy may be appropriate for individuals or
participants with multiple barriers to employment, including persons
with disabilities.
Title 20 CFR 679.560(b)(5) focuses on the delivery of services
through the one-stop delivery system in the local area and requires
descriptions regarding how the Local WDB will ensure the continuous
improvement of eligible providers of services--see part 680, subpart D,
for additional information on the requirements of the eligible training
provider list.
Comments: Other commenters suggested that regulations detail the
timeline for performance negotiations related to local plan submission.
Department Response: The Department agrees that clarification is
needed and has added Sec. 679.500(c), which requires the Governor to
establish and disseminate a policy for the submission of local, and
regional plans. This policy must account for the requirement that local
areas in a region reach agreement on how they will negotiate
performance indicators with the Governor, as provided in Sec.
679.510(a)(1)(viii).
Priority of Service (Sec. 679.560(b)(21))
Comments: Commenters requested additional clarification on the
implementation of priority of service, and recommended methods to
ensure consistent implementation.
Department Response: Title 20 CFR 679.560(b)(21) requires that the
plan include description of the process by which priority of service
must be applied by the one-stop operator, but also clarifies that such
priority is for adult career and training services and must be given to
recipients of public assistance, other low-income individuals, and
individuals who are basic skills deficient. Including the priority
service policy in the local plan will help ensure a more uniform
application of the policy throughout the local area. The Department has
issued some guidance on planning and anticipates issuing additional
guidance for State and Local WDBs to assist in developing compliant
plans; no change to the regulatory text was made in response to these
comments.
Comments: A commenter suggested that the WIOA system should provide
program participants with access to curriculum-aligned industry-
recognized certificates verifying attainment of the critical skills
that employers are looking for, so that when opportunities open up, the
match between job seeker and employment can be accelerated and career
pathways can be illuminated.
Department Response: Title 20 CFR 679.560(b)(2) requires that the
Local WDB describe how such alignment will improve access to services
and to activities that lead to a recognized postsecondary credential.
The Local WDBs have the flexibility to consider many options; the
Department declines to require a specific approach. However, the
Department recognizes the need for technical assistance in developing
local plans and will issue planning guidance for State and Local WDBs
to assist in developing compliant plans. No change to the regulatory
text was made in response to these comments.
Other Comments on Local Plans
Comments: A commenter suggested deleting Sec. 679.560(b)(17)
regarding becoming or remaining a high-performing Board.
Department Response: The Department has determined that the
requirement is consistent with WIOA sec. 108(b)(18) and has made no
changes to the regulatory text in response to this comment.
Comments: The Department received several comments regarding Sec.
679.560(b)(20) regarding the requirement that a local plan include a
description of how one-stop centers are implementing and transitioning
to an integrated, technology-enabled intake and case management
information system for programs carried out under WIOA and by one-stop
operators. Commenters had specific questions regarding how such a
system is to be implemented.
Department Response: Paragraph (b)(20) of Sec. 679.560 reflects
WIOA sec. 108(b)(21). There is a requirement that the plan detail the
actions that will be taken but there is no mandate in this section of a
particular approach. No change to the regulatory text was made in
response to these comments.
Section 679.570 What are the requirements for approval of a local plan?
Overarching Comments on the Approval of a Local Plan Timeline for
Approval and Implementation
The Department recognizes that the development of the local plan is
dependent on several other essential State and local WIOA
implementation activities and that local areas may not be able to
respond fully to each of the required elements of the local plan in the
timeframe provided. The Department sought comment on the scope of the
challenges local areas may face regarding regional and local planning
and potential actions that the Department can take to help local areas
address these challenges.
Comments: Several commenters requested that the amount of time be
extended for both existing local plans that are already compliant with
the initial designation criteria and local plans for new areas or
regions. Commenters suggested that local plans be due 6 to 9 months
after the State Plans are approved. Many commenters expressed concerns
about the timeline in developing and submitting all plans. Several
suggested timelines that should be regulated. Other commenters
suggested that regulations detail the timeline for performance
negotiations related to plan submission.
Department Response: Title 20 CFR 679.570 implements WIOA sec.
108(e). Paragraph (a) of Sec. 679.570 requires that the Governor
review completed plans and stipulates that unless the Governor
determines that the plan is deficient according to paragraphs (a)(1)
through (3), the plan will be considered approved 90 days after the
Governor receives the plan. The Department made a clarifying edit to
paragraph (a) so that
[[Page 56109]]
it is clear the 90-day time period begins when the Governor receives
the plan, rather than at submission. The Department also edited
paragraph (a)(2) to update the citation to the regulation that
implements WIOA sec. 188. Regarding timelines, the Department agrees
that clarification of the expectation for the process is needed and, as
described above, has added paragraph (c) to Sec. 679.500, which
requires the Governor to establish and disseminate a policy for the
submission of local and regional plans.
With Training and Employment Guidance Letter No. 14-15, ``Workforce
Innovation and Opportunity Act (WIOA) Requirements for Unified and
Combined State Plans,'' dated March 4, 2016, and the WIOA State Plan
ICR, published under OMB control number 1205-0522, the Department
issued guidance on and requirements for Unified and Combined State
Plans. The Department also intends to issue guidance or technical
assistance on local and regional planning. Section 679.570 aligns with
WIOA sec. 108, and the changes described above address the commenters'
concerns. No additional change to the regulatory text was made in
response to these comments.
Paragraph (b) of Sec. 679.570 outlines the processes, roles, and
responsibilities in the local plan process for situations in which the
State is a single local area. Paragraph (b)(1) clarifies the State must
incorporate the local plan in the State's Unified or Combined State
Plan submitted to the Department. Paragraph (b)(2) states that the
Secretary of Labor will perform the roles assigned to the Governor as
they relate to local planning activities and Sec. 679.570(b)(3)
indicates the Secretary of Labor will issue planning guidance for
single-area States.
Comments: Commenters asked why the Secretary of Labor would be
performing the Governor's role, what those planning activities are, and
if the Secretary of Labor should be limited to approving local plans.
Department Response: Single-area States are required to submit the
plan to the Secretary of Labor under WIOA sec. 108. The Secretary will
perform the Governor's role in local planning as outlined in WIOA sec.
108(a) and (e) regarding plan submission and approval. Section 679.570
aligns with WIOA sec. 108 and the Final Rule makes no change to Sec.
679.570(b) in response to these comments.
Section 679.580 When must the local plan be modified?
Title 20 CFR 679.580 is consistent with WIOA sec. 108(a), which
requires the Governor to establish procedures governing local plan
review and modification to ensure that the biennial review and
modification of local plans is conducted consistently throughout the
State. Paragraph (b) of Sec. 679.580 explains that the Local WDB and
appropriate CEOs must review the local plan every 2 years and submit a
modification as needed, based on significant changes in labor market
and economic conditions and other factors including changes to local
economic conditions, changes in the financing available to support WIOA
title I and partner-provided WIOA services, changes to the Local WDB
structure, or a need to revise strategies to meet performance goals.
Comments: A commenter recommended that modifications be limited to
only substantive changes or as required by the State WDB. Other
commenters requested guidance that included examples of changes
warranting a local plan modification.
Department Response: As outlined in Sec. 679.580, the Governor is
required to establish procedures governing local plan review and
modification. The Governor has the flexibility to further define the
criteria under Sec. 679.580(b) that require a modification to the
local plan. The Department does not agree that additional language is
needed to require additional modification requirements. Moreover, as
described in the discussion of regional plan modification in Sec.
679.530, in the Department's view, ensuring that local and regional
plans remain up-to-date and relevant, and ensuring consistency between
local and regional plan requirements, will improve the effectiveness of
the public workforce system. The Department declines to change the
modification requirements and has made no changes to the regulatory
text in response to these comments.
5. Subpart E--Waivers/WorkFlex (Workforce Flexibility Plan)
This subpart describes the statutory and regulatory waiver
authority provided by WIOA sec. 189(i), and the requirements for
submitting a Workforce Flexibility Plan under WIOA sec. 190. The
Department addresses comments regarding the purpose of the waiver
authority in WIOA, and the circumstances under which a waiver may
apply.
WIOA provides States the flexibility to request a waiver of program
requirements in order to implement new strategic goals for the
improvement of the statewide workforce development system and to
provide better customer service in exchange for accountability for
expected programmatic outcomes. A Workforce Flexibility plan provides
additional flexibility to the State. In general, a State with an
approved Workforce Flexibility plan is given the authority to identify
local level provisions to waive without further approval from the
Secretary of Labor to achieve outcomes specified in the plan. A
description of what provisions of WIOA and the Wagner-Peyser Act may
and may not be waived is included, along with an explanation of the
procedures for requesting a waiver. The subpart also describes what may
and may not be waived under a Workforce Flexibility Plan, and the
procedures for obtaining approval of a plan. The WIOA requirements for
obtaining approval for a waiver or Workforce Flexibility Plan are
similar to those in WIA secs. 189(i) and 192, respectively; therefore,
many of the proposed regulations are the same as the regulations
implementing WIA. No changes have been made to regulatory text in
response to these comments.
Section 679.610 What provisions of the Workforce Innovation and
Opportunity Act and the Wagner-Peyser Act may be waived, and what
provisions may not be waived?
WIOA sec. 189(i)(3)(A)(i) establishes the limitations of the
Secretary's general waiver authority for WIOA title I, subtitles A, B,
and E. As described in the regulation, the Secretary is statutorily
prohibited from waiving any provisions related to the following:
Wage and labor standards;
Non-displacement protections;
Worker rights;
Participation and protection of workers and participants;
Grievance procedures and judicial review;
Nondiscrimination;
Allocation of funds to local areas;
Eligibility of providers or participants;
The establishment and functions of local areas and Local WDBs;
Procedures for review and approval of State and local plans;
The funding of infrastructure costs for one-stop centers; and
Other requirements relating to the basic purposes of title I
of WIOA described in Sec. 675.100 of this chapter.
Comments: A commenter suggested that the Department consider
waivers of some of these provisions to the extent that they enhance
wage and labor standards and non-displacement protections.
Department Response: The Department does not have the authority to
approve waivers that are prohibited
[[Page 56110]]
by statute and no change to the regulatory text was made in response to
this comment.
Section 679.620 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under the Workforce Innovation and Opportunity Act?
Title 20 CFR 679.620(a) through (f) implements WIOA sec. 189(i)(3)
and describes the conditions under which a Governor may request, and
the Secretary may approve a waiver of statutory or regulatory
requirements. Title 20 CFR 679.620(a) explains that the Secretary will
issue guidelines on waiving WIOA and Wagner-Peyser requirements. States
will be required to follow the Secretary's guidelines, which supplement
the requirements listed in 20 CFR 679.600 through 679.620.
Comments: A commenter asked for more clarification regarding what
the most recent data are that would be required to grant a waiver
renewal, as required by proposed Sec. 679.620(d)(7).
Department Response: In general, the Department has not required
specific data sources when requesting a waiver under WIA or WIOA. The
Governor has the discretion to use the data source or sources that most
effectively demonstrates the need and/or benefit of the requested
waiver. The Department has made no changes to the regulatory text in
response to this comment.
Comments: A commenter asked if existing WIA waivers that are
approved to run past 2015 will be applicable under WIOA, and suggested
that they remain in effect through the original period for which they
were approved. With regard to the WIOA transition period, one commenter
supported the current continuation of waivers as granted. Other
commenters recommended the continuation of existing waivers until the
WIOA State Plan is approved. Regarding States with existing WIA
waivers, one commenter recommended that the Department allow such
States to keep this flexibility until either the Federal government
provides additional time or resources necessary for implementation of
WIOA's new requirements, or the States provide evidence that they are
prepared to implement the additional requirements.
Department Response: The Department issued TEGL No. 01-15
(``Guidance Regarding the Impact of Workforce Innovation and
Opportunity Act Implementation on Waivers Under the Workforce
Investment Act''), which addresses the status of waivers during program
year 2015 and communicates the Department's position on waivers under
WIOA. This guidance includes an attachment that discusses whether each
waiver type will be continued into WIOA, as well as those that expired
effective July 1, 2015. No change to the regulatory text was made in
response to these comments.
Section 679.630 Under what conditions may the Governor submit a
Workforce Flexibility Plan?
Comments: One commenter expressed support for the language in this
section that prohibits the waiver of certain requirements related to
labor standards and worker protections.
Department Response: WIOA sec. 189(i)(3)(A)(i) and (ii) describe
the statutory limitations to the Secretary's WIOA title I and Wagner-
Peyser waiver authority. These prohibitions include any statutory
provisions related to labor standards or worker rights. No change to
the regulatory text was made in response to this comment.
Other Comments on Waivers/Work-Flex
Comments: One commenter expressed support for the proposed language
in part 679 subpart E regarding waivers and Work-Flex.
To assist employers and job seekers best, one commenter requested
that the Department offer waivers whenever possible. A State agency
suggested that the Department add waiver provisions to the Final Rule
regarding the application for continued eligibility of ETPs and to the
internal control policy requirement provided that a written agreement
pursuant to proposed Sec. 679.430 is in place.
Department Response: Specific waiver requests must be requested
through the waiver process. The Department declines to make changes to
identify specific waivers in the regulatory text.
6. Other Comments on Statewide and Local WIOA Governance
Comments: With regard to the alignment of title I and title II
services to improve services for immigrant and LEP individuals,
multiple commenters recommended that the Department provide additional
guidance to States and localities (whether through regulations or
policy directive) that allows for differing eligibility criteria across
the titles and encourages States and localities to align services
without precluding participation by individuals who may be eligible for
services under one title but not another. Another commenter stressed
the importance of aiding immigrant and refugee communities and asked
that the Department include reference to the need for expertise in
serving linguistically and culturally diverse populations in its
discussion of part 679.
One commenter expressed its concern about the challenge of meeting
all WIOA requirements by July 1, 2015, particularly considering the
late issuance of the WIOA regulations.
Department Response: While the Department acknowledges the need to
be sensitive to the employment and training needs of immigrant and LEP
individuals, WIOA sec. 189(i)(3)(A)(i) prohibits the Department from
waiving or otherwise altering eligibility criteria. No change to the
regulatory text was made in response to these comments.
The Department acknowledges the challenges inherent in implementing
WIOA in the absence of a Final Rule. The Department issued Operating
Guidance documents to inform the public workforce system how to comply
with WIOA statutory requirements. The Operating Guidance provided a
framework for program activities while regulations were finalized.
Comments: Explaining that its local areas have utilized funding to
serve customers in their jurisdiction only, one commenter asked whether
the State can set policy to allow a broader use of funds under WIOA. In
addition, this commenter asked whether, if State agencies grant adult
education programs to local areas, the infrastructure costs should come
from the local vendor or the State.
Department Response: States have authority to set policy that is
consistent with WIOA. The Department has determined that the State is
in the best position to develop policy regarding allocating scarce
Federal funds; the Department has not made changes to the regulatory
text in response to this comment. Further, all funds must expended in
accordance with the Uniform Guidance regulations and WIOA subtitle E
(Administration). TEGL No. 15-14 (``Implementation of the New Uniform
Guidance Regulations'') provides additional information on implementing
the Uniform Guidance.
Comments: One commenter suggested that Local WDBs should remain
responsible for operation of local/regional workforce programs
representing business sectors in their communities and that it is a
conflict of interest for State governments to receive funding, develop
and operate programs, and monitor and evaluate programs. This commenter
asserted that State-operated workforce programs are primarily budget-
driven, rather than customer-driven, with primarily digital service
structures that leave individuals
[[Page 56111]]
in rural communities lacking internet, transportation, and skills
without access to services.
Department Response: Section 679.100 implements WIOA sec. 101 and
outlines the vision and purpose of the State WDB. Section 679.130
implements WIOA sec. 101(d) and describes the roles and functions of
the State WDB. The State WDB's purpose, as outlined in WIOA sec. 101
and Sec. 679.100, is to convene State, regional, and local workforce
system, and partners to align and improve the outcomes and
effectiveness of Federally funded and other workforce programs and
investments. Section 679.300 implements WIOA sec. 107 and explains the
purpose of the Local WDB. In accordance with the functions of the Local
WDB outlined in WIOA sec. 107(d), Sec. 679.300(b)(1) includes the
function of providing strategic and operational oversight in
collaboration with required and other partners to help the workforce
development system achieve the purposes outlined in WIOA sec. 2, and
assist in the achievement of the State's strategic and operational
vision and goals outlined in the State Plan. Paragraphs (b)(2) and (3)
of Sec. 679.300 require the Local WDB to assist in the achievement of
the State's strategic and operational vision and goals as outlined in
the Unified State Plan or Combined State Plan, and to maximize and
continue to improve the quality of services, customer satisfaction, and
effectiveness of the services provided.
D. Part 680--Adult and Dislocated Worker Activities Under Title I of
the Workforce Innovation and Opportunity Act
1. Introduction
In this part of the Final Rule, the Department describes
requirements relating to the services that are available for adults and
dislocated workers under WIOA. Adult services are provided to help job
seekers who are at least 18 years old succeed in the labor market. WIOA
establishes a priority in the adult program for serving low-income
individuals, recipients of public assistance, and individuals lacking
basic work skills. Dislocated worker services are provided to workers
who have lost their job, through no fault of their own. The goal of
dislocated workers services is to help these individuals obtain quality
employment in in-demand industries.
Under WIOA, adults and dislocated workers may access career
services and training services. WIOA provides for a public workforce
system that is universally accessible, customer centered, and training
that is job-driven. In this part, the Department also discusses
supportive services and needs-related payments that can be provided,
based on customer needs, to enable them to participate in WIOA career
and training services.
The Department generally received comments that were supportive
about the delivery of career and training services. It also received
comments about the implementation of the statutory priority for the
WIOA adult program, and how various populations, including individuals
with disabilities, are able to access WIOA title I adult and dislocated
worker services, which the Department has sought to clarify. In
addition, the Department received comments about some of the new work-
based experience and training opportunities under WIOA, including how
registered apprenticeship can be utilized by the one-stop delivery
system, and clarifications on transitional jobs, on-the-job training,
and incumbent worker training. These comments are discussed below, in
the sections corresponding to subparts A-D and F-G. The Department also
received a number of comments on the Eligible Training Provider (ETP)
eligibility requirements, which are discussed below under subpart D.
For the comments received that pertain to the WIOA sec. 116(d)(4) ETP
annual performance reports, those comments are discussed in the
preamble discussion accompanying 20 CFR 677.230 (see Joint WIOA Final
Rule published elsewhere in this issue of the Federal Register).
The analyses that follows provides the Department's response to
public comments received on the proposed part 680 regulations. If a
section is not addressed in the discussion below, it is because the
public comments submitted in response to the NPRM did not substantively
address that specific section and no changes have been made to the
regulatory text. Further, the Department received a number of comments
on this part that were outside the scope of the regulation and the
Department offers no response. Lastly, the Department has made a number
of non-substantive changes to correct grammatical and typographical
errors to improve the readability and conform the document
stylistically that are not discussed in the analysis below.
2. Subpart A--Delivery of Adult and Dislocated Worker Activities
Introduction
This subpart discusses the role of WIOA adult and dislocated worker
services delivered through the one-stop delivery system. The one-stop
delivery system provides universal access to career services to meet
the diverse needs of adults and dislocated workers. Adult and
dislocated worker programs are required partners in the one-stop
delivery system and as such, grant recipients are subject to the
required partner responsibilities set forth in 20 CFR 678.415 (see
Joint WIOA Final Rule).
Career and training services, tailored to the individual needs of
job seekers, form the backbone of the one-stop delivery system. While
some job seekers may only need self-service or other basic career
services like job listings, labor market information, labor exchange
services or information about other services, some job seekers will
need services that are more comprehensive and tailored to their
individual career needs. These services may include comprehensive
skills assessments, career planning, and development of an individual
employment plan that outlines the needs and goal of successful
employment. Under WIA, career services were identified as core and
intensive services and participants generally would follow through each
level of service to receive training eventually. WIOA provides an
individual receiving services in one-stop centers the opportunity to
receive the service needed to help him/her meet his/her employment and
career goals. WIOA clarifies that an individual does not need to follow
a fixed sequence of services that may not be necessary to meet his or
her needs.
Under WIOA, the Department classifies career services into two
categories: Basic and individualized career services. This grouping is
not designed to create barriers to training, but rather identifies the
importance that these two types of career services can have in helping
individuals obtain employment. Basic career services must be made
available to all job seekers and include services such as labor
exchange services, labor market information, job listings, and
information on partner programs. Individualized career services
identified in WIOA and described in these proposed regulations are to
be provided by local areas as appropriate to help individuals to obtain
or retain employment. Career and training
[[Page 56112]]
services are more fully discussed in subparts A and B of this part.
Section 680.100 What is the role of the adult and dislocated worker
programs in the one-stop delivery system?
Comments: A commenter expressed support for Sec. 680.100 as
proposed. In contrast, another commented that CEOs should not be
considered one-stop partners. The commenter stated that CEOs are
involved in the governance and oversight of the one-stop delivery
system through the Board members that they appoint and so neither CEOs
nor Board members should be involved in the operation of a one-stop
delivery system.
Department Response: WIOA sec. 107 states that the CEO for the
local area is the local grant recipient. WIOA sec. 107(c) provides for
how CEOs are to be determined in the event that there are multiple
units of local government in a workforce area. As the grant recipient
for the adult and dislocated worker programs, the CEO or his/her
designee is a required one-stop partner in the governance and delivery
of services in the one-stop delivery system consistent with sec.
121(b)(1) of WIOA and 20 CFR part 678 (see Joint WIOA Final Rule). No
changes have been made to the regulatory text in response to the
comments.
Section 680.110 When must adults and dislocated workers be registered
and considered a participant?
Comments: A one-stop center requested clarification on how
registration can occur through an electronic submission. Specifically,
this commenter asked whether eligibility can be determined based solely
on an electronic submission. The commenter also requested clarification
of the language in the preamble explaining that ``minimal'' assistance
would trigger the need to register.
Department Response: State and local areas have the discretion to
determine appropriate intake methods, which may include electronic and
virtual means. Additionally, a service being provided to an individual
electronically or virtually can be sufficient for the individual to be
considered a ``participant,'' provided it meets the standards of the
definition provided at 20 CFR 677.150(a) (see Joint WIOA Final Rule).
Comments: A few commenters agreed with the way in which the NPRM
described participation for adult and dislocated worker involvement
with WIOA services. Specifically, several commenter suggested that
self-service and information service should be included as
participation for the purposes of registering a person to measure
performance.
In contrast, several commenters disagreed with the proposed
approach to describing participant or participation. A few commenters
said that ``participant'' was described too narrowly, cautioning that
the NPRM could lead to denial of services for individuals in need of
assistance. Some commenters recommended revisions to Sec. 680.110(a)
to describe a ``participant'' by referencing 20 CFR 677.150 rather than
limiting it to those individuals who receive staff-assisted services
(see Joint WIOA Final Rule). One commenter expressed support for this
revision, explaining that removal of minimally assisted customers from
metrics would potentially reduce investments in resource rooms, a self-
service facility that provides job seekers internet-based job search
opportunities that are required by today's employer.
Additionally, several commenters recommended revisions to Sec.
680.110(b) to allow for the provision of WIOA services to individuals
who are not participants. In contrast, one commenter recommended that
paragraph (b) more broadly define those individuals who are not
required to register and be designated as participants to include
individuals receiving referral services.
Another commenter requested clarification on the distinction
between a ``staff assisted WIOA service'' and ``self service and
informational activities.'' This commenter stated that WIA regulations
with similar language had caused analogous confusion. A one-stop center
asked whether a basic workshop would be considered ``informational
services'' or a career service for purposes of performance
accountability. A commenter asked if there was a distinction between
basic and individual career services as it relates to participation.
Noting that the NPRM explicitly specifies the activities that will not
count towards participation but does not specify the activities that
will count, a commenter asked whether it is up to the State to
determine which career services will place the individual into
participation or performance calculations. Expressing confusion over
the meaning of participant, a commenter requested a definition of
participant, including a clear indication of whether registration or
utilization of services was necessary to be considered a participant,
and asked the Department to identify the term for clients that are not
registered and not participants.
Several commenters stated that clarification is needed on where and
when assessments and information collection efforts relevant to
identify self-service individuals, reportable individuals, and
participants will occur. Some commenters recommended that the
Department provide a framework for how the designation of enrollment
intertwines with career and training services, allowing maximum
flexibility for States to design their approaches for both in-person
and online services. In contrast, a commenter encouraged the Department
to create a clear system that ensures a consistent approach across the
States. Similarly, another commenter encouraged the Department to
provide more details on the level/type of information required to be
collected by individual and by required program titles to ensure data
system integrity for reporting purposes.
A commenter encouraged the Department to require enrollment in WIOA
title I programs to occur when an individual employment plan (IEP) is
developed. A commenter recommended the point at which funds must be
dedicated to the client for their employment or training needs as the
appropriate trigger for enrollment.
Department Response: The Department made some non-substantive
changes to align the definition of performance with 20 CFR
677.150(a)(3) (see Joint WIOA Final Rule). It also changed the text of
Sec. 680.110(a) to clarify when an individual is considered a
``participant.'' The Department is providing additional clarity in
guidance on what services count as self-services or information-only
services and activities. Further guidance may be provided to explain
which services cause an individual to be considered a ``participant.''
The distinction between reportable individual and participant is
used for the purposes of reporting on performance, and does not have
any impact on eligibility or service provision. Further information on
performance is discussed in 20 CFR part 677 (see Joint WIOA Final Rule
published in this issue of the Federal Register), and information on
the collection and data systems is being provided through the
Department's ICRs and guidance.
The Department notes that while an IEP will cause an individual to
be considered a participant, there are other ways to qualify for
participation because there is no sequence of services requirement in
WIOA. An IEP is an individualized career service and can be provided
under either title I of WIOA or under the Wagner-Peyser Act Employment
Service (ES) (as amended by title III of WIOA). Individualized
[[Page 56113]]
career services (of which an IEP is one) may be provided with Wagner-
Peyser Act funds.
Comments: A few commenters recommended that Sec. 680.110(c) be
revised to require the collection of data from only those individuals
actually receiving aid, benefits, services, or training.
Department Response: The Department made a technical correction at
Sec. 680.110(c), changing ``Employment Opportunity'' data to ``EO''
data because that is the data referred to in this section as defined in
20 CFR 675.300. The collection of Equal Opportunity (EO) data on every
individual who is interested in being considered for WIOA title I
financially assisted aid, benefits, services, or training is necessary
to ensure compliance with WIOA sec. 188. The regulations governing WIOA
sec. 188 can be found at 29 CFR part 38.
The point at which an individual has indicated ``interest'' in WIOA
title I services is within the grant recipient's discretion; however,
the recipient's request for and receipt of information triggers the
accompanying responsibility to collect EO data at the same time. The EO
data must be maintained in a manner that allows the individuals from
whom the data was collected to be identified, and that ensures
confidentiality. This responsibility is separate from, and might not
arise at the same point in the process as, the registration
responsibility.
Section 680.120 What are the eligibility criteria for career services
for adults in the adult and dislocated worker programs?
Comments: A commenter stated that there is a discrepancy between
the preamble and the proposed regulation creating confusion whether
individuals who are basic skills deficient also have to be low-income.
Similarly, a few commenters stated that priority should be given to
low-income adults and public assistance recipients and individuals who
are basic skills deficient, in accordance with WIOA sec. 134(c)(3)(E).
One commenter recommended that priority should also be given to adults
who lack a regionally accredited secondary education diploma or high
school equivalent (HSE).
A commenter stated that the change from core and intensive services
to career services as in proposed Sec. 680.120 would place a burden on
States and local areas to revise policy and procedures. This commenter
also requested that the Department define ``basic career services'' and
``individualized career services'' and describe when participants get
placed into training.
Department Response: WIOA sec. 134(c)(3)(E) provides a statutory
priority for public assistance recipients, other low-income
individuals, and individuals who are basic skills deficient. The
priority for these populations is not a criterion for eligibility for
services under this program; rather, it is a statutory emphasis on
providing individualized career services and training services to these
populations under this program. The Department refers readers to Sec.
680.600, which governs the priority provisions of the adult program. No
changes have been made to the regulatory text in response to the
comments.
Individuals who are basic skills deficient are to be provided
priority with funds for these adult services. Basic skills deficient is
defined in WIOA sec. 3(5), and an individual who lacks a secondary
education diploma or HSE may qualify based on this standard.
Additionally, Sec. 680.600 provides Governors and Local WDBs with the
authority to designate other priority populations. Individuals who lack
a secondary education diploma or HSE could be designated by a Governor
or Local WDB under that authority.
Under WIA, priority with adult funds was to be provided in the
event that funding was limited; that provision was removed from WIOA.
Thus, priority and the policies and procedures for determining priority
are statutory requirements for the WIOA title I adult program. The
Department refers a commenter to 20 CFR 678.430 for definitions of
``basic career services'' and ``individualized career services'' (see
Joint WIOA Final Rule).
In addition, when participants are to be placed into training is a
decision that must be made consistent with WIOA sec. 134(c)(3) and
Sec. 680.210.
Section 680.130 What are the eligibility criteria for career services
for dislocated workers in the adult and dislocated worker programs?
Comments: Commenters requested clarification on the meaning of
``unlikely to return to a previous industry or occupation,'' and what
is meant by ``unemployed as a result of general economic conditions in
the community in which the individual resides or because of natural
disasters.''
One commenter encouraged the removal of the ``unlikely to return''
to their previous industry/occupation criteria from the definition of
dislocated worker, because it hinders the ability to serve individuals
that have been laid off or terminated.
Further, a commenter stated that the process for determining
eligibility as a dislocated worker through receipt of unemployment
insurance or exhaustion of unemployment insurance currently is a
cumbersome process. This commenter recommended that one-stop or the ES
staff have real time access to the unemployment insurance database for
verification of eligibility of dislocated workers.
Department Response: WIOA defines ``dislocated worker'' under WIOA
sec. 3(15), and requires the individual be ``unlikely to return to a
previous industry or occupation'' under WIOA 3(15)(A)(iii). The
regulation maintains this statutory definition. The Department has
added regulatory text at Sec. 680.130(b)(3) allowing for Governors and
Local WDBs to establish policies and procedures for one-stop centers to
use in determining when an individual is unlikely to return to his or
her previous industry or occupation. Any policy or procedure must be
consistent with Sec. 680.660, which provides that separating service
members meet this criterion.
The Department may utilize guidance and technical assistance to
assist States and local areas in determining when an individual is
``unlikely to return to a previous industry or occupation'' or when an
individual is ``unemployed as a result of general economic conditions
in the community in which the individual resides or because of natural
disasters.'' No other changes have been made to the regulatory text in
response to the comments.
Section 680.140 What Workforce Innovation and Opportunity Act title I
adult and dislocated worker services are Local Workforce Development
Boards required and permitted to provide?
Comments: A commenter requested a definition of how Local WDBs are
allowed flexibility when providing services with adult and dislocated
worker funds. This commenter also stated that there would be a burden
on States to track local flexibility of funds. Another commenter asked
whether subgrantees would need to report expenditures for job seeker
services, employer services, or coordination activities, as listed in
proposed Sec. 680.140(b)(1) through (3).
Department Response: Section 680.140 describes the required and
permissible employment and training activities with WIOA title I adult
and dislocated worker funds. Paragraph (a) of Sec. 680.140 describes
the required activities a Local WDB must provide,
[[Page 56114]]
which includes career and training services. These services are
required under WIOA sec. 134(c)(2) and (3). Paragraph (b) lists the
permissible activities a Local WDB may provide. Local WDBs have
discretion in what permissible activities and services they provide.
All expenditures must be tracked and documented by the State and Local
WDB to ensure the proper administration of these funds. No changes have
been made to the regulatory text in response to the comments. Section
680.140(b) is further discussed below.
Comments: A few commenters expressed support for the various
provisions within proposed Sec. 680.140 covering services for
individuals with disabilities and recommended additional language be
added to the regulation to urge Local WDBs to focus their optional
services on this population because these services are permissive and
not mandatory. Two commenters also encouraged the Department to
reference veterans' priority of service in Sec. 680.140(a).
A couple of commenters encouraged the Department to mention bridge
programs explicitly, which are programs that prepare individuals with
limited academic or English skills to succeed in postsecondary
education and training programs, as an acceptable activity under WIOA,
and to encourage their use in the Final Rule. Another commenter
recommended that referrals by one-stop centers to regionally accredited
secondary-level educational programs providing entry-level workforce
preparation and/or postsecondary education and training activities be
included as a basic service and counseling service.
Department Response: The commenters above refer to the permissible
local employment and training activities under WIOA sec. 134(d) and
Sec. 680.140(b). Paragraph (b)(1) of Sec. 680.140 describes the
permissible ``job seeker services'' that may be provided. The one-stop
delivery system plays a vital role in providing career and training
services to individuals with disabilities, as well as the customer
supports that may be provided to help individuals with disabilities to
navigate multiple services. The Department understands the commenters'
desire to make these services to individuals with disabilities
mandatory; however, WIOA states that these are permissible activities
under WIOA sec. 134(d). The Department does encourage Local WDBs to
provide these services for individuals with disabilities, veterans, and
other individuals with barriers to employment. No changes have been
made to the regulatory text in response to the comments for Sec.
680.140(b)(1)(i) through (iv). The citation to transitional jobs at
Sec. 680.190 has been moved from Sec. 680.830 to reflect the
Department's position that transitional jobs are a type of work
experience, and thus a career service.
Regarding the reference to veterans' priority of service, the
regulation at Sec. 680.650 ensures priority of service for veterans in
all Department-funded employment and training programs.
The Department notes bridge programs may be an appropriate activity
for individuals to obtain meaningful employment; however, bridge
programs are not discussed in WIOA and are not included in the
regulatory text.
Comments: A commenter recommended that career services for self-
employed adults and dislocated workers be defined to include industry
sector and/or entrepreneurship training for individuals who wish to
remain self-employed.
Department Response: The Department does not propose to mandate any
particular career services for self-employed adults and dislocated
workers; these decisions are best made locally based on individual
need. Decision-making about career and other services and training
should be informed by information about in-demand industry sectors and
occupations. The Department notes that entrepreneurship training is
allowed for adults and dislocated workers under WIOA sec. 134(c)(3)(D).
Comments: A commenter requested clarification regarding employer
services and the relationship to career services provided to job
seekers versus employer services provided to businesses. This commenter
explained that services provided to employers do not appear to be
considered a career service because there would be no specific job
seeker to register. Furthermore, the commenter stated that delivery of
employer services does not need to be procured for a one-stop center,
but can be designated by the local elected officials.
Several commenters recommended that to serve both job seekers and
employers effectively, the role of business services outreach staff
should, in addition to supporting the priorities of the Local WDB, be
focused on the goals of the individual WIOA titles. One commenter
sought clarification on whether custom training, on-the-job training
(OJT), and incumbent worker training were acceptable services to be
offered under the business services function. This commenter also urged
the Department to clarify the regulations to make clear that the
operation of business services by the Local WDB itself and its staff
are acceptable.
A commenter encouraged the Department to define ``employment
generating activities,'' which are prohibited by the proposed
regulation.
Department Response: Business and employer services are a
permissible local activity under Sec. 680.140(b)(2); services to
employers are not considered a career service that is a required
activity under Sec. 680.140(a). No changes have been made to the
regulatory text in response to the comments at Sec. 680.140(b)(2).
The Department acknowledges the comments about defining
``employment generating activities,'' and has addressed them in Sec.
683.245 of the preamble and regulations. The Department notes that
employer services described in Sec. 680.140(b)(2) must not be used to
encourage business relocation to the local area from another State or
local area.
Comments: One commenter stated that it would be very difficult, if
not impossible, to determine accurately when implementing a pay-for-
performance training contract the amount of administrative funds that
were spent on this specific activity because administrative funds may
be pooled and that pooling includes the youth program. This commenter
asserted a similar concern for percentage limitations associated with
incumbent worker training (Sec. 680.800), transitional jobs (Sec.
680.820 in the NPRM; Sec. 680.195 in this Final Rule), and work
experience activities in the youth program (Sec. 681.590).
Department Response: WIOA allows Local WDBs to set aside and use up
to 10 percent of their adult and dislocated worker funds on WIOA Pay-
for-Performance contract strategies (see WIOA sec. 134(d)(1)(A)(iii)
and Sec. 683.500), up to 20 percent on incumbent worker training (see
WIOA sec. 134(d)(4)), and up to 10 percent on transitional jobs (see
WIOA sec. 134(d)(5)). See also Sec. 680.140(b)(1)(v), (b)(4), and
(b)(8). Administrative activities necessary to initiate or procure Pay-
for-Performance contract strategies, incumbent worker training, and
transitional jobs must be consistent with Sec. 683.215, which
discusses how to determine whether an activity is administrative or
programmatic for purposes of WIOA. If the activity would be considered
programmatic under Sec. 683.215, then the cost would be subject to the
caps discussed above. If the activity would be considered
administrative under Sec. 683.215, it may be paid for out of the
Boards' usual
[[Page 56115]]
administrative funds, and it is not subject to the caps. Therefore, the
Board would not need to specifically account how much of the
administrative funds are spent on these particular programs.
Section 680.150 What career services must be provided to adults and
dislocated workers?
Comments: A commenter stated that the definition of career services
should be clarified to include pre-screening, application assistance,
and colocation of application assistance services for the programs for
which career services one-stop centers must provide information and
referrals.
Another commenter recommended that referrals to regionally
accredited secondary-level educational programs providing entry-level
workforce preparation and/or postsecondary education and training
activities be included as part of basic services and counseling
services. A commenter requested clarification regarding whether
alternative secondary school (formerly General Education Diploma [GED])
preparation is considered a career service or a training service.
One commenter recommended that Sec. 680.150(c) be revised to refer
to activities provided for a ``participant'' and not a ``registered
participant'' to avoid confusion resulting from ``registrants'' and
``participants'' being two separately defined terms. Another suggested
that the Department revise the regulations to allow participants to opt
out of follow-up services, as was allowed under the WIA regulations. A
few commenters requested clarification on the meaning of ``follow up
services as appropriate.''
A commenter recommended that supportive services such as tools,
uniforms, bus passes, or childcare, be allowed for up to 1 year after
the exit date of adults or dislocated workers, saying some individuals
may need a little additional help to keep a job that may not have been
known when the individual initially took the job.
A commenter association recommended the addition of new paragraphs
within Sec. 680.150 to (1) specify that career services can be
provided by any of the one-stop partners, as opposed to having to be
provided by a WIOA title I partner; and (2) create a framework by which
prior interviews, evaluations, and assessments of participants can be
used for purposes of evaluating eligibility for career services.
Department Response: The Department has added ``basic'' before
``career services'' to ensure consistency with 20 CFR 678.430(a) in how
these services are described (see Joint WIOA Final Rule). No changes
have been made to the regulatory text in response to the comments at
Sec. 680.150(b).
Career services are defined in 20 CFR 678.430 (see Joint WIOA Final
Rule) and WIOA sec. 134(c)(2). Pre-screening, application assistance,
referrals, and other information all would qualify as basic career
services under 20 CFR 678.430(a). Basic career services under Sec.
680.150(a) must be made available and are key to ensuring high quality
services throughout the one-stop delivery system.
The Department considers adult education and literacy activities
(see WIOA sec. 3(3)) that lead to a secondary school diploma to be a
training service. An entity that offers a program that leads to a
secondary school diploma or its equivalent can be eligible as a State
eligible training provider (ETP), see Sec. 680.420. The Department
notes, however, that if title I adult and dislocated worker funds are
used for these activities, they must be done concurrently or in
coordination with any training activities in WIOA sec. 134(c)(3)(D)(i)-
(vii). The Department has added regulatory text to clarify this point
at Sec. 680.350.
The Department agrees with the suggestion that ``registered
participant'' be changed to ``participant'' and has made this change in
the regulatory text. The Department has added ``as determined
appropriate by the Local WDB'' to proposed Sec. 680.150(c) to clarify
how the determination is made to provide follow-up services. This
addition is consistent with the statutory text at section
134(c)(2)(xiii), which states that follow-up services are provided ``as
appropriate.''
The Department declines to make any change in regulatory text to
allow the provision of supportive services for adult and dislocated
workers for up to a year after exit; section 134(d)(2)(A) of WIOA
requires that adults and dislocated workers must be participants to
receive supportive services. The Department also declines to modify the
regulatory text about the provision of career services. Career services
are defined in 20 CFR 678.430, which is the one-stop section of the
joint regulation, and they may be provided by any partner program. The
Department has decided that the use of prior interviews, evaluations,
and assessments of participants for the purpose of eligibility is to be
determined by State and local policies.
Section 680.160 How are career services delivered?
Comments: A few commenters expressed opposition to a requirement
that Local WDBs obtain a waiver before providing career services. One
of these commenters stated that the NPRM requirement that Local WDBs
receive a waiver before being allowed to deliver career services would
be a major change and a significant burden because getting a waiver is
not an easy process. This commenter recommended that the Department
provide States with an easier, quicker process for requesting waivers.
A commenter recommended that, at a minimum, a waiver request should
address: (1) Why the waiver is necessary, (2) how granting the waiver
would provide service to the affected area superior to that which would
have been provided as the result of a competitive process; (3) why the
prospective designee is the best choice as the local one-stop operator
or provider of career services; and (4) what process was used in making
the determination (including the specific data that supports it).
Department Response: For a Local WDB to provide career services, it
must meet the requirements in WIOA sec. 107(g)(2), which allows for
Local WDBs to be providers of career services of title I career
services for adult and dislocated workers with the agreement of the CEO
in the local area and the Governor. Although there is a waiver
requirement for Local WDBs to provide training services under WIOA sec.
107(g)(1)(B) and Sec. 679.410(c), which documents how Local WDBs may
apply for a waiver with the State, there are no waiver requirements for
Local WDBs to provide career services. No change is made in the
regulatory text in response to these comments.
Section 680.170 What is the individual employment plan?
The Department has moved the proposed Sec. 680.180 to Sec.
680.170, so that the work experience regulation that was proposed as
Sec. 680.170 can be renumbered as Sec. 680.180, closer to the
transitional jobs provision at Sec. 680.190. In Sec. 680.170, the
regulation also replaces the words ``case manager'' with ``career
planner'' to be more consistent with the nomenclature used in WIOA.
Comments: A few commenters requested clarification on the role of
IEPs for all services categories of individuals and programs and urged
the Department to ensure consistency at the program enrollment level,
including when an IEP is required to be started/
[[Page 56116]]
completed and some flexibility in serving the general public job
seeker. Another commenter asked whether: (1) The development of an IEP
requires participation under WIOA title I, (2) this service can be
delivered by ES staff, or (3) this determination can be made at the
local level.
Department Response: The Department strongly encourages the use of
IEPs as a tool in the career planning process. However, there is no
sequence of service requirement in WIOA and determining when an IEP is
appropriate for individuals is a local decision. The Department
encourages Local WDBs to develop policies and procedures for the
appropriate use of IEPs.
An IEP is an individualized career service and can be provided
under either WIOA title I or the ES (as amended by WIOA title III and
as described in Sec. 652.206), which is decided locally and is a part
of the Memorandum of Understanding (MOU) governing the role of the ES
in the one-stop delivery system.
Section 680.180 What is an internship or work experience for adults and
dislocated workers?
The Department has moved this proposed Sec. 680.170 to Sec.
680.180, so that this work experience regulation is renumbered to be
closer to the transitional jobs provision at Sec. 680.190.
Comments: A commenter stated that it is important that WIOA
participants who are placed in work experience or internships are fully
protected by the nation's wage and hour laws and regulations. This
commenter recommended that the Department revise proposed Sec. 680.170
by deleting the language allowing for paid and unpaid work experiences
and adding a cross reference to the U.S. Department of Labor Wage and
Hour Division (WHD) regulations and guidance concerning unpaid
internships. Similarly, a commenter requested clarification on when
work experience can be unpaid, including assessment of the implications
of unpaid work as a potential violation of the Fair Labor Standards
Act.
Department Response: The Department notes the comments and has
added language to the regulatory text stating that internships and work
experiences under WIOA may be paid or unpaid, as consistent with other
laws, including the Fair Labor Standards Act. The Department will
continue to use guidance and technical assistance to assist grantees in
determining how WIOA intersects with other laws.
Comments: A commenter encouraged the Department to maintain a broad
definition of work experience that is applicable to all core programs,
reasoning that work experience is an invaluable tool to engage
businesses and to support job seekers in overcoming barriers by gaining
experience that leads to unsubsidized employment.
Department Response: The Department agrees with the commenter's
suggestion and makes no change in the regulatory text.
Comments: A commenter asked whether there were limitations on the
percentage of funds to be utilized for paid work experience.
Department Response: Work experiences may be paid or unpaid,
consistent with the Fair Labor Standards Act and other applicable laws.
Transitional jobs is a type of paid work experience described in
Sec. Sec. 680.190 and 680.195. A Local WDB may use up to 10 percent of
funds allocated to the local area under section 133(b) of WIOA to
provide transitional jobs. (Sec. 134(d)(5) of WIOA.) Transitional jobs
also are subject to certain eligibility criteria along with
comprehensive career and supportive services requirements. In addition
to transitional jobs, other work experiences may be paid; to be
eligible for these work experiences an individual must meet adult and
dislocated worker program eligibility and there is no requirement for
comprehensive career and supportive services. These other types of paid
work experiences are not subject to a statutory funding cap.
Comments: Another commenter encouraged the Department to allow
Local WDBs to determine the appropriate timeframe for internships and/
or work experience based upon multiple factors, including industry
standard and/or practice and the sector-based accepted length of time
needed to acquire one or more relevant skills and/or industry-
recognized credentials.
Department Response: The Department has set no minimum or maximum
duration requirements for work experiences. These factors may be used
by Governors and Local WDBs in making such determinations.
Section 680.190 What is a transitional job?
Comments: Many commenters asked for clarification of ``transitional
jobs'' versus ``work experience;'' including exceptions to the 10
percent cap on transitional jobs, the similarities between transitional
jobs and work experiences, and distinctions from OJT.
Another commenter expressed concern that the distinctions between
transitional jobs and OJT contracts in the NPRM are not clear enough
and recommended that the Department expand on the differences in the
Final Rule several ways: (1) Unlike OJT, the program provider should
act as employer of record and assume all responsibilities of the
employer-employee relationship; (2) transitional jobs require a 100
percent wage subsidy, while OJT subsidize up to 75 percent of wages;
(3) funds for transitional jobs support all components of the service
strategy; (4) transitional jobs should be targeted at those job seekers
most in need of intervention; and (5) transitional jobs may be
structured as offsite placements with private-sector, public-sector, or
nonprofit employers or as in-house social enterprise or work crew
placements.
Department Response: The Department agrees with the recommendation
of some commenters and has added language to Sec. 680.180, which
defines what an internship or work experience is for adults and
dislocated workers and clarifies that transitional jobs are considered
to be a type of work experience. The Department also has moved proposed
Sec. Sec. 680.830 and 680.840 to Sec. Sec. 680.190 and 680.195
respectively.
The Department agrees with the comments made about the OJT
contracts, i.e., that in transitional jobs programs the program
provider may act as the employer of record; however, there may be a
joint employment relationship between the worker, the firm in which the
worker is placed, and the program provider. The Department has added
regulatory text defining transitional jobs as providing an individual
with work experience that takes place within the context of an
employee-employer relationship, in which the program provider may act
as the employer, and with an opportunity to develop important workplace
skills. The Department will provide further guidance and technical
assistance on transitional jobs programs, including best practices.
Comments: Some commenters asked the Department to define
``inconsistent work history.'' One of these commenters also requested a
substantive quantifiable definition of the term ``chronic
unemployment.'' One commenter requested that the Department define
``transitional jobs'' and asked for clarification of the required funds
for career services and supportive services that must be provided with
transitional jobs. A couple of commenters recommended that the
Department strengthen the definition of ``transitional jobs'' with
further guidance and technical support to States and localities. These
commenters also
[[Page 56117]]
recommended that the Final Rule reiterate that the term means ``wage-
paid'' subsidized employment consistent with other definitions in
Federal law and agency guidance. Similarly, another commenter
recommended that the Department define ``transitional jobs'' as ``time-
limited wage-paid experiences that are subsidized for individuals with
barriers to employment who are chronically unemployed or have an
inconsistent work history.''
Department Response: The Department has decided that the
definitions of ``inconsistent work history'' and ``chronic
unemployment'' should be left to the Local WDBs and has added language
to the regulatory text in Sec. 680.190 to reflect this. The Department
encourages Local WDBs to utilize information such as an individual's
labor market history, unemployment status, durations of unemployment,
long-term unemployment, and other factors that the Local WDB may
determine appropriate for defining these terms. The Department has
added language to better define transitional jobs, including adding the
terms ``time-limited'' and ``wage-paid'' in Sec. 680.190. WIOA
requires transitional jobs to include both comprehensive and supportive
services. Local WDBs determine which comprehensive and supportive
services are appropriate for each individual.
Comments: One commenter recommended that the Department and the
Internal Revenue Service (IRS) identify an acceptable means of paying a
training stipend that does not trigger the Patient Protection and
Affordable Care Act (PPACA) regulations. Another commenter recommended
specific language to amend proposed Sec. 680.830 (as explained above,
renumbered in the Final Rule to Sec. 680.190) to articulate that
people who participate in transitional jobs are not counted toward
labor participation rates, that is, not counted as ``employed persons''
by the BLS.
Further, this commenter and others asserted that workers in
transitional jobs should be classified as employees rather than
contractors or trainees and should be subject to protections such as
wage and hour laws, minimum wage laws, unemployment insurance, and
workers compensation.
Department Response: The ACA employer responsibility provisions are
governed by the IRS and any training and employment agreements the
grantees make may be subject to those provisions. The Department
encourages grantees to utilize IRS resources and guidance when
determining those responsibilities. The Department will issue
subsequent guidance and technical assistance to help identify
appropriate IRS resources and guidance. Transitional jobs and other
work-based training often establish an employer-employee relationship
that must follow applicable laws and regulations that govern such
relationships, including: Wage and hour laws, minimum wage laws,
unemployment insurance, and workers' compensation.
The suggestion that transitional jobs not count in the labor force
participation rate that is captured by the Current Population Survey
that the BLS administers is not germane to WIOA or these regulations.
Comments: A couple of commenters recommended that transitional jobs
programs be targeted at populations with multiple employment barriers
and people with sporadic, problematic and inconsistent work histories
within the 2 years prior to engaging in the program. These commenters
recommended targeting people experiencing homelessness; opportunity
youth; people reentering communities from prison and those with
criminal records; long-term recipients of TANF, SNAP and other public
benefits; low-income noncustodial parents; and other chronically
unemployed people.
Some commenters recommended that allowable use of funds should
include: Wages paid to transitional jobs program participants during
their subsidized job placement; funding for employment-related case
management and support such as transportation vouchers and clothing
allowances; funding for job retention services for no fewer than 6
months after placement in a subsidized job; supporting integration of
literacy, adult basic education, training, and career advancement
resources; and supporting program capacity-building needs, such as
adding additional staff and/or infrastructure improvements as
appropriate.
Department Response: The Department considers these recommended
criteria to be appropriate factors that a Local WDB may use when
determining who is eligible for a transitional job and which groups to
target. Thus, no change is made in the regulatory text. The Department
will provide further guidance and technical assistance as appropriate.
Allowable uses of transitional jobs funds include wages to the
participant and supportive services such as transportation vouchers.
The Department encourages local staff to align services and provide the
appropriate mix of services to meet individuals' needs. Staff and
infrastructure improvements are not allowable uses of transitional jobs
funds.
Comments: Commenters asserted that transitional jobs are typically
3 to 9 months and seldom longer than 1 year. They recommended that
transitional job arrangements include the following in order to avoid
displacement of incumbent workers: Strong prohibitions against
substitution and displacement; protections for recently laid-off
employees, workers on leave, and striking workers; and preservation of
recall rights under collective bargaining agreements for union
employees of transitional job employer partners.
Department Response: The regulations at Sec. 683.270 contain
safeguards against displacement of employees that are applicable to
WIOA title I employment and training activities, including transitional
jobs. The Department also added Sec. 680.840, which clarifies that
funds for work-based training and work experiences may not be used to
fill openings that resulted from a labor dispute.
Comments: Commenters recommended several ways to maximize the
likelihood that workers are retained in unsubsidized employment after a
transitional job program: (1) Monitoring participants and providing
retention services for at least 6 months following unsubsidized job
placement; (2) regular, frequent follow-up contacts by retention
specialists; (3) ongoing retention-focused activities such as
workshops, peer learning groups and support groups; (4) retention
incentives in the form of monetary bonuses or nonmonetary incentives
such as child care services; and (5) reemployment services for workers
who are terminated from unsubsidized employment. The commenters also
recommended several specific structure elements and polices that they
asserted are essential: (1) A flexible length of time in subsidized
employment based on the skill development needs of the individual; (2)
subsidized employment offered should be no fewer than 20 hours per week
and workers should be allowed to remain in the subsidized employment
until unsubsidized employment slots are available for transition; (3)
employers should support participant development and skill building;
and (4) personal contact and consistent follow-up should be provided
among program staff, participants, and employment supervisors, as well
as opportunities to work with a case manager for the participant to
address serious issues if they arise.
Department Response: The Department declines to propose a
[[Page 56118]]
minimum or maximum duration for transitional jobs that could create
unnecessary restrictions that may prevent an individual from obtaining
unsubsidized employment. The Department also declines to create a one-
size-fits-all approach to transitional jobs, and considers these
decisions are best made by the Local WDB and the individual's career
planner. No changes have been made to the regulatory text in response
to these comments. The Department will address these issues further
through guidance and technical assistance.
Comments: A commenter recommended that proposed Sec. 680.830 (as
explained above, renumbered in the Final Rule to Sec. 680.190) be
amended to refer to ``time-limited work experience'' to be consistent
with the language and intent of WIOA sec. 134(d)(5).
Department Response: The Department agrees with this comment and
has amended the language in Sec. 680.190 to include the phrase ``time-
limited work experience.''
Comments: Another commenter asked what is the employer
reimbursement rate and contract length?
Department Response: The employer reimbursement rate is to be
determined by the Local WDB and can be up to 100 percent. The
Department encourages Local WDBs to work with employers that are
willing to provide a certain percentage of the cost of the transitional
job.
Section 680.195 What funds may be used for transitional jobs?
Comments: Some commenters requested clarification on the 10 percent
limit on use of funds. In particular, some commenters asked if the 10
percent limit would apply to work experience as an activity. A State
WDB asked whether all adult and dislocated workers transitional job
work experience is subject to the 10 percent cap.
Department Response: The Department considers transitional jobs to
be a targeted service that includes comprehensive career and supportive
services. Non-transitional job work experiences have no requirement
that they must be paid or unpaid, and they do not have the same
requirements for comprehensive career and supportive services. They
also are not subject to the 10 percent funding cap that transitional
jobs are. The Department has added text to the regulatory text to
further clarify the 10 percent cap and that transitional jobs, defining
them as a certain type of work experience which is targeted to a
specific population that is: ``chronically unemployed'' or has an
``inconsistent work history.''
Comments: A commenter asked for clarification on what
``comprehensive career services'' means when required to be part of
transitional jobs, and asked if it includes basic career services,
individualized career services, or both, and if there is a sequence of
services before service can be provided.
Department Response: Comprehensive career services may include both
basic and individualized career services and are based on the needs of
the participant. Comprehensive career services and supportive services,
which are required to be provided as part of any transitional jobs
strategy, are not subject to the 10 percent cap described at Sec.
680.195. However, the Department is providing flexibility to allow for
these services to be provided with the funds set-aside for transitional
jobs. Local areas determine which comprehensive and supportive services
are appropriate for each individual. There is no sequence of service
required.
3. Subpart B--Training Services
Training services are discussed at Sec. Sec. 680.200 through
680.230. WIOA is designed to increase participant access to training
services. Training services are provided to equip individuals to enter
the workforce and retain employment. Training services may include, for
example, occupational skills training, OJT, registered apprenticeship
(which incorporates both OJT and classroom training), incumbent worker
training, pre-apprenticeship training, workplace training with related
instruction, training programs operated by the private sector, skill
upgrading and retraining, entrepreneurial training, and transitional
jobs. Training services are available for individuals who, after
interview, evaluation or assessment, and case management are determined
to be unlikely or unable to obtain or retain employment that leads to
self-sufficiency or higher wages than previous employment through
career services alone. The participant must be determined to be in need
of training services and possess the skills and qualifications to
participate successfully in the selected program. It also must be
determined that they are unlikely or unable to retain employment that
leads to self-sufficiency or higher wages. Some participants may need
additional services to assist their vocational training, such as job
readiness training, literacy activities including English language
training, and customized training.
Comments: Comments generally were supportive of the Department's
flexible approach to the delivery of training services for the WIOA
title I adult and dislocated worker programs.
Department Response: The Department has updated and clarified
language regarding how registered apprenticeship and other
apprenticeships may be utilized as a training solution for adult and
dislocated worker customers.
Section 680.200 What are training services for adults and dislocated
workers?
Comments: Two commenters strongly recommended that local
flexibility be preserved as it relates to determining the appropriate
availability, structure, and mix of training services that are offered
locally to individuals and employers. Another commenter encouraged the
Department to avoid restrictive standards and allow customization of
varying training practices because there is slower adoption among small
businesses of newer best practices. This commenter stated that this
flexibility is particularly important when considering the
effectiveness of competency-based training versus number of hours
trained.
Department Response: The Department agrees that it is important to
maintain local flexibility to make decisions about the appropriate mix
of career and training services and has provided local flexibility in
making those determinations.
Comments: A few commenters provided input on pre-apprenticeships
and non-registered apprenticeships. One commenter encouraged the
Department to add more flexibility into the regulations as they relate
to pre-apprenticeships and non-registered apprenticeships so that
manufacturers can develop and use programs that best meet their unique
needs. Another commenter cautioned the Department not to discriminate
against non-registered apprenticeships because many smaller employers
rely on these types of programs. One commenter recommended that
employer-sponsored craft training programs that are not registered, but
that lead to an industry-recognized credential, should have an
automatic initial ETP determination and then, be required to satisfy
continued eligibility requirements after 1 year.
Department Response: WIOA sec. 122(a)(2)(B) provides automatic
qualification for registered apprenticeship programs on eligible
training provider lists (ETPLs) and WIOA in general provides an overall
emphasis on registered apprenticeship
[[Page 56119]]
programs throughout the one-stop delivery system. The Department has
used this emphasis to highlight the unique flexibilities the one-stop
delivery system has in making use of registered apprenticeship programs
to provide training services, including Individual Training Accounts
(ITAs) and OJT. This in no way restricts pre-apprenticeship programs
and non-registered apprenticeship programs from being an ETP according
to the criteria in WIOA sec. 122(a). These training providers, in order
to receive ITA payments, must go through the same eligibility criteria
as other training providers on the ETPL. The Department considers
programs that lead to an industry-recognized credential as valuable
providers of training, and these programs are welcome to apply to
become ETPs. The Department declines to make changes to the regulatory
text in response to these comments.
Comments: One commenter encouraged the Department to allow adult
education providers to provide workforce preparation rather than
training in sector work. The commenter stated that if community-based
adult education providers were required to offer sector training, most
of these providers would have to be completely transformed, would
require significant capacity boosts, would be less likely to reach the
hard-to-serve, and would have drastically reduced enrollment.
One commenter requested clarification on the role of adult basic
education.
Department Response: Under WIOA sec 134(c)(3)(D)(x), title I adult
and dislocated worker funds may be used to support adult education and
literacy activities, provided concurrently or in combination with other
training services. The Department has added regulatory text clarifying
this use of WIOA title I adult and dislocated worker funds in Sec.
680.350. This regulation involving appropriate uses of adult education
and literacy activities only applies to WIOA title I adult and
dislocated worker funds.
Comments: A commenter expressed support for having both OJT and
classroom training available to adult and dislocated workers. Two
commenters supported the inclusion of integrated English literacy/
civics education programs in WIOA. These commenters recommended that
the Departments of Labor and Education provide diverse examples of how
such programs may be designed, including ways in which they may
represent components of sector partnerships and/or career pathways
initiatives, and how they may facilitate the economic, linguistic, and
civic integration of participants.
Department Response: The Department of Labor will work with the
Department of Education to provide additional guidance and technical
assistance on sector partnership and career pathways initiatives under
WIOA, including how to integrate programs such as those the commenters
highlighted.
Comments: One commenter described the benefits of entrepreneurship
training and encouraged the Department to revise performance indicators
that would create a barrier to the inclusion of entrepreneurship
training in the WIOA public workforce system.
A few commenters requested clarification on what constitutes
entrepreneurial training as cited at sec. 134(c)(3)(D)(vii) of WIOA.
Department Response: Entrepreneurial training is an allowable
training activity, and the Department will issue guidance and technical
assistance to support its use and to address performance
accountability. Additionally, the Department has addressed instances
where quarterly wage records are not traditionally available for
performance accountability purposes, as may be the case where
participants have received entrepreneurial training, in 20 CFR 677.175
(see Joint WIOA Final Rule).
Comments: Two commenters recommended that the regulations
explicitly recognize the need for direct support professionals to
address the growing ``direct support worker crisis''.
Department Response: WIOA sec. 108(b), which lists the required
contents of local plans, states that the plans must include an analysis
of existing and emerging in-demand industry sectors and occupations
including the employment needs of employers in those sectors and
occupations. Training programs for WIOA title I adult and dislocated
worker programs are to be linked to in-demand industries and
occupations in the local plan. The Final Rule does not explicitly
recognize any specific industry or occupation needed to meet current
workforce needs because these needs may change and often are based on
State and local labor markets.
Comments: One commenter suggested that the regulations should
better articulate the important role for digital literacy instructions,
reasoning that these skills are critical to job advancement as well as
educational credentials, including high school equivalency diplomas.
Additionally, this commenter urged the Department to adopt a flexible
framework as it relates to the integration of occupational skills
training, which the commenter stated should include a student-centered
approach in which co-enrollment in workforce education programs be
optional rather than required.
Department Response: The Department considers digital literacy to
be a pre-vocational service or a workforce preparation activity, both
of which are considered to be individualized career services and not
training services. The Department agrees that digital literacy is an
important skill to succeed in the 21st century workforce, but considers
it to be a service that may be made available based on individual need
as determined by the local area. While WIOA encourages program
alignment, and co-enrollment is one way to align service delivery, the
Department does not require co-enrollment across programs.
Comments: A commenter suggested that the Department provide the
list of training services found in WIOA in the regulations rather than
simply referencing the statutory citation.
Department Response: The Department agrees with the recommendation
and has adjusted the regulatory text of Sec. 680.200 to include the
list of training services provided in WIOA sec.134(c)(3)(D).
Comments: Commenters requested clarification on whether alternative
secondary school (formerly GED) preparation is considered a career
service or a training service.
Department Response: The Department considers a program that leads
to a secondary school diploma to be a training service. A program that
leads to a secondary school diploma or its equivalent can be eligible
as a State ETP, see Sec. 680.420.
Section 680.210 Who may receive training services?
Comments: A commenter asked who would be responsible for
determining what constitutes self-sufficiency when determining who may
receive training services under proposed Sec. 680.210(a)(1).
Department Response: Under WIOA sec. 134(a)(3)(A)(xii), States may
use statewide funds reserved by the Governor for adopting, calculating,
or commissioning for approval an economic self-sufficiency standard for
the State that specifies the income needs of families, by family size,
the number and ages of children in the family, and sub-State
geographical considerations. Under WIOA sec. 134(d)(1)(A)(x), local
areas may use employment and training funds to adjust the State
standard for local considerations, or can adopt, calculate, or
commission for approval a
[[Page 56120]]
self-sufficiency standard for the local area that specifies the same
factors required of the State standard. Under WIOA sec. 134(c)(3)(A)(i)
individuals who receive training must be unlikely or unable to obtain
or retain employment that leads to economic self-sufficiency or wages
comparable to or higher than wages from previous employment through
career services. Additionally, they must be in need of training
services to obtain or retain employment that leads to economic self-
sufficiency or wages comparable to or higher than wages from previous
employment. The one-stop center is responsible for determining if an
individual meets the self-sufficiency standard set by this process.
Comments: A commenter requested clarification about the division of
responsibilities between one-stop centers and local service providers,
including clarification on who is responsible for determining who can
receive training services.
Department Response: The Department considers the ultimate
responsibility for determining who can receive training services to
rest with the Local WDB. However, through the service procurement
process and other arrangements established through the local MOU, the
board may delegate those responsibilities to the one-stop center or
local service providers.
Comments: A commenter disagreed with the language in proposed Sec.
680.210(a) that indicates that a determination needs to be made that
the training will result in receipt of wages higher than wages from
previous employment, reasoning that economic conditions can make this
difficult.
Department Response: The Department notes that Sec. 680.210(a)
mirrors the requirements for title I adult and dislocated worker
services found in WIOA sec. 134(c)(3)(A), and that training that leads
to a ``comparable wage'' also is allowed for individuals to receive
training services. No changes have been made to the regulatory text in
response to the comments.
Comments: A commenter recommended that the Department make efforts
to inform employers of the availability of training services to assist
workers on short-term or long-term disability programs.
Department Response: The Department considers this to be an example
of an appropriate business or employer service that may be provided
through the one-stop delivery system. While the Department will not add
language to the regulatory text mandating specific employer services,
the Department does recognize the importance of ensuring quality
services for individuals with disabilities and will utilize guidance
and technical assistance to ensure best practices in serving businesses
and individuals with disabilities.
Comments: A commenter suggested that the regulations should direct
one-stop centers to take into account older workers' different training
needs and lesser access to financial aid, and make sure that older
workers are not discriminated against in access to WIOA-funded ITAs.
Department Response: Older workers are identified as a target
population for WIOA services, based on their inclusion in the
definition of individuals with a barrier to employment in WIOA sec.
3(24). The Department will issue guidance and technical assistance on
best practices in providing career and training services to older
workers.
Section 680.220 Are there particular career services an individual must
receive before receiving training services under the Workforce
Innovation and Opportunity Act?
Comments: One commenter stated that there should be no required
sequence of services prior to providing training services to allow more
flexibility in meeting the needs of customers. Another commenter asked
whether there is a frequency rate permitted to bypass career services
and whether bypassing career services before training was considered to
be an exception.
One commenter requested further guidance and direction on how Local
WDBs should document the circumstances that justify determinations that
training services should be provided.
Department Response: There is no sequence of service requirement
and therefore, no requirement that career services must be provided
before training services. Section 680.220(b) states, if training
services are provided without career services, the Local WDB must
document the circumstances that justified its determination to provide
training without career services. Eligibility for training must be
determined by an interview, evaluation, or assessment, and career
planning or any other method through which the one-stop partner or
partners can obtain enough information to make an eligibility
determination for training services. Paragraph (b) of Sec. 680.220
requires a case file that includes a determination of need for training
services, based on the criteria discussed in Sec. 680.220(a). There is
no frequency requirement; the need for training services should be
determined prior to their provision. There have been no changes to the
regulatory text in response to these comments.
Comments: Several commenters requested clarification as to how far
back an assessment could have been conducted to satisfy the
prerequisite for training services.
Department Response: The Department does not mandate a certain
length of time that previous assessments may go back; however, the
Department expects that the previous assessments must be recent. The
Department recommends that Governors and Local WDBs develop policies
for the use of recent assessments that are appropriate for the
individual and the one-stop center. The recent assessment must have
sufficient information to make an eligibility determination for
training services.
Comments: A commenter recommended replacing the references to
``eligibility'' and ``eligible'' in proposed Sec. 680.220(a) with
``determined appropriate,'' ``suitable,'' or ``ability to benefit'' to
make it clear that this is not an additional eligibility determination
beyond the eligibility determination conducted in Sec. 680.110.
Department Response: WIOA sec. 134(c)(3)(A) refers to
``eligibility'' for training services and this language is incorporated
in the regulatory text. The Department recognizes that there are two
types of eligibility--eligibility for program services and eligibility
for training services. An individual must meet program service
eligibility to be considered for training service eligibility.
Comments: A commenter stated that the proposed steps required
before a participant can receive training are appropriate for a
customer who is in career transition, but questioned the
appropriateness of the path where an employed worker is in need of
skills upgrade to achieve economic self-sufficiency.
Another commenter encouraged the addition of a provision that
training for jobs that fall below economic self-sufficiency standards
also must include ongoing training post-hire for career ladders within
the industry and take into consideration other factors including
benefits, retirement, vacation, and education that can mitigate and
improve lower wage jobs.
Department Response: The steps before a participant can be
determined eligible for training services in the regulatory text are
the minimum required by WIOA sec 134(c)(3)(A). The Department allows
flexibility for local areas to develop methods to provide
[[Page 56121]]
services for individuals in need of a skills upgrade to achieve
economic self-sufficiency. As part of the training eligibility,
training services provided must be determined to lead to economic self-
sufficiency or wages comparable to or higher than previous employment.
Section 680.230 What are the requirements for coordination of Workforce
Innovation and Opportunity Act training funds and other grant
assistance?
Comments: A commenter suggested that the Department revise the
regulations to require, rather than recommend, that one-stop centers
and partners take into account the full cost of training, including the
cost of supportive services, when coordinating grant assistance.
Department Response: The Department considers the full cost of
training services to be an important factor when coordinating
assistance from other grants or resources. The Department strongly
encourages this coordination and consideration be taken into account.
WIOA allows for one-stop centers or partners to make this a
consideration and does not require it. Therefore, the Department has
changed ``should'' to ``may'' in Sec. 680.230(a).
Comments: Some commenters recommended revisions to the proposed
regulations as they relate to reimbursement of WIOA funds for
participants who eventually receive Pell Grants. Specifically, because
of the difficulties associated with implementing the proposed
framework, these commenters recommended that WIOA funds not be
reimbursed in situations where a Pell Grant is subsequently awarded
after a one-stop center has paid for training. A commenter asked
whether required educational fees are considered part of the training
expenses or education-related expenses. This commenter sought
clarification on this issue, but recommended that they be considered
training expenses and not education-related expenses.
Department Response: The Department maintained the requirements of
Pell Grant reimbursement, as described in Sec. 680.230(c). WIOA sec
134(c)(3)(B)(ii) requires reimbursements to local areas from Federal
Pell Grants to an individual who received WIOA title I training
services while his or her Pell Grant was pending. The Department agrees
with the commenters' suggestion that educational fees be considered
part of the training expenses that should be reimbursed to the local
area and has added language in Sec. 680.230(c) to require this
reimbursement.
Comments: A commenter stated that WIOA funds should be directed
toward Temporary Assistance for Needy Families (TANF) recipients to
enhance the work and training needs of the public assistance population
without a requirement that TANF funds first be considered. Furthermore,
the commenter stated that when resources in a local area are limited,
local areas are best suited to determine which funds are dedicated to
provide training and WIOA should be a primary funding source.
Department Response: The Department declines to make a change in
the regulatory text at Sec. 680.230(b). WIOA funds supplement other
sources of training grants and do not supplant them.
Comments: To ensure consistency with previous Federal guidance, a
commenter suggested that the Department add language to Sec. 680.230
to clarify that education and training benefits earned by veterans are
not required to be coordinated with training funds available under WIOA
title I.
Department Response: While the Department declines to make a change
in the regulatory text, it notes that the Department of Veterans
Affairs benefits for education and training services are not included
in the category of ``other sources of training grants'' listed in Sec.
680.230(b). Therefore, veterans and spouses are not required to first
use any available benefit entitlements associated with their military
service before being considered eligible for WIOA funded training, and
one-stop centers are not required to consider the availability of those
funds.
Comments: Some commenters recommended that the Department clarify
that WIOA title I funds can support title II adult education programs,
as the WIOA sec. 134(c)(3) definition of training includes ``adult
education and literacy activities, including activities of English
language acquisition and integrated education and training programs''
at sec. 134(c)(3)(x). Commenters asserted that this clarification was
needed as expeditiously as possible so that the planning processes in
the States can proceed efficiently.
Department Response: Under WIOA sec. 134(c)(3)(D)(x), title I adult
and dislocated worker funds may be used to support adult education and
literacy activities, provided concurrently or in combination with other
training services. The Department has added regulatory text clarifying
this use of WIOA title I adult and dislocated worker funds in Sec.
680.350. This regulation involving appropriate uses of adult education
and literacy activities only applies to WIOA title I adult and
dislocated worker funds.
Comments: Because availability of training assistance depends on
whether participants have access to other sources to pay for training,
a commenter strongly encouraged the Department to stress to Local WDBs
the importance of the optional services outlined in Sec. 680.140 for
individuals with disabilities.
Department Response: The Department identifies in Sec. 680.140 all
of the required and permissible WIOA title I adult and dislocated
worker services that Local WDBs may provide. The Department considers
the permissible activities described in Sec. 680.140(b) that may help
individuals with disabilities to navigate among multiple services and
activities to be important. The Department also has listed ``reasonable
accommodations for individuals with disabilities'' to be an allowable
supportive service in Sec. 680.900.
4. Subpart C--Individual Training Accounts
Individual Training Accounts (ITAs) are key tools used in the
delivery of many training services. The Department seeks to provide
maximum flexibility to State and local programs in managing ITAs. These
regulations do not establish the procedures for making payments,
restrictions on the duration or amounts of the ITA, or policies
regarding exceptions to the limits. The authority to make those
decisions resides with the State or Local WDBs. The authority that
States or Local WDBs may use to restrict the duration of ITAs or
restrict funding amounts must not be used to establish limits that
arbitrarily exclude eligible training providers.
Through the one-stop center, individuals will be provided with
quality and performance information on providers of training and, with
effective career services, case management, and career planning with
the ITA as the payment mechanism. ITAs allow participants the
opportunity to choose the training provider that best meets their
needs. Under WIOA, ITAs can more easily support placing participants
into registered apprenticeship programs.
Section 680.300 How are training services provided?
Comments: A commenter expressed support for the ability to pay an
ITA at the beginning of the training program rather than on an
incremental basis, because it would allow Local WDBs to budget and
manage their ITAs much
[[Page 56122]]
more easily, eliminates the concern about putting customers into
training that straddles 2 program years, and simplifies the
determination of how much carry over funding to include in the next
program year's budget.
Department Response: The Department considers it important to
maintain flexibility in how ITA payments are made to support Local WDBs
to use the most effective payment mechanisms. There have been no
changes to the regulatory text in response to these comments.
Section 680.320 Under what circumstances may mechanisms other than
Individual Training Accounts be used to provide training services?
Comments: A few commenters expressed support for the approach
proposed in Sec. 680.320. One commenter expressed support for the
opportunity to contract for services rather than rely solely on ITAs,
potentially support streamlining and more effective administration and
planning for training providers. Another commenter expressed support
for the training of cohorts, allowing States and local areas to
contract with providers to assist groups of participants through one
contract for services with defined goals and outcomes, rather than the
administratively burdensome process of having each individual
participant request services from providers through an ITA. Another
commenter supported the Department's detailed list of circumstances
under which a mechanism other than an ITA may be used to provide
training services.
Several commenters provided input on funding mechanisms for
training for individuals with barriers to employment. One commenter
expressed support for allowing local areas to contract directly with
training providers to supply training that will effectively service
individuals with barriers to employment, expanding innovative and
effective models for helping participants obtain industry-recognized
credentials. Another commenter recommended that the Department
recognize the need for coordination with vocational rehabilitation
programs when addressing services for individuals with disabilities to
avoid duplication of effort.
Department Response: The Department generally received supportive
comments about the use of alternative methods to ITAs. The Department
encourages coordination with Vocational Rehabilitation programs when
serving individuals with disabilities to ensure effective service
delivery. No changes have been made to the regulatory text in response
to the comments, but the Department is adding, ``and the local area has
fulfilled the consumer choice requirements of Sec. 680.340'' to Sec.
680.320(a), to ensure that the statutory requirement at WIOA sec.
134(c)(3)(G)(ii)(I) is included. This provision requires that a local
area have a full ITA system in place even if it decides to provide
training through contracts because one or more of the situations in
Sec. 680.320(a)(1) through (5) applies. Section 680.320(c) provides
that the local plan describe the process to be used in all cases to
select training under a contract to be consistent with WIOA sec.
108(b)(16).
Comments: A few commenters recommended that the Department clarify
which individuals are considered to have a barrier to employment as a
result of being an English language learner. Specifically, these
commenters asserted that the preamble and the regulatory text differ in
that one requires that three elements be met ((1) English language
learners, (2) individuals who have low levels of literacy, (3)
individuals facing substantial cultural barriers) while the other
allows any one element as triggering categorization of having a barrier
to employment. One commenter asked that the Department add a definition
of ``ex-offender'' and encouraged the Department to include individuals
with deferred sentences to be included within the definition because
these individuals encounter similar barriers to employment as those
individuals who actually spend time incarcerated. Another commenter
asserted that the regulation should include employer incentives to
encourage the hiring of ex-offenders.
Department Response: WIOA sec. 3(24) defines ``individuals with
barriers to employment,'' and WIOA sec. 3(24)(I) includes the following
groups that qualify for this definition: ``Individuals who are English
language learners, individuals who have low levels of literacy, and
individuals facing substantial cultural barriers.'' The Department
clarifies that if an individual meets any one of the three criteria in
WIOA sec. 3(24)(I), that individual may be considered to have a barrier
to employment. WIOA defines ``English language learner'' in WIOA sec.
203(7) and is one of the criteria that may be met to be considered an
individual with a barrier to employment. The Department also considers
the definition of ``literacy'' provided in WIOA sec. 203(13) as the
standard to be used for determining if an individual is considered to
have low literacy, and therefore a barrier to employment. The
Department will use guidance and technical assistance to States and
Local WDBs to aid in determining when these elements are met. The term
``offender'' is defined in WIOA sec. 3(38) and the Department considers
this to be the basis by which an individual is determined to be an
``ex-offender.'' The Department declines to alter the regulatory text
to include employer incentives for hiring of specific groups.
Comments: One commenter expressed support for the inclusion of
``older individuals'' in the list of barriers to employment, reasoning
that the aging community has more challenges than younger workers in
regaining employment once it has been lost and are more likely to be
among the long term unemployed. Two commenters requested that the
Department define the duration of unemployment that must be reached for
an individual to be considered a long term unemployed individual.
Department Response: The Department generally defers to the Bureau
of Labor Statistics (BLS) definition and will provide additional
guidance to States and local areas on long-term unemployed.
Comments: Another commenter urged the Department to provide
flexibility and guidance to use ITA funds concurrently or successively
with paid work experience or OJT, reasoning that this combined use of
ITA/OJT or ITA/paid work experience would provide additional benefits
to the participants.
Department Response: The Department notes that there is no
prohibition on the combined use of ITAs and OJT as well as any other
contracted training services under WIOA sec. 134(c)(3)(G)(iv). These
decisions must be based on individual need and they must be paying for
separate program elements. There also is no prohibition on using career
services, such as work experience, in combination with ITAs.
Comments: A commenter asked how the Department defines
``institution of higher education'' as the term relates to funding
mechanisms for training services in proposed Sec. 680.320.
Department Response: The term ``institution of higher education''
is defined in WIOA sec. 3(28); the Department has added this citation
into the regulatory text in Sec. 680.320(a)(4).
Comments: One commenter recommended a minor technical correction to
proposed Sec. 680.320(a)(4) to replace the phrase ``will facilitate''
with ``in order to facilitate.''
Department Response: The Department agrees with the commenter's
suggestion and has made
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this nonsubstantive correction in the regulatory text in Sec.
680.320(a)(4).
Section 680.330 How can Individual Training Accounts, supportive
services, and needs-related payment be used to support placing
participating adults and dislocated workers into a registered
apprenticeship program and support participants once they are in a
registered apprenticeship program?
In this section, a new paragraph (a) was created, and proposed
paragraph (a) is now (a)(1). Similarly, proposed paragraph (b) is now
(a)(2). Proposed paragraph (c) has been renumbered to (b), and the
following proposed paragraphs (d) and (e) are now (c) and (d).
Comments: A few commenters expressed support for allowing ITA
funding to be used to pay for supportive services and needs-related
payments to support the placement of a participant into a registered
apprenticeship program. A commenter asked whether supportive services
would be provided throughout a multi-year apprenticeship and whether
supportive services would be provided to an employed individual
participating in an apprenticeship. Additionally, the commenter asked
how WIOA would assist an already employed worker who moves up the
career ladder and is put into an apprenticeship either through OJT,
ITA, or support services. Another commenter stated that one-stop
centers should provide career services and supportive services during
the final year of an apprenticeship because this is a crucial time that
can directly lead to employment.
Some commenters stated that there should be no limitations placed
on program service funding, including incumbent worker funding, which
these commenters described as possibly the most appropriate funding to
serve apprentices. In regard to incumbent worker funding, these
commenters said that some companies may select current employees to
upskill in a registered apprenticeship program given the length of the
investment and the increased likelihood of the individual remaining
engaged.
Department Response: The Department refers to the regulatory text
in Sec. Sec. 680.900 through 680.920, the general requirements for
supportive services. Supportive services may be used for both employed
and unemployed individuals to support their participation in career
and/or training services. Decisions about the provision of supportive
services, including the duration, timing, and type, are to be made by
the Local WDB.
The Department refers to the regulatory text in Sec. Sec. 680.700
through 680.750 and in particular Sec. 680.710, which discusses the
requirements for OJT contracts for employed workers. Incumbent worker
training may be an appropriate service that would help an individual
move up a career ladder within an apprenticeship program.
Comments: A commenter recommended that the Department revise
proposed Sec. 680.330(b) (renumbered in regulatory text as Sec.
680.320(a)(2)) to allow for payments from ITAs to non-profit, joint
labor-management training to defray the cost of providing
apprenticeship or pre-apprenticeship training for programs that do not
charge ``tuition.'' This commenter suggested that these payments should
include not only the pro-rata cost of delivering direct training to
enrollees, but also should cover costs incurred to retain third-party
providers. Two commenters stated that ITAs could be used to pay for
pre-requisites for apprenticeship such as math courses, required
education courses, and/or certifications as part of the work-based
experience. Another commenter encouraged the Department to support the
use of ITAs for competency-based apprenticeship models.
Department Response: The Department agrees with the comment that
the term ``tuition'' does not reflect the funding arrangements of
registered apprenticeship programs and has changed the text in Sec.
680.330(a)(2) to change it to ``Training services provided under a
registered apprenticeship program'' to address this and be consistent
with the way the Department refers to other types of training. The
other suggestions from commenters about allowable uses for ITA funds
are acceptable as long as the providers of those services are on the
ETPL. No other changes have been made to the regulatory text in
response to the comments.
Comments: A commenter recommended that the regulations should allow
for contracted apprenticeship programs as well as the placement of
trainees into these programs solely through the ITA system, which the
commenter described as not allowing for the easy organization of
cohort-based programs. This commenter asserted that cohort-based
apprenticeships and pre-apprenticeships can work with students
recruited through the one-stop delivery system as well as those
recruited from outside the system but would require a threshold number
of trainees to be cost effective. The commenter concluded that the
availability of trainee cohort classes in apprenticeship and pre-
apprenticeship programs is a cost-effective approach to training.
Department Response: The Department considers that these types of
training cohorts are allowable provided that the individuals meet the
training eligibility requirements and the training providers are on the
ETPL.
Comments: A commenter expressed the desire to be able to use ITAs
to pay for apprenticeship programs that are not on the ETPL and that
can last for many years to ensure that participants receive the
training needed and that the local area is able to capture all
applicable credentials received for performance purposes. Similarly, a
commenter asked how long WIOA enrollment lasts past the 6 months of OJT
if an apprenticeship lasts multiple years. This commenter also asked
how a credential is documented if a WIOA participant exits the system
prior to completion of the apprenticeship.
Department Response: To receive funds from an ITA, the training
provider must be on the ETPL. The Department encourages interested
providers to apply to be ETPs. The Department is issuing guidance about
the credential measures in performance. WIOA enrollment is governed by
the definitions of ``participant'' and ``exit'' in 20 CFR 677.150 (see
Joint WIOA Final Rule). Local areas can develop ITA contracts within
the framework of these definitions and the requirements for ITAs.
Training services should be provided based on the needs of the
individual and ITAs should be structured to address those needs.
Comments: To expand pre-apprenticeships and apprenticeships, some
commenters recommended that the one-stop centers be given authority to
initiate the application for registered apprenticeships. A commenter
recommended that one-stop centers build and maintain relationships with
apprenticeship programs that operate within their region to provide a
point of contact for individuals that would like to enroll. To serve
individuals enrolled in pre-apprenticeship or registered apprenticeship
programs best, a commenter suggested including a regulatory requirement
that the one-stop delivery system receive technical assistance to help
expand one-stop center capacity to serve women entering these training
programs.
Department Response: There is no prohibition in WIOA on one-stop
centers initiating applications for registered apprenticeships. The
Department encourages Local WDBs to partner with registered
apprenticeships, work to align service delivery, and make
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appropriate arrangements to build on these partnerships. The Department
encourages the one-stop delivery system to help populations access
training in nontraditional employment and will provide technical
assistance to share best practices on this subject.
Comments: Two commenters listed the following ways in which a one-
stop delivery system could serve the pre-apprenticeship programs,
including, marketing, referrals, training costs, direct placements in
registered apprenticeships, and use of OJT funds.
Department Response: The Department considers these recommendations
to be examples of best practices to be shared through guidance and
technical assistance.
Comments: A commenter requested clarification on several issues
related to pre-apprenticeships: (1) With pre-apprenticeship programs
moving to ITAs and therefore onto the ETPL, is the expectation that all
other intensive service providers also will be included in the ITAs and
ETPL; (2) the treatment of pre-apprenticeship programs that are not
linked to a registered apprenticeship under WIOA; and (3) whether an
out-of-school youth under 18 or an in-school youth be approved for an
ITA for a pre-apprenticeship program?
Department Response: Pre-apprenticeship programs may be eligible
for an ITA if they are on the ETPL. The Department encourages pre-
apprenticeship programs that provide training services under an ITA to
apply to be an ETP. The Department considers pre-apprenticeship
programs to be directly partnered with at least one registered
apprenticeship program; programs that do not meet this criterion are
not considered a pre-apprenticeship program for the purposes of WIOA.
In order to receive an ITA under WIOA title I adult and dislocated
worker programs, an individual must meet program eligibility criteria
as well as the training eligibility criteria.
Section 680.340 What are the requirements for consumer choice?
Comments: A commenter indicated that proposed Sec. 680.340 does
not speak effectively to the concept of ``consumer choice.'' This
commenter stated that it would take serious efforts by the Department
to develop more extensive information regarding the learning providers
to inform individuals seeking training opportunities properly.
Furthermore, the commenter asserted that posting information about
eligible trainers has not proven to assist the learner.
Department Response: The regulations on consumer choice are
consistent with the language in WIOA sec 134(c)(3)(F). The Department
emphasizes the importance of performance information on training
providers to ensure consumers may make an informed assessment of their
training options. The Department considers the role of the career
planner as critical to support individuals to make well-informed
training decisions. Career planners are responsible for making training
eligibility determinations, and these determinations require that
States and local make available high quality performance information to
participants to make informed training choices.
Comments: One commenter suggested that the Department rewrite
proposed Sec. 680.340(b) so that it is clear that there is no
requirement for the employer to report outcomes when using OJT and
customized training other than in those circumstances required by the
Local WDB.
Department Response: The Department agrees with the commenter and
has changed the regulatory text in Sec. 680.340(b) to emphasize that
the ETPL is a separate list from the list that the Governor may require
for work-based training providers.
Comments: A commenter recommended that proposed Sec. 680.340 be
revised to make it clear that training funds are not an entitlement and
that criteria in addition to eligibility are assessed prior to referral
to a provider and program. Two other commenters requested clarification
as to the reasons that training could be refused.
Department Response: WIOA is not an entitlement program.
Determinations for training are made consistent with the law, including
WIOA sec. 134(c)(3)(A), State and local policies, funding availability,
and other appropriate considerations. There have been no changes to the
regulatory text in response to these comments.
One commenter requested that the Department provide a definition
for the term ``cost of referral'' as used in proposed Sec. 680.340(d).
Department Response: The Department declines to define the term
``cost of referral'' in the regulatory text.
Comments: A commenter expressed support for the prioritization of
funding for training programs that result in a recognized postsecondary
credential.
Department Response: The Department acknowledges the comment and
has added language to the regulatory text in Sec. 680.340(f)
referencing the citation for WIOA sec. 3(52), which defines a
recognized postsecondary credential.
Comments: A commenter recommended a technical correction to
proposed Sec. 680.340(b) to reference paragraph (d) in WIOA sec. 122
rather than paragraph (e).
Department Response: The Department agrees and has made this
nonsubstantive correction in the regulatory text in Sec. 680.340(b).
Section 680.350 May title I adult and dislocated worker funds be used
to directly support adult education and literacy activities?
Comments: Some commenters recommended that the Department clarify
that WIOA title I funds can support title II adult education programs,
as the WIOA sec. 134(c)(3) definition of training includes ``adult
education and literacy activities, including activities of English
language acquisition and integrated education and training programs''
at sec. 134(c)(3)(D)(x). A commenter recommended that referrals to
regionally accredited secondary-level educational programs providing
entry-level workforce preparation and/or postsecondary education and
training activities be included as part of basic services and
counseling services. A commenter requested clarification regarding
whether alternative secondary school (formerly General Education
Diploma [GED]) preparation is considered a career service or a training
service.
Department Response: Under WIOA sec. 134(c)(3)(D)(x), title I adult
and dislocated worker funds may be used to support adult education and
literacy activities, provided concurrently or in combination with other
training services. The Department has added regulatory text clarifying
this use of WIOA title I adult and dislocated worker funds in Sec.
680.350. The Department notes that these activities for title I adult
and dislocated worker funds must be done in coordination with other
training activities in WIOA sec. 134(c)(3)(D)(x).
5. Subpart D--Eligible Training Providers
This subpart describes the process by which organizations qualify
as eligible training providers of training services under WIOA. It also
describes the roles and responsibilities of the State and Local WDBs in
managing this process and disseminating the State Eligible Training
Providers and Programs List (ETPL). Throughout the preamble, the
Department refers to the State Eligible Training Providers and Programs
List as the ``State List,'' the List, and the ETPL. The State ETPL and
the related
[[Page 56125]]
eligibility procedures ensure the accountability, quality, and labor
market relevance of programs of training services that receive funds
through WIOA title I, subtitle B. The regulations emphasize that the
List and accompanying information must be easily understood and
disseminated widely in order to maximize informed consumer choice and
serve members of the public.
The State plays a leadership role in ensuring the success of the
eligible training provider system in partnership with Local WDBs, the
one-stop delivery system, and the one-stop's partners. The Governor, in
consultation with the State WDB, must establish eligibility criteria
and procedures for initial and continued eligibility for training
providers and programs to receive funds under WIOA title I, subtitle B.
In doing so, the Governor may establish minimum performance levels for
initial and continued eligibility and the Department encourages
Governors to do so. In establishing minimum performance levels for
eligibility, the Governor should take into consideration the need to
serve targeted populations. Except for with respect to registered
apprenticeship programs, the Local WDB may establish higher performance
levels or require additional information from State eligible training
providers to receive funds through the local area Individual Training
Accounts (ITAs).
The regulations in this subpart implement WIOA sec. 122 and refer
to WIOA secs. 107, 116, and 134 where those sections affect program and
provider eligibility, the ETPL, the use of ITAs, and the inclusion of
registered apprenticeship programs on the ETPL. In Sec. 680.410, the
regulations clarify what entities can be eligible training providers.
Section 680.470 provides that registered apprenticeship programs, which
WIOA treats differently than other eligible training providers in some
respects, are automatically eligible to be included on the ETPL.
Finally, Sec. 680.500 requires the Governor or State Workforce Agency
(SWA) to disseminate the State ETPL with accompanying performance and
cost information to Local WDBs in the State and to members of the
public through specified means. The performance information must be
presented in a way that is easily understood, in order to maximize
informed consumer choice and serve all individuals seeking information
on training outcomes, including WIOA participants and individuals with
disabilities. Separately, 20 CFR 677.230 (see Joint WIOA Final Rule)
addresses the ETP annual performance reports mandated at WIOA sec.
116(d)(4), which require providers to report on, among other things,
the levels of performance for the WIOA primary indicators of
performance for all individuals enrolled in the program of study.
In response to concerns expressed by stakeholders that some
providers of training would face difficulties in participating in this
WIOA-revised system, the Department has clarified the interrelated
eligibility requirements and explained that while WIOA places an
emphasis on quality training as measured by performance criteria, State
and Local WDBs and training providers must work together in achieving
this goal. The regulations emphasize the Governor's role in offering
financial or technical assistance to training providers where the
information requirements of this section result in undue cost or
burden. Making a wide variety of high-quality programs of training
available to participants will increase customer choice and training
providers may find performance information useful to improve their
programs of study, which in turn will provide a direct benefit to
participants. The Department also encourages the Governor to work with
eligible training providers to return aggregate performance information
to the providers in ways that will help the providers improve their
program performance. The State and Local WDBs must work together to
ensure sufficient numbers and types of training providers and programs
to maximize customer choice while maintaining the quality and integrity
of training services. In addition, the regulations explain that
community-based organizations (CBOs) can be eligible training
providers, provided they meet the requirements to become eligible
training providers in WIOA sec. 122 and this subpart. Because of WIOA's
emphasis on ensuring the provision of quality training, and the
importance of using performance criteria to obtain such quality, the
Department does not intend to waive the requirement to submit
performance information at this time.
Throughout this subpart, the Department has changed references from
the Eligible Training Provider List to the list of eligible training
providers and programs to convey that the list is a compilation of the
programs of training services for which ITAs can be used. The
Department has also made revisions throughout this subpart for
consistency in the use of the term ``program of training services'' and
to incorporate the use of youth funds for ITAs for out-of-school youth
(OSY) aged 16-24.
The Department received a number of comments that pertain to the
WIOA sec. 116(d)(4) ETP annual performance reports. The Department
notes that submission of the ETP annual performance reports is required
by WIOA sec. 116(d)(4) and comments and responses relating to this
report are addressed in the Joint WIOA Final Rule preamble section for
20 CFR 677.230. This subpart D of part 680 addresses the ETP
eligibility requirements.
Section 680.400 What is the purpose of this subpart?
Proposed Sec. 680.400 explained the purpose of this subpart. It
stated that the list must be accompanied by relevant performance and
cost information and made publicly available online through Web sites
and searchable databases as well as any other means the States use to
disseminate information to consumers. The Department has made non-
substantive corrections for consistency in how the Department uses
terms throughout this section. Additionally, the Department has made
substantive changes to paragraphs (a) and (b) of this section which are
described in detail below.
Comments: A commenter requested that Local WDBs ensure the
availability of training providers that understand the unique needs of
individuals with disabilities. Another commenter cited the challenges
faced by older workers and recommended that the regulations direct one-
stop centers to take into account older workers' different training
needs and lesser access to financial aid, and make sure that older
workers are not discriminated against in access to WIOA-funded ITAs.
Department Response: The unique needs of individuals with
disabilities require a minor revision to Sec. 680.400 to emphasize the
importance of disseminating the State ETPL to individuals with
disabilities. One of WIOA's stated purposes is to increase access to
employment and training for individuals with barriers to employment,
which is defined in WIOA to include individuals with disabilities as
well as older individuals. Individuals with disabilities (e.g., those
who are blind or hearing-impaired) may have unique needs that prohibit
access to information through the Internet or other common databases.
To fulfill the statutory purpose of WIOA, the Department has added
language to Sec. 680.400(b) that requires States to disseminate
information to consumers in formats accessible to individuals with
disabilities. In response to the comment that the regulations direct
one-stop centers to take into account older
[[Page 56126]]
workers' different training needs, the Department notes that the
ability to provide services to individuals with barriers to employment
is a factor that must be taken into account in the Governor's
eligibility procedures under Sec. 680.460(f)(9) and that WIOA sec.
3(24)(D) and (E) define ``individual with a barrier to employment'' to
include individuals with disabilities and older individuals. Because
this is a required factor in the eligibility procedures, the Department
has decided not to address this in the purpose section of the
regulation. No changes were made to the regulatory text in response to
these comments.
Comments: Another commenter requested that the Department explain
whether programs other than those authorized by WIOA title I must use
the eligible training provider list. A few commenters recommended that
Sec. 680.410 specify that the requirements apply to entities providing
training to participants paid for with WIOA title I adult or dislocated
worker funding only and are not more generally applicable to all
entities providing training to adult and dislocated workers.
Department Response: WIOA's requirements regarding the State list
of eligible training providers pertains to WIOA title I, subtitle B
funds only. Core programs and partners other than the title I programs
are not required to use the list of eligible training providers and
programs, although States may choose to employ their ETP list for other
activities. No changes were made to the regulatory text in response to
this comment.
Comments: The Department received a number of comments regarding
whether youth may use ITAs in response to proposed Sec. 681.550 (Are
Individual Training Accounts permitted for youth participants?).
Department Response: In Sec. 680.400, the Department has added
that this subpart describes the process for determining eligible
training providers and programs for the adult, dislocated worker, and
youth programs. More information about this is provided in the preamble
corresponding to Sec. 681.550. The Department has updated Sec. Sec.
680.400(a), 680.430, and 680.490 to clarify which requirements of this
subpart apply to the eligible training providers and programs that
serve OSY aged 16 through 24 with ITAs.
Section 680.410 What is an eligible training provider?
The Department made non-substantive edits for consistency in how
the Department uses terms throughout this section. Additionally, the
Department has made significant substantive revisions to this section
that are explained below.
The Department significantly revised this section to more clearly
define the term ``eligible training provider'' (ETP) and changed the
section's title to reflect this change. The Department made these
changes to clarify which entities are considered ETPs, as many of the
requirements of WIOA sec. 122 apply only to those entities that are
considered ETPs under WIOA. This clarification responds to commenters'
requests for clarification on which requirements of WIOA sec. 122 apply
to which entities.
Section 680.410(a) through (c) lays out the defining
characteristics of ETPs. Specifically, revised Sec. 680.410(a)
provides that ETPs are the only types of entities that can receive
funding for training services through an ITA. This means that if an
entity is not on the State ETPL, the entity may not receive ITA funds
to pay for training services. Section 680.410(b) was revised to make
clear that ETPs must be included on the State ETPL. The Department
added new Sec. 680.410(c) to provide that ETPs must provide a program
of training services as that term is defined at Sec. 680.420.
The Department also added new Sec. 680.410(d) to describe the
kinds of entities that can be ETPs. Eligible training providers can be
institutions of higher education that provide a program which leads to
a recognized postsecondary credential, entities that carry out programs
registered under the National Apprenticeship Act (29 U.S.C. 50 et
seq.), and other public or private providers of training services,
which may include community-based organizations (Sec.
680.410(d)(3)(i)), joint labor-management organizations (Sec.
680.410(d)(3)(ii)), and eligible training providers of adult education
and literacy activities under WIOA title II if such activities are
provided in combination with the training services described at Sec.
680.350 (Sec. 680.410(d)(3)(iii)).
The Department deleted proposed paragraph (b) of Sec. 680.410 to
clarify that this subpart is focused on ETPs and the State list of
ETPs. The requirements for individuals receiving training from entities
other than ETPs are addressed in Sec. Sec. 680.320 and 680.530.
Further description of the training that can be provided to individuals
through entities other than ETPs can be found in Sec. 680.530.
Part of the reason for this revision to this section is to make it
clear that only entities that have gone through the Governor's ETP
eligibility procedures and registered apprenticeship programs are
considered ETPs, are able to be on the State ETPL, and can receive
funding through ITAs. Additionally, because only these entities are on
the State ETPL, only these entities, except for registered
apprenticeship programs, are required to provide information for the
ETP annual eligible training provider performance report required by
WIOA sec. 116(d)(4).
Comments: Many commenters provided input on specific categories of
training providers. A few commenters supported allowing Local WDBs to
provide training services as long as the Local WDB is licensed,
registered, or otherwise exempt by the State office of education. Some
commenters requested guidance on approval of distance learning
providers requesting to be put on the ETPL. One commenter requested
that the Department define and add a distance learning category as a
potential ETP.
Another commenter encouraged the Department to expand the
definition of eligibility for training providers to include platforms
that work with accredited institutions of higher education to provide
Massive Open Online Courses (MOOCs). Several commenters encouraged the
Department to revise Sec. 680.410(a) to identify public television
stations explicitly as an ETP with demonstrated expertise in developing
and implementing evidence-based training services. Another commenter
recommended that Sec. 680.410 explicitly identify public libraries as
potential providers, and particularly for enhanced digital literacy
training and services. One commenter recommended that industry-based
multi-employer training programs with a minimum of 50 percent employer
representatives be eligible for inclusion on the ETPL to allow for
training funds to be included as providers who would then be eligible
for WIOA support. Another commenter urged the Department to consider
integrating microenterprise development organizations, entities that
help people in the very earliest stages of creating their own
businesses, into the WIOA system. In addition, one commenter suggested
a revision to paragraphs (a)(1) through (3) of Sec. 680.410 to
include, as examples of eligible training providers of training
services with WIOA adult funds under title I, public or private
organizations that have demonstrated effectiveness in providing
regionally accredited secondary-level educational programs that include
entry-level workforce preparation and/or postsecondary education and
training activities.
Department Response: The Department has determined it is not
appropriate in the regulation to specify
[[Page 56127]]
types of public and private entities that are appropriate to be ETPs,
as many of these entities could be ETPs if they meet the requirements
for initial and continued eligibility under Sec. 680.410(d)(3).
Instead, the Department has defined broadly the kinds of entities which
are eligible to be ETPs based on WIOA sec. 122(a)(2). The public and
private entities commenters encouraged for inclusion on the ETPL are
within the parameters of entities under Sec. 680.410(d) that can be
ETPs, provided they meet all other applicable requirements, such as the
Governor's eligibility requirements. In addition, the Department has
not regulated to require training to be delivered in a specific format;
programs may be delivered in-person, online, or in a blended approach.
Nothing in the regulation precludes any of these approaches to
training; therefore, it is unnecessary to regulate specifically that
these are permissible types of training. In addition, the Department is
clarifying that Local WDBs may provide training services, if they meet
the conditions of WIOA sec. 107(g)(1), which includes the information
required in a written waiver request to the Governor. This provision is
addressed in Sec. 679.410. In response to the commenter that suggested
Local WDBs can provide training as long as the Local WDB is licensed,
registered, or otherwise exempt by the State office of education, the
Department notes that WIOA sec. 107(g)(1) establishes the requirements
that must be met if a Local WDB wishes to provide training. Therefore,
the Department has not included this in this section.
Section 680.420 What is a ``program of training services''?
This section defines the term ``program of training services'' that
is used throughout the regulations. The Department proposed to define
the term as one or more courses or classes, or a structured regimen
that leads to specified outcomes, including recognized postsecondary
credentials, secondary school diplomas or their equivalent, employment,
or measurable skill gains toward such credentials or employment. The
Department made non-substantive edits for consistency in how the
Department uses terms throughout this section. The Department also made
substantive revisions to paragraphs (a) and (b) which are described in
detail below.
In the NPRM preamble, the Department explained that the definition
of a WIOA ``program of training services'' includes a structured
regimen that leads to an industry-recognized credential. The NPRM
preamble indicated that the outcomes in the definition of program of
training services aligned with performance requirements in WIOA sec.
116(b)(2)(A).
Comments: Many commenters requested that the definition of
``program of training services'' be clarified with options to recognize
``non-credentialed training, such as incumbent worker training, work-
based learning opportunities, or single courses that fall within a
career pathway for employment.'' These commenters also requested
clarification of ``industry-recognized credentials'' to avoid confusion
over which programs should qualify as eligible for WIOA funding.
Several commenters requested clarification regarding how or when a
program of training services leads to ``a recognized postsecondary
credential, secondary school diploma or its equivalent.'' A few
commenters recommended that Sec. 680.420 include training programs
that lead to a ``recognized postsecondary degree or industry recognized
credential'' to avoid a potential debate over what constitutes a
``postsecondary credential.'' Other commenters suggested that a
definition of ``recognized industry credential'' include a degree,
diploma, or certification provided by an educational institution,
third-party industry association, or industry accreditation body if it
is not widely recognized by multiple employers in a region or industry.
One commenter recommended that the term ``industry-recognized
credentials'' as used in the preamble to the NPRM be added to the
regulatory text. Another commenter asked whether having a group of five
employers state the certificate of completion from a training provider
is ``industry recognized'' would meet the definition of industry-
recognized credential. One commenter recommended a change to Sec.
680.420(a) through (c), to include, as outcomes of programs of training
services, regionally accredited secondary education diplomas and career
certification for entry-level work force preparation earned as a part
of a secondary education program.
Department Response: The Department has revised the regulatory text
of Sec. 680.420 to further clarify which programs qualify as WIOA
``programs of training services.'' The introductory text of Sec.
680.420 was modified to clarify that a ``program of training services''
is one that provides the services in Sec. 680.200 and leads to any of
the outcomes listed in paragraphs (a) through (d) of this section,
making clear the relationship between the definition of ``program of
training services'' in this section and the definition of ``training
services'' in Sec. 680.200.
Section 3(52) of WIOA defines the term ``recognized postsecondary
credential,'' which was used in the Department's proposed definition of
a ``program of training services.'' The Department has revised Sec.
680.420(a) to include all of the credentials, certificates, licenses,
and degrees included in the WIOA definition of ``recognized
postsecondary credential.'' However, the Department removed the term
``recognized postsecondary credential'' from the definition of
``program of training services'' in response to comments that this may
be read as too limiting if it is interpreted to mean that these
credentials can only be obtained by individuals who have a secondary
degree, or a high school diploma or its recognized equivalent. The new
definition of ``program of training services'' remains consistent with
the program outcomes described in WIOA sec. 116(b)(2)(A) and 20 CFR
part 677 (see Joint WIOA Final Rule).
The Department chose not to define the term ``industry-recognized
credential'' in the subpart and used the term ``industry-recognized
certificate or certification'' in the definition of ``program of
training services'' in order to mirror the definition of ``recognized
postsecondary credential'' under WIOA. The term ``industry-recognized
credential'' is an evolving term and the Department determined that
defining it in the regulation may limit future innovation around
industry-relevant training.
The Department agrees that programs of training services should be
inclusive of non-credentialed training, such as incumbent worker
training, work-based learning opportunities, or single courses that
fall within a career pathway. The introduction to Sec. 680.420
emphasizes that training services that ``lead to'' any of the outcomes
listed at Sec. 680.420, which includes employment, is a program of
training services. Therefore, programs that are components of such a
regimen may be eligible programs.
In addition, as explained in Sec. Sec. 680.410 and 680.350 and
associated sections of the preamble, WIOA title I adult and dislocated
worker funds may be used for programs of training services that provide
adult education and literacy activities if they are provided
concurrently or in combination with occupational skills training and
training services specified in Sec. 680.350. For example, English as a
second language may be part of a program of training services that
leads to measurable skill gains toward postsecondary credentials,
industry-recognized credentials, or
[[Page 56128]]
employment. The Department has added a cross reference to Sec. 680.350
in Sec. 680.420(b) to clarify that a participant may utilize a program
offering a secondary school diploma or its equivalent only when that
program is offered in conjunction with occupational skills training and
other training options listed at Sec. 680.350. The revised definition
of program of training services and the acceptable outcomes to which a
structured regimen may lead align with the definitions within WIOA sec.
116(b)(2)(A) and in 20 CFR part 677 (see Joint WIOA Final Rule).
Section 680.420(d) provides that a program of training services is one
that leads to measurable skill gains towards a credential described in
paragraph (a) or (b) of this section. In this context, the term
``measurable skill gains'' is used similarly to its use in 20 CFR part
677 and the accompanying ICR. For clarification, the Department notes
that the ETP annual performance report layout required under WIOA sec.
116(d)(4) uses the term ``training program,'' which is synonymous with
``program of training services.''
Section 680.430 Who is responsible for managing the training provider
eligibility process?
Section 680.430 outlines the roles and responsibilities of the
Governor, the State WDB, any designated State agencies, and Local WDBs
in establishing and implementing criteria and procedures for
determining the eligibility of training providers. The Department
received several comments addressing Sec. 680.430. The Department made
non-substantive edits for consistency in how the Department uses terms
throughout this section and to this section's title. The Department
also made substantive changes to paragraphs (a), (c)(3), and (d), and
these changes are described in detail below.
The title to this section of the NPRM was ``Who is responsible for
managing the eligible provider process.'' The Department is making a
non-substantive edit and inserting the word ``training'' between
``eligible'' and ``provider'' for consistency.
The Department modified Sec. 680.430(a) to clarify that the
Governor, in consultation with the State WDB, establishes the criteria,
information requirements, and procedures, including procedures
identifying the roles of the State and local areas, governing
eligibility of providers and programs of training services to receive
funds for out-of-school youth as described in Sec. 681.550.
The Department renumbered and re-arranged paragraph (d) and added
paragraph (e) for consistency with other portions of this subpart,
including Sec. Sec. 680.450, 680.460, and 680.470, in regard to what
is required for registered apprenticeship programs to be an eligible
training provider. These provisions of the subpart make it clear that
registered apprenticeship programs are not required to follow the
Governor's eligibility procedures (initial or continued) in order to be
eligible training providers. This is consistent with WIOA sec.
122(a)(3), which provides that registered apprenticeship programs are
maintained on the State List for so long as the program is registered
under the National Apprenticeship Act. Therefore, the Department
modified this section to ensure that the registered apprenticeship
programs are not subject to the additional standards that may be
established by a local area.
Because registered apprenticeship programs are not subject to the
Governor's criteria and information requirements or required to report
on their levels of performance for eligibility, Local WDBs cannot
establish additional criteria and information requirements or establish
higher levels of performance for these entities to receive training
services in the local area. Moreover, permitting the Local WDBs to
establish additional criteria and performance standards for registered
apprenticeship programs would be in tension with what the Department
has determined is a key purpose of sec. 122(a)(3): Encouraging the
integration of the registered apprenticeship program into the WIOA
system. Section 680.430(d) provides that the Local WDB can make
recommendations to the Governor on the procedure used in determining
the eligibility of providers and programs. This is not a change from
the NPRM.
The Department has added new Sec. 680.430(e), which contains the
provisions from proposed Sec. 680.430(d)(2) and (3), but clarifies
that the provisions do not apply with respect to registered
apprenticeship programs. Except for registered apprenticeship programs,
the Local WDB may establish higher performance levels or require
additional information from State eligible training providers to
receive funds through local area ITAs. Paragraph (e)(1) provides that
the Local WDB can, except with respect to registered apprenticeship
programs, require additional criteria and information from local
programs to become or remain eligible, and paragraph (e)(2) states that
the Local WDB can set higher levels of performance, except with respect
to registered apprenticeship programs, than those required by the State
for local programs to become or remain eligible. In paragraph (e)(2),
the Department made a non-substantive edit changing the phrase ``local
providers'' to ``local programs'' to clarify that eligibility is
determined on a program-by-program basis and removed the word
``particular'' from this paragraph as unnecessary.
Comments: One commenter commended the Department for outlining the
responsibilities of State and Local WDBs to ensure adequate
availability of training services for individuals with disabilities and
recommended that Sec. 680.430(c)(3) similarly remind Local WDBs to
disseminate and maintain lists of providers in formats accessible to
individuals with disabilities.
Department Response: As noted above under Sec. 680.400, the State
List must be made publicly available in a format this is accessible to
individuals with disabilities. One of WIOA's stated purposes is to
increase access to employment and training for individuals with
barriers to employment, which WIOA defines as including individuals
with disabilities as well as older individuals. Individuals with
disabilities (e.g., those who are blind or hearing-impaired) may have
unique needs that prohibit them from accessing information through the
Internet or other common databases. To fulfill one of the statutory
purposes of WIOA articulated in WIOA sec. 2(1), the Department has
added language to Sec. 680.430(c)(3) requiring that Local WDBs ensure
that the State list of eligible training providers and programs is
disseminated through the one-stop delivery system in formats accessible
to individuals with disabilities.
Comments: A commenter asked the Department to revise Sec.
680.430(d)(1) to require the Governor to engage with the Local WDB and
to require an equal exchange of information that allows for mutual
consent in the management of the ETP process.
Department Response: The Department considered this comment;
however, WIOA sec. 122 explicitly states that the Governor, in
consultation with the State WDB, is to establish the criteria,
information requirements, and procedures governing the eligibility of
providers and programs and the Department will not create an additional
requirement that the Governor obtain mutual consent of the Local WDBs.
Moreover, Sec. 680.430(d) already provides a role for the Local WDB in
this process: It allows Local WDBs to make recommendations to the
Governor on
[[Page 56129]]
the procedures used to determine eligibility of providers and programs.
The Department encourages Local WDBs to make such suggestions and
strongly encourages the Governor to carefully consider and incorporate
the Local WDBs' suggestions, as they are most familiar with the
training needs of their specific area. No changes were made to the
regulatory text in response to this comment.
Comments: One commenter recommended that the regulation explicitly
require a Governor to make the process for becoming an ETP transparent
and ensure adequate access for CBOs to become ETPs. The commenter
stated that a transparent and accessible process is necessary in order
to expand access to a variety of high-quality providers and programs
for individuals seeking employment and a way out of poverty.
Department Response: The Department notes that Sec. 680.410 was
modified to include paragraph (d)(3)(i), which explicitly acknowledges
that CBOs may be eligible training providers. Moreover, CBOs can
provide training through training contracts with the Local WDB under
Sec. 680.320. The Department agrees that a transparent process is
important. Section 680.450(c) requires the Governor to solicit and take
into consideration recommendations from Local WDBs and providers,
provide an opportunity for interested members of the public to comment,
and designate a specific time for doing these things. Additionally,
Sec. 680.460(e) requires that the Governor's procedures be described
in the State Plan, which is subject to the public comment requirements
for State Plans. Because the Department concludes the process will
already be transparent as public comment is required in the development
of the procedures and in the development of the State Plan, no changes
were made to the regulatory text in response to this comment.
Comments: Another commenter recommended that ``may'' be changed to
``must'' in Sec. 680.430(c)(2), to ensure that States with large
Indian, Alaska Native and Native Hawaiian populations focus attention
on the special circumstances of these populations.
Department Response: The Department notes that Sec. 680.430(c)
requires the Local WDB to carry out the activities in Sec.
680.430(c)(2) and already uses the term ``must.'' This section of the
regulation implements WIOA sec. 107(d)(10)(E), which requires the Local
WDB to work with the State to ``ensure there are sufficient numbers and
types of providers of career services and training services (including
eligible training providers with expertise in assisting individuals
with disabilities and eligible training providers with expertise in
assisting adults in need of adult education and literacy activities)
serving the local area and providing the services involved in a manner
that maximizes consumer choice, as well as providing opportunities that
lead to competitive integrated employment for individuals with
disabilities.'' This section is focused on ensuring consumer choice for
individuals with disabilities and adults in need of adult education and
literacy activities. However, the Department interprets Sec.
680.430(c)(2) to ensure that there are sufficient numbers and types of
providers of career services and training services, to include ensuring
that such services are available to assist specific populations such as
the Indian, Alaska Native, and Native Hawaiian populations. No changes
to the regulatory text were made in response to these comments.
Section 680.440 [Reserved]
The NPRM included a proposed Sec. 680.440 implementing WIOA sec.
122(c), which allowed the Governor to establish a transition procedure
for training providers eligible under WIA to maintain their eligibility
and the eligibility of their programs under WIOA until December 31,
2015. In this Final Rule, the Department has removed Sec. 680.440 in
its entirety because the time during which providers could retain their
eligibility under WIA into WIOA has elapsed. Therefore, this provision
is no longer necessary. Although this provision is not in the Final
Rule, the Department received several comments on the proposed rule and
is addressing them below.
Comments: Commenters addressed the Department's proposed timeline
and transition procedures for implementation of the continued
eligibility provisions for ETPs eligible under WIA. A handful of
commenters expressed support for exempting ETPs eligible under WIA from
initial eligibility procedures and for providing these ETPs a
transition period before requiring compliance with the application
procedures to establish continued eligibility.
A number of commenters requested that the Department allow States
more time to implement the continued eligibility procedures. One
commenter recommended that the Department extend the time allowed for
transition of ETPs to meet the new requirements under WIOA until June
30, 2016. Another commenter recommended that the Department allow all
ETPs to receive initial and/or subsequent eligibility under WIA
regulations until the State publishes and implements its new
eligibility procedures, no later than June 30, 2016, reasoning that
this approach would be consistent with the Department's transition
authority in sec. 503 of WIOA. One commenter cautioned that the
procedures for initial and continued eligibility are lengthy and that
there would not be enough time for implementation, then urged the
Department to adopt more flexible procedures for easier implementation.
A few commenters recommended that a waiver provision be added in
the WIOA Final Rule relating to the application for continued
eligibility of ETPs. Another commenter recommended a longer period of
transition (i.e., more than 12 months) because of the additional
information required from applicants to become an ETP under WIOA as
well as the additional programming needed to electronically capture
this information.
One commenter recommended that States be allowed to use existing
procedures for new providers and develop and implement new procedures
by July 1, 2016, consistent with the start date of Unified State Plans.
The commenter reasoned that this timeframe would allow States to
identify best procedures and update software programming and user
training and communicate these to potential providers. Other commenters
recommended that the timeframe relevant in Sec. 680.440 be determined
by each individual State policy as determined by the Governor, without
providing additional detail about the specific activities of concern.
One commenter requested that continued eligibility be implemented as a
phased transition.
Department Response: In order to facilitate the transition from WIA
to WIOA and give the states sufficient time to create robust
eligibility policies and procedures for ETPs, the Department exercised
its transition authority and issued guidance (Training and Employment
Guidance Letter (TEGL) 41-14, Change 1) that extended the timeline for
implementation of continued eligibility requirements for training
providers eligible under WIA by 6 months through June 30, 2016, unless
the Governor determined that an earlier date was possible. While this
is not the 12-month extension requested by a commenter, the Department
concluded this was sufficient time for States to implement the
continued eligibility procedures. The Department has chosen not to
regulate waiver policy in the Final Rule.
[[Page 56130]]
WIOA sec. 122(b)(4)(B) requires providers not previously approved
under WIA to complete the initial eligibility procedure. WIOA sec.
122(i) requires that the Governor and Local WDBs implement these
requirements no later than 12 months after the date of enactment.
Although States are required to implement new procedures for initial
eligibility and continued eligibility, rather than using existing
procedures, the regulation at Sec. 680.460(f)(1)(v) allows the
Governor to use alternate factors for performance until performance
information is available to establish continued eligibility. The
Department notes that the Governor has discretion to determine what the
alternate factors for performance are; thus the Governor's procedure
may take into account existing performance information. Moreover, the
regulation at Sec. 680.450(e)(2) requires the initial eligibility
procedures to take into account ``a factor related to'' the indicators
of performance which may take into account existing performance
information.
It is unclear what the commenter is suggesting by a ``phased
transition.'' The Department notes that the Governor's transition
procedures could have been implemented in phases if the Governor chose
to conduct the transition this way, as long as the continued
eligibility procedures were implemented in a timely way to ensure that
continued eligibility was established prior to the end of the
transition period in that State, which, consistent with ETA guidance,
could have extended no later than June 30, 2016.
The Department notes that it also received comments on this section
related to the eligible training provider annual performance report
required under WIOA sec. 116(d)(4). The Department addresses these
comments and provides responses in the preamble to 20 CFR 677.230 (see
Joint WIOA Final Rule).
Comments: Several commenters expressed confusion about how
providers designated under WIA between WIOA's enactment on July 22,
2014, and implementation of WIOA's ETP provisions on July 22, 2015,
were to be treated. One commenter requested that the Department clarify
the date at which States are no longer allowed to use their old
eligibility-determination process. Another commenter recommended either
grandfathering or offering States the discretion to allow training
providers that become eligible under WIA between July 22, 2014, and
June 30, 2015, to remain eligible training providers until December 31,
2015, or to an earlier date according to the Governor's transition
procedures.
Department Response: The Department is clarifying that WIOA sec.
122(i) covers all providers and programs that were previously eligible
under WIA. Thus, any provider that was previously eligible under WIA
procedures, regardless of whether this was before or after the date of
WIOA's enactment on July 22, 2014, is subject to the continued
eligibility procedures under WIOA. This reading is consistent with WIOA
and with the Department's intention stated in the NPRM to grandfather
all WIA providers through the duration of the Governor's transition
period. The Department modified Sec. 680.460(a)(1) to make the
treatment of providers and programs eligible under WIA consistent,
regardless of whether they became eligible before, on, or after July
21, 2014. This interpretation is in accord with WIOA secs. 122(b)(4)(B)
and 122(i) because all WIA providers determined eligible through June
30, 2015, were deemed eligible under the version of WIA sec. 122
requirements in effect on July 21, 2014 (the day before enactment of
WIOA).
Section 680.450 What is the initial eligibility process for new
providers and programs?
Section 680.450 establishes the requirements for the initial
eligibility procedures for new providers and programs. The Department
made non-substantive edits for consistency in how the Department uses
terms throughout this section. The Department also made substantive
edits to paragraph (b), which are discussed in detail below.
Comments: The Department received comments addressing various
issues relating to Sec. 680.450. Several commenters expressed support
for the proposed initial eligibility process. Other commenters
suggested that provisions for waivers be included in Sec. Sec. 680.450
(initial eligibility) and 680.460 (continued eligibility) of the Final
Rule, and that WDBs be given authority to waive eligibility
requirements on a case-by-case basis where it is in the best interest
of those receiving training services. Some commenters recommended that
Governors be given authority to approve public higher education schools
automatically, similar to the proposed approach for registered
apprenticeship programs, including eliminating the need for these
institutions to be subject to initial or continued eligibility. These
commenters stated that this was a duplicative burden on these
institutions that are already required to report on programs to their
primary funding sources. Several commenters recommended that National
Farmworker Jobs Program (NFJP) grantees be presumed to be ETPs and be
included on their States' ETPLs automatically to encourage and
streamline the ability of WIOA adult and dislocated worker programs to
co-enroll participants who also qualify for NFJP. In addition, one
commenter expressed concern that its State would be unable to implement
a new process that includes creating a technical system to track
provider performance and other new WIOA requirements, as well as have
public comment and implement by July 22, 2015, the date by which
initial eligibility procedures are required to be implemented. Another
commenter stated that even though local areas may set more stringent
standards for performance for eligible training providers, because
providers can apply to any Local WDB for approval to the statewide
list, these more stringent standards are ineffective in ensuring
provider quality. This commenter suggested that local areas should have
full control over their Eligible Training Provider List, provided
minimum standards are met.
Department Response: The Department is clarifying in this preamble
that States and local areas are the only entities authorized to
determine new provider or program eligibility under WIOA. WIOA sec.
122(a) requires the Governor to determine eligibility procedures. State
and Local WDBs do not have authority under WIOA to waive initial or
continued eligibility requirements. The Department is therefore not
including such waiver authority in this subpart. However, the
eligibility requirements in the regulations are quite flexible because
although they require the Governor to take certain factors into
account, they do not proscribe what weight is given to any one factor.
Additionally, Local WDBs may use contractual arrangements under
Sec. Sec. 680.320 and 680.530 to ensure that training is available.
Automatic approval of higher education institutions or NFJP grantees as
eligible training providers is not permitted under WIOA; these
institutions and grantees will need to apply for initial eligibility in
the same manner as all other training providers. In response to
comments about duplicative burden, the Department acknowledges that
there may be some duplication of requirements. However, the Department
encourages these institutions to examine where there is overlap in the
reporting requirements to minimize duplicative
[[Page 56131]]
work in complying with all of the institution's reporting requirements.
Therefore, no change was made in response to this comment.
The Department has made no change to the timeline for implementing
initial eligibility procedures in order for new training providers and
programs to be included on the State Eligible Training Provider and
Programs List. The States must implement initial eligibility procedures
within 1 year of WIOA's enactment as is required under WIOA sec.
122(c).
The Department corrected the reference to paragraph (d) in Sec.
680.450(c) to paragraph (e).
Comments: Several commenters provided input on the specific
performance information that the Governor of each State is required to
request from potential training providers under Sec. 680.450(e).
Department Response: The Department considered commenters'
suggestions on what kinds of information could be considered a ``factor
related to the indicators of performance'' to meet Sec. 680.450(e)'s
requirement. However, with regard to the comments on the performance
information requirements in Sec. 680.450(e), no substantive changes
were made to the regulatory text in response to these comments. In
part, because the factors related to performance that a Governor must
take into account to establish initial eligibility are set forth in
WIOA sec. 122, the regulations are consistent with the statutory
requirements. Moreover, WIOA sec. 122 gives the Governor the discretion
to determine the procedures for initial eligibility and establish
minimum performance standards and the Department wants to allow the
Governor the flexibility to establish procedures that are most relevant
and applicable to the Governor's State.
Section 680.450(e)(2) requires the initial eligibility procedures
to take into account ``a factor related to the indicators of
performance . . . .'' This does not mandate a specific factor and it is
at the Governor's discretion to determine what information to require
for the applicant to meet this requirement. The Department has listed
below the comments and responses received on the requirement at Sec.
680.450(e)(2).
Finally, the Department notes that it revised Sec. 680.450(e)(4)
to clarify its implementation of WIOA sec. 122(b)(4)(E)(iii). This
provision of WIOA permits the Governor to require other factors that
indicate high-quality training services, including the factor described
at WIOA sec. 122(b)(1)(H). WIOA sec. 122(b)(1)(H) requires an analysis
of the quality of a program of training services, including programs of
training services that lead to recognized postsecondary credentials.
Therefore, the Department has made a minor revision to Sec.
680.450(e)(4) to reflect that the Governor's criteria may require
applicants to provide information demonstrating the program is a high
quality program, which can include information related to training
services that lead to recognized postsecondary credentials.
Comments: A few commenters described the burden associated with the
proposed performance information requirements and cautioned that they
may limit the options available to training customers. Similarly, one
commenter stated that the performance information requirements under
both Sec. Sec. 680.450 and 680.460 were too burdensome for small
training providers, who are generally not equipped for tracking
employment outcomes.
Department Response: The Department considered commenters' concerns
about the burden of providing performance information under Sec. Sec.
680.450 and 680.460. However, the information required for submission
is set out in WIOA sec. 122 and the sections implement WIOA's
requirements for initial and continued ETP eligibility. The Department
encourages States and providers to consider the benefit to the programs
of training of having robust performance outcome data that can be used
to evaluate and advertise the effectiveness of their programs of
training. No changes were made to the regulatory text in response to
these comments.
Comments: A commenter cautioned against requiring past performance
information for new training providers that do not have past
performance information to evaluate. Another commenter recommended
requiring applicant training providers to present average earning rates
after exit rather than median earnings.
Department Response: The Department considered the commenter's
recommendation, but determined that the Governor's flexibility to
determine what factors related to the performance indicators will be
selected as part of the initial eligibility criteria is sufficient.
This includes determining what factor related to performance may be
used for new training providers. The Department notes that while the
Governor has discretion to determine the factor related to performance
that may be used for initial eligibility, once eligibility is
established, WIOA sec. 116(b)(2)(A)(i)(III) requires approved ETP
programs to report on median earnings. However, this does not prohibit
the Governor from also requiring ETP programs to report on average
earnings. No changes were made to the regulatory text in response to
these comments.
Comments: One commenter requested changes in training provider
eligibility criteria for providers that are different from WIA
occupational skill providers (e.g., pre-apprenticeships,
entrepreneurial training, customized and incumbent worker training, and
youth services).
Department Response: As explained above, the provider eligibility
criteria are left to the Governor's discretion. No changes have been
made to the regulatory text in response to this comment. However, the
Department notes that it is within the Governor's discretion to have
specific eligibility criteria for providers that provide training that
is distinct from traditional WIA-occupational skill providers, as long
as the criteria also comply with Sec. Sec. 680.450 and 680.460 and are
included in the State's policies. Section 680.530 and its preamble
provide additional information on how States may provide customized and
incumbent worker training.
Comments: One commenter asked whether each State is required to
specify which elements from Sec. 680.450(e)(2) training providers need
to provide information on or whether the training provider can submit
information on any of the factors listed.
Department Response: The State procedure must specify which
elements from Sec. 680.450(e)(2) training providers need to provide
information on and what verifiable information will satisfy this
requirement.
Comments: Another commenter sought clarification of the definition
of ``partnership with a business'' as used in NPRM Sec. 680.450(e)(3),
and asked how this would impact the eligibility of a training provider.
Department Response: The Department is clarifying that information
about whether a provider is ``in a partnership with a business'' under
Sec. 680.450(e)(3) could include information about the quality and
quantity of employer partnerships. However, the Department did not
include this example, or others in the regulation text, as States may
have other methods for determining whether the provider is in a
partnership with a business and including one example may be seen as
limiting State options. The impact of this factor on the eligibility of
the training provider is
[[Page 56132]]
determined by the Governor's initial eligibility procedure.
Comments: One commenter requested flexibility in initial
eligibility requirements for training providers in rural areas and
those serving the hardest to serve populations.
Department Response: The Governor may require additional
information in order to ensure that the needs of the State are being
met, including in rural areas and in serving hard-to-serve populations.
The Governor's procedure determines how these additional factors may
impact initial eligibility. In addition, the Local WDB must work with
the State to ensure there are sufficient numbers and types of providers
of training services, including eligible training providers with
expertise in assisting individuals with disabilities and eligible
training providers with expertise in assisting adults in need of adult
education and literacy activities described under WIOA sec.
107(d)(10)(E), serving the local area. No changes were made to the
regulatory text in response to this comment.
Comments: Another commenter urged the Department to require new
applicants to be subject to the same anti-discrimination provisions as
registered apprenticeship programs under 29 CFR part 30. This commenter
suggested that new applicants provide the following: A plan for
recruitment to ensure underrepresented populations have access to
nontraditional opportunities; capacity to deliver equitable training
practices and classroom and OJT training environments that support
underrepresented populations' success and retention in the training
program; and support services, case management, mentorship, and other
strategies necessary for underrepresented populations' success in
training and employment.
Department Response: Title 29 CFR part 30 governs the policies and
procedures to promote equality of opportunity in apprenticeship
programs registered with the U.S. Department of Labor and State
apprenticeship programs registered with recognized State apprenticeship
agencies. Therefore, the Department will not apply 29 CFR part 30 to
all eligible training providers. However, for all other programs, the
Department notes that the Governor has discretion to consider a wide
range of factors when determining initial and continuing eligibility
under Sec. Sec. 680.450 and 680.460. Therefore, if the Governor wishes
to consider factors such as an eligible training provider's treatment
of underrepresented populations, this is within the Governor's
discretion. The Department has determined that applying criteria
developed for one type of program of training to all types of training
programs may unnecessarily limit the types of programs of training
available to participants in WIOA programs. No changes were made to the
regulatory text in response to this comment.
Comments: The Department also received responses to the specific
solicitation in the NPRM requesting comments about the types of
verifiable program-specific information the Governor must require from
providers seeking initial eligibility as ETPs under Sec. 680.450(e).
Department Response: The Department has carefully analyzed the
comments regarding verifiable program specific performance information,
including the suggestions of specific factors and methods of providing
verifiable information in the least costly manner. The Department has
determined that no substantive changes to regulatory text are necessary
in response to these comments. Instead, the Department is clarifying
that the Governor and the States have discretion when developing their
initial eligibility criteria and requirements to decide what
constitutes verifiable program specific performance information and the
factors related to indicators of performance. This flexibility will
enable States to meet the individual needs of each State and allow each
State to establish requirements that the ETPs and the State are able to
manage given their current levels of technology. Examples of potential
criteria include average earnings rates, average cost of training, and
criteria based on information available in UI wage records. However,
these examples are not intended to be an exhaustive list and States are
not limited to the Department's suggestions.
In meeting the requirement that the factor be ``related'' to the
WIOA sec. 116 reporting requirements in Sec. 680.450(e)(2), this
factor need not be limited to WIOA participants, even though under sec.
116 the primary indicators of performance require reporting on WIOA
participants. This is because programs of training applying for initial
eligibility will be applying to serve WIOA participants for the first
time and will not have results available for WIOA participants.
Comments: One commenter stated that the easiest-to-verify
information that providers could furnish would be customer-level data
that States can match to unemployment insurance (UI) wage records to
determine employment outcomes. The commenter stated that providers
would be expected to submit that information if they are placed on the
ETPL because this information would be required for the ETP annual
performance report. The commenter asserted that requiring information
for an eligibility determination that matches information required for
the ETP annual performance report would reduce costs for both providers
and States and increase data integrity. A few commenters stated that
the most valid, reliable, and efficient way to measure training
providers' performance is for the State to first collect a small set of
seed records from each provider for each student (e.g., social security
number, program of study, start date, end date, credential, and
demographic characteristics) and then link the records with UI wage
records and other administrative records used to determine outcomes.
Department Response: The Department notes that these are potential
options for States and the Governor may choose to utilize these
approaches. However, the Department has chosen not to require States to
implement these approaches for initial eligibility to give States the
flexibility to determine the most effective method for obtaining
verifiable program specific performance information for determining
initial eligibility. As explained earlier, the Department recognizes
that there is overlap between what is required for eligibility and the
WIOA sec. 116(d)(4) ETP annual performance report. The Department
strongly encourages States and ETPs to work together to find
efficiencies in how information can be reported in the performance
report and for eligibility purposes. No changes were made to the
regulatory text in response to these comments.
Comments: Another commenter stated that the regulations should
encourage ETPs to focus their follow-up efforts on participants who do
not appear in the UI wage records, relieving data collection burdens on
the individual participants and the non-public training providers.
Department Response: The Department recognizes that social security
numbers will not be available for each participant and has determined
that supplemental follow-up methods will be allowable. The use of
supplemental information in performance reporting is further discussed
in 20 CFR part 677 (see Joint WIOA Final Rule) and the associated ICR.
Comments: Another commenter requested that the system used to
gather ETP data should be accurate by nature
[[Page 56133]]
so that Local WDBs are not required to monitor or ensure accuracy of
information.
Department Response: The Governor or the Governor's designated SWA
(or appropriate State entity) is responsible for ensuring that programs
meet eligibility criteria and performance levels established by the
State, including verifying the accuracy of the information. The Local
WDB must carry out the procedures assigned to the Local WDB by the
State, including monitoring and ensuring accuracy of the information.
No changes were made to the regulatory text in response to this
comment.
Comments: One commenter recommended specific performance
information to be collected, including average cost of training to
include tuition, supplies, and supportive service needs; loan default
rates; employer partners; and the completion rates of all students
rather than the exit rates.
Department Response: The Departments have included in the subpart
only the performance information required by WIOA secs. 122 and 116.
However, as described in Sec. 680.490(c), the Department notes that
the Governor may require additional specific performance information
that the Governor determines to be appropriate to determine or maintain
eligibility. No changes were made to the regulatory text in response to
this comment.
Comments: One commenter stated that wages and retention should be
verified using the employment base wage.
Department Response: The Department is unclear what the commenter
intends by ``employment base wage.'' However, the Department has chosen
not to require States to implement these approaches for initial
eligibility. States have the flexibility to determine the most
efficient method for obtaining and verifying program specific
performance information for determining initial eligibility.
Comments: A few commenters suggested that States should be allowed
to use supplemental/existing data because most schools are already
required to report on programs to their primary funding sources, making
the ETP reporting requirement a duplicative effort. These commenters
asserted that the local area should determine if a training provider's
performance is acceptable and whether the training provider should
continue to be listed on the ETPL.
Department Response: The Department recognizes that some of the
information ETPs are currently reporting might overlap with the
information required for reporting for initial eligibility. The
Department encourages States to examine closely WIOA reporting
requirements and the other requirements ETPs are subject to, to find
overlap and reporting efficiencies. Regarding the commenter's
suggestion that the local area determine if a training provider's
performance is acceptable, the Department notes that WIOA sec.
122(b)(3) and Sec. 680.430(e) provide that Local WDBs can establish
criteria and information requirements, in addition to the Governor's,
and require higher levels of performance than the Governor for purposes
of determining the continuing eligibility of providers to receive funds
to provide training services in the Local WDB's area. No changes to the
regulatory text have been made in response to this comment.
Comments: Some commenters recommended that the Department allow
States to determine the definition of verifiable information. Another
commenter requested clarification regarding the ``program specific''
indicators required by the Department and recommended that States be
allowed the flexibility to define what those mandated indicators will
be through their ETP State policy.
Department Response: As explained above, this subpart leaves the
Governor the flexibility to determine what constitutes ``verifiable
program-specific information.'' No changes were made to the regulatory
text in response to this comment.
Comments: One commenter suggested that providers report data on
(and States determine eligibility for) all similar degree programs as
one. For example, all bachelor's degree programs at that provider are
reporting as one bachelor's degree program, rather than breaking them
out into bachelor's in education, bachelor's in biology, bachelor's in
math, etc. This commenter also suggested that providers report data on
(and States determine eligibility for) the main program of study,
rather than all of the individual courses that make up the program.
Further, this commenter recommended that providers do not need to
report on (and States determine eligibility for) courses that are pre-
vocational intensive service or skills upgrade courses, or courses that
cross industry sectors and occupations or which are less than 3 days in
duration.
Department Response: In response to the recommendation that
eligibility be determined generally at the degree level, the Department
is clarifying that eligibility is determined at the level of ``program
of training'' as described in Sec. 680.420, rather than at the class,
course or general degree level. A program of training may involve one
course or a course of fewer than 3 days in duration, if the course
leads to one of the outcomes as described in the definition of a
program of training services at Sec. 680.420. In order for such a
program of training to receive WIOA title I adult, dislocated worker,
or youth training funds through an ITA, the program must be determined
eligible and is therefore subject to reporting requirements. Registered
apprenticeship programs are an exception to the eligibility
requirements. Work-based training options do not receive training funds
through an ITA, and are described at Sec. 680.530. No changes were
made to the regulatory text in response to this comment.
Comments: One commenter recommended that States be given an
additional 2 years to implement the performance information
requirements in Sec. Sec. 680.450(e) and 680.460(f). After stating
that the Department does not anticipate complete performance data
derived from wages until PY 2018, a few commenters suggested allowing
eligibility to be based on completion rates and credentials until
complete employment and wage performance data can be collected.
Department Response: The Department has determined that a
regulation change is not necessary given the flexibility in the
regulation at Sec. Sec. 680.460(f)(1) and 680.450(e)(2). Under Sec.
680.460(f)(1), the State may use alternate factors for performance
until data from the conclusion of each performance indicator's first
data cycle is available. Under Sec. 680.450(e)(2), the Governor's
procedure must require applicant providers to provide information
addressing a factor related to performance indicators, meaning that the
Governor's initial eligibility procedure may not require the provision
of the results for each of the indicators of performance. The required
factors for initial and continued eligibility allow the Governor's
procedure to determine whether to set minimum performance standards and
how much emphasis to put on any one factor that is taken into account.
Although the Department determined no change to the regulation was
necessary in response to those comments, the Department has made a
revision to Sec. 680.450(f) by inserting the word ``performance''
between ``minimum standards'' to clarify that the minimum standards a
Governor may set refer to minimum performance standards. Additionally,
in response to commenters who requested that initial
[[Page 56134]]
eligibility last for longer than a year because more time is needed to
generate enough exiters to provide a meaningful outcome measurement
given the data lag for performance indicators, the Department is
clarifying that Sec. 680.460(f)(1)(v) allows the Governor to take into
account alternate factors related to the performance indicators
described in Sec. 680.460(f)(1) until performance information is
available. Similarly, for initial eligibility, the Governor may use a
factor related to performance in determining eligibility. Thus, the
Governor's ability to establish continued eligibility procedures and to
take other factors into account enable the State to build in
consideration of the limits of initially eligible training providers to
supply performance information after only 1 year. The Department notes
that it also plans to launch an intensive technical assistance effort.
Comments: A commenter requested that initial eligibility under
Sec. 680.450(g) last longer than 1 year because more time is needed to
generate enough exiters to provide a meaningful outcome measurement
given the data lag for performance indicators, such as earnings in the
fourth quarter after program exit.
Department Response: The Department has determined that initial
eligibility will be maintained at 1 year. WIOA sec. 122(b)(4)(B)
provides that initial eligibility is ``for only 1 fiscal year.''
However, because program eligibility is not aligned with a fiscal year,
the Department has removed the word ``fiscal'' from paragraph (g) in
this section. Since initial eligibility may be determined at any time
during a calendar year or program year, requiring initial eligibility
to be for 1 year, rather than 1 fiscal year enables the State to
establish a 12-month initial eligibility period for each program.
Comments: One commenter recommended that the Department launch an
intensive technical assistance effort for States to develop the IT
infrastructure needed to meet these requirements. Another commenter
requested that the regulation allow States and localities to waive the
reporting requirements for libraries when developing lists of ETPs in
the first year, on the grounds that libraries would be prevented from
providing training with WIOA funding without such a waiver. A few
commenters stated that reductions in overall funding and limited
funding for the Governor's set-aside will make performance reporting
requirements, including the need to modify data reporting systems,
difficult. As a solution to this concern, commenters recommended that
the full Governor's set-aside be reinstated. One commenter encouraged
the Department to pay particular attention to the impact that the
requirements would have upon students that have expressed a desire to
reengage back into the educational system and obtain their accredited
high school diploma. The commenter made several specific
recommendations about programs that would be helpful for this
particular population, including making State WIOA program eligibility
to be dictated by regional accreditation.
Department Response: The Department has already deployed technical
assistance for ETP requirements, including webinars and a Quick Start
Action Planner and plans to engage in a technical assistance effort to
assist with ensuring adequate information technology infrastructure to
implement the new WIOA requirements.
The Department has chosen not to regulate waiver policy in the
Final Rule. The Department does not have authority under WIOA to
provide States and local areas the ability to grant waivers. Therefore,
the Department has not included such waiver provisions in the Final
Rule for libraries. However, the Department notes that small CBOs, such
as libraries, can provide programs of training services under contracts
with local areas as described at Sec. Sec. 680.530 and 680.320.
Programs of training services provided under such contracts are not
eligible training providers and are not included on the State ETPL.
Thus, they are not required to comply with the requirements to be on
and stay on the list. The Department additionally notes that because
CBOs providing training services through a contract are not on the
State ETPL, they are also not required to submit the WIOA sec.
116(d)(4) ETP annual performance report.
The set-aside amount is determined by Congress as part of the
annual appropriations process and is therefore outside the scope of
this regulation.
The Governor's procedure for initial eligibility may require other
information in order to demonstrate high quality training services and
such information may include regional accreditation and the ability to
serve students who wish to reengage the educational system. As
described under Sec. 680.420, a program of training services may lead
to a secondary diploma or its equivalent, as long as this is consistent
with Sec. 680.350. No changes to the regulatory text were made in
response to this comment.
However, the Department has made a change to the regulatory text at
Sec. 680.450(b) to align with changes made to Sec. 680.470, providing
that apprenticeship programs registered under the National
Apprenticeship Act are exempt from initial eligibility procedures and
must be included and maintained on the State ETPL unless the program is
removed from the list for the reasons in Sec. 680.470. This change was
made to conform with changes made to Sec. 680.470, which are discussed
in the preamble corresponding to that section. Although this is
discussed more fully in the preamble to 20 CFR 677.230 (see Joint WIOA
Final Rule), the Department notes that registered apprenticeship
programs are not required to submit the WIOA sec. 116(d)(4) ETP annual
performance report. Outcomes for WIOA participants in WIOA-funded
registered apprenticeship programs must still be included in the
State's annual performance report under WIOA sec. 116(d)(2). The
Department also made a non-substantive change to this provision by
removing the word ``corresponding'' from the phrase ``corresponding
program'' as the word ``corresponding'' did not provide needed
clarification and therefore was unnecessary.
Section 680.460 What is the application procedure for continued
eligibility?
Section 680.460 sets out the requirements for the application
procedure for continued eligibility. The Department has made non-
substantive edits to this section for consistency with how the
Department uses terms throughout the regulation. The Department has
also made substantive revisions to paragraphs (c), (f)(1) and (10), and
(j). The Department made edits to (i) to clarify the requirements for
biennial review of eligibility information. These changes are discussed
in further detail below.
Comments: Several commenters supported requiring public comment
during the development of continued ETP eligibility procedures as well
as allowing the Governor discretion to set the timetable for
consultation and public comment. One commenter recommended that the
regulations be revised to provide assurance that the biennial review is
transparent and that it allows for adequate input from employers, as
well as to provide guidance on specific ways in which Governors may
hold providers accountable for meeting the needs of local employers.
Another commenter suggested that the Department provide more structure
for the process of including education programs on the ETPL and include
specific examples for
[[Page 56135]]
gauging program quality by demanding standards of effective practice.
Department Response: The Department has determined that no changes
to the regulatory text are necessary to address the concerns raised by
commenters as the section already achieves the commenters' suggestions.
The Governor's procedure for biennial review may take into
consideration factors to ensure that the State will meet the needs of
local employers. The Governor establishes the procedure after taking
into consideration recommendations from Local WDBs and training
providers and providing an opportunity for comment from interested
members of the public, including representatives of business and labor
organizations as required by Sec. 680.460(b)(1) through (3). In
addition, States must describe the eligibility procedures in their
State Plans, which are subject to public comment requirements that
include allowing for input from key stakeholders such as employers.
This is further discussed in 20 CFR part 676 (see Joint WIOA Final
Rule) and the WIOA State Plan ICR. Therefore, commenters' concerns
about public comment during the development of the policies are already
addressed.
In response to commenters' concerns about the Governor setting up a
timetable for consultation with the public, the Department notes that
Sec. 680.460(b)(3) requires the Governor to set up a time period for
soliciting and considering recommendations from Local WDBs and
providers and giving the public an opportunity for comment. However,
this section of the regulation does not prescribe a specific time
period. Therefore, the Governor has discretion to set up a timetable
for considering recommendations and public comment. Per Sec.
680.460(f)(4), the Governor must take into account the degree to which
programs of training relate to in-demand industry sectors and
occupations in the State. Further, as described in Sec.
680.460(f)(11), the Governor may take into account other factors such
as ensuring that one-stop centers are meeting the needs of local
employers and participants. It is unclear what additional structure the
commenter is recommending in order to gauge program quality by
demanding standards of effective practice. WIOA performance
accountability requirements, as addressed in the ETP performance
reports in 20 CFR 677.230 (see Joint WIOA Final Rule), are highly
structured. Through technical assistance, States will have
opportunities to share effective practices to gauge program quality.
The Department modified proposed Sec. 680.460(c). In the NPRM,
this paragraph required programs registered under the National
Apprenticeship Act (NAA) to be included and maintained on the list for
as long as the program was registered and required the Governor's
eligibility procedures to include a mechanism for registered
apprenticeship programs to indicate interest in being on the list as
described in Sec. 680.470. The Department reorganized this paragraph
for clarity, moving the sentence that procedures for including
registered apprenticeship programs on the list are found in Sec.
680.470 to the beginning of the paragraph, instead of the end of the
paragraph, and made a substantive revision for consistency with Sec.
680.470. This section now provides that programs registered under the
NAA are automatically eligible to be on the State's list and must
remain on the State's list unless they are removed from the list for
the reasons set forth in Sec. 680.470. This is a conforming edit to
changes made in Sec. 680.470 and more can be read about that change
below. The Department also made a non-substantive edit to this section
removing the word ``corresponding'' as it was unnecessary.
Comments: Many commenters responded to our request for comment
under proposed Sec. 680.460(f)(1) on the alternate factors that may be
used until performance data are available. The Department revised Sec.
680.460(f), breaking the requirements into separate subsections for
clarity and consistency with WIOA sec. 122(b)(1)(A)(i) and (ii). The
flexibility for the Governor to use alternate factors until performance
data are available is now located at Sec. 680.460(f)(1)(v). The
regulation at Sec. 680.460(f)(1)(v) allows the Governor to use
alternate factors for performance until performance information is
available to establish continued eligibility. Several commenters
suggested that alternate factors for performance be left to the
Governor and Local WDBs to decide, while others offered a variety of
specific alternate factors that the Governor could take into account.
These suggestions included: WIA criteria; use of other information
already supplied for State and Federal accountability measures, such as
Carl D. Perkins Act performance indicators; three letters from local
employers; completion rates; credentials; gainful employment measure;
and graduation rates.
Department Response: The Department acknowledges that the
suggestions provided by commenters offer appropriate options for the
Governor's procedure, but has chosen not to include these in the
regulation text to give Governors flexibility in choosing what
performance information to use. In this way, the Governor's procedure
can be tailored to the best performance data available among applicant
training providers in that State.
Comments: A few commenters recommended a separate, lower set of
performance standards for training providers who serve hard to serve
participants, such as tribal colleges and programs specifically
designed to provide combined workplace language and workplace skills to
new Americans needing English literacy instructions. A few commenters
recommended allowing States and local areas to grant waivers to CBOs
for the reporting of data to ensure that these entities have the
capacity to qualify as ETPs. However, a few other commenters stated
that CBOs, including those serving hard to serve participants, must be
held to the same standards as any other provider on the list.
Department Response: The regulatory language authorizes the
Governor to take into account such factors as meeting the needs of
hard-to-serve participants and programs specifically designed to
provide combined workplace language and workplace skills to new
Americans needing English literacy instruction when developing the
State's continued eligibility procedures. Section 680.460(f)(9)
specifically requires the Governor to take into account the ability of
providers to provide training services to individuals who are employed
and individuals with barriers to employment. In addition, local areas
may enter into contracts to provide training services under specific
circumstances, including with CBOs. Because CBOs which are providing
programs of training through contracts are not considered ETPs, they do
not need to meet the initial and continuing eligibility requirements of
this subpart. However, CBOs that are included in the State List of
Eligible Training Providers and receive payment for the training
services through ITAs, rather than contracts, are subject to the
eligibility and reporting requirements of the State list. No changes to
the regulatory text were made in response to these comments.
Comments: Commenters addressed the performance information under
Sec. 680.460(g) that the Governor must require for continued
eligibility for the State list of ETPs. One commenter questioned
whether 20 CFR 677.230, which requires reporting performance
[[Page 56136]]
information on all participants, is in conflict with Sec. 680.460(g)
which requires reporting on WIOA-participants only.
Department Response: The Department does not consider these
provisions as being in conflict as they are derived from different
statutory provisions and serve different purposes under WIOA. The ETP
annual performance report is required by WIOA sec. 116(d)(4) and
explicitly requires information on the levels of performance for all
individuals in a program of study. As explained above, more information
about this requirement can be found in 20 CFR 677.230 and its
corresponding preamble (see Joint WIOA Final Rule). Separately, the
requirements for a training provider to continue to be on the State
List of Eligible Training Providers and programs are found in WIOA sec.
122, and sec. 122(b)(2)(A) explicitly identifies the performance
information the ETP must provide for this purpose. Thus, the WIOA sec.
116(d)(4) annual report is for reporting on performance, while the
requirements in Sec. 680.460 are for staying on the State List of
Eligible Providers and Programs. In order to continue to be eligible,
the ETP must provide information on the performance accountability
measures in sec. 116 of WIOA for ``participants'' whose training is
funded under title I, subtitle B. However, the Department notes that
both the Governor, under WIOA sec. 122(b)(1)(J), and the Local WDB,
under WIOA sec. 122(b)(3), have authority to require additional data
from ETPs, which might include data on all students. In addition, WIOA
sec. 122(b)(1)(A)(ii) explicitly permits the Governor to require
reporting on all individuals enrolled in the programs in which WIOA-
funded participants studied.
Comments: Several commenters cited the potential problem of a small
number of participants (``small in size'') when providing WIOA-
participant-only data. These commenters stated that the resulting data
would be too small to yield useful outcome information and would risk
revealing personally identifiable information (PII). Other commenters
suggested that Sec. 680.460(g) specifically include instructions
similar to those found in WIOA sec. 116(d)(6)(C), which states that the
disaggregation of data for the State performance reports is not
required when the number of participants is too small to yield
statistically reliable information or when results would reveal PII
about an individual participant. One commenter said that an alternative
approach is needed for using performance results for management,
provider selection, and public/consumer information, but did not
specify what the alternative approach would be. Some commenters
suggested that the State List require reporting on all students in
order to yield a larger data set. One commenter urged the Department to
require biannual reporting of all completers and placement numbers for
the previous year utilizing a standardized template to collect data to
ensure an educated training program selection process. Several
commenters recommended that the materials to be considered when
determining ETP continued eligibility include information reported to
State agencies on Federal and State training programs other than WIOA
title I, subtitle B, and asked for submission of performance results
for all students and not just those who received training subsidized by
WIOA title I adult or dislocated worker funds.
However, several commenters supported a requirement that
performance reports include only WIOA-funded students. One commenter
cautioned that the cost for reporting all students and not just WIOA-
funded students by program could result in training providers not
accepting WIOA-funded students to avoid the reporting burden. One
commenter stated that in order to avoid revealing data on any
individual, it would normally not be required to disclose performance
information on any program with a small number of participants and that
performance data would be relatively meaningless if too few individuals
are in the performance cohort. This commenter recommended that the
regulations specifically recognize that this information shouldn't be
revealed for those programs with low participant numbers.
Department Response: With respect to the privacy concerns that
arise from the small numbers in participant data, the Department notes
that the regulation already addresses this issue. Paragraph (e) of
Sec. 680.500 addresses privacy concerns for the dissemination of the
ETPL by requiring that the State List and accompanying information be
made available in a manner that does not reveal personally identifiable
information about an individual participant and that, in developing the
information to accompany the State List of Eligible Training Providers
and Programs, disclosure of personally identifiable information from an
education record must be carried out in accordance with the Family
Educational Rights and Privacy Act, including the circumstances
relating to prior written consent. Accordingly, additional regulatory
text for Sec. 680.460 is not needed. While the Governor must take into
account all of the information listed in WIOA sec. 122(b)(1) in setting
the criteria for eligibility on the State ETPL, the Department
interprets WIOA sec. 122(b)(1)(A)(ii) to provide discretion to the
Governor to determine whether reporting on all students is an
``appropriate'' measure of performance outcomes under that paragraph.
The Department is not regulating State eligibility procedures to
require reporting on all students in order to yield a larger data set;
however, the Governor may choose to do so as part of the State's
eligibility procedures.
With respect to the minimum size of a data set that would ensure
participant confidentiality and the reliability of outcomes data, the
Department has determined that States will maintain confidentiality and
reliability of data by complying with relevant State law and with WIOA
itself. WIOA sec. 122(d)(3) states that the State List and accompanying
information must be made available to such participants and to members
of the public through the one-stop delivery system in the State in a
manner that does not reveal PII about an individual participant. WIOA
sec. 122 does not require that the performance information that
accompanies the State List be statistically reliable in the same way
that WIOA sec. 116(d)(6)(C) does for the annual performance reports.
Therefore, the Department has not regulated this as a requirement.
In response to commenters suggesting that the Department require
biannual reporting of all completers and placement numbers for the
previous year utilizing a standardized template, the Department has
chosen not to require a template for the State List of Eligible
Training Providers. While a standardized template is required for the
reporting of information in the ETP Performance Reports, as described
in 20 CFR 677.230 (see Joint WIOA Final Rule), the Department has
concluded that WIOA intends the development of the State List to be at
the State's discretion in order to meet the needs of individuals
seeking training in that State. In addition, the flexibility to
determine the format and presentation of the State List enables the
State to accommodate additional information that the Governor may
choose to require as part of the State's eligibility procedures.
In response to commenters that suggested that eligibility
information include materials submitted to State agencies on Federal
and State training
[[Page 56137]]
programs other than programs within WIOA title I, subtitle B, this is
already reflected in the factors that the Governor's continued
eligibility must take into account under Sec. 680.460(f)(3).
The Department again wishes to clarify that reporting on all
participants is a requirement of the ETP performance reports described
in 20 CFR 677.230. Suggestions that the ETP performance reports include
WIOA-funded students only, and related comments citing potential
concerns by training providers, are addressed in that section.
Comments: Several commenters requested that the Department add
waiver provisions to ease the transition to WIOA or to adjust reporting
requirements for providers applying for continued eligibility for the
ETPL. Other commenters disagreed with the proposed continued
eligibility procedures for ETPs eligible under WIA and described them
as a time-consuming burden for State and Local WDBs.
Department Response: Because of WIOA's emphasis on ensuring the
provision of quality training, and the importance of using performance
criteria to obtain such quality, the Department is not including
waivers in the regulation. In transitioning to collection of WIOA data,
Sec. 680.460(f)(1) already provides sufficient flexibility by allowing
the Governor to use alternate factors for performance until WIOA
performance information is available for an ETP. No changes were made
to the regulatory text in response to these comments.
Comments: The Department received comments in response to the
request for ideas on how to reduce the burden and avoid duplication of
effort to meet reporting requirements under WIOA secs. 122 (provider
eligibility) and 116 (performance accountability).
A few commenters responded to the requirement that the State
criteria for continued eligibility take into account the timely and
accurate submission of ETP performance reports. Several commenters
commented on the ETP annual performance report requirements under WIOA
sec. 116(d)(4). Comments related to this report are more fully
addressed in the preamble to 20 CFR 677.230 (see Joint WIOA Final
Rule). A commenter cautioned that requiring training providers to
submit appropriate, accurate, and timely information to the States to
create the ETPL under Sec. 680.460(f)(10) is an unnecessary burden
because most case management systems already capture and validate this
information as part of case management, and that collecting this
information from training providers would compromise the accuracy,
validity, and consistency of the information. This commenter
recommended that States be granted flexibility to capture this
information in the manner that best balances the validity of data and
efficiency of progress, rather than strictly from training providers.
Another commenter stated that the Governor and local WDBs should have
the discretion to utilize alternative data sources in the interim to
determine ETPs' performance outcomes and that these data outcomes
should not be prescribed by the Department because local case managers
have real-time participant outcomes not subject to the lag time
associated with DOL performance indicators. One commenter disagreed
with the proposed WIOA continued eligibility requirements and
recommended that the Department continue to use the WIA requirements.
One commenter, referring to Sec. 680.460(l), questioned what
qualifies as an ``undue cost or burden'' to remove a training provider
from the performance requirement.
Department Response: The information required under Sec. 680.460
to maintain continued eligibility is separate from the ETP annual
performance reports required under 20 CFR 677.230 (see Joint WIOA Final
Rule). Paragraph (e)(3) of 20 CFR 677.230 addresses coordination and
dissemination of the ETP performance reports and the State list of
eligible training providers as described at Sec. 680.500. With respect
to the commenter's recommendation that the requirement to consider
whether a provider timely and accurately submits information for the
WIOA sec. 116(d)(4) ETP annual report to the State, the Department
acknowledges that there will be some overlap in what is required for
inclusion in the WIOA sec. 116(d)(4) report and the information the
State already has in its case management files. The Department
recommends that States work with training providers to minimize the
reporting burden and utilize integrated systems as much as possible. No
change in the regulation text was made in response to this comment.
Additionally, the Department notes that the provision at Sec.
680.460(l) does not allow a State to remove a training provider from
this performance requirement based on undue cost or burden. Rather,
this provision allows the Governor to establish procedures and
timeframes for providing technical assistance to training providers
that are failing to meet the criteria and information requirements due
to undue cost or burden. The Governor's procedures determine what
constitutes undue cost or burden. The Department has chosen not to
regulate what constitutes ``undue cost or burden'' in order to provide
Governors the flexibility needed to best address the particular needs
of the ETPs in each State.
WIOA, not WIA, dictates the continued eligibility requirements and
the Department declines to substitute WIA requirements for WIOA
requirements. WIOA sets forth factors and the Governor's continued
eligibility procedures determine how these WIOA-required factors are
taken into account. WIOA and the regulations further provide that the
Governor's criteria for eligibility and information requirements may
include any appropriate additional information that the Governor may
require. In addition, WIOA allows for WIA-eligible providers to remain
eligible through December 31, 2015.
Comments: One commenter requested clarification on the timeline for
initial eligibility compared to the beginning of the biennial review
and renewal period.
Department Response: States have discretion in how they implement
eligibility procedures and timelines for biennial review. Some States
may find it efficient to review the entire State list every 2 years,
while others may have a system for reviewing each provider on the
second anniversary of when that provider established continued
eligibility under WIOA. The timeline for how initially eligible
training providers are deemed continued eligible training providers and
thereby incorporated into the review system will vary from State to
State. The Department made minor edits to Sec. 680.460(i) for clarity
regarding the requirement for biennial review of eligibility
information by inserting the word biennial before the word ``review.''
The Department modified Sec. 680.460(j) on the biennial review to
provide that, in addition to the verification of the registration
status of registered apprenticeship programs, the biennial review also
must include removal of any registered apprenticeship programs that are
removed from the list under Sec. 680.470. This change was made to
conform with changes to Sec. 680.470. More can be read about the
Department's changes to proposed Sec. 680.470 below.
Paragraph (f)(10) of Sec. 680.460 proposed to require the
Governor, in establishing the eligibility criteria for continued
eligibility, to take into account whether providers timely and
accurately submitted the information needed for the WIOA sec. 116(d)(4)
ETP report. The Department also revised this
[[Page 56138]]
provision to require the Governor to take into account whether the
provider timely and accurately submitted the information required for
initial and continued eligibility. Additionally, the Department revised
this provision to require that the Governor consider whether the
provider submitted ``all of the'' information for the report and
eligibility procedures, which means the Governor must take into account
whether the information the provider submitted is complete.
In response to comments and to ensure that providers comply with
the requirement to timely and accurately submit all of this
information, the Department added Sec. 680.460(l) to require that the
Governor's procedure include what the Governor considers to be a
substantial violation of Sec. 680.460(f)(10). And Sec. 680.460(l)(2)
requires those providers that substantially violate this requirement be
removed from the State list of eligible training providers and programs
consistent with Sec. 680.480(b).
These modifications were made for consistency with WIOA sec.
122(f)(1)(B), which requires programs be removed from the State list of
eligible programs and providers when a provider substantially violates
any of the requirements of title I of WIOA. Given WIOA's focus on
performance accountability in WIOA sec. 116 and informed consumer
choice in WIOA sec. 122, the Department has concluded that failure to
timely and accurately submit the information required for the WIOA sec.
116(d)(4) ETP report and the initial and continued eligibility
constitutes a substantial violation of WIOA title I requirements.
Because WIOA sec. 122(f)(1)(B) requires the determination of a
substantial violation to be made by an individual or entity specified
in the Governor's procedures, Sec. 680.460(l) gives the Governor the
discretion to determine what constitutes a substantial violation of the
requirement to timely and accurately submit all of the required
information. Therefore, the Governor has the flexibility to take into
account the specific circumstances in the State that affect a
provider's ability to submit the required information. Moreover, the
Department notes that paragraph (l)(1) requires the Governor's
determination of what constitutes a substantial violation of the
requirement to timely and accurately submit all of this information to
take into account exceptional circumstances beyond the provider's
control, such as natural disasters, unexpected personnel transitions,
and unexpected technology-related issues. The Department included this
provision specifically to address instances in which, through no fault
of its own, a provider may not be able to timely or accurately submit
all of the information required. In those instances, the Governor may
not determine that a substantial violation has occurred. Additionally,
the Department notes that the list of the exceptional circumstances in
this regulatory provision is not exhaustive and the Department
encourages Governors to consider the particular needs of providers in
the State in creating the policy and determining what constitutes
exceptional circumstances beyond the provider's control.
The Department also has made a clarifying change to Sec.
680.460(f)(10) adding the words ``information required for completion
of'' between ``submitted'' and ``eligible'' to clarify that while the
ETPs are required to provide accurate and timely information for
purposes of completion of the ETP performance report required by WIOA
sec. 116, an ETP will not have all of the information to complete that
report.
Finally, the Department removed paragraph (k) because the authority
for the Local WDBs to require higher levels of performance for local
programs is already referenced in Sec. 680.430(e). Therefore, this
provision was unnecessary. The Department renumbered what was
previously proposed paragraph (l) to paragraph (k) to conform to this
change.
Section 680.470 What are the procedures for including and removing
registered apprenticeship programs on a State list of eligible training
providers and programs?
Section 680.470 described the process for including and maintaining
registered apprenticeship programs on the ETPL. The Department made
non-substantive edits for consistency in how the Department uses terms
throughout this section. The Department also made substantive changes
to Sec. 680.470(a) and (b), and added new paragraphs (c) and (f). The
Department received comments regarding Sec. 680.470(d), which is now
renumbered as (e).
Proposed Sec. 680.470(a) provided that all registered
apprenticeship programs would be automatically eligible to be included
on a State Eligible Training Providers and Programs List and required
the Governor to establish a mechanism by which registered
apprenticeship programs may indicate whether they wish to be included
on the State Eligible Training Providers and Programs List. The NPRM
required registered apprenticeship programs to indicate interest to be
included in the State Eligible Training Providers and Programs List.
Due to concern that some registered apprenticeship programs may not
wish to be on the State ETPL, proposed Sec. 680.470(b) provided that
registered apprenticeship programs will remain on the List until they
are deregistered or have notified the State that they no longer wish to
be included on the List. The proposed section was silent on whether a
registered apprenticeship program could be subject to the provisions
for removal from the ETPL under Sec. 680.480, and Sec. 680.480 did
not provide an express exclusion from those procedures for registered
apprenticeship programs. Proposed Sec. 680.470(d) encouraged Governors
to consult with State and Local WDBs and other entities to establish
voluntary reporting of performance information for registered
apprenticeship programs, because WIOA sec. 122(a)(3) specifically
exempts registered apprenticeship programs from the criteria and
information requirements and Governor-established procedures required
for inclusion on the State ETPL, and therefore the NPRM did not require
registered apprenticeship programs to provide performance information
in order to be included on the ETPL. In addition, 20 CFR 677.230(b) of
the Joint WIOA NPRM (regarding information required for the ETP
performance report) exempted registered apprenticeship programs from
reporting information for purposes of the ETP performance report
required by WIOA sec. 116(d)(4) but specified that any such information
submitted voluntarily to a State must be included by the State in the
ETP annual performance report required by 20 CFR 677.230. A number of
changes were made to this Sec. 680.470 in response to comments
received and for purposes of clarity.
Comments: Several commenters expressed support for automatic
qualification of registered apprenticeship programs for the State ETPL.
In addition, several commenters offered suggestions on how registered
apprenticeship programs are added to and removed from a State List of
Eligible Training Providers and Programs. One commenter urged the
Department to create a uniform standard for all Governors to follow
when developing a mechanism by which registered apprenticeship programs
request inclusion on the List. The commenter warned that nationally
registered apprenticeship programs that offer training in various
States would need to assess each State's process, which could prove
overly burdensome
[[Page 56139]]
if States have different mechanisms. Another commenter objected to
placing the burden on registered apprenticeship training programs to
ensure inclusion on the ETPL, in part because of the statutory mandate
that registered apprenticeship programs be eligible to be included on
the List. The commenter expressed concern that the added requirement to
indicate interest would create confusion and cause delay in getting
registered apprenticeship programs on the State List. A few commenters
were concerned that States with a history of being unfriendly or
hostile to unions or of having significant bureaucratic inertia may use
the requirement as an excuse to disfavor registered apprenticeship
programs. Another commenter recommended revising the regulations to
create an opt-out framework rather than an opt-in framework, such that
registered apprenticeship programs would be included on the ETPL unless
the program took steps to be excluded. This commenter stated that an
opt-out system would allow program sponsors that may not wish to be on
the State List to remove themselves while avoiding ill-designed opt-in
procedures that could preclude or delay, intentionally or accidentally,
the sponsors of registered joint labor-management apprenticeship
programs from appearing on the State ETPL. Other commenters supported
the proposal to require registered apprenticeship programs to opt in.
Some commenters suggested revising the regulation to clarify when
registered apprenticeship programs may be removed from the State List
of Eligible Training Providers and Programs and whether registered
apprenticeship programs are exempt from the enforcement provisions of
WIOA sec. 122(f) that were set forth in proposed Sec. 680.480. One
commenter asked how States should monitor registered apprenticeship
programs for compliance and what the criteria are to qualify as a
registered apprenticeship program.
One commenter stated that proposed Sec. 680.480 was inconsistent
with WIOA to the extent that it allows registered apprenticeship
programs to be removed from the List for any reason other than
deregistration because, in this commenter's view, the requirement in
WIOA sec. 122(a)(3) that registered apprenticeship programs shall be
included and maintained on the State ETPL for so long as the program is
registered precludes removal for any reason other than deregistration.
According to the commenter, the standards for deregistration under the
National Apprenticeship Act are sufficient to trigger removal from the
ETPL where appropriate, and application of the enforcement provisions
in WIOA sec. 122(f) is inappropriate and unnecessary. The commenter
states that regulations implementing the National Apprenticeship Act
already include clearly-defined, qualitative standards governing when
such a program can be deregistered. The commenter suggested a change to
the enforcement section of the ETP requirements at proposed Sec.
680.480 to affirm that registered apprenticeship programs are not
subject to these enforcement provisions. The commenter suggested adding
language to Sec. 680.480(a) that states: ``Except for a provider
described in section 122(a)(3) of WIOA, a training provider may lose
its eligibility pursuant to this section.''
Department Response: The Department has made revisions to Sec.
680.470(a) to clarify the process for including registered
apprenticeship programs on the State List of Eligible Training
Providers and Programs. Through a mechanism established by the
Governor, registered apprenticeship programs must be informed of their
automatic eligibility and must be provided an opportunity to consent to
their inclusion before being placed on the State Eligible Training
Providers and Programs List. The Department chose this approach in
order to ensure that the States include registered apprenticeship
programs that are interested in accepting WIOA participants while at
the same time ensuring that all registered apprenticeship programs are
readily included with minimal burden. The Department chose to allow
Governors to develop such a process, rather than create a uniform
standard for all States, in keeping with the Governor's discretion to
implement procedures regarding the State List of Eligible Training
Providers. This approach will also allow each Governor to establish a
procedure that works best for the registered apprenticeship programs in
that specific State.
While the NPRM provided that the Governor's mechanism ``should'' be
developed based on guidance from the U.S. Department of Labor Office of
Apprenticeship representative in the State or the assistance of the
recognized State apprenticeship agency, Sec. 680.470(a) now requires
the procedures to be developed based on such guidance. This guidance
includes how to ensure that national registered apprenticeship programs
are included as eligible training providers. Finally, this paragraph
has been amended to add a requirement that the Governor develop a
process to impose only minimum burden on registered apprenticeship
programs. In response to commenters' concerns that States with a
history of being unfriendly or hostile to unions or of having
significant bureaucratic inertia may use the requirement as an excuse
to disfavor registered apprenticeship programs, these changes together
with Departmental technical assistance and guidance ensures that States
are inclusive of registered apprenticeship programs.
These revisions will provide registered apprenticeship programs the
opportunity to consent to being included on the State List of Eligible
Training Providers and Programs while minimizing the affirmative burden
placed on them to do so. The Department has concluded that this type of
process will increase the participation rate of registered
apprenticeship programs on the ETPL and further the aims of the
registered apprenticeship program by having such programs included on
the State List as soon and as easily as possible. The Department chose
not to revise the regulation to require registered apprenticeship
programs be included on this List unless they choose to opt out, in
order to reduce the potential confusion for participants utilizing the
List. Allowing for registered apprenticeship programs to consent allows
States to ensure that only providers that are willing to accept WIOA
participants are included on the State List of ETPs.
The Department has also revised the regulation at Sec. 680.470(b)
and added a new Sec. 680.470(c) to clarify that registered
apprenticeship programs may be removed from the State List of Eligible
Training Providers and Programs for violations of WIOA and that
enforcement provisions may apply in such cases. The regulation now
includes Sec. 680.470(b)(3), which provides that a registered
apprenticeship program may be removed from the State List of Eligible
Training Providers and Programs for having intentionally supplied
inaccurate information or substantially violated any provision of WIOA
title I (e.g., civil rights or discrimination violations) or WIOA
regulations.
Section 680.470(c) provides that removal from the List for reasons
under Sec. 680.470(b)(3) will result in a termination of eligibility
for the ETPL for not less than 2 years and liability to repay all
training funds received during the period of noncompliance, consistent
with the requirements under Sec. 680.480 for all other ETPs. Section
Sec. 680.470(c) further provides that the Governor must specify in
enforcement procedures
[[Page 56140]]
established under Sec. 680.480 the process for and the entity making
the determination of ineligibility, and must provide an opportunity for
hearing. The Department has concluded that the process used for all
non-compliant eligible training providers must be applied to
noncompliant registered apprenticeship programs, including removal from
the State ETPL. This is needed to maintain the integrity and quality of
the State ETPL. Application of the WIOA enforcement provisions to
registered apprenticeship programs enables the State to take action to
remove a registered apprenticeship program from the State List, if that
program is in significant violation of WIOA. The Department wishes to
avoid a scenario where a registered apprenticeship program that is in
significant violation of WIOA could remain on the State List of ETPs
until that program's registered status is reviewed under the National
Apprenticeship Act.
In addition, the Department disagrees that WIOA requires the
Department to exclude registered apprenticeship programs from the
enforcement provisions of WIOA sec. 122(f). WIOA sec. 122 contains
express statutory exceptions for registered apprenticeship programs
from providing performance information as a requirement for inclusion
and maintenance on the State ETPL but WIOA sec. 122 contains no similar
exception for registered apprenticeship programs from the enforcement
provisions. In fact, WIOA sec. 122(h) contains express exemptions from
the enforcement provisions for several types of providers, but does not
include registered apprenticeship programs on that list of exempted
entities. The Department interprets this silence to mean that the
regular WIOA enforcement provisions apply to registered apprenticeship
programs. Accordingly, the Final Rule now allows the State to take
action as appropriate, in addition to the enforcement and
deregistration process under the National Apprenticeship Act.
The Department has also revised the wording in the title of Sec.
680.470 to reflect that this section addresses both inclusion and
removal of registered apprenticeship programs from the State List of
Eligible Training Providers and Programs.
Comments: A few commenters encouraged mandatory reporting of
performance information for all training programs, including registered
apprenticeship programs, that seek to be included on a State's List of
Eligible Training Providers and Programs. Several commenters stated
that registered apprenticeship programs should not be exempt from
reporting ETP performance data, reasoning that this information is
valuable in determining the effectiveness of registered apprenticeship
programs in leading individuals to unsubsidized employment. One
commenter supported exempting registered apprenticeship programs from
the application procedures, information requirements, and performance
reporting requirements of other training providers in light of the
rigorous process for registering apprenticeship programs with the
Department. Several commenters opposed any additional reporting for
registered apprenticeship programs and requested that the regulation
clearly describe applicable reporting requirements for registered
apprenticeship programs. One commenter pointed out that States and
local areas will have to determine and establish data collection for
tracking for performance and asked whether the Department will define
the measures for registered apprenticeship program performance.
Department Response: The Department has decided to maintain the
wording of proposed Sec. 680.470(d) in the Final Rule, renumbered to
Sec. 680.470(e), because of the addition of new Sec. 680.470(c). The
exception for registered apprenticeship programs from providing
performance information to be included or maintained on the State ETPL
is required by WIOA sec. 122(a)(3). However, the Department is
clarifying that voluntary reporting of performance information by
registered apprenticeship programs is encouraged under the regulation.
More information can be read on this in the preamble to 20 CFR 677.230
(see Joint WIOA Final Rule). In addition, the Department is maintaining
the exception for registered apprenticeship programs from providing
performance information for the ETP performance report required under
20 CFR 677.230 for the reasons discussed in the preamble to that
section, but notes that outcomes for WIOA participants in WIOA-funded
registered apprenticeship programs must still be included in the
State's annual performance report under WIOA sec. 116(d)(2).
Comments: A few commenters recommended that apprenticeship programs
be required to demonstrate recruitment of underrepresented populations.
One commenter suggested that a key qualification for apprenticeship
programs' integration into the use of ITAs be adherence to existing
requirements under 29 CFR part 30, which prohibits discrimination based
on race, color, religion, national origin, or sex in apprenticeship
programs. Another commenter suggested that the WIOA regulations should
ensure that older workers are not discriminated against in
apprenticeship programs.
Department Response: The Department has concluded that putting
additional requirements on registered apprenticeship programs in order
to participate in the State List of ETPs or to use ITAs is outside the
scope of this regulation because WIOA designates registered
apprenticeship programs as eligible to serve as ETPs. In addition,
registered apprenticeship programs are already required to comply with
20 CFR part 30 anti-discrimination provisions.
Comments: Other commenters recommended that pre-apprenticeship
programs be included on the State ETPL but with a performance
measurement model that is more appropriate for the activity, for
example, enrollment in an apprenticeship program or a community college
program would both be positive outcomes.
Department Response: The commenter did not specify whether it meant
that pre-apprenticeship programs should be included under the exception
for registered apprenticeship programs or included through the
Governor's eligibility procedures for eligible training providers.
However, the Department acknowledges the need to clarify how pre-
apprenticeship programs are treated for inclusion on the State ETPL.
The Department has added a Sec. 680.470(f) to clarify that because
pre-apprenticeship programs are not registered under the National
Apprenticeship Act and are not included in the exceptions for
registered apprenticeship programs under WIOA sec. 122(a)(3), they must
follow the Governor's procedure for eligibility in this subpart. Pre-
apprenticeship providers that wish to use WIOA funds to provide
training services may go through the normal training provider program
application procedure to be included on the State List of Eligible
Training Providers and Programs. Therefore, such pre-apprenticeship
programs would be subject to the eligibility and information reporting
requirements of the State ETPs.
Comments: One commenter expressed concern throughout the regulation
that in defining how individual training accounts may be used, and
defining the use of on-the-job training funds, preference is given to
registered apprenticeship programs. The commenter urged the Department
to revise the regulation to reflect the
[[Page 56141]]
importance of other OJT programs. The commenter emphasized the robust
and valuable non-registered apprenticeship programs embraced by many
manufacturers, and that training for in-demand skills is available in
multiple venues and that these programs should be considered based on
the value of their training, rather than their registration status with
a government entity. However, the commenter did not provide suggestions
on how the Department could address the commenter's concerns.
Department Response: The Department has determined that no changes
to the regulatory text are needed in response to this comment. Both the
requirement that registered apprenticeship programs shall be included
on the State ETPL and the exemption for registered apprenticeship
programs from the requirement to submit performance information for
inclusion on the State List are specifically limited to registered
apprenticeship programs by WIOA sec. 122(a)(3). Regarding the commenter
suggesting a revision to the regulatory text to emphasize OJT, it is
unclear what revisions to the regulation the commenter is suggesting.
The Department has made revisions to Sec. 680.530 to clarify how
exceptions to the eligible training provider List, which may provide
training through contracts with the Local WDB, including OJT, are to be
treated; more about this change can be read in the preamble to Sec.
680.530. The Department agrees with the commenter that non-registered
apprenticeship programs and work-based training are important training
options.
Section 680.480 May an eligible training provider lose its eligibility?
Section 680.480 describes the enforcement provisions available to
apply to training providers who are not in compliance with WIOA and
WIOA regulations. The Department made non-substantive edits for
consistency in how the Department uses terms throughout this section.
The Department also made substantive changes to paragraphs (b) and (c)
which are further described below.
The Department made a clarifying edit to Sec. 680.480(a). The
Department is deleting the phrase ``deliver results'' and replacing it
with language to clarify that this provision requires that training
programs meet the Governor's eligibility requirements and that training
providers provide accurate information.
The Department also made a clarifying edit to Sec. 680.480(e) to
clarify that if a training program is removed from the eligible
training providers in a local area because the training program failed
to meet the local area's higher performance standards, the training
provider may appeal this eligibility denial under Sec. 683.630(b).
This provision no longer requires Local WDBs to create an appeals
procedure for these purposes.
Proposed Sec. 680.480(b) provided that providers whose eligibility
is terminated under this section are liable to repay all adult and
dislocated worker funds received during the period of non-compliance.
The Department revised this paragraph for consistency with Sec.
681.550 that permits youth funds to pay for training for out-of-school
youth aged 16-24 and such funds are also subject to the requirement to
repay funds received during non-compliance.
Comments: The Department received only a handful of comments
addressing proposed Sec. 680.480. As discussed above, one commenter
stated that proposed Sec. 680.480 was inconsistent with WIOA to the
extent that it allows registered apprenticeship programs to be removed
from the List for any reason other than deregistration.
Department Response: The Department revised Sec. 680.480(c) by
adding language stating that registered apprenticeship programs may
only be removed from the List for reasons set forth in Sec. 680.470.
The regulation includes registered apprenticeship programs within the
enforcement provisions in WIOA sec. 122(f) for the reasons set forth in
the preamble to Sec. 680.470. WIOA sec. 122 does not require
registered apprenticeship programs to supply performance information in
order to be determined eligible training providers, in light of the
extensive vetting process that registered apprenticeship programs
undergo in order to become registered. Therefore, the Department is not
regulating that registered apprenticeship programs be removed from the
State List of Eligible Training Providers for reasons related to
performance.
Comments: Another commenter stated that training providers should
be considered to be noncompliant when less than 50 percent of those
enrolled complete the program in the allotted training period or when
less than 50 percent of completers fail to find employment within 180
days of completion. The commenter stated that these statistics should
be based on all enrolled students, not just WIOA-funded individuals. In
addition, a commenter suggested that ETPs that do not provide
performance information as required under WIOA should be removed from
the State ETPL, as those that are non-compliant or intentionally
provide inaccurate information. The commenter said that such providers
should also be liable for repayment of adult and dislocated worker
funds. Another commenter asked how monitoring of training providers
will be conducted and who has ultimate responsibility for this task.
Department Response: The Governor's procedures for establishing
eligibility may establish minimum performance standards for all
providers other than registered apprenticeship programs. Under Sec.
680.480(c), the Governor may remove provider programs from the State
List during its biennial renewal procedure for failure to meet State
eligibility criteria, including any minimum performance levels
established. The Department has not regulated specific threshold
amounts for compliance because it is within the Governor's authority
under WIOA to establish appropriate minimum standards through its
procedure. Under Sec. 680.430(e), the Local WDB may establish higher
levels of performance than those required by the Governor for a
provider to be eligible to receive training funds from that local area.
The Department made a minor revision to Sec. 680.480(e) for
consistency with Sec. 680.430(e) to clarify that if the Local WDB has
established higher performance standards pursuant to Sec. 680.430(e),
the Local WDB can remove a program of training services from the
eligible programs in that local area for failure to meet those higher
performance standards. In response to the comment suggesting that ETPs
who do not provide performance information should be removed from the
State ETPL, the Department refers readers to Sec. 680.460 and its
accompanying preamble.
Regarding comments on which entity is responsible for monitoring
ETPs, the Department notes that under WIOA sec. 122, States and local
areas are responsible for monitoring eligible training providers and
for determining how such monitoring is conducted. Per Sec.
680.430(b)(2) and (c), the Governor or the Governor's designated SWA
(or appropriate State entity) is responsible for ensuring that programs
meet eligibility criteria and performance levels established by the
State, including verifying the accuracy of the information, and the
Local WDB must carry out procedures assigned to the Local WDB by the
State.
[[Page 56142]]
Section 680.490 What kind of performance and cost information must
eligible training providers other than registered apprenticeship
programs provide for each program of training services?
Section 680.490 describes the information that training providers
must submit to the State to meet initial and continued eligibility
criteria for inclusion on the State List of Eligible Training Providers
and Programs under Sec. 680.460(h). Proposed Sec. 680.490(d) required
the Governor to establish a procedure and methods to assist training
providers who demonstrate that providing the required information is
unduly burdensome or costly. This section has been adopted as proposed,
with revisions for clarity and consistency of terms and one substantive
change at paragraph (c).
The Department revised proposed Sec. 680.490(a) for clarity.
Proposed Sec. 680.490(a) provided that, in accordance with Sec.
680.460(h), every 2 years training providers are required to submit
appropriate, timely, and accurate performance and cost information.
However, the Department changed the reference to Sec. 680.460(h) in
this paragraph to Sec. 680.460(i) to clarify that eligible training
providers, except registered apprenticeship programs, must submit this
information at least every 2 years in accordance with the State's
continued eligibility policy.
The Department also modified Sec. 680.490(c) by adding that the
Governor may require additional performance information if the Governor
determines it is appropriate to better inform consumers. This paragraph
originally provided that the Governor could add this information if the
Governor determined it was appropriate for determining or maintaining
eligibility. However, WIOA sec. 122(b)(1)(J)(iii) provides that the
Governor's criteria and information requirements can include other
factors the Governor determines are appropriate to ensure informed
choice of participants among training service providers, and the
modification to this section reflects this authority.
Comments: Several commenters agreed with the Department's message
that the Governor must assist providers in supplying the information
required of them under WIOA and the NPRM. These commenters urged that
the State ETPL coordinators at the State level be required to maintain
a list of available technical assistance for training providers and
that a probationary period be included for all those who may miss
eligibility. One commenter encouraged the Department to ensure that the
regulations provide maximum flexibility for the State to work with
training providers to report on the primary indicators of performance.
Department Response: The Department cannot require States to
provide a probationary period or maintain technical assistance lists.
However, the Governor has significant flexibility under Sec.
680.490(d). For example, if a provider demonstrates that providing
additional information required under this section would be unduly
burdensome or costly, the Governor may provide additional resources
from funds for State workforce investment activities reserved under
WIOA secs. 128(a) and 133(a)(1) as provided in Sec. 680.490(d)(2) to
assist providers in the information collection. Further, in addition to
the required factors, the regulations allow the Governor to take any
appropriate additional factors into account when developing procedures
for providers to be included and maintained on the State List of
Eligible Training Providers and Programs. No changes to regulatory text
were made as a result of these comments.
Comments: Several commenters supported the Sec. 680.490(d)
requirement that Governors have a procedure in place to address the
costs and burden of any increased reporting requirements. One commenter
expressed appreciation for the Department's recognition of the
potential cost and burden of WIOA's requirements for ETPs in meeting
their performance reports and urged the Department to issue guidance to
the States on how to streamline performance reporting for training
providers and minimize the burden associated with reporting on multiple
programs through the ETP performance reports required by WIOA sec. 116
and the performance information required by WIOA sec. 122 for inclusion
and maintenance on the State ETPL. A number of comments appear to
reflect confusion between these two types of performance information.
A few commenters stated that many of the requested reporting
elements are not valuable to the consumer and asserted that local areas
should determine if a provider should continue to be listed on the ETPL
because local areas' performance is directly related to the quality of
the training programs. One commenter suggested that for each program of
study, the following information be collected: Number enrolled, number
completed, number of completers employed at 90 and 180 days after exit,
and wage at placement of those employed.
Department Response: WIOA sec. 122 requires specific information
that must accompany the State List of Eligible Training Providers and
Programs. The Departments of Education and Labor are issuing joint
guidance on data sharing. Submission of ETP performance reports is
required by WIOA sec. 116(d)(4) and addressed in 20 CFR 677.230 of the
regulations (see Joint WIOA Final Rule). This section of the preamble
addresses Sec. 680.460 and is focused on the requirements for ETP
eligibility and maintenance of the State ETPL. Comments related to the
ETP annual performance reports required under WIOA sec. 116(d)(4) and
other issues related to specific performance indicators are addressed
in the Joint WIOA Final Rule preamble section relating to 20 CFR part
677. In addition, the Governor's procedure for continued eligibility
and for publishing the State List may include the specific information
suggested by the commenter. No changes were made to the regulatory text
in response to these comments.
Comments: Several commenters stated that flexibility is needed in
the performance reporting requirements for inclusion on the State ETPL
to allow Local WDBs to assess providers at the course, program, or
institutional level because the proposed ETP performance reporting
requirements could raise data privacy concerns where PII is provided.
One commenter suggested that performance information be maintained at
the participant level and not across programs.
Department Response: The Department has determined that reporting
requirements for inclusion and maintenance of the State ETPL must be
established at the program level only. WIOA clearly establishes initial
and continued eligibility requirements for provider programs.
Eligibility and performance reporting is thus determined on a program-
by-program basis for each provider under the regulations. Therefore,
reporting is done through the program of study, rather than the
individual courses that make up the program. All performance reporting
requirements must be carried out consistent with all applicable Federal
and State privacy laws and the Department is issuing guidance to assist
States in complying with these laws.
In addition, the Department made a revision to the title of Sec.
680.490 to clarify that registered apprenticeship programs are not
subject to these performance reporting requirements. As the Department
explained in the preamble addressing Sec. 680.470, WIOA exempts
registered apprenticeship
[[Page 56143]]
programs from ETP performance reporting requirements for inclusion on
the ETP list. However, voluntary reporting of performance information
by registered apprenticeship programs is encouraged under the
regulation. The Department also modified Sec. 680.490(a) to clarify,
consistent with the decision that registered apprenticeship programs
are exempt from the performance reporting requirements, that registered
apprenticeship programs are not required to submit the performance and
cost information required by this section.
Finally, as noted in the preamble to Sec. 680.400, Sec.
680.490(b) has been revised to require performance reporting on all
WIOA participants enrolled in a program of training services and
receiving funding through an ITA for the performance information on
WIOA participants required by Sec. 680.490(b). This includes OSY aged
16-24. As the Department is permitting youth program funds for OSY aged
16-24 to use ITAs, it is important that the performance information
required encompass these WIOA participants. However, the ETPs will
report based on the adult primary indicators of performance for these
youth to provide comparability and to eliminate the burden that would
be imposed if ETPs were required to report on separate performance
indicators for adults and dislocated workers and for the subset of
youth who may receive training through ITAs.
Section 680.500 How is the State list of eligible training providers
and programs disseminated?
Section 680.500 describes the requirements for distributing the
State List of Eligible Training Providers and Programs and accompanying
cost and performance information to Local WDBs and to the general
public. Other than non-substantive changes for consistency of terms,
the Department has adopted this section as proposed.
Comments: One commenter supported making the ETPL publicly
accessible in a consumer friendly format. Another commenter stated that
only one List per State should be permitted to be published because
multiple publications within a State would be confusing for
participants and ETPs. One commenter recommended that States be
required to identify and list credentialing organizations and helpful
information about key or high growth sectors on the homepages of the
State Lists of Eligible Training Providers and Programs, including
providing a list of high growth industries. This commenter stated that
when a nationally-recognized, industry-driven credential has been
discovered by a State or local entity, or the Federal government, this
information should be shared publicly to raise the bar on training
programs and help ensure that tasks are performed to the highest
standards available, while maintaining and improving American
competitiveness.
Department Response: WIOA requires the State to generate and
disseminate its List of ETPs that contains, at a minimum, the
information required by WIOA sec. 122(d) and Sec. 680.500. However, as
provided at Sec. 680.430(e), Local WDBs may establish higher
performance standards or additional information and criteria, except
with respect to registered apprenticeship programs. In addition, the
Department notes that States have the discretion to identify
credentialing organizations or to restrict the types of providers
included on the State List. It is up to the State to determine what
providers meet its initial and continued eligibility criteria in order
to be included on the State List. Some of this information, including
whether a provider organization provides an industry-recognized
credential may be noted on the State List. No changes were made to the
regulatory text in response to these comments.
Comments: Several commenters responded to the Department's request
for comments on the value of a summary sheet to accompany the ETPL. A
few commenters stated that a summary sheet was not necessary because
applicants only need the following key data to make an informed choice:
Completion rate, placement rate, credential, and wages. In contrast,
another commenter encouraged the use of a uniform summary sheet to help
prospective students compare information across all participating
programs. This commenter recommended that the summary sheet include
detailed information about the programs, including many data points
that are part of the ETP performance reports, such as comparative
information about costs, program completion, and job placement rates,
average starting salaries, and debt upon completion. Other commenters
recommended that each State be allowed to design its own accompanying
information. One commenter suggested that the information required for
the ETP be detailed in a simple chart format with cohort information
for completion and placement information, and that the public site
should include information that is pertinent to the customer. One
commenter urged the Department to consider the work of Local WDBs that
already have scorecards. Another commenter encouraged developing ``ease
of use reports'' that meet the needs of training seekers while
minimizing the reporting burden on providers and States. Another
commenter recommended allowing States to design their own display.
Department Response: The Department has determined that no
revisions to the regulatory text are needed in response to these
comments. The list of ETPs and accompanying cost and performance
information must be disseminated in coordination with the ETP annual
performance reports in accordance with 20 CFR 677.230(e)(3) (see Joint
WIOA Final Rule). The ETP annual performance report must include the
information required under WIOA sec. 116(d)(4) and must be provided
using a template created by the Department. In contrast, WIOA sec.
122(d) does not require that the State List of Eligible Training
Providers and Programs and accompanying information comport with a
Federal template or format. The Department, therefore, has decided that
the statutory mandate is best met by leaving it to the States'
discretion to determine: (1) What information should accompany the
State ETPL provided that the accompanying information meets statutory
requirements (including the requirement in WIOA sec. 122(d)(1) that the
accompanying information identify the recognized postsecondary
credential); (2) the best format to provide that information to users;
and (3) how to coordinate its distribution with the ETP performance
reports. The Department plans to issue further guidance to States
regarding the relationship between ETP performance reports and the
State List of Eligible Training Providers and Programs.
Comments: One commenter stated that some State laws include
additional restrictions on data sharing beyond the Federal law
requirements and encouraged the Department to consider how regulations
and guidance can help States interpret or revise their own laws to
allow greater access to data for strategic planning and evaluation
purposes. One commenter urged the Department to issue guidance and
technical assistance on how data shared for WIOA performance reporting
may be incorporated into Statewide Longitudinal Data Systems (SLDS) in
compliance with both UI confidentiality provisions and the Family
Educational Rights and Privacy Act (FERPA). The commenter stated that
the data collected would be useful for a variety of stakeholders,
including for longitudinal
[[Page 56144]]
research and evaluation to improve the mix and targeting of program
services.
Department Response: Privacy concerns in regard to how the State
List and accompanying information are made available are addressed
under the regulations in Sec. 680.500(e). In developing the
information to accompany the State List described in Sec. 680.490(b),
disclosure of personally identifiable information from an education
record must be carried out in accordance with the Family Educational
Rights and Privacy Act, including the circumstances relating to prior
written consent. No changes were made to the regulatory text in
response to these comments. Instead, the Department intends to provide
additional guidance on this issue and will also provide technical
assistance to States who face legal barriers in complying with
performance reporting requirements.
Section 680.510 In what ways can a Local Workforce Development Board
supplement the information available from the State list of eligible
training providers and programs?
The Department did not receive any comments addressing Sec.
680.510 other than a general statement of support for the provision as
drafted. The Department made non-substantive edits to the title of this
section for uniformity in use of the term ``State list.'' The
Department also modified Sec. 680.510 to clarify that, as explained
above, the Local WDB cannot supplement the criteria and information
requirements established by the Governor for registered apprenticeship
programs.
Section 680.520 May individuals choose training providers and programs
located outside of the local area or outside of the State?
Section 680.520 governs when an individual can choose to attend a
training program located outside of the local area or State. The
Department has made non-substantive revisions to this section for
consistency in the use of terms, and made revisions for clarity to this
section.
Section 680.520(a) provides that individuals may choose training
providers and programs outside of the local area provided that the
training program is on the State List and it is consistent with local
policies and procedures. For State ETPs that are outside of the local
area or that do not meet the local area's criteria for eligibility,
local policies and procedures determine whether participants in the
local area may utilize ITAs for training. However, the local area may
choose to make exceptions to its local eligibility criteria. The local
policies and procedures must be consistent with State policies and
procedures in order for the program to receive funds through an ITA.
Section 680.520(b) provides that individuals may choose eligible
training providers and programs outside of the State consistent with
State and local policies and procedures and that State policies and
procedures may provide for reciprocal or other agreements established
with another State to permit eligible training providers in a State to
accept ITAs provided by the other State. The State policies and
procedures may allow training providers or programs located outside of
that State to receive funds through a participant's ITA within specific
circumstances, or a State may enter into a broader agreement with
another State to establish that ETPs in the other State are eligible in
the ``home'' State. State policies may determine whether the training
providers and programs in another State must meet any or all of the
``home'' State's eligibility criteria order to receive the ITA funds
provided by the State. In either case, the local policies and
procedures can have more stringent standards than the State policy, and
therefore any use of ITAs for training providers and programs outside
of the State must be consistent with both State and local policies and
procedures.
Comments: The Department received a handful of comments addressing
proposed Sec. 680.520. One commenter supported allowing participants
to choose training located outside the local area or in other States.
Another commenter agreed with allowing individuals to choose training
providers located outside of the local area as long as the training
providers meet the performance criteria set by the Local WDB in the
local area where the person resides.
One commenter urged the Department to work with inter-governmental
organizations to develop guidance for the active inclusion of out-of-
area and eLearning options into the training approaches of Local WDBs.
This commenter stated that guidance would be preferable to reciprocity
agreements to reduce the time required to understand and implement the
specifics of interstate agreements.
Department Response: The Department has concluded that reciprocity
agreements will be maintained in Sec. 680.520 because they are
specifically authorized under WIOA sec. 122(g) and they further the
goals of WIOA. Reciprocity agreements reduce the burden on States and
providers by eliminating duplicative procedures. They also expand the
array of training options available to individuals seeking training.
The Department recommends that States consider how best to establish
and implement reciprocity agreements, and how these agreements may be
used to expand distance and online training options. The Department
notes that its revisions to this section, in Sec. 680.520(b), permit
the States to develop other agreements that permit ETPs in a State to
accept ITAs provided by another State. This provides additional
flexibility to the States as the agreement does not have to be
reciprocal. The Department will consider whether there is a need for
additional guidance on this issue in the future.
Section 680.530 What eligibility requirements apply to providers of on-
the-job training, customized training, incumbent worker training, and
other training exceptions?
Section 680.530 explains that providers of OJT, customized
training, incumbent worker training, internships, paid or unpaid work
experience, or transitional jobs are not subject to the same WIOA
eligibility requirements of sec. 122(a) through (f) that are
established for providers listed on the State List of Eligible Training
Providers and Programs. Section 680.530 requires local one-stop
operators to collect any separate performance information required by
the Governor and determine whether these providers meet the Governor's
performance criteria. The Department made non-substantive edits for
consistency in how the Department uses terms throughout this section
and made substantive edits to the provision which are further explained
below.
The Department reorganized this section for clarity by breaking
what was one paragraph into several paragraphs. Paragraph (a) now
provides that providers of OJT, customized training, incumbent worker
training, internships, paid or unpaid work experience, or transitional
jobs are not subject to the requirements applicable to providers and
programs which are included on the State ETPL. Paragraph (b) now
provides that the Governor may establish performance criteria those
providers must meet to receive funds through the adult or dislocated
worker programs pursuant to a contract consistent with Sec. 680.320.
Thus, while these kinds of programs cannot be paid for with ITAs, Local
WDBs may enter into a contract with these entities to provide these
training services. More information can be read about this in Sec.
680.320 and its accompanying preamble. Paragraph (c) provides that one-
stop operators must
[[Page 56145]]
collect any performance information required by the Governor and
determine if the provider meets these performance standards. For those
that meet the Governor's standards, paragraph (d) requires the one-stop
operator to distribute information about those programs, with the
relevant performance information, throughout the system.
Comments: Several comments requested clarification of whether these
other training providers are exempted from the State eligibility
process required by WIOA sec. 122 and/or from the ETP performance
reporting process required by WIOA sec. 116, if they are not included
on the State List of Eligible Training Providers and Programs. Other
commenters supported allowing local areas to contract with providers
not on the State List of Eligible Training Providers for customized
training, incumbent worker training, internships, paid or unpaid work
experience, and transitional employment. One commenter expressed
support for exempting OJT, customized, and incumbent worker training
from the ETP process but recommended that these training programs be
subject to performance reporting. Another commenter recommended
revising Sec. 680.530 to provide that OJT, customized training,
incumbent working training, and other training exceptions are not
exempt from rigorous performance standards even though they are exempt
from the general performance metrics in WIOA sec. 122 and must be
subjected to rigorous performance standards suited to the type of
program. This commenter recommended that Sec. 680.530 be revised to
emphasize that local one-stop operators must collect the performance
information that the Governor shall require and to emphasize that local
one-stop operators must disseminate this list of training exceptions.
This commenter recommends requiring inclusion of the Governor's
performance criteria for OJT, customized training, and incumbent worker
training in the State Plan and annual reports and that the monitoring
of these programs be referenced in Sec. 680.530. Further, this
commenter recommended that performance of these programs be detailed by
industry, company, and occupation at the quarterly meetings of Local
and State WDBs Another commenter suggested the Local WDB must concur
with the Governor that such information is worth collecting and that
the Local WDB should determine how best to collect the information.
This commenter felt that requiring the operator to collect such
information is likely to be less efficient that obtaining the
information directly from the service provider or UI wage records, and
that local areas should decide if it is worth collecting data on every
work-based, customized, incumbent worker training, internship, or work
experience arrangement.
One commenter recommended that work experience programs be excluded
from reporting. Another commenter suggested that the Department require
the Governor's performance standards for these exceptions to be
described in the State Plan. Some commenters recommended that these
exceptions be subject to the same accountability, transparency, and
monitoring standards that apply to all programs regulated by WIOA. One
commenter recommended that where a Local WDB is using short-term and/or
eLearning assisted ``training,'' these training services should be
regarded as being provided by the Local WDB, and these approaches
should be exempted from the ETP process. This commenter stated that
these training programs should be subject to performance reporting. One
commenter stated that OJT and customized training providers should not
be included on the State ETPL because these should be matters of
negotiation between Local WDBs and affected business entities. Finally,
one commenter said that customized training, registered apprenticeship,
or OJT are all work-relevant, but the section-by-section discussion in
the regulation should clarify that these are examples and not an
exhaustive list of the types of training that would have to be provided
by a business. Such limitation could deem ineligible representatives of
the business community who may successfully offer alternative types of
training such as a non-registered apprenticeship.
Department Response: The Department has made changes to the
regulatory text of Sec. 680.530 to clarify that the training providers
listed in this section are not included on the State ETPL. The
Department is including among these exceptions the types of work-based
training included at WIOA section 122(h), which does not specifically
identify non-registered apprenticeship programs but does include on-
the-job training, customized training, incumbent worker training,
internships, paid or unpaid work experience, and transitional jobs.
There is no Federal restriction on States and Local WDBs including non-
registered apprenticeship programs on the ETPL; however, these programs
must apply through the Governor's eligibility procedure to become an
eligible training provider, just as any other potential eligible
training provider would. Additionally, there is no restriction on non-
registered apprenticeship programs participating in on-the-job training
or customized training through contracts as described in Sec. 680.530,
if it is determined appropriate by the State and Local WDB. This
decision is based on the exception in WIOA sec. 122(h) exempting these
providers from the requirements for inclusion on the List, maintenance
on the List, and removal from the List. Notwithstanding this exclusion,
that exemption in WIOA sec. 122(h) further authorizes the Governor to
require the local area to collect performance information on these
providers. That information can be the same as that required for ETPs
or may be different information.
Local WDBs may provide training services, including short-term and/
or eLearning assisted training, if the Local WDB meets the conditions
of WIOA sec. 107(g)(1), which includes the information required in a
written waiver request to the Governor.
The revised regulatory text at Sec. 680.530(d) clarifies that one-
stop operators must disseminate information identifying providers and
programs that have met the Governor's performance criteria and the
relevant performance information as required by the Governor throughout
the one-stop delivery system. Local WDBs are not required to concur
with the Governor regarding the value of the performance information
that the Governor chooses to require.
While States are not required in their State Plans to describe the
State's performance standards for on-the-job training, incumbent worker
training, transitional jobs, and customized training, the State is
required to describe the State's strategies for how these exceptions
ensure high quality training for both the participant and the employer.
State Plan requirements are fully described in the WIOA State Plan ICR
and 20 CFR part 676 (see Joint WIOA Final Rule).
The Department does not have the authority to require State or
Local WDBs to review performance information by industry at quarterly
meetings.
Further, the regulatory text has been modified to clarify that
these other training providers are eligible to receive WIOA funding
through a contract for services rather than through ITAs. The
regulatory text was also edited to remove the statement that approved
providers under this section are considered eligible training providers
services, which could inappropriately suggest that these entities may
serve as
[[Page 56146]]
ETPs and receive funding through ITAs without going through the
Governor's eligibility procedures. As explained, this is not the case.
The regulation text was also revised to clarify that these providers
are not subject to the other requirements that training providers and
programs which are on the State ETPL must fulfill. However, these
providers are still subject to other requirements of WIOA outside of
this subpart.
The Department has also made a change to the terminology used in
reference to transitional employment. For consistency with other areas
of the WIOA Final Rule, the Department is using the term transitional
jobs.
Comments: One commenter recommended that Sec. 680.530 be revised
to ensure that non-credit training and education be included on the
ETP, and that performance-related elements are consistent across all
ETPs, including community colleges, to ensure better program outcomes
and a level playing field for all ETPs. Two commenters suggested that
work experience should be excluded from any reporting required of these
training exceptions.
Department Response: Section 680.530 describes programs that are
not included on the State ETPL. The programs listed in this section may
or may not offer credit, and the eligible training providers included
in the State List of Eligible Training Providers and Programs may or
may not offer credit. For performance reporting, the performance-
related elements required by WIOA are consistent across all eligible
training providers, except for registered apprenticeship programs. For
eligibility procedures, the performance-related elements in the
Governor's procedure should be consistent across all programs in the
State. However, the Governor's performance criteria for the work-based
training exceptions described at Sec. 680.530 may be quite different
and these programs are not a part of the State List of Eligible
Training Providers. No changes were made to the regulatory text in
response to these comments.
Comments: Several commenters requested clarification of how the
Governor may treat providers who fall within the exceptions to ITAs
described at Sec. Sec. 680.320 and 680.530 as to whether these
excepted providers may use ITAs or only contracts, and what is required
if they are to be on the State ETPL.
Department Response: As described above, local areas may contract
for these work-based training exceptions and these programs of training
services do not need to be on the State List nor are they subject to
the ETP eligibility procedures. However, these providers also could
have programs of training that are not excepted under Sec. 680.530 and
that the provider wishes to be eligible to use ITAs. As explained
above, only ETPs on the State List are able to use ITAs. Therefore,
when a provider that provides a program of training services through
contract to a local area wishes to be eligible to receive students
using ITA funding, the training provider would need to complete the ETP
eligibility process described in this subpart. These programs would be
subject to the Governor's eligibility procedure. An example of such a
case would be a company that provides OJT through a contract with a
local area and also offers classroom training or credentialing; the
classroom training could be a regular ETP while the company could have
a contract for the OJT. More information about the ETP exceptions can
be found in Sec. 680.320. No changes were made to the regulatory text
in response to these comments.
6. Subpart E--Priority and Special Populations
Introduction
The services provided with adult funds can be a pathway to the
middle class for low-income adults, public assistance recipients, and
individuals who are basic skills deficient. The regulations implement
the statutorily-required priority for the use of adult funds, and
ensure any other priorities or designations are consistent with the
statutory priority. This subpart contains regulations about how
participants from certain populations are able to access adult and
dislocated worker services, and regulations establishing priority
access to these services. WIOA sec. 134(c)(3)(E) provides that priority
for adult training services and certain career services must be given
to recipients of public assistance, other low-income individuals, and
individuals who are basic skills deficient. Under WIOA, priority access
to services by members of this group is always in effect regardless of
funding levels. Nonetheless, WIOA allows one-stop centers to provide
individualized career services to individuals who are not members of
these groups, if determined appropriate by the one-stop center.
The Department encourages close cooperation between WIOA-funded
programs and other Federal and State sources of assistance for job
seekers. Coordination between WIOA-funded programs and the TANF program
is a crucial element in serving individuals who are on public
assistance. TANF is a required partner in the one-stop delivery system.
Through close cooperation, each program's participants will have access
to a much broader range of services to promote employment retention and
self-sufficiency than if they relied only on the services available
under a single program.
In this subpart, the Department explains how displaced homemakers
may be served with both adult and dislocated worker funds. Under WIOA,
a displaced homemaker qualifies as an ``individual with a barrier to
employment'' (see WIOA sec. 3(24)(A) and Sec. 680.320(b)).
Additionally, displaced homemakers meet the definition of a
``dislocated worker,'' as defined in WIOA sec. 3(15)(D). Displaced
homemakers, whose work, albeit without a formal connection to the
workforce, is recognized for its value, may need WIOA services to
develop further work skills. WIOA also expands the definition of
displaced homemakers to include dependent spouses of the Armed Forces
on active duty to ensure they have access to WIOA title I services.
This subpart ensures that veterans and certain service members have
access to adult and dislocated worker programs. Under WIOA, as was the
case under WIA, veterans receive priority of service in all Department-
funded employment and training programs. The regulations in this
subpart describe what is meant by ``priority of service.'' The
regulation is consistent with guidance it issued in TEGL No. 22-04
(``Serving Military Service Members and Military Spouses under the
Workforce Investment Act Dislocated Worker Formula Grant''), dated
March 22, 2005 (http://wdr.doleta.gov/directives/attach/TEGL22-04.pdf)
and expanded in TEGL No. 3-15 (``Guidance on Services Provided through
the Adult and Dislocated Worker Program under the Workforce Innovation
and Opportunity Act (WIOA or Opportunity Act) and Wagner Peyser, as
Amended by WIOA, and Guidance for the Transition to WIOA Services''),
dated July 1, 2015 (http://wdr.doleta.gov/directives/attach/TEGL/TEGL_03-15.pdf) that separating service members meet the eligibility
requirements for dislocated worker activities. This regulation will
ensure that service members will have access to the full array of
services available through the one-stop delivery system.
[[Page 56147]]
Section 680.600 What priority must be given to low-income adults and
public assistance recipients and individuals who are basic skills
deficient served with adult funds under title I?
Comments: Several commenters expressed general support for giving
priority for service to recipients of public assistance, other low-
income individuals, and individuals who are basic skills deficient. In
contrast, a few commenters expressed disagreement with the priority of
service provisions, reasoning that the regulations fail to address
employer needs and focus instead solely on the needs of the employee.
Two commenter recognized the need to be responsive to both the
employers and the employees.
Department Response: The Department notes that WIOA sec.
134(c)(3)(E) requires priority be given to individuals who are public
assistance recipients, low income, or basic skills deficient, with
regard to the provision of individualized career services and training
services. This priority applies to funds allocated to a local area for
the WIOA title I adult program, It is not an eligibility criterion for
the program, but it is the means to ensure an emphasis on providing
services to these populations. This priority is not required for the
WIOA title I dislocated worker program. The Department recognizes the
need to serve not only low-skilled individuals but also those with more
advanced skills and training who also need assistance. The Department
also recognizes the importance of the one-stop delivery system's
employer customer, assisting them to find, hire, train, or upskill
their workforces. The one-stop delivery system connects the provision
of career services and training to help individuals get good jobs and
build careers and the development of the skilled workers employers need
and their match to employers. Work-based training focuses on employer
workforce needs, particularly incumbent worker training, where the
employer is the primary customer.
Comments: A few commenters supported the removal of the WIA
``limited funding'' exception. Two commenters strongly urged the
Department to clarify in the Final Rule that the priority is in effect
regardless of funding. Two commenters stated that it was preferential
to apply the proposed priority of service provisions when funds are
limited. One commenter questioned whether the regulations pre-suppose
that limited funding exists and expressed support for the development
of criteria that would give local areas the authority to set priority
of service thresholds that would take effect only during times of
limited funding.
Department Response: The application of priority under the title I
adult program applies at all times as required in WIOA sec.
134(c)(3)(E).
Comments: A commenter recommended that the regulation allow for
local definition of low income rather than the Federally defined Lower
Living Standard Income Level (LLSIL), reasoning that an individual
might not be below the low-income level as defined by the LLSIL, but
still be far below the level of self-sufficiency in the local area.
Another commenter asked what the definition of ``family'' would be when
determining whether someone is considered low income in regard to
priority of service. One commenter recommended incorporating the
definition of family from WIA sec. 101(15) into the regulations to
clarify the meaning of low income. One commenter questioned how the
priority groups included in the regulation relate to Equal Employment
Opportunity (EEO) considerations and requested clarification within the
regulation that EEO applies within the priority groups rather than
before prioritization is considered.
A few commenters asserted that insufficient detail was provided in
the regulations (e.g., family income calculations) and expressed
concern with an approach that provided these details through guidance,
reasoning that guidance allows for requirements to change over time.
Department Response: The term ``low-income individual'' is
statutorily defined in WIOA sec. 3(36); it includes language that the
LLSIL is determined by the Secretary. The Department agrees with the
commenters requesting a definition of ``family'' and has added language
to the definitions in part 675 of this Rule. Discussion of the added
definition is provided in the preamble accompanying part 675.
The non-discrimination provisions of WIOA sec. 188 do not provide
for preference for services. They protect against discrimination in the
provision of services and prevent individuals from being otherwise
adversely affected because of their membership in a protected class.
Therefore, the Department has declined to make changes in the
regulatory text in response to this comment.
Comments: Several commenters recommended a revision to proposed
Sec. 680.600(c) to clarify that any designation of priority for other
eligible individuals must be subject to both the veterans priority of
service requirements at Sec. 680.650 and the WIOA statutory priority
of service requirements in sec. 134(c)(3)(E). A commenter suggested
that any guidance in this area, including guidance on expectations for
State and local implementation, should support flexibility to allow
States and localities to serve their unique and diverse populations
best. One commenter questioned the relative priority that should be
applied to other groups of individuals designated by the Local WDB or
Governor as receiving priority of service compared to those explicitly
listed in WIOA.
Department Response: The Department agrees with the commenters'
suggestion that any additional priority populations identified by the
Governor must be consistent with the statutory priority as well as the
veteran's priority of service. The Department has made changes to the
regulatory text at Sec. 680.600(c) to reflect this suggestion. The
Department will issue guidance and technical assistance about the
implementation of these priority requirements.
Comments: Several commenters stated that the Department must revise
proposed Sec. 680.600(a) to align with WIOA and allow for priority to
be given to ``recipients of public assistance, other low-income
individuals, and individuals who are basic skills deficient,'' not
``recipients of public assistance, other low-income individuals, who
are basic skills deficient,'' as was proposed. A commenter requested
clarification as to whether being basic skills deficient alone would
quality an individual for priority of service.
Department Response: The Department agrees with the commenters and
has modified the regulatory text in Sec. 680.600(a) to make clear that
individuals who are basic skills deficient is its own category to be
eligible for priority of service in the WIOA title I adult program.
Basic Skills Deficient
Comments: A commenter provided several recommendations about
priority of service for individuals who are basic skills deficient: (1)
Basic skills deficient should include computer literacy skills as a
skill necessary to function on the job; (2) the process for identifying
basic skills deficient should allow self-attestation and observation by
one-stop staff; (3) a standard tool for measuring basic skills
deficient should be developed and should include consideration of
career-oriented employability skills; and (4) any individual who meets
the definition of basic skills deficient should be eligible for
services.
[[Page 56148]]
A few commenters cautioned against using a definition of basic
skills deficient that considered how the individual's skill set would
allow them to ``function on the job.'' These commenters reasoned that
such a definition could create a loophole that might diminish the
priority of service requirement by permitting services to otherwise
non-low- income individuals who simply lack some skill needed to do a
specific job. A few commenters recommended that the methodology for
determining basic skills deficiency should be identified in State or
local policy, rather than in regulation or Department policy.
Department Response: The term ``basic skills deficient'' is defined
in WIOA sec 3(5). States and Local WDBs have flexibility in determining
when an individual meets this definition.
Comments: A commenter stated that proposed paragraphs (a) and (c)
of Sec. 680.600 included inconsistent language when describing
individuals who are basic skills deficient, one paragraph using the
term ``basic skills deficient'' and the other using the term
``individuals without basic work skills.'' The commenter asserted that
consistent terminology is important.
Department Response: The Department agrees with these comments and
has modified the regulatory text to incorporate this suggestion.
Implementation of Priority of Service Requirements
Comments: Several commenters requested guidance on the
implementation of the priority of service requirements. A few
commenters stated that guidance should include an explanation of how
States and localities will be monitored to ensure that an appropriate
process or protocol is established and details on what the protocols
should include. Because the priority groups could be seen as a threat
to successful performance tracking, one commenter stated that reporting
and incentives should be put into place to ensure these participants
are actually served and supported.
Several commenters provided additional input on how to implement
the priority of service requirements, including the following
recommendations, building on the Department's use of veterans' priority
of service, utilizing technical assistance and best practices,
developing performance metrics and benchmarks, and coordination with
immigration and refugee organizations and State Refugee Coordinators.
A few commenters described how U.S. Census data could be used to
implement or verify the priority of service requirements. To verify
that the priority of service has been properly implemented, two
commenters recommended that the Department require that State and local
planning efforts utilize the most current Census and administrative
data available to develop estimates of each priority service population
in their planning efforts and update these data year to year.
Additionally, these commenters recommended that this data be used in
Federal reviews of State Plans to ensure that system designs and
projected investments are equitably targeted to service priority
populations. The commenters also stated that this data should be used
to benchmark system performance in actual implementation of the
priority of service from year to year.
Department Response: The Department will provide further guidance
to clarify how priority of service should be implemented and monitored.
Section 680.610 Does the statutory priority for use of adult funds also
apply to dislocated worker funds?
Comments: A commenter sought clarification as to whether the same
priority given to adult funds applied to dislocated worker funds that
were transferred to the adult program.
Department Response: The Department considers funds transferred
from the dislocated worker program to the adult program to be adult
program funds and fall under the priority requirements of the adult
program. Likewise, any transfer of funds from the adult program to the
dislocated worker program will fall under the requirements of the
dislocated worker program.
Comments: Commenting that older workers are more likely to show up
in the dislocated worker program than in the adult program, one
commenter recommended that priorities and protections should be
established within the dislocated workers program.
Department Response: There is no priority in the dislocated worker
program, other than veteran's priority of service. Participants must
meet the dislocated worker eligibility criteria in order to participate
in this program. No changes have been made to the regulatory text in
response to the comments.
Section 680.620 How does the Temporary Assistance for Needy Families
program relate to the one-stop delivery system?
Comments: A commenter suggested that the statement in the NPRM
introduction to subpart E that the ``Department strongly encourages
close cooperation'' between WIOA-funded programs and other Federal and
State sources of assistance for job seekers does not convey the
strength needed to have full coordination between WIOA-funded programs
and the TANF program. This commenter recommended changing the wording
to ``mandates close coordination with funding tied to coordinated
partnerships.''
One commenter recommended that the Department seek out
opportunities for increased alignment between WIOA common performance
indicators and TANF. This commenter stated that one challenge is that
TANF programs are not measured by the same accountability measures as
the other core WIOA programs.
Department Response: WIOA delegated the authority to Governors and
Local WDBs, to decide how closely to align and coordinate their plans
with WIOA programs and other sources of public assistance like TANF.
The Department encourages strong partnership and close alignment with
TANF at the State and local level.
Comments: A commenter requested clarification on whether TANF
funding had to be used, rather than WIOA funds, if available, and how
TANF organizations should document that TANF funds are not available.
Department Response: Under Sec. 680.230(b) and WIOA sec.
134(c)(3)(B), one-stop centers are required to consider the
availability of other sources of grants to pay for training costs,
which includes TANF funds. The Department will provide additional
guidance and technical assistance to one-stop centers to answer
questions about how to document whether funds from other sources such
as TANF are available.
Comments: Several commenters recommended that the Department ensure
that Local WDBs or their standing youth committees identify how
connections will be made with TANF partners at one-stop centers to
ensure policy and programmatic alignment for the young adult population
under 25, who may receive a different set of services if they are not
served though WIOA title I youth programs. These commenters asserted
that WIOA and TANF differ greatly from each other, requiring specific
policy and
[[Page 56149]]
programmatic alignment by the State and Local WDBs to service TANF
recipients in a WIOA program.
Department Response: Coordination between TANF and WIOA services
must take place at the State and local level and therefore, States and
local areas are responsible for establishing policies and MOUs, and
aligning plans wherever they deem to be appropriate to serve
participants best. The Department recognizes that there are challenges
associated with such planning and coordination and will continue to
provide guidance and technical assistance to assist with these
processes. No change is made in the regulatory text.
Section 680.630 How does a displaced homemaker qualify for services
under title I?
Comments: A commenter expressed support for the inclusion of
spouses of members of the Armed Forces on active duty as a displaced
homemaker. Two commenters encouraged the Department to urge States to
highlight the displaced military spouse homemakers in dissemination of
information about services to this population.
Department Response: The Department agrees with the commenters'
suggestion and encourages States and Local WDBs to highlight the
eligibility for displaced military spouse homemakers in the information
they disseminate about this program. No changes have been made to the
regulatory text in response to the comments.
Section 680.640 May an individual with a disability whose family does
not meet income eligibility criteria under the Workforce Innovation and
Opportunity Act be eligible for priority as a low-income adult?
Comments: A few commenters expressed support for the provisions in
Sec. 680.640 as proposed. One comment also expressed support for the
provisions in proposed Sec. 680.640 to keep a family's income separate
from the adult with a disability's income to that services are provided
to all individuals who need it and that another eligibility barrier is
not created to ensuring access to these services.
One commenter requested clarification on whether the provisions
specifying the circumstances under which an individual with a
disability may still qualify as a priority low-income adult, even when
family income does not meet the low-income eligibility criteria, also
apply to persons receiving Social Security Disability Insurance.
Another commenter recommended the Department clearly identify
receipt of Social Security disability benefits as a barrier to
employment.
Department Response: The circumstances that allow these individuals
to qualify still as a low-income adult, regardless of family income, do
not apply to persons receiving Social Security Disability Insurance
(SSDI). The Department considers WIOA to be very specific about what
does count and what does not with regard to income-based eligibility in
its definition of ``low-income individual'' in WIOA sec. 3(36). This
definition allows individuals on Supplemental Security Income (SSI) to
be considered low-income, but does not consider individuals on SSDI to
be considered low-income of the basis of that status alone. Also, SSDI
payment cannot be excluded when making income-based eligibility
determinations. However, individuals receiving SSDI meets the
definition of an individual with a disability, which means the
individual meets the criteria of an individual with a barrier to
employment under WIOA sec. 3(24) and Sec. 680.320(b). The Department
encourages individuals receiving SSDI who are seeking to return to
employment to access services through the one-stop delivery system.
WIOA is subject to 38 U.S.C. 4213, and therefore military benefits are
excluded from income-based eligibility determinations under WIOA.
7. Subpart F--Work-Based Training
Sections 680.700 through 680.850 are regulations for work-based
training under WIOA. The regulations apply to (OJT) training,
customized training, incumbent worker training, and transitional jobs.
The regulations include specific information about general, contract,
and employer payment requirements. Work-based training is employer-
driven with the goal of unsubsidized employment after participation.
Generally, work-based training involves a commitment by an employer or
employers to employ successful participants fully after they have
completed the program. Registered apprenticeship training is a type of
work-based training that can be funded in the adult and dislocated
worker programs; additionally pre-apprenticeships may be used to
provide work experiences that can help participants obtain the skills
needed to be placed into a registered apprenticeship.
Work-based training can be an effective training strategy that can
provide additional opportunities for participants and employers in both
finding high quality work and in developing a highly skilled workforce.
Each of these work-based models can be effectively used to meet a
variety of job seeker and employer needs. OJT is primarily designed to
first hire the participant and provide them with the knowledge and
skills necessary for the full performance of the job. Incumbent worker
training is designed to ensure that employees of a company are able to
acquire the skills necessary to retain employment and advance within
the company or to provide the skills necessary to avert a layoff.
Customized training is designed to provide local areas with flexibility
to ensure that training meets the unique needs of the job seekers and
employers or groups of employers.
Both training providers and employers providing OJT opportunities
must be providing the highest quality training to participants. OJT
contracts must be continually monitored so that WIOA funds provided
through OJT contracts are providing participants the training to retain
employment successfully. It is important that OJTs provide participants
with relevant skills and opportunities for career advancement and
provides employers with a skilled workforce.
Under WIOA, the statute enables a Governor or Local WDB to increase
the reimbursement rate for OJT from 50 to 75 percent. This is designed
to give States and Local WDBs additional flexibility in developing OJT
opportunities that work best with the participating employers and in
the local economy.
WIOA also explicitly allows for incumbent worker training at the
local level. WIOA introduces incumbent worker training as an allowable
type of training for a local area to provide. Incumbent worker training
is designed to either assist workers in obtaining the skills necessary
to retain employment or to avert layoffs and must increase both a
participant's and a company's competitiveness. Local areas may use up
to 20 percent of their local adult and dislocated worker funds for
incumbent worker training. The Department seeks to ensure that
incumbent worker training is targeted to improving the skills and
competitiveness of the participant and increasing the competitiveness
of the employer. The training should, wherever possible, allow the
participant to gain industry-recognized training experience and
ultimately should lead to an increase in wages. To receive incumbent
worker funding under WIOA, an incumbent worker must have an employer-
employee relationship, and an
[[Page 56150]]
established employment history, with the employer. Incumbent workers
are employed at the time of their participation, and the contract funds
are paid to the employer for training provided to the incumbent worker
either to avert a lay-off or otherwise retain employment. A ``model''
incumbent worker training would be one where a participant acquires new
skills allowing him or her to move into a higher skilled and higher
paid job within the company, thus permitting the company to hire a job
seeker to backfill the incumbent worker's pre-training position.
Comments: A commenter recommended that the regulations clarify that
OJT, customized, and incumbent worker training are exempt from the ETP
process.
Department Response: Work-based training and work experiences are
subject to the dissemination requirements of WIOA sec. 134 (a)(2)(B)(v)
and the requirements of WIOA sec. 122(h) as the Governor may require.
These requirements are separate from the ETP section of WIOA sec.
122(a) through (f). The Department has modified the language of the
regulatory text in Sec. 680.340(b), which requires Local WDBs to
disseminate the list of ETPs, to make clear that the work-based
training provider information requirements are separate from the
requirements governing the ETPL. These provisions of WIOA sec. 122(h)
apply to providers of work-based training.
On-the-Job Training
Comments: A commenter expressed support for the proposed
requirements regarding OJT. Another asked the Department to earmark
funding either on the national or State level for employer education as
to the benefits of hiring after training is received.
Department Response: The Department considers employer engagement
to be critical to the success of these programs. It plans to provide
additional guidance and technical assistance for this purpose.
Comments: A commenter expressed concern that the different
``employer match'' requirements for OJT, customized training, and
incumbent worker training would present a challenge to explain to
employers, and recommended that the Department simplify the match
requirements and lower them for small businesses to encourage their
participation in the programs. Specifically, this commenter recommended
that the match requirement be the same across all three types of
training and be differentiated based on business size.
Department Response: The matching requirements training for these
three types of training are specified in WIOA, and are provided,
consistent with WIOA, at: Sec. 680.700 for OJT, Sec. 680.760 for
customized training, and Sec. 680.820 for incumbent worker training.
Each type of training emphasizes a different need of employers and
individuals, and the employment match is designed to reflect the
differences in those training types. No change is made in the
regulatory text.
Section 680.700 What are the requirements for on-the-job training?
Comments: Two commenters asked if it would be permissible to enter
into an OJT contract with a public non-profit agency such as a local
fire department or board of education.
Department Response: Yes, as long as the requirements of Sec. Sec.
680.700 through 680.730 are met, this type of OJT contract would be
allowable.
Comments: Regarding the circumstances under which adult and
dislocated worker funding may not be used to enter into an OJT
contract, two commenters recommended adding to Sec. 680.700(b) that
OJT training contracts may not be entered into with employers that have
unpaid unemployment insurance and workers compensation taxes.
Department Response: The Department considers this to be at the
discretion of State and Local WDBs and declines to modify the
regulatory text to include this requirement.
Comments: Two commenters recommended adding language to Sec.
680.700 requiring OJT contracts that cover ``apprenticeable
occupations'' and pre-apprenticeship programs to be attached to
registered apprenticeship programs. These commenters also recommended
adding an additional condition to the list of factors that the Governor
or Local WDB must take into account when exercising discretion to
increase the reimbursement rate for OJT contracts in Sec. 680.730(a).
Specifically, these commenters recommended that the Department add a
new subparagraph that would prohibit reimbursements for OJT programs
for apprenticeable occupations unless they are part of a registered
apprenticeship program.
This commenter also suggested that this new regulatory provision
require the Governor to consider whether the OJT contracts are
harmonized with registered apprenticeship programs such that no OJT
contract operates to train in an apprenticeable occupation unless it is
part of a registered apprenticeship program (or comparable program
determined by the Secretary not to undermine registered apprenticeship
programs) and that any contract for pre-apprenticeship is articulated
with at least one registered apprenticeship programs.
Department Response: Section 680.740 specifies how registered
apprenticeship program sponsors or participating employers in
registered apprenticeship programs may be contracted to provide OJT.
The Department declines to add language that restricts the OJT portion
of non-registered apprenticeships from receiving OJT funds providing
that they meet the requirements of Sec. Sec. 680.700 through 680.730
and any criteria established by the Local WDB.
Comments: One commenter requested that the Department amend Sec.
680.700 to include work-based learning activities that are identified
and linked to training provided by ETPs.
Department Response: There are no prohibitions to ETPs providing
work-based learning activities, provided that those activities meet the
conditions of Sec. Sec. 680.700 through 680.730.
Comments: To prevent hiring workers for the duration of the OJT
with no job continuity afterwards, a commenter recommended there be a
minimum standard to address performance relating to both employment and
career pathways to which all Governors would be required to adhere.
Department Response: OJT participants are part of the performance
accountability system under WIOA which includes employment related
outcomes, and performance information will be collected on all
participants in OJT. This approach will help to ensure that States and
local areas are utilizing high quality training providers for both ITAs
and work-based training. In addition to the required performance
information, Governors may set additional performance criteria for
work-based training under WIOA sec. 122(h). The Department will
continue to support collaboration across all WIOA title I programs.
Comments: Regarding the duration of an OJT contract, a commenter
recommended that OJT be used for 6 to 12 months with discretion resting
with the Local WDB.
Department Response: The Department is not requiring specific OJT
duration limitations. The Department agrees with the comment that the
discretion should be left to the Local WDBs and declines to make
changes to the regulatory text at Sec. 680.700(c). Comment: Two
commenters requested that Sec. 680.700 include a reference to
agreements with registered apprenticeship programs under
[[Page 56151]]
Sec. 680.740(a), to make clear OJT can be provided by registered
apprenticeship programs.
Department Response: The Department has added language to Sec.
680.700 to be clear that OJT contracts may be written with registered
apprenticeship program sponsors.
Section 680.710 What are the requirements for on-the-job training
contracts for employed workers?
Comments: A commenter stated that the determination of a ``self-
sufficient wage'' should be left to the State and local areas and
driven by local circumstances.
Department Response: The Department maintains the self-sufficiency
standard. States may develop a State self sufficiency standard, and
local areas may adjust the standard, within the set parameters of WIOA
sec. 134(c)(3) and (d)(1)(a).
Comments: A commenter recommended insertion of a reference to
``workers with barriers to employment, including people with
disabilities'' in Sec. 680.710(a) and broadening OJT contracts to
include introduction of accessible technology and other workplace
accommodations for workers with emerging disabilities in need to
training to stay on the job.
Department Response: Title I adult and dislocated worker funds are
to be used to target services to individuals with barriers to
employment as defined in WIOA sec. 3(24). Individuals with disabilities
are a part of this definition. The Department has added ``reasonable
accommodations for individuals with disabilities'' as an allowable
supportive service in Sec. 680.900, which can be used to help enable
an individual to participate in OJT training.
Section 680.720 What conditions govern on-the-job training payments to
employers?
Comments: Several commenters concurred with the Department's
decision not to define ``extraordinary costs'' through the regulation,
allowing for flexibility. One commenter would leave the definition up
to the States, while another recommended that it be left to local
discretion to ensure their OJT arrangements are applicable to local
market conditions.
One commenter recommended that ``extraordinary costs'' be defined
according to the Association for Talent Development Guidelines, which
divide expenses according to whether they are direct or indirect. The
commenter suggested that at a minimum that the regulations provide
explicit coverage of unrecoverable material expenses (i.e., materials
and articles nonproductively expended in training that do not create a
usable product) and of participant trainees and trainers lost from
productive work.
Two commenters recommended deleting proposed Sec. 680.720(c),
which specified that employers are not required to document the
extraordinary costs associated with training OJT participants and
replace it with a requirement that the Governor collect performance
data regarding OJT to ensure that OJT contracts are fulfilling the
purposes of WIOA.
Department Response: The Department declines to require additional
cost or other documentation from employers to avoid creating an
unnecessary burden. States and local areas may further define what
constitutes an ``extraordinary cost'' at their discretion.
Section 680.730 Under what conditions may a Governor or Local Workforce
Development Board raise the on-the-job training reimbursement rate up
to 75 percent of the wage rate?
Comments: A commenter requested clarification about when a Local
WDB may increase the rate for OJT contracts up to 75 percent, and
specifically asked if a Governor may limit the Local WDB's authority to
increase the reimbursement rate if all factors required in the
regulation and under local policy are met.
Department Response: The Governor may not limit the Local WDB's
authority to increase the reimbursement rate for OJT contracts provided
with funds allocated to the local area. The difference between the
Governor and the Local WDB with respect to OJT reimbursement rates is
what funding source each is allowed to raise the reimbursement rate
for. The Governor may increase the reimbursement rate for OJT contracts
provided with Governor's Reserve funds or NDWG funds. Local WDBs may
increase the reimbursement rate for OJT contracts provided with funds
allocated to the local area.
Comments: A commenter suggested that employers paying above the
median wage for the occupation should be eligible for increased
reimbursement as follows: ``Entry Level'' at 50 percent, ``Median'' at
60 percent, and ``Experienced'' at 75 percent.
Another commenter described its current waiver that allows for a
graduated rate of OJT reimbursements based on the size of the company,
which it asserted has helped small businesses gain funding and skilled
employees.
Department Response: The Department declines to add these factors
into the regulatory text. They may be determined appropriate by the
Governors or Local WDBs under Sec. 680.730(a)(4).
Comments: One commenter asked if a State needs to seek a waiver to
reimburse employers more than 75 percent of the OJT wage, and if the
waiver could be obtained before July 1, 2015. This commenter described
its current waiver to provide up to a 90 percent employer reimbursement
rate.
Department Response: The Department is not considering waiver
requests as part of this rule making. All WIOA title I adult and
dislocated worker OJT projects going forward are expected to adhere to
the reimbursement rates set forth in WIOA.
Comments: A commenter urged the Department to provide guidance to
State and Local WDBs on coordinating the increased reimbursement
criteria with high-road economic development strategies that improve
wages, benefits, and other job quality factors for front-line
employment in a State and region.
Department Response: The Department will issue guidance and
technical assistance on work-based learning, including OJT, sector
strategies, and industry partnerships.
Comments: A commenter recommended that the Department include a
reference to individuals with disabilities in Sec. 680.730(a)(1) to
provide an incentive to State and Local WDBs to focus on this
population.
Department Response: Paragraph (a)(1) of Sec. 680.730 states that
Governors may take the characteristics of the participants into
consideration when raising the reimbursement rate, emphasizing
``individuals with barriers to employment'' as defined in WIOA sec.
3(24). Individuals with disabilities are included in this definition.
No change is made to the regulatory text.
Comments: Some commenters stated that the factors to be considered
regarding the relation of training to the competitiveness of the
participant should be the size of the employer or the characteristics
of the participant as determined by the Governor or Local WDB. A
commenter agreed that employer size should be a factor related to
increasing an OJT reimbursements rate, stating that smaller employers
often need additional support.
Two commenters requested that the Department numerically clarify or
define ``small businesses'' as it applies to the employer size factor
under Sec. 680.730(a)(2). Similarly, two commenters recommended that
the Department clarify the meaning of ``with an emphasis on small
businesses'' in Sec. 680.730(a)(2). One commenter
[[Page 56152]]
recommended that the Department rely upon the Small Business
Administration's (SBA's) definition of ``small business.'' Another
commenter requested that ``size of the employer, with an emphasis on
small businesses'' be removed from Sec. 680.730(a)(2), or at least
clarified to ensure that it does not negatively impact medium and large
employers seeking a higher OJT reimbursement rate.
Department Response: The Department included ``the size of the
employer'' as a factor that Governors and Local WDBs may take into
account when deciding to raise the reimbursement rate for a particular
OJT project. The Department recognizes that providing these services to
small businesses, which may need additional support in providing OJT,
is an important factor in determining the reimbursement rate for OJT.
However, there is not requirement that only small businesses may
receive a higher reimbursement rate. The Department recommends that
Governors and Local WDBs refer to SBA's definition of ``small
business'' as a guide which varies by industry; it can be found at
https://www.sba.gov/content/summary-size-standards-industry-sector.
Comments: A commenter stated that before entering training, all
individuals should be thoroughly assessed to determine appropriateness
of training--including demand of an occupation, post-training wages,
and other individualized customer-level criteria--to be as efficient as
possible with limited training resources. Several commenters
specifically addressed the ``competitiveness of the participant''
factor (proposed Sec. 680.730(a)(4)); including, its use in the
provision of incumbent worker training, a measure used in determining
wages for eligibility purposes, job retention, and credential
attainment.
Department Response: In order for an individual to receive
training, he or she must meet the criteria in WIOA sec 134(c)(3)(A).
The Department notes that there is no sequence of service requirement;
however, the eligibility for training must be established by the Local
WDB. An assessment is one appropriate ways of determining training
eligibility. The Department considers the ``competitiveness of a
participant'' to be an appropriate factor that Governors or Local WDBs
may use when determining the OJT reimbursement rate, under Sec.
680.730(a)(4). The Department agrees with the commenters'
recommendation and declines to define ``competitiveness of a
participant'' through regulation. Governors and Local WDBs may develop
a policy or criteria to be used in determining ``competitiveness of a
participant.''
Section 680.740 How can on-the-job training funds be used to support
placing participants into a registered apprenticeship program?
Comments: Many commenters addressed the issue of maximum amount of
time for OJT funds to be used to support registered apprenticeships;
including, what entity decides the duration, flexibilities in
determining duration, and tailoring to the needs of the participant.
Department Response: The Department has considered these comments
and declines to make changes to the regulatory text that would limit
the flexibility of States and local areas to determine the appropriate
duration for OJT funds used to support placing apprentices into a
registered apprenticeship program. These decisions to be best made on a
case-by-case basis at the State and local level based on individual
need.
Comments: One commenter stated that WIOA funding for apprenticeship
is useful only if it: (1) Could support a pre-apprenticeship class of
15 to 20 students for a 90-day training class; and (2) provide
additional funding for State-approved apprenticeship training, and if
funding could go directly to the program and not an intermediary like
the State WDB. The commenter warned that most registered apprenticeship
programs are multi-employer, which makes it difficult to offer OJT
contracts to employers as a hiring incentive; instead, the commenter
suggested that it would be more productive to use OJT contracts as an
incentive to enroll OJT contract-eligible individuals in their
apprenticeship programs.
Two commenters requested clarification regarding management of
reimbursement to employers by the registered apprenticeship training
program when relationships with multiple employers exist; for example,
when registered apprenticeship participants work for multiple employers
during an OJT to maintain full-time employment.
A commenter urged the Department to revise Sec. 680.740 to provide
that OJT contracts may be written with a registered apprenticeship
program, an employer participating in a registered apprenticeship
program, or both. This commenter stated that having registered
apprenticeship programs as signatories to OJT contracts guards against
OJT becoming an employer subsidy without advancing the worker's
progress. Further, the commenter recommended that OJT funds initially
be received by the apprenticeship program, then reimbursed to the
participating employer for the ``extraordinary costs.''
Several commenters said that States would benefit from guidance and
technical assistance on facilitation and implementation of
apprenticeships.
Department Response: The Department recognizes the value of pre-
apprenticeships and encourages pre-apprenticeship programs to become
ETPs through WIOA sec. 122(d). Pre-apprenticeship programs do not
automatically qualify to be on the ETPL like RA programs do; however,
if they meet the requirements under the provisions of sec. 122(a-f) to
become ETPs, they can be funded using ITAs. To provide information and
new technical assistance resources for starting and enhancing
registered apprenticeship programs, the Department issued Training and
Employment Notice No. 20-15, dated January 11, 2016 (http://wdr.doleta.gov/directives/attach/TEN/TEN_20-15.pdf). The Department
plans on issuing additional guidance and technical assistance
clarifying pre-apprenticeship and registered apprenticeship use in the
one-stop delivery system. The Department has changed the regulatory
text in Sec. 680.740(a) to make it clear that OJT contracts may be
entered into with registered apprenticeship program sponsors or
participating employers in a registered apprenticeship program for the
OJT portion of the registered apprenticeship program.
Comments: Commenters urged the Department to revise the regulation
to allow OJT funding to be used for non-registered apprenticeship
programs. Similarly, two different commenters stated that Sec. 680.740
should not limit OJT funds to registered apprenticeship programs.
Department Response: WIOA sec. 122(a)(2)(B) provides automatic
qualification for registered apprenticeship programs on ETPLs and
provides an overall emphasis on registered apprenticeship programs
throughout the one-stop delivery system. The Department has used this
emphasis to highlight the unique flexibilities the one-stop delivery
system has in making use of registered apprenticeship programs to
provide training services, including ITAs and OJT. The regulatory text
in Sec. 680.740 is designed to highlight those flexibilities for OJT.
This in no way restricts other appropriate uses of OJT, including for
use with non-registered apprenticeships. The Department declines to
make a regulatory text change include all allowable training
[[Page 56153]]
types; however, because of WIOA's emphasis on registered
apprenticeship, the Department has determined it appropriate to
highlight.
Comments: A commenter expressed support for combining funds to
support registered apprenticeship training under Sec. Sec. 680.740 and
680.750.
Department Response: This allows for the combined use of OJT and
ITAs to support placing participants in a registered apprenticeship
program. The Department notes that there is no prohibition on the
combined use of ITAs and OJT as well as any other contracted training
services under WIOA sec. 134(c)(3)(G)(iv). However these decisions must
be based on individual need, and they must be paying for separate
program elements. No changes have been made to the regulatory text in
response to the comment.
Section 680.760 What is customized training?
Comments: A commenter requested clarification of the ``commitment''
by the employer to employ all individuals upon successful completion of
customized training; specifically, whether it must be by written letter
or verbal, and whether an employer may use a temporary agency for the
first 90 days of employment. Similarly, another commenter urged that
the regulations address an employer's expectation to commit to hire.
Department Response: The ``commitment'' is a statutory requirement
in WIOA sec. 3(14) and 134(c)(3)(g)(1) requires a contract between the
employer and the Local WDB for customized training. Local WDBs have
flexibility in determining what constitutes an appropriate commitment
to hire the individuals on behalf of the employer.
Comments: One commenter requested that the Department include
language in Sec. 680.760 that would exempt the requirement that ``the
employer pays a significant cost of the training'' when the Local WDB
determines that the workers are ``at-risk'' for layoff. This commenter
reasoned that customized training seems the most appropriate support to
provide when workers are determined to be vulnerable to layoff or
closure and have basic skills but may lack a preferred credential and/
or industry-recognized certification.
Department Response: WIOA sec. 3(14) states that for customized
training, employers must pay for a significant cost of the training,
which is to be determined by the Local WDB. Customized training is
generally for hiring new or recent employees and not for retraining
existing employees. Incumbent worker training may be used to provide
training for current employees as a layoff aversion strategy. No
changes have been made to the regulatory text in response to the
comments.
Comments: Two commenters asked if the Sec. 680.760(c) requirement
that an employer pay a ``significant cost of the training'' means the
employer must pay for more than 50 percent of the cost of training. One
commenter recommended that ``significant cost of the training'' should
be eliminated as a criterion for customized training under Sec.
680.760 because it is vague and arbitrary.
Department Response: WIOA sec. 3(14)(C) requires that employers pay
a ``significant cost of the training'' of WIOA. Local WDBs have the
discretion to define the term ``significant cost of the training'' as
is appropriate for their local areas. No change is made in the
regulatory text.
Comments: A commenter proposed adding a paragraph (d) to the
definition of customized training in Sec. 680.760 stating, ``For which
the training results in a degree, certificate, or industry-recognized
credential.''
Department Response: The requirements for customized training are
defined in WIOA sec. 3(14). No change is made to the regulatory text.
The Department encourages the use of customized training that leads to
credentials, but this is not a requirement of customized training.
Section 680.770 What are the requirements for customized training for
employed workers?
Comments: Two commenters recommended that the Department remove the
requirement for employed workers to be under the self-sufficient wage
to participate in customized training because it is a deterrent for
many companies and does not provide an optimal situation for new hires.
Other commenters asserted that the provision would prevent dislocated
workers reemployed at a lower wage but still above the self-sufficiency
wage from participating in customized training that could help them
reach their prior wage levels. One commenter recommended that the
Department eliminate ``self-sufficient wage'' as a criterion or
standard for use by Local WDBs in determining work-based training
arrangements under Sec. 680.770 because it is arbitrary and holds
different meanings in different communities. This commenter asserted
that wage gain is a more objective measure.
One commenter expressed concern that the self-sufficient wage
requirement and the requirement for training to incorporate new
technologies, processes, or procedures are too restrictive.
Department Response: The Department is maintaining the self-
sufficiency standard for employed workers to be eligible for customized
training, consistent with eligibility for training services under WIOA
sec. 134(c)(3)(A). The Department considers wage gain an important
measure that a Local WDB may consider when determining if customized
training would be appropriate.
Comments: A commenter recommended adding a criterion to the
regulation that would allow customized training for individuals making
more than self-sufficient wage if it would prevent them from being
unemployed as a result of a layoff.
Department Response: The Department considers incumbent worker
training to be the most appropriate type of training for layoff
aversion. Customized training is generally for hiring new or recent
employees and not for retaining existing employees, although there may
be instances where customized training is appropriate in that
circumstance. In those instances customized training may be used for
individuals making more than self-sufficient wages if all appropriate
criteria are met. Lastly, customized employment can be used for
individuals making more than self-sufficient wages as long as it leads
to comparable to or higher than previous employment.
Comments: A commenter cautioned that if customized training and
incumbent worker training are differentiated for low-skilled workers
below the self-sufficiency wage, the regulations should add language
that requires local areas to fund and promote both options to
employers.
Department Response: Under WIOA, both incumbent worker training and
customized training are permissible activities, each with specific
eligibility, funding, and allowable criteria. Local WDBs have the
flexibility to provide the appropriate types of training and services
needed by their local area.
Comments: One commenter recommended that small businesses and Local
WDBs be given maximum flexibility to develop customized training
programs tailored for their individual needs. This commenter stated
that customized training should definitely include OJT. Expressing
concern that proposed Sec. 680.770 is overly burdensome and would
erect a
[[Page 56154]]
significant barrier for access to training funds, another commenter
stated that, by definition, if a manufacturer is providing the training
then it is in-demand and valuable in the workplace.
Department Response: Customized training and OJT are two distinct
types of allowable training. OJT participants learn on the job, while
customized training is generally designed so that participants are
trained by a third party for the employer. The regulatory text at Sec.
680.770 is consistent with WIOA sec. 134(c)(3)(A) about how individuals
may qualify to receive training services. Local WDBs determine training
service investments based upon an analysis of the employment needs of
the employers in current and emerging in-demand industry sectors and
occupations and the needs of the area's labor force.
Comments: A commenter stated that for customized training involving
multiple employers, opportunities must be offered to contract directly
with a training provider without triggering procurement requirements.
Department Response: Grant recipients and subrecipients must adhere
to the procurement standards set forth by the Uniform Guidance at 2 CFR
200.317 through 200.326. When procuring property and services under a
Federal award, States must follow the same policies and procedures used
for procurements from its non-Federal funds [2 CFR 200.317]. All
entities that are not States must ensure that procurements are
conducted in a manner that is consistent with 2 CFR 200.318 through
200.326.
Comments: Several commenters addressed the distinction between OJT
and customized training; including, customization, use of classroom
training, and needs of the participant and employer.
Department Response: WIOA defines both customized training and OJT
at WIOA sec. 3(14) for customized training and sec. 3(44) for OJT and
provides the differentiation, which is primarily OJT is focused on
learning on the job, while customized training is generally classroom
based and is often provided by a third party for the employer. There
have been no changes to the regulatory text in response to this
comment.
Section 680.780 Who is an ``incumbent worker'' for purposes of
statewide and local employment and training activities?
Comments: One commenter expressed concern that the definition of
``incumbent worker'' was unclear and stated that if the definition of
incumbent worker is to be refined by Governors, factors such as hours
worked and skill level should be considered. Another commenter stated
that there was confusion under WIA about the distinctions between
``employed'' and ``incumbent'' workers.
Department Response: While the Department agrees that hours worked
and skill level are appropriate considerations that may be used by
Governors and the Local WDBs when deciding when an employer is eligible
to receive incumbent worker training under Sec. 680.810. Any further
definition may occur outside of the regulation, including by Governors
and Local WDBs.
Incumbent worker training is designed to meet the workforce needs
of an employer or group of employers. The employer must meet the
eligibility criteria established in Sec. 680.810. The incumbent worker
must meet the requirements established in Sec. 680.780 and the
incumbent worker training requirements described in Sec. 680.790,
which discuss the requirements for incumbent worker training for
individuals receiving training and the standard by which incumbent
worker training should be provided. An incumbent worker does not have
to meet the eligibility criteria for WIOA title I adult and dislocated
worker programs. An employed worker must meet title I eligibility
criteria for adult and dislocated worker programs in order to receive
career services, and/or must meet the wage requirements of WIOA sec.
134(c)(3)(A)(i) and Sec. 680.210(a)(1) and (2) to receive training
services while also being employed at the beginning of participation in
career and training services. No changes have been made to the
regulatory text in response to these comments.
Comments: Many commenters addressed the issue of the appropriate
amount of time an employee must have worked for an employer before
being eligible for incumbent worker training. There was a range of
timeframes recommended, ranging from 3 months to 1 year, and some
commenters recommending no minimum timeframe. Some commenters stated
that it should be when an employee is off of probationary status or
once the employer-employee relationship is established. One commenter
discussed that new employees are often the most in need of training.
One commenter wanted Local WDBs to develop policies on employee tenure
with a company. A commenter recommended that the Department utilize a
standard that is based on the company's tenure in a community as the
standard not to incentivize business relocation. Lastly, a commenter
wanted the Department to ensure there was no maximum duration of time
an employee could work for a company and not be eligible for incumbent
worker training.
Department Response: Incumbent worker training is intended for
workers with an established work history with the current employer, and
who have the knowledge, skills, and abilities needed by their current
employer but because of changes in the necessary skills to remain in
their position, to advance in the company, or to avoid a layoff, the
employees now need additional training. Thus, the Department has
decided to retain the 6-month requirement for incumbent workers.
The Department does not consider incumbent worker training to be
part of the occupational training for the position in which the new
employee was hired. This type of training is most appropriate for an
OJT or customized training. However, given that some incumbent worker
training may be provided for a cohort of employees, the Department
recognizes the concern about excluding certain members of a cohort
based on this criterion and has added language into the regulatory text
in Sec. 680.780 to create an exception for cohort training, stating
that a majority of the cohort must meet the 6-month requirement.
Comments: Many commenters recommended adding specific language to
Sec. 680.780 recognizing the need for incumbent training services to
assist long-term workers who were hired when skill level requirements
were much lower.
Department Response: While the Department has established a 6-month
rule for the minimum duration of employment for incumbent worker
training eligibility, it has not set a maximum duration of employment.
Long-term workers who are looking to gain new skills may benefit from
incumbent worker training.
Comments: The Department received a number of comments on the
requirement incumbent worker training ``must satisfy the requirements
in WIOA sec. 134(d)(4) and Sec. 680.790 and increase the
competitiveness of the employee or employer.'' Because this sentence is
more properly included in Sec. 680.790, which discusses what incumbent
worker training is, the Department removed the text from Sec. 680.780
and instead included it in Sec. 680.790. The comments received about
this text are discussed below, in the discussion of Sec. 680.790.
The Department made one final clarifying change at the end of Sec.
680.780. The NPRM stated that an
[[Page 56155]]
incumbent worker does not necessarily have to meet the eligibility
requirements for career and training services for adults and dislocated
workers under WIOA. The Department has added language to make clear
that if the worker is receiving other services in addition to incumbent
worker training, the individual must meet the eligibility requirements
like all other adult or dislocated worker participants.
Section 680.790 What is incumbent worker training?
Comments: Two commenters urged the Department to define how
incumbent worker training should ``increase the competitiveness of the
employee or employer'' and recommended that such training be designed
to retain a skilled workforce or avert the need to lay off employees.
Another commenter urged the Department to define ``improving the skills
and competitiveness of the participant'' and ``increasing the
competiveness of the employer'' and to stipulate how competitiveness
will be initially assessed and continuously measured. One commenter
recommended that ``increasing the competitiveness of the employee or
employer'' be defined in State policy to allow for flexibility or,
alternatively, be defined as training that retains and advances a
skilled workforce.
Department Response: The Department agrees that the phrase
``increase the competitiveness of the employee or employer'' may be
defined under State and Local WDB policy, as consistent with the
discussion below, and with any future guidance provided by the
Department. No change is made to the regulatory text.
Comments: A commenter stated that incumbent worker training should
be ``employer driven'' and ``competitiveness of the participant''
should be a factor only for determining if incumbent worker training is
appropriate.
Another commenter recommended that States be allowed to develop
incumbent worker training policies while the Department provides
technical assistance and guidance. This commenter urged against relying
on layoff aversion and recommended using available labor market data
and sector strategies to target occupations for training.
Some commenters urged the Department to omit layoff aversion as a
criterion for incumbent worker training, asserting that it would have a
chilling effect and would not be offered during healthy economic times.
One commenter asserted that proposed Sec. 680.790 is too restrictive
in focusing only on averting layoffs or retaining employment. This
commenter recommended that the Department add specific language
allowing incumbent training ``to promote the competitiveness of both
the participant and the employer'' and ``to ensure an employee's skill
set is advanced.''
One commenter stated that incumbent worker training should be used
for individuals who are at a self-sufficient wage and require training
that helps the employer stay competitive and retain a skilled workforce
or avert a layoff.
Department Response: WIOA sec. 134(d)(4)(B) states that incumbent
worker training is to assist workers in obtaining the skills necessary
to retain employment or avert layoffs. The Department considers these
to be two distinct, although not mutually exclusive, types of
requirements for the training, and the regulatory text retains the
requirements at Sec. 680.790. Further definition of these terms may be
articulated in State and local policies. There have been no changes to
the regulatory text in response to this comment.
Comments: Some commenters recommended using earnings growth in the
6 months following incumbent worker training to measure increased
competitiveness of the employee. One commenter recommended measuring
increased competitiveness by higher wages 1 year after training,
portability, layoff aversion, and progress toward self-sufficiency.
Another commenter recommended measuring ``competiveness of the
employee'' by documented wage increases; access to other documented
benefits, bonuses, or commissions; obtaining industry-recognized
certificates or credentials; or ascension of the worker into an
advanced job classification or pay grade. This commenter stated that
identifying opportunities for increased competitiveness of employers
might require access to confidential business information.
One commenter recommended that the Department require the following
to ``increase the competitiveness of the employee and employer'': (1)
Training takes place on company time and trainees are compensated at no
less than their normal rate of pay while attending training; (2)
training is short-term and ideally 6 months or less; (3) training
focuses on occupational skills; and (4) businesses must demonstrate
that the costs of training are reasonable.
Department Response: Section 680.810 outlines the factors that a
Local WDB must consider when determining eligibility for an employer to
receive incumbent worker funds and provides flexibility to the Local
WDB to establish other factors in making such a determination. The
Department notes that some ideas commenters provided about how to
provide incumbent worker training have merit, and the Department will
include them in guidance and technical assistance. No changes have been
made to the regulatory text in response to these comments.
Comments: One commenter recommended the following metrics for
evaluating the effectiveness of incumbent worker training: Revenue
increase, contracts awarded, sales data, geographic expansion, wage
increase, increased education attainment, and increased credential
attainment. Another commenter stated that incumbent worker training
arrangement should be flexible, with success measured by metrics such
as earnings gains, new skills and competencies gained, new
certifications received and/or number of employees migrating into new
employment, especially in the case of layoff aversion. One commenter
recommended that an employer should demonstrate where incumbent worker
training would increase revenue and lead to an increase in wage level
within 90 days of training completion.
Department Response: With respect to eligibility for incumbent
worker training, many of these metrics are what the Department
considers to be possible factors for a State or local area in
determining incumbent worker training eligibility for training
providers, employers, and employees, as included under Sec. Sec.
680.780 and 680.810. The Department may issue further guidance on this
subject.
The Department clarifies that, because of the unique nature of the
Incumbent Worker Training Program, where the Local WDB only evaluates
the employers for eligibility consistent with Sec. 680.810,
individuals receiving Incumbent Worker Training are not subject to the
eligibility criteria that apply to participants in the adult or
dislocated worker programs, unless they are also receiving other
services under those programs. Therefore, individuals who only receive
incumbent worker training and no other WIOA title I service do not fall
within the definition of ``participant'' in 20 CFR 677.150(a) (see
Joint WIOA Final Rule). As such, they are not included in calculations
for the State Primary Indicators of Performance. The Department is
making a change to be consistent with this in Sec. 680.810(a) and (b)
by removing the word ``participant'' and inserting ``individual'' to
reflect that incumbent
[[Page 56156]]
worker training eligibility is decided at the employer level.
States and Local WDBs are, however, required to report on
individuals who receive incumbent worker training, including employment
status after training, wages after training, and credential attainment,
the details of which are provided through the Department's ICR process
and subsequent guidance. As part of future collections and guidance,
the Department may seek to collect additional employer data, such as
employer size, industry, and other information that may be used to
evaluate the effectiveness of Incumbent Worker Training programs for
both the employer and employee.
Regarding the development and provision of Incumbent Worker
Training by States and local areas, the Department encourages States
and local areas to cultivate opportunities and develop policies that
can appropriately support employers in their efforts to develop a more
competitive workforce or avert potential layoffs and that provide
incumbent workers with opportunities for advancement and wage gains
within their company. Incumbent Worker Training policies must be
aligned with State and Local Plans, as well as with sector strategy
approaches for in-demand occupations.
In addition to the required performance indicators, WIOA sec.
122(h)(2) says that the Governor may require and use performance
information relating to incumbent worker training and other work-based
training to determine whether providers meet such performance criteria
as required by the Governor. More detailed information on performance
definitions and metrics are in 20 CFR part 677 (see Joint WIOA Final
Rule).
Comments: Several commenters said that it is unrealistic to expect
incumbent worker training to result in the employee being promoted;
instead, local areas need flexibility on timing of training and hiring
new workers that coincides with the needs of business. In response to
the NPRM preamble statement that ideal incumbent worker training would
result in promotion and hiring to backfill the incumbent worker's
position, two commenters asked if it is realistic to expect a company,
through a round of training to retain workers, to also be able to add
new employees. One of these commenters stated that this is an ideal
structure that would be better served under customized training for
employed workers. However, one commenter agreed with the Department's
goal of using incumbent worker training to ``advance-and-backfill'' to
benefit two employees.
Department Response: The Department clarifies that the ideal
incumbent worker training strategy of upskilling and backfilling
employee positions is meant as an illustrative example of an ideal
incumbent worker opportunity and not as the only type of successful
incumbent worker training strategy. In a situation where incumbent
worker training is needed to avert a layoff, the alternative of
upskilling and backfilling positions would be unlikely. The Department
is committed to ensuring that the regulations maintain flexibility for
States and local areas to develop incumbent worker training strategies
that best fit the needs of their State and community.
Comments: One commenter asked if the definition of incumbent worker
training would allow for contracted training through business and
industry, adult education, etc.
Department Response: The Department declines to specify all of the
incumbent worker training contracting options in regulatory text.
However, to secure incumbent worker training, grant recipients and
subrecipients must adhere to the procurement standards set forth by the
Uniform Guidance at 2 CFR 200.317 through 200.26. When procuring
property and services under a Federal award, States must follow the
same policies and procedures it uses for procurements from its non-
Federal funds [2 CFR 200.317]. All entities that are not States must
ensure that procurements are conducted in a manner that is consistent
with 2 CFR 200.318 through 200.326.
Comments: A commenter recommended that incumbent worker training be
structured to incorporate the biggest return on investment for Local
WDBs, workers, and businesses by using economies of scale to upskill
many workers at a time.
Department Response: The Department agrees with this concern and
has added language to Sec. 680.780 to clarify that cohort training is
an acceptable use of incumbent worker training funds.
Comments: A commenter stated that apprenticeship should be an
approved expense for incumbent worker training if it would lead to a
higher paid, higher skilled job.
Department Response: The Department considers apprenticeship
training to be an allowable incumbent worker training expense, provided
the requirements for incumbent worker training in Sec. Sec. 680.780
and 680.790 are met.
Comments: A commenter recommended that cost reimbursement be
limited to: Costs of outside vendors or in-house trainers; costs of
textbooks and training materials; distance learning fees; and
credentialing exam fees. This commenter stated that trainees should be
full-time or part-time employees with a permanent, year-round
attachment to the business, so that temporary employees, seasonal
employees, public employees, and volunteers would not be eligible.
Department Response: Allowable costs of incumbent worker training
are consistent with the allowable costs rules for all types of
training. The allowability regulations are explained in Departmental
guidance. To be eligible, the incumbent worker must be employed, meet
the Fair Labor Standards Act requirements for an employer-employee
relationship, and have an established employment history for more than
6 months. The Department may utilize guidance to clarify specific types
of employment relationships that are eligible for employers to receive
incumbent worker training funds.
Section 680.800 What funds may be used for incumbent worker training?
Comments: A commenter asked the Department to clarify if the 20
percent in proposed Sec. 680.800(a) refers to total dollars or program
dollars and does not include administrative funds. Another commenter
recommended that the regulations clearly indicate the difference
between employed workers and incumbent workers and that the 20 percent
limitation on training for incumbent workers would not apply to
employed workers.
Department Response: WIOA sec. 134(d)(4) allows Local WDBs to set
aside up to 20 percent of their total allocation of title I adult and
dislocated worker funds on incumbent worker training, this includes
administrative funds. The Department agrees with the commenter about
the 20 percent restriction only applying to incumbent workers and not
employed workers.
Comments: A commenter asked for clarification to distinguish
customized from incumbent worker training, and commented that
Sec. Sec. 680.800, 680.810, and 680.820 seem to apply to customized
training for employed workers rather than incumbent worker training.
Department Response: Customized training, as defined in WIOA sec.
3(14), is used to train individuals who are not employed with the
participating employer at the start of participation. Incumbent worker
training, as defined
[[Page 56157]]
in WIOA sec. 134(d)(4), is used to enhance the competitiveness of the
employee/employer and/or avert a layoff. Incumbent workers are employed
with the participating company when the training begins consistent with
Sec. 680.780. The Department will provide further clarification
through guidance and technical assistance.
Comments: A commenter stated that it may be difficult, if not
impossible, to determine accurately the amount of administrative funds
that were spent on incumbent working training and transitional jobs.
Department Response: WIOA allows Local WDBs to set aside up to 10
percent of their adult and dislocated worker funds on Pay-for-
Performance contract strategies (see WIOA sec. 134(d)(1)(A)(iii)), Up
to 20 percent on incumbent worker training (see WIOA sec. 134(d)(4)),
and up to 10 percent on transitional jobs (see WIOA sec. 134(d)(5)).
These provisions are discussed in Sec. 680.140(b)(1)(v), (b)(4), and
(b)(8). Administrative activities necessary to initiate or procure a
Pay-for-Performance contract strategies, incumbent worker training, and
transitional jobs must be consistent with Sec. 683.215, which also
discusses how to determine whether an activity is administrative or
programmatic for purposes of WIOA. If the activity would be considered
programmatic under Sec. 683.215, then the cost would be subject to the
caps discussed above. If the activity would be considered
administrative under Sec. 683.215, it may be paid for out of the Local
WDBs' usual administrative funds, and it is not subject to the caps.
Therefore, the Local WDB would not need to specifically account how
much of the administrative funds are spent on these particular
programs.
Section 680.810 What criteria must be taken into account for an
employer to be eligible to receive local incumbent worker funds?
Comments: A commenter asserted that proposed Sec. 680.810 would
impose a burden on States to write a policy for use of funds for
incumbent worker training and asked what is the requirement for
performance.
Department Response: The Department acknowledges that State and
local policy must be developed to govern the use of funds for incumbent
worker training; however, since this activity was required to properly
perform incumbent worker training under WIA, it is not an increase in
burden. Incumbent worker training is a permissible activity; if a State
or Local WDB decide to utilize incumbent worker training as a workforce
strategy for local businesses then they need to have clear State and
local policies on its use.
The Department declines to add specific language to the regulatory
text addressing the concern about performance requirements. Specific
definitions of metrics that will be used to evaluate performance are
defined through the WIOA Joint Performance ICR. More detailed
information on performance definitions and metrics are at 20 CFR part
677 (see Joint WIOA Final Rule). The Department plans to issue guidance
on incumbent worker training, including how it is impacted by
performance.
The Department notes, as explained above, that it made a clarifying
change to Sec. 680.810 to replace the word ``participant'' with
``individual'' to reflect that incumbent worker training eligibility is
decided at the employer level; individual workers participating in
incumbent worker training are not considered ``participants'' under 20
CFR 677.150(a), unless they receive other adult or dislocated worker
services (see Joint WIOA Final Rule).
Comments: Two commenters requested that the Department add a
paragraph (d) directing that incumbent worker training contracts may
not be entered into with employers that have unpaid unemployment
insurance and workers compensation taxes.
Department Response: The Department declines to add specific
language to the regulatory text addressing this concern. The Department
considers the suggested factor to be an allowable consideration under
Sec. 680.810(c).
Section 680.820 Are there cost sharing requirements for local area
incumbent worker training?
Comments: A commenter suggested that the required non-Federal share
for incumbent training be waived for companies that are close to a
layoff.
Department Response: The non-Federal share for incumbent worker
training is required under WIOA sec. 134(d)(4). The Department expects
Local WDBs to adhere to the requirements for non-Federal share
contributions as set forth in WIOA. Thus, the Department declines to
discuss waivers of this provision and makes no change to the regulatory
text.
Comments: A commenter asked if Sec. 680.820 is meant to ensure
that no other funding source is contributing to the cost of the
incumbent worker training or that the employer is paying 100 percent of
the cost from its own funds, excluding the Federal contribution.
Department Response: Under WIOA sec. 134(d)(4) employers
participating in incumbent worker training are responsible for paying
the non-Federal share of the cost of providing training to their
incumbent workers. Employers have flexibility in how they arrange to
pay for these costs; however, the payments must not come out of any
other Federal funds.
Section 680.830 May funds provided to employers for work-based training
be used to assist, promote, or deter union organizing?
Comments: The Department received comments in support of Sec.
680.850 (renumbered as Sec. 680.830) as proposed, regarding the
relationship between work-based training funds and union organizing.
Section 680.840 May funds provided to employers for work-based training
and other work experiences be used to fill job openings as a result of
a labor dispute?
Comments: A commenter suggested that for transitional jobs there
should be protections around the displacement of workers.
Department Response: The Department has added a new section to the
regulatory text at Sec. 680.840 entitled ``May funds provided to
employers for work-based training and other work experiences be used to
fill job openings as a result of a labor dispute?'' This section
clarifies that funds for work-based training may not be used for this
purpose. It is consistent with WIOA and with the Wagner-Peyser Act
regulatory text in Sec. 652.9 to remain neutral in matters relating to
union organizing and activities that would promote or deter
organization.
8. Subpart G--Supportive Services
This section defines the scope and purpose of supportive services
and the requirements governing their disbursement. A key principle in
WIOA is to provide local areas with the authority to make policy and
administrative decisions and the flexibility to tailor the public
workforce system to the needs of the local community. To ensure maximum
flexibility, the regulations provide local areas the discretion to
provide the supportive services they deem appropriate subject to the
limited conditions prescribed by WIOA. Local WDBs must develop policies
and procedures to ensure coordination with other entities to ensure
non-duplication of resources and services and to
[[Page 56158]]
establish limits on the amount and duration of such services. Local
WDBs are encouraged to develop policies and procedures that ensure that
supportive services are WIOA-funded only when these services are not
available through other agencies and that the services are necessary
for the individual to participate in title I activities. Supportive
services may be made available to anyone participating in WIOA title I
activities.
A commenter expressed support for the proposed regulations in
subpart G.
Section 680.900 What are supportive services for adults and dislocated
workers?
Comments: A commenter recommended that Sec. 680.900 include an
exhaustive list of available support services consistent with the
approach in the section on support services for youth. Another
commenter strongly supported the inclusion of legal aid services in the
Department's list of examples of supportive services, noting that legal
aid can uniquely address certain barriers to employment, including
access to driver's licenses, expunging criminal records, and resolving
issues with debt, credit, and housing. One commenter recommended that
supportive services involving WIOA funding be available to cover all
steps/aspects of the licensing process (e.g., testing and transcripts).
Because access to many supportive services is an impediment to
individuals with disabilities in entering or re-entering the workforce,
one commenter recommended specific reference to this population in
subpart G.
Department Response: The Department agrees with the commenter that
supportive services for adults and dislocated workers under WIOA title
I programs be aligned with the supportive services available under the
title I youth program. The Department has modified the regulatory text
to include a list of supportive services that may be made available at
Sec. 680.900(a) through (l). This list is not intended to be
exhaustive, but rather to illustrate the types of supportive services
that may be made available. The changes to the regulatory text also
include a couple of suggestions that commenters provided regarding the
addition of providing assistance with books, fees, school supplies, and
other necessary items for students enrolled in postsecondary education
classes. The Department concurs that legal aid can uniquely address
certain barriers to employment, as enumerated by the commenter.
Therefore, the Department has included legal aid services under Sec.
680.900 and made a corresponding change to the list of supportive
services allowable in the youth program in Sec. 681.570. Additionally,
the Department added that payments and fees for employment and
training-related applications, test, and certifications be covered,
because these costs may be a barrier to entry for individuals looking
for unsubsidized employment. The Department also has added ``Reasonable
accommodations for individuals with disabilities'' as Sec. 680.900(g).
Comments: Citing the requirement that participants first obtain
supportive services through other programs before relying on WIOA title
I funding, a commenter stated that it is vital that the programs
covered by WIOA work closely together to ensure that job seekers
receive all the benefits to which they are entitled under all aspects
of the law.
Department Response: The Department agrees with this comment and
encourages that programs work closely together in order to align
programs better and leverage resources as WIOA is intended to do to
serve job seekers better.
Section 680.910 When may supportive services be provided to
participants?
Comments: The Department received a comment regarding the
importance of coordinating across programs allowed in Sec. 680.140,
because Sec. 680.910 states that supportive services must be provided
through non-WIOA programs first. The commenter particularly emphasized
the need for coordinating services with vocational rehabilitation
programs so individuals with disabilities receive the supportive
services they need.
Department Response: The Department agrees with the commenter that
coordinating services across the WIOA core programs, as well as non-
core programs is vital to help individuals with barriers to employment,
including individuals with disabilities, obtain the support they need
to successfully participate in and complete WIOA career and training
services and ultimately, obtain unsubsidized employment. Local WDBs are
responsible for developing supportive service policies, and the
Department considers how these services are coordinated to be a key
part of those policies.
Section 680.920 Are there limits on the amount or duration of funds for
supportive services?
Comments: A commenter recommended that the definition of supportive
services and extended case management include ongoing, extended
services as participants proceed through training and employment.
Department Response: Supportive services under WIOA sec. 134(d)(2)
are provided to allow an individual to participate in career and
training services. The commenter was interested in extending supportive
services after the period of exit from the WIOA title I adult and
dislocated worker programs; however, this is outside of the authority
of WIOA. Supportive services are provided to enable participation in
career and training services. No changes have been made to the
regulatory text in response to the comment.
Comments: Two commenters raised a similar concern about the
authority related to the one-stop center determining what supportive
services may be provided if the one-stop center is not the WIOA service
provider in a local area.
Department Response: To guide supportive service determinations,
the Local WDB ultimately is responsible for developing a supportive
service policy for the area, including eligibility, types of supportive
services to provide, and the methods of service delivery.
Section 680.930 What are needs-related payments?
Comments: A few commenters provided input on needs-related
payments. One commenter suggested that the Department consider whether
the underemployed should be considered for needs-related payments. One
commenter stated that funding levels are not adequate to support needs-
related payments, which the commenter stated will result in these
services being provided on a very limited basis. Some commenter focused
on funding levels for needs-related payments.
Department Response: To receive needs-related payments, individuals
must be unemployed and must not qualify for (or have ceased to quality
for) unemployment compensation. While underemployed individuals are not
eligible for needs-related payments under WIOA sec. 134(d)(3), there is
no prohibition on providing supportive services to the underemployed,
other than needs-related payments. Additionally, WIOA sec. 134(d)(1)(B)
allows for work support activities for low-wage workers. The Department
may provide additional guidance on how to ensure quality services to
individuals who are underemployed. No changes have been made to the
regulatory text in response to the comments. The Department notes that
needs-related payment levels are permissible and
[[Page 56159]]
thus, are left to the discretion of the Local WDB.
Section 680.970 How is the level of needs-related payments determined?
Comments: Two commenters recommended that States be allowed to
determine the amount for needs-related payments for State funded
projects.
Department Response: The Department agrees with the suggestion that
States be allowed to make determinations for needs-related payments for
State funded projects and has added language to the regulatory text at
Sec. 680.970(a) to reflect this change. No other changes have been
made to the regulatory text in response to the comments.
Other Comments on Adult and Dislocated Worker Activities Under WIOA
Title I
Limited English Proficiency Individuals
Comments: A commenter encouraged the Department to provide
additional guidance, whether through regulation or other types of
policy directives, to States and localities regarding the alignment of
WIOA title I and title II services to improve services to immigrant and
limited English proficiency (LEP) individuals. This commenter
recommended that the guidance acknowledge and allow for differences in
eligibility criteria across the titles, encouraging States and
localities to align services without precluding participation by
individuals who may be eligible for services under one title but not
another.
Department Response: The Department agrees with the commenter on
the importance of aligning services among titles to ensure that
individuals receive the services they need. The Department will provide
guidance and technical assistance on this issue.
Industry or Sector Partnerships
Comments: A few commenters recommended the establishment of a new
subpart H covering industry or sector partnerships. These commenters
discussed at length the topics they believed should be addressed in
this proposed new subpart, including, the purpose of industry and
sector partnerships, permissible partners, who may lead partnerships,
evaluating effective partnerships, and ensuring minimum standards.
Department Response: The Department recognizes the importance of
the industry and sector partnerships as an important strategy for
economic and workforce development. Due to the constantly changing
nature of business and industry, these partnership strategies continue
to be most appropriately addressed through guidance and technical
assistance issued by the Department.
E. Part 681--Youth Activities Under Title I of the Workforce Innovation
and Opportunity Act
1. Introduction
WIOA affirms the Department's commitment to providing high quality
services for youth and young adults beginning with career exploration
and guidance; continuing support for educational attainment,
opportunities for skills training in in-demand industries and
occupations; and culminating with a good job along a career pathway or
enrollment in postsecondary education. All of the Department's youth-
serving programs continue to promote evidence-based strategies that
also meet the highest levels of performance, accountability, and
quality in preparing young people for the workforce.
WIOA maintains WIA's focus on out-of-school youth (OSY) in Job
Corps and YouthBuild, while greatly increasing the focus on OSY in the
WIOA youth formula-funded program. The shift in policy to focus on
those youth most in need is based on the current state of youth
employment. In 2015, an estimated 5.5 million or 13.8 percent of 16 to
24 year olds in our country were not employed or in school. WIOA youth
programs provide a continuum of services to help these young people
acquire skills and pursue careers. The Department, working with its
Department of Education and Health and Human Services partners, plan to
provide intensive technical assistance around meeting the needs of this
population.
WIOA calls for customer-focused services based on the needs of the
individual participant. This includes the creation of career pathways
for youth in all title I youth programs, including a connection to
career pathways as part of a youth's individual service strategy (ISS)
in the youth formula-funded program. The ISS must directly link to one
or more of the performance indicators. WIOA also calls for participants
to be intimately involved in the design and implementation of services
so the youth voice is represented and their needs are being met.
This integrated vision also applies to the public workforce
system's other shared customer--employers. Employers have the
opportunity to build a pipeline of skilled workers: They are critical
partners that provide meaningful growth opportunities for young people
through work experiences that give them the opportunity to learn and
apply skills in real-world settings and ultimately jobs.
WIOA includes a number of significant changes for the youth
formula-funded program. WIOA shifts to focus resources primarily on
OSY, increasing the minimum percentage of funds required to be spent on
OSY from 30 to 75 percent. The Department recognized the transition to
serve more OSY would take time to implement, and, as explained in WIOA
operating guidance TEGL No. 23-14 (``Workforce Innovation and
Opportunity Act (WIOA) Youth Program Transition''), found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm, the
Department has provided States and local areas a year to show progress
towards meeting the 75 percent minimum OSY expenditure rate
requirement. In addition, WIOA increases the focus on providing youth
with work experience opportunities, with a requirement that local areas
must spend a minimum of 20 percent of local area funds on work
experience.
Under WIOA, work experience becomes the most critical of the
program elements. WIOA also introduces 5 new program elements:
Financial literacy; entrepreneurial skills training; services that
provide labor market and employment information about in-demand
industry sectors or occupations available in the local areas;
activities that help youth prepare for and transition to postsecondary
education and training; and education offered concurrently with and in
the same context as workforce preparation activities and training for a
specific occupation or occupational cluster.
During the 60-day comment period for the NPRM, the Department
received hundreds of comments that expressed general support for the
proposed youth program regulations as well as some constructive
feedback that made the Final Rule clearer.
The most significant change between the NPRM and the Final Rule
occurs in Sec. 681.400. This section clarifies that youth activities
may be conducted by the local grant recipient and that only when the
Local WDB chooses to award grants or contracts to youth service
providers, such awards must be made using a competitive procurement
process in accordance with WIOA sec. 123. While this revision
represents a significant change in that it provides Local WBDs with
flexibility in determining which WIOA youth services to procure, the
Department expects Local WDBs to continue to
[[Page 56160]]
contract with youth service providers to provide the program elements
that youth service providers are best positioned to offer participants
based on prior success in serving youth.
The analyses that follows provides the Department's response to
public comments received on the proposed part 681 regulations. If a
section is not addressed in the discussion below, it is because the
public comments submitted in response to the NPRM did not substantively
address that specific section and no changes have been made to the
regulatory text. Further, the Department received a number of comments
on this part that were outside the scope of the regulation and the
Department offers no response. Lastly, the Department has made a number
of non-substantive changes to correct grammatical and typographical
errors to improve the readability and conform the document
stylistically that are not discussed in the analysis below.
2. Subpart A--Standing Youth Committees
Section 681.100 What is a standing youth committee?
This section describes a standing youth committee. WIOA does not
require Local WDBs to establish a youth council; however, the Local
WDBs are encouraged to establish a standing youth committee to provide
information and to assist with planning, operational, and other issues
relating to the provision of services to youth (WIOA sec.
107(b)(4)(A)(ii)). The Department received many comments on standing
youth committees and in response to the comments made a small addition
to the regulation text as explained here.
Comments: One commenter expressed support for all of the proposed
regulations regarding standing youth committees. Several commenters
also supported the proposed language that would allow Local WBDs to
maintain existing effective youth councils as standing youth
committees. Several commenters recommended that the proposed language
allow Local WDBs the flexibility to maintain existing effective youth
councils, have the Local WDB secure the role of the standing youth
committee, or create a new standing youth committee.
Department Response: The Department notes the comments received
about standing youth committees. The language in Sec. Sec. 681.100 and
681.110 provides Local WDBs with the flexibility to maintain existing
effective youth councils; have the Local WDB take on the role of the
standing youth committee; or create a new standing youth committee.
Comments: One commenter expressed disappointment with the removal
of mandated youth councils and stated that the Department should
strongly encourage Local WDBs to establish standing youth committees.
Department Response: The Department recognizes the challenges some
local areas experienced in finding and retaining the required youth
council members. In the final regulations, the Department accepted the
suggestion to ``encourage'' Local WDBs to establish standing youth
committees rather than the proposed language, ``a Local WDB may choose
to establish a standing committee.'' This change recognizes that Local
WDB have a choice as to whether or not they have a standing youth
committee while at the same time reflects the Department's support of
such entities.
Comments: A couple of respondents stated that because the proposed
regulations did not mandate the implementation of a standing youth
committee or any other youth organization, a Local Workforce
Development Board (WDB) should be able to assemble a group to oversee
youth activities without having to formally create a standing youth
committee that would be subject to regulations.
Department Response: As discussed above, the Department recognizes
the challenge of bringing together required partners and understands
the local area's interest in taking advantage of the flexibility under
WIOA to form an ad hoc group that would informally advise the Local WDB
on youth matters. The Department supports Local WDBs seeking outside
youth expertise to inform the programs. If such groups do not have the
required members as outlined in Sec. 681.110, however, they may not
call themselves standing youth committees.
Comments: Second, a commenter raised the concern over how a Local
WDB could efficiently oversee youth activities without the expertise of
a standing youth committee with prior experience in handling the youth
activities. This commenter requested additional clarification as to how
the Local WDB would provide efficient oversight. The commenter further
asked if the Department would provide recommended models in order to
ensure that they were implementing youth activities effectively and if
the Department will provide recommended approaches in future technical
assistance activities.
Department Response: If a Local WDB chooses not to delegate this
function to a standing youth committee, it is still responsible under
WIOA sec. 107(d)(8)(A)(i) for conducting oversight in partnership with
the CEO for the local area of youth workforce investment activities
under WIOA sec. 129(c). The Department notes the commenter's concern
and recognizes that without youth experts it may be hard for a local
area to oversee its youth program properly. The Department will address
this commenter's concerns through technical assistance.
Section 681.110 Who is included on a standing youth committee?
This section describes the members of a standing youth committee.
Comments: Two commenters recommended that Local WDBs be given the
maximum flexibility possible when determining membership requirements
for their standing youth committee, stating that the Local WDBs would
have the best understanding of their local area's needs. One of these
commenters reasoned that there should be no rigid membership
requirements for standing youth committees because the committees would
be optional under the proposed language. Similarly, another commenter
remarked that Local WDBs should be able to define the appropriate level
of experience needed for members of the standing youth committee. This
commenter stated that Local WDBs also should have the ability to
establish the standards for what a community-based organization's
(CBO's) ``demonstrated record of success'' must be.
One respondent suggested that the Department provide more specific
guidance on committee membership requirements. This commenter further
recommended that the committee should include individuals from CBOs who
serve youth with disabilities, as well as individuals from the local
education system.
Department Response: The Department concurs with the commenters
that said the Local WDBs need the maximum flexibility possible when
establishing membership requirements for their standing youth
committee. The NPRM and Final Rule reflect the WIOA requirements found
in sec. 107(b)(4)(A)(ii). The Department does not define a CBO's
demonstrated record of success in the proposed regulation or Final
Rule. The Department did accept the suggestion to add disability
organizations and local education entities to the list of possible
standing youth committee members.
[[Page 56161]]
Section 681.120 What does a standing youth committee do?
This section describes the duties of a standing youth committee.
Commenters expressed support for the proposed roles of standing youth
committees.
Comments: Several commenters suggested that the Department include
a list of suggested tasks in the final regulation that a standing youth
committee could be charged with. These commenters recommended that the
Department reemphasize that if the Local WDB chooses not to establish a
youth council or standing youth committee, oversight of the suggested
activities listed in the regulations will fall under the jurisdiction
of the Local WDB, which will then be responsible for overseeing the
activities and providing opportunity for stakeholder comment. These
commenters also suggested that the Department should require that Local
WDBs and/or their standing youth committees state how they will:
Facilitate co-enrollment of individuals across core
programs, especially for those individuals between the ages of 18 and
24 who could be served under WIOA titles I, II, and IV.
Implement specific provisions related to career pathways
requirements.
Adapt the procurement and request for proposal processes,
in order to encourage longer-term and more thorough services for OSY.
Align Temporary Assistance for Needy Families (TANF) with
WIOA youth programs, so that TANF recipients who are under 25 can
benefit from OSY programs when appropriate.
Department Response: The Department concluded that standing youth
committees need as much flexibility as possible to reflect the needs of
their local area. The Department will provide technical assistance to
local areas and plans to incorporate many of the commenters' ideas. No
change to the regulatory text was made in response to these comments.
3. Subpart B--Eligibility for Youth Services
Section 681.210 Who is an ``out-of-school youth''?
This section describes how one meets the eligibility for an OSY for
purposes of the title I WIOA youth program. OSY youth must not attend
any school, be between the ages of 16 and 24 at time of enrollment, and
meet one or more of a list of nine criteria. The section clarifies that
age is based on time of enrollment and as long as the individual meets
the age eligibility at time of enrollment he or she can continue to
receive WIOA youth services beyond the age of 24. Low income is not a
requirement to meet eligibility for most categories of OSY under WIOA.
Low income is, however, a part of the criteria for youth who need
additional assistance to enter or complete an educational program or to
secure or hold employment. Also, WIOA has made youth with a disability
a separate eligibility criterion.
Comments: A few commenters expressed their support of the expansion
of the age requirements from 21 to 24. One commenter stated that this
increase would be a positive change as it continues to see greater
numbers of older young adults who are seeking employment and training
services. Another commenter expressed support of the proposed
regulations' focus on the needs of OSY. The Department recognizes that
many youth service providers moved to serving more OSY under WIA. In
Program Years 2011 and 2012, the national OSY expenditure rate was 57
percent.
On the other hand, a number of commenters noted that the proposed
regulations mark a substantial change in the delivery of services to
youth, specifically shifting service priorities from ISY to OSY. These
commenters stated that because of this significant change, Governors
and Local WDBs should have jurisdiction over defining the eligibility
requirements for OSY.
Department Response: The Department acknowledges that WIOA's focus
on OSY represents a significant change in the focus of the youth
formula program. The Department also acknowledges the important role
State and local leaders play in implementing the law. Nonetheless, WIOA
clearly defines the eligibility requirements for OSY. No change was
made in the regulatory text in response to these comments.
Comments: Several commenters proposed additions to the OSY
definition. A few commenters offered that any individual who does not
pass the high school exit exam should automatically be considered an
OSY as well.
Department Response: The impact of high school exit exams on
individual youth represents only one reason why the Department has
concluded that under WIOA, local areas will need to work closer than
ever with the local education providers to ensure the success of their
participants. In-school or out-of-school eligibility status is
determined at the time of enrollment. Therefore, a student enrolled in
high school when taking high school exit exam, would count as an ISY.
Comments: Another commenter recommended that the definition of OSY
be broadened to include ``youth ages 16-24 who may be enrolled in
school, but in fact are spending less than 10 hours per week at that
school or adult education center,'' noting that often students are
technically enrolled in school but in reality hardly ever attend.
Similarly, a commenter expressed concern that ``if compulsory school
attendance is defined by State law as 16, what happens to 14 and 15
year olds who are out-of-school?''
Department Response: The Department understands that many students
attend high school irregularly and are at great risk of becoming
disconnected. In the cases where compulsory-age students do not attend
school on a regular basis, under WIOA they count as ISY. WIOA clearly
defines the eligibility requirements for OSY. No changes were made to
the regulatory text in response to these comments.
Measuring Attendance by School Year Quarters
WIOA includes a new criterion for determining OSY eligibility: A
youth who is within the age of compulsory school attendance, but has
not attended school for at least the most recent school year calendar
quarter. The school year quarter is based on how a local school
district defines its school year quarters.
Comments: One commenter asked the Department to include an
alternative definition for OSY requirements for schools that do not
utilize school year quarters. This commenter suggested that the
Department could use calendar year quarters as an alternative
benchmark. Another commenter expressed a concern over the proposed
language's reliance on school year quarters as a benchmark to measure
OSY eligibility because it would require local areas to have an
understanding of the local school district's school year quarters.
Department Response: In Final Rule text, the Department added
language clarifying that when schools do not use a quarter system,
schools must use calendar year quarters. The Department encourages
local areas to know their local school system's leaders as a strategy
to ensuring that all youth know about the public workforce system and
maximizing the limited resources available in an area. Conversations
around school year calendars may serve as an entry point for future
collaboration. Both commenters requested further clarification from the
Department as to the measurement of length of attendance by school year
[[Page 56162]]
quarters. The Department will issue additional guidance on school year
quarters.
Definition of Attending
Comments: A number of commenters recommended that the Department
define what ``attending'' means when determining the eligibility of an
individual. These commenters asked the Department for clarification as
to whether taking one course at a community college would count as
``attending'' and thus, render an individual ineligible for OSY
services. These commenters also asked the Department whether or not
being enrolled in a non-credit granting course or continuing education
class would be classified as attending school, making those individuals
ineligible for OSY services.
Another commenter requested clarification around the definition of
OSY and a concern that youth with disabilities who are involved in
remedial, non-credit coursework would be excluded from title I youth
programs under WIOA. The commenter noted that non-credit education and
remedial coursework often provide a vital opportunity to strengthen
basic skills needed in order to enroll in credentialing programs and to
maximize independence. The commenter suggested the Department include
language creating an exception to ensure that students with
disabilities in need of remedial coursework will remain eligible for
title I youth programs under WIOA.
Another commenter noted that the OSY definition language includes
``an individual that is not attending any school as defined under State
law'' and it creates inconsistency in the application of State
regulations resulting in a different treatment of youth from one State
to the next. The commenter proposed clarification to the regulation to
include attendance at an alternative high school for eligibility in the
OSY component, for all States.
Department Response: The Department will provide further guidance
around ``attending'' and non-credit granting courses, continuing
education classes, and one community college course.
General Education Development (GED) & Dropout Prevention/Recovery
Program Eligibility
Comments: A few commenters expressed support for the proposed
language that would classify individuals enrolled in a GED class as
OSY. These commenters further recommended that youth in GED programs be
classified as ``high school drop-outs'' in the proposed regulations so
that they would not be subjected to compliance with the low-income
eligibility requirements, and suggested that because they did not
complete their high school education, it would be illogical to define
them as ISY. Two commenters recommended that individuals enrolled in
GED or high school equivalency programs be considered OSY.
Two other commenters suggested that individuals enrolled in a
dropout re-engagement program also be classified as OSY under the
proposed regulations. Specifically, a commenter recommended adding the
following language, ``. . . for purposes of WIOA, the Department does
not consider providers of dropout re-engagement programs or providers
of adult education . . . to be schools.'' This commenter stated that
this language would provide clarification that after an individual has
dropped out of school, he or she can continue his or her education in
an alternative form without being considered an ISY. Another commenter
suggested that youth in these programs are not participating in
traditional schools and therefore should not be classified as ISY.
Department Response: Based on the recommendation of commenters, the
Department has added high school equivalency programs and dropout re-
engagement programs as additional types of programs in Sec. 681.230
that are not considered ``schools'' for the purposes of determining
school status.
Comments: Other commenters asked for clarification from the
Department as to whether an individual recruited and persuaded to
return to school through a dropout recovery program would be considered
an OSY under the proposed regulations, even if he or she had not missed
an entire semester of school. One commenter also asked for
clarification from the Department regarding why an individual would be
required to wait an entire semester to be classified as an OSY.
Department Response: As a point of clarification, WIOA does not
require a person to miss an entire semester; rather, the law considers
school year quarters. Further, the Department reminds service providers
that ISY or OSY status determination occurs when a youth enrolls into
the WIOA Youth Formula Program and does not change as the youth moves
though the program. Therefore, an OSY who returns to school through a
dropout recovery program remains classified as an OSY for WIOA
purposes.
Foster Care Individuals/Individuals in the Justice System
Comments: Regarding the eligibility requirements for individuals in
the foster care or justice systems, one respondent commented that the
proposed regulation's definition of OSY would not efficiently serve
individuals in the foster care or juvenile justice systems, stating
that the proposed language would require individuals in the juvenile
justice system or foster care system to drop out of school in order to
be eligible to receive WIOA youth services, which the commenter
suggested would put them at an even greater risk. Another commenter
recommended that the Department amend the OSY eligibility criteria
regarding youth in foster care to include youth who were formerly in
foster care, but may have returned to their biological families before
turning 18, sharing that although these individuals are no longer in
foster care and did not technically ``age out'' of the system, they are
still disadvantaged and in need of assistance. Two commenters
recommended that any incarcerated youth be automatically considered an
OSY.
Department Response: Although the Department recognizes that a few
State-level foster care policies may result in this practice occurring,
the Department does not interpret WIOA to require individuals in the
juvenile justice system or foster care system to drop out of school in
order to be eligible to receive WIOA youth services. Nor is it the
Department's intent to have youth leave school in order to receive WIOA
youth program services.
Relating to the comment that individuals who stay in foster care
until late adolescence may not technically ``age out'' of the system
but remain disadvantaged, the Department agrees. The Department
consulted with the Department of Health and Human Services John H.
Chafee Foster Care Independence Program and added ``or an individual
who has attained 16 years of age and left foster care for kinship
guardianship or adoption,'' to the final regulation for Sec. Sec.
681.210 and 681.220 to encompass this fragile population.
Further, to make the regulation easier to understand, the
Department separated foster care youth and homeless and runaway youth
into two separate eligibility categories. In addressing the comments
around individuals involved in the juvenile justice system, WIOA uses
slightly different wording between ISY and OSY eligibility criteria.
For OSY eligibility WIOA at sec. 129(a)(1)(B)(iii)(IV) states,
[[Page 56163]]
``An individual who is subject to the juvenile or adult justice
system,'' while for ISY, sec. 129(a)(1)(C)(iv)(III) says, ``offender.''
WIOA sec. 3(38) defines ``offender'' as ``an adult or juvenile-- (A)
who is or has been subject to any stage of the criminal justice
process, and for whom services under this Act may be beneficial; or (B)
who requires assistance in overcoming artificial barriers to employment
resulting from a record of arrest or conviction.'' The Department
changed the wording in the Final Rule to use ``offender'' for the
eligibility criteria for both ISY and OSY, to clarify that the OSY
eligibility criterion at Sec. 681.210(c)(4) includes all individuals
who fit the definition of ``offender'' under sec. 3(38). The Department
concluded that the intent of the OSY eligibility criterion is not to
treat youth who were subject to the juvenile or adult system
differently from those who are currently subject, but rather to call
attention to the fact that both the juvenile and adult justice systems
may include OSY.
Homeless Individuals
Comments: A commenter expressed support for the inclusion of
homeless individuals as one of the possible eligibility criteria for
OSY in the proposed regulations. This commenter further recommended
that the definition of homeless individual in Sec. 681.210(c)(5) be
derived from the Runaway and Homeless Youth Act (42 U.S.C. 5601 et
seq.) and read ``. . . a homeless child or youth (as defined in sec.
725(2) of the McKinney Vento Homeless Assistance Act (42 U.S.C.
11434a(2))), a runaway or homeless youth (as defined by 42 U.S.C. 5601
et seq.) who is referred to the labor board by an RHY provider . . .
.'' This commenter also suggested that homeless status of an individual
should be determined by referral from a runaway or homeless youth (RHY)
or other homeless youth provider, but that pure self-attestation by the
individual should also count as sufficient evidence of homelessness.
Department Response: Runaway and Homeless Youth programs serve
individuals as young as 12 years old, which is younger than permitted
by WIOA youth formula program statute. Therefore, no changes were made
in the regulatory text in response to these comments. The Department
will provide future guidance and technical assistance around provider
referrals and self-attestation when determining program eligibility.
The Department did add language to clarify that for the OSY category,
all homeless individuals qualify up to the age of 24.
Individual Who Is Pregnant or Parenting
Comments: A commenter asked the Department to clarify that an
``individual who is pregnant or parenting'' includes noncustodial
parents, such as fathers. Suggesting that re-engagement of fathers and
noncustodial parents is critical to supporting children, this commenter
pointed out that because youth served by its members often are
parenting a child whose paternity has never been determined, these
partners are in fact parenting, even if not legally custodial.
Department Response: The Department recognizes the role all
parents, custodial and non-custodial, play in the lives of their
children and plans to provide future technical assistance on this
subpopulation.
Disability
Comments: Another respondent noted that the NPRM defines OSY as an
individual who meets criteria in paragraphs (a) and (b) in this
section, as well as one or more of the criteria identified in paragraph
(c). Two of the criteria described in this part are: (8) An individual
with a disability; (6) a low-income individual who requires additional
assistance to enter or complete an educational program or to secure or
hold employment. The commenter further described that low income is a
part of the criteria for youth who need additional assistance to enter
or complete an educational program or to secure or hold employment, and
WIOA has made youth with a disability a separate eligibility criterion.
The commenter asked the Department to state specifically that low
income is not an eligibility requirement for serving youth with a
disability.
Department Response: The commenter's observation does not
necessitate a change to the Final Rule. For OSY, low income is not an
eligibility requirement for serving youth with a disability. For ISY
with disabilities, low-income eligibility requirements exist. However,
for ISY with disabilities, WIOA sec. 3(36)(A)(vi) provides that the
income level for eligibility purposes is based on the individual's own
income rather than his/her family's income. The Department plans to
provide additional technical assistance around serving youth with
disabilities.
Section 681.220 Who is an ``in-school youth''?
This section describes how one meets the eligibility for an ISY for
purposes of the WIOA title I youth program. ISY youth must be attending
school, including secondary or postsecondary school, be between the
ages of 14 and 21 at time of enrollment, be low-income, and meet one or
more of a list of eight criteria. These are essentially the same
criteria as under WIA but the disability criterion has been separated
from the ``needs additional assistance'' criterion. The section
clarifies that age is based on time of enrollment and as long as the
individual meets the age eligibility at time of enrollment, he or she
can continue to receive WIOA youth services beyond the age of 21. WIOA
includes a youth as low-income if he or she receives or is eligible to
receive a free or reduced-price lunch under the Richard B. Russell
National School Lunch Act (42 U.S.C. 1751, et seq.).
Foster Care Individuals
Comments: A commenter recommended that the Department amend the OSY
eligibility criteria regarding youth in foster care to include youth
who were formerly in foster care, but may have returned to their
biological families before turning 18 because although these
individuals are no longer in foster care and did not technically ``age
out'' of the system, they are still disadvantaged and in need of
assistance.
Department Response: The Department concluded that same logic
applies to Sec. 681.220: Individuals who leave foster care after
remaining there until late adolescence may not technically ``age out''
of the system and yet remain disadvantaged. The Department, in
consultation with the Department of Health and Human Services John H.
Chafee Foster Care Independence Program, added ``or who has attained 16
years of age and left foster care for kinship guardianship or
adoption,'' to the final regulation for Sec. Sec. 681.210 and 681.220
to encompass this fragile population.
Homeless Individuals
Comments: A commenter expressed support for the inclusion of
homeless individuals as one of the possible eligibility criteria for
OSY in the proposed regulations. This commenter further recommended
that the definition of homeless individual in Sec. 681.210(c)(5) be
derived from the Runaway and Homeless Youth Act (RHYA) (42 U.S.C. 5601
et seq.) and would read ``. . . a homeless child or youth (as defined
in sec. 725(2) of the McKinney Vento Homeless Assistance Act (42 U.S.C.
11434a(2))), a runaway or homeless youth (as defined by 42 U.S.C. 5601
et seq.) who is referred to the labor board by an RHY provider. . . .''
This commenter also suggested that homeless
[[Page 56164]]
status of an individual should be determined by referral from an RHY or
other homeless youth provider, but that pure self-attestation by the
individual should also count as sufficient evidence of homelessness.
Department Response: The Department consulted with the Department
of Health and Human Service's Administration for Children and Families
when considering this comment. The Department learned that the Runaway
and Homeless Youth programs serve individuals as young as 12 years old
which is younger than permitted by WIOA youth formula program statute.
No changes were made to the regulatory text in response to this
comment. The Department will provide future guidance and technical
assistance around provider referrals and self-attestation when
determining program eligibility.
Similar to the OSY criteria, the Department added language to
clarify that for the ISY category, homeless individuals aged 14-21
qualify. Also similar to the OSY criteria, to make the regulation
easier to understand, the Department separated foster care youth and
homeless and runaway youth into two separate eligibility categories.
This more accurately distinguishes between the types of barriers youth
may experience.
Individual Who Is Pregnant or Parenting
Comments: A commenter asked the Department to clarify that an
``individual who is pregnant or parenting'' includes noncustodial
parents, such as fathers. Suggesting that re-engagement of fathers and
noncustodial parents is critical to supporting children, this commenter
pointed out that because youth served by its members often are
parenting a child whose paternity has never been determined, these
partners are in fact parenting, even if not legally custodial.
Department Response: An individual who is pregnant or parenting
does include noncustodial parents, such as fathers. The Department
recognizes the role all parents, custodial and non-custodial play in
the lives of their children and plans to provide future technical
assistance on this subpopulation.
Section 681.230 What does ``school'' refer to in the ``not attending or
attending any school'' in the out-of-school and in-school eligibility
criteria?
The eligibility criteria for the WIOA title I youth program for
out-of-school youth at WIOA sec. 129(a)(1)(B)(i) requires that the
individual is ``not attending any school (as defined in State law),''
and for in-school youth, sec. 129(a)(1)(C)(i) requires that the
individual is ``attending school (as defined in State law).'' The
Department has changed the title of Sec. 681.230 to clarify that the
terms the section uses are from those eligibility criteria. The term
``school'' refers to both secondary and postsecondary school as defined
by the applicable State law for secondary and postsecondary
institutions. Section 681.230 provides that for purposes of title I of
WIOA, the Department does not consider providers of adult education
under title II of WIOA, YouthBuild programs, or Job Corps programs as
schools. Therefore, if the only ``school'' the youth attends is adult
education provided under title II of WIOA, YouthBuild, or Job Corps,
the Department will consider the individual an OSY youth for purposes
of title I of WIOA youth program eligibility.
Comments: The Department received comments on several provisions
within this section. Some commenters expressed concern over the
proposed allowance of State law to determine the definition of
``school.'' Discussing the fact that their particular State's laws only
apply to grades K-12 and do not include postsecondary school, these
commenters suggested that the definition of ``school'' should be
clarified, and amended to address potential inconsistencies that would
arise due to varying State laws. One commenter recommended that each
State WDB should be given the flexibility to determine whether to
include postsecondary education as in-school or out-of-school, if the
State does not specify it in its statutes. A number of commenters
suggested that the definition of OSY be expanded to include individuals
who are enrolled in postsecondary education. Similarly, a commenter
stated that States do not support the definition in the proposed
regulations that would classify youth engaged in postsecondary programs
as ISY because the proposed language would lead to fewer youth in
postsecondary education being served due to the 75 percent OSY
expenditure requirement. Another commenter suggested that youth
enrolled in postsecondary developmental education courses be considered
OSY.
Department Response: WIOA's increased OSY expenditure rate is
designed to increase focus on disconnected youth. All State education
agencies recognize 2- and 4-year colleges as ``schools,'' and the
Department has determined that both secondary and postsecondary
institutions are considered ``schools'' for the purpose of determining
school status for WIOA youth program eligibility.
Comments: A number of commenters recommended that the definition of
OSY include individuals attending alternative schools. One of these
commenters stated that an individual who attends an alternative school
is at as great a risk as those who are attending no school. Some of
these commenters suggested that an individual's enrollment at an
alternative school is an implicit indicator of need for WIOA youth
services because of the low graduation and high dropout rates
associated with alternative schools. A commenter recommended that the
Department enhance the definition of school to include: Individuals in
court-mandated programs, alternative schools, community schools,
incarcerated youth, those who have not passed the high school exit
exam, and individuals who attend independent studies programs.
Department Response: The Department did not incorporate the term
``alternative school'' into the definition of an OSY because
alternative school is a general term that may encompass many different
types of programs. Rather, the Department has incorporated into the
Final Rule additional types of programs that it does not consider
schools, such as high school equivalency programs and dropout re-
engagement programs.
Comments: A number of commenters recommended that youth
participating in a dropout re-engagement program be considered out of
school for the purposes of WIOA and suggested clarifying that in Sec.
681.230. Another commenter encouraged the Department to clarify further
that youth in high school equivalency programs, such as GED programs,
also are considered dropouts.
Department Response: Based on the recommendation of commenters, the
Department has added high school equivalency programs and dropout re-
engagement programs as additional types of programs that are not
considered ``schools'' for the purposes of determining school status.
Comments: With regard to the eligibility of individuals who are
enrolled in adult education programs, a number of commenters expressed
support for these individuals' eligibility as OSY. Several of these
commenters stated that the potential for co-enrollment would be very
beneficial to youth in need of these services. Citing data from a
survey that found low rates of co-enrollment, two commenters stated
that because of this past evidence of low percentages of co-enrollment,
they supported the proposed
[[Page 56165]]
regulations, which would not define adult education programs as
schools. Another commenter recommended that the Department expand the
provision to include those individuals who are officially enrolled in
school, but who in actuality only are receiving an education at an
adult education center. A number of commenters requested that
individuals who are enrolled in an adult education program would be
considered OSY under WIOA title I, regardless of how the adult
education services are funded. Several commenters suggested that many
individuals attend adult education programs that are not funded by
title II of WIOA, and that limiting eligibility for OSY services solely
to those who attend programs funded by title II would limit the number
of youth who would be eligible for co-enrollment.
Department Response: The Department agrees that the determination
of whether an adult education program is considered a ``school'' should
not be based on funding source. Providers of adult education under
title II of WIOA do not need to be wholly funded by title II in order
to meet the provision described in Sec. 681.230.
Comments: Regarding the school status of individuals participating
in YouthBuild programs not funded by the Department of Labor, a few
commenters recommended that the Department revise the proposed
regulation to apply to all YouthBuild programs regardless of how they
are funded. Another commenter also stated that the exception of not
classifying YouthBuild programs as schools should be applied to all
YouthBuild programs, suggesting that many YouthBuild programs have a
variety of funding sources outside of Department grants and that the
individuals enrolled in those programs should not be penalized because
of how their program is funded.
Department Response: The Department agrees that the determination
of whether a YouthBuild program is considered a ``school'' should not
be based on funding source. All YouthBuild programs, whether funded by
the Department of Labor wholly, partially, or not at all meet the
provision described in Sec. 681.230 and are not considered schools for
purposes of WIOA youth program eligibility determination.
Comments: One commenter stated that all individuals enrolled in Job
Corps programs should be considered OSY for WIOA youth services. A
number of commenters requested clarification from the Department as to
whether individuals involved in all Job Corps programs would be
considered OSY, since Job Corps students may finish accredited high
school diploma program or complete a high school equivalency
certificate or diploma.
Department Response: The Department does not consider any Job Corps
program to be a ``school'' for purposes of determining WIOA youth
program eligibility regardless of whether students in the Job Corps
program are pursuing a high school diploma a high school equivalency
certificate.
Section 681.240 When do local youth programs verify dropout status?
This section provides that dropout status is determined at the time
of enrollment for eligibility as an OSY and that once a youth is
enrolled as an OSY, that status continues, for purposes of the minimum
75 percent OSY expenditure requirement, for the duration of the youth's
enrollment, even if the youth later returns to a school.
Comments: Several commenters expressed their support for the
proposed language. A number of these commenters specifically expressed
their support for the allowance of youth who are determined eligible to
receive services at the time of their enrollment to continue to receive
services and maintain eligibility even if they are placed later in an
alternative school. These commenters recommend that an individual's
status be portable when moving across other WIOA funding streams as
long as that movement is part of the individual career plan and part of
an articulated agreement among the partners. One commenter recommended
changing an individual's school status from ISY to OSY when a youth
graduates from high school as this would assist States with achieving
the required minimum 75 percent OSY expenditure rate and will
accurately reflect the status of youth with WIOA expenditures.
Department Response: The Department has concluded that the most
straightforward and least burdensome approach is for school status to
remain the same throughout the program. In addition, this policy will
encourage local programs to assist OSY re-engage in school without
concern that re-engaging them in school would negatively impact their
minimum OSY expenditure rate.
Comments: A number of commenters expressed concerns over the
provision that would allow States to define the term ``alternative
school.'' Some of those commenters suggested that States with broad
definitions of schools could end up preventing youth who have dropped
out of school and are attending alternative schools from receiving WIOA
OSY services. One of the commenters recommended that the Department not
leave the definition of alternative schools up to States, saying that
there should be a consistent definition across States. Another
commenter recommended that, consistent with the State's definition of
alternative education, any youth that attends an alternative school
also be considered an OSY.
Department Response: The Department agrees on the importance of
consistent definitions across States. Because the term ``alternative
school'' is a general term that may encompass many different types of
programs, the Department deleted all references to the term
``alternative school'' in Sec. 681.240, and it is no longer required
to be defined in State Plans. Rather, as discussed in Sec. 681.230
above, the Department has added high school equivalency programs and
dropout re-engagement programs as additional types of programs that are
not considered ``schools'' for the purposes of determining school
status.
Section 681.250 Who does the low-income eligibility requirement apply
to?
This section discusses the low-income eligibility criteria for OSY
and ISY. All ISY must be low-income with the exception that up to 5
percent of ISY youth who meet all the other eligibility requirements
need not be low-income. The up to 5 percent is calculated based on all
newly enrolled youth who would ordinarily be required to meet the low-
income criteria in a given program year. For OSY, only those youth who
are the recipient of a secondary school diploma or its recognized
equivalent and are either basic skills deficient or an English language
learner and youth who require additional assistance to enter or
complete an educational program or to secure or hold employment must be
low-income.
Comments: Commenters expressed support for the amended low-income
eligibility requirements, and their streamlined documentation and
process requirements, with one commenter remarking the change would be
beneficial to youth. Another commenter stated that the OSY low-income
eligibility criteria would be confusing.
Department Response: The Department concurs with these commenters
that the new low-income eligibility requirements will lead to
streamlined documentation and process requirements.
Comments: A commenter expressed concern over needing to document
low-income status for ISY, fearing it may
[[Page 56166]]
create a challenge in working with schools on career pathway
activities. The commenter noted that schools prefer to provide all
students with the same experience regardless of family income.
Department Response: The Department notes the concern expressed
about the compatibility between how schools and workforce partners
approach youth. The Department cannot change the ISY income level
requirements as WIOA defines them. The Department plans to provide
tools on approaches to implementing career pathways.
Comments: A commenter recommended that all OSY be exempt from
having to meet low-income eligibility requirements, stating that there
is a high correlation between being disconnected from school and work
and the likelihood of entering poverty, especially at a young age.
Similarly, a commenter recommended that the low-income requirement be
removed from the OSY eligibility criteria for individuals who need
additional assistance to complete an educational program or to secure
or hold employment, and for recipients of a secondary school diploma
who are basic skills deficient or an English language learner,
asserting that the OSY requirements would be more effective if the low-
income criteria were removed from these two categories of individuals.
Department Response: The Department recognizes the high correlation
between being disconnected from school and work and the likelihood of
entering poverty. It also understands that removing low-income criteria
from all of the OSY eligibility criteria would simplify the program.
Nonetheless, these eligibility requirements are statutory comments in
WIOA, and therefore the Department cannot change them in regulation.
Comments: Another commenter requested that the Department revise
the proposed regulations so that OSY may be considered low-income if
they receive or are eligible to receive free or reduced lunches,
asserting that currently the proposed regulations are written so that
only ISY who are eligible for free or reduced price lunches are
considered to be low-income.
Department Response: The Department considered the commenter's
suggestion that OSY may be considered low-income if they receive or are
eligible to receive free or reduced lunches. The Department decided not
to change the Final Rule because youth must be enrolled in school to be
eligible for the Richard B. Russell National School Lunch Act.
Comments: A commenter requested clarification from the Department
concerning the criteria that would be used to determine if an
individual is an English language learner for the purposes of the low-
income eligibility requirement.
Department Response: The Department understands the need for
criteria for determining if an individual is an English language
learner for the purposes of the low-income eligibility requirement.
There will be guidance and technical assistance provided on this topic
in the future. No regulatory change was made in response to this
comment.
Comments: A person commented that the proposed regulations would
make youth with a disability a separate eligibility requirement from
low-income requirements. This commenter and another commenter suggested
that the Department specifically clarify that for youth with a
disability, low income would not be an eligibility requirement under
the proposed regulations for OSY with a disability.
Department Response: Upon analyzing these comments the Department
discovered a technical error in the NPRM. The Final Rule clarifies that
OSY with disabilities do not need to meet low-income eligibility
requirements and the Department has changed the regulatory text to read
as follows: ``All other OSY meeting OSY eligibility under Sec.
681.210(c)(1), (2), (4), (5), (6), (7) and (8) are not required to be
low-income. Additionally, the Department clarified in Sec. 681.280
that OSY with disabilities are not required to be low income. For ISY
with a disability, the youth's own income rather than his or her
family's income must meet the low-income definition and not exceed the
higher of the poverty line or 70 percent of the lower living standard
income level.
Comments: A commenter suggested that any youth who attends a school
that is considered by the U.S. Department of Education to be a
``designated low-income school'' should be considered a low-income
youth for the purpose of WIOA services. Similarly, another commenter
requested that the Department add to the regulations that any youth who
attend a title I school would automatically be considered low-income
for eligibility purposes for WIOA youth services.
Department Response: The Department analyzed these two similar
suggestions and did not modify the regulation text. The Department
reviewed the Department of Education's title I designation and
concluded that the WIOA high poverty threshold represents a more
impoverished area than the Department of Education's title I school
status.
Comments: A commenter asked for clarification as to whether this 5
percent of youth means new youth enrollees in a given program year or 5
percent of all youth enrolled. Another commenter asked whether the 5
percent who do not have to be low income includes youth that are
eligible because of non-income applicable criteria such as being
homeless, a member of the juvenile justice system, or having dropped
out of high school.
Department Response: The Department clarified in the regulation
text that for the 5 percent low-income exception, the 5 percent of
youth means new youth in a given program year. In addition, the
Department has clarified in regulatory text that the calculation for
the 5 percent exception is based on only those youth who would
ordinarily need to be low income. It is not based on all youth since
many of the OSY categories do not require low-income status. In fact,
all nine categories at Sec. 681.210(c) except for paragraphs (c)(3)
and (9) do not require low-income status. Because not all OSY are
required to be low-income, the 5 percent low-income exception under
WIOA is calculated based on the 5 percent of youth enrolled in a given
program year who would ordinarily be required to meet the low-income
criteria. For example, a local area enrolled 200 youth and 100 of those
youth were OSY who were not required to meet the low-income criteria,
50 were OSY who were required to meet the low-income criteria (i.e.,
either Sec. 681.210(c)(3) or (9)), and 50 were ISY. In this example
the 50 OSY required to be low income and the 50 ISY are the only youth
factored into the 5 percent low-income exception calculation.
Therefore, in this example, 5 of the 100 youth who ordinarily would be
required to be low-income do not have to meet the low-income criteria
based on the low-income exception. This percent is calculated at the
end of a program year based on new enrollees in that program year.
Comments: A few commenters were concerned that setting a limit on
the percent of youth that may be deemed eligible based on needing
additional assistance limits who can be served when there is not an
abundance of youth that have one of the other eligibility
characteristics. A number of commenters requested that the Department
consider recommending that the 5 percent limitation be removed at such
time that WIOA is amended that states that 5 percent of youth who meet
all other WIOA youth services eligibility
[[Page 56167]]
requirements do not have to be low income.
Department Response: While the Department did not include language
in the NPRM relating to the 5 percent limitation on the ``requires
additional assistance'' criterion for ISY, that was an unintentional
omission. The Department has added Sec. 681.310(b), which describes
the 5 percent ISY limitation for the ``requires additional assistance''
criterion. The Department will take the concerns about the 5 percent
limitation into consideration when providing any technical assistance
to Congress on WIOA reauthorization.
Comments: A few commenters asked for clarification regarding a
definition for ``family'' for the purposes of determining low-income
eligibility for WIOA title I youth program. Another commenter
recommended that the Department incorporate the definition of
``family'' from WIA sec. 101(15) into the WIOA regulations. A request
was made that the Department provide an updated version of the WIA
definition that is more inclusive of all family types, including same-
sex marriages and domestic partnerships.
Department Response: In response to the comments seeking
clarification of ``family'' in WIOA, the Department added a definition
of family in 20 CFR part 675, and it is further discussed in the
preamble that applies to that part.
Comments: Some commenters asked what items would be included for
determining if an individual is in a family with total family income
that does not exceed the poverty line. In particular, these commenters
asked the Department if sources of funding such as pensions, foster
care child payments, or unemployment compensation would be included
when determining a family's low-income status. A commenter asked the
Department what the definition of a dependent child would be for
purposes of determining income eligibility and up to what age could an
OSY be considered a dependent child of the parent or guardian.
Department Response: When determining up to what age an OSY could
be considered a dependent child of the parent or guardian use the IRS
definition of dependent. The Department will provide additional
guidance on eligibility.
Section 681.260 How does the Department define ``high poverty area''
for the purposes of the special rule for low-income youth in the
Workforce Innovation and Opportunity Act?
WIOA contains a new provision that allows for youth living in a
high poverty area to meet automatically the low-income criterion that
is one of the eligibility criteria for ISY and for some OSY.
Comments: The Department received many comments on how to define
``high poverty area.'' A number of the commenters focused on the 30
percent rate as set every 5 years using American Community Survey 5-
Year data and if that was the appropriate threshold. For example, a few
commenters expressed their support for the proposed language in this
section, suggesting that the 30 percent threshold for defining a high
poverty area would be an accurate measure. In particular, an entity
commented that the proposed regulation would help to relieve some of
the burden of meeting income eligibility requirements on youth.
However, another commenter wrote that the proposed 30 percent
threshold would be unreasonable, and requested additional clarification
regarding the calculation methods of contiguous tracts in determining
high poverty areas. Specifically, this commenter asked the Department
whether it would measure high poverty thresholds for a contiguous tract
using an average of the contiguous tracts, or just whether a contiguous
tract meets the threshold.
Citing data from the American Community Survey, another commenter
suggested that there are actually few census tracts that would meet the
30 percent poverty threshold. This commenter further stated that census
data, particularly for low-income neighborhoods, often includes a large
margin of error. This commenter recommended that the Department modify
the definition of high poverty area to reflect actual geographic
concentrations of OSY better.
A few commenters suggested that the definition of high poverty area
should not be higher than 20 percent of the population meeting the low-
income threshold. Other commenters recommended that the proposed high
poverty area definition be lowered from 30 percent of the population to
25 percent.
Citing statistics a commenter said that in Maine, there are no
areas in which the 30 percent poverty threshold would be met, one
commenter recommended that the Department lower the low-income
threshold from 30 percent in order to accommodate more rural and less
densely populated States.
One commenter recommended that the regulations be modified to state
that if any measure of poverty in a census tract exceeds 30 percent,
the census tract should be considered a high poverty census tract,
stating that in some cases the overall high poverty may be under 30
percent but certain measures within the overall tract could be over 30
percent.
Two commenters recommended that the Department allow States to
define their own poverty area thresholds between 20 and 40 percent that
is consistent with the State's demographics. Another commenter
recommended that the Department allow Local WDBs to determine the
thresholds for poverty in their local areas.
Another commenter recommended that Local WDBs submit documentation
to the Department concerning extenuating circumstances in their area
that would cause them to need to lower their low-income threshold.
Department Response: After analyzing the many comments received on
the proposed regulation, the Department concluded that a poverty rate
of at least 30 percent as set every 5 years using American Community
Survey 5-Year data was too high. The regulation text was changed to
reflect a poverty rate of at least 25 percent as set every 5 years
using American Community Survey 5-Year data. Local areas must decide
how to combine census tracts into larger contiguous areas and the
weighted average of the poverty rates of the census tracts in each
contiguous area to meet the threshold. The Census Bureau defines a
``poverty area'' as a census tract where at least 20 percent of the
residents are poor. Therefore, the term ``high poverty'' must be
greater than 20 percent; the Department concluded that 25 percent was
the most appropriate threshold. Because allowing States to define their
own poverty threshold would lead to inconsistencies in eligible youth
across the country, the Department did not include that recommendation
in the Final Rule.
Comments: Citing statistics regarding the high poverty rates in
Merced County and all of San Joaquin valley, a commenter recommended
that the ``area'' measured when determining whether an area is high
poverty, be amended from using counties to cities. A different
commenter recommended that the Department modify the proposed
regulations to include ``city'' as an additional geographical division
that could be used when determining low-income status of an area.
Another commenter recommended that any city with more than 20 percent
of its census tracts considered ``high poverty'' should be considered a
high poverty area, expressing that poverty areas are not always
contiguous and can be separated by land occupied by government
buildings, shopping malls, and colleges.
[[Page 56168]]
Department Response: Because most cities include multiple
neighborhoods and census tracts that can vary greatly in their levels
of poverty, the Department decided that using city as the geographical
area is too large of an area to use.
Comments: A commenter recommended that the Department should use
zip codes to determine low-income levels instead of census tracts,
asserting that there are often sub-areas of high poverty within a
census tract and that census tracts often do not reflect these
concentrated area of high poverty.
Department Response: The Department analyzed the effect of adding
city and zip code as an additional geographic division and decided to
stay with the proposed set of contiguous census tracts as the Census
Bureau defines poverty areas using census tracts. The conclusion will
result in a more consistent implementation of the regulation.
Comments: A few commenters suggested that the Department revise the
proposed regulations so that the 30 percent poverty threshold is
defined using the numbers from the population in an area who are
eligible to participate in the program (ages 16 through 24), and not
using the percentage from the general population. Two commenters also
recommended that high poverty areas be defined by the youth poverty
rate of an area, stating that census tract data are minimally useful
for the purpose of determining the level of poverty in an area.
Similarly, one commenter asserted that using the American Community
Survey 5-Year data for all ages in an area could be limited in its
usefulness. This commenter suggested that the data be limited to
individuals who are under 18 living in an area. This commenter
recommended that the Department clarify whether the American Community
Survey data should be limited to youth in an area or whether States
have discretion to decide which data to use.
Department Response: While the Department acknowledges the value
behind using poverty data that reflect the population the program
serves, it concluded that because this measure applies to ISY (14-21)
and OSY (16-24), and these age ranges are not currently easily
accessible with the American Community Survey, it would not specify
that the data need to reflect a specific subpopulation as a requirement
in the regulatory text.
Comments: Another respondent sought clarification from the
Department regarding the proposed method of defining high poverty
areas. Similarly, one commenter stated that the Final Rule would need
to be clearer as to how a local area can determine whether or not they
are considered a high poverty area. Another commenter asked the
Department to clarify how a service provider would document that an
individual has met the income eligibility requirements for WIOA youth
services by living in a high poverty area. One commenter asked if Local
WDBs could use the U.S. Department of Housing and Urban Development
(HUD) Web site to determine if an area is high poverty.
Department Response: The Department recognizes that several
commenters want directions and tools on how a local area could
determine whether they are considered a high poverty area. The
Department will provide technical assistance to youth service
providers, making it easier to calculate if an area qualifies as a high
poverty area for WIOA purposes.
Comments: Several commenters recommended that the regulations
include a variety of measures to determine whether an area is ``high
poverty.'' Specifically, some of these commenters recommended that the
Department revise the NPRM to include additional high poverty area
proxies to capture low-income youth such as living in areas contiguous
to high poverty areas, living in public housing, or living in an area
where over a certain percent of the student population is eligible for
free or reduced price lunches. An entity recommended using additional
low-income proxies for high poverty area, sharing that the current
proposed language would exclude individuals from participation in these
services based on their zip code.
One commenter suggested that school district borders be used to
define areas of high poverty instead of State or county borders,
asserting that this would decrease economic disparity between
communities.
Another commenter recommended that the Department use the most
current data available to determine high poverty areas. This commenter
suggested using data from other sources instead of solely relying on
data from the American Community Survey, and recommended also using
data from Empowerment Zones and other partner agency information
systems.
Department Response: The Department considered all of the
alternative measures suggested and decided to use the proposed
calculation method, with a slight adjustment to 25 percent from 30
percent poverty rate in order to keep the calculation relatively
straightforward, easy to understand, and not burdensome to document or
implement.
Comments: Another commenter stated that the proposed method of
classifying high poverty areas is not consistent with WIOA's intent of
serving the neediest youth, asserting that eligibility should be based
on individual needs instead.
Department Response: The Department appreciates the concern
regarding serving the neediest youth. WIOA sec. 129(a)(2) includes the
phrase ``high poverty area,'' which the Department interpreted to mean
a geographic area and not an individual determination.
Comments: Finally, a commenter suggested that the Department revise
proposed Sec. 681.260 to make it more precise and eliminate ambiguity
in the term ``tribal area.''
Department Response: The Department accepted the commenter's
suggestion and replaced, ``Indian Reservation, tribal land, or Native
Alaskan Village'' with ``an American Indian Reservation, Oklahoma
Tribal Statistical Area (as defined by the U.S. Census Bureau), Alaska
Native Village Statistical Area or Alaska Native Regional Corporation
Area, Native Hawaiian Homeland Area, or other tribal land as defined by
the Secretary in guidance'' in the Final Rule.
Section 681.270 May a local program use eligibility for free or reduced
price lunches under the National School Lunch Program as a substitute
for the income eligibility criteria under title I of the Workforce
Innovation and Opportunity Act?
This section explains that WIOA sec. 3(36) defines a low-income
individual to include an individual who receives (or is eligible to
receive) a free or reduced price lunch under the Richard B. Russell
National School Lunch Act.
Comments: A number of commenters expressed support for the proposed
language's acceptance of eligibility for free or reduced price lunch as
a substitute for WIOA youth income eligibility requirements criteria.
One commenter asked the Department whether an OSY with a sibling
receiving free or reduced lunches would be considered eligible under
the proposed regulations. Similarly, another commenter requested
clarification from the Department regarding whether an OSY high school
graduate could use their family's participation in the National School
Lunch Program as fulfillment of their low-income requirements. Yet
another commenter recommended that a youth who lives in a household
where his or her family
[[Page 56169]]
member(s) receive or are eligible to receive free or reduced price
lunch should automatically also be eligible for WIOA youth services.
Department Response: The Department analyzed the requests to use
family member's eligibility to receive free or reduced price lunch as a
proxy allowing a youth not enrolled in school to automatically meet
low-income eligibility criteria for WIOA youth services. The Department
did not change the Final Rule because WIOA states ``an individual must
receive or is eligible to receive a free or reduce-priced lunch'' and
youth must be enrolled in school to be eligible for Richard B. Russell
National School Lunch Act. Furthermore, low-income is not an
eligibility requirement for significant portions of the OSY program.
Comments: A few commenters requested clarification from the
Department as to whether in a city or a town in which 100 percent of
students are eligible for free or reduced lunches, any student who
lives in the area would be considered low-income automatically and
therefore, eligible for WIOA youth services, and only would need to
prove his or her residency. Further, these commenters requested
clarification from the Department regarding whether an individual who
attends a school that qualifies for a Community Eligibility Provision
(CEP) under the Healthy, Hunger-Free Kids Act of 2010 would be
considered low-income for WIOA youth program eligibility purposes.
Another commenter also discussed the requirements of the CEP and asked
how a school district's participation in a CEP would affect the low-
income eligibility of youth for WIOA services.
Department Response: The Healthy, Hunger-Free Kids Act of 2010
(Pub. L. 111-296, December 13, 2010, 124 Stat. 3183) amends the Richard
B. Russell National School Lunch Act which includes the CEP, but does
not replace it. The Department found that many cities, towns, and
schools that participate in the CEP have relatively low poverty rates
as compared to the WIOA determined high poverty area. As a result of
this research, the Department decided not to change the Final Rule to
include the CEP.
Section 681.280 Is a youth with a disability eligible for youth
services under the Workforce Innovation and Opportunity Act if his or
her family income exceeds the income eligibility criteria?
This section reiterates the WIOA provision that, for an ISY with a
disability, income level for eligibility purposes is based on his/her
own income rather than his/her family's income. For OSY with a
disability, income is not an eligibility criterion.
Comments: Two commenters expressed support for this provision,
noting that it would eliminate barriers for individuals with
disabilities for accessing necessary support services.
Another commenter stated that there was an inconsistency between
proposed Sec. Sec. 681.250 and 681.280. Specifically, the commenter
said that Sec. 681.250 indicates that the low-income requirement would
not apply to OSY with disabilities. However, Sec. 681.280 states that
for an individual with a disability, the income level for eligibility
purposes would be based on the person's individual income as opposed to
his or her family's income. This commenter recommended that the
regulatory text be rewritten to clarify that the low-income requirement
for individuals with disabilities would be applicable only to ISY and
not OSY.
Department Response: The Department concurs that the proposed
regulation did not factor in the OSY eligibility criteria. To address
the commenter's concern, the final regulation includes the following
line, ``Furthermore, only ISY with a disability must be low income. OSY
with a disability are not required to be low income.''
Section 681.290 How does the Department define the ``basic skills
deficient'' criterion in this part?
This section reiterates the basic skills deficient criterion that
is part of the eligibility criteria for both OSY and ISY, for purposes
of title I of WIOA. The section also provides that local programs must
use valid and reliable assessment instruments and provide reasonable
accommodations to youth with disabilities in the assessment process in
making this determination.
Comments: A commenter recommended that the Department revise the
phrase provided in Sec. 681.290(a)(2), ``(2) Are unable to compute or
solve problems, or read, write, or speak English at a level necessary
to function on the job, in the individual's family, or in society.
(WIOA sec. 3(5)).''
Department Response: The Department declines to revise this
language because it comes directly from the statutory language of WIOA.
Comments: A commenter recommended that the Department include
language in Sec. 681.290(b), which governs the State WDBs' policies to
determine if a youth is basic skills deficient, to require the use of
age and/or developmentally appropriate criteria. Another commenter
recommended that the Department clarify that local areas must state in
the local plan how they will assess individuals, and that States should
establish State policies for how to define basic skills deficient.
Department Response: The Department addressed these comments in
State planning guidance, TEGL No. 14-15 (``Workforce Innovation and
Opportunity Act (WIOA) Requirements for Unified and Combined State
Plan''), which can be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
Comments: One commenter requested clarification regarding the Sec.
681.290(c) requirement that in assessing basic skills, local programs
must use assessment instruments that are valid and appropriate for the
target population. One commenter expressed its support for the explicit
inclusion of ``valid and reliable assessment instruments'' and
``reasonable accommodations'' for individuals with disabilities, saying
that this language would create the opportunity for State and Local
WDBs to put metrics-driven services and supports into place. This
commenter recommended, however, that the Sec. 681.290 language be
further modified to provide State and Local WDBs with guidance on how
to connect youth with disabilities with the resources they need if they
are deemed skills deficient. A number of commenters asked about the
types of basic skills assessments that are allowable.
Department Response: The Department will provide guidance or
technical assistance on ways to help youth with disabilities access the
resources they need.
Comments: A commenter recommended that the Department revise Sec.
681.290(c) to include assessment instruments that are valid and
appropriate for the target population and must provide reasonable
accommodation in the assessment process, if necessary, for people with
disabilities.
Department Response: The Department concluded that local programs
need flexibility to use assessments they choose as long as they are
valid and appropriate. Requiring assessments only approved by the
Department of Education's National Reporting System would be overly
burdensome for local youth programs. No change has been made to the
regulatory text in response to the comment.
Comments: A commenter suggested that the language of this section
be amended to provide further guidance if
[[Page 56170]]
a youth with a disability is unable to demonstrate basic skills, and
that language should be included that will guide State and Local WDBs
as they work to meet the needs of youth who are basic skills deficient.
The commenter suggested specific procedures should be put into place to
connect skills deficient youth with disabilities with the training and
resources they need in order to succeed.
Department Response: The Department acknowledges the concerns about
serving basic skills deficient youth, including those with
disabilities, and will provide guidance and technical assistance to
address these concerns. No change is made to the regulatory text in
response to this comment.
Comments: Another commenter suggested that local programs should be
able to use the Individual Education Program (IEP) to determine
individuals' basic skills, because it is a summary of their reading,
writing, and math skills. Finally, a commenter recommended that the
Department remove the basic skills deficient criteria for the time
being, noting that all other program requirements are beginning in July
2015.
Department Response: Regarding the use of an IEP, the Department
will issue further guidance describing the use of previously conducted
assessments. In addition, the Department cannot remove the basic skills
deficient criteria because the criteria are set forth in the statutory
language of WIOA. No changes were made to the regulatory text in
response to these comments.
Section 681.300 How does the Department define the ``requires
additional assistance to enter or complete an educational program, or
to secure and hold employment'' criterion in this part for OSY?
The Department added this section in the Final Rule to be more
clearly consistent with the ``requires additional assistance''
eligibility criteria in WIOA secs. 129(a)(1)(B)(iv)(VIII) (for OSY) and
129(a)(1)(C)(iv)(VII) (for ISY). The criterion is slightly different
for ISY and OSY, in that the OSY section contains the phrase ``to enter
or complete an educational program'' while the ISY language states ``to
complete an educational program.'' Therefore, the Final Rule includes
two separate sections for the ISY and OSY ``requires additional
assistance'' criteria. The new Sec. 681.300 is the OSY section, while
proposed Sec. 681.300 is now Sec. 681.310, the ISY section. Proposed
Sec. 681.310 has also been renumbered to Sec. 681.320.
Section 681.310 How does the Department define the ``requires
additional assistance to complete an educational program, or to secure
and hold employment'' criterion in this part for ISY?
This section allows States and/or local areas to define the
``requires additional assistance . . .'' criterion that is part of the
ISY eligibility. It clarifies that if this criterion is not defined at
the State level and a local area uses this criterion in its ISY
eligibility, the local area must define this criterion in its local
plan. The Department received comments on this section as discussed
below.
Comments: A number of commenters recommended that the Department
provide additional guidance, such as including an acceptable list of
possible ``additional assistance'' in order to set national standards
for what ``additional assistance'' means. Many of these commenters
expressed concern about the proposed language being overly broad, with
the potential to expand services beyond the high-risk populations
envisioned by WIOA. For this reason, these commenters recommended that
the educational program that the individual needs should be geared to
the achievement of basic skills at the secondary level and that
``requiring additional assistance to secure or hold employment'' should
mean that there are deficits in basic academic skills (not technical
skills, or advanced academic skills) that are needed to secure
employment or succeed on the job.
Another commenter recommended that States and/or local areas should
have an established definition for an ``individual requiring additional
assistance to complete an education program or to secure or hold
employment'' and include a student who is significantly over-aged and
under-credited, (i.e., 2 or more years below grade level or off track
from high school graduation). One commenter recommended that the
Department require State and Local WDBs to establish policy using age
and/or developmentally appropriate criteria to determine when a youth
requires additional assistance to complete an educational program or to
secure and hold employment.
Department Response: The Department understands the need for more
specific language to define the ``requires additional assistance''
criterion and plans, and further guidance on the need for more specific
definitions at the State and local level will be issued. No change to
the regulatory text, however, was made in response to these comments.
Comments: A few commenters asked about the 5 percent limitation on
ISY using the ``requires additional assistance'' provision.
Department Response: It was an oversight that the Department did
not include this new limitation in the NPRM. Therefore, the Final Rule
includes Sec. 681.310(b) that describes the 5 percent ISY limitation
on the use of the ``requires additional assistance'' criterion.
Section 681.320 Must youth participants enroll to participate in the
youth program?
This section clarifies that there is no self-service concept for
the WIOA youth program and every individual receiving services under
WIOA youth must meet ISY or OSY eligibility criteria and formally
enroll in the program. It defines participation as an eligibility
determination, the provision of an objective assessment, development of
an individual service strategy, and participation in any 1 of the 14
program elements.
Comments: The Department received a number of comments, as
discussed below, recommending the Department clarify the point of
participation for a WIOA title I youth program participant.
Department Response: The Department has added Sec. 681.320(b)(2)
to clarify that the point of program participation does not begin until
after the youth is determined eligible, the youth receives an objective
assessment, and the youth participates in 1 of the 14 program elements.
In addition, the Department made a minor language change in Sec.
681.320(b) in order to be consistent with language in the performance
section of the Final Rule.
Comments: A number of commenters expressed their support for the
NPRM's specification that there would be no self-service for WIOA youth
and that every individual must enroll formally in the program. These
commenters also stated that they support the proposed language's
definition of enrollment as the collection of information.
Several commenters expressed concern regarding the burden placed on
individuals who have to demonstrate their eligibility through
documentation. Some of these commenters requested that the Department
clarify and make explicit that the ``collection of information''
associated with enrollment can be supported with self-attestation, in
order to ensure upfront eligibility, especially for high-risk
individuals. Although acknowledging the improvements in burden
associated
[[Page 56171]]
with certification of income eligibility brought about by WIOA, many
commenters suggested that requiring individuals who are at high risk to
prove their status before they receive services that they rely on would
be detrimental to those in need. These commenters suggested that the
Department use the guidance for self-attestation that was included in
the ``Advisory Training and Employment Guidance Letter No. 6-14 Program
Year (PY) 2013/Fiscal Year (FY) 2014 Data Validation and Performance
Requirements and Associated Timelines.'' Discussing how self-
attestation is defined in this document, these commenters recommended
that the Department amend the proposed language to state that the
collection of information that triggers enrollment could include self-
attestation, and that self-attestation is even preferable to other
methods of information collection.
Department Response: The Department does allow self-attestation for
the collection of a number of data elements. The Department will
provide further guidance on documentation requirements for data
elements in the Department's forthcoming data validation guidance.
Comments: Commenters also recommended that the Department modify
the proposed regulations to state that an individual is not enrolled in
WIOA title I programs with the collection of information, and that
local areas are allowed to begin assessment activities and other
efforts through the one-stop delivery system. These commenters also
recommended the Department apply a consistent definition of point of
enrollment across all WIOA titles and recommended that the point of
enrollment should be activated with the individual's participation in a
program activity, not just their involvement in initial assessment
activities.
A commenter recommended that the Department clarify that staff
assisted activities such as assisting youth post-exit in transition,
navigation, and support are encouraged and do not trigger enrollment
for individuals in WIOA youth programs. Another commenter stated that
the point at which the Department defines when an individual is
enrolled is critical to data collection and validation. This commenter
suggested that collecting an individual's data at the time of
eligibility verification and at enrollment would be redundant and
provide increased opportunity for inconsistent data reporting.
Another commented that the time of enrollment needs to be
clarified, as they were concerned that the proposed regulations as they
stand would allow the process of taking a WIOA application and
determining its eligibility to be categorized as a ``basic career
service'', therefore, counting the individual as enrolled. This
commenter recommended that the regulations be amended so that
enrollment into WIOA title I services would be the first service
provided, after eligibility has already been determined.
Department Response: The Department has clarified in Sec.
681.320(b) of this DOL WIOA Final Rule that the point of participation
is after an eligibility determination, and added in Sec. 681.320(b)
that the point of participation occurs after the provision of an
objective assessment, development of an individual service strategy,
and participation in any of the 14 WIOA youth program elements. In
addition, the Department will ensure consistency in the point of
participation across all WIOA titles through the performance section in
20 CFR 677.150(a)(2) (see Joint WIOA Final Rule).
Other Eligibility Issues
Comments: A commenter recommended that the Department explicitly
clarify that youth who are eligible to work under Deferred Action for
Childhood Arrivals (DACA) also would be eligible for WIOA programs.
Department Response: The Department declines to address DACA in the
WIOA Final Rule (due to pending court decisions). The Department issued
guidance on DACA in TEGL No. 02-14 (``Eligibility of Deferred Action
for Childhood Arrivals Participants for Workforce Investment Act and
Wagner-Peyser Act Programs''), which can be found at https://wdr.doleta.gov/directives/attach/TEGL/TEGL_2-14.pdf.
Comments: Two commenters noted that WIOA sec. 132 (b)(1)(B)(v)(I)
defines an adult to mean an individual who is not less than age 22 and
not more than age 72. The commenters identified that in other instances
(title I sec. 3, title II), adults are defined as being 18 and not 22.
These commenters requested further clarification from the Department as
to whether this age difference was an oversight on the part of the
Department.
Department Response: WIOA sec. 132 discusses the allotment formula
for States and outlying areas used each program year and refers to the
adult age range used in the statutory formula to determine the amount
of funds a State or outlying area receives in a given program year. The
other references to WIOA titles I and II the commenters cite relate to
eligibility age for specific services and is not a Department
oversight. No changes have been made to regulatory text in response to
these comments.
4. Subpart C--Youth Program Design, Elements, and Parameters
Section 681.400 What is the process used to select eligible youth
service providers?
This section clarifies that youth activities may be conducted by
the local grant recipient and that when the Local WDB chooses to award
grants or contracts to youth service providers, such awards must be
made using a competitive procurement process in accordance with WIOA
sec. 123.
The Final Rule clarifies that the grant recipient/fiscal agent has
the option to provide some or all of the youth workforce investment
activities directly themselves rather than entering into a grant or
contract to provide the activities. The competitive procurement
provision discussed in WIOA sec. 123 is only applicable if the Local
WDB chooses to award grants or contracts to youth service providers.
The Department encourages Local WDBs to continue to award contracts to
youth service providers when local areas have access to experienced and
effective youth service providers. The revision also uses the
terminology ``youth service providers'' consistently to refer to these
providers. While this revision represents a significant change in that
it provides Local WDBs with flexibility in determining which WIOA youth
services to procure, the Department expects Local WDBs to continue to
contract with youth service providers to provide the program elements
which youth service providers are best positioned to offer. The intent
of this flexibility is to allow for Local WDBs to directly provide the
WIOA youth program elements that they can most efficiently and cost-
effectively provide, such as labor market and employment information
and framework services including assessment, intake, supportive
services and follow-up services. The Department received a number of
comments on this section as discussed below. Based on these comments,
the Department has made a significant revision to this section in the
Final Rule.
Comments: A number of commenters asked the Department to provide
specific guidance as to which WIOA youth services must be competitively
procured and when this regulation would take effect. One commenter
requested additional clarification from the Department regarding the
[[Page 56172]]
competitive selection requirement, specifically inquiring as to what
the framework required by local areas would be.
In addition, since the proposed regulation stated at Sec.
681.400(b) that competitive selection requirements do not apply to
``the design framework services when these services are more
appropriately provided by the grant recipient/fiscal agent,'' a couple
of commenters asked the Department to clarify framework services. One
of these commenters stated that framework services are described
differently in the NPRM preamble discussion and the proposed regulatory
text at Sec. Sec. 681.400(b) and 681.420(a). One commenter asked the
Department for clarification as to whether a county within a local area
that is not a fiscal agent could perform framework activities,
suggesting that disallowing this would not be cost effective.
Department Response: The Department determined a need for greater
clarity about the specific youth services that must be competitively
procured. In addition, the concept of framework services in the NPRM
was overly complex. The Final Rule clarifies that the competitive
procurement requirements in sec. 123 of WIOA apply only if the Local
WDB chooses to award grants or contracts to youth service providers to
provide some or all of the youth program elements. For example, a Local
WDB could choose to procure competitively all youth program elements or
it could choose to competitively procure a few of the youth program
elements, and provide the remaining program elements themselves. This
simplification in the Final Rule eliminates the need for the discussion
of framework services in Sec. 681.400(b).
Comments: With regard to proposed Sec. 681.400(a)(3), which would
allow a Local WDB to sole source awards if it determines there is an
insufficient number of eligible training providers of youth activities
in the local area, a commenter asked the Department how a Local WDB
would determine that there is an insufficient number of youth
providers. Further, this commenter asked if a determination that a
local area is ``rural''--for example, by using the Census Bureau,
Office of Rural Health Policy, or Office of Management and Budget
definition--alone provides justification for sole sourcing. Some
commenters recommended that the Department expand the proposed Sec.
681.400(a)(3) language to allow for the Local WDB to allow the grant
recipient/fiscal agent to deliver the elements when there are no
eligible training providers available, as this would be most useful in
rural areas.
Department Response: The Final Rule in Sec. 681.400(b)(4) does not
address how to determine an insufficient number of eligible youth
providers. Rather, the Local WDB should have a policy that defines what
would constitute an insufficient number of eligible youth providers.
Based on the changes made in the Final Rule, the grant recipient/fiscal
agent will have the flexibility to deliver youth program elements as
recommended by the commenter.
Comments: A number of commenters recommended that the Department
expand the Sec. 681.400 language to encourage Local WDBs to ensure
that the competitive process does not discourage or limit co-enrollment
of youth participants in other core or partner programs. One commenter
recommended that the youth provider selection process should include
suggested quality criteria for Local WDBs and/or States to use when
selecting eligible training providers. This commenter also suggested
that the Department provide in the regulation examples of public or
private entities that have demonstrated effectiveness in providing
regionally accredited secondary level educational programs providing
entry-level workforce preparation and/or leading to recognized
postsecondary education and training activities.
Department Response: The Department agrees that it is important not
to discourage co-enrollment and to incorporate quality criteria. The
Department concluded that this type of language is more appropriate in
guidance. The Department also agrees with the importance of
competitively selecting high quality youth service providers, as
appropriate, and will address this issue in future guidance.
Comments: A commenter asked whether waivers for providing intake,
assessment, development of ISS, case management, and follow-up services
are still recognized under the regulation. Finally, one commenter
observed that the term ``local program'' is used throughout subpart C
without a clear definition, and recommended that the Department add a
definition of ``local program'' to Sec. 681.400.
Department Response: Because of the revisions to the Final Rule
that provide additional flexibility in delivering youth program
elements, waivers related to WIOA sec. 123 are no longer necessary. In
addition, the Department declines to add a new definition of ``local
program''; the term ``local program'' refers to a local workforce
area's WIOA title I youth formula-funded program. No changes were made
to the final regulation in response to these comments.
Section 681.410 Does the requirement that a State and local area expend
at least 75 percent of youth funds to provide services to out-of-school
youth apply to all youth funds?
This section describes the new requirement under WIOA that States
and local areas must expend a minimum of 75 percent of youth funds on
OSY. This section also clarifies the guidelines by which a State that
receives a minimum allotment under WIOA sec. 127(b)(1) or under WIOA
sec. 132(b)(1) may request an exception to decrease the minimum
expenditure percentage to not less than 50 percent.
Comments: Numerous commenters expressed their support for the
increase in mandatory minimum OSY expenditure from 30 to 75 percent,
asserting that this change along with others would lead to improved
outcomes for OSY. One commenter expressed its support for the proposed
regulations, but further encouraged the Department to provide guidance
as to how programs can transition to help the OSY population now that
they are a priority. This commenter cautioned that without such
guidance, providers with experience meeting Federal requirements and/or
with expertise in hybridized ``earn and learn'' models could be
excluded from the system. In addition to supporting the proposed
regulations regarding the 75 percent funding requirement, one commenter
expressed support for the Department's attempts to limit opportunities
for waivers that would reduce this funding requirement. A few
commenters expressed their support of the language that would allow
organizations a transition period before they have to reach the 75
percent OSY funding goal. One of these commenters suggested that
allowing for this gradual transition would help public workforce
systems to decrease their expenditures on ISY slowly. Another commenter
was concerned about the 75 percent requirement because for its State
and others with low-dropout rates, reaching the requirement would be
unrealistic and would fail to serve many at-risk ISY. This commenter
recommended that the requirement be reduced to 40 percent for the first
year after implementation and increased to 60 percent at the third year
and thereafter.
Department Response: While the Department notes the commenters'
concerns about the shift to spending more funds on OSY, the Department
issued TEGL No. 23-14 (``WIOA Youth
[[Page 56173]]
Program Transition Guidance''), which can be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm, on March 26,
2015. This guidance discusses transitioning to the minimum 75 percent
OSY expenditure requirement that allows a gradual transition in the
first WIOA program year. The Department plans to issue additional
guidance and technical assistance to help programs serve more OSY.
Comments: A commenter expressed concern that transitioning to the
75 percent OSY requirement would decrease performance outcomes
throughout the youth services system because the OSY population is
often difficult to retain contact with, especially after they have
exited the program. Therefore, this commenter predicted that local
areas would enroll a limited number of youth, except that those youth
have a relatively high prospect for success, and devote significant
resources to tracking and reporting on that limited population. This
commenter requested confirmation that the Department would prefer that
local areas forgo volume considerations and do everything possible for
the few OSY that could meet these expectations.
Department Response: The Department recognizes that OSY may require
additional resources for services and expects local programs to provide
the necessary resources to ensure the success of OSY. There is no
specific expectation on the number of OSY programs must serve, only on
the percentage of funds spent on OSY. States and local areas will have
the opportunity to set performance targets based on the population they
serve.
Comments: Commenting that many ISY are at risk regardless of the
fact that they are attending school, a commenter stated that the
proposed regulations would not give enough support to areas who want to
continue to help serve ISY. Further, this commenter was concerned that
some ISY may end up dropping out in order to be eligible for OSY
services and assistance and, therefore, suggested that local areas
should be able to determine the needs of their own areas and serve
those individuals as such.
Department Response: The Department recognizes the concerns about
serving fewer ISY. However, the focus in WIOA is on expending
additional resources on OSY. Local WDBs do not have the authority under
WIOA to determine ISY and OSY expenditure rates based on the needs of
their own area. Local areas must spend a minimum of 75 percent of youth
funds on OSY, with the exception that local area administrative
expenditures are not a part of the 75 percent OSY minimum expenditure
calculation.
Comments: Describing the impact the 75 percent OSY minimum
expenditure requirement would have on its summer transition program,
one commenter opposed the OSY minimum expenditure requirement, stating
that it would prevent 15 ISY who have been identified as high-risk from
participating in its program due to a lack of funding for ISY.
Department Response: The Department recognizes concerns regarding
continuing to serve ISY and issued TEGL No. 23-14 (``WIOA Youth Program
Transition Guidance'') on March 26, 2015, which can be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm, which
addresses transitioning ISY and ensures they can successfully complete
the program and are not exited from the program prematurely.
Comments: A number of commenters recommended that the Department
provide additional detail about what is required in the analysis of ISY
and OSY populations in a local area that would be required as part of
the waiver process to reduce the OSY minimum expenditure percentage for
States that receive the small State minimum allotment (proposed Sec.
681.410(b)(1)).
Department Response: The Department will provide guidance on what
is required when submitting waivers to reduce the required OSY minimum
expenditure rate for States that receive the small State minimum
allotment.
Section 681.420 How must Local Workforce Development Boards design
Workforce Innovation and Opportunity Act youth programs?
This section describes the framework for the WIOA youth program
design. This section also describes the requirement that Local WDBs
must link to youth-serving agencies and adds local human services
agencies to the list that WIA required.
Objective Assessment
Comments: One commenter recommended that the Department clarify
that the proposed Sec. 681.420(a)(1) requirement that the youth
program design framework services must provide for an individual
objective assessment does not require testing to determine an
individual's Grade Level Equivalent or Educational Functioning Level
unless needed to determine that the participant is basic skills
deficient or to document a measurable skill gains for purposes of
measuring performance. Another commenter recommended that the objective
assessments and individual services planning process be completed using
``strength-based'' approaches that focus on the strengths of the
individuals instead of their faults.
Department Response: The Department has incorporated language into
Sec. 681.420(a)(1) to review youth strengths as part of the assessment
process. It is also the intention of the Department to clarify the
requirements around the youth program design framework in system
guidance.
Individual Service Strategy
Comments: A commenter recommended that a participant's ISS be
developed with the individual's needs in mind and not on the time
constraints or structure of the provider.
Department Response: The Department has incorporated language into
Sec. 681.420(a)(2) to develop the ISS based on the needs of the
participant.
Career Pathways
Comments: Several commenters recommended that the Department
clarify that the Local WDB may require that youth services be aligned
with specific career pathways identified by the Local WDB. Further,
these commenters suggested that the regulations should clarify that the
requirement under WIOA sec. 3(7)(F) that a career pathway must enable
an individual to attain a secondary school diploma or its equivalent,
and at least one recognized postsecondary credential, does not limit
the ability of local areas to serve youth who have already attained a
secondary school diploma or its equivalent.
A number of commenters requested clarification from the Department
about the activities that States and Local WDBs must carry out
regarding career pathways, and whether they have to establish specific
processes and policies concerning career pathways. Additionally, many
of these commenters requested that the Department clarify whether Local
WDBs must implement each element outlined in the WIOA definition and
stated that WIOA does not indicate whether the identification of career
pathways as part of the assessment and individual service strategy
would create any additional requirements for local areas or youth
service providers. Some of these commenters also recommended that the
regulation clarify that the WIOA sec. 3(7)(C) requirement relating to
counseling does not create an affirmative requirement for Local WDBs or
youth service providers to provide counseling to every individual, but
only to the extent that such counseling
[[Page 56174]]
would be consistent with the objective assessment and the ISS.
One commenter agreed that Local WDBs should foster relationships
with secondary and postsecondary education providers regarding the
implementation of local career pathway strategies, stating that because
of the shift in focus to OSY, Local WDBs should consult with experts
that understand youth needs to design effective career pathway
strategies.
Department Response: The Department agrees that additional guidance
is necessary to describe WIOA requirements for incorporating career
pathways into the WIOA title I youth program, although the Department
has determined that additional regulatory text on career pathways is
not necessary. The Departments of Labor, Education, Health and Human
Services in coordination with nine other Federal agencies plan to
provide additional guidance and technical assistance on the
implementation of career pathways in WIOA.
Follow-Up Services
Comments: A couple of commenters expressed concern that proposed
Sec. 681.420(a) listed follow-up services as part of the design
framework services and proposed Sec. 681.460(a)(9) listed follow-up
services as 1 of the 14 program elements because design framework
services do not have to be procured, while program elements do. These
commenters requested that the Department clarify that youth program
operators have the flexibility to include follow-up services in the
design framework or as a youth program element.
Department Response: The Department clarified the procurement
requirements for all program elements, including follow-up services, in
Sec. 681.400.
Involvement of the Community
Comments: One commenter requested that the Department clarify the
term ``actively involved'' in the proposed Sec. 681.420(g) requirement
that Local WDBs ensure ``that parents, youth participants, and other
members of the community with experience relating to youth programs are
actively involved in both the design and implementation of its youth
programs.'' Another commenter stated that requiring those individuals
be ``actively involved'' is overly prescriptive and not required in
legislation. The commenter expressed concern that public meetings allow
open access and it would be impossible to ensure engaged participation.
Department Response: The Department agrees with this comment and
has deleted the word ``actively'' from the Final Rule.
Comments: Another commenter recommended that the Department amend
Sec. 681.420 to better reflect the diverse range of stakeholders and
perspectives of youth with disabilities. Specifically, this commenter
recommended that the requirement that specific members of the community
be involved with the establishment of program design should include
youth with disabilities.
Department Response: The Department has not added additional
language based on this comment as Sec. 681.420(c)(6) already
specifically names local disability-serving agencies.
Pay-for-Performance
Comments: One commenter asked about the performance and reporting
requirements of the pay-for-performance provision, specifically whether
the Department will change how States report.
Department Response: The Department plans to issue further guidance
about the Pay-for-Performance contract strategies provision of WIOA and
the requirements of subpart E of part 683.
Section 681.430 May youth participate in both the Workforce Innovation
and Opportunity Act (WIOA) youth and adult programs concurrently, and
how do local program operators track concurrent enrollment in the WIOA
youth and adult programs?
This section provides that youth may participate in both the WIOA
youth program and the adult program at the same time if they are
eligible for both and it is appropriate. The section also provides that
youth who are eligible under both programs may enroll concurrently in
WIOA title I and II programs.
Comments: Several commenters expressed support for the proposed
language that clarifies that youth may be co-enrolled in WIOA title I
and II programs. However, many of these commenters also recommended
that the Department strengthen the language to encourage Local WDBs to
incorporate co-enrollment with other core programs as part of the
overall youth program design. One of these commenters also stated that
co-enrollment would create difficulties in terms of data collection and
capacity. Specifically, this commenter said that to move successfully
between systems without significant disruption, data collection, and
storage must track the individual youth themselves, instead of just the
programs they are in. This commenter suggested that additional funding
and technical support may be necessary to assist States and local areas
in developing comprehensive data systems.
Some commenters also expressed their support of the proposed
regulations' encouragement of co-enrollment, especially because of how
it could extend more services to OSY. However, these commenters
expressed concerns that potential disincentives for co-enrollment exist
related to inconsistencies across funding streams in how enrollment,
exit, and participation in activities are defined and how performance
is measured in programs across the different titles.
Department Response: The Department acknowledges the concerns
regarding disincentives for co-enrollment due to data tracking issues
and performance measure implications. However, the Department intends
to provide additional guidance and technical assistance to support co-
enrollment across core programs. No changes were made to the regulatory
text to reflect these comments.
Comments: One commenter expressed its support for the proposed
regulation's allowance of dual eligibility in WIOA title I and II
programs, but recommended that the Department issue additional guidance
to Local WDBs about how to coordinate their resources effectively for
individuals who could co-enroll in both title I and title II services.
Further, this commenter asked the Department for clarification as to
whether co-enrolled individuals would need Individual Training Accounts
(ITAs) and whether States should have to maintain documentation of
providers who have expertise in services under both titles I and II. A
few commenters expressed their support for the option of co-enrollment
in WIOA title I and II programs, stating that this allowance would be
particularly beneficial for youth under the Deferred Action for
Childhood Arrivals policy who have not yet received their high school
equivalency certificate because their participation in youth services
under title I could further instill in them a greater educational work
ethic. Further, these commenters recommended that the Department search
for potential methods for how State and Local WDBs could recruit and
ensure that they are providing services to eligible immigrants.
Department Response: On November 17, 2015, the Department provided
preliminary guidance regarding partnering between WIOA titles I, II,
[[Page 56175]]
and IV in TEGL No. 08-15 (``Second Title I WIOA Youth Program
Transition Guidance''), which can be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
The Department will provide additional technical assistance
regarding partnering across the WIOA programs on an on-going basis,
including services to eligible immigrants. No changes were made to the
regulatory text in response to these comments.
Comments: Another commenter recommended tracking expenditures
individually by each program.
Department Response: The Department already does require tracking
expenditures by each program, and no changes were made to the
regulatory text in response to this comment.
Section 681.440 How does a local youth program determine if an 18 to 24
year old is enrolled in the Workforce Innovation and Opportunity Act
(WIOA) youth program or the WIOA adult program?
Individuals aged 18 to 24 are eligible for the WIOA adult and youth
programs. This section provides that local youth program needs to
determine whether to enroll an 18 to 24 year old in the youth program
or adult program based on the individual's career readiness as
determined through an assessment of his or her occupational skills,
prior work experience, employability, and participant needs.
Comments: A commenter recommended that, given the intent of WIOA,
individuals should be able to determine the programs in which they will
participate. However, this commenter further recommended that the
Department modify the proposed language to give guidance to States in
terms of how to present materials on program choice to individuals and
ensure that the materials presented would be understood by a wide
variety of individuals, including those with disabilities.
Another comment stated that determining in which program an 18 to
24 year old should enroll would impose a burden on local areas to
establish processes to ensure that services are provided to an
individual in the appropriate program.
A commenter suggested that, in cases of eligibility for co-
enrollment in WIOA title I and II activities, it would not be suitable
for an 18 to 24 year-old youth to be enrolled in the adult program
without first undergoing an assessment to determine whether the adult
program would be appropriate for meeting his or her needs.
Department Response: The Department does not intend to require
local WDBs to establish specific processes to ensure that individuals
are served in the appropriate program. Rather the Department wants to
emphasize that youth may be served by either program depending on the
young adult's individual needs, knowledge, skills, and interests. Local
WDBs need a process in place to assist in determining the appropriate
program for participants between the ages of 18 and 24.
Based upon the comments received, the Department updated the Final
Rule and removed the word ``objective'' from in front of assessment to
indicate that a formal evaluation is not needed and the Department
removed the reference to WIOA sec. 129(c)(1)(A).
Section 681.450 For how long must a local Workforce Innovation and
Opportunity Act youth program serve a participant?
The Department has continually provided guidance and direction that
youth programs serve participants for the amount of time necessary to
ensure they are successfully prepared to enter postsecondary education
and/or unsubsidized employment. While there is no minimum or maximum
time a youth can participate in the WIOA youth program, programs must
link program participation to a participant's ISS and not the timing of
youth service provider contracts or program years.
Comments: Some commenters expressed their support for the proposed
regulations' allowance to serve youth until their needs have been met,
stating that this would alleviate stress on participants from having to
deal with time constraints.
A few of these commenters also stated, however, concerns about the
use of the word ``must.'' These commenters recommended that the
language be amended to say, ``Local youth programs must provide service
to a youth participating in their individual service strategy in good
faith for the amount of time necessary to ensure successful preparation
to enter postsecondary education, registered apprenticeships, and/or
unsubsidized employment.''
In addition to allowing an individual to remain enrolled in WIOA
youth services until he or she completes his or her plan of service, a
commenter recommended that youth may remain enrolled in their services
regardless of whether they are experiencing a period of inactivity in a
program, as long as they are active in their career counseling
services.
Another commenter stated that the proposed regulations would not
allow individuals who do not abide by the rules of their program to
discontinue services and re-enroll in the program as long as they were
within the age requirement. This commenter recommended that the
Department revise this regulation to focus on the needs of individuals
who must temporarily suspend their services for legitimate reasons.
Department Response: The Department recognizes that at times youth
face obstacles that make it hard for them to commit to a program,
however the services that all youth receive should still align with
their ISS. The program should review the ISS with the youth and
determine if the program has the appropriate services available for the
young adult. Additionally a youth may remain in the program for as long
as he or she is receiving at least one program element, other than
follow-up services. Therefore, because WIOA sec. 129(c)(2)(M) includes
career counseling services, the scenario described above with a youth
only participating in career counseling would be acceptable under the
Final Rule. No change has been made in the regulatory text in response
to these comments.
Comments: Two commenters requested additional clarification from
the Department about how they would measure and explicitly define
``successful preparation to enter postsecondary education and/or
unsubsidized employment.'' One of these commenters further recommended
that they not measure successful preparation by an individual's actual
entry into either postsecondary education or unsubsidized employment,
stating that there may be outside, uncontrollable factors that are
preventing them from engaging in those activities, other than their
level of readiness.
Department Response: The required reported outcomes for individuals
entering postsecondary education and/or unsubsidized employment do not
differ from the other WIOA youth program performance indicators.
Additional information on required performance indicators is found in
20 CFR part 677 (see Joint WIOA Final Rule).
Section 681.460 What services must local programs offer to youth
participants?
This section lists the 14 program elements, including 5 new youth
program elements in WIOA sec. 129(c)(2) that were not included under
WIA. These new elements are (1)
[[Page 56176]]
education offered concurrently with and in the same context as
workforce preparation activities and training for a specific occupation
or occupational cluster; (2) financial literacy education; (3)
entrepreneurial skills training; (4) services that provide labor market
and employment information about in-demand industry sectors or
occupations available in the local area, such as career awareness,
career counseling, and career exploration services; and (5) activities
that help youth prepare for and transition to postsecondary education
and training. In addition, WIOA revised some of the WIA program
elements. For example, the element on tutoring, study skills training,
and instruction leading to the completion of secondary school,
including dropout prevention strategies, has been revised to provide
that the dropout prevention (and recovery) strategies must be evidence-
based and to make clear that the completion of secondary school can be
accomplished by attainment of a secondary school diploma or its
recognized equivalent, including a certificate of attendance or similar
document for individuals with disabilities.
WIOA also combines the two WIA elements of summer youth employment
programs and work experiences so that summer youth employment programs
become one item in a list of work experiences and adds pre-
apprenticeship programs to the list of work experiences. Finally, WIOA
expands the description of the occupational skill training element to
provide for priority consideration for training programs that lead to
recognized postsecondary credentials that are aligned with in-demand
industry sectors or occupations if the programs meet WIOA's quality
criteria. This change is consistent with WIOA's increased emphasis on
credential attainment. The section clarifies that while local WIOA
youth programs must make all 14 program elements available to WIOA
youth participants, local programs have the discretion to determine
which elements to provide to a participant based on the participant's
assessment and ISS.
The Department received many comments, which are discussed below,
on provisions within Sec. 681.460.
Comments: A commenter asked for clarification from the Department
regarding the reasons for WIOA's increase in the number of required
program elements that a local area must be able to provide. Another
entity commented that not all of the 14 proposed program elements are
available in every local area, citing mentorship programs as a primary
example.
Another commenter stated that local areas should be allowed to
choose which of the 14 program elements to provide, reasoning that
local areas will have the best insight into what is needed for the
individuals in their particular area.
Department Response: The Department understands that in some local
areas it takes effort to identify quality providers for all program
elements; however, WIOA explicitly requires these 14 elements for youth
programs. While all 14 program elements must be available in a local
area, every youth does not have to receive every element. For instance,
only youth that have mentoring included on their ISS need to receive
the program element.
The Department acknowledges that in some areas mentoring is
particularly challenging and has changed Sec. 681.490 to allow case
managers to serve as adult mentors.
Comments: Another commenter recommended that the Department clarify
that youth programs may bring in multiple public/private partners and
evidence-based programs that support the attainment of a secondary
school diploma or its recognized equivalent, entry into postsecondary
education, and career readiness for participants.
Department Response: The Department agrees that partnering with
other organizations to provide some program elements can be valuable
and has added Sec. 681.460(c), that reads, ``When available, the
Department encourages local programs to partner with existing local,
State, or national entities that can provide program element(s) at no
cost to the local youth program.''
Comments: One commenter said that services offered to an individual
must be in the area where the youth live because too often programs'
inability to relieve transportation challenges has resulted in program
non-completion. The commenter suggested that the Department include
language regarding the need for State and Local WDBs to support
investments in transportation services and program operations beyond
non-traditional hours of operation.
Department Response: The Department recognizes the need for program
operation during non-traditional hours as well as the challenge
transportation presents across the country. As described in Sec.
681.570(b) supportive services may include transportation costs. The
Department did not change the proposed regulation, though through
technical assistance it will emphasize the possibility of using WIOA
funds to cover transportation needs.
Comments: Another commenter recommended that the Department clarify
that providers must incorporate a number of items in their dropout
recovery services (proposed Sec. 681.460(a)(2)), such as credit
recovery opportunities leading to postsecondary education; flexible
scheduling; various learning models; performance-based assessments;
mentoring; and ``comprehensive'' support service.
Department Response: The Department recognizes the value of dropout
recovery services for youth and its success in reconnecting
disconnected youth. Because many of the items suggested by the
commenter are either WIOA program elements or allowable under other
program activities, the Department decided not to change the regulatory
text about alternative secondary school services. The Department plans
to provide technical assistance on the program elements, including
those that contain dropout recovery services.
Comments: One commenter recommended that, in order to clarify that
neither the Governor nor the State WDB should impose policies that
require a sequence of services, the Department should revise proposed
Sec. 681.460(a)(3) to clarify that ``academic and occupational
education as a component of work experience'' may be provided on a
concurrent or sequential basis based upon a participant's ISS, stating
that local areas should have the flexibility to meet participants'
individual needs.
Department Response: The Department concurs that youth may receive
academic and occupational education as a component of work experience
on a concurrent or sequential basis based upon the ISS. The Department
included new language in the Final Rule text of Sec. 681.600(b) that
clarifies that the academic and occupational education of work
experience may occur on a concurrent or sequential basis.
Section 681.470 Does the Department require local programs to use
Workforce Innovation and Opportunity Act funds for each of the 14
program elements?
This section clarifies that local WIOA youth programs must make all
14 program elements available to youth participants, but not all
services must be funded with WIOA youth funds. Local programs may
leverage partner resources to provide program elements that are
available in the local area. If a local program does not fund an
activity
[[Page 56177]]
with WIOA title I youth funds, the local area must have an agreement in
place with the partner to offer the program element and ensure that the
activity is connected and coordinated with the WIOA youth program if
enrolled youth participate in the program element.
Comments: A few commenters suggested the proposed language would
require that local programs that are not using WIOA funds to fund an
activity establish agreements with the partner with which they are
engaging in the activity. These commenters stated that a referral
should be sufficient in this case, adding that if services outside of
WIOA funding streams are present in the community, an agreement would
be unnecessary and is overly regulative.
Department Response: While the Department does not require a local
youth service provider to pay for all program elements, the Department
does require the program elements provided to a youth to align with the
goals the youth set forth in the ISS. Case managers must update the ISS
on an on-going basis and document, among other items, the services
provided and participant's progress, activities completed, benchmarks
reached, and any other accomplishments. Case managers must document
this information regardless of who provides the element. Therefore, the
Department did not change the proposed regulation; the information
needed for the ISS necessitates an agreement between the partner
organization and the program.
Comments: A couple of commenters asked for clarification regarding
the proposed regulations' requirement for the creation of agreements
between youth services providers and partner organizations outside of
WIOA funding. Specifically, these commenters asked for clarification
from the Department about what ``monitor'' means in this language, and
when this requirement would be necessary.
Department Response: The Department notes that the term ``monitor''
came from the NPRM preamble and was not a proposed requirement. It
appeared in the following context, ``By closely connected and
coordinated, the Department means that case managers must contact and
monitor the provider of the non-WIOA-funded activity to ensure the
activity is of high quality and beneficial to the youth participant.''
The case manager must check on the provider of the non-WIOA-funded
activity and make sure the youth participant gets quality services that
match the program, element requirements.
Comments: A commenter recommended that the Department issue
guidance on performance requirements and a reporting process for each
of the required youth program elements to help local areas and States
in the creation of their plans.
Department Response: The Department is including guidance and
specifics on the performance requirements and reporting through the ICR
process, which was done for 20 CFR part 677 (see Joint WIOA Final
Rule). The Department is providing additional information regarding the
required reporting of data elements, including each of the 14 youth
program elements through that process. More information is also
available in the Joint WIOA Final Rule discussion of 20 CFR part 677.
Section 681.480 What is a pre-apprenticeship program?
A pre-apprenticeship is a program or set of strategies designed to
prepare individuals to enter and succeed in a registered apprenticeship
program and has a documented partnership with at least one, if not
more, registered apprenticeship program(s).
Comments: A couple of commenters requested clarification regarding
what constitutes a partnership for the purposes of this section, asking
further whether it is direct entry into a partnership or whether a form
of collaboration would be sufficient for these purposes. Other
commenters sought clarification regarding pre-apprenticeship and
performance indicators.
Department Response: The Department further edited the pre-
apprenticeship regulation to provide a more detailed and consistent
explanation of the components of pre-apprenticeship programs as
described throughout this Final Rule. The type of required reported
outcomes for individuals engaging in pre-apprenticeship programs do not
differ from the other WIOA youth program performance indicators.
Additional information on required performance indicators is found in
20 CFR part 677 (see Joint WIOA Final Rule).
Section 681.490 What is adult mentoring?
This section describes the adult mentoring program element. The
Department received many comments on proposed Sec. 681.490 and made
changes to the Final Rule as discussed below.
Comments: A number of commenters recommended that the Department
provide flexibility for States in how the mentoring programs are
arranged and length of time participants receive mentoring. Some of
these commenters reasoned that adult mentoring is difficult for small
States to establish because mentoring services with which to partner
are not widely available and because of limited funds. With regard to
the language that would require the inclusion of a mentor other than
the individual's case manager (proposed Sec. 681.490(a)(3)), a
commenter suggested that a case manager should be suitable for
consideration as an individual's mentor if he or she is providing the
guidance and support that would be required of a mentor. This commenter
explained that in rural areas, mentoring programs are rare and
oversubscribed if they exist, so the WIOA case manager is, in fact, the
chief adult mentor for the youth.
In addition, several commenters did not like the proposed minimum
12-month requirement for adult mentoring (proposed Sec.
681.490(a)(1)), recommending that the length of mentoring should
instead be evaluated and defined on a case-by-case basis and determined
by the individual, his or her mentor, and his or her case manager. One
commenter said that the timeframe for adult mentoring is better suited
for local control to allow for direct assessment of participant needs.
Another commenter stated that the language in this section should be no
more prescriptive than the WIOA statute.
Department Response: Under WIA, most local areas were able to
secure qualified mentors, other than case managers, for youth
participants. Nonetheless, the Department acknowledges that in a few
areas of the country finding mentors may present a burden to a program.
While the Department strongly prefers that case managers not serve as
mentors, it changed the final regulation deleting proposed Sec.
681.490(a)(3), ``include a mentor who is an adult other than the
assigned youth case manager''. The Final Rule allows case managers to
serve as mentors in areas where adult mentors are sparse. Because WIOA
defines the length of time required for mentoring as not less than 12
months, no changes were made in the regulatory text.
Comments: Another commenter suggested that local areas study
evidence-based models that they may implement when designing their
mentorship programs. Suggesting that the purpose of adult mentoring
should be clarified to indicate expected results of the mentor
relationship and guide the types of activities and engagement that
should result. A commenter
[[Page 56178]]
recommended that the Department revise Sec. 681.490 to clarify that
adult mentoring should result in effectively engaging students in high-
quality, career relevant instructions and establishing clear
connections between work-based learning and classroom experiences.
Department Response: The Department supports the use of evidence-
based models. The Department anticipates that the expected outcomes of
a mentoring relationship will connect to the goals set forth in the
individual participant's ISS. Therefore, mentoring results will vary by
participant.
Citing their use of ``advocates'' in lieu of mentorship programs to
engage with youth, one commenter recommended that the Department amend
proposed Sec. 681.490 to include that mentorship services may include
activities such as providing transportation or transportation
assistance, aid in attaining work experience opportunities, court
advocacy, foster care support, tutoring help, fostering of community
relationships, and engagement with family.
Department Response: The Department affirms activities such as
providing transportation, aid in attaining work experience
opportunities, court advocacy, foster care support, tutoring help,
fostering of community relationships, and engagement with family care.
However, other WIOA youth program elements cover several of these
activities. While mentors may help participants attain their goals, the
additional suggested activities above go beyond the basic WIOA adult
mentoring requirements. No changes were made in the regulatory text in
response these comments.
Section 681.500 What is financial literacy education?
This section describes the financial literacy program element, new
under WIOA. The Department received many comments on the new program
element. Several of the comments described below resulted in changes to
the Final Rule text.
Comments: A few commenters expressed their support for the proposed
regulations' description of the elements of financial literacy
education. In particular, one expressed its support particularly for
the inclusion of identity theft education.
Some commenters stated that as the proposed language as written, it
appears as though all of the elements listed are requirements that must
be present within the financial literacy program element itself. These
commenters recommended that the Sec. 681.500 introductory language be
amended to State, ``The financial literacy education program element
may include activities which. . . .'' Similarly, another commenter
asked the Department to clarify that the list of activities for
financial literacy education (proposed Sec. 681.500) and
entrepreneurial skills training (proposed Sec. 681.560) are
illustrative and that each individual topic is not required for every
participant. Other commenters expressed their support for the proposed
language's flexibility regarding the activities related to financial
literacy education, and that the list included in the proposed
regulations is not required, but provides guidance. Alternatively, one
commenter recommended that the Department eliminate the requirements of
proposed Sec. 681.500(g) and (h), stating that these proposed
requirements are overly prescriptive and limit flexibility.
Department Response: The Department understands the commenters'
concern that providing all of the financial literacy sub-elements to
every participant that receives this program element may be overly
prescriptive. The Department anticipates each item will be available in
locations implementing a robust financial literacy program. However,
the Department did not intend for every youth to receive each sub-
element. Instead, every youth, based on his/her individual needs, would
receive many of the items included in this regulation. The actual
services delivered may vary by program participant. As a result, the
Department accepts the proposed language change and replaced ``must''
with ``may'' in the Final Rule.
Comments: One commenter recommended the addition of an element to
the list in proposed Sec. 681.500 to assist individuals about the
impact that employment has on their receipt of public benefits. This
commenter reasoned that educating individuals of this impact may lessen
the fear they may have of losing their Medicaid or other public
benefits if they are competitively employed. Another commenter
recommended that Sec. 681.500 should specifically state that for youth
who are receiving disability Social Security benefits, their financial
literacy education must include benefits planning and work incentives
counseling from a qualified provider.
Department Response: The Department concurs with the suggested
addition and added Sec. 681.500(g), ``Support activities that address
the particular financial literacy needs of youth with disabilities,
including connecting them to benefits planning and work incentives
counseling;'' to the Final Rule text.
Comments: One commenter shared that this proposed program element
requirement would place a burden on local areas related to identifying
a financial literacy program that includes an identity theft component.
Department Response: By changing ``must'' to ``may'' at the
beginning of Sec. 681.500, the Department addresses this commenter's
concern about finding a local entity that addresses identity theft.
Comments: Several commenters provided suggestions on how to
implement the element. In response to the Department's request for
comments on how to achieve the goal of equipping workers with the
knowledge and skills they need to achieve long-term financial
stability, one commenter recommended that the Department survey
programs that have been funded and implemented by companies and their
foundations in the financial services sector. Another commenter
responded that many banks have an effective financial literary
curriculum and recommended that the Department foster partnerships with
banks that would be willing to provide the curriculum for free to local
organizations.
Another commenter recommended that financial literacy education be
implemented in an online or in-person classroom setting where
retirement requirements, banking, debt, lease, and mortgage information
are covered. This commenter also suggested that these programs must
result in the issuance of certification of completion and should be
developed by a recognized financial planning authority, but not an
entity with investment products on the market.
Department Response: The Department has found that a number of
local and national entities want to help make this element relevant to
youth and a success. Many financial literacy tools and curriculums are
readily available for use and include formats that engage youth. The
Department has begun to provide technical assistance on financial
literacy element and has engaged with many Federal financial agencies
about supporting the public workforce system in implementing this
program element.
Comments: Citing a 2014 Consumer Financial Protection Bureau report
that described the components necessary for successful youth employment
programs, one commenter recommended that the Department amend the
language in this section from referring to ``financial literacy
education'' to using the term ``financial capability services,''
reasoning that the latter term would align more closely with the WIOA
[[Page 56179]]
requirement because it focuses on knowledge, skills, and access.
Further, this commenter recommended that the Department use the
definition provided by the President's Council on Financial Capability
to define financial capability services (``the capacity based on
knowledge, skills and access, to manage financial resources
effectively''). This commenter also recommended that the Department
ensure it is connecting youth employment programs with resources that
highlight best practices and financial institutions that could be key
partners. Regarding the measuring of financial capability outcomes for
youth programs, this commenter suggested that the Departments of Labor
and Education provide youth programs with resources and guidance to
ensure they are able to effectively track clients' progress and
outcomes and that workforce organizations also may need additional
tools and resources to improve the financial education services they
offer. Given the varied outcomes associated with the Sec. 681.500 list
of allowable financial literacy education activities, the commenter
encouraged States and localities to collect outcome data as related to
their provided service.
Department Response: The Department decided that a name change from
``financial literacy education'' to the term ``financial capability
services'' will confuse youth programs and did not change the
regulatory text. The Department continues to work with the Consumer
Financial Protection Bureau to help local areas implement this new WIOA
requirement with the goal of connecting youth employment programs with
resources, best practices, and financial institutions that can become
workforce partners. The Department captures information about youth
participating in this program element as described in WIOA State Plan
ICR and uses the same youth WIOA performance indicators discussed in 20
CFR part 677 (see Joint WIOA Final Rule). The Departments note that the
Governor also has the authority to identify, in their Unified or
Combined State Plan, additional performance accountability indicators.
Comments: A few commenters recommended that the Department grant
local areas the role of determining the necessary elements for
financial literacy education programs. Similarly, a commenter
recommended that the Department grant States the jurisdiction to create
their own policies regarding financial literacy education.
Department Response: With the change in the final regulation from
``must'' to ``may'' at Sec. 681.500, local areas may determine the
necessary elements for financial literacy education programs. The
Department analyzed the suggestion to give States the jurisdiction to
create their own policies regarding financial literacy education and
concluded that with the above regulation text change, it was not
needed.
Comments: Finally, a commenter requested clarification from the
Department concerning the difference between personal financial
literacy and entrepreneurial financial literacy. Further, this
commenter suggested that youth would be best served by learning
financial literacy through practice rather than pure instruction.
Department Response: The Department concurs that a hands-on
approach to financial literacy is best and entrepreneurial financial
literacy is one way to provide a practical financial literacy
application. The Department, along with other Federal partners, will
provide further technical assistance around this element.
Section 681.510 What is comprehensive guidance and counseling?
Comprehensive guidance and counseling provides individualized
counseling to participants. This includes drug and alcohol abuse
counseling, mental health counseling, and referral to partner programs,
as appropriate. (WIOA sec. 129(c)(2)(J).) When referring participants
to necessary counseling that cannot be provided by the local youth
program or its service providers, the local youth program must
coordinate with the organization it refers to in order to ensure
continuity of service.
Comments: Citing the activities that YouthBuild offers about
counseling services, a commenter stated the importance of counseling
and its beneficial impact on youth's success. Another commenter
requested clarification from the Department as to the credentials and
training that would be required for guidance counselors under the
proposed regulations.
Department Response: The Department acknowledges that accessing
counseling services impacts the success of many youth who receive
program services. The Department understands that counselors' education
and experience will vary depending on the type of guidance and
counseling offered and did not address it in the final regulation.
Comments: Citing the proposed language that would require that
local youth programs ``when referring participants to necessary
counseling that cannot be provided by the local youth program or its
service providers, the local youth program must coordinate with the
organization it refers to in order to ensure continuity of service,'' a
commenter said that coordination with multiple organizations would be
unnecessary and that a referral should be sufficient in and of itself.
Along the same line, a commenter asked for clarification concerning the
requirement that youth service providers collaborate with the outside
services they use for counseling in order to ensure the continuity of
service for individuals. This commenter requested that the Department
provide additional guidance for how service providers should interpret
these requirements.
Department Response: The Department views a referral as one part of
the comprehensive guidance and counseling element; the local service
provider must coordinate with the organization to which the referral
was made in order to ensure youth receive comprehensive services. The
Department plans to provide additional technical assistance on
comprehensive guidance and counseling. No changes were made to the
regulatory text in response to this comment.
Comments: A commenter asked for guidance from the Department about
whether comprehensive guidance and counseling encompasses academic
counseling as is stated in Sec. 681.510, suggesting that it is not
included in the language in Sec. 681.460.
Department Response: The Department considered this input and
agreed with the commenter that the proposed regulation duplicated
counseling types found in other program elements. As a result, the
Department removed ``career and academic counseling'' from the
comprehensive guidance and counseling element.
Section 681.530 What are positive social and civic behaviors?
While WIA included positive social behaviors as part of the
description of leadership development opportunities, WIOA adds ``civic
behaviors'' to the description of the leadership development program
element. This section provides examples of positive social and civic
behaviors.
Comments: Citing the list of positive social and civic behaviors
that YouthBuild programs are based on, a commenter expressed their
support over the proposed list of behaviors and recommend that WIOA
youth services programs incorporate their list into the proposed
regulations. On the other hand, citing the language listing some of
[[Page 56180]]
the indicators of positive social and civic behaviors, a commenter
stated that only paragraph (i), ``positive job attitudes and work
skills,'' is measurable and relevant to the goal of workforce training.
This commenter suggested that the other listed potential indicators of
these behaviors are irrelevant, and that paragraphs (h) and (j) could
be considered inappropriate.
Department Response: Comprehensive in nature, the WIOA youth
program provides a wide array of supports and services. The Department
finds the sub-elements in positive social and civic behaviors relevant
and connected to the workplace traits employers seek. It recognizes
that the list is not all-inclusive and other personal attributes
contribute to positive social and civic behavior. The Department did
not add additional items to the final regulation. Noting the strong
objection to proposed paragraphs (h) and (j), the Department did delete
proposed paragraphs (h) (``Postponing parenting and responsible
parenting, including child support education'') and (j) (``Keeping
informed in community affairs and current events'') from the final
regulation text.
Comments: A commenter suggested that the behaviors in this section
would be difficult to measure, which may result in the measurement
through default indicators such as the individual didn't get arrested
or isn't a youth parent.
Department Response: The Department appreciates the commenters
concerns about the difficulty of measuring positive social and civic
behaviors. From the Department's perspective these behaviors contribute
to characteristics that businesses seek in their employees. No change
is made in the regulatory text in response to this comment.
Section 681.540 What is occupational skills training?
This section provides a definition for the occupational skills
training program element. WIOA sec. 129(c)(2)(D) further sharpens the
focus on occupational skills training by requiring local areas to give
priority consideration for training programs that lead to recognized
postsecondary credentials that align with in-demand industries or
occupations in the local area.
Comments: Commenters expressed concern that the regulations in the
section are too prescriptive, stating that the attainment of
postsecondary credentials or other credential training would be
inappropriate for some individuals. Further, this commenter suggested
that as they are written, the proposed regulations would not allow for
training that would be a step towards a postsecondary degree but does
not in and of itself result in one. Similarly, a couple of commenters
expressed their support for the proposed regulations' emphasis on
occupational skills training, but stated their concern with the
language that requires that all occupational skills training result in
a postsecondary level education. The commenters suggested that
requiring postsecondary education would not be appropriate for
everyone, and recommended that instead, the regulations allow for
individuals to result in one of the three options instead of all three.
This commenter further recommended that the language, ``. . . result in
the opportunity to obtain a recognized postsecondary credential, or a
certificate of job readiness, or an industry credential,'' be added to
the section.
Department Response: The Department notes the concerns around
occupational skills training needing to result in attainment of a
recognized postsecondary credential. The Department has changed this
language in the Final Rule to state that occupational skills training
must lead to the attainment of a recognized postsecondary credential.
Comments: One commenter recommended that the Department clarify
that service providers should put into effect activities that include
work experience to prepare for employment that leads to self-
sufficiency, a sequenced series of work-based learning opportunities, a
college and career ready curriculum, dual enrollment, and supplemental
instruction.
This commenter also recommended that the implementation of these
activities should result in collaboration between WIOA youth service
providers, Local WDBs, and educational institutions.
Department Response: The Department concluded that these
recommendations are more appropriate for technical assistance; as such,
no changes were made in the regulatory text in response to these
comments. The Department will provide guidance and technical assistance
on all program elements, including occupational skills training.
Comments: A commenter recommended that the Department modify the
proposed text to state, ``. . . and result in attainment of a
recognized postsecondary credential, job readiness certificate, or
industry credential,'' suggesting that this language would still
encourage individuals to participate in experiences that will help them
to gain certifications and credentials, but gives them flexibility they
may need to demonstrate success, depending on their choice of field.
Department Response: The Department modified Final Rule text, as
discussed above, regarding the attainment of a recognized postsecondary
credential. An ``industry credential'' is encompassed in the term
``recognized postsecondary credential.'' A job readiness certificate
relates to foundational work readiness skills and does not result from
occupational skills training. Therefore, the Department did not
incorporate language referring to a job readiness certificate in the
regulatory text.
Comments: Another commenter requested that the Department include
entry-level career preparation training services that are taught or led
by regionally accredited secondary-level education programs.
Department Response: The Department determined that career
preparation services are not a type of occupational skills training and
did not make a change in the regulatory text in response to this
comment.
Section 681.550 Are Individual Training Accounts permitted for youth
participants?
This section allows ITAs for OSY aged 16 to 24.
The Department received a number of comments about ITAs that
resulted in a final regulation change discussed below.
Comments: A number of commenters expressed their support for the
allowance of OSY aged 18-24 to use ITAs in the proposed regulations.
Many commenters suggested that the allowance of these ITAs is important
for youth aged 18-24, as they may be receiving services from multiple
WIOA title funding streams. A few commenters expressed their support
for the use of ITAs for both ISY and OSY. Further, stating that it
would reduce the burden of duplicative administrative work, a few
commenters recommended that the proposed regulations be amended to
allow ITAs for youth aged 18-24.
A commenter offered that ITAs be expanded to include OSY 16-24
instead of 18-24. This commenter said that individuals who drop out of
high school at 16 and have received their high school equivalency, are
left dislocated until they reach the age of 18 and can then pursue an
ITA, on-the-job training, or a career; therefore this commenter said
that lowering the age limit to 16 would allow these youth to remain
engaged.
A commenter requested clarification from the Department regarding
whether
[[Page 56181]]
or not OSY with ITAs would have to use the State permitted Eligible
Training Provider List (ETPL) under these proposed regulations.
Two commenters requested clarification from the Department
regarding ITAs for OSY. A commenter stated that the proposed
regulations indicate that only OSY would be allowed to use ITAs, but
that the regulations also include occupational skills training as one
of the 14 required youth program elements. This commenter asked the
Department to explain what the difference would be in using an ITA or
occupational skills services for an ISY who has graduated from high
school and wants to pursue a postsecondary education. This commenter
further requested guidance from the Department concerning how providers
could provide occupational skills training service to all WIOA eligible
youth, regardless of whether they are ISY or OSY.
Stating that ITAs can help to close the gap between Federal
contracting requirements and individuals with disabilities, a commenter
recommended that this section be modified to encourage State and Local
WDBs to connect Federal contracts with youth with disabilities and use
ITAs for meeting employer requirements.
Department Response: The Department analyzed the comments received
and expanded the ITA language to allow all OSY, ages 16-24, access to
ITAs. Upon reflection of the above comments, the Department concluded
the final regulation change made policy and administrative sense by
expanding training options, increasing program flexibility, enhancing
customer choice, and reducing paperwork for all OSY. When using youth
funds for ITAs, the Eligible Training Provider List (ETPL) must be
used. Accessing the ETPL allows the program to avoid further
procurement processes.
The Department did not expand ITAs to ISY. However, ISY ages 18 or
older may access ITAs through the adult program.
Finally, the Department did not change the regulatory text to
encourage State and Local WDBs to connect Federal contracts with youth
with disabilities because the request is outside the scope of ITAs. The
Department will provide further guidance on youth ITAs and related
topics.
Section 681.560 What is entrepreneurial skills training and how is it
taught?
This section discusses entrepreneurial skills training, a new
program element under WIOA. The Department received a number of
comments on the proposed entrepreneurial skills training regulation
which resulted in a minor word change in the final regulation as
explained below.
Comments: Two commenters expressed their support over the proposed
examples of entrepreneurial skills training activity options. In
contrast, a number of commenters stated that the Department should not
be dogmatic in determining specific methods and processes for how
entrepreneurial skills would be taught under the proposed regulations.
Department Response: The Department did not intend to be limiting
in the list of ways to develop entrepreneurial skills. To emphasize
that this list is not all-inclusive, the Department added the word
``may'' to the final regulation at Sec. 681.560(a).
Comments: Several commenters provided thoughts on other skills to
develop under this program element as discussed in the next several
paragraphs.
One commenter shared its support of the inclusion of
entrepreneurial skills training, citing the programs it has created in
its State and programs that engage with small business centers,
suggesting that the Department should use such services and programs
for teaching these skills. Another commenter recommended that the
Department use Junior Achievement and other organizations in their
entrepreneurial skills training services, and stated that the
Department also should include presentations and training sessions from
local entrepreneurs in their skills training programs.
Similarly, a commenter expressed their support of the inclusion of
entrepreneurial skills training in the proposed regulations. This
commenter further cited: Experiences that provide individuals with the
knowledge of how to start their own business, the creation of a
business plan, education on applying for loans and grants for business
operations, and experiences related to running a business day-to-day,
as potential activities used to teach individuals entrepreneurial
skills.
A commenter recommended that healthy relationship skills classes be
included in the entrepreneurial training program, stating that building
strong and healthy relationships are a key component to being a
successful entrepreneur.
In addition, a commenter recommended that Local WDBs use
experiential learning programs to teach individuals entrepreneurial
skills, stating that using hands-on experiences is most effective for
training individuals. Further, this commenter specifically recommended
that entrepreneurial skills training include the following: Education
assessment and pathway identification; leadership development
activities; and soft skills training based on industry demand.
A commenter expressed its support over the inclusion of these
skills training, and recommended that it include the development of
business plans and lessons on the various ways an entrepreneur can
obtain start-up funding.
Department Response: The Department acknowledges the many
suggestions about how to local area may provide entrepreneurial skills
training in a meaningful, relevant way to youth. The Department will
provide technical assistance on this new element.
Comments: A commenter recommended that the Department amend the
proposed language so that ``enterprise development'' is removed as a
skill that would be included in this entrepreneurial training, and be
replaced with ``crowd-funding,'' sharing that crowd sourced funding
would be a more viable option if a youth individual were trying to
build a business as he or she would be unlikely to secure a loan.
Department Response: While the Department did not change the
regulatory text, the Department agrees with suggestion to include
skills such as ``crowd-funding'' that may be more relevant for the
youth population and will address them in future technical assistance.
Comments: A commenter wondered about the reliability of wages for
participants in these programs as well as how participants' wages would
be tracked, and requested clarification from the Department regarding
these issues.
Department Response: The Department notes that the performance
indicators for youth engaged in this program element remain the same as
the youth performance indicators explained in the joint regulation at
20 CFR part 677 (see Joint WIOA Final Rule).
Comments: A commenter requested clarification from the Department
about the definition of entrepreneurial skills training and what the
requirements are around certification at the program's completion.
Similarly, a commenter recommended that the skills and techniques
involved with
[[Page 56182]]
entrepreneurial skills training should be in line with local
postsecondary school curriculums and standards.
Department Response: Postsecondary institutions and other training
providers that develop entrepreneurial programs are best positioned to
identify standards upon which certificates could be awarded. No changes
were made in the regulatory text in response to this comment.
Comments: Another commenter asked the Department if entrepreneurial
skills training would only be provided to older youth.
Department Response: Entrepreneurial skills training, similar to
the other youth program elements, is available to youth regardless of
age and must align with their ISS goals.
Section 681.570 What are supportive services for youth?
This section lists examples of supportive services for youth. The
Department received a few comments on proposed Sec. Sec. 681.570 and
680.900, which discusses supportive services in the context of adult
programs. The Department chose to align these regulations which
resulted in the addition of ``Assistance with books, fees, school
supplies, and other necessary items for students enrolled in
postsecondary education classes''; and ``Payments and fees for
employment and training-related applications, tests, and
certifications,'' to the regulation at Sec. 681.570(k) through (l).
Comments: One commenter recommended that the Department include
groceries, on-site meals, hygiene products, clothing, and items for
postsecondary education courses in the definition of supportive
services. Another commenter recommended that transportation be provided
to individuals in these programs, and that the transportation services
available should include transportation to one-stop centers. This
commenter stated that in some areas the one-stop center may be miles
away from where the youth providers are located, and reaching these
one-stop centers to receive necessary services may be difficult for
disengaged or homeless youth. This commenter also recommended that food
services (other than food banks and soup kitchens) and subsidized
services for document attainment be provided as support services for
youth.
One commenter recommended that healthy relationship skills should
be included in the workforce development training programs for
disconnected youth, including supportive services. This commenter
reasoned that relationship skills help participants build crucial
interpersonal skills that are valued by employers and specifically
mentioned skills including communications, problem solving, conflict
resolution, reliability, and teamwork. The commenter also stated that
learning healthy relationship skills can help participants prevent
unplanned pregnancy and therefore avoid dropping out of school due to
pregnancy. A commenter recommended that the Department align supportive
services across the youth, adult, and dislocated worker programs.
Another commenter strongly supported the inclusion of legal aid
services in the Department's list of examples of supportive services in
Sec. 680.900, noting that legal aid can uniquely address certain
barriers to employment, including access to driver's licenses,
expunging criminal records, and resolving issues with debt, credit, and
housing.
Department Response: The Department analyzed the suggested
additions to supportive services and decided, as noted above, to add
three new paragraphs (h), (k), and (l) to the Final Rule. The
Department determined that some suggested items such as tutoring,
apprenticeship programs, work-place interpersonal skills, work-related
hygiene products and clothing attire, and addiction may be encompassed
by other program elements. Assistance with transportation is allowable
under supportive service. As discussed above, the Department has
included legal aid services under the list of supportive services in
Sec. 680.900 for the adult and dislocated worker programs; we made a
corresponding change to the list of supportive services allowable for
the youth program in Sec. 681.570 for the same reason as for the
addition to Sec. 680.900 and to align the list of supportive services
across programs. Groceries and on-site meals for program participants
are beyond the scope of WIOA.
Comments: Citing the language about supportive services in this
section, a commenter requested clarification from the Department
concerning whether needs related payments are allowed for youth aged
18-24 in WIOA youth services.
Department Response: Yes, the Department affirms that needs related
payments are allowed for youth ages 18-24 enrolled in WIOA youth
services.
Section 681.580 What are follow-up services for youth?
This proposed section discusses the importance of follow-up
services and lists examples of follow-up services for youth.
The Department received a number of comments on this section as
discussed below.
Comments: A commenter expressed its support of the proposed
regulations in this section and another commenter expressed support
citing all of the benefits of follow-up services. Citing the benefits
and purposes behind follow-up services, another commenter agreed that
follow-up services can be extremely beneficial to youth and help to
ensure that they focus on and accomplish their long-term goals. Another
commenter expressed their support of the follow-up requirements, but
recommended that the Department create and distribute guidance to
States regarding how they should document an individual who is
unresponsive under the proposed regulations.
A couple of commenters expressed concern over the requirements for
follow-up services, suggesting that often when youth no longer access
services, they no longer communicate with their providers, regardless
of the efforts of the case manager. Therefore, these commenters
recommended that States' youth follow-up activities be evaluated on the
quality of follow up services provided to engaged youth and not be
viewed negatively when follow up does not happen. Further, these
commenters recommended that States be allowed to establish policies
that when a provider has exhausted all options in an attempt to engage
a youth individual in follow-up services with no results, he or she may
end follow-up activities. Likewise, one commenter recommended that in
instances where the service provider attempts to reach the individual
with no contact made for 90 days, he or she should be able to receive
an exemption or waiver for needing to provide follow-up services for
that individual.
A number of commenters expressed concern with the proposed
regulations, suggesting that the language concerning follow-up services
should give more flexibility and account for those individuals who have
moved and provided no contact information. These commenters recommended
that in situations such as those stated above, follow-up contact
attempts should end, and the attempts to make contact should be
documented. One of these commenters also suggested that if multiple
attempts at contact are made with no response, the provider should not
be punished for being unable to contact the individual. Further, some
of these commenters recommended that the regulations be modified to
reduce the 12-month minimum to 6 months. Another commenter stated that
follow-up services should allow for decreasing
[[Page 56183]]
concentration for follow-up contact with individuals after 6 months
after end of enrollment in the program. Further, this commenter stated
that text messaging and contact through social media should be
considered contact for the purposed of follow-up services. Another
commenter recommended the Department not be overly prescriptive with
its follow-up services requirements.
Department Response: The Department recognizes the concerns that
some youth may not be responsive to attempted contacts for follow-up,
and other youth may be difficult to locate making it impossible to
provide follow-up services for such individuals. Based on the comments
received, the Department has added language to the regulatory text to
Sec. 681.580(c) clarifying that follow-up services must be provided to
all participants for a minimum of 12 months unless the participant
declines to receive follow-up services or the participant cannot be
located or contacted. This alleviates the concern expressed by many
commenters about youth who are not able to be located or who refuse
follow-up. Local programs should have policies in place to establish
when a participant cannot be located or contacted. The Department did
not incorporate the recommendation to reduce follow-up to 6 months as
WIOA sec. 129(c)(2)(I) requires follow-up services for not less than 12
months. The Department will issue further guidance on follow-up
services.
Comments: One commenter recommended that the Department create
guidance that would allow local areas to establish orientations for
youth participants that would inform them of the follow-up services and
recommended that the Department provide incentives for an individual's
participation in follow-up services. Stating that WIOA does not list
all of the youth services offerings as being available for follow-up
services, one commenter recommended that all WIOA program services be
available for any individual in their follow-up services. Another
commenter recommended that follow-up services should begin while an
individual is still enrolled in the program, suggesting that follow-up
services include supportive and other services that could ensure a
participant's success after the program. One commenter noted that the
follow-up services listed in this section are significantly more
intensive than under WIA and more closely resemble active programming
and recommended guidance on managing the transition from active
programming to follow-up services, particularly under the proposed
definition of ``exit'' in 20 CFR 677.150 (see Joint WIOA Final Rule).
Department Response: At Sec. 681.580(b), the Department clarified
which specific program elements may be provided during follow-up. The
Department plans to issue further guidance on follow-up services; it
will clarify that follow-up services do not trigger re-enrollment in
the WIOA youth program.
Comments: Another commenter recommended that the follow-up services
provided be concentrated on individuals gaining employment or
postsecondary education. A couple of commenters also recommended that
the Department clarify that incentive payments and supportive services
would be allowed to be provided to youth during the period of follow-up
services. Further, a commenter stated that in order to complete follow-
up services as they are currently written, youth providers would need
to be given additional funding.
Department Response: The Department clarifies in the regulatory
text that supportive services are allowed to be provided during follow-
up. Incentive payments are covered in Sec. 681.640.
Comments: One commenter recommended adding the following language
to this section, ``Follow-up plans should be set by youth and their
case manager allowing the youth to have an active voice in setting such
plans. Follow-up plans for youth should be re-assessed and flexible and
may include . . . ,'' saying that this language would encourage case
managers to educate the youth they are responsible for as to the
benefit of follow-up services and allow youth to become more engaged
with his or her services. This commenter also recommended that youth be
able to opt out of their follow-up services due to relocation without
negatively impacting the performance scores of their provider.
One commenter recommended that the language that states that
follow-up services must be ``provided'' by youth programs should be
amended to say that they must be ``offered.'' Finally, one commenter
recommended that during the required 12-month follow-up period,
multiple employees be allowed to administer follow-up services.
Department Response: As discussed above, the Department has amended
regulatory text to state that follow-up services must be offered to all
participants and added language to address participant relocation.
Section 681.590 What is the work experience priority and how will local
youth programs track the work experience priority?
The section discusses the 20 percent minimum expenditure
requirement on the work experience program element in WIOA sec.
129(c)(4) and how local WIOA youth programs track program funds spent
on work experiences and report such expenditures as part of the local
WIOA youth financial reporting.
The Department received a few comments on this section as discussed
below.
Comments: Multiple commenters expressed their support for this
section. One commenter requested that the Department clarify in the
proposed regulations that career pathways must lead to a postsecondary
credential, and that the requirements for these credentials will be
aligned with the current State college and workplace readiness
standards in place for each specific State. Another commenter expressed
their support for the proposed regulations' emphasis on work
experiences; however, this commenter further recommended that the
Department clarify in the regulations that youth service providers are
strongly encouraged to ``coordinate work experiences with employers
participating in industry or sector partnerships developed and
implemented in the local area.''
Department Response: The Department agrees that career pathways in
coordination with employers are important. The Department will continue
to emphasize employer engagement in career pathways in future guidance
or technical assistance. Please see TEN 17-15, building upon its
``Career Pathways Toolkit: A Guide for System Development'' (2015)
found at https://wdr.doleta.gov/directives/attach/TEN/TEN_17-15_Attachment_Acc.pdf.
Comments: A number of commenters expressed their concerns regarding
whether the proposed 20 percent work experience expenditure requirement
would include leveraged resources. These commenters stated the
requirement would negatively impact the support they receive from non-
WIOA funding streams and the proposed language would require them to
spend their WIOA funds first on work-based experience programs, which
could be detrimental to their ability to attract private funds. Thus,
the commenters recommended that the proposed regulations be amended to
allow waivers that would allow Local WDBs to count non-WIOA funds
towards the 20 percent work experience
[[Page 56184]]
expenditure requirement. Similarly, a few commenters recommended that
the 20 percent work experience requirement be extended to include other
funding sources, instead of relying only on WIOA funds to meet this
requirement. Some of these commenters further stated that staff who are
engaged in creating these strategies, as well as implementing them,
should also be included in the minimum 20 percent expenditure
requirement, while another commenters asked the Department to clarify
if staffing or administrative costs count toward the expenditure
requirement. Likewise, one commenter recommended that the academic
component of the work experience requirements can be included in the 20
percent expenditure requirement. Another commenter recommended that the
proposed regulations be amended so that the minimum 20 percent work
experience expenditure requirement also includes the administrative and
recruitment costs spent in order to place an individual in his or her
work experience. Conversely, a commenter suggested that staffing costs
should not be an allowable expenditure in the minimum 20 percent work
experience expenditure requirement; rather, funds should be focused on
direct participant costs.
Similarly, the Department received very few comments on Sec.
681.610. One commenter noted that Sec. 681.610 clearly states to not
include administration in this calculation which should be made
consistent with Sec. 681.590 instead of in a separate section of the
regulations. Another commenter recommended that the term ``incentives
payments'' be added to this section in order to ensure consistency.
Stating that in many cases local areas utilize funding from a variety
of funding sources, a few commenters recommended that Local WDBs should
be able to use these funds for the purpose of the costs included in
work experiences such as wages for individuals and training, and that
these funds should be included in the work experience minimum
expenditure requirement.
Department Response: The Department recognizes that it is important
to clarify further the types of expenditures that count toward the work
experience expenditure rate. The Department issued TEGL No. 08-15
(``Second Title I WIOA Youth Program Transition Guidance'') in November
2015, which can be downloaded at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm. The TEGL discussed the types of costs
that count toward the work experience expenditure requirement. The
Department has added Sec. 681.590(b) that describes the types of
expenditures that count toward the work experience minimum expenditure
requirement and how to calculate the minimum expenditure requirement.
Leveraged resources cannot count toward the expenditure requirement;
WIOA sec. 129(c)(4) clearly states that the expenditure requirement is
based on WIOA youth funds allocated to the local area. Because the
Department has incorporated the language from proposed Sec. 681.610
into Sec. 681.590, the Department deleted proposed Sec. 681.610 and
has renumbered proposed Sec. Sec. 681.620 through 681.660 as
Sec. Sec. 681.610 through 681.650.
Comments: A commenter recommended that the Department allow a
transition period for local areas to move funding to comply with the
minimum 20 percent expenditure requirement. Another commenter expressed
their support of the proposed emphasis on work experience, but
recommended that the language be strengthened to emphasize the
importance of connecting youth with disabilities to work experiences.
Department Response: The Department did not provide for a
transition period for the minimum expenditure requirement as part of
its guidance. The Department agrees on the importance of connecting
youth with disabilities to work experience opportunities and will
emphasize it in future guidance or technical assistance.
Section 681.600 What are work experiences?
The section defines the work experience program element and
includes the four work experience categories listed in WIOA sec.
129(c)(2)(C). The Department received a few comments on this section as
discussed below.
Comments: A commenter expressed its support for this section,
especially due to its inclusion of on-the-job training eservices.
Another commenter expressed its support for the proposed language in
this section, especially that the inclusion of both academic work
experience and occupation training are important for an individual's
success. A commenter expressed its support of the inclusion of a
variety of activities that could be included as work experience in the
proposed regulations, and one commenter expressed its support over the
allowance of on-the-job training as an appropriate work experience.
A number of commenters requested clarification from the Department
concerning the requirement that work experiences have to include
academic and occupational education experiences, whether those
education experiences can be provided by the individual's employer, and
whether the education experience has to be provided in the individual's
workplace. One of these commenters further recommended that these
experiences be allowed to take place outside of the traditional
workplace and could be provided by an educational provider other than
the employer. A few commenters recommended that the language stating,
``Work experience must include academic and occupational education'' be
amended to state, ``work experiences must not deter from a
participant's academic and occupational education goals. Ensuring all
youth receive academic and occupational education is at the forefront
of the goals of WIOA,'' suggesting that the current language's use of
the words ``and'' and ``must'' may dissuade individuals from
participating as they are at high risk and are concerned about feeding
their families. A commenter requested clarification from the Department
as to whom the occupational and academic training experiences must be
provided by and recommended that the regulations allow for the employer
to provide these training experiences. Further, this commenter
recommended that if these training and educational experiences incur
any costs, that they be included in the minimum 20 percent work
experience expenditure requirement.
Department Response: Based on comments requesting clarification on
the academic and occupational education component of work experiences,
the Department has added language to the Final Rule at Sec. 681.600(b)
clarifying that the educational component may occur concurrently or
sequentially with the work experience, and that the academic and
occupational education may occur inside or outside the work site. The
Department does not have any requirement about who provides the
academic and occupational education, and such education may be provided
by the employer. States and local areas have the flexibility to decide
who provides the education. Because WIOA states this program element as
``paid and unpaid work experiences that have as a component academic
and occupational education,'' the Department does not have the
flexibility to amend the regulatory text to the suggested ``work
experiences must not deter from a participant's academic and
occupational education.''
Comments: A commenter recommended that the Department remove the
following language from the
[[Page 56185]]
section, ``work experience may be paid or unpaid, as appropriate.'' The
commenter further recommended that the Department should clarify that
youth will be protected under the Fair Labor Standards Act and wage and
hour laws.
Department Response: WIOA sec. 129(c)(2)(C) states that work
experiences may be paid or unpaid. The Final Rule contains language
regarding the Fair Labor Standards Act at Sec. 680.180.
Comments: One commenter recommended that the Department clarify
skills needs and how to assess skill mismatches. This commenter
recommended more updates to the O*NET system and State/local work on
job vacancies, analysis of ``real time'' labor market information,
better projections data, new/emerging occupations, and wage record
research on use of occupational title enhancements.
Department Response: The Department agrees with the importance of
using labor market information to plan work experiences and will
continue to encourage its use in future guidance and technical
assistance.
Section 681.610 Does the Workforce Innovation and Opportunity Act
require Local Workforce Development Boards to offer summer employment
opportunities in the local youth program?
This section discusses that while summer employment opportunities
are an allowable activity and a type of work experience that counts
toward the work experience priority, they are not a required program
element as they previously were under WIA. Note that this provision was
proposed as Sec. 681.620. However, as noted above, because the
Department has incorporated the language from proposed Sec. 681.610
into Sec. 681.590, the Department deleted proposed Sec. 681.610 and
has renumbered proposed Sec. Sec. 681.620 through 681.660 as
Sec. Sec. 681.610 through 681.650.
The Department did not receive any comments on this section. No
changes were made to the regulatory text.
Section 681.620 How are summer employment opportunities administered?
This section discusses how summer employment opportunities are
administered. Note that this provision was proposed as Sec. 681.630.
However, as noted above, because the Department has incorporated the
language from proposed Sec. 681.610 into Sec. 681.590, the Department
deleted proposed Sec. 681.610 and has renumbered proposed Sec. Sec.
681.620 through 681.660 as Sec. Sec. 681.610 through 681.650.
The Department received only one comment on this section. The
commenter stated that in rural areas it would be more cost effective
for a case manager to arrange work experiences for youth than for the
provider to arrange a work experience through the procurement process.
This commenter asked for further clarification from the Department
regarding whether or not a case manager would arrange a work experience
during the school year.
Department Response: As discussed in Sec. 681.400, the Final Rule
clarifies that Local WDBs have the option of competitively procuring
youth service providers or providing services directly. This additional
flexibility will allow case managers to arrange work experiences
directly. This section includes language changes to be consistent with
the changes in Sec. 681.400, and to make it clearer that the
requirements of Sec. 681.400 apply to the selection of youth service
providers who administer the work experience program element in a local
area.
Section 681.630 What does education offered concurrently with and in
the same context as workforce preparation activities and training for a
specific occupation or occupational cluster mean?
This section describes the new program element at WIOA sec.
129(c)(2)(E): ``education offered concurrently and in the same context
as workforce preparation activities and training for a specific
occupation or occupational cluster.'' The Department notes that this
provision was proposed as Sec. 681.640. However, because the
Department has incorporated the language from proposed Sec. 681.610
into Sec. 681.590, the Department deleted proposed Sec. 681.610 and
has renumbered proposed Sec. Sec. 681.620 through 681.660 as
Sec. Sec. 681.610 through 681.650.
The Department received a few comments on this section as discussed
below.
Comments: A few commenters expressed their support for the proposed
language, particularly that the simultaneous offering of education
service and workforce training can help individuals to gain skills at a
much faster pace than if they were engaged in these activities
separately. One commenter expressed its support with this proposed
language and recommended that the Departments collaborate to ensure
that the language in the WIOA title II regulation in 34 CFR 463.37 is
aligned with the title I regulation in Sec. 681.630.
One commenter requested clarification from the Department regarding
the definitional language in this section. This commenter further
stated that the definitions for this program element and the work
experience program element need to be amended to provide more
distinction between the two if they are meant to be separate.
Another commenter recommended that the Department provide specific
examples of ``a high-quality, integrated education and training model
that requires integrated education and training to occur concurrently
and contextually with workforce preparation activities and workforce
training.'' This commenter further recommended a number of such
examples. This commenter also suggested that the involvement of youth
providers in these activities should help to create relationships
between the providers and CBOs.
A commenter suggested the Department include a statement that these
educational programs include entry-level workforce preparation and/or
preparation for recognized postsecondary education and training
activities.
Department Response: The Department plans to provide future
guidance on all of the WIOA youth program elements, including the
education program element defined in this section. The Department will
incorporate in the guidance some examples of high-quality integrated
education and training models and ensure consistency with the language
in 34 CFR 463.37. While the Department did not incorporate any
suggested additions to the regulatory text, it has made minor language
changes to this section to make the section clearer.
Section 681.640 Are incentive payments to youth participants permitted?
This section clarifies that incentives under the WIOA youth program
are permitted. The Department has included the reference to the Uniform
Guidance at 2 CFR part 200 to emphasize that while incentive payments
are allowable under WIOA, the incentives must be in compliance with the
requirements in 2 CFR part 200. For example, Federal funds may not be
spent on entertainment costs. Therefore, incentives may not include
entertainment, such as movie or sporting event tickets or gift cards to
movie theaters or other venues whose sole purpose is entertainment.
Additionally, there are requirements related to internal controls to
safeguard
[[Page 56186]]
cash, which also apply to safeguarding of gift cards, which are
essentially cash. As noted above, because the Department has
incorporated the language from proposed Sec. 681.610 into Sec.
681.590, the Department deleted proposed Sec. 681.610 and has
renumbered proposed Sec. Sec. 681.620 through 681.660 as Sec. Sec.
681.610 through 681.650.
Comments: A couple of commenters expressed support for the
allowance of incentive payments for youth, citing the effect they can
have on low-income and homeless individuals in WIOA youth services
programs as well as the positive effect incentive payments have on
YouthBuild programs.
One commenter requested clarification about whether incentive
payments would be allowed for activities other than just training and
work experiences, and for short-term youth programs. Further, this
commenter recommended that the Department give local areas flexibility
in the creation of their own policies for providing incentives to
youth. Another commenter recommended that the Department allow
incentive payments for youth engaging in the literacy and numeracy
post-tests for Program Year 2015.
A commenter expressed support of the inclusion of incentive
programs and support services for individuals in the WIOA youth
program, stating that the eligibility determination process is often
difficult for youth as they sometimes struggle to obtain documentation,
especially those who have experienced loss or abuse of their identity
documentation in the past. Therefore, this commenter recommended
providing incentives to youth for maintaining their documentation or
attempting to obtain their documentation. Further, this commenter
suggested that the Department should provide incentives to youth for
providing word-of-mouth marketing to their peers about the WIOA youth
services available, as incentives for referrals and recruitments could
be very beneficial to the Department's efforts to reach youth.
One commenter expressed concern with this section due to its
allowance for incentive payments only under the circumstances of work
experience and training activities. This commenter suggested that
incentive payments should be granted for achievements such as
employment placement and retention, or improvements marked by testing.
This commenter recommended that the incentive payments should be
granted in those circumstances and not on the basis of engaging in
training activities and work experiences. Similarly, a couple of
commenters expressed concern with the proposed regulation's allowance
of incentives for activities only related to training and work
experiences, and recommended that the language regarding incentive
payments not be amended from its original form in WIA and suggesting
that incentives are needed to reach and engage youth.
Department Response: While the Department recognizes the importance
of incentives as motivators for various activities such as recruitment,
submitting eligibility documentation, and participation in the program,
the Department concluded that incentives must be connected to
recognition of achievement of milestones in the program tied to work
experience or training. Such incentives for achievement could include
improvements marked by testing or other successful outcomes. While WIOA
funds cannot be used for incentives for recruitment and eligibility
documentation, local areas may leverage private funds for such
incentives.
Comments: Another commenter recommended that the Department amend
the proposed regulations to allow for incentive payment for ISY who
graduate from a regular high school, suggesting the current language is
inconsistent in its provision of incentives to students who receive
their high school equivalency or GED certificates, but not to those who
receive a traditional high school diploma. Further, this commenter
recommended allowing for the provision of incentive payment for youth
who participate or complete leadership activities, suggesting that not
offering incentives for leadership activities will infringe upon the
provider's ability to engage youth.
Department Response: There is no specific language in the
regulatory text limiting incentive payments to students who receive
their high school equivalency. Incentive payments may be provided to
both ISY and OSY as long as they comply with the regulations stated in
this section.
Comments: One commenter recommended that the Department amend the
language at the start of this section in order to make it more
encouraging. Specifically, this commenter recommended that the section
read, ``Incentive programs are crucial to keeping homeless and
disconnected youth engaged in programs and should be provided to youth
participants for recognition.''
Department Response: The Department agrees that incentives can be a
critical tool to keep youth participants engaged in the program.
However, no changes were made to the regulatory text in response to
this comment.
Comments: Another commenter recommended that a definition of
incentive payments should be added to this section to retain
consistency throughout the proposed regulations.
Department Response: The Department concluded that the existing
regulatory text adequately defines incentive payments. No further
definition is necessary in the Final Rule. The Department did make
minor edits to the first paragraph of the regulatory text to clarify
this section.
Section 681.650 How can parents, youth, and other members of the
community get involved in the design and implementation of local youth
programs?
This section discusses the requirement in WIOA sec. 129(c)(3)(C)
for the involvement of parents, participants, and community members in
the design and implementation of the WIOA youth program and provides
examples of the type of involvement that would be beneficial. The
Department also has included in this proposed section the requirement
in WIOA sec. 129(c)(8) that Local WDBs also must make opportunities
available to successful participants to volunteer to help other
participants as mentors or tutors, or in other activities. The
Department notes that this provision was proposed as Sec. 681.660.
However, as noted above, because the Department has incorporated the
language from proposed Sec. 681.610 into Sec. 681.590, the Department
deleted proposed Sec. 681.610 and has renumbered proposed Sec. Sec.
681.620 through 681.660 as Sec. Sec. 681.610 through 681.650.
Comments: The Department received a few comments on the proposed
regulation. One commenter suggested that the language in this section
be strengthened to show the importance of including individuals with
disabilities in the design and implementation of these programs,
stating that their involvement is vital.
One commenter suggested that making opportunities available to
youth peer volunteers be removed, and be replaced with language that
would make the service an option for Local WDBs to choose to make,
suggesting that the supervision and background investigation needed for
volunteers to provide services to youth would be potentially too costly
for WDBs and therefore shouldn't be a requirement. Another commenter
requested clarification from the Department
[[Page 56187]]
concerning the extent to which the population and community of an area
must be involved in the creation of these programs and services and the
type of involvement that is required of them, suggesting that requiring
the community to be involved is contradictory to the intent of WIOA,
which abolished the requirement of youth councils.
Department Response: No changes were made in the regulatory text in
response to these comments. The Department values the input of
individuals with disabilities. Nothing in the proposed regulation
precludes them from getting involved in the design and implementation
of a local youth program. The populations identified in the regulation
(parents, youth, and other members of the community) come directly from
WIOA sec. 129(c)(3)(C), which clearly states the intent to have them
involved in the design and implementation of the programs. The
Department understands that this might seem to contradict the law's
approach to youth councils; however, this requirement does not have the
time commitment and obligatory structures that were required of WIA's
youth councils. The Department will provide additional guidance and
technical assistance on involvement in youth program design and
implementation.
5. Subpart D--One-Stop Center Services to Youth
Section 681.700 What is the connection between the youth program and
the one-stop delivery system?
This section describes the WIOA youth program's required role in
the one-stop delivery system, and includes examples of the connections
between the youth program and the one-stop delivery system.
Comments: Several commenters expressed their support for these
provisions and their focus on collaboration across programs and the
requirement of WIOA youth programs to serve as a one-stop partner. A
number of commenters expressed their support for the regulations'
encouragement of partnerships between WIOA youth programs and one-stop
centers, suggesting that under WIA the one-stop delivery system was not
encouraging of youth engagement. These commenters further recommended
that the Department encourage training of one-stop operator staff for
effectively serving youth. Similarly, one commenter suggested that this
proposed language would require either equipping and training staff at
one-stop centers with information on serving youth, or colocation of
WIOA youth service providers at one-stop centers.
Department Response: The Department does encourage training of one-
stop operator staff and added language to the Final Rule at Sec.
681.700(c) encouraging one-stop center staff be trained to build their
capacity in serving youth.
Section 681.710 Do Local Workforce Development Boards have the
flexibility to offer services to area youth who are not eligible under
the youth program through the one-stop centers?
This section clarifies that Local WDBs may provide services to
youth through one-stop centers even if the youth are not eligible for
the WIOA youth program.
The Department received a few comments on this section as discussed
below.
Comments: One commenter expressed their support of the proposed
regulation's requirement that one-stop centers provide services for
individuals who are ineligible for WIOA youth programs, suggesting that
providing these services would allow for youth to receive services they
need while still working to obtain documentation that would make them
eligible for WIOA youth services.
A few commenters requested clarification regarding whether WIOA
youth program funding would be allowed to support these services at
one-stop centers without enrollment and whether Local WDBs would
provide youth services if they are ineligible for WIOA title I youth
services, and if so, which program would be funded through the
provision of those services. These commenters further recommended that
the Department give States the authority to use WIOA funding for the
purposes of supporting workforce market information and career
awareness education to ISY, as is indicated in this section under the
proposed regulations. Similarly, one commenter requested clarification
from the Department about whether WIOA youth funds could be used to
provide support for services if the support is for materials, general
information, or relationships with local businesses. This commenter
further recommended that the Department allow States to use WIOA youth
funds to support general labor market information to promote career
awareness for ISY, reasoning that providing this information would help
to prepare these ISY for their transition out of school and into their
career and/or postsecondary school.
Department Response: While providing labor market information and
career awareness are allowable uses of WIOA youth funds, WIOA youth
funds may be used to provide services only to eligible youth enrolled
in the WIOA youth program. As described in this section, one-stop
centers may provide basic labor exchange services such as the ones
suggested under the Wagner-Peyser Act to any youth.
Comments: Suggesting that often times individuals who are not
eligible for WIOA youth services fall within the eligibility of WIOA
adult services, a number of commenters recommended that Local WDBs be
required to ensure that youth aged 18-24 have access to one-stop center
services and are not simply referred to WIOA youth services instead.
Department Response: The Department agrees that youth aged 18-24
should have access to one-stop center services. The Department has
concluded that this recommendation does not necessitate any changes to
the Final Rule language and instead, will incorporate this
recommendation in future guidance or technical assistance. The Final
Rule adopts the provision as proposed.
F. Part 682--Statewide Activities Under Title I of the Workforce
Innovation and Opportunity Act
1. Introduction
WIOA provides a reservation of funds from the adult, dislocated
worker and youth programs to be undertaken by States, for statewide
activities. States have both required and allowable activities to be
undertaken on a statewide basis for adults, dislocated workers and
youth. These funds support States to innovate, continually improve
their comprehensive workforce programs, oversee a public workforce
system that meets the needs of job seekers, workers and employers, and
contribute to building a body of evidence to improve the effectiveness
of services under WIOA. WIOA designates the percentage of funds that
may be devoted to these activities from annual allotments to the
States--up to 15 percent must be reserved from youth, adult, and
dislocated worker funding streams, and up to an additional 25 percent
of dislocated worker funds must be reserved for statewide rapid
response activities. The up to 15 percent funds from the 3 funding
streams may be expended on employment and training activities without
regard to the source of the funding. For example, funds reserved from
the adult funding stream may be used to carry out statewide youth
activities and vice versa.
[[Page 56188]]
2. Subpart A--General Description
This subpart describes what is encompassed by the term ``statewide
employment and training activities.'' It explains that States have both
required and allowable activities to be undertaken on a statewide basis
for adults, dislocated workers and youth. States have significant
flexibility in the development of policies and strategies for the use
of their statewide funds.
Section 682.110 How are statewide employment and training activities
funded?
The Governor has authority to use up to 15 percent of the adult,
dislocated worker, and youth funds allocated to the State for statewide
activities. The regulation provides that the adult, dislocated worker
and youth 15 percent funds may be combined for use on required or
allowed statewide activities regardless of the funding source. These
activities are funded in the same manner as they were under WIA.
Comments: Several commenters expressed concern regarding the
appropriation-based restriction of 10 percent availability for the
required and allowable statewide activities. These commenters
recommended that funding be increased to a level that covers the costs
of the required activities and, at a minimum, that statewide funds be
fully funded at the 15 percent level. In addition, the commenters
recommended that the Department provide a waiver process for States on
required activities if the full appropriation is not made available.
Several of these commenters also suggested that the required State
activities would necessitate resources in excess of Federal funding,
and the program therefore could be considered an unfunded mandate.
Lastly, one commenter expressed confusion about whether subrecipients
may incur costs for administrative functions, as set forth in Sec.
683.215, with statewide activities funds.
Department Response: The allowable percentage of funding for
statewide activities is governed by the authorizations and
appropriations established by Congress, not by the Department.
Furthermore, the regulation contains no unfunded mandates as defined in
2 U.S.C. 658(b). Waivers are covered at Sec. Sec. 679.600 through
679.620, for waivers to States or local areas in a State, and at
Sec. Sec. 684.900 through 684.920, for waivers relating to Indian and
Native American programs. Waivers are considered on an individual basis
and granted as appropriate, with such conditions as the Department may
require. Subrecipients may incur costs for administrative functions
consistent with the administrative cost limitation provisions at
Sec. Sec. 683.205 and 683.215. No changes have been made to the
regulatory text as a result of these comments.
3. Subpart B--Required and Allowable Statewide Employment and Training
Activities
This subpart first discusses required statewide activities. WIOA
continues the activities that were required under WIA, but adds several
additional required activities, such as assistance to State entities
and agencies described in the State Plan, alignment of data systems,
regional planning, and implementation of industry or sector
partnerships. Required statewide activities under WIA and continued
under WIOA include: Dissemination of information regarding outreach to
businesses, dissemination of information on the performance and cost of
attendance for programs offered by ETPs, and conducting evaluations.
This subpart also discusses allowable statewide activities. The
Department provides States with a significant amount of flexibility in
how these funds may be used for statewide activities. States can test
and develop promising strategies. The regulation at Sec. 682.210 is
not designed to be an exhaustive list, but more illustrative of the
types of allowable statewide activities that may be provided with these
funds.
Section 682.200 What are required statewide employment and training
activities?
Comments: One commenter asked for a definition of ``non-traditional
training'' services and for the statutory basis for the requirement
that the ETPL include providers of nontraditional training services.
This commenter further stated that Sec. 682.200(b)(5) would require
collection and dissemination of cost of attendance information for
youth and for on-the-job and other training programs that is exempted
from the ETP requirements (WIOA sec. 122(h)), and asked what the
statutory authorization was for this requirement. Finally, this
commenter asserted that there was a conflict over proposed requirements
for these WIOA sec. 122(h) programs/data between proposed Sec. Sec.
682.200 and 680.340.
Department Response: Nontraditional training is defined as training
activities leading to employment in occupations or fields of work in
which individuals of one gender comprise less than 25 percent of the
individuals so employed. The statutory basis for this definition is
found in the definition of nontraditional employment at WIOA sec.
3(37). The statutory requirement for disseminating information
regarding the State list of eligible training providers of training
services (including those providing non-traditional training services)
is found at WIOA sec. 134(a)(2)(B)(v)(I). The Department has revised
Sec. 682.200(b)(5) for consistency with Sec. Sec. 680.490 and
680.530, which specify the reporting requirements for certain providers
of training services, such as providers of OJT.
Comments: The commenter stated that there might be a conflict
between proposed Sec. Sec. 682.200 and 680.350 and referred to the
title of Sec. 680.350 as ``What is meant by `provision of additional
assistance' in the Workforce Innovation and Opportunity Act?''
Department Response: There was no section numbered Sec. 680.350 in
the NPRM, and there is no conflict between the requirements of
Sec. Sec. 682.200 and 682.350. However, the commenter may have been
referring to the requirement of Sec. 680.340, specifically paragraph
(b), which states that the Local WDBs must make available to customers
the State list of eligible training providers required in WIOA sec.
122(e), including local area information on work based training
providers under WIOA sec. 122(h). This could be read to conflict with
Sec. 682.200(b), which includes disseminating the list of ETPs and
information identifying other eligible training providers of training
as a required statewide activity. There are two sections of WIOA that
cover the dissemination of the list of ETPs, secs. 134(a)(2)(B)(v) and
134(c)(3)(F)(ii). The first requires the State to disseminate the list.
The latter requires that Local WDBs make the list available through the
one-stop centers. Operationally, States are tasked with maintaining the
list and disseminating it to the Local WDBs. The task of the Local WDBs
is to make sure that this information is readily available through the
one-stop delivery system. No changes have been made to the regulatory
text as a result of these comments.
Comments: Two commenters also questioned the proposed Sec.
682.200(b)(2) requirement to disseminate information identifying
eligible training providers of work-based training, reasoning that
disclosing information about employers could negatively impact the
working relationships that case managers and business specialists have
developed. Further, these commenters stated that if the Governor does
not require collection of performance information from these training
providers, it is not necessary to provide information about such
providers to the public. A separate
[[Page 56189]]
commenter expressed concern that the performance reporting requirements
could result in disclosure of personally-identifiable information.
Department Response: WIOA sec. 122(h) exempts providers of on-the-
job training and other employer-based training from the requirements at
WIOA sec. 122(a)-(f). However, the identity of employers that access
WIOA funds for employer-based training, as well as any performance
information required by the State under WIOA sec. 122(h)(2), may not be
kept from the public and is disclosable. This statutory disclosure
requirement under WIOA sec. 122(h)(2), which applies to recipients of
funds to provide training services, promotes full transparency, reduces
instances of conflict of interest, and ensures compliance with the
sunshine provisions of WIOA. Performance report made available to the
pubic requirements do not include any information that could be
considered personally identifiable. There are no names, addresses,
dates of birth or Social Security numbers. WIOA sec. 122(d)(4)
prohibits disclosure of personally identifiable information without
prior written consent of the parent or student. All other comments and
responses involving eligible training providers are found at subpart D,
Sec. Sec. 680.400 through 680.530. No changes have been made to the
regulatory text as a result of these comments.
Comments: A commenter recommended that Sec. 682.200(b) specify
that information about physical and programmatic accessibility for
individuals with disabilities (proposed Sec. 682.200(b)(7)) be made
available in accessible formats.
Department Response: The requirement to make this information
available in accessible formats is already required under the Americans
with Disabilities Act and other provisions of WIOA. Therefore, no
changes were made as a result of this comment.
Comments: Regarding proposed Sec. 682.200(d), commenters asserted
that conducting evaluations is not the best use of limited State funds
and recommended that it be an allowable statewide activity or reserved
for the Federal government.
Department Response: WIOA provides that evaluation is a required
activity. Evaluation as a statewide activity is further discussed under
Sec. 682.220. The Department notes that there was a small edit to
Sec. 682.200(d) moving the statutory reference to the end of the
regulatory text. However, no changes have been made to the regulatory
text as a result of this comment.
Comments: One commenter recommended that the Department require
that the one-stop delivery system receive technical assistance to help
women entering apprenticeship and pre-apprenticeship programs, and
recommended that Sec. 682.200(f) be expanded to require technical
assistance delivery to all front line and managerial staff at one-stop
centers and to provide information on the economic benefits of
nontraditional careers to one-stop participants.
Department Response: The Department has determined that there are
sufficient references and requirements throughout WIOA and this Rule
that provide an improved linkage to apprenticeship and pre-
apprenticeship programs and that this specific requirement is not
needed. Furthermore, Sec. 682.210(e) already allows for the
implementation of programs to increase the number of individuals
training for and placed in nontraditional employment. No changes have
been made to the regulatory text as a result of these comments.
Comments: A commenter recommended that Sec. 682.200(f)
specifically include individuals with disabilities in its statement of
the requirement that States assist in local staff training to provide
opportunities for individuals with barriers to employment. Also with
regard to Sec. 682.200(f), this commenter recommended that States
should examine Federal contractors doing business in their States, as
doing so is particularly important for job seekers with disabilities
because of the regulations implementing sec. 503 of the Rehabilitation
Act of 1973, as amended, at 41 CFR part 60-741.
Department Response: Individuals with disabilities are a target
population of WIOA. The Department has determined that the reference to
barriers to employment sufficiently includes individuals with
disabilities based on the statutory definition contained in WIOA sec.
3(24)(D). With regard to States examining Federal contractors doing
business in their area, they must follow the regulations governing the
Rehabilitation Act of 1973, as amended. No changes have been made to
the regulatory text as a result of these comments.
Comments: Regarding proposed Sec. 682.200(g), several commenters
recommended that the Department clarify how States are required to
``assist'' local areas. One commenter requested clarification of what
it means to assist local areas in regional planning and service
delivery, and whether this includes financial assistance.
Department Response: States must ``assist'' local areas through a
variety of methods. This will include the provision of technical
assistance, compliance assistance, strategic planning initiatives, or
other activities designed to improve or enhance the workforce
development system at the local level. The Department declines to
define explicitly ``assist'' further. Doing so might limit the types of
technical assistance and other efforts that a State may seek to
provide. With regard to the provision of financial assistance, yes, an
allowable use of statewide activities funds under Sec. 682.200 could
include financial assistance related to regional planning efforts.
Comments: Regarding proposed Sec. 682.200(h), a commenter
recommended that the Departments issue additional guidance on
implementation of the industry or sector partnerships that are a
required activity at the State and local levels. This commenter also
expressed concerns that the NPRMs provided little guidance on how
States and local areas can meet their statutory requirements with
respect to industry or sector partnerships. This commenter predicted
that limited instruction may lead to confusion and delayed
implementation among stakeholders. A separate commenter recommended an
emphasis on the needs of and opportunities for immigrant and Limited
English Proficient workers and business owners.
Department Response: The Department is committed to the successful
implementation of industry and sector partnerships throughout the
nation's workforce development system. To accomplish this, significant
technical assistance activities will occur in this area. The Department
has strategically chosen not to further define the requirements around
industry and sector partnerships in regulations as effective models and
solutions are likely will evolve over time. Instead, the Department's
efforts will be focused on the collection and dissemination of
promising practices from States and local areas that have already
developed successful models. The Department has determined that rather
than a lack of instruction leading to confusion or delay, a lack of a
more rigid definition will provide for the highest level of innovation
possible. Additional guidance may be issued on this topic in the
future. In addition, the Department will support various technical
assistance efforts focusing on industry and sector partnerships based
on successful models from around the
[[Page 56190]]
nation. Furthermore, there is no need to place additional emphasis on
immigrant and Limited English Proficient populations since these
individuals would generally be included in the definition of those with
barriers to employment, whose needs are already emphasized throughout
WIOA. No changes have been made to the regulatory text as a result of
these comments.
Comments: A commenter recommended that Sec. 682.200(k) clarify
that providing ``additional assistance'' to local areas with a high
concentration of eligible youth may include creation of a central
coordinating body or use of a ``qualified intermediary'' defined as an
entity with a demonstrated expertise in building partnerships. The
commenter stated that qualified intermediaries serve an important role
by streamlining services and filling gaps in support and services.
Further, this commenter recommended that the Department clarify that
``additional assistance'' includes supporting development of credit
transfers and articulation agreements between local education agencies
(LEAs) and institutions of higher education within the State. The
commenter reasoned that these programs bridge the connection between
academics and career preparation, as well as between secondary and
postsecondary school education.
Department Response: WIOA allows States to engage in any of the
activities described by the commenter, as the provision of additional
assistance under Sec. 682.200(k). The regulation requires States to
assist local areas with high concentrations of eligible youth. The
assistance needed is likely to vary from local to local. This
assistance might be provided in the areas of program design,
partnering, resource sharing, and other areas. Providing a definitive
list of assistance or specific examples might be limiting. Instead, the
Department will continue its focus on technical assistance and regular
guidance in the area of youth services. No changes have been made to
the regulatory text as a result of these comments.
Comments: One commenter requested that the Department develop a
common intake at the Federal level that covers all required partners
and test it for customer satisfaction. Similarly, another commenter
asked if States would be developing and disseminating common intake
procedures and related items, including registration processes, across
core and partner programs.
Department Response: Given the variety of State and local workforce
development systems, a single, Federally mandated common intake process
is not feasible. However, the Department remains committed to working
with the Federal partners to limit the duplication of effort among and
between core and partner programs relative to service design and
eligibility requirements. The States are best positioned to develop
common intake procedures through the State WDB. No changes have been
made to the regulatory text as a result of these comments.
Section 682.210 What are allowable statewide employment and training
activities?
In addition to the required statewide activities, States are
provided with significant flexibility to innovate within the public
workforce system with various allowable statewide employment and
training activities. These allowable activities are vital to ensuring a
high quality public workforce system, and can be used to ensure
continuous improvement throughout the system. This regulation is not
designed to be an exhaustive list, but more illustrative of the types
of allowable statewide activities that may be provided with these
funds. The Department has made a clarifying edit at the beginning of
Sec. 682.210.
Comments: A commenter expressed support for proposed Sec.
682.210(c) because it emphasizes the State's role in developing and
implementing strategies for serving individuals with barriers to
employment and encourages States to partner with other agencies to
coordinate services among one-stop partners. This commenter asserted
that Governors have a vital role in coordinating different funding
sources for training to enable effective service delivery. Another
commenter supported the flexibility in Sec. 682.210 for the types of
statewide activities that States can implement using the Governor's
Reserve. However, this commenter recommended that the Department amend
this section or provide additional guidance to encourage States to
consider programs that will help align core WIOA title I programs with
one another and with title II programs (e.g., career pathway programs
and technology access programs). A separate commenter also expressed
support for the Departments to issue guidance on the alignment of WIOA
title I and title II services directed to immigrant and Limited English
Proficiency individuals, and additionally in support of formal guidance
affirming that all individuals with work authorization, including
immigrant youth with Deferred Action for Childhood Arrivals (DACA)
status, are eligible to participate in title I programs.
Department Response: The Department agrees that the Governors have
a vital role in coordinating the different funding sources for training
available in their State. Furthermore, the Department has concluded
that this role extends well beyond WIOA and should include the
coordination of all funding sources (Federal, State, foundations, etc.)
available within the State. Additional guidance will be issued by the
Department, outside of the regulations, to help Governors strengthen
alignment of all programs contained under WIOA and all those related to
workforce development. Based on the planning requirements at the State,
regional and local level already contained in this regulation, the
Department has determined that a change to this section is not
warranted. Nothing in this statute or regulations prohibits States from
acting independently to align the programs covered under WIOA or
outside of it. WIOA and the implementing regulations provide only the
minimum of what States must do to be compliant. WIOA and regulations
should be seen as a starting point for further alignment of the
workforce development, economic development, and educational systems
within a State. With regard to youth with DACA status, the Department
will consider issuing guidance as necessary. No changes have been made
to the regulatory text as a result of these comments.
Comments: A commenter recommended that Sec. 682.210 specify how
activities can target individuals with disabilities wherever possible
(e.g., in paragraphs (c), (k), (m), and (n)(2)). Further, this
commenter recommended that the Final Rule specifically identify State
programs relating to intellectual and developmental disabilities,
Statewide Independent Living Councils, and centers for independent
living so that they are not overlooked in program coordination. In
regard to developing strategies to serve individuals with barriers to
employment as permitted by proposed Sec. 682.210(c), this commenter
detailed several core areas for States to focus their partnership
building efforts, including supporting businesses in their efforts to
employ individuals with disabilities, building capacity of front line
staff to implement evidence-based practices in serving employees with
disabilities and the employers who hire them, and preparing youth with
disabilities for careers that use their full potential.
Department Response: The Department agrees that coordination
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between and among the organizations listed by the commenter and the
State and local workforce development systems are essential to
improving services to individuals with disabilities. However, the
Department has concluded that there is no need to list these
organizations specifically in the regulatory text, and that each State
and local area is uniquely positioned to determine which of these
organizations and programs are included in their planning processes and
service delivery models. However, the Department notes that WIOA sec.
3(24) defines ``individual with a barrier to employment'' to include
``individuals with disabilities,'' and reminds the public that the
emphasis throughout WIOA and this regulation on including, and
tailoring services to meet the needs of, individuals with barriers to
employment encompasses an emphasis on including, and tailoring services
to meet the needs of, individuals with disabilities and other barriers
to employment. By extension: the regulatory text at Sec. 682.210(c),
(k), and (m) should be understood to include programs carried out by
local areas for individuals with disabilities. The Department also
agrees that WIOA requires training for front-line staff and the
identification and dissemination of promising practices on all areas of
workforce development, including the provision of services to
individuals with disabilities, including youth. [WIOA secs.
107(d)(11)(B), 108(b)(6)(C), and 134(a)(2)(B)(i)(IV).] No changes have
been made to the regulatory text as a result of these comments.
Comments: Regarding the NPRM preamble discussion of Sec.
682.210(d) and (e), a commenter requested that the Department clarify
the term ``real-time labor market analysis,'' commenting that real-time
LMI is a commonly used term that often refers to current data but that
the term has a lot of associations that are not well-defined in terms
of data items, levels, and area of detail.
Department Response: Traditional labor market information (LMI) is
based on data gathered through Federal and State surveys and
administrative data. These surveys typically utilize rigorous sampling
criteria and careful sampling frames. Traditional LMI provides
significant insight into labor market trends and indicators, but the
process of gathering the data is time-consuming and results in
unavoidable lag-time for publication. Real-time labor market analysis,
also referred to as real-time LMI, utilizes online job postings that
are aggregated daily. Given the ever-increasing use of technology in
the LMI field, the Department has determined not to define the term
``real-time labor market analysis.'' The Department has supported
previous evaluations and research products on real-time labor market
analysis all of which are available online through the Web site of the
Employment and Training Administration at www.doleta.gov and through
the Workforce GPS platform at www.workforcegps.org. No changes have
been made to the regulatory text as a result of these comments.
Comments: Two commenters supported including NFJP grantees among
entities with access to Governors' 15 percent set-aside funds for
statewide activities.
Department Response: NFJP grantees are awarded funds through
various grant programs. Furthermore, there is no restriction on
additional partnerships that States can make with NFJP grantees under
the statewide activities section. The Department has concluded that a
special reference to NFJP grantees is not warranted and no changes have
been made as a result of these comments.
Comments: A commenter suggested that statewide activities funds
should be accessible to a labor/management training fund of which the
employer is a contributing member, and that apprenticeships should be
an approved expense for incumbent worker training.
Department Response: The regulation does not restrict the States
from engaging in the activities described by the commenter related to
labor/management training funds and apprenticeship. The types of
programs and partnerships that a State chooses to enter into are best
left to the individual State WDBs to meet the specific workforce needs
in their State. No changes have been made to the regulatory text as a
result of these comments.
Comments: A commenter recommended that Governors be authorized to
approve automatically public higher education schools as eligible
training providers under WIOA, in a similar manner to the authority for
automatic approval of apprenticeship programs. The commenter further
urged that such approval should cover all programs of study and that
the school not be subject to initial or subsequent designation.
Department Response: WIOA does not provide the authority for this
type of automatic designation, so no changes have been made as a result
of this comment.
Section 682.220 What are States' responsibilities in regard to
evaluations?
Comments: The Department received a number of comments on the
proposed regulations in Sec. 682.220, concerning State
responsibilities on evaluations under WIOA sec. 116(e) and the required
use of State set-aside funds under WIOA sec. 129(b)(1)(A) and sec.
134(a)(2)(B)(vi) to conduct evaluations. Several commenters were
supportive of provisions in this section, with one commenter expressing
optimism about the possibility of States conducting longer-term impact
studies of Vocational Rehabilitation. Another commenter supported the
development of evaluations ``to explore innovations surrounding
integrated systems, coordinated services, career pathways, and multiple
forms of engagement with businesses.'' However, many comments were
critical of the requirements that States conduct evaluations using the
State set-aside funds and provide data for Federal evaluations.
Regarding States' conducting their own evaluations, commenters
cited a lack of sufficient funds from the Governors' set-aside as well
as a lack of staff capacity. One commenter stated that the requirement
``ignores the funding reality'' and, along with other commenters,
emphasized the many competing requirements for which set-aside funds
must be used--a problem noted to be particularly acute in States with a
small amount of set-aside funds. The commenters also noted that many
States lack staff with requisite knowledge and skills to conduct an
evaluation and cannot afford to use consultants. Three commenters noted
that, with the exception of evaluations conducted and published by a
few States, there is no ``established broad-based record of State
knowledge of research principles sufficient to effectively manage an
evaluation agenda under WIOA.'' To remedy this situation, commenters
suggested that States receive dedicated funding and Federal support to
build their evaluation infrastructure and that the Department waive or
suspend the requirement to conduct evaluations until States have
sufficient funding and skills, and that the Department should assume
primary responsibility for conducting evaluations. Another commenter
suggested that conducting evaluations should be an allowable not a
required statewide activity.
Department Response: The Department acknowledges that States must
balance many priorities in their use of the set-aside, including
multiple required activities. The lack of sufficient funds (in the set-
aside or from a dedicated funding stream of some kind) to conduct
evaluations, as well as lack of staff capacity or, in some cases, lack
of available or reliable data, will
[[Page 56192]]
constrain many States' ability to conduct evaluations. However, WIOA
sec. 129(b)(1)(A) and sec. 134(a)(2)(B)(vi) require States to use funds
reserved by the Governor for statewide activities to conduct
evaluations. Further, the Department has determined that State-
conducted evaluations have the potential to be of great practical value
to States, including informing service delivery strategies, improving
performance, and meeting other requirements under WIOA. For example,
evaluation could be used to assist State WDBs in systematically
identify promising or proven practices, as required under Sec.
679.130(e), or for analyzing data on the quality, effectiveness, and/or
assist the State to prepare its strategic planning process under 20 CFR
676.105 (see Joint WIOA Final Rule). It could further be used for
exploring, with other State agencies, how well integration and
coordination of services and data systems is proceeding. Therefore, the
regulations retain the requirement that States conduct evaluations.
Given the problems identified by commenters, the Department sees
the development of States' capacity to conduct evaluation projects as a
long-range and iterative process, which the Department intends to aid
through various forms of technical assistance and guidance. An initial,
primary goal is to enhance capacity by building knowledge among State
staff regarding various methodologies, approaches for enlisting
expertise, and the potential role of evaluations and research in
meeting State goals and priorities. Further, the regulations at Sec.
682.220(e) and (f) identify areas for State discretion in the
methodology, duration and funding of evaluations, all of which may
assist States to target their investment in a manner appropriate to the
funding available to the State. The paragraphs describe flexibilities
that States may use to leverage other funding, and to conduct such
evaluation over multiple program years.
Despite flexibilities as to the types of evaluation, methodologies,
phases, duration, and funding sources, some States may still be unable
to fulfill the requirement to conduct evaluations and seek a waiver.
Such a waiver request, like others submitted to the Department in
regard to statutory provisions of WIOA, will be reviewed on a case-by-
case basis, and will be subject to any appropriate conditions and
limitations of the Secretary's waiver authority and procedures found at
WIOA sec. 189(i)(3), and consistent with Sec. Sec. 679.610 and
679.620. No changes have been made to the regulatory text as a result
of these comments.
Comments: Several commenters objected to annual submission of
evaluation reports, which they felt too excessive, given the
requirements for annual submission of performance reports. One
commenter suggested that States should instead make available to the
public and to State and Local WDBs evaluation and research reports
prepared by Federal evaluators with State-specific comments, in line
with suggestions that evaluation be primarily a responsibility for the
Federal government.
Department Response: While WIOA sec. 116(e)(3) requires the State
to annually prepare, submit, and make available to the public reports
containing the results of evaluations conducted using State set-aside
funds, the Department recognizes that evaluations may be lengthy and
not end neatly within a program year. For this reason, the regulation
has been revised to clarify that the reports are to be prepared,
submitted to State and Local WDBs, and made available to the public
when results become available. The revision to the regulation at Sec.
682.220(c) is described in more detail below. Also, since States retain
the responsibility to disseminate reports on State-conducted
evaluation, the Department declines to adopt the suggestion that States
only distribute Federal evaluations with State comments.
Comments: Several commenters were critical of the regulation to
implement the requirements in sec. 116(e) that States cooperate to the
extent practicable in evaluations conducted by the Departments of Labor
and Education (under WIOA secs. 169 and 242 and relevant sections of
the Rehabilitation Act of 1973) by providing data, responding to
surveys, allowing timely site visits, and informing the Secretary in
writing if such cooperation was not practicable. A few commenters
asserted that quantitative data was already available because the data
elements and narrative reports provided to the Department and the other
Federal agencies should provide an ample source of statistical data for
evaluators without interrupting individual States with data requests.
The commenters indicated that States' responsibilities regarding
evaluations and research are only ``to allow on-site observation and in
limited circumstances provide supplemental qualitative data.'' Another
commenter felt that the regulations were ``adversarial'' and would
result in minimum levels of cooperation from States. The commenter
stated that the regulation did not define the term ``to the extent
practicable,'' but noted that in the UI regulation, it is defined as
non-interference ``with the administration of State UC law.'' The
commenter also stated that the Department's ``intrusion into State
evaluation activities is by its very nature `interference' with non-UI
State agency functions, since it is carried out pursuant to
``adversarial rules'' and for this reason, needed to be withdrawn.
Department Response: The Department notes that the regulation at
Sec. 682.220(d) implements a statutory requirement under WIOA sec.
116(e)(4) requiring State cooperation, to the extent practicable, in
Federal evaluations. WIOA sec. 116(e)(4) specifically identifies such
cooperation as including the provision of data and survey responses,
and allowing site visits in a timely manner. As noted in the preamble
to the NPRM, this requirement in WIOA sec. 116(e)(4) recognizes the
vital role of States in providing various forms of quantitative and
qualitative data and information for Federal evaluations that are not
available at the Federal level. In order to conduct evaluations,
individuals need to be tracked over time periods that do not align well
with quarterly performance reporting. Depending on the research
questions an evaluation is addressing, data on the same individuals or
cohorts of individuals may be needed for timeframes within the same
quarter or across multiple quarters, neither of which is feasible to
track or match within the performance reporting structure of WIOA. High
quality evaluations also involve the collection of data on control or
comparison groups of individuals, so supplemental data may be needed to
account for this. Frequently, individual level earnings information is
critical for evaluations. Data, survey responses, and site visit
information are often needed to understand, for example, participant
characteristics, services, systems, labor market outcomes, the role of
decision-makers, implementation issues, and the quality of the customer
experience. In response to the commenters' suggestions, the Department
notes that States may, in response to data requests for a Department of
Labor or a Department of Education evaluation, identify other data
already provided to the Federal government and of possible use in the
evaluation, and the Departments will work with the State to determine
if the other data are suitable. However, no change to the regulatory
text has been made in response to the comments.
Further, the Department disagrees with the characterization of
these
[[Page 56193]]
regulations, which implement a statutory requirement by requiring
cooperation to the extent practicable, as adversarial or as
interference. The Department also declines to further define ``to the
extent practicable'' in the regulation. Rather, if a State determines
that timely cooperation in data provision is not practicable, the State
may proceed according to Sec. 682.220(d)(3) and identify in writing
the reasons it is not practicable, and cooperate with the Department to
develop a plan or strategy to mitigate or overcome the problems
preventing timely provision of data, survey responses and site visits,
as statutorily required. The requirement at Sec. 682.220(d)(3) was
intended to afford a relatively easy method for communicating with the
Department and allowing for an amicable resolution of any problems. No
changes have been made to the regulatory text as a result of these
comments.
Comments: Several comments were received regarding promoting
specific evaluation and research projects to be conducted at the State
level under sec. 116(e) or at the Federal level under sec. 169 (which
sets forth the Department's role in evaluation and research and
authorizes a wide array of studies). One commenter recommended that the
regulations require States to focus evaluations on services to
individuals with disabilities under WIOA title I and that customer
feedback be developed from this population be developed to determine if
programs are truly responding to their needs.
Department Response: The Department notes that while these proposed
specific evaluation and research projects are permissible and
desirable, WIOA sec. 116(e) allows States to determine the content of
any evaluation. The Department will not reduce the States' flexibility
by requiring particular evaluation or research projects. No changes
have been made to the regulatory text as a result of these comments.
While the Department did not promulgate regulations for WIOA sec.
169, the Department is addressing comments relating to Departmental
evaluation and other research activity, since it is similar to the
evaluation functions required of States under WIOA sec. 116(e). There
are no changes to the regulatory text as a result of these comments.
The comments and the Department's response are as follows.
Comments: Several commenters expressed support for the requirement
under WIOA sec. 169(b)(4)(I) that the Department conduct a multi-State
project to develop capacity for, implement, and build upon career
advancement models and practices for low-wage health care providers and
providers of early education and child care.
Department Response: The Department notes that it has conducted and
is currently engaged in research and evaluation projects related to
career pathways programs in health care and child care occupations.
Separately, the Department notes that developing and implementing
career pathways is a function of State WDBs and Local WDBs under WIOA
sec. 101(d)(3)(B) and sec. 107(d)(5)and has been promoted by ETA in
guidance and various forms of technical assistance to the public
workforce system.
Comments: Another commenter suggested that the regulations state
that the Department undertake research into women's representation in
nontraditional jobs covering and the means by which barriers to women's
employment in these occupations can be removed. The commenter also
suggested that guidance eventually be issued on the content of such
studies and offered example of topics that could be covered in them,
such one-stop capacity, training, and policies in regard to
nontraditional careers for women.
Department Response: The Department notes that it is currently
conducting a research project, under prior legislative authority, on
employment in nontraditional occupations in order to identify, and
evaluate evidence-based strategies to increase opportunities for
traditionally under-represented groups.
For the convenience of the reader in understanding the totality of
the regulation at Sec. 682.220 and the changes made in the section,
each part is discussed sequentially below. The revisions entailed
reorganizing portions of the section to clarify the requirements and
flexibilities for States, all in response to comments and to ensure
conformity with statute.
In particular, the revisions reflect the distinction between the
requirement that States conduct evaluations of title I core program
activities (as per WIOA secs. 129(b)(1)(A) and 134(a)(2)(B)(vi)) and
the permissible ability of States to conduct research and demonstration
projects as an allowable statewide activity under WIOA secs.
129(b)(2)(A) and 134(a)(3)(A)(ix) Accordingly, the title of this
section has been revised as ``What are States' responsibilities in
regard to evaluations?,'' with the concluding phrase ``and research''
removed. Likewise, the phrases ``evaluations and research projects''
and ``evaluations and other research'' have been consistently revised
throughout this section to refer only to ``evaluations.'' These
revisions ensure that the requirements of Sec. 682.220, including the
coordination and reporting requirements, apply only to evaluations
conducted as a required statewide activity. It should be noted that
these the provisions of Sec. 682.220 do not apply to research and
demonstration projects conducted as an allowable statewide activity.
The Department made a number of revisions to the regulatory text to
clearly identify certain options that States may, but are not required
to, use in fulfilling the statutory requirement to conduct evaluations
as a statewide activity. Some of these options were identified in the
NPRM, while others have been developed in response to comments
received. In order to distinguish between regulatory requirements and
regulatory flexibilities, this section has been reorganized so that
these options are now stated in revised Sec. 682.220(e) and in the new
Sec. 682.220(f).
Section 682.220(a)
Section 682.220(a) describes the requirement under WIOA sec.
134(a)(2)(B)(vi) for States to use funds reserved by the Governor for
statewide activities to conduct evaluations of activities under the
WIOA title I core programs, according to the provisions of sec. 116(e).
The paragraph has been revised to state that the purpose of evaluations
is ``to promote continuous improvement, research and test innovative
services and strategies, and achieve high levels of performance and
outcomes.'' The first and third purposes--promoting continuous
improvement, and achieving high levels of performance and outcomes--
reflect the statutory requirement of WIOA sec. 116(e)(1). The second
purpose, as proposed by the Department in the NPRM, was to test
innovative services and strategies. It has been revised to reflect the
reality that rigorous tests of such services and strategies often are
preceded or accompanied by related forms of research. This section has
also been renumbered from Sec. 682.220(a)(1) to Sec. 682.220(a).
The paragraph proposed as Sec. 682.220(a)(2) has been deleted.
This paragraph was deleted to avoid any confusion about research and
demonstration projects conducted as an allowable statewide activity, to
which the provisions of Sec. 682.220 do not apply. Also, Sec.
682.220(a)(3), regarding the use of funds other than the Governor's
Reserve, has been revised and relocated to a new Sec. 682.220(f), as
discussed below.
[[Page 56194]]
Section 682.220(b)
The regulations under Sec. 682.220(b) describe a number of
requirements for evaluation under the State Set-aside. The language at
Sec. 682.220(b) was revised from that in the NPRM to remove the
reference to ``research projects'' and thus to clarify that the
requirements are statutorily required only for evaluations. In
addition, the Department made a technical revision to replace the
reference to evaluations ``funded in whole or in part with WIOA title I
funds'' with a reference to evaluations ``conducted under paragraph
(a).'' The language was revised to clarify that the requirements in
paragraph (b) apply to evaluations conducted pursuant to paragraph (a).
Paragraph (b)(1) of this section implements the statutory
requirement for States to coordinate and design evaluations in
conjunction with State and Local WDBs and with other agencies
responsible for core programs, as set forth in WIOA sec. 116(e)(2).
Paragraph (b)(2) implements the requirement for States to include,
where appropriate, analysis of customer feedback and outcome and
process measures in the statewide workforce development system, as set
forth in WIOA sec. 116(e)(2). Where the Department requires specific
information related to these requirements, it will do so through the
ICR process. Paragraph (b)(3) implements the requirement for States, in
conducting evaluations, to use designs that employ the most rigorous
analytical and statistical measures such as the use of control groups,
as set forth in WIOA sec. 116(e)(2). The regulation clarifies that
these approaches should be used when appropriate and feasible, thus
indicating they are not intended as a ``one-size-fits-all'' checklist
of requirements for every evaluation project. Paragraph (b)(4)
implements the statutory requirement set forth in WIOA sec. 116(e)(1)
for States, to the extent feasible, to coordinate the State's
evaluations with those provided by the Secretary of Labor and the
Secretary of Education under the particular statutes as cited. These
paragraphs are adopted as proposed.
Section 682.220(c)
Section 682.220(c) implements the statutory requirement for States
to annually prepare, submit, and make available reports containing the
results of the evaluations the States conduct, as set forth in WIOA
sec. 116(e)(3). The Department has made two revisions to this section.
First, as noted above, in response to comments received, the
Departments has clarified that States must prepare, submit to the State
and Local WDBs, and disseminate to the public results from these
evaluations ``as available.'' The Department recognizes that when
evaluations are conducted over multiple program years, as permitted in
revised paragraph (e)(3), results may not be available in every program
year. Evaluation reports must be made publically available during the
program year the final report is finalized. In light of the options
States have in terms of the components and time needed for evaluations
as clarified in Sec. 682.220(e)(3), evaluations may extend into
multiple program years. Second, the Department has revised this section
to remove any reference to ``other research'' to avoid any confusion
with research as an allowable statewide activity, for which the
reporting requirements are not statutorily required under WIOA.
However, the Department, in recognition of the benefits of
disseminating research, strongly encourages States to make publicly
available the reports emanating from such other research that States
conduct.
Section 682.220(d)
Section 682.220(d) implements the statutory requirement for States
to cooperate, to the extent practicable, in evaluations and related
research projects conducted by the Secretaries of Labor and Education.
The Department has made minor revisions, for the sake of clarity, to
three aspects of this section. First, the Department has removed the
reference to the ``agents'' of the ``Secretaries of Labor and
Education'' because a reference to the Secretaries always implicitly
includes their agents, such as sub-agencies, contractors, or grantees.
Second, the Department has replaced the reference to ``sec. 116(e)(4)
of WIOA'' with a reference to the ``laws cited in paragraph (b)(4) of
this section.'' This revision is non-substantive as the laws cited in
paragraph (b)(4) of this section are those noted under sec. 116(e)(4)
of WIOA, intended to simplify the language of the regulation.
Paragraph (d)(1) of this section describes the particular data,
information, and assistance that States must timely provide in
cooperation with evaluations and related research projects conducted by
the Secretary of Labor and Secretary of Education. Paragraph (d)(2)
describes the requirement for the States to encourage cooperation in
data provision by one-stop partners at the local level. Paragraph
(d)(3) describes the requirement for the Governor to provide written
notification to the Secretary if it is not practicable for the State to
timely provide the data described in paragraph (d)(1).
No comments were received regarding these paragraphs. However,
paragraph (d)(2) has been revised to correct an erroneous reference to
paragraph (f)(1)(a)-(c) to the appropriate citation to paragraphs
(d)(1)(i)-(iv). These paragraphs are adopted as proposed, with the
described revision.
Section 682.220(e)
Section 682.220(e) has been revised to identify allowable
flexibilities in the types of studies, phases, and time frames that are
available to States in fulfilling their obligation to conduct
evaluations, all in response to the concerns expressed in the comments
about this requirement.
Paragraph (e)(1) of Sec. 682.220 clarifies that under WIOA sec.
116(e)(1) States, while required to use set-aside funds to evaluate
activities under title I core programs, are permitted to conduct
evaluations that jointly examine activities under title I and those
under other core programs, so long as such evaluations are developed
and designed in coordination with the relevant State agencies
responsible for core programs under Sec. 682.220(b)(1). Examples of
evaluations of activities under multiple core programs include studies
of referral processes, systems integration, or infrastructure cost
sharing among the core programs.
Paragraph (e)(2) provides a new flexibility to permit States to
conduct evaluations similar to those authorized for, or conducted by,
the Departments of Labor and Education under the laws cited in Sec.
682.220(b)(4), and cites as examples ``process and outcome studies,
pilot and demonstration projects that have an evaluative component,
analyses of programmatic data, impact and benefit-cost analyses, and
use of rigorous designs to test the efficacy of various
interventions.''
Paragraph (e)(3) was added to clarify flexibilities for States to
conduct evaluations over multiple program years, involving multiple
phases ``such as a literature or evidence review, feasibility study,
planning, research, coordination, design, data collection, and
analysis, and report preparation, clearance, and dissemination.'' As
noted above, the Department has added these flexibilities for States
since, based on its own experiences in conducting evaluations, which
have often entailed many such components and extended over multiple
years.
[[Page 56195]]
Section 682.220(f)
Section 682.220(f) describes allowable flexibilities for the States
in funding evaluations in the use of funds from sources other than the
State set-aside. Section 682.220(f)(1) permits States to use funds from
any WIOA title I through IV core program to conduct evaluations, as
determined through the coordinative processes associated with paragraph
(b)(1). This paragraph was, for the sake of clarity, relocated from
Sec. 682.220(a)(3) of the NPRM. Further, consistent with the decisions
discussed above, the reference to ``other research'' was removed. The
Department also revised the paragraph to clarify that States may use
funds from any WIOA title I through IV core program (per WIOA sec.
116(e)(1)); the NPRM had referred to only title II through IV core
programs. This revision clarifies that, while States must conduct
evaluations using State set-aside funds under WIOA secs. 129(b)(1)(A)
and 134(a)(2)(B)(vi)), they may additionally use available funds from
other core programs for such evaluations. This flexibility may be of
particular interest to States planning evaluations that jointly study
WIOA title I core program and other core program activities (a
flexibility identified in Sec. 682.220(e)(1) above).
Section 682.220(f)(2) permits States to use or combine funds,
consistent with Federal and State law, regulation and guidance, from
other public or private sources, to conduct evaluations relating to
activities under the WIOA title I through IV core programs. Such
projects may include those funded by the Department of Labor and other
Federal agencies, among other sources. This section was initially
located at Sec. 682.220(e) of the NPRM. In response to concerns
expressed by commenters, the Department has revised this section
slightly by adding language to clarify that these additional public or
private funding sources can include Department of Labor or other
Federal agencies' grants, cooperative agreements and contracts. The
Department has also revised this section, consistent with the decisions
discussed above, to remove the reference to ``research, and other
demonstration projects.''
4. Subpart C--Rapid Response Activities
Introduction
This subpart discusses the important role that rapid response plays
in providing customer-focused services to both dislocated workers and
employers, ensuring immediate access to affected workers to help them
quickly re-enter the workforce. The regulations reflect the lessons
learned from the innovations by, and best practices of, various rapid
response programs around the country in planning for and meeting the
challenges posed by events precipitating substantial increases in the
number of unemployed individuals in States, regions, and local areas.
The regulations provide a comprehensive framework for operating
successful rapid response programs in a way that promotes innovation
and maintains flexibility to enable States to manage successfully
economic transitions.
The Department is making a technical correction to Sec.
682.300(a). Proposed Sec. 682.300(a) made reference to rapid response
being discussed in Sec. Sec. 682.310 through 682.370. The reference to
Sec. 682.310 is corrected to reflect Sec. 682.300. This technical
correction makes it clear that the regulatory text in Sec. 682.300
also is intended to be included in the description of rapid response.
The remaining analysis that follows provides the Department's
response to public comments received on the proposed part 682
regulations. If a section is not addressed in the discussion below, it
is because the public comments submitted in response to the NPRM did
not substantively address that specific section and no changes have
been made to the regulatory text. Further, the Department received a
number of comments on this part that were outside the scope of the
regulation and the Department offers no response. Lastly, the
Department has made a number of non-substantive changes to correct
grammatical and typographical errors to improve the readability and
conform the document stylistically that are not discussed in the
analysis below.
Section 682.300 What is rapid response, and what is its purpose?
Section 682.300 describes rapid response, which promotes economic
development and vitality and delivers critically important solutions to
workers and businesses in transition.
Comments: The Department received comments on other areas of part
682, subpart C, relating directly to rapid response, (e.g., comments
received on Sec. 682.330(i) regarding Trade Adjustment Assistance
(TAA) and a comment regarding Worker Adjustment and Retraining
Notification (WARN), both discussed later in this preamble). The nature
of some of these comments led the Department to conclude that
clarifying information is needed regarding the circumstances under
which rapid response must be delivered as well as the term ``mass
layoff.''
Department Response: In order to provide this clarification, the
Department made the following revisions to Sec. 682.300 and other
sections of subpart C: (1) The Department made a correction to the
regulatory text in several places by adding the word ``mass'' to the
text in Sec. Sec. 682.330(j) and 682.350 to align the regulatory text
with the statutory language in WIOA sec. 134(a)(2)(A)(i)(II), which
refers to ``mass layoffs,'' whereas the proposed regulatory text only
referred to ``layoffs''; (2) The Department has added new sections to
the regulatory text to clarify the circumstances under which rapid
response must be delivered (Sec. 682.302) and to reflect the
definition of the term ``mass layoff'' for purposes of rapid response
(Sec. 682.305); and (3) The text at Sec. 682.300(a)(1) has been
revised to include a reference to new section, Sec. 682.302. As a
result of the addition of Sec. 682.302, paragraphs (i) and (ii) of
Sec. 682.300(a)(1) were deleted and incorporated into Sec. 682.302,
since these items are more relevant to that section. The Department
also notes that the text that was previously at Sec. 682.300(a)(1)(i)
and incorporated into Sec. 682.302 at Sec. 682.302(a) has been
revised. Where the previous text referred to ``announcement of a
closure or a layoff,'' the new text refers to ``announcement or
notification of a permanent closure, regardless of the number of
workers affected.'' The Department has determined that these revisions
more clearly relay its intent that Rapid Response services are required
to be delivered in the case of a permanent closure and irrespective of
whether information about the layoff is received via an announcement or
other notification method. The revision also makes it clear that there
is no numerical threshold for delivering rapid response in these
instances. Rapid Response is required, regardless of the number of
workers affected by the closure. Additional information regarding the
circumstances under which rapid response must be delivered, are further
explained in the preamble discussion in Sec. 682.302 below.
Section 682.302 Under what circumstances must rapid response services
be delivered?
This section explains the circumstances that trigger the delivery
of rapid response.
As previously noted in the preamble discussion on Sec. 682.300,
the Department received comments that led the Department to add Sec.
682.302 in order to clarify the circumstances under which rapid
response must be delivered. Rapid Response must be provided when one or
[[Page 56196]]
more of the following circumstances occur:
(a) Announcement or notification of a permanent closure:
An announcement or notification of a permanent closure of a
facility, store, enterprise, or plant, regardless of the number of
workers affected;
(b) Announcement or notification of a mass layoff as defined in
Sec. 682.305 and discussed in that section of this preamble;
(c) A mass job dislocation resulting from a disaster:
Any natural or other disaster event, as defined by state or local
emergency management policies, that results in job loss for a number of
workers sufficient to meet a state's definition for mass layoff (see
the discussion under number 4 below), or causing 50 or more workers to
become dislocated. The Department encourages States to consider
appropriate roles and responsibilities for rapid response activities
following a natural or other disaster event and establish these roles
and responsibilities as part of any emergency management plans that are
developed;
(d) The filing of a TAA petition:
This is required in accordance with the requirement in sec.
221(a)(2)(A) of the Trade Act, which requires that the Governor ensure
that rapid response services are delivered to all workers who are
covered by the petition for TAA. Additionally, please see the
discussion below in response to comments on Sec. 682.330(i).
Although the regulatory text now reflects the circumstances that
require delivery of Rapid Response and the Final Rule preamble
clarifies the circumstances under which rapid response must be
provided, the Department is not suggesting that these are the only
instances for which States and local workforce areas may provide rapid
response. Instead, the Department strongly encourages States or their
designated entities to deliver rapid response services to as many
workers and companies as possible and to adopt policies that maximize
the opportunities for rapid response services to be provided in a
manner that best supports the businesses and workers in their
communities.
Section 682.305 How does the Department define the term ``mass layoff''
for the purposes of rapid response?
This section explains the definition of the term ``mass layoff''
for the purposes of rapid response.
As previously noted in the preamble discussion on Sec. 682.300,
the Department received comments that led the Department to define the
term ``mass layoff'' for purposes of Rapid Response.
A mass layoff will have occurred for the purposes of rapid response
when at least one of the following conditions have been met:
A mass layoff, as defined by the State; however, under no
circumstances may a State's definition of mass layoff exceed a minimum
threshold of 50 workers. For example, in its definition, the State
cannot set the minimum threshold of laid off workers at 75, but it can
be set to as few as 1. The definition may be based upon factors such as
the size of the company that is impacted, the percentage of workers
impacted by a layoff, the income level of the employees, and other
relevant factors;
Where a State has not defined a minimum threshold for mass
layoff, any layoff affecting 50 or more workers; or,
Upon receipt of a WARN Act notice (see discussion in Sec.
682.320 below in response to a comment on this subpart), regardless of
the number of workers affected by the layoff announced.
Additionally, the Department notes that the definition of ``mass
layoff'' discussed in this subpart and included in the new regulatory
text at Sec. 682.305, differs from the definition used in part 687,
National Dislocated Worker Grants, which also refers to the term ``mass
layoff.'' For Rapid Response, the Department allows States more
flexibility in defining mass layoffs. Rapid Response services encompass
strategies and activities that States can provide to assist workers
affected by layoffs and closures as described at Sec. 682.300
(including information about available employment and training
programs), and the Department encourages States to do so, regardless of
the number of workers affected. In contrast, the DWG program is aimed
at significant events that cannot reasonably be expected to be
accommodated within the ongoing operations of the formula-funded
dislocated worker program. Accordingly, for the purposes of the DWG
program, the Department separately defines ``mass layoff'' as those
affecting 50 or more workers from one employer in the same area.
Additional details can be found in part 687.
Section 682.310 Who is responsible for carrying out rapid response
activities?
Section 682.310 clarifies that the State or an entity designated by
the State is responsible for carrying out rapid response activities.
The Department would like to clarify the intent in Sec.
682.310(a). The regulatory text indicates that rapid response must be
carried out by the State or by another entity designated by the State.
The State or entity designated by the State must coordinate,
communicate, and work with Local WDBs, CEOs, and other stakeholders as
appropriate. The Department included ``other stakeholders'' because it
has determined that the intent of the law is to ensure coordination
with all relevant parties so rapid response services can be delivered
effectively. Paragraph (b) of Sec. 682.310 reinforces the requirement
that regardless of whether a State designates a non-State entity or
entities to carry out rapid response, the State must establish and
maintain a rapid response unit to oversee this program.
Section 682.320 What is layoff aversion, and what are appropriate
layoff aversion strategies and activities?
This section describes a comprehensive approach to layoff aversion,
designed to prevent or minimize the duration of unemployment.
Comments: The Department received a few comments requesting some
additional changes be made to the text of the NPRM.
One commenter requested an addition to Sec. 682.320(b)(2) to
insert language that States should work with both business and labor
organizations in those instances where a collective bargaining
agreement is in place and consult with unions in cases where no such
agreement exists. The commenter also requested that language on
partnering or contracting with labor organizations be added to Sec.
682.320(b)(7). Lastly, the commenter recommended an additional
provision that included language about working with labor
organizations.
Department Response: Paragraph (b)(2) includes the following as an
allowable layoff aversion activity: ``ongoing engagement, partnership,
and relationship-building activities with businesses in the community,
in order to create an environment for successful layoff aversion
efforts and to enable the provision of assistance to dislocated workers
in obtaining reemployment as soon as possible.'' Developing strong
relationships with businesses is critical in layoff aversion, and the
Department has concluded the proposed regulatory text best supports the
intent of this paragraph by maintaining its sole focus on the business
partnership, since businesses are often the most critical players in
helping avert layoffs. However, developing relationships with unions is
important as well, and language to this effect can be found at Sec.
682.330(h) which requires that States
[[Page 56197]]
develop partnerships with a variety of organizations, including unions,
as appropriate, in order to exchange information among these partners
so that rapid response is provided as early as possible. Information
relating to the customization of layoff aversion activities is
specifically highlighted in the regulation requiring these
partnerships. No changes were made to the regulatory text in response
to these comments.
Comments: One commenter suggested that allowable layoff aversion
activities be organized into ``core'' and ``complementary'' activities.
Core activities would be those that the commenter considers to be
``true business disruption turn-around services,'' and complementary
would be those ``that are important, but would not avert closure . . .
in an emergency business disruption.''
Department Response: The Department concluded that making
distinctions between types of layoff aversion activities does not
meaningfully impact the ability of States or local workforce areas to
conduct layoff aversion activities, and operators of rapid response
programs are best suited to determine how they organize or manage their
layoff aversion activities in accordance with the requirements. As a
result, the Department has determined that the proposed regulatory text
permits State and local rapid response operators the flexibility to
meet these requirements based on the specific needs of the companies
and workers being served and the particular characteristics of each
event. The categories suggested by the commenter imply that some
activities listed are more important than others. The Department has
concluded that any allowable activities that are designed to prevent or
minimize the duration of unemployment are equally important and
valuable, and encourages State and local rapid response teams to
develop strategies that maximize the ability to deploy the appropriate
layoff aversion solutions for the challenges they face. No changes were
made to the regulatory text in response to this comment.
Comments: A few commenters requested that the Department add
language to Sec. 682.320 that requires States to describe their layoff
aversion strategies in their Combined State Plan or Unified State Plan.
Department Response: The Department does not agree that this
language should be added to the regulatory text. Instead, the joint
planning guidelines issued by the Secretaries of Labor and Education in
March 2016 in TEGL No. 14-15, provides the overall content requirements
for the WIOA Unified or Combined State Plans. The guidance is in TEGL
No. 14-15, released March 2016, entitled ``Workforce Innovation and
Opportunity Act (WIOA) Requirements for Unified and Combined State
Plans'' and may be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm. No changes were made to the regulatory
text in response to these comments.
Comments: One commenter requested that language regarding the WARN
Act be included in Sec. 682.320 or Sec. 682.330 since WARN
notification is an ``automatic trigger'' to conduct rapid response.
Department Response: The Department agrees that the receipt of a
WARN notice is a trigger for rapid response as indicated previously and
is clarifying that the issuance of a WARN notification, regardless of
the number of workers affected by the layoff announced, generates the
requirement to deliver rapid response. WARN Act notice is required
generally for plant closures and mass layoffs as defined in the WARN
Act or under State laws expanding the scope of notice requirements,
and, thus, a WARN layoff meets the Department's general requirements
for mass layoffs and this is reflected in Sec. 682.305. Because WARN
notification is covered in this section, no change is being made to the
text at Sec. 682.320 or Sec. 682.330 to include WARN notice language.
In Sec. 682.320(b)(4), incumbent worker training is identified as
one of the allowable layoff aversion activities. Although no comments
were received with regard to this text, the Department has determined
that a correction to the regulatory text at Sec. 682.320(b)(4) to
insert the word ``funding'' is needed in order to align the regulatory
text with another section of the regulations (Sec. 680.800(b)) and to
clarify that the Department intended rapid response funds to be used to
pay for this training to help ensure workers have the skills needed to
conduct the work of the employer and that businesses are able to build
a skilled workforce commensurate to their needs. An additional
correction is made to the regulatory text to make it clear that any
incumbent worker training program conducted with rapid response funding
must be tied to a broader layoff aversion strategy or must be intended
for the purpose of preventing workers from losing their jobs. Incumbent
worker training is a critical layoff aversion approach and our intent
is to allow rapid response funds to pay for these activities in order
to help ensure that rapid response meets its primary goal, which is to
prevent or minimize the duration of unemployment.
In order to demonstrate that the funds are being used as part of a
layoff aversion strategy or activity, States must develop policies and
procedures with respect to the use of rapid response funds for
incumbent worker training, including the circumstances under which
using rapid response funds for incumbent worker training would be
applicable. As with all incumbent worker training funds, however, the
use of rapid response resources to provide incumbent worker training as
part of layoff aversion must be above and beyond the normal training
offered by businesses to their employees. Rapid response resources must
not supplant private funds in these situations.
Section 682.330 What rapid response activities are required?
This section describes the required rapid response activities.
Comments: One commenter requested that the introductory sentence in
the regulatory text at Sec. 682.330 be changed from ``Rapid response
activities must include'' to ``Rapid response services that must be
made available include.'' The commenter explained that the reason for
this request is due to the fact that the State cannot be compelled to
deliver services if businesses refuse them.
Department Response: The Department understands that businesses
might not always be open to participating in the rapid response
process; however, the proposed regulatory text reflects a requirement
that was also in effect under WIA and shows the significant
responsibility that States have to ensure that rapid response staff
establish relationships and develop the skills needed to be able to
work with businesses that will enable successful delivery of rapid
response services. No changes in regulatory text were made in response
to these comments. However, the Department recognizes that businesses
are under no obligation to allow or help ensure the smooth delivery of
rapid response services, and this can present a significant challenge
for rapid response staff. Therefore, the Department determined that
States which make all reasonable efforts to deliver services to
affected workers, will be determined to have met the requirements of
this section. However, the Department considers reasonable efforts to
include more than just cursory attempts. For example, if a business
refuses to allow services to be delivered on site or during business
hours, rapid response teams
[[Page 56198]]
should make every effort to ensure worker access to rapid response
services at off-site locations and during convenient hours. As
previously noted, the requirement that Rapid Response services include
services to businesses existed under WIA and during the administration
of that law the Department never found a State who had made all
reasonable efforts to deliver services to be out of compliance.
Comments: One commenter remarked that the language at Sec.
682.330(i) gives the impression that rapid response must be provided in
parallel to Trade Adjustment Assistance (TAA), and this is often not
the sequence. The commenter stated that these services are usually
decoupled and that rapid response may occur prior to TAA application.
Department Response: The provision at Sec. 682.330(i) is
consistent with the requirement in the Trade Act and is included in
this regulation to help ensure that this requirement is met. The
regulatory text requires that, as appropriate, rapid response services
be provided to trade-impacted workers for whom petitions have been
filed. Rapid response operators, of course, may assist in coordinating
with State TAA staff, local one-stop staff, employers, workers, or
unions in filing a petition for TAA on behalf of a worker group
negatively impacted by foreign trade. Thus, a delay between petition
filing and petition certification will occur, and as petitions may be
filed up to 1 year after a worker separation, there may be delays
between a worker separation, a petition filing, and the petition
certification. The regulatory text is not meant to imply that rapid
response services may only be provided once the Trade petition has been
filed. Like other workers impacted by layoffs, rapid response services
may be provided upon notification of layoffs consistent with State or
local procedure. A worker may receive rapid response services prior to
the TAA petition filing and re-delivery of rapid response services may
or may not be appropriate, depending on the individual circumstances or
timing of the events. Additionally, the content of information provided
to the worker group through rapid response may change due to the
circumstances or timing of the event, or additional information, such
as a TAA Orientation, may occur after petition certification. No
changes were made to the regulatory text in response to this comment.
Comments: The Department received several comments on the provision
at Sec. 682.330(g)(3) regarding the tracking of information related to
rapid response activities. The commenters expressed that it is
difficult to track rapid response activities and funds separately.
One commenter opined that this level of detail should not be
included as a requirement.
Department Response: The Department expects that its programs must
be evidence-based, whenever possible, and rapid response is no
different. Capturing and tracking performance and outcome data and
information is critical for continuous improvement, for identifying
promising practices, and for reporting, and this tracking is required
to be done for rapid response activities, as appropriate. No changes
were made to the regulatory text in response to this comment.
Comments: Another commenter gave an example of the difficulty
involved in tracking rapid response activities. The example provided
was visiting with the employer to present affected workers with
services. The commenter noted that unless there is a way to track the
employees' participation, it would be difficult to determine the
outcomes of that activity.
Department Response: The Department does not specify what
programmatic data and information States must capture and track; States
are best suited to determine what they capture and track based upon the
specific circumstances in each State. But, States are required to
report to ETA some programmatic information (in accordance with Sec.
682.360, further explained in the preamble) and report expenditure
information, through the ETA 9130 form. Both of these requirements
remain consistent from requirements under WIA. However, given the
nature of some rapid response activities, the Department agrees that
tracking outcome and performance data for all rapid response activities
might prove difficult in some instances and the Department will
provide, as necessary, guidance or technical assistance to support
States with this requirement. No changes were made to the regulatory
text in response to this comment.
Regarding the requirement at Sec. 682.330(j) to provide additional
assistance to local areas, although no comments were received about
this text, the Department wishes to clarify the connection between WIOA
and the regulatory text. WIOA refers to events ``that precipitate
substantial increases in the number of unemployed individuals'' as the
trigger for potential additional assistance. In the regulatory text,
the Department has interpreted this to mean that additional assistance
may be provided ``when such events exceed the capacity of the local
area to respond with existing resources'' to address situations such as
significant increases in unemployment that have resulted in, or have
the potential to cause, a significant impact on the local area's
resources. Therefore, additional assistance also may be used to support
responses to major dislocation events, to provide layoff aversion
efforts, and other allowable activities when these activities exceed
the capacity of a local area's formula resources.
Finally, the Department is making several corrections to the
regulatory text that includes an edit to Sec. 682.330(e), to delete
the reference to WIOA secs. 101(38) and 134(a)(2)(A). Because the
paragraph is specifically referencing national dislocated worker
grants, it now cites only to the part governing those grants, to be
more clear. Also, an edit to Sec. 682.330(h) was made by inserting the
word ``and'' between Sec. 682.330(h)(1) and (2) to reflect that both
are expected benefits of developing and maintaining partnerships
described at Sec. 682.330(h).
Section 682.360 What rapid response, layoff aversion, or other
information will States be required to report to the Employment and
Training Administration?
Section 682.360 requires the reporting of rapid response
information on the WIOA individual record.
Comments: The Department received several comments on the issue of
reporting. One commenter requested that States and locals be given the
opportunity to respond to proposed data collection requirements before
they are enacted.
Department Response: The Department solicited feedback on proposed
data collection requirements through the ICR process governed by the
Paperwork Reduction Act (see 80 FR 43474 (July 22, 2015) and 80 FR
52798 (Sept. 1, 2015)) to ensure that those impacted by collection
requirements would have an opportunity to comment on them. Should
additional performance data reporting elements be required for rapid
response, the Department will work with States and local areas to
ensure that reporting burdens are minimized while still meeting program
reporting goals. Any additional reporting requirements would be subject
to public comment through the ICR process. No changes were made to the
regulatory text in response to this comment.
Comments: Another commenter requested that the services required to
be captured match the WIASRD.
Department Response: Much of what was collected and reported under
WIA
[[Page 56199]]
will continue under WIOA. States will be required to collect and report
in accordance with sec. 116 of WIOA and 20 CFR part 677 (see Joint WIOA
Final Rule). In order to provide clarity on the performance data
reporting expectations for rapid response, the Department has revised
the text at Sec. 682.360. The former text required States to report
the receipt of rapid response services of individuals enrolled as
dislocated workers on the WIOA individual record,'' whereas the text in
the Final Rule clarifies that States are required to report the receipt
of rapid response services for those individuals who have an existing
WIOA individual record or for whom a WIOA individual record is created
under programs that report through this mechanism. The new text also
clarifies the population to be reported by revising the text from
``individuals enrolled as dislocated workers on the WIOA individual
record'' to ``individuals served under programs reporting through the
WIOA individual record.'' These changes account for and align with the
performance definitions for participant and reportable individual
located at 20 CFR 677.150(a) and (b), provide consistency with the
language on the reports, and also place a parameter to more clearly
align with those programs that are required to fulfill reporting
requirements under 20 CFR part 677 (see Joint WIOA Final Rule). The
Department notes that Sec. 682.360 does not independently require the
creation of a WIOA individual record for individuals on account of
their receipt of rapid response, layoff aversion, or other services
under subpart C of this part; rather, Sec. 682.360 requires that where
a WIOA individual record exists for an individual served under programs
reporting through the WIOA individual record, States must also report
information regarding the receipt of services under subpart C. The
Department has also added paragraph (b) to Sec. 682.360, which relays
that States are required to comply with these reporting requirements,
as explained in the Department's guidance. The DOL Performance ICR
contains further specifications regarding the collection and reporting
of receipt of services under subpart C of this part.
Comments: A few commenters noted that there are difficulties
involved with reporting rapid response activities through the WIOA
individual record because rapid response services are not necessarily
individualized. The commenters stated that the rapid response services
are primarily employer and worksite based and that this information is
collected retroactively at best and not likely to produce an accurate
report.
Department Response: While the Department understands the
challenges of using the individual record to report data on rapid
response activities, which are often group-based rather than
individualized, there are various methods by which rapid response
operators may identify and report on individuals who receive rapid
response services. The Department will provide States with technical
assistance on this topic as needed. Additionally, the Department
recognizes the challenges associated with retroactive collection of
information from employers or worksites on rapid response activities
and services; the importance of valid and reliable collection is an
area that was established as a priority under WIA and continues to be
under WIOA. The Department will continue to work across programs to
identify best practices and effective means of collecting data and
ensuring valid, accurate, and reliable reporting. No changes were made
to the regulatory text in response to these comments.
Section 682.370 What are the statewide activities for which rapid
response funds remaining unobligated after the first program year for
which the funds were allotted may be used by the State?
Section 682.370 describes the statewide activities for which rapid
response funds that are unobligated after the first program year for
which the funds were allotted may be used.
Comments: The Department received a few questions from a commenter
regarding this section. The commenter asked whether the term
``unspent'' (used in Sec. 682.370 of the NPRM) means unobligated or
unexpended.
Department Response: The Department agrees that using the term
unspent was confusing and, as a result, has changed the regulatory text
to use the term ``unobligated'' to reflect the provision in WIOA at
sec. 134(a)(2)(A)(ii) in order to avoid confusion. The regulatory text
was further changed to more closely align with the statutory text,
providing a clearer explanation that the Governor may use these
unobligated funds to carry out statewide activities as described in
both Sec. Sec. 682.200 and 682.210. For consistency with the WIOA
provision, the section header has also been changed and now reads
``What are the statewide activities for which rapid response funds
remaining unobligated after the first program year for which the funds
were allotted may be used by the State?''
Comments: The commenter also requested to know whether the
provision at Sec. 682.370 required governors to use unobligated rapid
response funds for statewide activities, and whether statewide
activities are only for ``15 percent funds.''
Department Response: To address the first question, the use of
unobligated funds by the Governor for statewide activities is allowed,
but is not a requirement. The Governor is not required to use the
unobligated rapid response funds to carry out statewide activities, but
has the option of doing so. In response to the commenter's second
comment, the Final Rule text clarifies that the statewide activities
for which the funds may be used include the required statewide
activities described at Sec. 682.200 and the allowable statewide
activities described at Sec. 682.210, which are often referred to
informally as the 15 percent funds.
G. Part 683--Administrative Provisions Under Title I of the Workforce
Innovation and Opportunity Act
This part establishes the administrative provisions for the
programs authorized under title I of WIOA. Some of the provisions are
also applicable to grants provided under the Wagner-Peyser Act, as
indicated in specific sections of this part. The remaining Wagner-
Peyser Act administrative rules are located in 20 CFR part 658. The
Department notes that administrative provisions for Job Corps (subtitle
C of title I of WIOA) contracts are addressed separately in 20 CFR part
686. The analysis that follows provides the Department's response to
public comments received on the proposed regulations for Administrative
Provisions Under Title I of WIOA. If a section is not addressed in the
discussion below, it is because the public comments submitted in
response to the NPRM did not substantively address that specific
section and no changes have been made to the regulatory text. Further,
the Department received a number of comments on this part that were
outside the scope of the regulation and the Department offers no
response. The Department has made a number of non-substantive changes
to correct grammatical and typographical errors to improve the
readability and conform the document stylistically that are not
discussed in the analysis below. Lastly, the terms ``performance
measure'' and ``performance accountability measure'' have been replaced
throughout with ``performance indicator'' and references to the
[[Page 56200]]
implementing regulations for WIOA sec. 188 at 29 CFR part 37 have been
updated to refer to 29 CFR part 38 per the Department's recent
nondiscrimination rulemaking.
1. Subpart A--Funding and Closeout
Section 683.100 When do Workforce Innovation and Opportunity Act grant
funds become available for obligation?
Section 683.100 describes the statutory requirements for the
Department's release of formula funds under title I of WIOA and the
Wagner-Peyser Act.
Comments: A commenter requested clarification on whether there is
consideration for agencies that are not one-stop operators to operate
after June 30, 2016, because their agency received ``WIA'' (Workforce
Investment Act) funds from the State and were informed that they can no
longer perform direct services.
Department Response: It is unclear from the comment to what
agencies and what services the commenter is referring. Because the
Department is unable to determine the meaning of the comment, the
Department has adopted the provision as proposed. However, for
additional information that may be useful, the commenter should see
WIOA sec. 107(d)(10), which provides the local Workforce Development
Boards' (WDBs) responsibilities in selecting operators and providers.
WIOA sec. 107(d)(10) is further discussed in 20 CFR part 679.
Additionally, WIOA sec. 122 details requirements for identifying
eligible training providers. This section is further addressed in 20
CFR part 680. Finally, the Department provided guidance and
instructions on the transition of participants, funds, performance
reports, grants, and subrecipient contracts under title I of the
Workforce Investment Act of 1998 and under the Wagner-Peyser Act to
WIOA. This guidance can be found at TEGL No. 38-14 (``Operational
Guidance to Support the Orderly Transition of Workforce Investment Act
Participants, Funds, and Subrecipient Contracts to the Workforce
Innovation and Opportunity Act'') issued on June 8, 2015;
www.doleta.gov/WIOA/.
The Department also received comments concerning the required
obligation rate of WIOA funds and the reallotment process. The
Department addresses these comments in Sec. 683.135.
No changes were made to regulatory text in response to these
comments.
Section 683.105 What award document authorizes the expenditure of funds
under title I of the Workforce Innovation and Opportunity Act and the
Wagner-Peyser Act?
This section recognizes the use of the three funding instruments
that conform with the Uniform Guidance: Grant agreements, cooperative
agreements, and contracts.
Comments: A few commenters requested the Department provide
clarification to paragraph (e)(3) of this part regarding the length of
time allowed for each award for research, studies, or multi-State
projects under WIOA sec. 169.
Department Response: The Department added additional language in
(e)(3) to clarify the timeline and application of competitive
reevaluation. Awards made under WIOA sec. 169 that do not fall under
the exceptions at paragraph (e)(3)(ii) or (iii) will require a
competitive reevaluation after a 3 year period. This practice is
generally consistent with the practices at other major Federal
grantmaking agencies. Through this competitive reevaluation, the
Department will ensure that the awardee would be competitive should the
award be recompeted. The actual details of the competitive reevaluation
process may vary by award. However, competitive reevaluations generally
will consist of an examination of whether the awardee is meeting its
performance goals and financial reporting obligations. The Department
will not require competitive reevaluation for the types of awards
described in paragraphs (e)(3)(ii) and (iii) because pursuant to the
provisions of WIOA sec. 169(b)(6)(A), awards that meet these
requirements do not need to be competitively evaluated when initially
awarded. However, the regulation includes criteria that must be met for
these types of awards to avoid the competitive reevaluation
requirement. The Department notes that there will be a transition
period while the Department puts in place the processes and procedures
for competitive reevaluation described in this Final Rule.
Additionally, the Department clarified where the language in Sec.
683.105 applies to grants, contracts, and cooperative agreements.
Comments: A commenter requested the Department provide
clarification on whether local areas can utilize only funding to serve
customers in their jurisdictions or if the State can set policy to
allow a broader use of funds.
Department Response: WIOA does not prohibit or require local
residency for an individual to receive services from a local area.
Instead, whether a local area can serve individuals living outside
their local area boundaries depends on State law and policy. Because
the comment does not request a change to the language, no changes were
made in the regulatory text.
Aside from the changes discussed above, the Final Rule adopts the
remainder of the section as proposed with a technical edit to Sec.
683.105(e)(4) to correct language that was inadvertently retained from
the WIA regulations and make this regulation more reflective of the
statutory language at sec. 169(b)(6)(D) of WIOA, and additional
technical edits for clarity to Sec. 683.105(f).
Section 683.110 What is the period of performance of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser Act funds?
This section describes the period of performance for different
types of WIOA title I and Wagner-Peyser Act grant awards.
Comments: The Department received several comments requesting
clarification concerning Sec. 683.110. One commenter requested
clarification regarding the period of time in which funds are available
to carry out a Pay-for-Performance contract strategy.
Department Response: As provided in WIOA sec. 189(g)(2)(D) and
discussed in Sec. 683.530, funds used for a WIOA Pay-for-Performance
contract strategy are available until expended. Because WIOA sec.
189(g)(2)(D) and Sec. 683.530 provide the period of availability for
funds used for WIOA Pay-for-Performance contract strategies, no changes
were made in the regulatory text. The Department expects to provide
future guidance on carrying out WIOA Pay-for-Performance contract
strategies.
Comments: Several commenters discussed the applicability of Sec.
683.110 to the National Farmworker Jobs Program (NFJP) grant
recipients. Specifically the commenters recommended that the Department
be consistent across programs when considering modifications to allow
carryover of funding and not add restrictions for National Farmworker
Jobs Program (NFJP) grant recipients. One commenter recommended that
NFJP grant recipients have the same performance standard stringency as
others and be offered in Sec. 683.110(e) the carryover provisions that
approximate available expenditure allowances by States in Sec.
683.110(b), and that NFJP have the same flexibility as the Governor to
adjust on-the-job training
[[Page 56201]]
(OJT) employer reimbursement levels from 50 to 75 percent.
Department Response: The Department addresses the issues concerning
the NFJP program in the preamble discussion in part 685.
Comments: The Department also received comments concerning the
applicability of Sec. 683.110 for title II programs and State Adult
Education and Family Literacy Act (AEFLA) agencies.
Department Response: The provisions found in Sec. 683.110 are
applicable to funds authorized under title I of WIOA and the Wagner-
Peyser Act. The Department refers the commenters to the Department of
Education's regulations for Programs and Activities Authorized by the
Adult Education and Family Literacy Act at 34 CFR parts 462 and 463.for
additional information regarding AAFLA and title II programs. Because
Sec. 683.110 only applies to WIOA title I and Wagner-Peyser Act funds,
this DOL WIOA Final Rule adopts the provision as proposed.
The Department received no comments on the remaining provisions of
Sec. 683.110, and the Final Rule adopts the section as proposed with
technical corrections. The Department has corrected the reference in
Sec. 683.110(c)(1)(ii) so that it refers to the provision governing
the availability of funds used for WIOA Pay-for-Performance contract
strategies, and it clarifies that this provision is referring
specifically to WIOA Pay-for-Performance contract strategies, as
defined in sec. 3 of WIOA and in subpart E of this part. The Department
notes that the term ``used'' in Sec. 683.110(c)(1)(ii) refers to the
reservation and use of funds mentioned in WIOA secs. 129(c)(1)(D) and
134(d)(1)(A)(ii). Additionally, the Department has corrected Sec.
683.110(f) so that it refers to award documents instead of terms and
conditions of award.
Section 683.120 How are Workforce Innovation and Opportunity Act title
I formula funds allocated to local areas?
This section describes the timeframe and formula factors a Governor
must employ when allocating fund to local areas under secs.128 and 133.
It also specifies the steps a Governor must take when issuing
allocations, including consulting with Local WDBs and elected official
prior to issuing the allocation.
Comments: The Department received a comment in support of this
section. The Department also received several comments concerning the
applicability of Sec. 683.120 to title II programs and State AEFLA
agencies.
Department Response: The provisions found in Sec. 683.120 are
applicable to funds authorized under title I of WIOA and the Wagner-
Peyser Act. The Department refers the commenters to 34 CFR parts 462
and 463 for additional information regarding AEFLA and title II
programs. Because Sec. 683.120 does not apply to title II and AEFLA
agencies, the Final Rule adopts the provision as proposed, with a
technical amendment to Sec. 683.120(a) to correct list format and an
additional technical amendment to Sec. 683.120(b) clarifying the
application of WIOA secs. 129(b) and 134(a).
Section 683.125 What minimum funding provisions apply to Workforce
Innovation and Opportunity Act adult, dislocated worker, and youth
allocations?
This section addresses the minimum funding thresholds for States
funded under title I, subtitle B of WIOA.
Comments: The Department received several comments regarding Sec.
683.125. A few comments raised concerns about the application of a
fiscal year basis versus a program year basis for the minimum funding
provisions. Another comment raised a concern on the application of the
minimum funding thresholds in local areas that have been impacted by
geographical boundary changes.
Two commenters stated that Sec. 683.125(a) should take effect Oct.
1, 2015, for fiscal year (FY) 2016. These commenters stated that the
proposed regulations are silent on whether Sec. 683.125(a) refers to
program year (PY) or FY, but that the Department through TEGL No. 29-14
(``Workforce Innovation and Opportunity Act (WIOA) Adult, Dislocated
Worker and Youth Activities Program Allotments for Program Year (PY)
2015; Final PY 2015 Allotments for the Wagner-Peyser Act Employment
Service (ES) Program Allotments; and Workforce Information Grants to
States Allotments for PY 2015'') has specified that this section refers
to PY 2016.
Department Response: The Department's fiscal year monies are
distributed to grant recipients on a program year basis, as described
in Sec. Sec. 683.100 and 683.125. The youth and adult minimum funding
provisions existed under WIA. The minimum funding provisions under the
WIOA statute go into effect when the FY 2016 funds become available on
July 1, 2016, consistent with TEGL No. 29-14 (see http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm). However,
the Department agrees that the language proposed for Sec. 683.125 was
confusing and has made changes to clarify the relationship between the
fiscal year appropriations and the program year availability in
relation to the minimum funding provisions.
Comments: A commenter also recommended that local areas that change
boundaries should still be eligible for the minimum percentage
provisions for the adult, dislocated worker, and youth programs.
Department Response: The Department agrees that this was a gap in
the language of the proposed regulation and has added Sec. 683.125(c)
to address this issue. States may use WIOA minimum funding procedures
even where the geographical boundaries of some or all local areas are
different from the previous allocation. For example, this can be done
for the PY 2016 WIOA allotment by (1) taking the amount allocated to
WIOA local areas; (2) calculating the amount each local area would have
received using the PY 2015 and PY 2015 WIA allocations (WIA proxy
amounts); and (3) calculating 90 percent of the average WIA proxy
amounts for each local area. Under either the permitted WIA hold
harmless or the WIOA minimum funding (hold harmless) provision, the
amount needed to provide the increased allocation(s) to the affected
local areas is to be obtained by ratably reducing the allocations to
the other local areas.
Section 683.130 Does a Local Workforce Development Board have the
authority to transfer funds between the adult employment and training
activities allocation and the dislocated worker employment and training
activities allocation?
This section provides flexibility to local WDBs to provide services
in the areas of greatest need by allowing fund transfers of up to 100
percent of a program year allocation between the local adult and the
local dislocated worker allocations.
Comments: The Department received several comments regarding Sec.
683.130. Some commenters were concerned with the Governor's approval of
the transfer request and whether the Governor would complete the
request timely or would unreasonably deny a request.
Department Response: The Department agrees that additional language
ensuring that requests are timely and reasonably evaluated would be
beneficial. Consequently, the Department has adopted new regulatory
text for Sec. 683.130 to address the comments regarding the grounds or
criteria a Governor must consider when approving or denying a request
for transfer. The modified text requires the Governor to establish
written policy that
[[Page 56202]]
provides the criteria the Governor will utilize for approving a request
to transfer adult or dislocated worker employment and training activity
funds.
Comments: Another commenter expressed concern that the flexibility
in Sec. 683.130 could lead to local areas transferring 100 percent of
funding away from title I adult programs and could result in drastic
reduction in services to those who need them most. This commenter
recommended a waiver requirement as a prerequisite to gaining funding
transfer flexibility between adult and dislocated worker programs.
Department Response: The Department considered the comments and
determined that a transfer of 100 percent of funds out of one program
to another may drastically reduce services to that program. This
recommendation is inconsistent with the statutory language for two
reasons. First, sec. 133(b)(4) of WIOA explicitly states that 100
percent of the allocated adult and dislocated funds can be transferred.
Second, WIOA states that the Governor is responsible for approving
transfers between the adult and dislocated worker funds, which makes an
additional waiver requirement inappropriate. With the exception of the
previous paragraph, the regulatory text is unchanged.
Comments: Other commenters expressed concern regarding the
performance of local areas and sought clarification whether performance
indicator targets would be rescinded if 100 percent of funds were
transferred from one program to the other.
Department Response: As addressed in 20 CFR part 677 Performance
Accountability (see Joint WIOA Final Rule), the negotiated levels of
performance for the primary indicators remain in effect and a local
area must consider how it will meet adjusted levels of performance for
the primary indicators before requesting such transfer. If the local
area transfers 100 percent of a certain type of funding, it would still
be responsible for meeting the adjusted levels of performance for any
participants that it is required to serve. The Department also
reiterates that when funds are transferred from one program to another,
the transferred funds adopt the identity of the new fund source and are
bound by all of the requirements of that source. The concerns of this
commenter are addressed in part 680. No change was made in the
regulatory text for part 683 in response to these comments.
Section 683.135 What reallotment procedures does the Secretary use?
This section implements secs. 127(c) and 132(c) of WIOA, and
explains the Department's process for recapture and reallotment of
formula funds awarded to the States under title I.
Comments: The Department received several comments requesting
general clarification regarding the Department's procedure for
recapturing and realloting WIOA funds. Additionally, the Department
also received comments asking whether rapid response funds are
considered obligated and whether the amounts allocated to the local
areas must be reported as obligated on the ETA 9130 form.
Department Response: Upon reviewing the proposed language, the
Department concluded that the proposed language was ambiguous because
it (1) implied that certain interagency transfers and amounts allocated
by the States to the local areas under secs. 128(b) and 133(b) of WIOA
were not obligations under 2 CFR 200.71; and (2) inaccurately stated
that certain obligations needed to be reported on the DOL financial
form. Consequently, the Department has revised the language at Sec.
683.135(c).
The Department has simplified the language at Sec. 683.135(c) so
that it simply states that the ``term `obligation' is defined at 2 CFR
200.71.'' This change was made because comments revealed that the
specific inclusion of the items in paragraphs (c)(1) and (2) of the
NPRM led readers to question why other obligations were not included in
this list. This change is meant to clarify that everything that
qualifies as an obligation under 2 CFR 200.71, including rapid response
obligations under sec. 133(a)(2) of WIOA and the transfers and
allocations referenced in paragraphs (c)(1) and (2) of the proposed
regulation, should be counted for the purposes of the reallotment
calculation in Sec. 683.135(a).
In addition to simplifying Sec. 683.135(c), the Department added
Sec. 683.135(d), which states that obligations must be reported on
Department financial forms unless otherwise noted in guidance.
Evaluation of the proposed language done in response to questions about
whether amounts allocated to local areas must be included on the ETA
9130 form revealed that not all obligations for the purposes of
reallotment calculation in Sec. 683.135(a) need to be reported on the
9130 form. The Department has clarified the regulation so that it says
all obligations must be reported on Department financial forms unless
subsequent guidance from the Department includes instructions to the
contrary.
Section 683.140 What reallocation procedures must the Governors use?
This section describes procedures for reallocating youth, adult,
and dislocated worker funds among local areas in the State, in
accordance with secs. 128(c) and 133(c) of WIOA.
Comments: The Department received a comment requesting
clarification on who makes the funding reallocation decision and what
is the maximum time frame for decision-making.
Department Response: WIOA secs. 128(c) and 133(c) provides that the
Governor, after consultation with the State WDB, may reallocate to
eligible local areas youth, adult, and dislocated worker funds. Section
683.140(a) mirrors the statutory language and provides that the
Governor may reallocate local funds after consulting with the State
WDB. Because WIOA identifies the reallocation decision-maker as the
Governor, no change was made in the regulatory text in response to this
comment.
Section 683.140(b) and (c) provide that the reallocation
determination occurs for the prior program year after an evaluation of
all local areas' obligation rates has occurred. However, there is no
required timeframe for a Governor to make a decision as the regulation
maintains the Governor's flexibility and responsibility to make
reallocation decisions regarding the WIOA grant funds. No change was
made to the regulatory text.
Section 683.145 What merit review and risk assessment does the
Department conduct for Federal financial assistance awards made under
Workforce Innovation and Opportunity Act title I, subtitle D?
This section includes requirements mandated by the Uniform
Guidance.
Comments: The Department received several comments requesting a
clarification of ``merit review.''
Department Response: Section 683.145(a) includes the requirements
mandated by the Uniform Guidance at 2 CFR 200.204 that the Department
utilize a merit review process when awarding competitive awards. Title
2 CFR 200.204 states that the process for merit review will be
described in the funding opportunity announcement. The Department has
determined that because the process necessary for ensuring a fair merit
review may vary by competition, additional description of ``merit
review'' is not appropriate for this regulation. No change was made to
[[Page 56203]]
the regulatory text in response to these comments.
Section 683.150 What closeout requirements apply to grants funded with
Workforce Innovation and Opportunity Act title I and Wagner-Peyser Act
funds?
This section addresses closeout, which is an important component to
complete the grant lifecycle. This section paraphrases the Uniform
Administrative requirement sections on closeout and post-closeout
adjustments (2 CFR 200.343 through 200.344).
Comments: The Department received a comment requesting
clarification of the period of time that the Federal government can
disallow costs and for which the grant recipient remains liable for a
Federal debt after grant closeout.
Department Response: Because WIOA of limitations for collection of
a Federal debt depends on many variables not appropriate to regulate,
no changes were made to the regulatory text in response to this
comment.
2. Subpart B--Administrative Rules, Costs, and Limitations
Section 683.200 What general fiscal and administrative rules apply to
the use of Workforce Innovation and Opportunity Act title I and Wagner-
Peyser Act funds?
This section describes the application of Uniform Guidance and the
corresponding exceptions authorized by the Department at 2 CFR part
2900 for all grant recipients and sub recipients, including for-profit
organizations and foreign entities.
Comments: One commenter requested that an appeal process should be
required when the State (pass-through entity) implements requirements
outside the Federal guidelines in 2 CFR part 200.
Department Response: The Department has decided not to require an
appeals process when pass-through entities implement requirements
outside the Federal guidelines in the Uniform Guidance at 2 CFR part
200. This is consistent with 2 CFR part 200, which provides necessary
flexibility to States by extending special considerations when
administering grant funds. The Department determined that requiring an
appeals process when a pass-through entity implements requirements not
included in 2 CFR part 200 would be unduly burdensome and counter to
the effective administration of the grants. The commenter should note
that Sec. 683.600 offers protections for subrecipients if a
requirement imposed by a pass-through entity violates the requirements
of title I of WIOA. Consequently, because the Department has determined
that the proposed appeals process would not support the effective
administration of the grants and adequate protections are already in
place, no change was made in the regulatory text.
Comments: One commenter requested an explanation of the addition
method in Sec. 683.200(c)(6).
Department Response: The Department has determined that the
description in Sec. 683.200(c)(6) and reference to 2 CFR 200.307
adequately describes the addition method for the purposes of the
regulation and that any additional description of the method would be
better suited to guidance and technical assistance. No change was made
to the regulatory text in response to comments.
Comments: One commenter requested clarification on how a State
should determine compliance with the Buy American provisions. The same
commenter also asked whether State oversight and monitoring
responsibilities under Sec. 683.200 include programmatic monitoring of
local areas or simply financial monitoring and oversight, and if the
latter, where programmatic monitoring expenses should be charged.
Several commenters asked for clarification regarding the applicability
of the section to title II funds, specifically to the requirement to
use the addition method and the Buy American Act.
Department Response: Upon reviewing the commenter's request, the
Department determined that the proposed language about ``American-made
equipment and products'' was confusing. Consequently, the Department
replaced this language with a reference to the relevant section of the
Buy American Act. Additionally, the Department directs the commenter to
Sec. 683.410 of this part which addresses the issue concerning the
classification of costs as either programmatic or administrative for
purposes of WIOA. Section 683.200 describes the application of the
Uniform Guidance and the corresponding exceptions authorized by the
Department at 2 CFR part 2900 for all title I WIOA and Wagner-Peyser
Act grant recipients and subrecipients, including for-profit
organizations and foreign entities. The Department also directs the
commenter to Sec. 683.215(b)(2), which provides that monitoring and
oversight activities related to administrative functions are defined as
administrative. Because these issues are addressed elsewhere, no change
was made to the regulatory text in response to this comment.
The Buy-American requirements apply to funds made available under
title I, title II, or under the Wagner-Peyser Act. However, Sec.
683.200(f) only applies to funds authorized under title I of WIOA and
the Wagner-Peyser Act; no change was made in the regulatory text in
response to this comment.
Section 683.205 What administrative cost limitations apply to Workforce
Innovation and Opportunity Act title I grants?
This section specifies the statutory administrative cost
limitations of title I grant funds.
Comments: The Department received a comment requesting
clarification on whether it is allowable to combine the 10 percent
administrative cost limitation in Sec. 683.205 for all three WIOA
programs into one pool as long as the administrative costs for all
three combined do not exceed the pooled amount.
Department Response: Section 683.205(a)(2) mirrors the language in
WIOA secs. 128(b)(4) and 134(a)(3) and provides flexibility to States
and local areas by allowing administrative funds from the three WIOA
formula funding streams awarded under title I, subtitle B of WIOA to be
pooled and used together for administrative costs for any of the three
programs at the State and locals' discretion. The statutory and
regulatory language clearly state that local areas may pool funds for
administrative costs. No changes were made to regulatory text in
response to this comment.
Section 683.215 What Workforce Innovation and Opportunity Act title I
functions and activities constitute the costs of administration subject
to the administrative cost limitation?
This section defines the functions and activities that constitute
administration in accordance with sec. 3(1) of WIOA, and therefore are
subject to the administrative cost limitations discussed in Sec.
683.205.
Comments: In issuing the NPRM, the Department requested comments on
whether the Department should issue the proposed administrative costs
list as a regulation or as a general description or guidance, whether
the list should be stable or subject to periodic review, and whether
indirect costs should be programmatic or administrative.
The Department received numerous and varied responses regarding its
solicitation. The majority of the comments received concerned whether
the regulation should use a static list to define administrative costs
or whether the regulation should include a more flexible definition,
with a majority of
[[Page 56204]]
the comments stating a preference to maintain a static list to define
administrative costs.
Department Response: The Department reviewed and analyzed the
comments received and decided to maintain a list of administrative
functions in a defined, succinct list instead of adopting a more
flexible definition because it agreed with commenters that it ensures
consistency and clarity in the treatment of the expenditures for WIOA
title I grant funded activities. No change was made in the regulatory
text in response these comments.
Comments: Additionally, commenters also responded to the inquiry as
to whether the Department should treat indirect costs as administrative
or programmatic costs with many commenters suggesting that costs should
be charged to administration or program depending on activity and
function.
Department Response: After reviewing the comments, the Department
concluded that charging of direct and indirect costs as administrative
or programmatic depending on the function is consistent with statute.
This results in an accurate classification of costs and is consistent
with the Uniform Guidance at 2 CFR part 200. Consequently, indirect
costs will be charged as administrative or program costs depending on
activity and function. The proposed language was consistent with this
conclusion. No changes were made to the regulatory text in response to
these comments.
Comments: Several commenters suggested that the language in Sec.
683.215(a) was an expansion from WIA and should not apply to one-stop
operators.
Department Response: Section 683.215(a) provides that
administrative costs are those expenditures incurred by State and Local
Development WDBs, Regions, direct grant recipients, local grant
subrecipients, local fiscal agents, and one-stop operators for the
overall management of the WIOA system and are listed among the
functions enumerated in the list in Sec. 683.215(b). This definition
is substantially the same as it was in WIA. The entities listed in
Sec. 683.215(a) are the same entities, with the exception of Regions,
that are explicitly included in the definition of administrative costs
in sec. 3(1) of WIOA. WIOA clearly requires the inclusion of one-stop
operators, no change was made in the regulatory text in response to
these comments.
Comments: Commenters suggested deleting certain language in Sec.
683.215(b)(4) related to which travel costs should be considered
administrative costs. Commenters suggested that the Department delete
the language referring to overall management of the WIOA system as it
was vague and potentially required certain program costs to be counted
as administrative costs.
Department Response: Section 683.125(b)(4) defined administrative
travel costs as travel costs ``incurred for official business in
carrying out administrative activities or the overall management of the
WIOA system.'' The Department reviewed the section and determined that
it agreed with the commenters. Consequently, the Department modified
the language in Sec. 683.215(b)(4). Two changes have also been made to
Sec. 683.215(c) from the proposed language.
Comments: The Department received a comment requesting a change to
Sec. 683.215(c)(2) so that grant recipients are not required to track
personnel expenditures based on documented distributions of actual time
worked or other equitable cost allocation methods because the language
is inconsistent with the Uniform Guidance in 2 CFR part 200.
Department Response: The Department agreed with the commenter and
removed the language from the Final Rule.
Comments: The Department received several comments concerning Sec.
683.215(c)(4), asking for clarification as to which subgrantees are
responsible for tracking administrative costs and are subject to
administrative cost limitations; specifically, some commenters were
inquiring about the treatment of local grant subrecipients.
Department Response: The Department determined that the proposed
language was ambiguous about how costs incurred for the functions and
activities of local grant subrecipients, as identified in Sec.
683.215(a), should be categorized. Consequently, the Department
modified Sec. 683.215(c)(4) and added language to clarify how the
administrative costs of subrecipients listed in Sec. 683.215(a) should
be categorized. The added language states that costs of contractors and
subrecipients that meet the requirements of (c)(4), other than
subrecipients listed in (a), are program costs. The addition of the
language in the Final Rule will ensure that the intent of WIOA for the
entities responsible for the management of the public workforce system
to track their administrative expenses is clear. The change also
reflects that incidental administrative costs incurred by a contractor
or subgrantee whose intended purpose is to provide identifiable program
services do not have to be identified, broken out from other costs
incurred under the contract or subaward, and tracked against the
administrative cost limitation. Finally, this change does not alter the
requirement provided in Sec. 683.215(c)(1) that costs incurred under
contracts whose intended purpose is administrative must be charged to
the administrative cost category.
Comments: The Department received a request to clarify the
guidelines on infrastructure funding. The Department also received
several comments concerning the applicability of Sec. 683.215 to title
II programs and State AEFLA agencies.
Department Response: The Department notes that infrastructure
funding is discussed in 20 CFR part 678 (see Joint WIOA Final Rule).
Because another part governs infrastructure funding, no change was made
to the regulatory text. The provisions found in Sec. 683.215 are
applicable to funds authorized under title I of WIOA. The Department
refers the commenters to 34 CFR part 462 and 463 for additional
information regarding AEFLA and title II programs. No changes were made
to the regulatory text in response to this comment.
Section 683.220 What are the internal control requirements for
recipients and subrecipients of Workforce Innovation and Opportunity
Act title I and Wagner-Peyser Act funds?
This section describes the internal controls that recipients and
subrecipients must install and have in place when expending WIOA and
Wagner-Peyser Act funds, and is based on 2 CFR 200.303.
Comments: The Department received comments requesting clarification
with regard to the internal control requirements of Sec. 683.220. One
commenter requested a clear definition of the personally identifiable
information (PII) and sensitive information, including documentation
allowed for financial and program data and participant-specific
verification. Another commenter requested clarification of the ``tools
and assistance'' for improving internal control structure under Sec.
683.220.
Department Response: The Department determined that additional
guidance on the definition of PII and available tools and assistance
are not appropriate regulatory text because of the detail that would be
required and the flexibility that is necessary for these definitions.
The Department previously issued guidance on handling Personally
[[Page 56205]]
Identifiable Information (PII) which is found in TEGL No. 39-11
(``Guidance on the Handling and Protection of Personally Identifiable
Information (PII)''), issued on June 28, 2012 (see http://wdr.doleta.gov/directives/attach/TEGL/TEGL_39_11.pdf).
The Department will provide additional guidance on this issue. No
change was made to the regulatory text.
Section 683.230 Are there special rules that apply to veterans when
income is a factor in eligibility determinations?
This section addresses the laws governing the determination of
eligibility for veterans and their spouses for WIOA funded services
with income qualification requirements.
Comments: Two commenters expressed concern about simply referring
questions to the Veterans' Employment and Training Service (VETS)
without further guidance and recommended that the Department explicitly
state the procedures and exceptions in regulations. These commenters
also recommended specific training for one-stop operators and one-stop
staff.
Department Response: The Department agrees with the commenters that
language clarifying procedures and exceptions would be more appropriate
to the regulation than the language referring questions to VETS.
Consequently, the Department has struck the language referring
questions regarding the applicability of 38 U.S.C. 4213 to VETS. In its
place, the Department added language that states that a veteran must
still meet each program's eligibility criteria to receive services
under the respective employment and training program. This same
language also appears in part 680 (Adult and Dislocated Worker
Activities Under Title I of the WIOA). Changing the language in part
683 compliments what is provided in the regulations for the adult and
dislocated worker section and ensures that both sections are congruent
with regard to the Military Pay Disregard for Eligibility
Determination. The added language also clarifies that a veteran must
meet all eligibility criteria to receive services. Finally, although
the Department deleted the language referring questions about the
applicability of 38 U.S.C. 4213 to VETS from the text of the
regulation, the Department encourages interested parties to reach out
to VETS if they have any questions about 38 U.S.C. 4213.
The Department does not agree with the necessity of adding
eligibility and income procedures to the regulation because their
detailed and technical nature is better suited for guidance developed
with the Assistant Secretary for VETS. The Department will consider the
request future for training. No change to the regulatory text was made
in response to these comments.
Section 683.235 May Workforce Innovation and Opportunity Act title I
funds be spent for construction?
This section is based on the requirements in the Uniform Guidance
at 2 CFR 200.439(b)(3), and states that WIOA title I funds must not be
spent on construction, purchase of facilities or buildings, or other
capital expenditures for improvements to land or buildings except with
prior approval of the Secretary.
Comments: A few commenters requested the Department add language to
this section to clarify the allowability of WIOA funds for
construction.
Department Response: Section 683.235 is written to allow the
Secretary to approve the use of title I WIOA funds in the circumstances
provided for in WIOA, including, disaster relief projects under WIOA
sec. 170(d), YouthBuild programs under WIOA sec. 171(c)(2)(A)(i), grant
recipients' responsibilities in meeting obligations to provide physical
and programmatic accessibility, reasonable accommodations, and the
provision of repairs, renovations, alterations, and capital
improvements of property, as well as for other projects that the
Secretary determines necessary to carry out WIOA, as described by under
sec. 189(c) of WIOA.
The Department intended to provide the Secretary with the
flexibility authorized under WIOA to use funds for construction in any
situation where it might be necessary and has determined that it would
not be prudent to limit this flexibility by imposing any requirements
or exclusive lists of use of funds. No change is made in the regulatory
text in response to these comments.
Comments: One commenter suggested that the Department amend this
section to impose a requirement that WIOA funding only be allowed if
the recipient confirms that all contractors and subcontractors that
support a registered apprenticeship program meet the on-the-job
training contract requirements of Sec. 680.700, and are deemed
``responsible contractors'' under E.O. 13673 and the related Federal
Acquisition Regulations (FAR).
Department Response: The Department will provide additional
guidance on using funds for construction. Because the Department
concludes that the detailed nature of the suggested addition is better
suited to guidance and technical assistance, no change was made to the
regulatory text.
Section 683.240 What are the instructions for using real property with
Federal equity?
This section provides rules on State Employment Security Act (SESA)
properties, Reed Act-funded properties, and JTPA-funded properties.
Comments: The Department received two comments requesting the
Department to give priority to UI and WP when transferring or disposing
of real property with Federal equity.
Department Response: The Department does not agree with the
commenters' suggestion to establish priority upon transfer or
disposition as this would undermine the language in sec. 192(a) of WIOA
that allows for the portion of real property that is attributable to
the Federal equity to be used to carry out UI, WP, or WIOA activities.
The use of the buildings, including the proceeds related to their
disposition or transfer, is intended to maximize available resources
and provide flexibilities to UI, WP and WIOA programs. However, the
Department recognizes that the proposed regulation language did not
include guidance as to how proceeds from the disposition of property
with a Reed Act equity should be treated. Consequently, the Final Rule
contains language that clarifies that when there is a disposition of
Reed Act property, that Reed Act equity must be returned to the State's
account in the Unemployment Trust Fund.
Section 683.245 Are employment generating activities, or similar
activities, allowable under title I of the Workforce Innovation and
Opportunity Act?
This section implements sec. 181(e) of WIOA, which restricts the
use of WIOA funds for employment generating activities except where the
activities are directly related to training for eligible individuals.
Comments: Several commenters requested that the Department define
``employment generating activities'' to guide relationships with
economic development partners that also assist with business outreach
and services.
Department Response: Section 683.245 identifies several examples of
employer outreach and job development activities that are considered
``directly related to training for eligible individuals,'' including
employer outreach and job development activities and therefore, are not
prohibited employment generating activities. The list is an
illustrative, but not an
[[Page 56206]]
exhaustive list of examples because the Department does not want to be
overly prescriptive, limiting the discretion of grant recipients in
making decisions about what is ``directly related to training for
eligible individuals'' in their areas. The Department has determined
that additional definition of ``employment generating activities'' is
not necessary. However, the Department will provide future guidance or
technical assistance on this subject.
Comments: Additionally, commenters also recommended that the
Department clarify that business services are an allowable activity for
WDBs and are chargeable to the program cost category.
Department Response: It is unclear as to what business services
activities the commenters are referring. However, the Department has
determined that WIOA and regulations provide sufficient guidance about
which activities are allowable and whether those activities qualify as
program costs. In addition to the guidance found in this section, WIOA
sec. 107(d)(4) provides that local WDBs shall conduct business
engagement and lead efforts to engage with a diverse range of
employers. The employer engagement activities are further defined in
Sec. 679.370(e). Furthermore, the determination of whether an activity
is administrative or programmatic for purposes of WIOA is discussed in
Sec. 683.215. Because WIOA and regulation already provide sufficient
clarity, no change was made in the regulatory text.
Section 683.250 What other activities are prohibited under title I of
the Workforce Innovation and Opportunity Act?
This section describes other activities that are expressly
prohibited in title I of WIOA, including foreign travel paid for by
WIOA formula funds (sec. 181(e) of WIOA), payment of wages of incumbent
workers participating in economic development activities (sec. 181(b)
of WIOA), contracts with persons falsely labeling products as made in
America (sec. 502(c) of WIOA) and others.
Comments: The Department received comments requesting the
Department clearly define prohibited economic development activities in
Sec. 683.250.
Department Response: The language in Sec. 683.250 mirrors the
language in WIOA sec. 181(b)(1) in prohibiting WIOA funds from being
used for the wages of incumbent employees during their participation in
economic development activities provided through a statewide workforce
development system. The Department determined that additional
clarification, because of its technical and detailed nature, is not
appropriate for the regulatory text. However, the Department will
provide additional guidance on this subject.
No changes were made to the regulatory text in response to these
comments.
Section 683.260 What prohibitions apply to the use of Workforce
Innovation and Opportunity Act title I funds to encourage business
relocation?
This section describes the prohibitions on the use of WIOA title I
funds to encourage business relocation, including specific timeframes
when entities can begin working with such businesses. This section also
describes the States' obligation to develop procedures to implement
these rules.
Comments: The Department received a comment recommending that the
Department add language to Sec. 683.260(b) to indicate that a State's
pre-award review criteria must be explained in their Unified or
Combined State Plan, which is available for review by all stakeholders.
Department Response: Section 683.260(b) requires States to complete
a pre-award review to verify that WIOA funds are not used to encourage
or induce a business to relocate from another area if the relocation
results in any employee losing his or her job at the original location.
Section 683.260(b) permits States to develop the criteria for the pre-
review but also requires, in Sec. 683.260(b)(1), that certain elements
must be included.
The Department has determined that it is not necessary to require
that the pre-award criteria be explained in the State's unified or
combined State plan because Sec. 683.260 already requires the State to
create a standardized procedure. The Department will provide additional
guidance and technical assistance on this matter. No change was made to
the regulatory text.
Comments: The Department also received a comment requesting
clarification regarding whether a company that relocates one of its
offices to another State is eligible for WIOA funds to train workers
that are relocating, as long as funds are used to upgrade skills and
not to induce relocation or displace workers, or if this prohibited
under Sec. 683.260.
Department Response: The Department has determined that it is not
appropriate to address such a detailed and fact-specific scenario in
regulatory text. However, the Department will provide additional
guidance on this concern. No change was made in the regulatory text in
response to this comment.
Section 683.275 What wage and labor standards apply to participants in
activities under title I of the Workforce Innovation and Opportunity
Act?
This section describes the wage and labor standards that apply to
WIOA title I participants, including the requirements under the Federal
Fair Labor Standards Act (FLSA) and State and local minimum wage laws.
Comments: Comments requested that the Department define and
distinguish which types of work-based learning, including
apprenticeship and pre-apprenticeship, are subject to the wage and
labor standards in Sec. 683.275.
Department Response: Section 683.275(a) states that it is
applicable to individuals in the work-based learning opportunities who
are determined to be employed in activities under title I of WIOA. The
FLSA, as amended, 29 U.S.C. 201, et seq., applies in determining
whether participants are employees who are covered by the FLSA's
minimum wage and overtime provisions. The Department plans to provide
detailed guidance on when participants must be considered employees
protected under the FLSA. Consequently, the Department has determined
that it would not be appropriate to contain additional clarification on
this point in the text of the regulation.
Section 683.275(c) applies to work-based learning and employment
under title I of WIOA. As described above, whether a particular job
triggers these requirements and protections is a fact-specific enquiry.
The Department has determined it would not be appropriate to analyze
the application of this provision to the two types of jobs submitted by
the commenter. Such analysis is better suited for guidance and
technical assistance.
Section 683.275(d) applies to all allowances, earnings, and
payments to individuals participating in programs under title I of
WIOA. Because the application of this provision does not depend on the
types of jobs involved, the Department has determined that this
provision does not need additional clarification. Consequently, for the
reasons described above, the Department adopts the provision as
proposed.
The commenter should note that the Department previously issued
guidance on the application of the FLSA to work-based training
programs. In addition, the Department will provide additional guidance
on this section.
No changes were made to the regulatory text in response to these
comments.
[[Page 56207]]
Section 683.280 What health and safety standards apply to the working
conditions of participants in activities under title I of the Workforce
Innovation and Opportunity Act?
This section explains what health and safety standards and workers
compensation laws apply to WIOA title I participants.
Comments: The Department received a comment requesting a change in
the regulatory text of Sec. 683.280 to specify that the health and
safety protections in the regulation are also applicable to student
workers.
Department Response: Section 683.280 mirrors the language in WIOA
sec. 181(b)(4). WIOA and this regulation provide that the health and
safety standards established under Federal and State law otherwise
applicable to working conditions of employees are equally applicable to
working conditions of participants engaged in programs and activities
under title I of WIOA.
WIOA utilizes the word ``participant'' throughout the statute and
specifically in sec. 181(b)(4). The term ``participant'' encompasses
the student workers referred to by the commenter and the students are
covered by health and safety laws to the extent that those laws cover
students. Because whether students are covered by the protections at
sec. 181(b)(4) and Sec. 683.280 depends the applicable Federal and
State laws and regulations and cannot be succinctly summarized, the
Department has determined to retain the use of ``participant'' in this
section. No changes were made to the regulatory text in response to
this comment.
Section 683.285 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
This section describes the nondiscrimination, equal opportunity,
and religious activities requirements that, as defined in WIAO sec. 188
and at 29 CFR part 38, must adhere to when using WIOA title I funds.
Comments: The Department received a comment in support for this
provision as well as two comments requesting the Department to provide
boilerplate language as technical assistance for the required provision
under Sec. 683.285 because it is useful to the States.
Department Response: The Department intends to provide additional
guidance and ongoing technical assistance. Additionally, the Department
is not modifying the non-discrimination provisions in the section
because this subject is covered in much greater detail in the WIOA sec.
188 nondiscrimination regulations at 29 CFR part 38. Finally, the grant
agreements issued by the Department, as described in Sec. 683.105,
describe the terms and conditions applicable to the award of title I
WIOA funds and Wagner-Peyser funds, including the non-discrimination
provisions of Sec. 683.285. No changes were made to the regulatory
text in response to these comments.
WIOA sec. 188(a)(5) refers to immigrants authorized by the Attorney
General to work in the United States. Pursuant to the Homeland Security
Act of 2002, Pub. L. 107-296, that authority has been transferred to
the Department of Homeland Security. Section 1517 of the Homeland
Security Act (codified at 6 U.S.C. 557) provides that reference in any
other Federal law to any function transferred by the Homeland Security
Act ``and exercised on or after the effective date of the Act'' shall
refer to the official to whom that function is transferred.
Consequently, the Final Rule contains a reference to the Secretary of
Homeland Security.
Section 683.295 Is earning of profit allowed under the Workforce
Innovation and Opportunity Act?
This section addresses earning profit under WIOA.
Comments: The Department received a comment requesting confirmation
that WIOA allows profit for a one-stop operator.
Department Response: The Department has outlined in Sec.
683.295(a)(2) a requirement for grants and other Federal financial
assistance awarded under secs. 121(d), 122(a), and 134(b) of WIOA,
which allows awardees of Federal financial assistance, such as one-stop
operators, service providers, or ETPs, to earn profit. The pass through
entity must follow 2 CFR 200.323 to ensure that the entities' charges
are reasonable and fair. No changes were made to the regulatory text in
response to this comment.
3. Subpart C--Reporting Requirements
683.300 What are the reporting requirements for programs funded under
the Workforce Innovation and Opportunity Act?
Section 683.300 specifies the reporting requirements for programs
funded under WIOA and the deadlines for such reports.
Comments: The Department received comments regarding what data
standards and performance indicators the Department should require and
how to define and assess the data standards and performance indicators.
Department Response: Section 683.300 does not detail the program
performance elements that a grant recipient should report to the
Department; these elements are discussed in 20 CFR part 677 (see Joint
WIOA Final Rule). The Department will also provide additional guidance
on this section and 20 CFR part 677. No changes were made to the
regulatory text in response to these comments.
Comments: The Department received several comments on Sec. 683.300
concerning the amount of data collection required under WIOA and the
value of the data collected. The commenters suggested that agencies
instead share the information they already have and also periodically
review the reported data to ensure its value to the program and
eliminate any unnecessary reporting of data.
Department Response: The Department's goal is to promote the
government's initiative to manage information as an asset to increase
operational efficiencies, reduce costs, improve services, support
mission needs, safeguard personal information, and increase public
access. The Department intends to use data collected from the
financial, performance, and annual reports to empower our public
workforce system while providing transparency and accountability to our
stakeholders. The Department is not seeking to burden the public
workforce system by the data collection. While the Department
implements its reporting requirements, it will work to ensure that the
reporting is not unnecessarily duplicative while still ensuring that
the interest described above is protected. However, the Department has
determined that additional detail on reporting requirement
implementation is not appropriate for regulation. Consequently, the
Final Rule adopts the provision as proposed.
Comments: A comment was received that requested that the Department
explicitly clarify that reporting requirements may be waived for
libraries when developing lists of ETPs during the first year of WIOA
implementation.
Department Response: WIOA sec. 122 details requirements for
identifying eligible training providers. This section is further
addressed in 20 CFR part 680. The Department did not receive any other
comments on this section. The Final Rule adopts the provision as
proposed with a technical amendment made to Sec. 683.300(a), because
it is unnecessary to clarify that the Department's reporting
requirements would be consistent with governing
[[Page 56208]]
statutes, and a technical amendment to Sec. 683.300(e)(2) and the
addition of Sec. 683.300(h), so as to more clearly reflect the
requirements in 2 CFR part 200.
4. Subpart D--Oversight and Resolution of Findings
Section 683.410 What are the oversight roles and responsibilities of
recipients and subrecipients of Federal financial assistance awarded
under title I of the Workforce Innovation and Opportunity Act and the
Wagner-Peyser Act?
This section defines the roles and areas in which oversight must be
conducted by the recipients and subrecipients, including ensuring
compliance with relevant rules and developing a monitoring system.
Comments: The Department received several comments in support of
this section and explicitly in support of the Department's requirements
for recipients and subrecipients to comply with the EEO requirements of
WIOA as well as the Assistive Technology Act of 1998. A comment was
received recommending that the Department be notified to work with
their State Assistive Technology Act Program (ATAP) with regard to
physical and programmatic accessibility issues.
Department Response: It is unclear from the comment what
notification to the Department the commenter is requesting. No changes
were made to the regulatory text in response to the comments regarding
ATAP. However, the Department will consider State ATAPs as potential
resources while implementing this section.
Comments: A comment received requested clarification on what kind
of grant monitoring is proposed under Sec. 683.410 and whether
recipients and subrecipients will have access to clear monitoring and
oversight standards.
Department Response: Section 683.410(a) requires that each
recipient and subrecipient of title I WIOA funds and Wagner-Peyser Act
funds conduct regular oversight and monitoring of its WIOA and Wagner-
Peyser Act funded programs to ensure compliance with the stated
requirements of title I of WIOA, the Wagner-Peyser Act, the Uniform
Guidance at 2 CFR part 200, and the Department exceptions to the
Uniform Administrative Requirements at 2 CFR part 2900. Section
683.410(b) further requires that Governors are responsible for
developing a State monitoring system that meets the requirements set
forth in Sec. 683.410(b)(2).
The Department is providing grant recipients the flexibility with
designing the monitoring process and procedures to meet the
requirements of Sec. 683.410 and does not want to limit this
flexibility by imposing a specific monitoring process. However, the
Department will continue to provide technical assistance and guidance
on this subject.
No changes were made to the regulatory text in response to these
comments. Additionally, the Department would like to note that although
Sec. 683.410(b)(2)(iii) requires States to have a monitoring system
that enables Governors to determine if subrecipients and contractors
have demonstrated substantial compliance with Wagner-Peyser Act
requirements, violations of Wagner-Peyser Act requirements will be
handled pursuant to the authority and processes in the Wagner-Peyser
Act, as amended, and the implementing regulations at 20 CFR part 658.
5. Subpart E--Pay-for-Performance Contract Strategies
Section 683.500 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract strategy?
This section describes the components of a WIOA Pay-for-Performance
contract strategy and describes WIOA Pay-for-Performance contract as a
specific type of performance-based contract.
Comments: The Department received several comments regarding Sec.
683.500. Several comments requested clarification as to what was
required for a WIOA Pay-for-Performance contract strategy. Some of the
comments received inquired as to the meaning of ``independently''
validating in Sec. 683.500(a)(3) and requested clarification and
guidance as to the Department's intended definition of independent.
Additionally, commenters questioned the affordability of conducting the
feasibility study given the 10 percent funding limitation. Finally,
commenters asked the Department to allow local areas to use existing
studies instead of commissioning new studies. Many of the comments
received concerned the feasibility study requirements. Some comments
requested the elimination of the feasibility study; some comments
questioned its affordability; some comments requested the Department
prescribe what is contained in the feasibility study, and other
comments requested that the Department allow local areas to use
existing studies instead of commissioning new studies.
Department Response: The Department decided against prescribing a
definition of independent validation in order to retain flexibility.
The WIOA Pay-for-Performance contract strategy is one of several
innovative strategies WIOA adopts to place a higher emphasis on
performance outcomes and provider accountability, drive better results,
and incorporate rigorous evaluation and evidence-based practice into
the delivery of workforce services. The WIOA Pay-for-Performance
contract strategy can benefit local areas, job seekers, and business
customers when used to support interventions that either have a high
probability of success based on prior evidence or that have potential
as a promising innovation; have measurable outcomes supported with
authoritative data and strong evaluation methodologies; and are
overseen by experienced managers that have flexibility to adjust their
approach. As authorized by WIOA, the Department intends to provide
local areas with the flexibility needed to implement a WIOA Pay-for-
Performance contract strategy that meets the needs and challenges in
each local area. The Department will provide additional guidance on
this subject to address the scope and minimum requirements of
independent validation.
WIOA sec. 3 provides that the WIOA Pay-for-Performance contract
strategy is a procurement strategy for funds allocated to local areas
for the provision of adult, dislocated worker, or youth training
services. WIOA limits the amount of local allocations available for
WIOA Pay-for-Performance contract strategies to 10 percent of the local
area's allocation available under secs. 128(b) and 133(b)(2)-(3) of
WIOA. WIOA sec. 189(g)(2)(D) specifies that funds used for WIOA Pay-
for-Performance contract strategies shall remain available until
expended.
The NPRM defined the WIOA Pay-for-Performance contract strategy as
having four distinct characteristics, including in Sec. 683.500(a)(2)
a feasibility study to determine whether the proposed intervention is
suitable for a WIOA Pay-for-Performance contract strategy. The
Department required the feasibility study because it determined that,
prior to beginning a WIOA Pay-for-Performance contract strategy, a
local area needs to conduct an analysis to determine whether a WIOA
Pay-for-Performance contract strategy is the right approach. Upon
reviewing the comments, the Department retains its conclusion that the
feasibility study is necessary. Consequently, the regulatory text
retains the feasibility study requirement.
In analyzing the comments received and reviewing the proposed
language, the Department concluded that the
[[Page 56209]]
definition of a WIOA Pay-for-Performance contract strategy and the
requirement of a feasibility study as part of the strategy could
potentially limit the availability of this innovative strategy because
local areas would not have enough funds available under the 10 percent
limit to do both the feasibility study and the rest of the WIOA Pay-
for-Performance contract strategy.
To address this issue, the Department modified that language in
Sec. 683.500(a) and removed the feasibility study requirement from the
WIOA Pay-for-Performance contract strategy definition. However, because
the Department has determined that a feasibility study is necessary,
the Department added a new paragraph (b) in Sec. 683.500 that requires
a local area to conduct a feasibility study prior to implementing a
WIOA Pay-for-Performance contract strategy. Because the feasibility
study is not included in the definition of ``WIOA Pay-for-Performance
contract strategy'' in the Final Rule, the feasibility study is not
subject to the 10 percent limitation.
In addition, the Department decided against prescribing what should
be included in a feasibility study in order to retain flexibility. The
Department intends to provide local areas with flexibility authorized
under WIOA needed to implement a WIOA Pay-for-Performance contract
strategy that meets the needs and challenges in each local area. The
Department does not want to limit this flexibility by imposing any
other requirements or exclusive definitions for WIOA Pay-for-
Performance contract strategies. However, the Department will provide
additional guidance on this subject to address the scope and minimum
requirements of the feasibility study.
The Department decided against prescribing whether local areas can
use existing studies for the reasons described in the previous
paragraph.
Comments: Other commenters recommended adding a phrase to proposed
Sec. 683.500(b) to indicate that a WIOA Pay-for-Performance contract
strategy must include a prohibition against a short-term training
activity and placement into low-wage job strategy for harder to serve
participants.
Department Response: The Department decided against prescribing
prohibitions or outcomes for locals who employ the use of a WIOA Pay-
for-Performance contract strategy in order to retain the local areas'
flexibility authorized under WIOA. However, the Department will provide
additional guidance on this subject.
Comments: Commenters also asked for clarification on whether NFJP
providers or WIOA title II providers are included in WIOA Pay-for-
Performance contracting strategy.
Department Response: WIOA sec. 3(47) is clear that WIOA Pay-for-
Performance contract strategies only include strategies for the
provision of training services under WIOA secs. 134(c)(3) and
129(c)(2). Neither the NFJP program nor title II are located at sec.
134(c)(3) or 129(c)(2). Because WIOA is clear that NFJP and title II
providers are not included in the definition of a WIOA Pay-for-
Performance strategy, the Final Rule adopts the provision as proposed.
However, as described in the NPRM, a WIOA Pay-for-Performance
contracting strategy is only one specific type of a performance-based
contract strategy. Neither WIOA nor the Final Rule is meant to
foreclose NFJP providers, title II providers, or any other providers
from pursuing performance-based contracts or strategies as they are
generally understood, and they are encouraged to do so. The strategies
are considered WIOA Pay-for-Performance contract strategies only if
they fit within the strict requirements of WIOA sec. 3(47) and this
subpart.
No changes were made to the regulatory text in response to these
comments.
Section 683.510 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract?
This section defines the requirements associated with a WIOA Pay-
for-Performance contract, which would be awarded under a WIOA Pay-for-
Performance contract strategy.
Comments: The Department received numerous comments regarding Sec.
683.510 and what is an allowable WIOA Pay-for-Performance contract.
Several comments either equated the WIOA Pay-for-Performance
contract strategies in WIOA to a Pay for Success financing strategy
(sometimes referred to as social impact bonds) or inquired as to the
allowability of a Pay for Success financing model in WIOA, specifically
the allowability of social impact bonds. Other comments recommended
that the Department specify in greater detail the WIOA Pay-for-
Performance contract requirements and that the Department issue
requirements for applications.
Department Response: Pay for Success financing models are an
available WIOA Pay-for-Performance contract type under Sec. 683.510 as
long as the requirements of Sec. 683.500 are met; the Department will
issue future guidance. The Department intends to provide local areas
with flexibility authorized under WIOA needed to implement a WIOA Pay-
for-Performance contract strategy that meets the needs and challenges
in each local area. The Department does not want to limit this
flexibility by imposing any other requirements or exclusive definitions
for WIOA Pay-for-Performance contracts and contract strategies.
However, the Department will provide additional guidance on this
subject. Because Sec. 683.510 does not prohibit the use of a Pay for
Success model and the Department wants to maintain flexibility, the
Department has determined that no additions to the proposed text are
necessary. No changes were made to the regulatory text.
Comments: A few commenters requested that the Department eliminate
the requirement that organizations be eligible service providers to
qualify for WIOA Pay-for-Performance contract funding.
Department Response: WIOA sec. 3(47) limits the WIOA Pay-for-
Performance contractors to those organizations that are eligible under
WIOA secs. 122 or 123. Because this requirement is part of WIOA, the
Department cannot eliminate it. No changes to the regulatory text were
made in response to these comments.
Comments: One comment requested clarification on what providers are
eligible service providers and whether YouthBuild could form a
consortium in an area to provide the services.
Department Response: The requirements for Eligible Training
providers are discussed in 20 CFR part 680. Because another part
governs eligible training providers, the Final Rule adopts the
provision as proposed.
Comments: Another comment sought clarification on whether for-
profits and not-for-profits are treated the same under this section.
Department Response: Section 683.510(f) provides that local
entities may enter into WIOA Pay-for-Performance contracts with
training providers that are eligible under WIOA secs. 122 or 123.
Because WIOA secs. 122 and 123 state, and Sec. 683.295 further
clarifies, that for-profit agencies are eligible to be an eligible
training provider, the Department has determined that these provisions
do not need additional clarification regarding the treatment of for-
profits and non-for-profits agencies. No changes were made in the
regulatory text in response to this comment.
Comments: One commenter requested clarification on whether the
Sec. 683.510(e) requirement that the primary indicators of performance
in sec. 116(b)(2)(A) of
[[Page 56210]]
WIOA be used for performance outcomes means that these primary
indicators of performance are the only indicators that may be utilized.
Department Response: Section 583.510(e) mirrors the language the
WIOA sec. 3(47) which states that the performance elements that must be
included in any WIOA Pay-for-Performance contract are the primary
indicators of performance described in WIOA sec. 116(b)(2)(A). As WIOA
requires the elements at sec. 116(b)(2)(A), they are mandatory for all
WIOA Pay-for-Performance contracts. The Department will provide
additional guidance on whether additional performance outcomes can be
used in determining the amount to be paid a service provider under a
WIOA Pay-for-Performance contract.
Comments: Another comment stated that WIOA Pay-for-Performance
contracts should give priority to innovative interventions that aim to
help hard-to-serve participant populations find jobs and careers that
lead to family-sustaining wages.
Department Response: The Department intends to provide local areas
with flexibility authorized under WIOA that is necessary for the
implementation of a WIOA Pay-for-Performance contract strategy that
meets the needs and challenges in each local area. For that reason, the
Department has decided against adding the proposed priority to the
regulation. The Department does not want to limit this flexibility by
imposing any other requirements or exclusive definitions for WIOA Pay-
for-Performance contracts. However, the Department will provide
additional guidance on this subject.
Comments: A commenter recommended replacing ``must'' in Sec.
683.510(d) with ``may only'' because the use of WIOA Pay-for-
Performance contracts for adult training services or youth activities
is optional under WIOA.
Department Response: The Department is maintaining the language as
proposed because although the WIOA Pay-for-Performance contracts
strategy is optional under WIOA, if it is implemented, it must be used
to provide the services as described in Sec. 683.510(d).
Comments: Commenters urged the Department to clarify the use of the
bonus payments as described in Sec. 683.510(h).
Department Response: The Department has determined that the
inclusion of incentive payments in this provision confused the
Department's description of bonuses. Consequently, the Department has
removed references to incentive payments from this provision. Because
the Department has determined that any additional clarification would
result in an amount of detail not appropriate to this regulation, the
Final Rule adopts the remainder of paragraph (h) as proposed.
Comments: Another comment suggested that requiring independent
validations from an independent evaluator without providing adequate
funding would force local areas to cut services. This commenter
recommended that the Department contract for nationwide local area
evaluation and rotate areas every year that are evaluated.
Department Response: As discussed in the preamble to Sec. 683.500,
the parameters of independent validation will be addressed in future
guidance. However, the local areas will have flexibility in entering
into strategies to validate independently the outcomes achieved under
the WIOA Pay-for-Performance contracts, which should allow local areas
to manage the cost of this external validation while maximizing the
benefits Pay-for-Performance can yield. Independent validation must
meet the statutory requirement of ensuring the performance outcomes
were achieved, thus ensuring the integrity of the payments. No changes
were made to the regulatory text in response to this comment.
Section 683.520 What funds can be used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies?
This section restates the WIOA requirements that funds allocated
under secs. 133(b)(2) and (3) of WIOA can be used for WIOA Pay-for-
Performance contract strategies providing adult and dislocated worker
training, and funds allocated under sec. 128(b) of WIOA can be used for
WIOA Pay-for-Performance contract strategies providing youth
activities.
Comments: The Department received several comments requesting
clarification regarding Sec. 683.520.
One commenter requested clarification concerning the WIOA Pay-for-
Performance contract strategy limits and performance-based contracting.
This same commenter requested clarification of on what expenses are
included in the 10 percent limit for WIOA Pay-for-Performance contract
strategies.
Department Response: Ten percent of the local adult, dislocated,
and youth funds allocated under WIOA secs. 128(b) and 133(b)(2)-(3) are
available for WIOA Pay-for-Performance contract strategies, as
described in Sec. 683.520. However, these caps only are applicable to
WIOA Pay-for-Performance contract strategies, as discussed in this
subpart, and do not impact a local area utilizing performance-based
contracting. Under WIA, many Workforce Investment Boards (Workforce
Development Boards (WDBs) under WIOA) utilized elements of performance-
based contracts with training providers. These contracts incorporated
performance outcomes that contractors were required to meet to obtain
payment. However, these contracts did not contain required elements of
a WIOA Pay-for-Performance contract strategy articulated in this
subpart.
Performance-based contracts are still an available option for local
areas and there is no limit on the use of funds for typical
performance-based contracts, as defined in the Federal Acquisition
Regulations (FAR). Contracts that are not executed under the WIOA Pay-
For-Performance contracting authority may continue to include
performance incentives, either positive or negative or both, in
compliance with the Federal Acquisition Regulations. However, funds
used for performance-based contracts that do not qualify as Pay-For-
Performance contracts do not remain available until expended under WIOA
sec. 189(g)(2)(D). The Department does encourage local areas to refocus
these traditional performance-based contracts to place an emphasis on
the contractor achieving outcomes like participants obtaining and
retaining good jobs, rather than outputs like the number of people
served.
The Department has determined additional clarification on what is
included in the 10 percent limit is not necessary because the
regulation already contains this information. The 10 percent limit
applies to WIOA Pay-for-Performance contract strategies, a term that is
defined in Sec. 683.500(a). Because the regulation already describes
what expenses are included in the 10 percent limit, the Final Rule
adopts the provision as proposed.
Comments: Another commenter requested clarification as to whether
Individual Training Accounts (ITA) are viewed as typical performance-
based contracts and, thus, there is no limit on use of funds for them
under Sec. 683.520.
Department Response: ITAs are defined in Sec. 680.300 and are
payment agreements established on behalf of an individual participant
with a training provider for the provision of training services. ITAs
are not contracts entered into by a local area for the provision of
services to multiple people for the
[[Page 56211]]
provision of all of the performance outcomes in sec. 116(b)(2)(A) of
WIOA; therefore they do not meet the requirements of this subpart.
Comments: A commenter requested clarification on whether the 10
percent limitation in Sec. 683.520 references allotment of funds at
the local level.
Department Response: The Final Rule makes changes to Sec.
683.520(b) to replace the word ``expended'' with ``reserved and used,''
to be more consistent with WIOA secs. 129(c)(1)(D) and
134(d)(1)(A)(iii). Section 683.520(b) provides that no more than 10
percent of the total local adult and dislocated worker allocations can
be reserved and used on the implementation of WIOA Pay-for-Performance
contract strategies for adult training services described in sec.
134(c)(3) of WIOA. Section 683.520(b) further provides that no more
than 10 percent of the local youth allocation can be reserved and used
on the implementation of WIOA Pay-for-Performance contract strategies
for youth training services and other activities described in sec.
129(c)(2) of WIOA. Sections 129(c)(1)(D) and 134(d)(1)(A)(iii) of WIOA
make clear that this limitation applies to funds allocated to the local
areas. Therefore, the regulation as proposed is clear that the 10
percent limits apply to allocations at the local level. The Final Rule
adopts the remainder of Sec. 683.520(b) as proposed, with technical
corrections to better align it with secs. 129(c)(1)(D) and
134(d)(1)(A)(iii) of WIOA. The Department will issue guidance to
explain these new practices in Sec. 683.520.
Section 683.530 How long are funds used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies available?
This section discusses how long funds used for WIOA Pay-for-
Performance contract strategies are available.
Comments: The Department received several comments requesting that
the Department clarify the length of time funds are available for Pay-
for-Performance contract strategies.
Department Response: WIOA sec. 189(g)(2)(D) specifies that funds
used for WIOA Pay-for-Performance contract strategies are available
until expended. This is meant to allow local areas to structure
contracts that include time-intensive service delivery strategies and/
or to structure payments based on outcomes that may take longer to
achieve, measure, and validate than the typical 2-year funding
availability of local area funds. Funds that are obligated but not
expended due to a contractor not achieving the levels of performance
specified in a WIOA Pay-for-Performance contract may be reallocated for
further activities related to WIOA Pay-for-Performance contract
strategies only. The Department will issue guidance to explain these
new practices. WIOA and regulation sufficiently describe the length of
time funds are available for WIOA Pay-for-Performance contract
strategies. No changes were made to the regulatory text in response to
these comments.
Section 683.540 What is the State's role in assisting local areas in
using Workforce Innovation and Opportunity Act Pay-for-Performance
contract strategies?
This section describes both allowable and required State activities
related to WIOA Pay-for-Performance contract strategies.
Comments: Commenters requested clarification if WIOA Pay-for-
Performance contracts would need to be reported under a new line item
on the Summary of Expenditures Report, or if this is tracked during the
procurement process.
Department Response: This information is being issued under
separate Paperwork Reduction Act ICRs. Additionally, the Department
expects to put performance and implementation requirements in place in
the future and will issue guidance to explain these new practices.
Because the Department is still analyzing how to implement the
reporting requirements, no changes were made to the regulatory text.
Comments: Another commenter urged the Department to align the
regulations at Sec. 683.540 with WIOA and Congressional intent in
order to make clear that the Governor's statewide reserve is an
acceptable funding source for Pay-for-Performance core end-payments--
which the commenter defines as the success payments at the end of a
Pay-for-Success contract.
Department Response: This comment raises two potential issues: (1)
the use of Governor's Reserve funds to pay for State performance-based
contract strategies that do not fit within the strict requirements of
WIOA ``Pay-for-Performance contract strategies'' as defined in WIOA
sec. 3(47) and this subpart and (2) the use of Governor's Reserve funds
to support WIOA Pay-for-Performance contract strategies.
This part of the regulation does not limit the ability of the State
to use the statewide reserve funds to carry out various kinds of
performance-based contracts, as defined in the Federal Acquisition
Regulations (FAR). Rather, this part of the regulation addresses how
Governor's reserve funds may be used to support WIOA Pay-for-
Performance contract strategies, a term defined in sec. 3(47) of WIOA
and Sec. 683.500. State and local funds may be used to support
performance-based contracting, including projects that involve ``core-
end payments'' so long as these funds are used consistently with any
restrictions and requirements that might govern those funding sources.
However, grantees should note that unlike the 10 percent of local funds
identified in WIOA secs. 129(c)(1)(D) and 134(d)(1)(A)(iii) as being
available for WIOA Pay-for-Performance contract strategies, funds used
for other types of performance-based contracting do not have the
potential extended period of availability identified in WIOA sec.
189(g)(2)(D) as applying to the 10 percent of funds described in WIOA
secs. 129(c)(1)(D) and 134(d)(1)(A)(iii).
In response to the issue of the use of Governor's Reserve funds to
support WIOA Pay-for-Performance contract strategies, the Department
has added a paragraph (a)(3) to clarify that the items listed in Sec.
683.540(a) are not an exhaustive list of ways in which Governor's
Reserve funds can be used to support WIOA Pay-for-Performance contract
strategies. As the addition explains, Governor's Reserve funds can be
used for other activities supporting WIOA Pay-for-Performance contract
strategies if those uses otherwise comply with limitations that govern
the use of those funds.
For example, as provided in Sec. 683.540(a), Governors may provide
technical assistance to local areas, including assistance with
structuring WIOA Pay-for-Performance contract strategies, performance
data collection, meeting performance data entry requirements, and
identifying levels of performance. This technical assistance can help
local areas move forward in using this contract strategy. Additionally,
the State may either conduct evaluations of such strategies and/or
provide technical assistance to locals regarding the importance of
evaluation of WIOA Pay-for-Performance contract strategies. The State
and local areas may conduct their own evaluations of the WIOA Pay-for-
Performance contracts, or procure an independent evaluator.
Governor's Reserve funds used to support Pay-for-Performance
contract strategies, like Governor's Reserve funds used for other types
of performance-based contracting, do not have the potential extended
period of availability identified in WIOA sec. 189(g)(2)(D). The
Department will issue additional guidance on how these funds may be
used to support WIOA Pay-for-
[[Page 56212]]
Performance contract strategies, including utilizing the Governor's
Reserve for ``core-end payments,'' in compliance with the law. No other
changes were made to the regulatory text in response to these comments.
6. Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
Section 683.600 What local area, State, and direct recipient grievance
procedures must be established?
This section requires local areas, States, outlying areas, and
direct grant recipients of WIOA title I funds to establish and maintain
a procedure for grievances and complaints, including appeals as
appropriate, and describes what the procedure must include, as required
by WIOA sec. 181(c)(1).
Comments: The Department received a comment in support of the
regulation as proposed and another comment requesting clarification
whether Local WDBs or CEOs are considered ``other interested parties
affected'' by the recipient's WIOA programs under Sec. 683.600.
Department Response: Local WDBs and CEOs are among the parties that
qualify as ``other interested parties.'' The Department has determined
that no additional changes to the regulatory text are necessary to
clarify that the broad term ``other interested parties'' includes Local
WDBs and CEOs. No changes were made to the regulatory text in response
to this comment.
7. Subpart G--Sanctions, Corrective Actions, and Waiver of Liability
Section 683.700 When can the Secretary impose sanctions and corrective
actions on recipients and subrecipients of title I Workforce Innovation
and Opportunity Act funds?
This section describes the procedures and circumstances under which
the Department will impose sanctions or take corrective actions, as
described in WIOA sec. 184(b) and (e), against States, local areas, and
grant recipients and subrecipients.
Comments: The Department received several comments on Sec. 683.700
that cited a reference to the ``amount that would be reserved by the
Governor'' and stated that this is currently the Governor's 5 percent
set-aside, then asked for clarification of what portion of funds are
subject to the 5 percent reduction and if this amount is affected by
failure to meet performance standards under Vocational Rehabilitation.
The commenters also requested clarification as to which programs the 5
percent reduction affected.
Department Response: Section 683.700 clarifies that the procedures
described at 20 CFR part 677 will be used to impose a sanction or
corrective action for a violation of WIOA sec. 116 (see Joint WIOA
Final Rule). The cited language in the comment is not in Sec. 683.700
and appears to reference sanctions for a violation of WIOA sec. 116 and
the procedures established in 20 CFR part 677. The preamble to 20 CFR
part 677 addresses issues concerning performance and any applicable
sanctions related to WIOA sec. 116. Because these comments do not
appear to relate to this section, no changes were made to the
regulatory text in response to these comments.
Section 683.710 Who is responsible for funds provided under title I and
the Wagner-Peyser Act?
This section identifies the recipient as the responsible party for
title I and Wagner-Peyser Act funds.
Comments: The Department received a comment requesting
clarification as to Sec. 683.710's application to planning regions.
Specifically, the commenter requested clarification as to what
protections exist if one service area in a region has a corrective
action plan in place.
Department Response: Section 683.710(a) provides that the recipient
of funds is responsible for all funds under its grant award. Section
683.710(b) further provides that where a planning region includes two
separate units of local government, the chief elected official (CEO) of
each unit of local government is the responsible party and that the
individual jurisdictional liability must be established in a written
agreement between the CEOs. The regulation as proposed clearly states
that the potential liability of any unit of general local government in
a planning region is dependent on what the CEOs agree to in the written
agreement required under Sec. 683.710(b)(2). No changes were made to
the regulatory text in response to these comments.
Section 683.720 What actions are required to address the failure of a
local area to comply with the applicable uniform administrative
provisions?
This section requires the Governor to take corrective action and
impose sanctions on a local area if it fails to comply with the
requirements described in this section.
Comments: The Department received a comment requesting a change to
Sec. 683.720(a)(2) to add language that prior to imposing sanctions,
the Governor should find a substantial violation and that the local
area has failed to take corrective action. The commenter suggested that
the additional language would align to Sec. 683.720(a)(2) with WIOA
sec. 184(b)(1).
Department Response: The Department analyzed the comment as well as
all of the language in WIOA sec. 184 and determined that Sec.
683.720(a)(2) is consistent with WIOA sec. 184. WIOA sec. 184(a)(5)
provides that if a Governor determines that a local area is not in
compliance with the uniform administrative requirements, the Governor
must require corrective action to secure prompt compliance with the
requirements and impose the sanctions found at WIOA sec. 184(b). WIOA
sec. 184(a)(5) requires corrective action regardless of whether the
violation of the Uniform Administrative Requirements is substantial. In
contrast, WIOA sec. 184(b) only requires action by the Governor for
violations of title I of WIOA if those violations are substantial. WIOA
clearly requires corrective action for violations of the Uniform
Administrative Requirements even if those violations are not
substantial. No changes were made to the regulatory text in response to
this comment.
Comments: The Department received a comment requesting a change in
Sec. 683.720(c)(1) to add language stating that if the Secretary finds
that a Governor has failed to meet the requirements in Sec.
683.720(c)(1), then the Secretary must take the action required in
Sec. 683.700(b) consistent with procedures established in Sec.
683.440.
Department Response: The Department determined that adding the
language in Sec. 683.720(c)(1) is not necessary as Sec. 683.700
adequately outlines the necessary actions the Secretary should take if
a Governor fails to take actions against a local area and includes the
requirement that the Grant Officer use the procedures outlined in Sec.
683.440 (except in certain circumstances not applicable to violations
of WIOA sec. 184(a)). No changes were made to the regulatory text in
response to this comment.
Section 683.730 When can the Secretary waive the imposition of
sanctions?
This section permits a recipient to request a waiver of liability,
and describes the factors the Grant Officer will consider when
determining whether to grant the request.
Comments: The Department received comments regarding Sec. 683.730.
The comments requested the Department fix a clerical error in Sec.
683.730(b)(1) by
[[Page 56213]]
removing the word ``is'' after the word ``waiver'' to better clarify
the meaning of the provision.
Department Response: The Department agrees about the need to make a
non-substantive textual edit to Sec. 683.730(b)(1) and has made the
suggested change.
The Department received no comments on the remaining provisions in
Sec. 683.730, and has adopted each as proposed.
H. Part 684--Indian and Native American Programs Under Title I of the
Workforce Innovation and Opportunity Act
1. Introduction
This part of the Final Rule governs the Indian and Native American
Programs authorized under sec. 166 of WIOA. This Final Rule section-by-
section discussion details the Department's responses to public
comments on the proposed part 684 regulations. The analysis that
follows provides the Department's response to public comments received
on proposed part 684 regulations. If a section is not addressed below,
it is because the public comments submitted did not substantively
address that specific section and no changes have been made to the
regulatory text. Further, the Department received a number of comments
on this part that were outside of the scope of the regulation and the
Department offers no response. Lastly, the Department has made a number
on non-substantive changes to correct grammatical and typographical
errors to improve the readability and conform the document
stylistically that are not discussed in the analysis below.
In this part, one conforming edit was made throughout to replace
the term, ``performance measures'' with the term ``performance
indicators.''
2. Subpart A--Purposes and Policies
Section 684.110 How must Indian and Native American programs be
administered?
Comments: Multiple commenters recommended that Sec. 684.110
include language that would require the Department to utilize staff
with a particular competence in Federal policies that have tribal
implications and address the government-to-government relationship
between the United States and Indian tribes.
Department Response: The Department agrees with the commenter that
it is in the best interest of the INA program to utilize employees that
have a particular competence in INA employment and training programs.
The Department makes every effort to ensure staff are fully competent
in the relevant field to administer all of the Department's programs,
including the INA program authorized by sec. 166 of WIOA. As part of
this effort, the Department actively recruits experienced and
knowledgeable staff, including through recruitment of individuals
eligible for Indian hiring preference for positions within the Division
of Indian and Native American Programs. This effort also targets those
who have experience in working with Indian tribes and communities in
the development and administration of INA employment and training
programs.
The Department seeks to hire competent individuals for all of its
programs and has determined that it is not appropriate to include a
competency requirement in regulation for just the INA program. No
changes to the regulatory text were made in response to these comments.
Section 684.120 What obligation does the Department have to consult
with the Indian and Native American program grantee community in
developing rules, regulations, and standards of accountability for
Indian and Native American programs?
Comments: A commenter expressed concern about whether the WIOA
primary indicators of performance had been developed with input from
the INA communities and the Native American Employment and Training
Council (NAETC) and whether the new WIOA indicators removed the
requirement of consultation. This commenter further stated that the
NAETC has been working to develop realistic performance goals and
suggested that INA programs should not be evaluated on national
standards that cannot be attained in Native communities.
Department Response: Per secs. 166(h) and 166(i)(2) of WIOA and
Sec. Sec. 684.120, 684.460, 684.620, and 684.940, the Department is
required to consult with NAETC and INA communities. The Department
conducted town hall meetings, tribal consultations, and listening
sessions with the NAETC and INA communities and will continue to ensure
that INA programs and the NAETC be consulted. No changes to the
regulatory text were made in response to this comment.
Comments: The comment also references the requirement that INA
program grantees report on the primary indicators of performance
described in sec. 116(b)(2)(A) of WIOA.
Department Response: As described in sec. 116(b)(2)(A) of WIOA, the
performance indicators are mandated by WIOA. The Department does not
have the authority to change the statutorily required performance
indicators in WIOA. However, it fully intends to continue meaningful
discussions and consultation with the NAETC as well as with INA program
grantees and other stakeholders in the implementation of the
indicators, including the establishment of targets and levels of
performance for each indicator as well as the potential for waivers.
Section 684.130 What definitions apply to terms used in this part?
Comments: Regarding the ``high-poverty area'' definition's
reference to the American Community Survey (ACS) 5-year data, one
commenter said that this is misstated because the Department has not
initiated using the ACS 5-year data as it has not replaced the Census
2000 tab with more recent required data.
Another commenter stated that ACS raises questions about the
reliability of data for the Indian population, asserting that State
Data Centers and Census Information Centers nationwide express concerns
for the high margin of error in small populations and small geographic
areas. Stating that changes were made in 2011 to improve the data and
that the full effect of these improvements will not be known until
2017, this commenter urged the Department to allow tribes to use their
own census statistics in the interim until reliable data are available.
Multiple commenters also proposed a different definition of ``high-
poverty area'' that uses specific terms as defined by the U.S. Census
Bureau: ``a Census tract, a set of contiguous Census tracts, an
American Indian Reservation, Oklahoma Tribal Statistical Area (as
defined by the US Census Bureau), Alaska Native Village or Alaska
Native Regional Corporation Area, Native Hawaiian Homeland Area or
country.'' In addition, these commenters recommended that in the Native
American supplemental youth services program, the definition of ``high-
poverty area'' should relate specifically to poverty rates for the
Native American population as that is the target population for this
program.
Department Response: As of the date of these Final Rules, the
Department is using special tabulations from the Census Bureau for the
INA funding formulas described at Sec. Sec. 684.270(b) and 684.440(a).
As stated by the commenter, these special tabulations are based on 2000
decennial census data and have not been updated with ACS 5-year data;
however, the special tabulations for the
[[Page 56214]]
formula are a different calculation than the one for determining high-
poverty. The calculation for determining high-poverty can be obtained
by INA program grantees using ACS 5-year data from the Census Bureau's
Web site.
Comments: A commenter raised concerns regarding the use of ACS 5-
year data in determining the poverty rate for a given census tract.
Department Response: The Department recognizes there will be
margins of error inherent to the ACS 5-year data and that the margin of
error is likely to be greater for census tracts with smaller sub-
populations, such as Native Americans living in rural and remote
reservation areas. The ACS 5-year data are administered by the U.S.
Census Bureau and is subject to a uniform methodology for collecting
population and poverty data for all census tracts throughout the United
States. Conversely, allowing tribes to use their own census statistics
does not provide for such uniformity, as the method that one tribe uses
to count individuals could be different than how another tribe counts
individuals. Because the methodology for counting individuals must be
the same across all of the United States to ensure fairness, and
because the U.S. Census Bureau is the only source that can provide such
uniformity, the Final Rule continues to reference ACS 5-year data.
Regarding the remainder of the definition of ``high-poverty area,''
the Department agrees with the commenter and has adopted more precise
U.S. Census Bureau language. The Department also has added language
that permits the Secretary to identify other areas that an applicant
can use to calculate the poverty rate, which allows flexibility in case
the areas change for which ACS5-Year data are available.
The Department also agrees that INA program grantees should be able
to look to the poverty rate of INA individuals when determining if an
area is ``high-poverty.'' The Department recognizes that it is possible
for the overall poverty rate in a census tract to be below the 25
percent poverty threshold for the general population while the poverty
rate among the INA sub-population in that same census tract is greater
than 25 percent. Consequently, the Department added language to the
definition of high-poverty area permitting INA program grantees to
claim ``high-poverty'' status for a particular area if the poverty rate
of the INA population is at least 25 percent; however, the Department
has retained language that allows an area to be considered high-poverty
where 25 percent or more of the general population is in poverty. The
Final Rule retains this language in order to allow INA program grantees
the flexibility of selecting the methodology that is more advantageous
for its participants. Therefore, grantees may calculate the poverty
rate using the following two methodologies: (1) The number of low-
income individuals in a census tract divided by the total number of
individuals in the same census tract; or (2) the number of low-income
INA individuals in a census tract divided by the total number INA
individuals in the same census tract.
While no comments were received on this section about the 30
percent threshold used in determining high poverty, the Department
received many comments about the 30 percent threshold in a similar
section of the regulation (Sec. 681.260). As a result of the numerous
comments on Sec. 681.260 and the analysis of the comments, the
Department determined that a poverty rate of at least 30 percent was
too high, and the Final Rule requires a poverty rate of at least 25
percent. Consequently, the Department has changed the percentage
requirement for this section to be consistent with Sec. 681.260.
The Department also made clarifying edits to Sec. 684.130 to the
meaning of and Indian-Controlled Organization.
3. Subpart B--Service Delivery Systems Applicable to Section 166
Programs
Section 684.200 What are the requirements to apply for a Workforce
Innovation and Opportunity Act grant?
Comments: A commenter requested that the Department eliminate or
lower the $100,000 threshold in proposed Sec. 684.200(a)(2). This
commenter stated that the proposed threshold would eliminate 36 small,
long-time grantees and would leave many rural people unserved on their
reservations. The commenter also questioned the reasoning behind
allowing tribes participating in the consolidation program under Public
Law 102-447 to receive funding under sec. 166 for less than $100,000
but greater than $20,000 but not afford a similar exception for INA
program grantees that are not participating in Public Law 102-447 but
receive funds from multiple sources.
Department Response: The Department has determined that grants of
less than $100,000 are not sufficient to operate an employment and
training grant effectively. The Department has made an exception for
certain incumbent grantees whose funding was less than $100,000,
because the Department recognizes that many of these entities are well-
established in the community and have been operating an employment and
training program for many years. Because incumbent grantees can
continue to operate grants even if those grants are for less than
$100,000, the Department has determined that implementation of this
provision as proposed would not eliminate the 36 incumbent grantees to
which the commenter refers.
As for allowing tribes that participate in the Public Law 102-477
program to have a lower funding threshold than grants administered
through the Department, the Department reached this decision because
Public Law 102-477 allows for Federal employment and training related
funds to be consolidated into one grant. This consolidation results in
administrative savings that make smaller grant amounts administratively
manageable. Therefore, while the WIOA portion of the consolidated grant
can be as low as $20,000, all Federal resources combined under the plan
must total at least $100,000. Because the Department has determined
that Sec. 684.200(a)(2) would not eliminate the 36 incumbent grantees
and because tribes participating in Public Law 102-477 also have the
same $100,000 Federal funding threshold under a consolidated grant, no
changes have been made to regulatory text except for re-numbering and
non-substantive edits to paragraphs (c), (d), and (g) for clarity.
Section 684.220 What is the process for applying for a Workforce
Innovation and Opportunity Act grant?
Comments: As part of a Council resolution submitted as a public
comment, the NAETC wrote ``the NAETC agrees and recommends that 4 year
eligibility of American Indian, Alaska Native and Native Hawaiian
grantees may be designated for such periods, except as the Secretary
may choose to waive competition for select grantees who have performed
satisfactorily.''
Department Response: The NAETC's resolution suggests that the
Secretary may choose to waive competition for select INA program
grantees that have performed satisfactorily. Although that authority
existed under sec. 166(c)(2) of WIA, WIOA removed that provision.
Accordingly, sec. 166(c) requires a grant competition to be held every
4 years for all grantee service areas, and Sec. 684.220 is consistent
with sec. 166(c) of WIOA. No changes to the regulatory text were made
in response to this comment.
[[Page 56215]]
4. Subpart C--Services to Customers
Section 684.310 What are Indian and Native American program grantee
allowable activities?
Comments: A commenter indicated that the allowable activities
reference to 20 CFR 678.430 could not be found.
Department Response: The Department has determined that the
reference to 20 CFR 678.430 was correct. Proposed regulations for WIOA
were issued in two separate NPRMs in the Federal Register. One NPRM
includes proposed rules for Department of Labor programs only; this
NPRM included regulations for the INA program. The other NPRM provides
proposed joint rules for the Department of Education and the Department
of Labor. Language referenced at 20 CFR 678.430 was published in the
Joint WIOA NPRM (80 FR 20574, Apr. 16, 2015). No changes to the
regulatory text were made in response to this comment.
Section 684.350 What will the Department do to strengthen the capacity
of Indian and Native American program grantees to deliver effective
services?
Comments: A commenter requested that the Department expand on the
language that the Department will provide technical assistance and
training (TAT) to ``assist INA program grantees to improve program
performance and improve the quality of services to the target
population(s), as resources permit.'' Specifically, this commenter
asked for clarification regarding available resources to provide such
TAT and asked how the ``quality of services'' would be defined--
specifically and culturally appropriate--within Indian country.
Department Response: The Department has decided to retain the
regulatory text as proposed to preserve flexibility if additional
resources become available. The Department notes that the regulatory
text identifies two resources that can be used for TAT: (1) Funds
reserved under Sec. 684.270(e) and (2) unawarded funds under Sec.
684.260.
Comments: The commenter also asked about the definition of
``quality of services.''
Department Response: Quality services can take many forms such as
high quality career and guidance counseling, helping individuals with
job search and job placement assistance, mentoring, financial support
for quality training and education, and providing the necessary
supportive services to help individuals overcome barriers, etc. The
Department notes that grantees are required to describe the quality of
services that will meet their customers' needs in their 4-year
strategic plan and provides guidance on the content of that plan. The
Department then monitors grantees to ensure they are providing the
quality services reflected in their plan, provides rigorous technical
assistance to improve quality in the course of these reviews and
ongoing, and disseminates best practices that exemplify quality
services.
5. Subpart D--Supplemental Youth Services
Section 684.410 What entities are eligible to receive supplemental
youth services funding?
Comments: Multiple commenters opposed the exclusion of Federally
recognized tribes that do not have a land base, commenting that this
limitation fails to recognize the unique history of California Indians
and would adversely impact the Federally recognized tribal communities
that do not yet have land in trust but have been eligible for funding
and have received services under prior workforce legislation.
Explaining some of the land history of California tribes, a commenter
suggested that Federally recognized tribes without a land base in
California should not be prevented from receiving funding or offering
supplemental youth services to their members and asserted that the
exclusion of the California tribal communities within the service area
would have discriminatory effects on Federally recognized tribes
without a land base in California.
Department Response: Upon review of the comments, the Department
has included new language similar to the regulatory language that was
in effect under WIA. The Department notes that, currently, recipients
of youth funding are limited to entities with a land base per the
formula that The Department has established with the input of the NAETC
pursuant to the requirements of Sec. 684.440. The youth funding
formula is based on demographic data from the U.S. Census Bureau using
the geographic boundaries of American Indian reservations, Oklahoma
Tribal Statistical Areas (OTSAs), Alaska Native Village Statistical
Areas (ANVSAs), Alaska Native Regional Corporations (ANRCs), and the
State of Hawaii. During the conversion process from the 1990 census to
the to the 2000 census under WIA, the Department consulted with the
NAETC's census workgroup on the youth funding formula. The 2000 census
workgroup made no recommendations to change this methodology.
Therefore, the methodology of awarding youth grants continues to be
based on American Indian reservations, OTSAs, ANVSAs, ANRCs, and the
State of Hawaii. Finally, INA program grantees should note that even if
they are not required to have land base to receive youth supplemental
funds, sec. 166(d)(2)(A)(ii) still limits participants in INA youth
programs to ``youth on or near Indian reservations and in Oklahoma,
Alaska, or Hawaii.''
Section 684.430 What individuals are eligible to receive supplemental
youth services?
Comments: A commenter supported the increase in age from 21 to 24
and asked whether additional funding will be considered to best serve
this population that has been defined by the Department as most in need
and having barriers to employment.
Department Response: Program funding is ultimately determined by
Congress through annual funding appropriations for Federal employment
and training programs. Consequently, there is not necessarily a
relationship between an increase in the number of individuals eligible
for a program and an increase in funding. No changes to the regulatory
text were made in response to this comment.
Section 684.460 What performance indicators are applicable to the
supplemental youth services program?
Comments: Several commenters expressed concerns with the
performance accountability indicators applicable to the Native American
supplemental youth services program. These concerns fall into three
categories: (1) Concerns about the feasibility of implementing the
performance indicators given the limited amount of funding available
for the youth supplemental program, (2) concerns about the
applicability of the youth performance indicators given that most
tribes use INA youth funds operate a summer employment program only,
and (3) specific concerns about regulation language. Several commenters
suggested that the Department retain the WIA performance measures or
waive the WIOA performance indicators.
Multiple commenters raised concerns about expense and feasibility
of data collection for the performance indicators, particularly that
the current performance reporting system used by INA program grantees
(Bear Tracks) is not adequate for the proposed performance requirements
and would be costly to upgrade. Specifically, a commenter asserted that
the total update cost may exceed $1 million,
[[Page 56216]]
stating that the current Microsoft Access platform does not allow the
Department to obtain real-time data across the INA grant community
because it is not Web-based. This commenter also asserted that training
would be necessary for INA program grantees on a nationwide basis on
the new performance reporting system.
Multiple commenters stated that, given the disparity in funding
between the INA youth grants and the State grants, it is not reasonable
or practical to require the same level of service and effort in
collecting performance data given the small median size of grants. A
commenter stated that the INA youth program currently does not have the
ability to do wage matching through the Wage Record Interchange System
(WRIS). This commenter expressed concern regarding the burden on INA
program staff over following up with participants to determine the
``unsubsidized employment'' aspect of certain performance indicators.
A commenter expressed concern that maintaining current regression
models for the INA program grantees that factor in local economic
conditions is an additional cost that must be considered.
A commenter said that such programs are not conducive to meeting
several of the State performance indicators, stating that most INA
program grantees only operate summer employment programs for high
school-aged youth,. Because the INA program is not a core program, a
commenter suggested that the ``effectiveness in serving employers''
performance indicator should not apply to INA programs, citing WIOA
sec. 116(b)(2)(A)(iv).
A commenter proposed that the Department allow the INA program to
modify the definitions for the indicators to better fit a summer
employment program that primarily serves high school-aged youth that
return to high school in the fall and that the regulations or ETA
policy clarify that the indicators cannot be used to determine INA
program grantee performance. This commenter suggested that while the
Department develops performance indicators for the INA youth programs
in consultation with the INA program grantee community and the NAETC,
the Department should establish a waiver process under which INA
program grantees would continue to use the current Tribal Supplemental
Youth Services performance indicators and goals under WIA as part of
the 4-year strategic plan.
Commenter concerns about other specific regulation language
included: Multiple commenters asked for more specificity on what is
considered an ``education or training'' activity and whether high
school is considered an ``education'' activity. Another commenter
expressed opposition to proposed Sec. 684.460(b), which would require
the Secretary, in consultation with the NAETC, to develop additional
performance indicators (in addition to the primary indicators of
performance). A commenter encouraged the expansion of the median
earnings performance measure in Sec. 684.460(a) to include
consideration of a participant's economic self-sufficiency level or
economic security level in addition to median earnings. Another
commenter stated that the reference in Sec. 684.620(a)(6) to WIOA sec.
116(b)(2)(A)(iv) is incorrect. Instead, the reference should be to sec.
116(b)(2)(A)(i)(VI).
Department Response: The Department held two tribal and grantee
consultations on WIOA in which stakeholders raised concerns with the
youth performance indicators similar to the concerns expressed in these
comments. The Department recognizes that there are significant
challenges in implementing the youth performance indicators at sec.
116(b)(2)(A)(ii) of WIOA. While the Department cannot change statutory
requirements such as performance indicators, consideration has been
given to how youth performance indicators can be implemented in a way
that is realistic and feasible for INA program grantees while also
maintaining the requirements in WIOA.
Because WIOA requires the use of the performance indicators at WIOA
sec. 116(b)(2)(A) for the recipients of funds under WIOA sec. 166,
including the youth performance indicators at 116(b)(2)(A)(ii), no
changes have been made to the regulatory text in response to these
comments.. However, the Department notes that recipients of youth funds
under sec. 166 of WIOA may request a waiver of the youth indicators of
performance pursuant to waiver procedures that will be established
under sec. 166(i)(3) of WIOA. The waiver procedures established
pursuant to sec. 166(i)(3) of WIOA generally will be consistent with,
but not identical to, the waiver requirements under sec. 189(i)(3)(B)
of WIOA. The Department will consult with the NAETC before developing
guidance on the waiver process. The Department anticipates that this
guidance will include youth performance indicators that may be
substituted for the performance indicators identified at WIOA sec.
116(b)(2)(A). Finally, the Department also envisions that waivers to
the youth performance indicators will be requested at the beginning of
a 4-year grant award cycle, in the 4-year strategic plan and will waive
youth performance indicators for the duration of the 4-year grant cycle
plan. Through this process, the Department anticipates that recipients
of youth INA funding can establish performance indicators that address
both the grantees' feasibility and applicability concerns.
Comments: Commenters' requested more specificity on what is
considered an ``education or training'' activity and whether high
school is considered an ``education'' activity.
Department Response: The Department will provide clarification on
this and other performance-related terms in guidance. Finally, the
Department also will work with the NAETC to update the INA programs'
current MIS system or develop a new MIS system to collect the data
necessary (including wage records) to report on the outcomes of the INA
youth indicators, (as well as the outcomes of INA adult performance
indicators).
Comments: Commenters expressed concerns about establishing a
statistical regression model.
Departments Response: The Department acknowledges the commenters
concerns about the cost of maintaining a statistical regression model.
The cost of developing a statistical adjustment model is the
responsibility of the Department and the Department continues to seek
ways to develop accurate and fair statistical adjustment models that
are cost effective and maintainable. As the Department continues to
implement WIOA and refine the application of the model for sec. 166
grantees the Department will provide additional information.
As for the concern about the applicability of the performance
indicator regarding effectiveness of serving employers under Sec.
684.460(a)(6), the Department has determined that WIOA sec. 166(h)
requires the use of all performance indicators under WIOA sec.
116(b)(2)(A), including the indicator on effectiveness in serving
employers at sec. 116(b)(2)(A)(i)(VI). That WIOA sec. 116(b)(2)(A)(iv)
references the core programs does not limit the applicability of the
indicator on the effectiveness in serving employers to the core
programs. Because WIOA clearly requires the application of the
indicator on effectiveness of serving employers for recipients of funds
under sec. 166, no changes have been made to the regulatory text.
[[Page 56217]]
Regarding the incorrect reference in Sec. 684.620(a)(6), the
Department has examined the reference to sec. 116(b)(2)(A)(iv) in Sec.
684.460(a)(6) and has determined that the reference is correct.
Concerning the opposition to Sec. 684.460(b), which requires the
development of performance indicators that are in addition to the
primary indicators of performance, this is a statutory requirement and
cannot be altered here.. However, as part of a waiver request, the
Department envisions that these additional indicators which will be
developed in consultation with the NAETC, may be used in lieu of the
primary indicators of performance specified at Sec. Sec.
684.460(a)(1)-(6) and 684.620(a)(1)-(6). Please see further discussion
of the adult performance indicators in the preamble corresponding to
Sec. 684.620.
Comments: A commenter encouraged the Department to expand the
median earnings performance indicator at Sec. 684.460(a)(3), to
include a participant's economic self-sufficiency level or economic
security level.
Department Response: The Department determined that there is not an
accurate way of converting a self-sufficiency/economic security level
into an average earnings amount. No changes have been made to
regulatory text in response to these comments.
6. Subpart F--Accountability for Services and Expenditures
Section 684.620 What performance indicators are in place for the Indian
and Native American program?
Comments: The comments on the performance indicators in Sec.
684.620 raise many of the same issues as the comments on the youth
performance indicators in Sec. 684.460. For example, many commenters
expressed concerns about the cost of implementing the performance
indicators and suggested that the Department should develop performance
indicators with the help of INA program grantees. Additionally,
commenters noted challenges with the proposed use of reporting
following the State reporting mechanisms and urged the Department to
negotiate with and assist INA program grantees in developing a
culturally amenable system of reporting that does not impede grantees
ability to prioritize services to participants.
Another commenter expressed concerns that the proposed performance
indicators would require a significant re-design (or replacement) of
the current performance reporting system used by INA program grantees
(Bear Tracks).
A commenter noted that more than one-third of the WIOA sec. 166 INA
program grantees are allocated less than $100,000. The commenter
expressed concerns that WIOA increases the reporting burden for WIOA
sec. 166 programs by using a more complex set of indicators and
expressed concern for the statistical regression model.
A commenter suggested that INA programs should have their own
performance indicators that they help to develop and another commenter
suggested that a waiver provision for performance is necessary.
Additionally, a commenter suggested that the Department may have
violated E.O. 13175's requirements to consult with tribal officials in
the development of Federal policy that has tribal implications. This
commenter reasoned that the WIOA-mandated primary indicators of
performance removes the step of consultation with WIOA sec. 166 INA
programs and the NAETC to develop performance indicators in accordance
with the purpose and intent of WIOA sec. 166.
A commenter also expressed concern that WIOA could be construed to
require greater reporting requirement of INA program grantees than
States and municipalities. This commenter requested that the
regulations clarify that tribes and tribal organizations do not have
any greater reporting requirements than States or local governments.
Finally, a commenter suggested that Sec. 684.620(a)(6) contains an
incorrect reference.
Department Response: The Department continues to seek an
appropriate balance of being accountable for Federal funds through
tracking and reporting outcomes while not over-burdening the recipients
of Federal funds with undue reporting costs and other administrative
requirements. Maintaining such a balance between performance
accountability and burden will be important to WIOA implemented.
The performance indicators at Sec. 684.620 implement six
statutorily required performance indicators and also require the
Department (in consultation with the NAETC) to develop an additional
set of performance indicators and standards that are applicable to the
INA program. To the extent that a commenter requested that the
Department clarifies in the regulations that sec. 166 recipients do not
have reporting requirements in addition to those of recipients of State
adult, youth and dislocated worker funds, the Department notes that
such a clarification would be contrary to the statutory language of
WIOA. Section 166(h)(1)(A) of WIOA requires that a set of performance
indicators be developed ``in addition'' to the performance indicators
described in sec. 116(b)(2)(A). Therefore, WIOA requires that INA
program grantees be subject to additional performance indicators.
However, to the extent that commenters are asking for the
Department to waive performance indicators for the INA adult program,
the Department recognizes that there are challenges in applying the
indicators to the INA program. As discussed in the preamble to Sec.
684.460, the Department is considering a waiver policy for the youth
program for these indicators pursuant to the waiver process at Sec.
684.910. The Department recognizes that WIOA provides broad waiver
authority for the INA program; however, WIOA sought to hold programs
accountable for performance by requiring common performance indicators
to compare across programs. Any waivers for the adult program will be
considered on a case-by-case basis to account for the needs and
circumstances of individual grantees.
The Department also recognizes that updates will need to be made to
the information collection and reporting software known as Bear Tracks
and understands that an investment may need to be made in the software
to move it from a Microsoft Access platform to a web-based platform.
Training also will need to be provided to grantees on the new
performance indicators and the new updates to the software. In
addition, baseline data will need to be established before target
levels for performance can be established. The Department is providing
technical assistance and guidance to support grantees in transitioning
to the new performance indicators under WIOA.
Additionally, as noted in the response to Sec. 684.620, the
Department has taken the commenters concerns about establishing a
statistical regression model under consideration. As the Department
continues to implement WIOA and refine the application of the model for
sec. 166 grantees, the Department will provide additional information.
Additionally, a commenter proposed that Sec. 684.620(a)(6)
contains an incorrect reference. The Department has reviewed the
provision and determined that the reference is correct.
The Department also will ensure compliance with the requirements of
the Privacy Act. Because the Department is already bound by the
requirements of the Privacy Act, the Department has
[[Page 56218]]
determined that it is not necessary to add language to the regulation
confirming this requirement. No changes to the regulatory text were
made in response to these comments.
As for the comments on E.O. 13175, the Department notes that E.O.
13175 requires each Federal agency to have an accountable process to
ensure meaningful and timely input by tribal officials in the
development of regulatory policies that have tribal implications. The
primary indicators of performance are required by WIOA and are not the
result of a policy or regulation implemented by the Department.
Therefore, the Department did not violate E.O. 13175 or the
consultation requirement at sec. 166(i)(2). Please see the DOL WIOA
NPRM preamble and the introductory text at the beginning of the
preambles for the Joint and DOL WIOA Final Rules for additional
discussion of the steps taken to fulfill the Department's consultation
requirements. In its implementation of the primary indicators of
performance, the Department will continue to comply with the
requirements of E.O. 13175 by ensuring input by tribal officials and
the NAETC, which represents Indian tribes, tribal organizations, Alaska
Native entities, Indian-controlled organizations serving Indians, and
Native Hawaiian organizations.
7. Subpart I--Miscellaneous Program Provisions
Section 684.910 What information is required in a waiver request?
No public comments were received for this section; however, the
Department has made changes to this regulation in response to comments
on Sec. Sec. 684.460 and 684.620 to clarify that the requirements for
submitting a waiver under sec. 166(i)(3) are not identical to the
waiver requirements under sec. 189(i)(3)(B) of WIOA. Instead, they
generally follow the requirements under sec. 189(i)(3)(B). The
Department will address this issue further in overall guidance on the
4-year strategic plan.
Section 684.950 Does the Workforce Innovation and Opportunity Act
provide any additional assistance to unique populations in Alaska and
Hawaii?
Comments: A commenter urged the Department to issue Requests for
Proposal (RFPs) as soon as possible to implement WIOA sec. 166(k),
which authorizes additional funding for competitive grants ``to
entities with demonstrated experience and expertise in developing and
implementing programs for the unique populations who reside in Alaska
and Hawaii . . . to improve job training and workforce investment
activities for such unique populations.'' As part of this competitive
RFP process, this commenter urged the Department to prioritize the
expertise and cultural sensitivity of tribes, tribal organizations, and
Native Hawaiian-serving organizations, particularly any WIOA sec. 166
grantees. The commenter asserted that such a preference priority would
ensure that the entities with the greatest experience and success in
addressing employment and training issues in Alaska Native and Hawaiian
populations would drive the programs.
Department Response: The Department plans to issue a Funding
Opportunity Announcement (FOA) in PY 2016 (beginning July 1, 2016) to
award grant funding to entities in accordance with WIOA sec. 166(k).
The Department will consider establishing a priority under advisement
when creating the FOA.
I. Part 685--National Farmworker Jobs Programs Under Title I of the
Workforce Innovation and Opportunity Act
1. Introduction
The purpose of part 685 is to implement WIOA sec. 167, which
authorizes migrant and seasonal farmworker (MSFW) programs. MSFW
programs include career services and training, housing assistance,
youth services, and related assistance to eligible MSFWs. In drafting
these regulations, the Department consulted with States and MSFW groups
during stakeholder consultation sessions conducted in August and
September 2014, as required by WIOA sec. 167(f).
The Department received numerous comments on part 685. Many
commenters supported the Department's focus on serving MSFW youth and
the broad definition of ``dependents,'' who can be served through the
program. General concerns raised regarding part 685 included how the
Department treats the NFJP operationally and administratively compared
to other WIOA programs, and the need for additional emphasis on co-
enrollment opportunities for NFJP participants with other WIOA
authorized programs, including the dislocated worker program.
Based on the comments received, the Department made the following
significant changes to part 685 as proposed:
The Final Rule permits an NFJP grantee some flexibility to
increase the OJT reimbursement rate up to 75 percent of the wage rate
of a participant, provided that such reimbursement rates are consistent
with the rates set by the Governor in the State or Local WDB(s) in the
Local Area(s) which the grantee operates in accordance with WIOA sec.
134(c)(3)(H)(i);
The Final Rule revises Sec. 685.360(d) to clarify that
NFJP-funded permanent housing development activities that benefit
eligible MSFWs do not require individual eligibility determinations;
The Final Rule clarifies in Sec. 685.360 that development
of on-farm housing located on property owned and operated by an
agricultural employer is an allowable activity; and
In response to commenters' concerns regarding the negative
impact that would result on performance indicator calculations by
including individuals who receive only certain minimal ``related
assistance'' services which do not require a significant investment of
staff time and resources, the Department has added language to Sec.
685.400 that puts the NFJP program in alignment with other WIOA
authorized programs regarding performance accountability.
The analyses that follows provides the Department's response to
public comments received on the proposed INA program regulations. If a
section is not addressed in the discussion below, it is because the
public comments submitted in response to the NPRM did not substantively
address that specific section and no changes have been made to the
regulatory text. Further, the Department received a number of comments
on this part that were outside the scope of the regulation and the
Department offers no response. Lastly, the Department has made a number
of non-substantive changes to correct grammatical and typographical
errors to improve the readability and conform the document
stylistically that are not discussed in the analysis below.
2. General Comments on NFJP
The Department received a number of comments on NFJP addressing the
following issues: Administration of the NFJP, co-enrollment of
participants, portable eligibility and a national records system,
uniform program branding, treatment of NFJP as compared to other WIOA
programs, and one-stop infrastructure payments.
Administration of the NFJP
Several commenters expressed concerns regarding the administration
of the NFJP. One NFJP grantee commented on the lack of consistency it
has experienced when interacting with
[[Page 56219]]
Federal representatives from different regions and said there is often
a disconnect in regulatory interpretation among these representatives.
To address this confusion, the commenter suggested that multi-regional
grantees should be assigned only one Federal Project Officer based on
the grantee's primary location. Multiple commenters stated that the
Department should not allow grant officers to place additional
administrative or operational restrictions on NFJP grantees.
The Department has not revised part 685 in response to these
comments. The Department is committed to ensuring that grantees are
treated consistently across regions. The Department's national office
coordinates with all Employment and Training Administration (ETA)
regional offices to identify program issues and technical assistance
needs, and coordinates guidance with Federal Project Officers (FPO) on
a regular and ongoing basis. A regulatory fix is not required to ensure
uniformity.
Co-Enrollment
Comments: Several commenters requested the Department emphasize the
importance of co-enrollment opportunities across programs. One
commenter remarked that they would like co-enrolled farmworkers to
receive training and cost support from other Department programs for
which they are eligible, in addition to NFJP. Another commenter said
that one-stop centers should increase co-enrollment opportunities for
NFJP-enrolled farmworkers, and asserted that grantees often are not
able to provide these opportunities and resources. Similarly, a few
commenters suggested that one-stop centers should provide services to
unemployed farmworkers instead of automatically referring them to NFJP
services, and urged adult, youth, and dislocated workers programs to
open their services to farmworkers.
Department Response: The Department strongly encourages service
delivery alignment across the one-stop delivery system and other
workforce partner programs to ensure that services are tailored to meet
each individual's needs. As described further in 20 CFR part 678 (see
Joint WIOA Final Rule), to better align service delivery and
coordination between the one-stop delivery system and other workforce
partner programs, the Department encourages NFJP grantees and other
title I programs to develop specific language in the memoranda of
understanding (MOUs) with Local Workforce Development Boards (also
referred to as Local WDBs) and other partners addressing co-enrollment.
The MOU may describe how co-enrollments will be accomplished to meet
the needs of participants best, address operational issues such as
eligibility determination and documentation, co-case management,
specific services provided by each partner, and coordinated fiscal and
performance tracking. Additionally, 20 CFR 678.500 (see Joint WIOA
Final Rule) provides a detailed description of what must be included in
the required MOU between the Local WDBs and required one-stop partners.
No change has been to the regulatory text here in response to these
comments.
Portable Eligibility and a National Records System
Comments: Two commenters stated that if NFJP grantees had a
unified, Department-supported data collection system, not only would it
be easier to help farmworkers qualify for service, but it also would
establish a more unified national presence for the NFJP and ensure
continuity of services and eligibility across regions. One commenter
remarked that issues of confidentiality and privacy should be
considered during the creation of a common eligibility system.
Department Response: The Department agrees that an integrated
performance reporting system would assist farmworkers to qualify for
service, and facilitate co-enrollment and assessment of WIOA
performance across States and programs. Section 116(d)(1) of WIOA
requires the Departments to provide a performance reporting template
and the Departments will seek public comment on the reporting templates
through the Paperwork Reduction Act (PRA) process. Aligning reports and
performance definitions will create a performance accountability system
that is easier to understand and assess the effectiveness of all
service providers in achieving positive outcomes for individuals served
across WIOA programs.
The regulations also established an integrated, individual record
system.
Comments: Elaborating on continuity of services and emphasizing the
inherent migratory nature of farmwork, some commenters urged the
Department to establish a clear mechanism that ensures that grantees'
performance will not be negatively affected when farmworkers leave or
transfer to another grantee or State, and a few commenters stated that
farmworkers, especially migratory farmworkers, should be allowed to
transfer services easily if they move to a new State. Some commenters
suggested creating a uniform branding so that farmworkers can locate
services in different States more easily.
Department Response: The Department acknowledges that providing a
continuity of program services to migrant farmworker populations moving
from State to State may be challenging, and tracking participants and
reporting on grantee performance indicator outcomes may be difficult in
cases where an NFJP participant has moved to another State.
The Department is continually looking to improve performance
reporting policies and systems, and is interested in additional
feedback on assistance the Department can provide for establishing
mechanisms to track the eligible MSFWs they serve in the NFJP and
reporting program outcomes.
Uniform Program Branding
Commenters suggested creating a uniform branding so that
farmworkers can locate services in different States more easily.
Department Response: The term NFJP provides nationwide uniformity
across employment and training grants and housing grants while
providing flexibility for grantees to tailor their outreach efforts to
the unique needs of the farmworker communities they serve. The use of
one-stop center brand for one-stop centers nationwide will also help
farmworkers find services. The Department encourages grantees in one
State or service area to consider establishing memoranda of
understanding (MOUs) with partner grantees in other States or service
areas, or a joint MOU with multiple grantees, to ensure continuity of
program services to participants, and support outcome tracking as
participants move from State to State.
Treatment of NFJP as Compared to Other WIOA Programs
Comments: Many commenters expressed concern that farmworkers are
considered a niche population and, thus, do not have the same access to
the public workforce system as do other workers, and further commented
that there should not be more restrictions on MSFWs or the NFJP system
than there are on the main workforce development system. Discussing
equalization of treatment of NFJP with other WIOA programs, some
commenters expressed concern that the Department allows carryover funds
for grantees of adult, youth, and dislocated workers but not for NFJP
grantees, and one commenter suggested that the Department allow line
item budget variance with no more restrictions than those placed on the
mainline public workforce system. Two
[[Page 56220]]
commenters remarked that because the NFJP grant period is 4 years under
WIOA, the Department should stop treating NFJP grants as one-time
discretionary grants. And finally, one commenter, commenting on
proposed Sec. 685.430 (grantee program plan modifications) stated that
NFJP grantees should be allowed to spend out the grant over the entire
period of performance, using oldest funds first, just as States are
permitted to do in proposed Sec. 683.110 (period of performance of
WIOA title I and Wagner-Peyser Act funds.)
Department Response: The NFJP is authorized under sec. 167 of WIOA,
and is not included as a core formula program as defined in WIOA sec.
3(12). Therefore, the NFJP does not have the all of the same
requirements, obligations, and flexibilities as States or core
programs. As described in Sec. 683.110(e) ``funds awarded by the
Department under WIOA sec. 167 are available for expenditure for the
period identified in the grant award document, which will not exceed 4
years,'' which is consistent with other National Programs authorized
under WIOA title I, subtitle D. NFJP grantees currently have the
ability to use carry over funds through the current grant cycle which
ends June 30, 2016, and the Department will continue to establish
guidelines for the use of carry-over funds through the grant award
documents as described in Sec. 683.110(e).
Comments: Some commenters mentioned the 1974 Judge Richey Court
Order when discussing their arguments for providing farmworkers with
equal access to system services. Multiple commenters urged the
Department to allow farmworkers to be eligible for the dislocated
worker program, and some of those commenters stated that the dislocated
worker program should not be considered an exclusively ``mainline''
resource. Commenters remarked that many farmworkers are unlikely to
return to agricultural work because of inconsistent employment,
seasonal layoff, and low income, and commented that these conditions
should make farmworkers eligible for dislocated worker services.
Department Response: The Department is committed to ensuring that
farmworkers have equal access to the public workforce system via the
State Monitor Advocate System established in the 1974 Judge Richey
Court Order. Farmworkers qualify to receive career services as a
dislocated worker in adult and dislocated worker program if they meet
the definition of ``dislocated worker'' at WIOA sec. 3(15). However, as
described in Sec. 680.130, Governors and Local WDBs have discretion to
establish policies and procedures for one-stop operators to use in
determining an individual's eligibility as a dislocated worker,
consistent with the definition at WIOA sec. 3(15), and this flexibility
may result in interstate differences in who may qualify for dislocated
worker services. No changes have been made to regulatory text in
response to these comments.
Comments: Several commenters opposed NFJP grantees' lack of access
to Unemployment Insurance (UI) records. Commenters stated that allowing
NFJP grantees to access UI records as other programs do would decrease
the amount of time and resources that staff expends to find the
necessary wage record information.
Department Response: Part 603 (confidentiality and disclosure of
State Unemployment Compensation (UC) information) of the Final Rule
permits State agencies to disclose confidential UC information,
including UI wage information, to ``public officials,'' defined at
Sec. 603.2(d) (UC program definitions), under limited circumstances.
These limitations are in place to ensure that confidential UC
information including personally identifiable information, such as
Social Security numbers, are appropriately safeguarded. Any NFJP
grantees that are included in the Sec. 603.2(d) definition of public
official may request UI wage information from State agencies. NFJP
grantees who are not included in the definition of public official have
indirect access to UI wage records through a common reporting
information system (CRIS) administered by the Department. The
Department anticipates providing extensive guidance on part 603
throughout the implementation of WIOA.
One-Stop Infrastructure Payments
Comments: Multiple commenters urged the elimination of the one-stop
delivery system proposed infrastructure payments described in 20 CFR
678.700 (one-stop infrastructure costs) (see Joint WIOA Final Rule),
and some remarked that the NFJP should be exempt from this requirement
because NFJP grantees often operate in satellite locations in rural
areas where the communities face transportation barriers. Several
commenters stated that, if deemed necessary, infrastructure payments
should be no greater than the value received by NFJP programs, and some
commenters suggested that in-kind contributions should be an acceptable
payment option towards infrastructure costs. One commenter suggested
that NFJP grantees should continue to be required partners on State and
Local WDBs if the NFJP is required to contribute to the one-stop
infrastructure costs.
Department Response: As described in WIOA sec. 121(b)(1)(B), NFJP
grantees are a required one-stop partner, and as such, must contribute
to the infrastructure funding of one-stop operations in the local
workforce areas in which they operate. The Department does not require
that NFJP grantees be in every affiliate one-stop center (described in
20 CFR 678.310 (what is an affiliated site and what must be provided
there) of this Final Rule); however, all one-stop partners must provide
access to their programs and activities through the comprehensive one-
stops described in 20 CFR 678.305 (one-stop centers and what they must
provide), as defined in 20 CFR 678.305(d), and therefore should be
contributing their proportionate share to the one-stop infrastructure
costs based on the relative benefit received by the program in these
centers (see Joint WIOA Final Rule). Regarding the suggestion that in-
kind contributions be an acceptable payment option towards
infrastructure costs; 20 CFR 678.700 (one-stop infrastructure costs)
describes infrastructure costs, shared costs, and in-kind
contributions, and includes the non-personnel costs necessary for the
general operation of the one-stop center. In-kind contributions may be
used to cover additional costs relating to the operation of the one-
stop delivery system as described in 20 CFR 678.760 (funding of one-
stop partner's shared costs). Regarding the suggestion that NFJP
grantees should continue to be required partners on State and Local
WDBs if the NFJP is required to contribute to the one-stop
infrastructure costs, under WIOA sec. 101(b) and sec. 107(b), NFJP
grantees are no longer required members of State or Local WDBs, and the
Department does not have the authority to require their membership. No
changes have been made to the regulatory text here in response to these
comments.
3. Subpart A--Purposes and Definitions
This subpart describes the general purpose and definitions relevant
to MSFW programs authorized under WIOA sec. 167, the role of the
Department in providing technical assistance and training to grantees,
and the regulations applicable to grantees.
Section 685.110 What definitions apply to this program?
Proposed Sec. 685.110 provided definitions of terms relevant to
the
[[Page 56221]]
implementation and operation of workforce investment activities
authorized for MSFWs and their dependents under WIOA.
The Department received comments on several definitions in this
section and these comments are discussed below. All other definitions
in Sec. 685.110 did not receive substantive comments; therefore, they
are not discussed below.
The definition of family included in Sec. 685.110 did not receive
any comments: However, it is important to note that this definition is
specific to this part. The term is included for the sole purpose of
reporting NFJP housing assistance grantee indicators of performance as
described in Sec. 685.400 (indicators of performance for the NFJP),
and differs from the definition of family found at Sec. 675.300
(applicable definitions for WIOA title I regulations). The definition
of family found at Sec. 675.300 applies to the regulations in 20 CFR
parts 675 through 688. For example, if an NFJP grantee is using
``family income'' to determine if an MSFW qualifies as ``low income''
as defined in WIOA sec. 3(36), the definition of family at found at
Sec. 675.300 should be utilized.
Additionally, the Department added the term ``supportive services''
as defined by WIOA sec. 3(59) to the list of defined terms provided in
Sec. 685.110 to clarify how the term is used in the preamble to part
685 and specifically in Sec. Sec. 685.330, 685.420, 685.440, and
685.510.
Eligibility Determination Period
Comments: Proposed Sec. 685.110 defined eligibility determination
period as ``any consecutive 12-month period within the 24-month period
immediately preceding the date of application for the MSFW program by
the applicant MSFW.'' The definition was adopted from the first clause
of WIOA sec. 167(i)(3)(A)(i), which defines ``eligible seasonal
farmworker.''
Numerous commenters suggested that the definition of eligibility
determination period should include an exception to the consecutive 12-
month period in situations when a farmworker has been hospitalized or
incarcerated during the 24-month period preceding the date of the
application. In those cases in which a farmworker has been hospitalized
or incarcerated during the most recent 24-month period, one commenter
recommended that the Department extend the qualifying 24-month period
to include the balance of the time the farmworker was unable to work.
Department Response: ``Eligibility determination period'' is
defined by statute as any consecutive 12-month period within the 24-
month period immediately preceding the date of application for the MSFW
program by the applicant MSFW. The definition was adopted from the
first clause of WIOA sec. 167(i)(3)(A)(i), which defines ``eligible
seasonal farmworker.''
Eligible Seasonal Farmworker
Comments: Proposed Sec. 685.110 defined Eligible Seasonal
Farmworker as a low-income individual who for 12 consecutive months out
of the 24 months prior to application for the program involved, has
been primarily employed in agricultural or fish farming labor that is
characterized by chronic unemployment or underemployment; and faces
multiple barriers to economic self-sufficiency; and dependents of the
seasonal farmworker as described in WIOA sec. 167(i)(3).
One commenter asked the Department to provide a definition of
chronic unemployment/underemployment as that term is used in the
definition of ``eligible seasonal farmworker.'' This commenter also
requested clarification as to whether the condition of chronic
unemployment/underemployment applies to the individual or to an
industry.
Department Response: These terms as used in WIOA sec.
167(i)(3)(A)(i) refers to the nature of the agricultural or fish
farming labor force as a whole and whether it experiences either
chronic unemployment or underemployment. In the past, the Department
has issued additional guidance explaining NFJP participant eligibility
and will continue to issue such guidance under WIOA.
Emergency Assistance
Comments: Proposed Sec. 685.110 defined Emergency Assistance as a
form of ``related assistance'' and means assistance that addresses the
immediate needs of eligible MSFWs and their dependents, provided by
grantees. An applicant's self-certification is accepted as sufficient
documentation of eligibility.
One commenter, while agreeing with the acceptance of self-
certification, suggested that the Department reinforce self-
certification rather than increase documentation standards when
developing any TEGL on data validation.
Department Response: The Department will address WIOA data
validation requirements in future guidance. Additionally, the
Department clarified the definition for ``Emergency Assistance'' by
adding language that mirrors the statute and the definition for
``Related Assistance.''
National Farmworker Jobs Program (NFJP)
Comments: Some commenters suggested that the program's name be
changed to the ``National Farmworker Opportunity Program'' so that the
program's name is consistent with the Workforce Innovation and
Opportunity Act, and to acknowledge the NFJP program's origins via the
Economic Opportunity Act of 1964.
Department Response: The term NFJP was initially developed in 1999
by the Secretary's MSFW Advisory Committee to distinguish the NFJP from
the other workforce investment grants and activities funded under WIA
sec. 167, such as the farmworker housing assistance grants; however,
since that time the NFJP has come to be the accepted term for both
employment and training grants and housing grants. Rebranding the
program in the initial years of WIOA could create confusion for the
MSFW populations the program serves who have come to know the program
as the NFJP. No changes have been made to the regulatory text in
response to these comments.
Section 685.140 What Workforce Innovation and Opportunity Act (WIOA)
regulations apply to the programs authorized under WIOA?
The Department did not receive any comments on this section;
however, because the list of applicable regulations is not meant to be
exhaustive, and to avoid any inference otherwise, the Department
revised Sec. 685.140 in the Final Rule to make clear that the list is
not all-encompassing.
4. Subpart B--The Service Delivery System for the National Farmworker
Jobs Program
This subpart describes the service delivery system for the MSFW
programs authorized by WIOA sec. 167 including who is eligible to
receive grants and the role of the NFJP in the one-stop delivery
system. Termination of grantee designation is explained. This subpart
also discusses the appropriation of WIOA sec. 167 funds and establishes
that a percentage of the total funds appropriated each year for WIOA
sec. 167 activities will be used for housing assistance grants.
Section 685.200 Who is eligible to receive a National Farmworker Jobs
Program grant?
Proposed Sec. 685.200 set forth the three characteristics required
of an entity in order to be eligible to receive NFJP grants. Paragraph
(a) stated that an eligible entity must have an understanding of the
problems of
[[Page 56222]]
eligible MSFWs. Paragraph (b) required eligible entities to have a
familiarity with the agricultural industries and the labor market needs
of the proposed service area. Paragraph (c) stated that an eligible
entity must have the ability to demonstrate a capacity to administer
and deliver effectively a diversified program of workforce investment
activities, including youth workforce investment activities, and
related assistance for eligible MSFWs.
Comments: The Department received numerous comments regarding the
eligibility requirement set forth in proposed paragraph (c) of this
section. In particular, these commenters recommended that this
requirement should take into account the relative youth farmworker
population in each State.
Department Response: The Department agrees that the relative youth
MSFW population in each State should be accounted for when considering
an applicant's ability to demonstrate a capacity to administer and
deliver effectively a diversified program of workforce investment
activities. This issue is more appropriately addressed through the NFJP
funding allocation formula. Currently funds for NFJP career services
and training grantees are dispersed based on the funding formula the
Department published in the Federal Register on May 19, 1999. Job
Training and Partnership Act: Migrant and Seasonal Farmworker Programs;
Final Allocation Formula, 64 FR 27390. The Department intends to revise
this funding formula through a public comment process and plans to
address this and other issues.
Section 685.210 How does an eligible entity become a grantee?
Proposed Sec. 685.210 described the process by which an entity may
become a grantee under this part and explained that an applicant whose
application for funding has been denied in whole or in part may request
an administrative review per Sec. 683.800 of this title.
Comments: The Department received one comment suggesting that this
section include measures of accountability for purposes of selecting a
grantee.
Department Response: Measures of accountability for purposes of
selecting a grantee will be described in the Funding Opportunity
Announcement (FOA) for NFJP grantees following the process described in
this section. No changes have been made to the regulatory text in
response to this comment.
Section 685.220 What is the role of the grantee in the one-stop
delivery system?
Proposed Sec. 685.220 described the role of the grantee in the
one-stop delivery system and provided that in those Local WDBs where
the grantee operates the NFJP, as described in its grant agreement, the
grantee is a required one-stop partner, and is subject to the
provisions relating to such partners described in 20 CFR part 678
(description of the one-stop delivery system under title I of the
Workforce Innovation and Opportunity Act) of this title (see Joint WIOA
Final Rule). Consistent with those provisions, the grantee and Local
Workforce Development Board must develop and enter into an MOU which
meets the requirements of 20 CFR 678.500 of this title (regarding what
must be included in the Memorandum of Understanding) and sets forth
their respective responsibilities for providing access to the full
range of NFJP services through the one-stop delivery system to eligible
MSFWs (see Joint WIOA Final Rule).
Comments: The Department received several comments concerning this
section. Some commenters acknowledged the importance of establishing
roles and responsibilities through MOUs and urged the Department to
provide additional guidance on the specific requirements of an MOU
between the NFJP grantees and key partners, such as the Local WDB or
State Monitor Advocates (SMAs). One of these commenters reasoned that
because Local WDBs do not always understand or fully appreciate the
needs of the farmworker population, they do not aggressively ensure
that community and partner agencies provide meaningful services,
suggesting that the creation and implementation of MOUs would help.
Department Response: Title 20 CFR part 678, subpart C (Memorandum
of Understanding for the One-Stop Delivery System), provides
information regarding the required MOU(s) that must be established
between Local WDBs and required one-stop partners (see Joint WIOA Final
Rule). Title 20 CFR 678.500 describes what must be included in the MOU
executed between the Local WDB and the one-stop partners relating to
the operation of the one-stop delivery system in the Local Area, and 20
CFR 678.510 describes the collaborative and good-faith approach Local
WDBs and partners are expected to use to negotiate MOUs, including
fully and repeatedly engaging partners, transparently sharing
information, and maintaining a shared focus on the needs of the
customer. The Department intends to issue additional guidance regarding
the development of MOUs between Local WDBs and required one-stop
partners as well as between NFJP grantees and State Monitor Advocates.
Comments: Regarding the NFJP grantee serving as a required one-stop
partner, two commenters stated that the decision to colocate services
can be beneficial but grantees need to consider the financial viability
of colocation. If it is more beneficial to locate NFJP programs outside
of a one-stop center, these commenters maintained that grantees should
be given the flexibility to do so, and that grantees can still develop
a close partnership with the one-stop delivery system without
necessarily being colocated. Another commenter remarked that
traditionally there has been a cost increase associated with operating
NFJP services in conjunction with a one-stop delivery system, leaving
less funding available for training programs and participant services.
Department Response: Title 20 CFR 678.305 (see Joint WIOA Final
Rule) provides a description of the services that must be provided in a
one-stop center, including access to partner programs and activities
carried out by required one-stop partners. One-stop partner program
services may be provided through the one-stop center either by: (1)
Having partner program staff physically present at the one-stop center
to provide information to customers about the programs, services, and
activities available through partner programs; or (2) providing direct
linkage through technology to program staff who can provide meaningful
information or services. NFJP grantees, in collaboration with Local
WDBs, must determine on a case-by-case basis, whether colocation, or
another form of direct linkage, is the most effective approach in the
local workforce area in which they operate. A description of what the
Department means by direct linkage is found at 20 CFR 678.305(d)(3)
(see Joint WIOA Final Rule).
Section 685.230 Can a grantee's designation be terminated?
Proposed Sec. 685.230 explained that a grantee may be terminated
for cause by the Department in emergency circumstances when such action
is necessary to protect the integrity of Federal funds or ensure the
proper operation of the program, or by the Department's Grant Officer,
if the recipient materially fails to comply with the terms and
conditions of the award.
Comments: The Department received one comment requesting that the
Department define the ``emergency
[[Page 56223]]
circumstances'' under which the Department may terminate a NFJP
grantee's designation for cause in proposed Sec. 685.230.
Department Response: The term emergency circumstances may cover a
variety of contingencies that are too broad to include specifically in
a definition; no changes have been made to regulatory text in response
to this comment. When emergency circumstances arise in which the
Department deems it necessary to protect the integrity of Federal funds
or to ensure the proper operation of the program, the Department would
undertake further investigation and thoroughly document the
circumstance before termination for cause would be considered. Under
WIOA sec. 184(e), any grantee so terminated would be provided with
written notice and an opportunity for a hearing within 30 days after
the termination.
Section 685.240 How does the Department use funds appropriated under
the Workforce Innovation and Opportunity Act for the National
Farmworker Jobs Program?
Proposed Sec. 685.240 established that in accordance with WIOA
sec. 167(h), of the funds appropriated each year for MSFW programs, at
least 99 percent must be allocated to service areas, based on the
distribution of the eligible MSFW population determined under a formula
established by the Secretary. This provision further provided that a
percentage of funds allocated for State service areas would be set
aside for housing grants and that up to 1 percent of the appropriated
funds would be used for discretionary purposes, such as technical
assistance to eligible entities and other activities prescribed by the
Secretary.
Comments: One commenter asked if there would be a minimum amount or
a designated percent of funds allocated for housing grants.
Department Response: The annual percentage of housing grant funds
is determined through the Federal budgeting process and final funding
for housing grants is determined by the Fiscal Year Appropriations Act,
and may vary from year to year. In the two program years prior to the
release of this Final Rule the total percent of funds allocated to
housing grants was approximately 6.74 percent of the total annual NFJP
funding. This percentage may change from year to year based on the
needs of the program and the annual budget enacted by Congress;
therefore, the Department has not established a minimum amount or
designated percentage of funds allocated for housing grants in the
regulatory text.
Comments: One commenter also stated the Department should recognize
that grantees were not specifically authorized to serve eligible
farmworker youth, and no resources were provided to do so.
Department Response: Grantees are authorized to serve eligible
farmworker youth. WIOA sec. 167(d) specifically states that funds made
available through WIOA secs. 167 and 127(a)(1) must be used for
workforce investment activities (including youth workforce investment
activities) and related assistance for eligible MSFWs and eligible
farmworker youth are therefore included.
5. Subpart C--The National Farmworker Jobs Program Services to Eligible
Migrant and Seasonal Farmworkers
This subpart describes the responsibilities of grantees, and
workforce investment activities available to eligible MSFWs, including
career services and training, housing assistance, youth services, and
related assistance.
Section 685.340 What career services may grantees provide to eligible
migrant and seasonal farmworkers?
Proposed Sec. 685.340 established in paragraph (a) that eligible
MSFWs must be provided the career services described in WIOA secs.
167(d) and 134(c)(2), and 20 CFR part 680. Proposed paragraph (b)
stated that the grantees must provide other career services identified
in the grantee's approved program plan. The Department also included
language in paragraph (c) to clarify that while career services must be
made available through the one-stop delivery system, grantees also may
provide these types of services through other sources outside the one-
stop delivery system. Examples include non-profit organizations or
educational institutions. Finally, paragraph (d) required that the
delivery of career services to eligible MSFWs by the grantee and
through the one-stop delivery system must be discussed in the required
MOU between the Local Workforce Development Board and the grantee.
Comments: A number of commenters recommended that the Department
delete proposed paragraph (c). Commenters noted that NFJP grantees, as
required one-stop partners, are required to provide services through
the one-stop delivery system as described in statute, regulation, and
required MOUs and therefore, this particular provision is not
necessary.
Department Response: The Department is revising Sec. 685.340 in
response to these comments. The Department agrees that proposed
paragraph (c) of this section is not required in the context of
describing what career services grantees may provide to eligible MSFWs.
Accordingly, the paragraph has been struck from Sec. 685.340 and the
remaining paragraph has been re-lettered from (d) to (c). A full
description of the roles and responsibilities of NFJP grantees, as
required one-stop partners, is found at 20 CFR 678.420 (see Joint WIOA
Final Rule).
In addition, the Department has revised the title of this section
and paragraphs (a) and (b) of Sec. 685.340 in the Final Rule by
replacing the term ``must'' with ``may'' to make the titles in
Sec. Sec. 685.340 through 685.380 consistent, and to clarify that the
Department does not require NFJP grantees to make all the services
described in this section available to participants. Rather, the 4-year
program plan described in Sec. 685.420 must indicate the specific
career services that will be made available to all participants and
provided based on the individual needs of each participant.
Section 685.350 What training services may grantees provide to eligible
migrant and seasonal farmworkers?
Proposed Sec. 685.350 identified the training services that
grantees provide to eligible MSFWs. Paragraph (a) established that the
training activities provided by grantees are those in WIOA secs. 167(d)
and 134(c)(3)(D), and 20 CFR part 680 (Adult and Dislocated Worker
Activities Under Title I of WIOA). These activities include, but are
not limited to, occupational-skills training and OJT. The Department
also emphasized that eligible MSFWs are not required to receive career
services prior to receiving training services, as described in WIOA
sec. 134(c)(3)(iii). This section also reinforced the intent of WIOA
and stated in paragraph (b) that training services be directly linked
to an in-demand industry sector or occupation in the service area, or
in another area to which an eligible MSFW receiving such services is
willing to relocate, consistent with WIOA sec. 134(c)(3)(G)(iii). The
Department also established in paragraph (c) that training activities
must encourage the attainment of recognized postsecondary credentials
as defined in Sec. 685.110 (which refers to WIOA sec. 3(52)), when
appropriate for an eligible MSFW. This requirement is in alignment with
WIOA secs. 116(b)(2)(A)(i)(IV) and 116(b)(2)(A)(ii)(III), which include
``the
[[Page 56224]]
percentage of program participants who obtain a recognized
postsecondary credential, or a secondary school diploma,'' as a primary
indicator of performance for both the adult and youth programs.
Comments: Numerous commenters remarked that training services
should be linked with careers that are ``in-demand,'' but suggested
that the regulation provide for the flexibility to consider customer
needs, choices, and circumstances, so that individuals may be placed in
careers that will help them gain economic stability, even if the career
is not defined as ``in-demand.'' Several commenters also noted that the
requirement in proposed Sec. 685.350(b) that training services ``must
be directly linked to an in-demand industry sector or occupation in the
service area'' may be unintentionally limiting.
Department Response: This section reinforces the intent of WIOA
that training services be directly linked to an in-demand industry
sector or occupation in the service area, or in another area to which
an eligible MSFW receiving such services is willing to relocate,
consistent with WIOA sec. 134(c)(3)(G)(iii). WIOA sec. 3(23) broadly
defines ``in-demand industry sector'' and maintains flexibility.
NFJP grantees may determine that a sector or occupation is in-
demand in the context of where the grantee operates its NFJP program,
and this may be at the State, regional or local service area level.
Additionally, activities designed to assist eligible MSFWs establish a
work history, demonstrate success in the workplace, and develop the
skills that lead to entry into and retention in unsubsidized employment
do not need to be in an in-demand industry sector or occupation in the
service area where the NFJP operates. Examples of these types of
activities may include, but are not limited to, career services such as
internships and work experiences and transitional jobs as defined in
WIOA sec. 134(d)(5) which provide time-limited work experiences that
are subsidized and are in the public, private, or nonprofit sectors.
Comments: One commenter also suggested that emerging careers should
be considered when determining training options for NFJP participants.
Department Response: The Department agrees that emerging careers
should be taken into consideration when establishing participant
training options consistent with the Sec. 685.350. The Department
encourages training in emerging sectors when the sector or occupation
is in-demand in the service area, or in another area to which an
eligible MSFW receiving such services is willing to relocate.
Comments: A number of commenters asserted that NFJP grantees should
have the flexibility to provide up to a 75 percent reimbursement rate
to employers for on-the-job training (OJT) as Governors and Local
Workforce Development Boards do under WIOA sec. 134(c)(3)(H)) . A few
commenters stated that many programs work with competitive employers
who will favor the workforce programs that provide them the greatest
benefit. As explained by one commenter, because NFJP is not always
operated by a State or Local WDB, NFJP grantees who are not a State
agency or Local WDB need this flexibility to use the same reimbursement
rate that Governors and Local Workforce Development Boards use in the
Local Area(s) in which they operate, otherwise they will be unable to
compete for OJT placements in high-demand fields within the same
communities.
Department Response: The Department is revising Sec. 685.350 in
response to these comments. The Department continues to encourage
grantees to use work-based learning as an effective service strategy to
assist job seekers in entering and advancing along a career pathway,
including OJT and registered apprenticeship, among others. Under WIOA,
grantees may always reimburse employers for the extraordinary costs of
training by up to 50 percent of the wage rate of the participant for
OJT (WIOA sec. 3(44)). The Department maintains that grantees must be
working in collaboration, rather than competition, with the State and
Local Workforce Development Boards when meeting the needs of
participants, but acknowledges that the flexibility offered Governors
and Local Workforce Boards (WIOA sec. 134(c)(3)(H)) to account for
factors such as the characteristics of the participants; the size of
the employer; the quality of employer-provided training and advancement
opportunities; and other factors, may encourage the participation of
employers who may otherwise be deterred from working with MSFW
populations. To address commenters' concerns regarding the OJT employer
reimbursement rate the Department adds paragraphs Sec. 685.350(a)(1)
and (2), which provide NFJP grantees the flexibility to increase the
OJT reimbursement rate up to 75 percent of the wage rate of a
participant under certain conditions, provided that such reimbursement
is being provided consistent with the reimbursement rates used under
WIOA sec. 134(c)(3)(H)(i) (use of funds for employment and training
activities) for the Local Area(s) in which the grantee operates its
program.
In addition, the Department has revised the title of this section
and Sec. 685.350(a) in the Final Rule by replacing the term ``must''
with ``may'' to make the titles in Sec. Sec. 685.340 through 685.380
consistent, and to clarify that the Department does not require NFJP
grantees to make all the services described in this section available
to participants. Rather, the 4-year program plan described in Sec.
685.420 must indicate the specific training services that will be made
available to all participants and provided based on the individual
needs of each participant.
Section 685.360 What housing services may grantees provide to eligible
migrant and seasonal farmworkers?
Proposed Sec. 685.360 required in paragraph (a) that housing
grantees must provide housing services to eligible MSFWs and in
paragraph (b) that career services and training grantees may provide
housing services to eligible MSFWs as described in their program plan.
The proposed section established in paragraph (c) the definitions of
permanent housing and temporary housing services that are available to
eligible MSFWs and provided examples of each type of housing services
in paragraphs (d) for permanent housing and (e) for temporary housing.
In paragraph (f), the proposed section stated that housing services may
be provided only when the services are required to meet the needs of
eligible MSFWs to occupy a unit of housing for reasons related to
seeking employment, retaining employment, or engaging in training.
Comments: Several commenters remarked that permanent housing
requirements should differ from temporary housing requirements because
of the timing of the services delivered. These commenters stated that
many of the eligible housing services for permanent housing take place
before an MSFW is identified for occupancy and therefore if Department
funds are not used to support the on-going management of the project,
there is no way for the NFJP grantee to ensure that only NFJP-eligible
MSFWs would benefit from the eventual housing services. In addition,
commenters noted that other funding sources complement NFJP resources,
including United States Department of Agriculture (USDA) 514/516 Farm
Labor Housing funds. Because providers of these funds have slightly
different eligibility criteria for farmworker tenants, the commenters
warned that it would be difficult to
[[Page 56225]]
ensure that all MSFWs on a property are NFJP-eligible. Accordingly,
these commenters recommended revising the language in proposed Sec.
685.360 to accommodate these realities and allow for more flexibility
with regard to eligibility for permanent housing services, by stating,
for instance, that permanent housing units developed with NFJP funds be
available to low-income MSFWs per the eligibility criteria of the
primary provider(s) of capital funding, rather than limiting primary
housing services to eligible MSFWs exclusively. These commenters also
suggested adding language to limit emergency housing assistance
payments or vouchers (both temporary housing services) to eligible
MSFWs only, and to make permanent housing units developed with NFJP
funds available to low-income MSFWs per the eligibility criteria of the
primary provider(s) of capital funding.
Department Response: The Department is revising Sec. 685.360 in
response to these comments. The Department acknowledges the difficulty
of supporting permanent farmworker housing development and renovation
projects and ensuring that eligible MSFWs receive the benefits of these
projects after they are completed. These projects may occur over
multiple years and include funding from a variety of Federal and non-
Federal sources such as USDA and United States Department of Housing
and Urban Development (HUD). To address commenters concerns and
recognize the distinction between permanent and temporary housing
services the Department has revised the text set forth in proposed
Sec. 685.360(d) to read: ``Permanent housing developed with NFJP funds
must be promoted and made widely available to eligible MSFWs, but
occupancy is not restricted to eligible MSFWs. Temporary housing
services must be provided only to eligible MSFWs.'' As a result of this
revision, the following sentence has been added to Sec. 685.400(c):
``Additionally, grantees providing permanent housing development
activities will use the total number of individuals served and the
total number of families served as indicators of performance'' to
capture permanent housing development outcomes. The Department also
provided operating guidance for NFJP Grantees, including a
clarification on housing assistance services, through TEGL No. 35-14
(``Operating Guidance for National Farmworker Jobs Program (NFJP)
Employment and Training and Housing Grantees''), dated June 13, 2016,
and will provide additional technical assistance and guidance as
needed.
Comments: Additionally, some commenters suggested that the
definition of housing assistance should account for the different types
of assistance available and the times at which the services are
provided. These commenters said that either the word eligible should be
removed from the definition or the differences between the two primary
types of housing assistance under Sec. 685.360 should be clarified.
The commenters offered two definitions of housing assistance: ``Housing
assistance means housing-related services provided to MSFWs'' or
``Housing assistance means emergency housing assistance payments or
vouchers provided to meet the needs of eligible MSFWs and/or
development of permanent housing units available to low-income MSFWs.''
Department Response: The Department is revising Sec. 685.110 in
response to these comments. The Department has updated the definition
of housing assistance found in Sec. 685.110 as follows: ``Housing
assistance means housing services which contribute to safe and sanitary
temporary and permanent housing constructed, supplied, or maintained
with NFJP funding.''
Comments: Two commenters expressed concern that some areas may not
have local non-profit organizations willing to operate on-farm housing,
which may prevent the development or improvement of critically needed
on-farm housing in areas where there are no local non-profit
organizations willing to serve in this capacity. The specific paragraph
referred to by two commenters is Sec. 685.360(e) of the NPRM, which
describes allowable temporary housing services. The commenters suggest
that grantees should be permitted to use program funds to provide
matching grants for on-farm housing improvement or development to be
owned by the farm operator and suggest criteria for providing grants
for on-farm housing improvement or development to be owned by the farm
operator including a requirement that the farm operator provide at
least 51 percent of project funds and that housing must pass
inspections for 3 to 5 years and continue to be occupied by
farmworkers.
Department Response: The Department is revising Sec. 685.360 in
response to these comments. The section provides examples rather than
an exhaustive list of allowable housing activities. The example of
temporary housing services provided at proposed Sec. 685.360(e)
(``off-farm housing operated independently of employer interest or on-
farm housing operated by a nonprofit'') does not preclude a grantee
from providing funds to agricultural employers for on-farm housing
improvement or developments owned by an agricultural employer. To
clarify that grantees may provide funding for on-farm housing
improvement or development owned by the agricultural employer, the
language (now found at Sec. 685.360(c)(2)(i)) has been revised to
indicate that temporary housing may include on-farm housing located on
property owned by an agricultural employer and operated by an entity
such as an agricultural employer or a nonprofit organization.
Furthermore, to clarify that the list of examples is not meant to be
exhaustive, the following additional language has been added to the end
of paragraph 685.360(c)(2)(i): ``and other housing types that provide
short-term, seasonal, or temporary housing opportunities in temporary
structures.'' Paragraph (i) to Sec. 685.360(c)(1) has been revised to
indicate that permanent housing services may include dormitory, modular
structures, manufactured housing, or mobile units placed on permanent
foundations and supplied with appropriate utilities, and other
infrastructures that provide short-term, seasonal housing opportunities
in permanent structures. This list includes the types of housing that
would likely be made available through on-farm housing improvements or
development and that would benefit eligible MSFWs. The Department has
determined that it is not necessary to formalize criteria in the Final
Rule restricting when grantees may provide funds to agricultural
employers for on-farm housing improvement or developments owned by the
employer and will provide additional guidance and technical assistance.
The Department has revised Sec. 685.360 ``What housing services may
grantees provide to eligible migrant and seasonal farmworkers?'' by
removing ``tents and yurts'' to be consistent with the Federal housing
standards established in 20 CFR part 654 and 29 CFR 1910.10.
Additionally, the Department has added paragraph (e) to clarify
that except as provided in (f), NFJP funds used for housing assistance
must ensure the provision of safe and sanitary, temporary and permanent
housing that meets the Federal housing standards at 20 CFR part 654
(ETA housing for farmworkers) or 29 CFR 1910.10 (OSHA housing
standards); and paragraph (f) which clarifies that when NFJP grantees
provide temporary housing assistance
[[Page 56226]]
that allows the participant to select the housing, including vouchers
and cash payments for rent, lease, and utilities, NFJP grantees are not
required to ensure that such housing meets the Federal housing
standards at 20 CFR part 654 or 29 CFR 1910.10.
Section 685.370 What services may grantees provide to eligible migrant
and seasonal farmworkers youth participants aged 14-24?
Proposed Sec. 685.370 outlined the services grantees may provide
to eligible MSFW youth. In paragraph (a), the proposed regulation
described the services that grantees may provide to eligible MSFW youth
participants aged 14-24 based on an evaluation and assessment of their
needs. These services include the career and training services
described in Sec. Sec. 685.340 through 685.350; youth workforce
investment activities specified in WIOA sec. 129; life skills
activities that encourage development of self and interpersonal skills;
and community service projects. Paragraph (b) provided that other
activities that conform to the use of funds for youth activities
described in 20 CFR part 681 (youth activities under title I of WIOA)
may also be provided to eligible MSFW youth. Finally, in paragraph (c)
the proposed regulation stated that grantees may provide these services
to any eligible MSFW youth, regardless of the participant's eligibility
for WIOA title I youth activities as described in WIOA sec. 129(a).
Comments: Some commenters expressed overall support for serving
farmworker youth, and remarked that a lesson learned from the
previously funded NFJP youth program was to focus on early
intervention. One commenter requested clarification on which service
components may be provided to adults versus youth participants in light
of the provisions in proposed Sec. 681.430 (concurrent youth
participation in the WIOA youth and adult programs and how local
program operators will track concurrent enrollment) and Sec. 681.590
(how local WIOA youth programs will track the work experience
priority), and on how financial and performance reporting should be
tracked, in particular when a participant is enrolled in both youth and
adult services. This commenter noted that youth services are not
currently considered in NFJP reporting. Additionally, the commenter
urged the Department to allow service areas to tailor their short-term
service options to meet the needs of local migrant youth.
Department Response: A description of services that can be provided
to adult NFJP participants is found in Sec. Sec. 685.340 through
685.360 of the Final Rule. Youth services that can be provided through
the NFJP are described in this section, and all services provided to
adult NFJP participants, may also be provided to eligible MSFW youth.
Sections 681.430 and 681.590 regarding certain WIOA youth formula
requirements are not applicable to NFJP grantees. The NFJP is a
National Program authorized under sec. 167 of WIOA and grantees may
enroll participants as either a MSFW adult or a MSFW youth participant
as described in Sec. 685.320, but not in both categories. Regarding
financial reporting, NFJP grantees that provide employment and training
services (career services, training, youth services, and related
assistance) administer a single grant award for each State they serve,
and all expenses associated with the grant are tracked and reported
together. As noted by a commenter, current NFJP reporting systems do
not consider youth elements; the Department will be updating reporting
systems to track youth measures as required in statutory language.
Comments: One commenter suggested that funds be specifically
allocated to farmworker youth services, instead of requiring providers
to compete for funds that are already limited.
Department Response: The Department does not have the statutory
authority to allocate specific NFJP youth funds except as described in
Sec. 685.500 of the Final Rule.
Section 685.390 When may eligible migrant and seasonal farmworkers
receive related assistance?
Proposed Sec. 685.390 established that eligible MSFWs may receive
related assistance services when the need for the related assistance is
identified and documented by the grantee. A statement by the eligible
MSFW may be included as documentation.
Comments: One commenter asked the Department to clarify whether
States would have the authority to determine the process for
identifying an MSFWs need for related assistance. This commenter also
asked the Department to clarify whether MSFWs must be co-enrolled to
receive related assistance.
Department Response: Under WIOA sec. 167(a), every 4 years NFJP
grantees are procured through a competitive process to carry out NFJP
activities and are responsible for determining when eligible MSFWs may
receive related assistance services. If a State agency responds to an
NFJP FOA and is selected as a grantee, they would be able to determine
the process to identify related assistance needs. With regard to the
comment addressing co-enrollment, farmworkers do not need to be co-
enrolled with other programs to receive related assistance services,
but must be eligible to receive NFJP services as described in Sec.
685.320.
6. Subpart D--Performance Accountability, Planning, and Waiver
Provisions
This subpart describes indicators of performance for grantees,
required planning documents, and the information required in program
plans required under WIOA sec. 167. The subpart also explains waiver
provisions and clarifies how grant costs are classified under WIOA sec.
167.
Section 685.400 What are the indicators of performance that apply to
the National Farmworker Jobs Program?
Proposed Sec. 685.400 described the indicators of performance that
apply to grantees. Paragraph (a) stated that grantees providing career
services and training are to use the indicators of performance common
to the adult and youth programs, described in WIOA sec. 116(b)(2)(A),
as required by WIOA sec. 167(c)(2)(C). In paragraph (b), the proposed
regulation explained that for grantees providing career services and
training, the Department will reach agreement on the levels of
performance for each of the primary indicators of performance described
in WIOA sec. 116(b)(2)(A), taking into account economic conditions,
characteristics of the individuals served, and other appropriate
factors, and using, to the extent practicable, the statistical
adjustment model under WIOA sec. 116(b)(3)(A)(viii). The levels agreed
to will be the levels of performance incorporated in the program plan,
as required in WIOA sec. 167(c)(3). As for grantees providing housing
services only, proposed paragraph (c) required that such grantees are
to use the total number of eligible MSFWs served and the total number
of eligible MSFW families served as indicators of performance. In
proposed paragraph (d) the regulation advised that the Department may
develop additional performance indicators with appropriate levels of
performance for evaluating programs that serve eligible MSFWs and which
reflect the State service area economy, local demographics of eligible
MSFWs, and other appropriate factors. Finally, proposed paragraph (e)
permitted grantees to develop additional performance indicators and
include them in the program plan or in periodic performance reports.
Comments: Some commenters raised concerns that enrollment and co-
[[Page 56227]]
enrollment of disadvantaged farmworkers could be jeopardized by
performance standards, performance contracts, recognized credentials,
and Ability-to-Benefit regulations because of partners' concerns that
their performance indicators would decrease when farmworkers
participate. These commenters stated that the models used to determine
expected performance for WIOA title I programs (adult, youth, and
dislocated workers) should be adjusted to consider the barriers MSFWs
face, and that the NFJP in each service area should be subject to these
adjusted performance standards.
Department Response: Establishing viable performance standards are
crucial to program and fiscal accountability, evaluation of program
effectiveness, and continuous quality improvement. The Department will
negotiate performance goals for NFJP grantees providing career services
and training based on several factors, including previous performance,
economic conditions, characteristics of the individuals served, and
other appropriate factors that are supported with data, as described in
Sec. 685.400(b).
Comments: A few commenters suggested that NFJP negotiated
performance standards should not be more stringent than those
established for the Local Areas in which the NFJP is operated.
Department Response: State title I formula programs differ from
those of the NFJP program in the diversity of job seekers served, the
types of services offered, and the number of individuals served
annually; therefore, the Department does not support the suggestion
that NFJP grantees should have the same performance levels as those of
the local areas in which they operate. The Department will provide
additional information on the WIOA performance accountability system
and primary indicators of performance for NFJP grantees.
Comments: Some commenters expressed concern about the inclusion of
credential attainment in the new performance indicators for NFJP, as
rural areas often lack credentialing programs. These commenters warned
that, as written, the credential attainment indicator may deter service
providers from targeting the rural MSFW population. Another commenter
urged the Department to encourage but not require the attainment of
credentials.
Department Response: WIOA sec. 167(c)(2)(C) requires that the NFJP
utilize the primary indicators of performance described in WIOA sec.
116(b)(2)(A), including postsecondary credential attainment and high
school completion, therefore the Department cannot waive this measure
for NFJP grantees. Some commenters warned that, as written, the
postsecondary credential attainment indicator may deter service
providers from targeting rural MSFW populations. However, as specified
in Sec. 685.350(c), NFJP training activities must encourage the
attainment of recognized postsecondary credentials as defined in Sec.
685.110 when appropriate for an eligible MSFW, but it is not required
that all training provided to NFJP participants lead to a postsecondary
credential. Therefore lack of credentialing programs in a given service
area should not be a deterrent to providing needed training to eligible
MSFWs.
Comments: Many commenters noted that WIOA authorizes related
assistance services for eligible MSFWs. One commenter added that
related assistance provides support for farmworkers allowing them to
stabilize and find agricultural work as they move within the harvest
season, but rarely results in more than short term seasonal placements.
Many commenters expressed concerns that including individuals who only
receive related assistance services in performance indicator
calculations would undermine the ability of grantees to provide these
needed authorized services, and would contribute to negative results
from the performance indicator evaluation system.
Department Response: The Department is revising paragraph (b) of
Sec. 685.400 in response to these comments. The Department
acknowledges that related assistance is an important component of
workforce services that assist eligible MSFWs retain or stabilize their
agricultural employment. The term ``related assistance'' encompasses a
range of services and activities, which require varying levels of
involvement by NFJP grantees and their staff. In particular, Sec.
685.110 defines ``emergency assistance'' as a form of related
assistance that addresses the immediate needs of eligible MSFWs and
their dependents, provided by grantees. Emergency assistance may
include the provision of necessary items, like garments of clothing.
While providing clothing to a farmworker in need provides a significant
benefit to the farmworker, it does not require a significant investment
of grantees' resources. Therefore, the Department has determined that
including individuals who receive emergency assistance or other short-
term related assistance that does not involve a more extended
intervention, in the performance calculations would not necessarily
measure the success of a grantee in providing WIOA services to eligible
MSFWs. For example, the Department does not consider pesticide and
worker safety training to be the kind of related assistance that
requires the individual to be included in the performance metrics. The
Department may request information regarding the number of individuals
who received types of related assistance that are not included in the
performance indicators.
In order to clarify how individuals who only receive short term
related assistance, such as emergency assistance, will be tracked and
included in performance under WIOA, the Department has added the
following language to Sec. 685.400(b) clarifying that eligible MSFWs
who receive any career services, youth services, training, or certain
related assistance are considered participants as defined in 20 CFR
677.150 of this chapter and must be included in performance
calculations for the indicators of performance described in WIOA sec.
116(b)(2)(A); and additionally, that eligible MSFWs who receive only
those services identified in 20 CFR 677.150(a)(3)(ii) or (iii) of this
chapter are not included in performance calculations for the indicators
of performance. The Department uses the term ``certain related
assistance'' to indicate that individuals that received forms of
related assistance that require a more significant involvement by the
grantees' staff, may be included in the performance metrics. In
particular, as set forth in Sec. 685.380, the related assistance
includes those activities identified in WIOA sec. 167(d), which include
school dropout prevention and recovery activities, self-employment and
related business or micro-enterprise development or education, and
customized occupational career and technical education. To the extent
such forms of related assistance require a more significant involvement
by the grantees' staff, and are forms of related assistance related to
education, training, career, or employment outcomes, these forms of
related assistance will be included in performance calculations for the
indicators of performance. The Department provides specific directions
regarding the forms of related assistance to be included in performance
indicators through guidance. Including all NFJP participants who
receive career services, youth services, training, or certain related
assistance that involves a significant investment of a grantee's staff
time in performance calculations also allows the Department to evaluate
[[Page 56228]]
fully the effectiveness of the services provided to farmworkers through
the NFJP. Finally, in order to align this provision with 20 CFR
677.150(a)'s definition of participant, the Department notes that Sec.
685.400(b) excludes individuals who only receive the services
identified in 20 CFR 677.150(a)(3)(ii) (accessing the self-service
system) or (iii) (information services or activities) (see Joint WIOA
Final Rule). The Department does not agree with the assertion that the
inclusion of eligible MSFWs who receive related assistance that
involves more than a minimal amount of staff assistance in performance
calculations for the indicators of performance would undermine the
ability of grantees to provide these services, but rather, that NFJP
grantees will now be evaluated for the related assistance they provide
that is appropriately measured by the performance indicators.
Section 685.460 Are there regulatory and/or statutory waiver provisions
that apply to the Workforce Innovation and Opportunity Act?
Proposed Sec. 685.460 described the regulatory and/or statutory
waiver provisions that apply to NFJP Programs, WIOA sec. 167. Paragraph
(a) stated that the statutory waiver provision at WIOA sec. 189(i) and
discussed in Sec. 679.600 (the general statutory and regulatory waiver
authority in WIOA) does not apply to WIOA sec. 167. Paragraph (b)
established that grantees may request a waiver of any regulatory
provisions only when such regulatory provisions are (1) not required by
WIOA; (2) not related to wage and labor standards, non-displacement
protection, worker rights, participation and protection of workers and
participants, and eligibility of participants, grievance procedures,
judicial review, nondiscrimination, allocation of funds, procedures for
review and approval of plans; and (3) not related to the basic purposes
of WIOA, described in 20 CFR 675.100.
Comments: Several commenters expressed support for the continuation
of a supposed selective service waiver process for male farmworkers who
were unaware of the Selective Service registration requirement. One of
these commenters reasoned that it can take up to 30 days to receive a
response from Selective Service, which is a challenge for farmworkers
who must regularly travel during short intervals to support themselves
and their family. Another commenter stated that as a consequence of
MSFW males not registering for Selective Service, many are denied
services that are needed to assist them on their way to other
employment. A different commenter suggested that the Department
automatically waive male farmworkers who are past the age of military
participation, especially if they were not born or educated in the
United States.
Department Response: The Department cannot waive this WIOA
statutory requirement. WIOA sec. 189(h) requires that each individual
participating in any program or activity established under title I of
WIOA, or receiving any assistance or benefit under title I of WIOA, has
not violated sec. 3 of the Military Selective Service Act (50 U.S.C.
App. 453) by not presenting and submitting to registration. Allowing a
selective service waiver would be inconsistent with WIOA sec. 189(h).
7. Subpart E--Supplemental Youth Workforce Investment Activity Funding
Under Workforce Innovation and Opportunity Act Sec. 127(a)(1)
This subpart describes the purpose of supplemental youth workforce
investment activity funding that may become available under WIOA sec.
127(a)(1). Included is a description of how the funds may become
available, and what requirements apply to grants funded by WIOA sec.
127(a)(1).
Section 685.500 What is supplemental youth workforce investment
activity funding?
Proposed Sec. 685.500 described that if Congress appropriates more
than $925 million for WIOA youth workforce investment activities in a
fiscal year, 4 percent of the excess amount must be used to provide
workforce investment activities for eligible MSFW youth under NFJP
Programs, WIOA sec. 167.
Comments: One commenter asked the Department to clarify whether or
not there are requirements or restrictions if the State is providing
over 4 percent.
Department Response: The Department is revising Sec. 685.500 in
response to this comment. There are no requirements or restrictions to
States if Congress appropriates more than $925 million for WIOA youth
workforce investment activities in a fiscal year. This section of the
Final Rule describes that if this funding threshold is met in any
fiscal year under WIOA, the Department must make 4 percent of the
excess amount available exclusively for workforce investment activities
for eligible MSFW youth under WIOA sec. 167. To accomplish this, as
described in Sec. 685.520 (the application process for obtaining a
grant funded by the WIOA), the Department will issue separate FOAs for
grants funded by WIOA sec. 127(a)(1). The selection of grantees will be
made in accordance with the procedures described in Sec. 685.210,
except that the Department reserves the right to provide priority to
applicants that are WIOA sec. 167 grantees. The term ``by the
Department'' has been added to Sec. 685.500 to clarify that if
Congress appropriates more than $925 million for WIOA youth workforce
investment activities in a fiscal year, 4 percent of the excess amount
must be used by the Department to provide workforce investment
activities for eligible MSFW youth under WIOA sec. 167.
J. Part 686--The Job Corps Under Title I of the Workforce Innovation
and Opportunity Act
1. Introduction
This part establishes regulations for the Job Corps program,
authorized in title I, subtitle C of WIOA. The regulations address the
scope and purpose of the Job Corps program and provide requirements
relating to site selection, protection, and maintenance of Job Corps
facilities; funding and selection of center operators and service
providers; recruitment, eligibility, screening, selection and
assignment, and enrollment of Job Corps students; Job Corps program
activities and center operations; student support; career transition
services and graduate services; community connections; and
administrative and management requirements. The regulations incorporate
the requirements of title I, subtitle C of WIOA and describe how the
Job Corps program is operated in order to deliver relevant academic and
career technical training (CTT) that leads to meaningful employment or
postsecondary education. The regulations also serve to explain clearly
the requirements necessitated by the unique residential environment of
a Job Corps center. The major changes from the existing regulations
reflect WIOA's effort to enhance the Job Corps program, provide access
to high quality training and education, create incentives for strong
contractor performance, and promote accountability and transparency.
The analysis that follows provides the Department's response to
public comments received on the proposed Job Corps regulations. If a
section is not addressed in the discussion below, it is because the
public comments submitted in response to the NPRM did not address that
specific section and the Department made no changes to the regulatory
text. Further, the Department received a number of comments on this
part which were outside the scope of the
[[Page 56229]]
regulation and therefore the Department offers no response. Lastly, the
Department has made a number of non-substantive changes to correct
grammatical and typographical errors to improve the readability and
conform the document stylistically that are not all discussed in the
analysis below.
2. Subpart A--Scope and Purpose
This subpart contains regulatory provisions that describe the Job
Corps program, its purpose, the role of its Director, and applicable
definitions. All references in this part to the Secretary issuing
guidelines, procedures or standards means that they will be issued by
the National Job Corps Director. This subpart also describes the Policy
and Requirements Handbook (PRH), which provides the operating policies
and procedures governing day-to-day activities of the Job Corps
program. The subpart describes the scope and purpose of the program,
along with the responsibilities of its National Director. It promotes
accountability and transparency by making readers aware of exactly what
the Job Corps program plans to achieve and the procedures for doing so,
as well as the role its leadership plays in its operation.
The analysis that follows provides the Department's response to
public comments received on the proposed Job Corps regulations. If a
section is not addressed in the discussion below, it is because the
public comments submitted in response to the NPRM did not address that
specific section and no changes were made to the regulatory text.
Section 686.110 What is the Job Corps program?
This section generally describes the Job Corps program as
administered by the Department.
Comments: One commenter noted that formally teaching healthy
relationship skills would satisfy the intensive social education
described in the NPRM preamble discussion of proposed Sec. 686.110.
Department Response: The Department acknowledges the importance of
teaching healthy relationship skills to Job Corps' students and notes
that such skills are currently provided in the Job Corps program.
Section 686.110, as drafted, reflects the increased focus in sec. 141
of WIOA on connecting young people to the labor force by providing them
with intensive social, academic, career and technical education, and
service-learning opportunities. No changes to regulatory text were made
in response to this comment.
Section 686.120 What definitions apply to this part?
This section explains the definitions applicable to this Final
Rule. The Department received comments on several of the definitions.
Comments: One commenter expressed support that the definition of an
``individual with a disability'' aligns with the definition in sec. 3
of the Americans with Disabilities Act (ADA) because it provides ease
of use for the WIOA programs and recommended that it be maintained and
applied throughout WIOA.
Several commenters remarked that ``participant'' is appropriately
defined as graduates, enrollees, and former enrollees who have
completed the Career Preparation Period (CPP) or who have been on
center for 60 days. These commenters also stated that Job Corps is
likely to modify the requirements of the CPP to be more flexible as
part of its modernization of the PRH and expressed concerns about
creating incentives to extend CPP in order to prevent certain students
from being included in the performance pools.
Department Response: The definition of participant not only
includes graduates and those enrollees and former enrollees who have
completed the CPP, but also those who have remained in the program for
60 days or more, regardless of whether they have completed their CPP.
Thus there is little incentive to extend the CPP simply for the
purposes of trying to manipulate participant counts. No change to
regulatory text was made in response to these comments.
The same commenters noted that there is no mention of Zero
Tolerance (ZT) Level 1 separations and whether these students will
continue to be defined as participants or former enrollees following
their mandatory dismissal from the program. These commenters stated
that all ZT Level 1 separations, regardless of length of stay, should
be excluded from the definition of participant because it is critical
for Job Corps to maintain a safe environment for its students and
staff. The commenters explained that counting Level 1 ZT separators as
participants for performance measurement counterintuitively penalizes
centers and the program for taking actions that are necessary and
mandated by WIOA to ensure the safety of students and holds Job Corps
to a different standard than other training programs, making it
difficult to compare Job Corps' performance fairly to that of other
programs.
Department Response: WIOA's performance accountability system was
designed so that WIOA programs would be held accountable to the same
primary indicators of performance. In order to implement Congress'
intent, the term ``participant,'' as it applies to the Job Corps
program, is designed to align with the definition of participant in 20
CFR 677.150 (see Joint WIOA Final Rule), ensuring that the performance
of the Job Corps program could be accurately compared with the
performance of the other title I programs. The Department acknowledges
the commenters' concern regarding not penalizing Job Corps centers for
maintaining safe environments and enforcing the program's zero
tolerance policy. However, compliance with and enforcement of the zero
tolerance policy is required as part of the operation of a Job Corps
center by every Job Corps' operator. Any positive or negative effect
the zero tolerance policy may have on the performance of a center under
the primary indicators of performance does not change the requirement.
In 20 CFR part 677 (see Joint WIOA Final Rule) and this part, the
intent of the definition of participant is to capture all individuals
that are engaged in, and receiving services from, the relevant program,
regardless of when, and under what circumstances, they exit from the
program. Adopting the commenters' proposal would eliminate the
conformance in the definitions of participant in both parts. Any
exclusion from the definition of participant in regard to Job Corps for
the purpose of calculating performance under the metrics described in
Sec. 686.1010 is provided in the annual performance guidance described
in Sec. 686.1000, and will be consistent with any applicable policies
and guidance issued by the Employment and Training Administration.
Accordingly, no change was made to the regulatory text in response to
these comments.
Comments: One commenter noted that knives of any length should be
prohibited, not just those with blades longer than 2 inches as defined
in ``unauthorized goods,'' noting that knives of any blade length are
dangerous.
Department Response: The Department concurs with this commenter and
has revised the definition of ``unauthorized goods'' in the regulatory
text at Sec. 686.120 to include all knives.
Section 686.130 What is the role of the Job Corps Director?
Comments: Several commenters noted that Job Corps' authorities are
currently
[[Page 56230]]
split among three offices (the Office of Job Corps, the Office of
Contracts Management, and the Office of Financial Administration),
which has effectively separated procurement, contracting, and budget
authority from the Job Corps Director, despite the fact that guidelines
and standards related to these authorities provide that they are the
responsibility of the Job Corps Director. The commenters proposed that
the Department clarify the regulation to state that the Job Corps
Director retains the authority to set guidelines and standards related
to secs. 147 and 159(a) of WIOA. One additional commenter echoed this
proposal, noting that it would help Job Corps realize program
management efficiencies.
Department Response: The Department has concluded that the
delegation of functions in regard to the Job Corps is more
appropriately addressed in administrative orders as is done with other
Department of Labor functions and therefore Sec. 686.130 is being
deleted from the regulation.
3. Subpart B--Site Selection and Protection and Maintenance of
Facilities
This subpart describes how sites for Job Corps centers are
selected, the handling of capital improvements and new construction on
Job Corps centers, and responsibilities for facility protection and
maintenance. The Secretary must approve the location and size of all
Job Corps centers, and establish procedures for requesting, approving,
and initiating capital improvement and new construction on Job Corps
centers, which serves to strengthen and enhance the program as a whole.
The requirements in this subpart are not significantly different from
the corresponding requirements in the WIA Job Corps regulations at 20
CFR part 686, subpart B, and no comments were received on this subpart
4. Subpart C--Funding and Selection of Center Operators and Service
Providers
This subpart implements new requirements of WIOA with regard to the
operators of high-performing centers, the length of contractual
agreements to operate Job Corps centers, and how entities are selected
to receive funding to operate Job Corps centers and to provide
outreach, admissions, and career transition support services. In
addition to adding to the list of considerations currently used in
selecting Job Corps center operators and service providers, WIOA
emphasizes competition to increase the performance and quality of the
Job Corps program. WIOA also provides that an entity, in its role as
incumbent operator of a center deemed to be high performing, may
compete in any competitive selection process carried out for an award
to operate that center, even in cases where the selection of the
operator is set aside for small businesses as required by the Federal
Acquisition Regulation. This serves to ensure continued access to high
quality training and education for Job Corps students. WIOA also
provides that a center operations contract cannot exceed 2 years, with
three 1-year options to renew. This codifies current Job Corps
practice. Furthermore, WIOA precludes the Secretary from exercising an
option to renew a center operations contract for an additional 1-year
period if certain criteria are not met, with limited exceptions. All of
these new and expanded provisions follow WIOA's theme of enhancing the
Job Corps program and providing access to high quality training and
education by ensuring Job Corps centers are staffed with high quality
service providers.
Section 686.300 What entities are eligible to receive funds to operate
centers and provide training and operational support services?
Comments: A commenter recommended that the regulations clarify that
an ``entity'' eligible to become a contractor must be a corporation,
LLC, or other similar corporate structure, not just an individual. The
commenter also suggested that the business as a whole, not just the
individuals or principals of the entity, should have the requested
experience.
Department Response: WIOA clearly identifies the entities eligible
to operate or provide services to a Job Corps center. To further limit
those entities would be inconsistent with WIOA sec. 147(a)(1)(A).
Accordingly, no change was made to the regulatory text in response to
these comments.
Section 686.310 How are entities selected to receive funding to operate
centers?
This section describes how entities are selected to receive funding
to operate Job Corps centers. WIOA contains new provisions intended to
strengthen the Job Corps contracting process by requiring specific
criteria that emphasize quality, performance, and accountability to be
addressed as part of the selection process for center operators. The
Department invited comment on how to best embed this focus.
Comments: One commenter was concerned that the proposed framework
for developing RFPs will result in conflicts of interest, stating that
a workforce council that was established by the incumbent contractor
should not have a say in the development of an RFP. The commenter
stated that the regulations should clarify the topics on which the
Local WDB and Governor may be consulted since either or both may have a
relationship with the incumbent operator or other bidding contractors
that could influence their responses.
Department Response: The selection process for operators and
service providers, and the roles of the Local WDB and the Governor in
that process, are clearly laid out in WIOA sec. 147(a)(2)(A). Limiting
the topics on which the Local WDB or Governor may be consulted is
inconsistent with this section of WIOA. Note that while WIOA does
require consultations with various parties, the final content of the
solicitation is at the discretion of the Department. No changes were
made to the regulatory text in response to this comment.
Comments: One commenter stated that robust application of the
selection criteria is particularly important in the context of small-
business set-asides under the Federal Acquisition Regulation (FAR). The
comment stated that the Department frequently applies the FAR's small
business set-aside provision in a way that circumvents statutory
selection criteria by setting aside a Job Corps contract whenever there
are two or more small businesses expected to apply, without regard to
the qualifications of those businesses. The commenter stated this has
led to a significant decline in the quality of some centers,
particularly where highly qualified and successful operators have been
displaced by substantially less-qualified small businesses. The
commenter recommended that the Department clearly specify in the
regulations that contracting officers must apply the statutory
selection criteria at each step of the contracting process, including
when determining whether to engage in small business set-asides, to
ensure that only fully qualified entities are selected to operate Job
Corps Centers. Further, the commenter suggested that the regulations
emphasize that contracting officers must exercise their discretion
under the FAR to cancel set-asides wherever doing so would be in the
best interest of the program and its users and provide protection to
incumbent operators at centers that routinely place in the top 10-15
centers.
However, another commenter said that, as required by the FAR, the
Department should operate within the law to promote participation by
small
[[Page 56231]]
businesses in the Job Corps contracting arena. The commenter stated
that it is incumbent upon the Department to apply the requirements of
the FAR as they relate to sources sought and small business set asides
in order to avoid creating monopolies that limit competition and result
in cost inefficiencies and lower quality and performance.
Department Response: The selection factors it considers in the
sources sought process are a matter of program administration and are
not statutorily required. The Department will include the statutory
selection criteria in the sources sought process as it deems them to be
applicable. In conducting its procurement actions, the Department
complies with all applicable statutes and regulations, including the
Competition in Contracting Act, the Small Business Act, and the FAR.
This legal framework limits the Department's ability to provide any
exception to these processes beyond what is provided in WIOA. The
Department cannot do what is proposed and no changes were made to the
regulatory text.
Comments: Several commenters noted that the RFP process must be
timely; transparent, with the evaluation process clearly articulated;
objective; and focused on proven past performance in delivering student
outcomes to measurably differentiate between entities. Another stated
that the best way to embed a focus on quality, performance, and
accountability in the selection process is to ensure that the
procurement process is under the full control of the National Office of
Job Corps, and that past performance be based upon Job Corps-specific
student outcomes. The commenter also suggested that procurement
proposals be evaluated by Job Corps' staff with technical knowledge of
the Job Corps program.
Multiple commenters suggested making all stakeholders involved in
the procurement process, including procurement staff and decision-
makers, accountable for student outcomes. These commenters noted that
for the procurement process to be mission-focused, all procurement
personnel must know and understand the Job Corps mission and its
indicators of success.
Department Response: The majority of the comments that were
submitted relate to the agency's internal organizational structure and
personnel policies and actions, which the Department declines to
address in this regulation. Further, the Department will consider past
performance during the procurement process consistent with WIOA sec.
147(a).
Comments: Some commenters specifically expressed concerns that the
proposed regulations will allow bidders with inadequate experience in
achieving high student outcomes to apply to operate Job Corps
facilities. Other commenters recommended that the entire procurement,
evaluation, and award process be overhauled so the primary criterion
for evaluation in a procurement process focus on the past effectiveness
of the offeror. These commenters recommended the use of adjectival
ratings (e.g., excellent, very good, good) in each section of the
proposal, with a rubric to define the adjectives.
Department Response: In order to ensure flexibility in the
operation of the Job Corps program, no changes will be made to the
language in this part. Furthermore, the Department makes Job Corps
award decisions based on the established criteria stated in the
solicitation, many of which are statutory or decided on a best value
basis. The best value approach allows the Department to consider the
stated evaluation factors, which include various elements, such as
technical approach, past performance and proposed price.
Comments: Multiple commenters stated that the questions asked in
the RFPs often have no direct relevance to the Job Corps center for
which the solicitation is being conducted. They also recommended that
the Department include language in the RFPs specifying how the combined
records of a prime contractor and their subcontractors will be weighed
and considered. One commenter noted that the Department should not only
better define the applicable selection criteria, but it also should
provide clear guidance concerning the points during the selection
process that the criteria should be applied. This would create a more
transparent framework and allow would-be center operators to understand
the process better. In addition, the commenter believed the public
could hold contracting officers accountable for their operator choices.
Department Response: In order to ensure flexibility in the
operation of the Job Corps program, no changes will be made to the
language in this part. The Department issues guidance regarding the
procurement process through the Job Corps' PRH and other guidance
issued by the Secretary.
Comments: One commenter noted that offerors should have
demonstrated experience and partnerships with State and local workforce
boards, one-stop centers, employer organizations and labor
organizations.
Department Response: The Department notes that Sec. 686.310(c)(3)
requires proposals to address the degree to which the offeror
demonstrates these relationships.
Comments: Commenters also addressed the criteria in proposed Sec.
686.310(c)(4) requiring that an offeror's past performance relating to
operating or providing activities to a Job Corps center, including
information included in any reports developed by the Department of
Labor's Office of the Inspector General (OIG), be considered during the
evaluation process. Two commenters recommended that if a center is
randomly selected as part of an audit and the audit reveals a systemic
issue that impacts all centers regardless of operator, the offeror
should not be viewed unfavorably during the procurement process.
Another commenter suggested that the Department use multiple past
performance indicators based on student outcomes beyond information
about an offeror in Department of Labor Office of Inspector General
(OIG) reports. The commenter recommended that past performance
incorporate a contractor's past Job Corps performance as measured by
the Outcome Measurement System; the Department's automated Contractor
Past Effectiveness Report; the proposed annual Operator Performance
Assessment; and the Contractor Performance Assessment Reports
(developed for each Job Corps contract).
Department Response: The requirement at Sec. 686.310(c)(4) is a
statutory requirement at sec. 147(a)(2)(B)(i)(IV) of WIOA that
describes the use of OIG reports on the offeror's demonstrated
effectiveness and cannot be changed. Further, the Department's use of
non-statutory criteria in the selection process is policy related and
no changes were made to this regulatory text.
Comments: In response to proposed Sec. 686.310(c)(5) and the
Department's request for comments on how to assess potential offerors'
past records in assisting at-risk youth to connect to the workforce,
multiple commenters proposed that Job Corps use the Automated Past
Effectiveness score issued to each contractor based on the Outcome
Measurement System (OMS) report card. The commenters suggested that
this assessment method ensured a consistent and understandable approach
for evaluating an offeror's record in assisting at-risk youth, and
recommended that this system, or a similar system, be implemented to
[[Page 56232]]
ensure consistency and fairness. They also suggested that the
Department include language specifying how the combined records of a
prime contractor and its subcontractor(s) will be weighed and
considered with respect to this provision.
Several commenters recommended that to assess and differentiate
past performance in assisting at-risk youth to connect to the
workforce, the Department should conduct a review of both the interim
and final contract performance assessment reports (CPARs) of an entity,
if available, or other comparable information. One commenter also
recommended that technical assistance in the area of connecting at-risk
youth to the workforce be required.
One commenter noted that the nature of the Job Corps program
necessitates specialized experience that only can be obtained through
experience in operating Job Corps or similar centers.
Another commenter stated that the Department should require and
evaluate at least 3 years of third-party validated outcomes related to
Job Corps' primary indicators of performance. The commenter noted that
3 years is suggested because 3 years of performance is used in this
section of WIOA to evaluate and define high-performance among
operators.
A commenter recommended that the regulations call for entities to
provide reports from objective sources to demonstrate performance
results. The commenter stated that data collected solely by the offeror
that cannot be independently verified should never be accepted as
evidence of performance ability. For offerors with previous Job Corps
experience, the commenter recommended that sources including the OMS,
OBS, Student Satisfaction Survey, and Management Performance Outcome
(MPO) be used to demonstrate performance results; for those offerors
with no direct Job Corps experience, documentation from the funder,
Common Measures outcomes, or third-party reports of the entity's
previous success in meeting its contractual obligations and achieving
results should be submitted to support the entity's ability to operate
the center.
Department Response: The Department continues to explore the most
effective and reliable sources of information in assessing
effectiveness and past performance in the operator selection process
This requires flexibility to meet the changing needs of the Job Corps
program and no changes have been made to the regulatory text. The
criteria for effectiveness and past performance will be included in
each solicitation.
Comments: In response to the Department's request for additional
selection factors, multiple commenters noted that to ensure that
potential Job Corps center operators are high-quality providers with
documented outcomes and proven performance, the qualification
requirements should be further refined and offered various additional
selection factors to include in the solicitation.
Department Response: Consistent with applicable procurement
statutes and regulations the Department does not want to unduly
restrict competition, and needs to maintain the flexibility to adjust
its requirements for the changing needs of the Job Corps program and
for each center when necessary to do so. No changes have been made to
regulatory text in response to these comments.
Comments: Several commenters noted that the delivery of quality
services to students is dependent on hiring and maintaining qualified
staff, and recommended that the procurement process include an
evaluation that compares the costs proposed by an offeror to those
identified in a market analysis.
Department Response: The procurement process already includes an
evaluation of these factors. In order to ensure flexibility in the
operation of the Job Corps program, no changes will be made to the
language in this part.
Section 686.320 What if a current center operator is deemed to be an
operator of a high-performing center?
This section describes the criteria that an incumbent operator must
meet in order to be considered the operator of a high performing
center. If an entity is deemed to be the operator of a high-performing
center, the entity is permitted to compete in any competitive selection
process carried out for an award to operate that center, including
those set aside for small businesses as required by the FAR.
Comments: One commenter recommended that the language of Sec.
686.320(a) be amended so that it cannot be interpreted as allowing a
high-performing incumbent operator to bid on an 8(a) set-aside
procurement even if it is not in the Small Business Administration's
(SBA's) 8(a) business development program. The commenter specifically
recommended that the Department change the wording in Sec. 686.320(a)
from ``. . . that operator will be allowed to compete in any
competitive selection process carried out for an award to operate that
center'' to ``. . . that operator will be allowed to compete in full
and open competitions, as well as procurements that are set aside for
small business.'' The commenter also recommended that the Department
clarify that when a large business is awarded a contract set aside for
small businesses, it cannot count toward the procuring agency's small
business contracting goals.
Department Response: Section 147(b)(1) permits a high-performing
incumbent operator to compete in any competitive procurement process
for the operation of that center. This includes competitive
procurements set aside for participants in the SBA's 8(a) business
development program. Making the change suggested by the commenter would
be inconsistent with the statutory requirement. As written, WIOA allows
a high performing incumbent operator to bid on a competitive 8(a) set-
aside procurement regardless of whether it is part of the SBA's 8(a)
business development program. The Department has also determined it is
not necessary to clarify the language regarding large businesses
receiving a contract set aside for small business.
Comments: One commenter stated that the standard for high
performing centers in proposed Sec. 686.320(b) is currently
unattainable, while several other commenters asserted that no center
currently meets the standard. One commenter stated that the language is
confusing and recommended that it be simplified, adding that high
performing centers be those in the top 30 percent ``overall'' on the
OMS report at the time of procurement solicitation. Another commenter
stated that the criteria for determining a high-performing contractor
must be clear and use objective performance criteria.
Department Response: The high performing criteria are established
by statute; therefore, to be considered a high performing center under
this section, an incumbent operator must meet the standards identified.
No changes have been made to the regulatory text in response to these
comments.
Comments: Several commenters stated that not all centers have a
career transition services (CTS) contract attached to the center; as
such, these centers do not have complete control over their short- and
long-term placement outcomes. These commenters recommended that the
Department ascertain whether it is possible through statistical methods
to isolate the impact of operators on the primary indicators of
performance from those of their CTS contractor.
Department Response: The Department acknowledges that not
[[Page 56233]]
every center has a CTS contract attached to it, nor does WIOA require
that the CTS contracts be included as part of the center operations
contract. Sec. 159(c)(1) of WIOA and Sec. 686.1050 of these
regulations require the Department to establish expected levels of
performance for each center and the method for calculating those levels
via annual guidance issued by the Department. The Department has
concluded that to maintain the necessary flexibility in the annual
performance guidance for the Job Corps program the commenters'
suggestion is best considered as part of the yearly process of
establishing the expected levels of performance and no changes to the
regulatory text have been made in response to these comments.
Section 686.330 What is the length of an agreement entered into by the
Secretary for operation of a Job Corps center and what are the
conditions for renewal of such an agreement?
Comments: Commenters requested the Department to clarify the
conditions that trigger the denial of an option year, specifically how
the average of 50 percent or higher of the expected level of
performance for each of the six primary indicators will be calculated.
Department Response: The Department provided a detailed description
of the circumstances under which it will exercise an option in Sec.
686.330(c). The Department also identified a circumstance under which
an option year will not be exercised in Sec. 686.330(d); however,
there may be other circumstances under which an option year may not be
exercised. Regarding the question of how the average of the expected
levels of performance will be calculated, the Department has determined
that, pursuant to sec. 147(g)(1) of WIOA, it will average the most
recent 2 years of data, consistent with Sec. 686.330(e), for each of
the six primary indicators of performance. The Department will consider
the standard outlined in Sec. 686.330(d)(2) met if the average on each
of the six primary indicators for performance is below 50 percent. No
changes have been made to the regulatory text in response to these
comments.
Comments: Several commenters noted that because it takes an average
of 2 full years to improve the performance of a center, the first
option year should always be granted to an operator taking over a low
performing center so that any decision regarding renewal is based
solely on the performance of the new operator and not the previous
operator.
Relatedly, regarding the availability of information when there has
been a change of center operators (Sec. 686.330(e)), several
commenters expressed concern that 6 months is an inadequate amount of
time to assume full responsibility for the performance of the previous
operator if the center is a low performing center (bottom 20 percent).
These commenters noted that in order to improve performance, new
operators are required to install new leaders, set up a new management
team and strategic plan, hire and train new employees, set up a new
behavior management system, develop strong student leaders, establish a
positive student culture, and undertake other time consuming tasks in
order to successfully improve center performance. The commenters stated
that the point at which the performance of the center reflects the
performance of the current operator is contingent on vastly different
conditions and deficiencies, and noted that if a calendar date must be
used to reflect this, it should be no less than 2 years for the new
operator of a low performing center and at least 1 year for other
operators. One commenter noted that the point at which the performance
of a center reflects the performance of the current operator will vary
based on numerous conditions, including the shortcomings of the
previous operator. As such, the commenter recommended that the length
of time should be determined on a case-by-case basis.
Department Response: The Department has considered these comments
and agrees that, given that it takes at least a year for a new operator
to improve the performance of a center, the possibility exists that a
center with a new operator may continue to meet the definition of a
low-performing center despite the change in operator. Accordingly, the
Department added a clause to Sec. 686.330(e)(1) to provide that when
an operator takes over a center that was previously low performing, the
first contractual option year will not be denied based on the
performance criteria described in paragraph (d). This will provide the
operator time to improve the performance of the center and ensure that
the available data accurately reflects the performance of the current
operator.
Comments: Several commenters stated that ``or'' should be changed
to ``and'' in Sec. 686.330(f)(1)(vii) in order to align with WIOA sec.
147(g), noting that the law and the regulations apply different
criteria for performance that triggers an option year denial.
Department Response: The Department agrees with the commenters and
has made two changes to Sec. 686.330(f). First, paragraph (f)(2) has
been reordered and moved to paragraph (f)(1) in order to maintain the
same order of criteria as the previous section for ease of reading. In
addition, the ``or'' between paragraphs (f)(1) and (2) has been changed
to an ``and'' to indicate that in order for an option year to be denied
under this provision both criteria must be met.
Comments: Several commenters recommended that the Department define
the term ``significant improvements'' in Sec. 686.330(g)(1) to improve
transparency, make expectations clear, and avoid charges of favoritism.
Department Response: The Department has determined that because
each performance improvement plan (PIP) is unique and tied to a
specific set of factors that pertain to a specific contractual
situation, it will not further define the term ``significant
improvements'' here as those improvements will necessarily vary by PIP.
Section 686.340 How are entities selected to receive funding to provide
outreach and admission, career transition and other operations support
services?
Comments: One commenter stated that the proposed regulation does
not adequately implement the rigorous service provider selection
criteria prescribed by Congress in WIOA and takes insufficient steps to
ensure that Job Corps users will receive the highest quality services
and training possible. Another commenter suggested that the Department
utilize OMS outcome information when evaluating career transition
service (CTS) contract proposals and set up a report to assess
students' connection to the workforce after leaving the Job Corps
center.
Department Response: The selection criteria described in Sec.
686.340(c) are taken directly from sec. 147(a)(2)(B)(i), which are the
criteria required to be used in selecting an outreach and admissions
(OA) or career transition services provider (CTS). The Department has
included Sec. 686.340(c)(6) to provide flexibility to include
additional selection criteria if the Department determines such
criteria are necessary to ensure the highest quality service providers.
No changes have been made to the regulatory text in response to these
comments.
Comments: Another commenter recommended that all CTS contracts be
attached to prime Job Corps center contracts because it would provide a
[[Page 56234]]
cost-effective method to afford accountability to Job Corps results.
Department Response: The Job Corps contracting processes and
structure regarding center operations contracts and CTS contracts
require flexibility as they are driven by the program's evolving needs.
The Department declines to make changes to the regulatory text in
response to this comment, and will issue guidance as necessary.
Section 686.350 What conditions apply to the operation of a Civilian
Conservation Center?
Comments: Commenters expressed concern regarding proposed Sec.
686.350(e), which allows the Secretary of Labor, in consultation with
the Secretary of Agriculture, to select an entity to operate a CCC in
accordance with the requirements of Sec. 686.310 if the Secretary of
Labor determines it is appropriate. The commenters recommended that
CCCs continue to be managed by the USDA Forest Service. Commenters
stated that USDA-operated CCCs should not be able to be replaced by a
private for-profit entity; one commenter specifically stated that there
is potential for contract centers to misuse resources and that contract
centers do not have the additional layer of oversight that CCCs have.
Several commenters opposed Sec. 686.350(f), which provides that
the Secretary of Labor has the discretion to close CCCs if the
Secretary determines it to be appropriate. Commenters stated that the
CCC National Director, the Forest Service Chief, and Secretary of the
United States Department of Agriculture (USDA) need to have control and
the final say as to the performance and closure of any CCC, as opposed
to closure being at the sole discretion of the Secretary of Labor. Some
commenters stated that proposed Sec. 686.350(f) gives authority to one
person--the Secretary of Labor--to make a unilateral decision that
would affect thousands of people. Commenters suggested that there
should be a wider range of people involved and time to present a case
against closure of any particular center, as the closure of centers
have a devastating effect on surrounding communities. Other commenters
expressed concern that this proposed regulation would give one agency
the ability to make employment decisions about another agency's
personnel and would take away the personnel's ability to appeal
employment decisions within their own agency. One commenter stated that
this proposed provision would damage morale and create uncertainty
among the CCC workforce. Another commenter remarked that taxpaying
residents of the community where the CCC is located should be involved
and/or their opinions be taken into consideration when making decisions
regarding CCCs. Still another commenter stated that the proposed
language focuses solely on closure. The commenter noted that with no
clearly defined, objective assessment system in place that includes
obtainable benchmarks, the language in proposed Sec. 686.350(f) would
create an unaccountable system without hope for improvement. The
commenter further noted that the valuations made on the data collected
by the Department's systems use flawed assumptions within a system
biased toward contractors. Some commenters suggested that instead of
allowing the Department to close a CCC if it deems appropriate, the
regulations should implement the text in WIOA regarding low performing
CCCs exactly as written.
Department Response: The Department is committed to improving the
performance of CCCs by using the numerous tools provided by WIOA,
including the procedures outlined in WIOA sec. 159(f)(2) and (f)(4),
which are incorporated into the regulations at Sec. 686.1070. However,
the Department is constantly working to ensure that its limited
resources are used to deliver the best possible results for students.
As part of ongoing efforts to ensure its resources are best utilized,
the Department may conclude that closing a CCC or selecting an entity
to operate it on a competitive basis will allow it to provide the
highest quality program to its students more effectively. In order to
better serve the nation's youth in acquiring career skills through
quality job training and education, the Department must retain all of
its options with regard to improving its centers and the program as a
whole, including, but not limited to, considering for closure or
private operation through a competitive procurement process those Job
Corps centers marked with consistent and entrenched poor performance.
While Sec. 686.350(f) does provide that the Secretary of Labor has the
discretion to close CCCs if determined appropriate, any decision to
close a CCC will be made in full accordance with the Department's
published closure criteria and the procedural requirements outlined in
WIOA. No changes have been made to the regulatory text in response to
these comments.
5. Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, and Enrollment
This subpart describes who is eligible for Job Corps under WIOA and
provides additional factors that are considered in selecting eligible
applicants for enrollment. It describes how applicants who meet
eligibility and selection requirements are assigned to centers,
reflecting WIOA's new requirements that the assignment plan consider
the size and enrollment level of a center, including the education,
training, and supportive services provided, and the performance of the
Job Corps center related to the newly established expected levels of
performance. WIOA also amended the assignment plan to provide for
assignments at the center closest to home that offers the type of
career and technical training selected by the individual rather than
just the center closest to home, which improves access to high quality
training for Job Corps students. These regulations serve to enhance the
Job Corps program overall by ensuring that the individual training and
education needs of applicants and enrollees are met in accordance with
the requirements of WIOA. They also ensure that applicants and
enrollees are provided accurate information about the standards and
expectations of the Job Corps program and are fully prepared to be
successful.
In addition to changes described below, in Sec. 686.470 the
Department has updated the citation to the regulations implementing
sec. 188 of WIOA from 29 CFR part 37 to 29 CFR part 38.
Section 686.410 Are there additional factors which are considered in
selecting an eligible applicant for enrollment?
Comments: To accomplish its mission to provide disadvantaged youth
a path to self-sufficiency, two commenters recommended that admissions
counselors have the discretion to determine whether an applicant's
Career and Technical Education needs can best be met through the Job
Corps program. The commenters stated that Job Corps centers must
provide a safe and supportive environment for young people who have the
desire and ability to take advantage of its services, and to do this
Job Corps cannot be considered a treatment program or a vocational
rehabilitation program. These commenters noted that they favor the
direction described by a Department official at the National Job Corps
meeting in April 2015, that math, reading, interest, and aptitude
assessments were in the offing for
[[Page 56235]]
admissions counselors to use when making their determinations.
They also suggested that in order to determine whether an applicant
is likely to be successful in group situations, admissions counselors
must have access to information about the applicant's past performance
in schools or other group settings because, if the applicant has a
history of fighting or disruptive behavior, it is likely that this
behavior will be brought to Job Corps and be even more disruptive in a
residential setting, impeding the safety of others. The commenters
noted that admissions counselors need access to mental health reports
in cases where significant behavior problems could preclude successful
interactions in group settings, and need to be on the medical/mental
``need to know'' list so they can complete a thorough review of the
additional factors in determining that Job Corps is the best fit for an
applicant.
Department Response: The Department has determined that Sec.
686.410(a) and (b) provide the authority for admissions counselors to
consider all available, relevant information in determining whether an
applicant is eligible and well suited for Job Corps. More specifically,
these two paragraphs provide admissions counselors with the discretion
to make the determination, consistent with the process outlined in Job
Corps' PRH, that an applicant has the desire and ability to take
advantage of the services offered by the Job Corps program and that the
applicant will not create an unsafe learning environment if admitted
into the program. Ultimately, retaining the language proposed in the
NPRM while providing additional guidance and detail in the PRH provides
both the Department and admissions counselors the necessary flexibility
and appropriate framework to administer the admissions process. No
changes were made to regulatory text in response to these comments.
Comments: Commenters suggested that applicants should be required
to participate in a pre-orientation program as part of their
eligibility assessment and should, where feasible, visit a Job Corps
center in their local area. The commenters noted that a process to
document the outcomes of all assessments should be developed, with the
explanation of outcomes fully documented. In addition, when a
determination is made that Job Corps is not the best program to meet an
applicant's needs, a referral to a more suitable program should be
made.
Department Response: As discussed above, the PRH provides the
detailed procedures governing the admissions process, including
procedures for documenting the process and actions that should be taken
if an applicant is denied enrollment.
Comments: The Department received several comments about proposed
Sec. 686.410(d), which requires that all applicants submit to a
background check and that those who have been convicted of a felony
consisting of murder, child abuse, or a crime involving rape or sexual
assault be found ineligible for participation in Job Corps. Commenters
suggested that Job Corps consider what procedures to put in place
during the admissions process to ensure that it is not reflexively
enrolling students with felony convictions or other violent and serious
crimes not explicitly mentioned in WIOA, including attempted murder,
robbery, assault/battery, and drug trafficking. The commenters
acknowledged that while Job Corps cannot legally exclude these
applicants from the program based solely on these convictions, the
admissions process should include clear and universal standards for
assessing and determining whether Job Corps will best meet these
students' career goals and stated that a residential environment like
Job Corps may not be a productive environment for these youth to pursue
their career development, particularly the development of 21st century
skills, given their past history.
The commenters stated that clear standards and processes must be
defined for assessments and determinations related to cases in which a
background check reveals that an applicant is on probation, parole,
under a suspended sentence, or under the supervision of any agency as a
result of court action or institutionalization. The commenters also
suggested that there should be a 6-month waiting period for an
applicant after the individual is released from juvenile detention,
drug rehab, or an adjudicated group home prior to being enrolled in the
program in order to allow the individual to demonstrate successful
engagement with the community at-large without court or other oversight
and increase the likelihood that the individual can participate
successfully in the program without jeopardizing the safety of other
students.
One commenter was concerned that this provision would give Job
Corps too much discretion with little or no guidance to aid in the
decision to admit an individual with a criminal record, and suggested
that the Department provide additional guidance to aid Job Corps in
determining whether an individual with a criminal history that does not
include one of the identified felonies is eligible for participation.
Without such guidance, this commenter expressed concern that there
would be considerable risk that some applicants would be the victims of
unfairness, arbitrariness, and perhaps discrimination.
Department Response: As drafted, Sec. 686.410(a) and (b) provide
the authority for admissions counselors to consider all relevant,
available information in determining whether an applicant may be
selected for enrollment, including information obtained from background
checks and from the applicant. In addition, Job Corps' PRH provides
guidance and standards on how to assess the applicant's past behavior
in the admissions screening process, including prior felony convictions
and all other interaction with the criminal justice system. These
factors are designed to identify applicants that can benefit from and
succeed in the program and to screen out individuals who are not suited
for the program. In making the relevant eligibility determinations, the
admissions counselor must follow the guidance and standards in the PRH.
No changes were made to the regulatory text in response to these
comments.
Section 686.450 How are applicants who meet eligibility and selection
criteria assigned to centers?
This section describes how applicants who meet eligibility
requirements are assigned to centers. Paragraph (a)(4) of Sec. 686.450
provides that the performance of a Job Corps center with respect to the
expected levels of performance should be taken into account when
assigning new students to centers.
Comments: Several commenters expressed concern that this would
require admissions counselors to give preference to high-performing
centers, which would be impossible to implement for Outreach and
Admissions (OA) contracts that are attached to and responsible for
recruitment for a single Job Corps center, and challenging for OA
contracts that are responsible for assignment to multiple centers
across a State or region. The commenters questioned how the assignment
plan would account for changing performance levels and how this will be
reflected in the performance goals specified in OA contracts. The
commenters noted that the Department has indicated that one of its
requirements to exit a Performance Improvement Plan (PIP) will be to
achieve a minimum on-board strength (OBS) threshold, and denying or
limiting enrollments to a center on a PIP
[[Page 56236]]
could result in that center never meeting these goals despite otherwise
improving performance. One commenter questioned how the assignment of
students under the requirements of this section would account for
changing performance levels since assessments are done on such a long
term cycle, stating that experience has shown that it takes on average
2 full years to improve the performance of a low-performing center. The
commenter further stated that it often takes 18 to 24 months to
recruit, hire, and develop staff, train and cultivate student leaders,
change the student culture, and ultimately improve performance. The
commenter expressed concern with the perceived conflict of interest
that is generated when a single contractor handles OA and career
transition services (CTS) functions and is the center operator.
Department Response: Paragraph (a)(4) of Sec. 686.450 mirrors the
requirements of WIOA at sec. 145(c)(2)(D). WIOA sec. 145(c) requires
that the Secretary develop and implement a plan for assigning enrollees
to Job Corps centers based on targets and analysis of specific criteria
outlined under sec. 145(c)(1) and (2). The performance analysis
requirement under WIOA sec. 145(c)(2)(D) relates to the expected levels
of performance for indicators described in sec. 159(c)(1) and whether
any actions have been taken with respect to the center under sec.
159(f)(2) and (f)(3). While the Final Rule mirrors the statutory
requirements, Job Corps is required under this provision to consult
with center operators in analyzing the factors described in WIOA sec.
145(c)(2)(D). The Department has modified Sec. 686.450(a) to clarify
that the list of factors identified is non-exclusive. This addition
clarifies that all of the challenges can be raised and discussed as
part of the required analysis. Finally, on-board strength is not a
component of the Performance Improvement Plan and is therefore
irrelevant to this provision. Accordingly, no changes were made to the
regulatory text in response to these comments.
6. Subpart E--Program Activities and Center Operations
This subpart describes the services and training that a Job Corps
center must provide. Job Corps provides residential services in
combination with hands-on training and experience aligned with industry
standards. While education, training, and job placement are core
components of what the program offers, this section of the regulations
describes how Job Corps provides a comprehensive service model that
also includes life skills, emotional development, personal management,
and responsibility. New regulations addressing advanced career training
programs are included; such programs provide broader opportunities for
higher wages and career advancement.
This subpart also establishes the requirements for a student
accountability system and behavior management system. Job Corps' policy
for violence, drugs, and unauthorized goods is described. Requirements
to ensure students are provided due process in disciplinary actions, to
include center fact-finding and review board and appeal procedures are
outlined. These systems and requirements serve to enhance the Job Corps
program by ensuring that Job Corps centers are safe and secure
environments that promote the education and training of students.
Approved experimental, research and demonstration projects related to
the Job Corps program are authorized in this subpart, which also serves
to enhance the program.
In addition to changes described below, in Sec. 686.560 the
Department has updated the citations to the regulations implementing
sec. 188 of WIOA from 29 CFR part 37 to 29 CFR part 38.
Section 686.500 What services must Job Corps centers provide?
Comments: One commenter recommended that the regulatory text
contain a statement that academic instruction includes entry-level
workforce preparation and/or preparation for recognized postsecondary
education and training.
Department Response: The added detail to academic instruction
suggested by the commenter is currently included at Sec. 686.505(b),
which describes academic instruction in preparation for postsecondary
education and training. Additionally, Sec. 686.505(c) further
describes programs that must be provided to students in order to learn
workforce preparation skills such as independent learning and living
skills, including: Job search and career development, interpersonal
relations, driver's education, study and critical thinking skills,
financial literacy, and other skills specified in program guidance. In
addition, after further review of Sec. 686.500, the Department decided
to provide additional clarity in the language at Sec. 686.500(a)(1) by
changing ``(iii) Employability and independent learning and living
skills development'' to ``(iii) Employability and skills training; and
(iv) Independent learning and living skills development.''
Section 686.505 What types of training must Job Corps centers provide?
This section describes the training that Job Corps centers must
provide to students. Commenters stated that Job Corps must continuously
seek to improve student academic and technical credential attainment,
workforce connectivity, and postsecondary attainment results to put
graduates on the road to self-sufficiency.
Comments: The commenters had multiple recommendations that fell
under four broad categories: (1) Improving academic outcomes; (2)
improving technical training and placement outcomes; (3) improving
critical thinking, problem solving, decision-making, and other 21st
century skills; and (4) cultivating a safe living and learning
environment. Commenters recommended that Job Corps develop policies and
requirements to, among other things, increase active and personalized
learning through the use of digital tools and proper teacher training;
expand partnerships with postsecondary institutions and
apprenticeships; enhance employer relationship and in-demand credential
attainment; and improve mental health and healthy relationship services
and resources available to students.
Department Response: The Department has determined that the
requirements in sec. 148 of WIOA and Sec. 686.505 already capture and
encompass many of the proposed and valuable suggestions. Additional
training requirements and policies related to training will be
implemented through updates to the Job Corps PRH. As such, no changes
were made to the regulatory text in response to these comments.
Comments: One commenter noted that teaching healthy relationship
skills will make students more economically self-sufficient and views
them as an essential part of employability, living skills, and
interpersonal relationship skills.
Department Response: Healthy relationship and living skills
training are included in the list of training activities at Sec.
686.505(c); all of the skills suggested by the commenter may be
provided to students under this section.
Comments: One commenter recommended that high school diplomas be
regionally accredited and that secondary education programs include
entry-level workforce preparation activities that lead to recognized
postsecondary credentials in in-demand occupations and should be
[[Page 56237]]
included in the regulatory text under Sec. 686.505.
Department Response: In order to retain flexibility to adjust to
evolutions in accreditation, the Department issues guidance through the
Job Corps' PRH.
Section 686.510 Are entities other than Job Corps center operators
permitted to provide academic and career technical training?
Comments: Expressing support for proposed Sec. 686.510, a
commenter remarked on the importance of allowing unions to provide
academic, career, and technical training, pointing out that unions have
successfully transitioned students into apprenticeship programs. The
commenter further stated that they are pleased that the NPRM envisions
continued Job Corps participation by other entities that are not center
operators but that do have a proven record of facilitating the entry of
young people into careers that are a pathway to the middle class.
Another commenter suggested that the Department revise this section to
require that academic education be provided by public or regionally
accredited private educational organizations that have demonstrated
effectiveness in providing programs that include entry-level workforce
preparation and/or postsecondary education and training.
Department Response: The Department agrees that the career
technical and academic education of Job Corps students should be
provided by entities ``with demonstrated effectiveness'' and has
changed this section to include this requirement. The Department will
not limit the entities to the suggested ``public or regionally
accredited organizations'' because all of the entities described in
this section are statutorily required, per sec. 148(b) of WIOA, to
provide academic instruction. The regulatory text was changed
accordingly.
Section 686.515 What are advanced career training programs?
Comments: A few commenters suggested ACT programs should be
restored at Job Corps centers that eliminated them or downsized them
due to budget cuts, noting that in many cases the programs could be
restored with minimal costs. These commenters requested that the
Department provide guidance to centers on how to restore their ACT
programs or to establish new programs.
Department Response: The Department acknowledges concerns about ACT
programs; however, its decision to eliminate or downsize these programs
was due to budget cuts and any decision to restore ACT programs will be
based on available funds and will be handled on a case-by-case basis.
Comments: Regarding the Sec. 686.515(c) provision that permits a
center to exceed the approved capacity of the program under certain
circumstances, two commenters requested that the Department provide
clarification on what it means to achieve ``satisfactory rate of
training and placement in training-related jobs.'' These commenters
recommended that programs that exceed the centers' overall completion
and placement-related goals over the preceding program year qualify for
expansion without approval from the Department. The commenters also
requested clarification as to how or whether center operators qualify
if they have been operating the center for less than 2 program years
when their performance is likely more reflective of the previous
operator.
Department Response: The Department is not making any substantive
changes to the language in this part in response to these comments, but
has made a minor change to align with the corresponding WIOA provision.
The Department acknowledges the suggestion that Job Corps provide
guidance regarding what it means to achieve a satisfactory rate of
training and placement. The Department's change in the provision at
Sec. 686.515(c)(1) revised the text from ``participants in such a
program have achieved a satisfactory rate of training and placement in
training-related jobs'' to ``participants in such a program have
achieved a satisfactory rate of completion and placement in training-
related jobs'' to align this provision with WIOA sec. 148(c)(3)(A).
After consideration, the Department has determined that defining a
satisfactory rate of completion and placement, including the relevant
data that will be reviewed in making this decision, falls under program
administration. In order to ensure flexibility in the operation of the
Job Corps program, because the Department continually reviews and
revises the performance management system to effectively manage and
best serve Job Corps' needs. Regarding the commenters' question about
how or whether center operators qualify if they have been operating the
center for less than 2 program years and the recommendation that if
completion and placement goals are exceeded for a preceding program
year the center should qualify for expansion, the Department
acknowledges the commenters' concerns. However, the requirement for
additional enrollments in the ACT program, which includes 2 program
years of performance data, is statutorily required at WIOA sec.
148(c)(3)(b), regardless of how long an operator has been operating a
center. The change to the provision at Sec. 686.515(c)(1) is the only
change made to the regulatory text in response to these comments.
Section 686.520 What responsibilities do the center operators have in
managing work-based learning?
Comments: Requesting clarification that Job Corps centers should be
allowed to act as employers for work-based learning, two commenters
recommended that the wording in Sec. 686.520(a) be changed to the
following: ``The center operator must emphasize and implement work-
based learning programs for students through center program activities,
career technical skills training, and through arrangements with
employers . . . .''
Department Response: The Department is not making any changes to
the regulatory text in response to these comments. Paragraph (a) of
Sec. 686.520 reads, ``The center operator must emphasize and implement
work-based learning programs for students through center program
activities, including career and technical skills training, and through
arrangements with employers. Work-based learning must be under actual
working conditions and must be designed to enhance the employability,
responsibility, and confidence of the students. Work-based learning
usually occurs in tandem with students' career technical training.''
The Department has determined that the language at Sec. 686.520(a) is
identical in meaning to the language suggested by commenters. Under
this provision centers may serve as employers for work-based learning.
However, per the requirements of this provision, the work-based
learning must be under actual working conditions, designed to enhance
the employability of the student, and occur in tandem with the
student's career technical skills training.
Section 686.530 What residential support services must Job Corps center
operators provide?
Comments: A few commenters recommended that the Department add
clarifying language on medical services stating that, with the
exception of a direct reference to the requirement for Trainee Employee
Assistance Program (TEAP) services that related to Job Corps' zero
tolerance policy, required medical services, should be limited to
comparable services that exist on most college campuses. These
commenters
[[Page 56238]]
further stated that Job Corps, in conjunction with community partners,
should be required to educate enrollees regarding insurance access and
requirements with respect to the Affordable Care Act and to connect
enrollees to the appropriate insurance.
Department Response: Section 686.530, with regard to medical
services, states that medical services must be provided through
provision or coordination of a wellness program that includes access to
basic medical, dental, and mental health services, as described in the
PRH, for all students from the date of enrollment until separation from
the Job Corps program. Making the changes suggested by the commenters
in the regulation would reduce the flexibility quickly to adjust the
medical services and other residential support services required to be
provided at a center. Accordingly, no changes were made to the
regulatory text in response to these comments, but the PRH will
continue to be modified as needed.
Comments: Additionally, two commenters urged clarification in Sec.
686.530(g) to ensure that student welfare associations can use
fundraisers to secure funds.
Department Response: The Department agrees with the request to
include language to Sec. 686.530(g) clarifying that student welfare
associations can use fundraisers to secure funds as an activity to
support the association in addition to the specific activities listed
to raise funds, as described in this section. As such, the section has
been edited to include a reference to ``and other fundraising
activities.''
Section 686.545 What is Job Corps' zero tolerance policy?
Comments: A few commenters recommended changing the wording in
Sec. 686.545(c) to read as follows: ``The zero tolerance policy
specifies the offenses that result in the separation of students from
the Job Corps. The center director is expressly responsible for
determining when there is a violation of this policy.''
Department Response: The Department agrees with the commenters and
has included new language at Sec. 686.545(c) for clarity, so that the
revised paragraph now provides that the center director is responsible
for determining when there is a violation of the policy, as opposed to
a violation of a specified offense.
Section 686.565 Is Job Corps authorized to conduct pilot and
demonstration projects?
Comments: Some commenters suggested that Outcome Measurement System
(OMS) results should be put on hold for centers implementing pilot and
demonstration projects until the project is completed, stating that
this worked well with the ``Centers for Excellence'' pilot.
Department Response: The Department has determined that the
decision of whether the OMS results will be placed on hold for centers
implementing pilots is best addressed on a case-by-case basis, as there
may be multiple, unique factors to consider in each project at
different center locations, requiring flexibility in the operation of
the pilot or demonstration project. No changes were made to the
regulatory text in response to these comments.
7. Subpart F--Student Support
Subpart F discusses the support services provided to Job Corps
enrollees, including transportation to and from Job Corps centers,
authorized student leave, allowances and performance bonuses, and
student clothing. In addition to being eligible to receive
transportation to and from Job Corps centers, students are eligible for
other benefits, including basic living allowances to cover personal
expenses, in accordance with guidance issued by the Secretary. Students
are also provided with a modest clothing allowance to enable them to
purchase clothes that are appropriate for the classroom and the
workplace. These proposed regulations will again work to strengthen the
Job Corps program and provide access to high quality training by
ensuring that Job Corps students are placed in the best possible
position to prepare them for learning, and that they are rewarded for
their success in the program.
No public comments were submitted in response to the NPRM for this
subpart.
8. Subpart G--Career Transition and Graduate Services
This subpart discusses career transition and graduate services for
Job Corps enrollees. Job Corps focuses on placing program graduates in
full time jobs, postsecondary education, advanced training programs,
including registered apprenticeship programs, or the Armed Forces. In
an effort to further integrate the Job Corps program with the greater
public workforce system and align it with the core programs, Sec.
686.820 specifically focuses on how Job Corps will coordinate with
other agencies, where emphasis is placed on utilizing the one-stop
delivery system to the maximum extent practicable. This subpart also
outlines a center's responsibilities in preparing students for career
transition services; the career transition services that are provided
for enrollees; who may provide career transition and graduate services,
in addition to one-stop centers; and services provided for graduates
and former enrollees.
Section 686.760 What services are provided to former enrollees?
Comments: Three commenters noted that Job Corps' reputation is
damaged when employers are connected with students who left the program
early (for mostly drug, behavioral, or voluntary reasons) without
obtaining their academic and technical training credentials and stated
that these students are unlikely to advance along a viable career
pathway without further education. These commenters proposed that the
regulations clarify that the CTS provided to former enrollees be
focused primarily on enrolling former enrollees in other education or
training programs, which will maximize the resources that can be used
to support Job Corps' graduates. The commenters proposed that no
additional services should be provided to former enrollees following
their placement.
One commenter noted that all young people have access to the
services available at one-stop centers and WIOA sponsored youth
programs, and recommended that Job Corps' services to former enrollees
be limited to documented referrals to one-stop centers or other WIOA
programs. The commenter explained that this approach would allow Job
Corps to focus resources on assisting committed graduates find
employment or enroll in postsecondary or apprenticeship programs or the
military. According to this commenter, such an approach also would
increase the amount of time devoted to securing better housing,
transportation, clothing, and other transition services that students
need to attain self-sufficiency. The commenter proposed eliminating
services for 90 days and only providing referrals to one-stop centers
and other WIOA programs.
Department Response: No change to the regulatory text was made in
response to these comments. The statutory language provides the
Secretary with discretion to determine what services are appropriate
for former enrollees and this provision reiterates that Job Corps has
discretion in
[[Page 56239]]
providing these services. The Department is issuing guidance regarding
the provision of services to former enrollees through the PRH.
9. Subpart H--Community Connections
This subpart highlights WIOA's focus on community relationships and
further integration with the public workforce system. In both the new
contracting provisions in subpart C and in this subpart, there is more
emphasis on connections with one-stop centers, Local WDBs, and State
and local plans. While WIA's requirement for a Business and Community
Liaison has been eliminated, the responsibility for establishing
beneficial business and community relationships and networks now lies
with the director of each Job Corps center. Moreover, WIOA contains a
new requirement that in a single-State local area, a representative of
the State WDB must be included on the workforce council. Section
686.810 also states, consistent with sec. 154(b)(2) of WIOA, that the
workforce council may include employers from outside the local area
that are likely to hire center graduates. The new requirements for the
workforce council seek to provide greater access to high quality
training for Job Corps students, in part by ensuring that Job Corps is
providing training for in-demand industry sectors and occupations.
Section 686.800 How do Job Corps centers and service providers become
involved in their local communities?
This section describes the Job Corps center responsibilities
regarding the establishment and development of mutually beneficial
business and community relationships and networks.
Comments: Two commenters stated that center directors should be
involved in the community and in establishing connections to entities
described in this section, but noted that without these duties assigned
to a specified staff person, it becomes difficult for a center director
to maintain these relationships. The commenters recommended that the
regulations clarify that the center director will designate a staff
member to coordinate these activities, appreciating that the nature of
the community (i.e., the time and effort required to establish these
relationships will be different in rural vs. urban areas) as well as
the size and staffing of the center will influence whether the designee
should be a full time Business and Community Liaison (BCL) or whether
the duties can be assigned to another person on staff.
Another commenter made a similar statement, noting that while
center directors are involved in the community and in establishing
connections to the entities described Sec. 686.800, without the
assistance of a staff person such as a BCL, it will be difficult for a
center director to personally maintain these beneficial community
relationships and networks. The commenter proposed that the center
director designate a staff member to coordinate these activities.
Department Response: The regulatory language states that each
center director must ensure the establishment and development of
business and community relationships, but does not specify who must
perform the work. Ultimately, assignment of these responsibilities is
left to the discretion of each center director. It is acceptable for a
center director to delegate this responsibility to a member of their
staff provided that they are properly overseeing that staff member's
work to ensure that the requirements of this provision are being met.
No change was made to the regulatory text in response to these
comments.
Section 686.810 What is the makeup of a workforce council and what are
its responsibilities?
Comments: One commenter noted that this section requires that the
majority of workforce council members be business owners, chief
executives (CEOs), or chief operating officers (COOs) of non-
governmental employers or other private sector employers. The commenter
stated that it is unrealistic to expect that owners, CEOs, and COOs
will be the active workforce council participants and noted that they
find human resources representatives from major employers often offer
the best perspective on employment opportunities and qualifications.
The commenter proposed that the regulation be modified to include
representatives of employers that are in a position to hire Job Corps
students and/or are responsible for training and development of the
organization's employees.
Department Response: After considering these comments, the
Department agrees with the logic presented by the commenters. The
Department has changed paragraph Sec. 686.810(b) to clarify that
business owners, CEOs, COOs of non-governmental employers, and other
private sector employers may designate the staff person they feel is
best suited to represent their entity on the workforce council,
provided that the designee meets the requirements in Sec. 686.810(b).
Comments: Several commenters noted that Job Corps is required to
draw upon many of the same agencies for individuals to sit on its
workforce councils that provide members to the Local WDBs. These
commenters recommended that Sec. 679.360 allow, or even encourage,
workforce councils to be a subcommittee of the most appropriate
regional or Local WDBs, where applicable. The commenters noted that
this would eliminate competition for membership and encourage greater
collaboration between Job Corps, the Workforce Investment Board (now
Workforce Development Board), and the one-stop delivery system. Other
commenters further noted that Sec. 686.810(d) requires a center's
workforce council to work with all applicable Local WDBs to review
labor market information and make recommendations to the Secretary for
career technical training offerings. The commenters recommended that
where a workforce council is not affiliated with a regional or Local
WDB, it may make sense to designate a regional or Local WDB staff
member to sit on the workforce council to facilitate these actions.
Department Response: No change to the regulatory text was made in
response to these comments. Each Job Corps center director must
establish and develop mutually beneficial business and community
relationships and networks with entities, including Local WDBs. Under
WIOA sec. 154(b)(2), members of the Local WDB are permitted, though not
required, to sit on center workforce councils provided they meet the
membership requirements outlined in Sec. 686.810(a) and (b). Section
679.360 implements WIOA sec. 107(b)(4) and establishes the roles and
responsibilities of standing committees within the Local WDB structure.
Comments: With respect to Sec. 686.810(d)(2), commenters also
recommended that a rapid-response system be developed to change career
technical training offerings quickly to meet employer demands as
identified and recommended by the workforce council.
Department Response: The Department is not changing Sec.
686.810(d)(2) to include a requirement that a rapid-response system be
developed to change career technical training offerings quickly to meet
employer demands as identified by the workforce council. Paragraph
(d)(2) of Sec. 686.810 states that the workforce council must review
all relevant labor market information, including related information in
the State Plan or the local plan, to: Recommend in-demand industry
sectors or occupations in the area in which the center operates;
determine employment opportunities in
[[Page 56240]]
the areas in which enrollees intend to seek employment; determine the
skills and education necessary to obtain the identified employment; and
recommend to the Secretary the type of career technical training that
should be implemented at the center to enable enrollees to obtain
employment opportunities identified. The Department will provide
additional guidance on how the workforce council will provide this
information.
Comments: One commenter also recommended that Job Corps--whether
through a designated center employee or through members of the
workforce council--be mandated partners in State, regional, and local
sector partnerships as required by 20 CFR 678.435(a) (see Joint WIOA
Final Rule) because this could significantly enhance employer
partnerships and provide employer-driven recruitment, training, and
placement services.
Department Response: The Department strongly encourages sector
partnerships that include a variety of industries and career pathways
that may be included in a sector strategy. Given the variety of
industries and career pathways that may be included in a sector
strategy, which includes Job Corps, the Department at 20 CFR 678.435
(see Joint WIOA Final Rule) is not placing regulatory requirements
around partnerships.
10. Subpart I--Administrative and Management Provisions
This subpart provides requirements relating to tort claims, Federal
Employees Compensation Act (FECA) benefits for students, safety and
health, and law enforcement jurisdiction on Job Corps center property.
It also addresses whether Job Corp operators and service providers are
authorized to pay State or local taxes on gross receipts, and details
the financial management responsibilities of center operators and other
service providers. The management of student records, as well as
procedures applicable to the disclosure of information about Job Corps
students and program activities are outlined. Finally, procedures
available to resolve complaints and disputes and how Job Corps ensures
that complaints or disputes are resolved in a timely fashion are
addressed in this subpart. The entirety of this subpart addressing
administrative and management principles that apply to the operation of
the Job Corps program serves to promote its accountability and
transparency.
No public comments were submitted in response to the NPRM for this
subpart. However, in Sec. Sec. 686.960 and 686.985 the Department has
updated the citations to the regulations implementing sec. 188 of WIOA
from 29 CFR part 37 to 29 CFR part 38.
11. Subpart J--Performance
This subpart incorporates WIOA-specific requirements related to
performance assessment and accountability, as well as requirements for
performance improvement plans for Job Corps center operators who fail
to meet expected levels of performance. The Job Corps program is now
required to report on the primary indicators of performance common to
all WIOA programs that provide key outcome information on how many
students attained employment or were placed in education or training,
their median wages, whether they attained credentials, their measurable
skill gains, and the effectiveness in serving employers. The entirety
of this proposed subpart serves to promote the accountability,
performance, and transparency of the Job Corps program.
Section 686.1000 How is the performance of the Job Corps program
assessed?
Comments: Regarding which short-term measures should be retained in
the new Outcome Measurement System (OMS), some commenters recommended
that HSD/E, literacy and numeracy gains, CTT completion, credential
attainment, and HSD/E and CTT combinations be retained. One commenter
recommended that all current OMS categories be retained in order to
measure student progress and noted that it is important to develop
measures to evaluate how much a student has gained from entrance to
exit from Job Corps (i.e., growth measures). Commenters stated that
maintaining the current 15 OMS measures while adding new measures would
be too cumbersome to manage and would take away from the quality of the
programs provided. These commenters noted that Job Corps has been
criticized by the Office of Inspector General (OIG) for having too many
required performance indicators, the corollary of which is burdensome
data collection, verification, and reporting requirements. These
commenters suggested that the current emphasis on obtaining an academic
credential not be diminished and recommend that Job Corps utilize
measures to track the number of credentials being earned, as well as
the size of ``measurable gains'' to reflect students that earn multiple
credentials or make significant learning gains.
Department Response: Job Corps' performance will be assessed in
accordance with required procedures and standards issued by the
Secretary through the national performance management system, which
will take into account the performance metrics described in Sec.
686.1000(b). The Department has determined that it will not add any
additional performance indicators in this section. In order to
effectively operate and evaluate the Job Corps program, performance
indicators are regularly examined and necessary changes are made to the
performance management system in annual performance guidance. It is
important for the performance system to remain malleable and open to
change on an annual basis to ensure that the Department is collecting
the performance data that most accurately measures the performance of
the program. Accordingly, rather than specify specific performance
indicators in this section, the Department has decided to incorporate
additional performance indicators in the yearly performance guidance
described in Sec. 686.1000(b), as necessary.
Comments: Regarding post-center performance indicators, one
commenter stated that it will be important for Job Corps to determine
how it will reliably obtain employment and wage information because the
current survey system will not provide the National Office of Job
Corps, the Department, or Congress with the reliable information they
require to determine the efficacy of the program. This commenter also
noted that Job Corps does not currently have access to unemployment
insurance (UI) or social security information that will provide
reliable information. Two other commenters stated that Job Corps should
comment on how it intends to ensure that Job Corps has complete access
to UI data so that Job Corps can report performance in accordance with
the requirements for primary indicators of performance.
Department Response: The Department recognizes the need to
transition to the use of administrative data in order to obtain
accurate employment and wage data in the most efficient way possible.
The Department is working to obtain access to individual UI wage
records and other administrative data to meet the requirements under
WIOA sec. 159(e). The specific means by which this access will be
acquired is under development and is expected to change over time;
however, over the next few years the Department will work with other
Federal and State agencies, consistent with State UI laws, to gain
access to this information. In addition to calculating the performance
of participants, access
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to administrative data will allow the Department to begin collecting
valuable information on employment outcomes for enrollees who began
receiving services under the Job Corps program but did not remain in
the program long enough to meet the definition of participant. As such,
flexibility in the process is important and the mechanism for retrieval
will not be prescribed by regulation. The annual performance guidance
described in Sec. 686.1000 will describe how such records will be
accessed and used. While State UI wage record data are one relevant
data set, the Department anticipates using a variety of available,
reliable data to assess a center's performance under all of the metrics
comprising the performance management system.
Section 686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
Comments: One commenter noted that this section requires the
inclusion of recognized postsecondary credential attainment 1 year
after separation as one of the primary indicators of performance for
Job Corps centers. The commenter stated that this is confusing as
written and difficult, if not impossible, to track and monitor because
centers themselves do not track post-center indicators: This is the
responsibility of CTS contractors. The commenter suggested that to
resolve this issue, along with other issues with tracking performance
of Job Corps centers and equating that performance with placement and
wages, all CTS contracts be attached to center operating contracts.
Department Response: The regulation mirrors WIOA's primary
indicators of performance in WIOA sec. 116(b)(2)(A)(ii), and sec.
159(c)(1) which require that each center's performance be measured
under the WIOA primary indicators of performance for youth. As
discussed in the preamble to Sec. 686.340, the suggestion that CTS
contracts should be attached to center operation contracts is better
addressed as a matter of program administration because Job Corps
contracting processes and structure regarding center operations
contracts and CTS contracts require flexibility as they are driven by
the program's needs.
Comments: A commenter suggested that Job Corps use both an
employment rate and a retention rate in the new performance management
system. The commenter also expressed concern with how Job Corps career
transition service (CTS) providers will be able to verify high school
diploma, high school equivalency, or postsecondary credential
attainment if the student achieves these outcomes after exiting from
the center.
Department Response: As noted above, in order to effectively
operate and evaluate the Job Corps program, performance indicators are
regularly examined and necessary changes are made to the performance
management system in the annual performance guidance described in Sec.
686.1000(b).
Regarding how verification of high school diploma, high school
equivalency, or postsecondary credential attainment will occur if the
student achieves these outcomes after exiting from the center, the
specific means by which this information will be collected is under
development and may change over time and will not be prescribed by this
regulation.
Section 686.1020 What are the indicators of performance for Job Corps
outreach and admissions providers?
Comments: Several commenters asked whether, like the performance
indicators for centers, there will be other indicators for outreach and
admissions. The commenters stated that if there are other indicators,
they recommend that total arrivals be retained as a short-term
indicator. Further, these commenters recommended that if female
arrivals are measured, they should be weighted much lower. The
commenters also stated that the placement measures in the current OMS
be retained and weighted higher to fulfill the purpose of Job Corps to
connect youth to the workforce.
Department Response: As discussed, performance indicators and
weights of performance measurements for OMS are not statutorily
mandated and require continued flexibility, including the measures to
overcome historic trends in enrollment. The Department continually
reviews and revises the performance management system to manage
effectively and best serve Job Corps' needs. Accordingly, in response
to these comments, the Department has added Sec. 686.1020(e) providing
that other indicators of performance will be adopted by the Secretary
as necessary. These indicators are outlined in the annual performance
guidance issued by the Secretary described in Sec. 686.1000(b), and
may change over time to meet program administration needs.
Comments: These commenters also stated that it is important to keep
in mind the various constraints in the local market when setting the
expected level of performance under Sec. 686.1020(c) for the OA
indicator that measures the maximum achievable percentage of students
that reside in the state where the center is located and that reside in
the surrounding regions, as compared to the targets set by the
Secretary for each of those measures. They also stated that these
constraints include, but are not limited to: Whether the center is in a
rural or urban area; what other providers offer similar training;
whether the population of 16-24 year olds is projected to grow or
shrink over time; and the poverty rate and unemployment rates in the
local area. In addition, the commenters noted that it is critical that
the expected levels of performance take into account the size of the
local area because a national goal superimposed on a sparsely populated
local area may cause significant multiplier effects and result in goals
that are unattainable under any circumstance.
Department Response: No change was made to this regulatory text in
response to these comments; however, the Department has made a change
to Sec. 686.450 which addresses these concerns. As described in Sec.
686.450, when developing an assignment plan related to the maximum
percentage of students at a center from the State and region in which
the center is located the Department is required, in consultation with
center operators, to analyze a number of relevant factors. The
Department has changed Sec. 686.450(a) to indicate that the list of
factors identified for consideration is non-exclusive; therefore, the
constraints identified by these commenters could be discussed as part
of the analysis.
Comments: Commenters also stated that regarding [the OA indicator]
under Sec. 686.1020(d) that measures the cost per enrollee calculated
by comparing the number of enrollees at the center in a program year to
the total budget for such center in the same program year, that they
were unclear how this would be measured since outreach and admissions
providers recruit for multiple centers, and questioned how they would
be held accountable for cost per enrollee at a particular center and
how a goal would be set for this measure. The commenters stated that
much more needs to be provided on how this measure will be reported on
the new OMS and recommended that instead of adding the cost per
enrollee to OMS the cost for each center be included in the Secretary's
report to Congress, similar to the cost per graduate that is required
to be part of this report. The commenters noted that if the decision is
made to add the cost per enrollee to OMS, outreach and admissions
contracts should be attached to center contracts so that the center
director is held accountable for
[[Page 56242]]
reasonable costs per enrollee at his/her center.
Department Response: WIOA sec. 159(c)(2) requires that the cost per
enrollee as described in WIOA sec. 159(d)(1)(M) be included as a
performance indicator for OA providers, and the Department does not
have authority to change this statutory measure. Additional detail on
reporting cost per enrollee is provided in guidance. Finally, regarding
the suggestion that outreach and admissions contracts be attached to
center operations contracts, the Department determined that this
recommendation is better addressed through procurement and
administrative processes.
Comments: Commenters noted that WIOA requires Job Corps to assess
whether an applicant's needs and career goals can be best met by Job
Corps or another local program, and if Job Corps is not deemed a best
fit for the applicant, outreach and admissions counselors must refer
and facilitate enrollment in alternative programs. There is currently
no provision in the regulations for this to be measured. Commenters
also recommended that OMS measure the efficacy of admissions counselors
in conducting these assessments, including the rate of referrals and
enrollment in other programs. Commenters further stated that the
proposed indicators of performance for Job Corps outreach and
admissions providers also should include the number of students
retained for 30 and 60 days, since a center's performance is negatively
impacted when students leave during their first 30 and 60 days, and
center OBS is affected during this period due to zero tolerance
violations for drugs and violence. The commenters also suggested OMS
include goals and measures related to minimizing the number of Medical
Separation with Reinstatement Rights (MSWR) terminations and fraudulent
enrollments.
Department Response: As discussed above in the preamble to Sec.
686.1000, the Department continually reviews and revises the
performance management system to effectively manage and best serve the
students' needs. In response to these comments, as noted above, the
Department has added Sec. 686.1020(e), providing that additional
indicators of performance for outreach and admissions providers will be
adopted by the Secretary as necessary. These indicators will be
outlined in the annual performance guidance issued by the Secretary
described in Sec. 686.1000(b), and may change over time to meet
program administration needs.
Section 686.1030 What are the indicators of performance for Job Corps
career transition service providers?
Comments: Three commenters noted that because CTS providers are
responsible for the same performance indicators as Job Corps centers
and also other indicators that measure the type of placement received
(the number of graduates who entered the Armed Forces, apprenticeship
programs, job training matches, and average wages), they recommend that
the Department attach CTS contracts to center contracts to hold the
center director accountable to closely link education and training to
connecting youth to the workforce and postsecondary education. Another
commenter disagreed with this suggestion, stating that it is a blatant
attempt on the part of center operators who are large businesses to
exclude small businesses that fall under the OA/CTS size standard.
Further, this commenter stated that bundling CTS to center contracts
cannot be shown to improve placement and associated statistics.
Department Response: As discussed in the preamble to Sec. 686.340,
the suggestion that CTS contracts should be attached to center
operation contracts is better addressed as a matter of program
administration because Job Corps contracting processes and structure
regarding center operations contracts and CTS contracts require
flexibility as they are driven by the program's needs.
Comments: Commenters recommended that Job Corps include performance
indicators for the number of education placements and the number of
postsecondary placements in addition to the performance indicators for
CTS required by WIOA.
Department Response: As discussed above in the preamble to Sec.
686.1000, the Department continually reviews and revises the
performance management system to effectively manage and best serve Job
Corps' needs. Accordingly, in response to these comments, the
Department has added Sec. 686.1030(h) providing that additional
indicators of performance will be adopted by the Secretary as
necessary. These indicators will be outlined in the annual performance
guidance issued by the Secretary described in Sec. 686.1000(b), and
may change over time to meet program administration needs.
Comments: One commenter stated that they would like clarification
on how quarters and the strict 12-month service window, as required
under statute, will be established specifically for the purposes of
measuring Job Corps outcomes. The commenter stated that the Job Corps
system under WIA conflicts with WIOA with respect to CTS timelines and
performance measurements, noting that CTS contracts have a 9-month
window to place students and that 6 and 12 month placement follow ups
are conducted based on the date of placement, not separation. The
commenter noted that this creates a Job Corps CTS service window that
can extend 18 months after graduation from Job Corps and would like to
know whether the service window is changed to 12 months only.
Department Response: As reflected in Sec. 686.740, WIOA sec.
148(d) states that the Secretary shall arrange for the provision of job
placement and support services to graduates for up to 12 months after
the date of graduation and multiple resources, including one-stop
partners, may support the provision of these services. In addition, as
noted by the commenter, the indicators of performance indicator the
percentage of program participants in education or training activities
or unsubsidized employment during both the second and fourth quarters
after exit from the program. Regardless of the length or extent of
services provided to graduates under WIOA sec. 148(d), the Department
is required to track a participant's participation in education/
training activities or in unsubsidized employment 6 and 12 months after
exit from the program.
Comments: A commenter also asked the Department to clarify whether
WIOA and the proposed rules would treat former enrollees and graduates
the same in terms of post-center services provided and the primary
indicators of performance. Another commenter suggested that former
enrollees and graduates should not be treated the same regarding post-
center services provided and performance indicators under WIOA, as is
done under WIA.
Department Response: Regarding the commenter's request for
clarification on post-center services provided for graduates and former
enrollees, WIOA sec. 148(d) states that the Secretary shall arrange for
the provision of job placement and support services to graduates for up
to 12 months after the date of graduation and multiple resources,
including one-stop partners, may support the provision of these
services. WIOA sec. 150(c) states that the Secretary may arrange for
the provision of up to 3 months of employment services for former
enrollees. These provisions are reflected in Sec. Sec. 686.740 and
686.760, which mirror WIOA requirements for services provided. Further
information regarding the services available to graduates and
[[Page 56243]]
former enrollees is included in the Job Corps PRH. Regarding the
commenter's request for clarification on whether WIOA and the proposed
rules would treat former enrollees and graduates the same in terms of
the primary indicators of performance, former enrollees and graduates
are treated the same if they meet the definition of participant, which
includes both former enrollees and graduates who have completed their
career preparation period and who have remained in the program for at
least 60 days.
Section 686.1070 How and when will the Secretary use Performance
Improvement Plans?
Comments: Commenters noted that while 90 percent of the expected
level of performance is an admirable goal, the percentage ``distance
traveled'' toward improvement (e.g., from 50 to 75 percent versus from
84 to 90 percent) should be taken into consideration when evaluating a
center's progress on their PIP. These commenters suggested that
although a center might not have reached 90 percent of the national
average, they might have achieved significant improvement under their
PIP.
Department Response: As noted in Sec. 686.1070(b), the criteria
that must be met before a PIP is completed and the center removed will
be included in the plan itself.
Comments: Commenters stated that specific criteria should be
established when a PIP under WIOA sec. 159(f)(3) would be initiated so
that if a Job Corps center is placed on a PIP, there is a transparent
and logical reason for the PIP, expected outcomes, and the length of
the PIP.
Department Response: To ensure that the PIP system is responsive to
the changing needs of the program, the criteria for PIPs established
under WIOA sec. 159(f)(3) for centers that fail to meet criteria
established by the Secretary, other than the expected levels of
performance required under WIOA sec. 159(f)(2), are included in the
Department's PIP system guidance in the PRH. No changes were made to
regulatory text in response to these comments.
Comments: One commenter suggested that 3 years of data be used to
assess performance before placing a center on a PIP as is done to
assess high-performing centers. Several commenters recommended that if
a new operator takes over a low performing center, there be a 2-year
grace period for that operator to make improvements before the
Department considers the center in need of a PIP. Other commenters also
recommend that the regulation include a reference to the process by
which an operator may appeal its designation of requiring performance
improvement based on extenuating circumstances. One commenter
recommended that the regulations clearly state that the Regional
Offices would be responsible for managing PIPs.
Department Response: WIOA sec. 159(f)(2) specifies that if a Job
Corps center fails to meet the expected levels of performance relating
to the primary indicators of performance, which are established and
measured annually, the Secretary must develop and implement a PIP with
action to be taken during a 1-year period. Because WIOA requires the
Department to annually establish expected levels of performance and to
take action to improve the performance of those centers that fail to
meet the expected levels of performance, the Department does not have
the authority to wait 3 years to place an underperforming center on a
PIP or to provide a new operator a 2-year grace period to make
improvements. The Department does not consider a PIP to be punitive in
nature. It provides an opportunity for the Department, consistent with
the requirements of WIOA, to provide assistance and guidance to centers
that are underperforming. Any guidance regarding a center's designation
of requiring performance improvement would be provided in the PRH.
Comments: Commenters urged the Department to use a progressive
approach that seeks to improve performance at centers with as little
disruption to staff, students, and the community as possible.
Department Response: The Department is committed to improving the
performance of Job Corps centers and has the authority under WIOA to
take the following statutory actions after centers fail to meet the
expected levels of performance: Providing technical assistance to the
center; changing the career and technical education and training
offered at the center; changing the management staff of the center;
replacing the operator of the center; reducing the capacity of the
center; relocating the center; or closing the center. The Department
further lays out its approach to taking these actions in the PIP
guidance published in the PRH.
K. Part 687--National Dislocated Worker Grants
1. Introduction
National Dislocated Worker Grants are discretionary awards that
temporarily expand service capacity at the State and local levels
through time-limited funding assistance in response to significant
dislocation events. These grants are governed by sec. 170 of WIOA. The
Department received comments in support of part 687 of the NPRM, as
well as comments requesting clarification or revisions. Additionally,
the Department has made technical and clarifying changes to some of the
sections. All changes to the regulatory text, and the Department's
responses to the comments received, are explained below.
The Department has made several global changes to this part for
clarity and technical accuracy. First, ``National Dislocated Worker
Grants'' will be referred to by the acronym ``DWGs'' in this part for
simplicity.
Second, the Department has determined it is necessary to alter the
labels of what the NPRM called ``Regular'' and ``Disaster'' DWGs to
more accurately describe their purpose and intended use. ``Regular''
DWGs have been renamed ``Employment Recovery'' DWGs, and ``Disaster''
DWGs have been renamed ``Disaster Recovery'' DWGs.
Third, the term ``career services'' in Sec. 687.100(a) and (b) is
changed to ``employment and training activities'' to clarify that the
use of DWG funds is not limited to only career services. Training and
supportive services also may be provided as appropriate and in
accordance with the requirements of this part. For the same reason,
this change has also been made in other applicable sections in this
part (Sec. Sec. 687.170(a)(1) and (b)(2) and 687.180(b)(2) and (3))
where the NPRM referred to ``career services'' or ``employment-related
assistance.''
Fourth, the term ``temporary employment'' at Sec. 687.100(b) has
been replaced with the term ``disaster relief employment'' to better
align the text of this part with that of sec. 170 of WIOA. This change
also has been made to Sec. Sec. 687.170(b)(2) and 687.180(b)(2).
Fifth, the Department removed the word ``additional'' from
references to ``additional guidance'' in Sec. Sec. 687.150, 687.160,
and 687.200(b)(1). This word was unnecessary.
Finally, the Department has made a technical correction to
Sec. Sec. 687.180(b)(1) and 687.200(b)(2) by replacing the phrase ``by
the State'' or ``by the States'' with a reference to Sec. 687.120(b)
to ensure consistency with that provision, which provides that Indian
tribal governments and outlying areas are eligible entities for
Disaster Recovery DWGs in addition to States.
The analyses that follows provides the Department's response to
public comments received on the proposed
[[Page 56244]]
part 687 regulations. If a section is not addressed in the discussion
below, it is because the public comments submitted in response to the
NPRM did not substantively address that specific section and no changes
have been made to the regulatory text. Further, the Department received
a number of comments on this part that were outside the scope of the
regulation and the Department offers no response. Lastly, the
Department has made a number of non-substantive changes to correct
grammatical and typographical errors to improve the readability and
conform the document stylistically that are not all discussed in the
analysis below.
2. Discussion of Public Comments and Changes to Individual Rules
Section 687.100 What are the types and purposes of National Dislocated
Worker Grants (DWGs) under the Workforce Innovation and Opportunity
Act?
Four technical corrections have been made to the text of this
regulation. First, the section heading is corrected from ``National
Disclosed Worker Grants'' to ``National Dislocated Worker Grants.''
Second, the word ``purposes'' is added in the introductory paragraph of
Sec. 687.100 to align with the section heading. Third, the Department
has removed the word ``significant'' in Sec. 687.100(a) and replaced
it with the phrase ``major economic dislocations or other events'' in
order to be consistent with the header for this section. Finally, the
Department has simplified the wording at Sec. 687.100(b) by removing
``in certain situations as provided'' and replacing it with ``in
accordance with.''
Section 687.110 What are major economic dislocations or other events
which may qualify for a National Dislocated Worker Grant?
Comments: The Department received a comment on proposed Sec.
687.110 asking that plant closures be added to the list of qualifying
events.
Department Response: WIOA sec. 170(b) lists plant closures as an
event for which the Department could authorize DWG funds. The
regulation has been revised to include plant closures explicitly in
Sec. 687.110(a)(1) and (3). In Sec. 687.110(a)(1), the Department has
concluded that a plant closure that results in a mass layoff of 50 or
more workers from one employer in the same area is a qualifying event.
Under Sec. 687.110(a)(3), the Department may determine that a plant
closure affecting fewer than 50 workers is a qualifying event if it
significantly affects the designated community, such as what may
happen, for example, if a closure occurs in a rural or other area with
a small population. Additional requirements are set out in guidance,
which will be updated as necessary.
Additionally, the Department notes that the definition of ``mass
layoffs'' in part 687 differs from the definition used in part 682,
subpart C, where the Department provides a definition of ``mass
layoff'' for the purposes of Rapid Response activities. For Rapid
Response, the Department allows States more flexibility in defining
mass layoffs. Rapid Response services encompass strategies and
activities that States can provide to assist workers affected by
layoffs and closures as described at Sec. 682.300 (including
information about available employment and training programs), and the
Department encourages States to do so regardless of the number of
workers affected by the layoff.
In contrast, the DWG program is aimed at significant events that
cannot reasonably be expected to be accommodated within the ongoing
operations of the formula-funded dislocated worker program.
Accordingly, for the purposes of the DWG program, the Department
separately defines ``mass layoff'' as those affecting 50 or more
workers from one employer in the same area. However, the Secretary may
determine other events eligible for an Employment Recovery DWG under
Sec. 687.110(a)(5) for layoffs affecting fewer than 50 employees, such
as those related to a separate and larger layoff of 50 or more
employees. Department guidance provides policy for these circumstances.
Comments: The Department received several comments on data
applicants may use to demonstrate ``higher-than-average demand'' for
employment and training activities for certain members of the Armed
Forces and their spouses. Under WIOA sec. 170(b)(1)(D)--and Sec.
687.110(a)(4) of the NPRM--this demand must exceed State and local
resources to be a qualifying event for DWG funds. In proposing part
687, the Department included examples of what data sources could be
used to determine whether a ``higher-than-average demand'' exists.
Some commenters requested the Department be specific regarding what
data it will accept for showing higher-than-average demand. The
Department also received several comments on its proposal that it may
use Unemployment Compensation for Ex-servicemembers (UCX) data for
defining higher-than-average demand. Commenters were concerned the
Department using UCX data would give areas with military bases an
unfair advantage in competing for limited resources.
Department Response: The Department has concluded that, given the
importance of providing services to transitioning service members and
their spouses, it must be flexible in what administrative data sources
it allows applicants to use to demonstrate higher-than-average demand.
The Department will not provide a specific, proscribed list of what
data sources it will accept, but instead set out illustrative examples
of allowable data sources in Department guidance.
The Department has concluded that allowing UCX data to demonstrate
higher-than-average demand does not provide an unfair advantage to
areas with military bases. As stated above, grantees may use other
administrative data sources for demonstrating higher-than-average
demand. UCX data thus is not the only acceptable source or among a
small, closed group of acceptable data sources the Department will use
to determine higher-than-average demand for services. Furthermore,
potential grantees may apply for a DWG once an eligible event or
situation occurs in accordance with Sec. 687.130 without having to
compete against other entities for these funds. Most DWGs will be
awarded on this basis; thus, the Department has determined its
allowance of UCX as one of many administrative data sources that
applicants may use to show higher-than-average demand does not create
unfair competition for DWG funds. The Department has concluded no
changes to the text of Sec. 687.110(a)(4) are necessary in response to
these comments.
Comments: Another commenter on Sec. 687.110(a)(4) requested that
contractors be included in the higher-than-average threshold because
contractor layoff rates are at times higher than those of the Armed
Forces. Section 170(b)(1)(D)(i) of WIOA allows DWGs to be awarded to a
State or Local WDB serving an area for which a higher-than-average
demand for employment and training activities for certain members of
the Armed Forces, or certain spouses of members of the Armed Forces,
exists.
Department Response: WIOA sec. 170(b)(D)(i) specifically defines
the members of the Armed Forces and spouses who are included in
assessing the higher-than average demand; contractors are not included.
As a result, contractor layoff rates cannot be considered when
determining whether a DWG can be awarded under Sec. 687.110(a)(4). No
change is being made to the regulatory text in response
[[Page 56245]]
to this comment. However, military contractors who have suffered a
layoff may be able to be served under other types of DWGs, such as
those involving dislocations or events described in Sec. 687.110(a)(1)
(mass layoffs of 50 or more workers) or Sec. 687.110(a)(3) (layoffs
significantly increasing the total number of unemployed individuals in
a community).
Regarding spouses, as it stated in proposing Sec. 687.110(a)(4),
the Department has determined it will not require applicants to
determine the specific subset of military spouses included in the
higher-than-average demand for services in an area. Sec.
170(b)(1)(D)(i) of WIOA specifically limits the military spouses
included in this analysis to ``spouses described in sec. 3(15)(E) [of
WIOA].'' Under sec. 3(15)(E) of WIOA, these are spouses of members of
the Armed Forces on active duty who are dislocated specifically because
they have experienced a loss of employment as a direct result of
relocation to accommodate a permanent change in duty station of the
member of the military, or are unemployed or underemployed and
experiencing difficulty in obtaining or upgrading employment. To avoid
unnecessary burden on applicants, the Final Rule at Sec. 687.110(a)(4)
only requires applicants for these DWGs to assess whether military
spouses dislocated under any of the factors in sec. 3(15) of WIOA
contribute to the higher-than-average demand for services, specifying
that these spouses must be spouses of Armed Forces members on active
duty. As stated previously, the Department has determined that this
implements the intent of the WIOA provision while avoiding unnecessary
administrative hardship.
Comments: Another commenter asked that ``Other events, as
determined by the Secretary'' in Sec. 687.110(a)(5) allow entities to
apply for regional or statewide grants to address issues affecting a
particular industry or target population.
Department Response: Under WIOA, the Secretary has broad authority
to award DWGs for circumstances the Secretary deems appropriate. The
Secretary will continue to use this authority to make determinations
about the awarding of DWG funds for other events. No change was made to
the regulatory text in response to this comment.
Comments: A commenter submitted several comments on what disasters
qualify for Disaster Recovery DWGs. Proposed Sec. 687.110(b)(2) stated
that qualifying events for a Disaster Recovery DWG include ``an
emergency or disaster situation of national significance that could
result in a potentially large loss of employment, as declared or
otherwise recognized by the chief official of a Federal Agency with
jurisdiction over the Federal response to the emergency or disaster
situation.'' Previously, under the Workforce Investment Act, only
Federal Emergency Management Agency (FEMA) declarations qualified an
event for a disaster National Emergency Grant. The commenter requested
the Department define what disasters are ``of national significance.''
Department Response: WIOA sec. 170(a)(1)(B) grants authority to
Federal agencies with jurisdiction over the response to an emergency or
disaster situation to determine and declare which disasters or
emergencies meet the ``national significance'' threshold. As such, the
Department has determined it will defer to those agencies' expertise,
and a declaration of an emergency or disaster situation by such an
agency is the threshold for whether a disaster or emergency is one ``of
national significance.''
However, to clarify what disasters qualify for the purpose of
applying for Disaster Recovery DWGs, the Department has altered Sec.
687.110(b)(2) to require that any declarations or recognitions of
disasters or emergencies be issued in writing. This change will allow
the Department to verify independently the declaration relied upon by
eligible entities to request Disaster Recovery DWG funds. The
Department is not specifying the form of publication, which could
include Web sites or other digital mediums. The regulatory text has
been revised by adding ``and issued in writing'' to Sec.
687.110(b)(2).
Comments: Another comment requested that States be informed of the
mechanisms that will be in place to notify them when a Federal agency
other than FEMA declares or recognizes a disaster or emergency. The
commenter also requested the Department allow the emergency or disaster
declarations or recognitions of Governors to qualify a disaster event
for DWG funds.
Department Response: The Department encourages applicants to work
with Federal and other State agencies so States are quickly notified
once a published declaration or recognition is made by the responsible
agency.
Additionally, WIOA sec. 170(a)(1)(A) and (B) authorizes DWG funds
for disasters or emergencies declared by FEMA or other Federal agencies
with jurisdiction over the response. There is no provision in the law
for the funds to be provided for disasters or emergencies based on
declarations by Governors. As a result, no change was made to the
regulatory text in response to this comment.
Comments: Another commenter requested both natural and man-made
disasters be major economic dislocations or other events that qualify
for a Disaster Recovery DWG.
Department Response: In defining qualifying disasters or
emergencies, WIOA sec. 170(a)(1)(A) incorporates by reference the
definitions of ``emergency'' and ``major disaster'' as defined by the
Stafford Act at 42 U.S.C. 5122. According to the Stafford Act, a
``major disaster'' is any natural catastrophe (including any hurricane,
tornado, storm, high water, winddriven water, tidal wave, tsunami,
earthquake, volcanic eruption, landslide, mudslide, snowstorm, or
drought), or, regardless of cause, any fire, flood, or explosion, in
any part of the United States, which in the determination of the
President causes damage of sufficient severity and magnitude to warrant
major disaster assistance under this chapter to supplement the efforts
and available resources of States, local governments, and disaster
relief organizations in alleviating the damage, loss, hardship, or
suffering caused thereby.
Because WIOA incorporates the Stafford Act's above definition of
``major disaster,'' the Department has determined that, for Sec.
687.110(b)(1), DWG funds may be used for disasters declared by FEMA
that are either natural or man-made. The Department has concluded that
for consistency, an emergency or disaster situation in Sec.
687.110(b)(2) declared or recognized by Federal agencies with
jurisdiction over the Federal response also may be either natural or
man-made and this change is reflected in the regulatory text at Sec.
687.110(b)(2).
Other textual and technical corrections, as discussed in the
Introduction above, were made to Sec. 687.110.
Section 687.120 Who is eligible to apply for National Dislocated Worker
Grants?
Comments: The Department received several comments indicating that
National Farmworker Jobs Program (NFJP) grantees should be eligible
entities for DWGs. One commenter stated that it would be appropriate to
add a phrase in Sec. 687.120 including entities that serve special
populations. A few commenters noted that NFJPs have successfully
responded to freeze, drought, and floods affecting farmworkers in the
past.
[[Page 56246]]
Department Response: WIOA sec. 170(b)(1)(B) through (D) identifies
eligible entities for qualifying events for disasters, emergencies, or
certain higher-than-average demand. The list of entities for these
qualifying events is very specific, and the NPRM aligns with this list.
WIOA sec. 170(b)(1)(A) and sec. 170(c)(1)(B) identifies those
applicants eligible for major economic dislocations. These eligible
entities include States, Local WDBs, an entity described in WIOA sec.
166(c), and ``any other entity that demonstrates to the Secretary the
capability to effectively respond to circumstances relating to
particular dislocations.'' Although NFJPs are not specifically
mentioned in the law, they are not excluded, as the law states that
other entities may be determined eligible by the Secretary. In order to
maintain flexibility and responsiveness, it is not prudent to list all
of the possible entities that may be considered eligible applicants.
The Department has determined that no changes are necessary to the
regulatory text at Sec. 687.120(a). In those instances in which DWGs
are awarded to States, Local WDBs or entities described in WIOA sec.
166(c), the Department encourages NFJPs and other entities to
coordinate with these recipients as appropriate to help address the
need.
A technical correction was made to Sec. 687.120(a)(3) to use the
phrase ``Indian and Native American'' to be consistent with part 684 of
the Rule. Also, the Department has made a technical correction to Sec.
687.120(b), restructuring the format of the list of eligible applicants
for Disaster Recovery DWGs for clarity and alignment with the format
used at Sec. 687.120(a).
Section 687.140 What activities are applicants expected to conduct
before a National Dislocated Worker Grant application is submitted?
The Department has adopted text that includes technical edits to
Sec. 687.140(a) in order to clarify what activities applicants are
expected to conduct before submitting an Employment Recovery DWG
application. As the Department stated in proposing the regulation,
Sec. 687.140(a) requires applicants to identify the needs of the
affected workers and their interest in receiving services. Thus, the
technical edits made to Sec. 687.140(a)(2) clarify that agencies
should use the information gathered through rapid response activities
in Sec. 687.140(a)(1) to provide available services as appropriate,--
including other rapid response activities.
Comments: The Department received comments on data gathering on
available workers required in the application for a Disaster Recovery
DWG. Proposed Sec. 687.140(b) requires applicants to conduct a
preliminary assessment of the work needed and ``put a mechanism in
place to reasonably ascertain'' whether sufficient eligible individuals
are available to conduct the planned work. One commenter agreed that
the collection of data, as well as other activities are important, but
requested that the Department exercise the flexibility so the
application and award process are not delayed. Another commenter stated
that the requirement to put a mechanism in place to determine worker
availability is unrealistic because it is difficult to identify
eligible and willing dislocated workers due to the type of clean-up
work and the challenging work environment. The commenter suggested that
the problem of inadequate supply to meet a community's demand for
recovery workers would be addressed by allowing States to define
``long-term unemployed'' and that the Department should award funds in
increments to allow for a more streamlined process.
Department Response: WIOA sec. 170(d)(2) states that the
individuals eligible to receive disaster relief employment include the
long-term unemployed. Further, guidance issued for DWGs specifies that
long-term unemployed individuals, as defined by the State, are eligible
participants. Regarding the commenter's request that funds be issued in
increments, the Department typically funds DWGs on an incremental basis
and will continue to do so as appropriate.
The Department understands that in the aftermath of significant
disasters, acquiring data may be extraordinarily difficult. Still, the
Department has determined it is necessary to require a reasonable
assessment to ascertain the number of eligible workers available to
conduct the planned work. It is critical that grantees make good-faith
efforts to gather this data to provide the Department information it
needs to ensure the proper amount of funding is awarded to assist the
eligible areas.
However, to address the commenter's concern and reflect the
Department's flexibility, the Department has removed the ``put a
mechanism in place'' information from the Final Rule at Sec.
687.140(b)(2). The Final Rule instructs awardees to ``reasonably
ascertain'' that there are a sufficient number of eligible individuals
available to conduct the work. The Department will take the particular
circumstances of a disaster into account during the application review
process.
Section 687.150 What are the requirements for submitting applications
for National Dislocated Worker Grants?
No substantive comments were received on this section; however, the
Department made changes to the Final Rule that provide clarity to allow
the Department to appraise the variety of needs and services under the
new statute and tailor application requirements accordingly. The
Department has added a sentence to this section reflecting that the
application requirements may vary based on the category of DWG. The
Department also has qualified the requirement that a project
implementation plan be submitted after receiving a DWG award by adding
the phrase ``unless otherwise specified.'' The project implementation
plan requirement may not apply to all DWGs at all times. Requirements
will be noted in grant terms and conditions.
Section 687.160 What is the timeframe for the Department to issue
decisions on National Dislocated Worker Grant applications?
Comments: The Department received several comments on this section,
which discusses the 45-calendar-day timeframe for the Department to
issue final decisions on DWG applications that meet the requirements of
this part, and strongly encourages applicants consult with their
Regional Offices on all requirements. One comment supported the
provision, but the remaining commenters were concerned that the 45-day
timeframe is too long for Disaster Recovery DWGs. Commenters also
requested a 72-hour timeframe for decisions.
Department Response: The 45-day timeframe is the maximum amount of
time the Department has to issue a final decision, not the minimum. The
Department typically prioritizes Disaster Recovery DWGs applications
for immediate review, and the Department will make every effort to
ensure they are processed as quickly as possible. Again, applicants
should work with their Regional Offices to ensure submissions are
complete. No change was made to regulatory text in response to this
comment.
Comments: One commenter asked for clarification on how and to whom
the Notice of Obligation (NOO) (now called the Notice of Award (NOA))
will be disseminated.
Department Response: The NOA typically will be disseminated
electronically to the entity identified as
[[Page 56247]]
the applicant on the SF-424. The Department will provide specific
technical assistance and guidance as necessary. No change was made to
the regulatory text in response to this comment.
Section 687.170 Who is eligible to be served under National Dislocated
Worker Grants?
Comments: The Department received a few comments on this section,
which addresses participant eligibility. Two commenters discussed the
eligibility of underemployed individuals to be served under Disaster
Recovery DWGs. One commenter asked whether the definition of
underemployed in Sec. 684.130 applies to DWGs with respect to
underemployed self-employed individuals as discussed at WIOA sec.
170(d)(2)(D) and Sec. 687.170(b)(1)(iv) and (b)(2)(iv) of this
regulation. This commenter also asked how adding the term
``significantly'' to ``underemployed'' impacts the definition of
underemployed as it relates to the self-employed at sec. 170(d)(2)(D)
of WIOA and other sections of part 687. Another commenter relayed
concern that employed individuals whose hours have been significantly
reduced could not receive a temporary job under a Disaster Recovery DWG
and requested that these individuals be added to the eligibility
category. This commenter stated that doing so would align with text of
WIOA sec. 170(d)(2)(D) by allowing self-employed individuals who become
unemployed or significantly underemployed to be eligible for disaster
relief employment.
Department Response: The Department has determined that the
definition for self-employed individuals who become unemployed or
significantly underemployed as a result of an emergency or disaster
does not automatically extend to those who are not self-employed.
Regarding the question about Sec. 684.130, the needs to be addressed
by Disaster DWG funds also are different than those discussed in part
684, which deals with Indian and Native American program grants.
Therefore, the definition of ``underemployed'' at Sec. 684.130 does
not apply to this section. Neither ``underemployed'' nor
``significantly underemployed'' are defined in sec. 3 (Definitions) of
WIOA or in part 687. The Department has concluded it will remain
flexible in determining the needs of underemployed individuals in the
wake of a disaster and provide guidance as necessary.
Regarding Sec. 687.170(b)(2), the Department has made a technical
correction to remove the words ``humanitarian-related'' to ensure that
the Department does not restrict the disaster relief employment to only
humanitarian-related employment and not allow for the possibility of
clean-up and repair-related employment. Since it is likely that most
individuals who relocate from a disaster area will move to an area that
is not affected by a disaster, the Department expects disaster relief
employment activities to be rare in DWGs awarded for this qualifying
event, and relocated individuals likely will participate in only
employment and training activities.
Comments: One commenter requested clarification regarding the
individuals who relocate to another area from a disaster area as
discussed in Sec. 687.170(b)(2). The comment suggested the regulatory
text state that these individuals may receive services in both the
disaster area and in the area to which they relocate.
Department Response: The Department has added Sec. 687.170(c) to
clarify that eligible individuals may receive services from DWG funds
in either the State, tribal area, or outlying area affected by a
disaster or the State, tribal area, or outlying area to which they
relocate as a result of that disaster. Under this provision, a single
individual may not be served in both the area affected by a disaster
and the area to which they relocated because of the disaster. However,
the Department also has included language in Sec. 687.170(c) to
account for such a situation, where individuals eligible for services
are capable of seeking services in both the State, tribal area, or
outlying area in which a disaster occurred and the State, tribal area,
or outlying area to which that individual has relocated as a result of
that disaster. In these circumstances, the Secretary will make a
determination as to whether individuals may be served with DWG funds in
the disaster-affected area as well as the area to which those
individuals relocated as a result of that disaster. Departmental
guidance will set out requirements under these provisions. As discussed
in the Introduction, the Department has made textual changes to this
section to make this section and its requirements clearer and in better
alignment with WIOA's text. Also, paragraphs (a)(1)(iii)(C) and (D)
have been edited to reflect the correct cross-reference, to paragraph
(a)(1)(iii)(B).
Section 687.180 What are the allowable activities under National
Dislocated Worker Grants?
The Department has made several technical corrections to this
section. First, in Sec. 687.180(a)(1), the term, ``employment and
training activities'' was changed to ``employment and training
assistance'' for consistency with the wording at WIOA sec.
170(b)(1)(A). Second, Sec. 687.180(a)(2) was revised to add ``and the
terms and conditions of the grant'' to make it clear that supportive
services, including needs-related payments, also are subject to any
restrictions reflected in the terms and conditions of the grant. Third,
Sec. 687.180(a)(2)(ii) was revised by inserting the word ``guidance''
to clarify that the other circumstances would be specified in guidance
governing DWG application requirements. Fourth, in Sec. 687.180(b) the
Department removed the second DWG acronym to eliminate redundancy.
Fifth, the word ``emergency'' was added to Sec. 687.180(b)(1) and (2)
to make it clear that these sections cover not only declared disaster
areas, but declared emergency areas as well.
Finally, the Department placed the proposed Sec. 687.180(b)(4)
into Sec. 687.180(c) in the Final Rule. Unlike the other provisions of
Sec. 687.180(b), this provision does not describe Disaster Recovery
DWG activities but instead the entities through which DWG funds may be
expended to carry out these activities. The Department also simplified
this provision by replacing the phrase ``disaster relief, humanitarian
assistance, and clean-up projects'' with ``activities'' discussed in
Sec. 687.180(b).
Comments: The Department received several comments on this section,
which discusses the activities that may be conducted with DWGs. One
commenter requested that the Department issue guidance on the required
coordination with FEMA. WIOA sec. 170(d)(1)(A) requires funds awarded
for disasters be used in coordination with FEMA. The commenter stated
that it is more likely that a State would have more immediate access to
and communication with their State emergency management agencies than
FEMA.
Department Response: Coordination of funding with FEMA is critical
in helping ensure funding is used to provide a broad range of
assistance while preventing duplication of services. The Department has
determined that because each disaster is unique, and responses must be
tailored to the disaster; decisions regarding how States, tribal, or
outlying areas coordinate with FEMA should be made
[[Page 56248]]
by entities within affected communities. The Department declines to be
prescriptive or proscriptive about grantees' coordination with FEMA,
but expects that grantees will establish appropriate policies and
procedures to meet this requirement. The Department supports and
strongly encourages grantees' coordination with State emergency
management agencies and other entities participating in the recovery
process.
Comments: A commenter requested that the Department solicit input
on disaster relief and/or career services authorized under DWGs when a
Federal agency other than FEMA declares a disaster or emergency
situation.
Department Response: This input was solicited during the comment
period on the NPRM, which has since closed. The NPRM provided a list of
allowable disaster relief employment activities and also stated that
career services could be provided to eligible individuals. Examples of
career services were provided in the Joint WIOA NPRM and are in 20 CFR
678.430.
Comments: Another commenter asked whether subgrantees would be
required to report expenditures for career services as a whole.
Department Response: In order to maintain flexibility, the
Department will not provide information on such reporting in these
regulations, but reserves the right to issue details in guidance.
However, guidance on reporting for subgrantees is typically issued by
the direct recipient of the funds; the level of detail for subgrantees
the commenter requested might not be included in guidance issued by the
Department.
Comments: One commenter asked whether the NOA will indicate whether
a grant has been authorized for a needs-related payment.
Department Response: In most instances, authorization of needs-
related payments likely will be relayed through the grant's Terms and
Conditions document. Other forms of communication may be used as
necessary.
Section 687.190 How do statutory and regulatory waivers apply to
National Dislocated Worker Grants?
Comments: One commenter requested that the waiver process be short
and efficient to expedite decision-making.
Department Response: WIOA only allows the Department to waive
certain statutory and regulatory requirements of WIOA title I,
subtitles A, B, and E; the Department cannot waive any requirements of
DWGs set out in sec. 170 of WIOA (which is in subtitle D) or the
regulatory requirements of this part. For DWG funds, proposed Sec.
687.190 allowed the use of waivers under subtitles A, B, and E that the
Department already has approved. It delineated two processes for
requesting that the Department apply these waivers to a DWG.
For those applying for DWG funds, proposed Sec. 687.190 stated
that the application must describe the already-approved waivers the
applicant wishes to apply to the project and that the Department will
consider the request as part of the application review and decision
process. Proposed Sec. 687.190 required grantees seeking utilization
of existing waivers to request a grant modification and include the
provision to be waived, the operational barrier to be removed, and the
effect on the outcome of the project.
In response to the comment, the Department has restructured and
revised Sec. 687.190 to clarify and better describe the waiver
limitations, and to simplify the basic requirements for requesting to
use waivers in DWG projects. The Final Rule at Sec. 687.190(a)
articulates that the requirements of WIOA title I, subtitle D cannot be
waived, but that already-approved waivers of the requirements under
subtitles A, B, and E may be utilized in DWG projects. The Final Rule
revises Sec. 687.190(b) to more clearly state that applicants with
already-approved waivers under WIOA must describe the waiver in the
application and request at the time of application that the specific
waiver be applied to the DWG. The Department has simplified the
requirements for requesting waiver utilization during the operation of
the DWG in Sec. 687.190(c). The grantee must describe the existing
waiver in a grant modification and request that the waiver be applied
to the project. This removes the proposed Sec. 687.190(b)'s
requirement that a grantee describe the provision to be waived, the
operational barrier to be removed, and the effect on the outcome of the
project. For added clarity, both Sec. 687.190(b) and (c) state that
applicants may not use this process to request new waivers. The
Department will not consider requests for new waivers as part of the
application or modification for a DWG.
Section 687.200 What are the program and administrative requirements
that apply to National Dislocated Worker Grants?
Comments: The Department received comments on proposed Sec.
687.200(b)(2), which stated that in extremely limited circumstances,
funds available for expenditure from Disaster Recovery DWGs may be used
for additional disasters or situations of national significance within
the same program year the funds were awarded.
One commenter expressed that the Rule was overly restrictive. The
commenter remarked that there was no indication in WIOA's text that the
subsequent disaster must occur during the same year of the award, and
that the regulation should allow for more flexibility and permit these
funds to be used beyond the program year. WIOA sec. 170(d)(4) allows
the Secretary to set conditions under which these funds may be used,
and the Department has concluded the program year restriction in the
NPRM is the best method to help ensure the proper management and
distribution of Disaster Recovery DWG funds. The Department made no
changes to Sec. 687.200(b)(2) in response to these comments.
Comments: The Department received a few comments concerning the DWG
administrative costs addressed in Sec. 687.200(b)(3). One commenter
asked whether the administrative cost limit is calculated against the
full award amount, the summation of the incremental amounts received,
or the amount expended. Another commenter, discussing part 683,
advocated for consistency in how the administrative funds are applied
in the formula program and the DWG; essentially, the commenter
requested that the administrative costs be calculated against the award
and not the expenditure amount.
Department Response: The Department has concluded that it will
follow this approach, and the administrative cost limit will be
calculated against the award and not the expenditure amount. The
Department has included this provision in the Final Rule at Sec.
687.200(b)(3). The Department expects that in most cases, these cost
limits will likely be proportionate to those established for the
formula funds.
The Department also encourages potential DWG recipients to review
their cost per participant to ensure that it is reasonable or falls
within normal limits based on the circumstances of the qualifying event
and comparable grants that were previously awarded. If the cost per
participant falls outside of normal limits, the grantee should submit a
justification to explain the costs to reduce delays in the review
process. The Department concluded there was no need to alter the text
of Sec. 687.200 for this policy.
[[Page 56249]]
L. Part 688--Provisions Governing the YouthBuild Program
1. Introduction
The Department wants to emphasize the connections across all of our
youth-serving programs under WIOA, including the WIOA youth formula
program and associated boards and youth committees, connections to pre-
apprenticeship and registered apprenticeship programs, and Job Corps
centers across the country. WIOA is an opportunity to align and
coordinate service strategies for these ETA youth training programs, as
well as to align with our Federal partners that serve these same
customers. WIOA also ensures that these programs are using common
performance indicators and standard definitions, which includes
aligning the definitions for homeless youth, basic skills deficient,
occupational skills training, and supportive services. Additionally,
the YouthBuild regulation adopts the six new performance indicators
that apply to all youth-serving WIOA programs and aligns YouthBuild
with the WIOA youth formula program.
WIOA affirms the Department's commitment to providing high-quality
education, training, and employment services for youth and young adults
through YouthBuild grants by expanding the occupational skills training
offered at local YouthBuild programs. YouthBuild programs can offer
occupational skills training in in-demand occupations, such as health
care, advanced manufacturing, and IT, as approved by the Secretary and
based on the maturity of the program and local labor market
information.
In addition to the changes to the program required by WIOA, the
Department makes several additional changes to the program, including
revisions to the duration of the restrictive covenant clause (as
detailed in the preamble at Sec. 688.730), clarifying eligibility
criteria for participation, and describing qualifying work sites and
minimum criteria for successful exit from the YouthBuild program.
Beyond these regulations, the Department will continue to develop
guidance and technical assistance to help grantees and the workforce
development community operate highly-effective YouthBuild programs. The
Department received several comments that expressed general support for
the proposed YouthBuild regulations. Comments on specific sections of
the NPRM are described in each relevant section below.
The analyses that follows provides the Department's response to
public comments received on the part 688 regulations. If a section is
not addressed in the discussion below, it is because the public
comments submitted in response to the NPRM did not substantively
address that specific section and no changes have been made to the
regulatory text. Further, the Department received a number of comments
on this part that were outside the scope of the regulation and the
Department offers no response. Lastly, the Department has made a number
of non-substantive changes to correct grammatical and typographical
errors to improve the readability and conform the document
stylistically that are not discussed in the analysis below analysis
below.
2. Subpart A--Purpose and Definitions
Section 688.100 What is YouthBuild?
This section describes the YouthBuild program. YouthBuild is a
workforce development program that provides employment, education,
leadership development, and training opportunities to disadvantaged
youth. The program also benefits the larger community by providing new
and rehabilitated affordable housing, thereby decreasing the incidence
of homelessness in those communities. The program recruits youth
between the ages of 16 and 24 who are school dropouts and are either: A
member of a low-income family, a youth in foster care, a youth who is
homeless, a youth offender, a youth who is an individual with a
disability, a child of an incarcerated parent, or a migrant youth.
Comments: Several commenters advocated that the YouthBuild program
be emphasized as one of the Department's strategies to engage
disconnected youth, due to the YouthBuild program's high number of
court-involved youth. These same commenters emphasized the focus within
YouthBuild on a counseling and case management approach in order to
support participant success in employment and education and recommended
modifying the Department's definition of YouthBuild to read:
YouthBuild is a workforce development program that provides
employment, education, leadership development, service to the
community, and training opportunities for disadvantaged youth. The
program benefits the larger community by decreasing the incidence of
homelessness and addressing issues of disconnection, violence, and
lack of opportunities in those communities. YouthBuild also
increases the affordable housing stock in these communities.
Department Response: The Department has concluded that the
definition of YouthBuild, as provided under Sec. 688.100, is accurate.
The description of the YouthBuild program accurately defines the
intent, target population, and anticipated outcomes of the program
model. However, given the program's focus on increasing access to
affordable housing through building or rehabilitating of low-income
properties, the Department has revised the definition of ``YouthBuild
Program'' in Sec. 688.120 to specifically emphasize the inclusion of
service to the community, as described in the commenter's proposed
definition.
Additionally, the YouthBuild program serves a wide variety of
eligible youth, of which court-involved youth are just one population,
and programs funded by the Department vary widely in the ratio of
court-involved youth they serve. The Department supports the YouthBuild
program model as one of several approaches that can provide positive
change and expanded opportunity to disadvantaged youth; however, court-
involved youth are not the sole population targeted by this program.
Therefore, it is not accurate to focus on court-involved youth as a
predominant population served. Aside from the addition of service to
community as described above, no changes were made to the regulatory
text in response to these comments.
Section 688.120 What definitions apply to this part?
Comments: Several commenters recommended revisions to the proposed
definitions in the YouthBuild NPRM, while others recommended the
inclusion of additional definitions not included in the NPRM. Several
commenters also expressed general approval of the definitions,
specifically the definition of ``Adjusted income'' and ``Homeless
individual'' and ``Homeless child and youth.''
One commenter recommended revising the numbering within the
existing definition of ``Adjusted income'' as the commenter believed it
could lead to confusion as numbered. The commenter further recommended
the inclusion of the rationale for the exclusion of earned income, at
the discretion of a Housing Development Agency, from adjusted income,
as defined.
Department Response: After reviewing the definition of ``Adjusted
income'' as written in the NPRM, the Department realized that the
section numbering of the definition was inadvertently mislabeled, which
made the numbering appear inconsistent, and
[[Page 56250]]
created confusion. The definition numbering has been revised in the
final text of Sec. 688.120. The exclusion of earned income from the
definition of adjusted income is part of the definition of ``Adjusted
income'' in sec. 3(b) of the United States Housing Act of 1937 (42
U.S.C. 1437a(b)). As sec. 171(b)(1) of WIOA incorporates that
definition of ``Adjusted income,'' it cannot be changed by the
Department in these regulations.
Comments: One commenter requested that the definition of ``Eligible
Entity'' clarify what counts as an eligible State under WIOA. In
particular, the commenter was seeking clarity on how territories and
outlying areas qualify as eligible entities under WIOA and asked that
the Department clarify the language to permit territories and outlying
areas to apply for YouthBuild grants.
Department Response: The definition of ``Eligible Entity'' as
provided in Sec. 688.120 includes ``any. . .entity eligible to provide
education or employment training under a Federal program'' to be
eligible to apply for YouthBuild awards. Territories and outlying areas
that meet this part of the definition will be considered eligible
entities in this part. The Department has concluded that no further
clarity to the definition is necessary.
Comments: One commenter requested the addition of a definition for
``Energy-Efficient Improvements'' as ``all measures recognized by the
Weatherization Assistance Program including general heat waste
reduction weatherization materials.''
Department Response: The Department has concluded that the
definition of energy-efficient improvements should be provided through
guidance rather than the regulatory process in order to ensure greater
flexibility, as this is an emerging industry and standards are still
being developed.
Comments: One commenter indicated a misprint in the definition of
``Exit'' in which the incorrect section of the regulation was cited.
Department Response: The Department has corrected the definition
with the correct section reference.
No comments were received regarding the definitions of ``Homeless
individual'' and ``Homeless child or youth;'' however, these
definitions were revised for added clarity to fit the Final Rule text
as the definitions for these two terms come from existing legislation.
Specifically, the definition of ``Homeless individual'' comes from sec.
41403(6) of the Violence Against Women Act of 1994 (42 U.S.C. 14043e-
2(6)) and the definition of ``Homeless child or youth'' comes from sec.
725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)).
Comments: One commenter requested that the definition of ``Needs-
based payments'' be modified to state: ``beyond wage[s] or stipends
which may be provided by the program,'' as such payments are not
required but only allowed. The commenter expressed concern that needs-
based payments should be allowable no matter how funds paid to
participants are characterized.
Department Response: Although the preamble section of the NPRM does
refer to wages or stipends, the actual definition of ``Needs-based
payments'' under Sec. 688.120 does not refer to wages or stipends. The
Department cannot modify the language related to wages and stipends
because neither were actually mentioned in the regulatory text of the
NPRM and so there is not anything to modify regarding wages and
stipends in Sec. 688.120. However, the Department agrees that both
wages and stipends are allowable but not required and this will be
addressed through guidance.
Comments: One commenter suggested that the definition of ``Pre-
apprenticeship'' should be clarified to ensure that YouthBuild programs
continue to be considered pre-apprenticeship programs, even where they
do not meet all of the requirements of a qualifying pre-apprenticeship
program and are not funded by the Department. The commenter suggested
keeping the definition provided in Training and Employment Notice (TEN)
13-12, but allowing for additional flexibility in the TEN 13-12
definition to develop alternative strategies for career pathways for
youth where the requirement for registered apprenticeship partnerships
or pathways cannot be met.
Department Response: In response to this comment, the Department
has revised the definition of pre-apprenticeship in Sec. 688.120 to
clarify, consistent with TEN 13-12, ``Defining a Quality Pre-
Apprenticeship Program and Related Tools and Resources'' which can be
found at http://wdr.doleta.gov/directives, the YouthBuild programs
receiving funding from the Department under this part meet the
definition of pre-apprenticeship as described in that section. The
Department further edited this definition to provide a more detailed
and consistent explanation of the components of a pre-apprenticeship
program as described throughout this Final Rule.
However, the Department cannot broadly categorize YouthBuild
programs as pre-apprenticeship programs beyond those funded under this
part as the Department is not in a position to determine that programs
not funded by the Department meet the requirements to be considered a
pre-apprenticeship program. However, this does not preclude the
Department from subsequently making such a determination on a case-by-
case basis.
Comments: One commenter requested the addition of a definition of
``Substantive Construction'' as construction of affordable housing,
major renovations, and/or deconstruction.
Department Response: Substantive construction is defined in TEGL
No. 06-15, ``Qualifying Work Sites and Construction Projects for
YouthBuild Grantees and Their Role in Training,'' which can be found at
http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm. The
Department has decided not to include this definition in the regulation
to ensure the flexibility necessary to adapt the definition as the
industry develops and new certifications emerge.
The Department received no comments on the definition of
``Supportive services,'' but has revised the language in the regulatory
text to be consistent with the definition in Sec. 681.570.
Comments: One commenter questioned whether the definition of
``Underemployed'' in Sec. 684.130 applied to YouthBuild.
Department Response: The definition of ``Underemployed'' in Sec.
684.130 does not apply to this part.
The Department received no comments on the definition of ``youth in
foster care,'' but has revised the language in the regulatory text to
be consistent with the definition in Sec. 681.210.
3. Subpart B--Funding and Grant Applications
Section 688.220 How are eligible entities selected to receive grant
funds?
Comments: Several commenters expressed concern that YouthBuild
programs that outsource core program elements may compromise the
youth's experience by having to go to several providers for different
components of the program model. Further, there was concern that this
can have a detrimental effect on the overall performance outcomes for
the program compared to those that offer all core components of the
program in-house. One commenter further expressed a fear that an
[[Page 56251]]
applicant that provides all core components in-house could be penalized
in the grant selection process due to the added emphasis on
partnerships in this section.
Department Response: The Department recognizes that there are many
different permutations of the YouthBuild model, all of which provide
the required program components, but which provide such components in
many different ways. Emphasizing the importance of partnerships does
not diminish the focus on quality service delivery to participants, nor
does it require that components be outsourced. This instead represents
recognition of the many strong public workforce system partners that
contribute to a safety net of services for at-risk youth. Encouraging
active partnerships to provide a full array of services necessary to
help youth succeed ensures that YouthBuild programs are actively
accessing all available community resources so that such resources can
stretch further. However, there is no requirement that a program must
partner across each of the highlighted areas (education and training
providers, employers, the workforce development system, the juvenile
and adult justice systems, and faith-based and community organizations)
but rather, where it fills a gap in services or opportunities, such
partnerships must be pursued. As such, applicants must be able to
demonstrate the ability to develop a comprehensive network of partners
to provide services, both in-house and out, to support successful
outcomes. This is a core value of the Workforce Innovation and
Opportunity Act.
4. Subpart C--Program Requirements
Section 688.300 Who is an eligible participant?
Comments: One commenter expressed concern related to TEGL No. 11-09
(``Expanded Participant Eligibility for the YouthBuild Program''),
which allowed YouthBuild programs to expand the definition of a dropout
to include youth who had dropped out of school but had subsequently
enrolled in a YouthBuild Charter School prior to enrollment in the
YouthBuild program, so long as this was part of a sequential service
strategy. The commenter stated that they believed this set a precedent
for allowing WIOA to enroll participants who meet this criterion as
out-of-school youth. Further, the commenter recommended that the
definition of out-of-school youth should be applied to those youth
attending alternative school.
Department Response: TEGL No. 11-09 was guidance under the
Workforce Investment Act (WIA), which included a provision for the
sequential service strategy. WIOA expanded the YouthBuild participant
eligibility to allow youth who were high school dropouts but had
subsequently reenrolled to be eligible for the YouthBuild program. This
eligibility expansion rendered the guidance in TEGL No. 11-09, and its
related Changes 1 and 2, void. Further, Sec. 681.230 clarifies that
youth attending alternative education programs provided under title II
of WIOA, YouthBuild, or Job Corps are considered out-of-school youth.
No changes were made to the regulatory text in response to this
comment.
Section 688.320 What eligible activities may be funded under the
YouthBuild program?
Comments: One commenter recommended adding two additional eligible
activities that may be funded under YouthBuild:
Energy-efficient improvements;
The rehabilitation of housing that is in need of
renovation for health and safety reasons.
Department Response: The Department has concluded that there is no
prohibition on the above named activities as eligible activities of the
YouthBuild program. These two activities fall under the broad
categories of work experience and skills training as described in Sec.
688.320. The NPRM does not go into specific detail regarding the types
of construction training that are eligible; such detail can be
addressed through separate guidance as necessary.
Comments: One commenter expressed concern regarding the ``provision
of wages, stipends or benefits to participants. . .'' as allowed under
Sec. 688.320. The commenter was specifically concerned about the use
of wages for YouthBuild participants and the Internal Revenue Service
(IRS) provisions that may be triggered. The commenter stated that
several recent IRS rulings for local YouthBuild programs had determined
that YouthBuild participants are not employees and therefore do not
earn wages but stipends. However, as wages are an allowable payment to
YouthBuild participants, the commenter requested that the Final Rule
further explain the difference between participants who are paid wages
and participants who are paid stipends and the additional costs that
programs may incur by using a wage payment structure (such as required
payment into Medicare or FICA or liability for unemployment expenses,
for example), and that the Department urge grantees to avoid using
grant funds for the provision of wages.
Department Response: The Department has concluded the provision of
wages and stipends are subject to the authority of the Department's
Wage and Hour Division and the IRS. YouthBuild programs will continue
to be required to reach out to the appropriate Federal office to
determine the allowable provision of payments to participants as well
as any financial responsibilities that entails. Additionally, the
Department will not discourage programs from choosing one method of
payment over another as there is a diverse body of YouthBuild program
models operating across the country, and while some may find that
payment of wages is too onerous, in other organizations there may be
benefits to such a payment structure. Additional information to
grantees will be provided through guidance.
Comments: One commenter recommended that the Final Rule encourage
disconnected youth to be taught healthy relationship skills as part of
workforce development training. The commenter expressed the importance
of youth developing healthy relationship skills as these can benefit
them across a broad spectrum of life areas, including soft skill areas
such as communication, conflict resolution, and problem solving. The
commenter also referenced the response provided on the WIA YouthBuild
Final Rule (77 FR 9112, Feb. 15, 2012), in which the Department
concurred with a similar request and indicated that such activities
were included under the broad category of ``activities designed to
develop employment and leadership skills.''
Department Response: WIOA has not modified this section of the
allowable activities. The Department reiterates the 2012 YouthBuild
Final Rule response. The Department agrees that healthy relationships
and development of interpersonal skills are important for the
disconnected youth served under WIOA. These activities are supported
under Sec. 688.320 as part of the employment and leadership skills
development, which has been revised to read: ``which may include. .
.peer-centered activities encouraging responsibility, interpersonal
skills, and other positive social behaviors.''
Section 688.330 What level of training qualifies a construction project
as a qualifying work site under the YouthBuild program?
Comments: Several commenters recommended using the term ``skill
area(s)'' in lieu of ``module'' in reference
[[Page 56252]]
to the description of the construction skills training curriculum in
which youth are trained on the work site. The commenters stated that
the term ``skill area'' is broader than a module as a module is a
component of a skill area and the term module is likely to be confused
with sections of a particular curriculum. These same commenters also
requested clarification of whether it is assumed that all projects must
include energy-efficient enhancements as it is one of the five goals of
the YouthBuild program as described in Sec. 688.110. They further
requested that if this cannot be assumed, it be included in the
criteria for a qualifying work site. One commenter also recommended
including additional fields within the construction industry as
additional aspects of qualifying work sites, including those of
deconstruction and environmental protection, such as radon testing.
Department Response: The Department has revised Sec. 688.330 to
clarify that qualifying work sites must include both multiple modules
and skills areas. The Department requires that YouthBuild participants
receive quality and comprehensive construction training in a real-life
setting on a work site, such that the participant will attain
sufficient construction experience to enter into a career pathway after
program exit. Therefore, work sites must provide the opportunity for
youth to have hands-on training and experience of both breadth and
depth in order to qualify. In TEGL No. 06-15 (``Qualifying Work Sites
and Construction Projects for YouthBuild Grantees and Their Role in
Training''), found at www.doleta.gov/WIOA/, the Department defines
modules as specific training sections within the curriculum of each of
the industry-recognized credentials that relate to specific skill areas
of construction. These skill areas could include brick masonry,
carpentry, painting, or plumbing, as examples.
While it may be allowable for programs to also provide more general
rehabilitation work, such as deconstruction, landscaping, screen
repair, fence building, etc., if a program offers training in these
activities at a work site, the work site will not qualify under this
section unless the program also includes experience in two or more
modules within two or more skill areas. Any work site that does not
include exposure to multiple modules and skill areas will not be
considered a qualifying work site. Additional explanation and guidance
regarding qualifying work sites is provided in TEGL No. 06-15.
Energy-efficient enhancements are described as part of the fifth
YouthBuild goal as it relates to improving the energy efficiency
specifically of community and non-profit and public facilities. The
Department has concluded that this cannot be interpreted broadly to
mean that all work sites must include energy-efficiency enhancements in
order to qualify, nor can it interpret this to mean that all community
and non-profit and public facilities must include energy-efficiency
enhancements. Such enhancements are included as part of the allowable
activities, as explained in Sec. 688.320 above, but they are not
required for all qualifying work sites, including community and non-
profit and public facilities.
The Department defines the fields of deconstruction and
environmental protection, such as radon testing and mitigation, as
fields outside the immediate construction focus of YouthBuild. None of
these fields directly supports the goal of increasing affordable
housing so they are not stand-alone skill areas; however, as with
landscaping or painting, these are areas in which youth can receive
hands-on work experience as long as it is in conjunction with the
broader requirement of qualifying work sites in which hands-on training
and experience in two or more modules, each within a different skill
area, in a construction skills training program that offers an
industry-recognized credential is provided.
Comments: Finally, several commenters sought clarity related to the
preamble language of Sec. 688.330 that described the expectation that
participants must pass a certain number of modules in order to attain
industry-recognized construction certification. The commenters noted
that the regulation language for Sec. 688.330 does not require the
attainment of a credential or certification.
Department Response: A goal of training should be the attainment of
an industry-recognized credential; however, the factors affecting
whether a work site qualifies for the purposes of the YouthBuild
program, as described in Sec. 688.330, do not include a requirement
that participants attain an industry-recognized credential. Qualifying
work sites should provide training that supports the hands-on
experience participants will need to attain industry-recognized
construction credentials, but the attainment of a credential is not a
requirement in order for a work site to qualify. No changes were made
to the regulatory text in response to these comments.
Section 688.380 What is the role of the YouthBuild grantee in the one-
stop delivery system?
Comments: Several commenters expressed concern with the requirement
that YouthBuild grantees take all actions required of required partners
as described in sec. 121 of WIOA. Specifically, the commenters were
concerned with 20 CFR 678.420(b) (see Joint WIOA Final Rule), which
provides that required partners use a portion of funds made available
to the partner's program to provide applicable career services and work
collaboratively with the State and Local WDBs to establish and maintain
the one-stop delivery system, including by jointly funding one-stop
infrastructure.
The commenters indicated that if this language is interpreted to
mean that YouthBuild programs must pay into the one-stop delivery
system, it would put an undue burden on small discretionary programs.
At the same time, the commenters expressed support for the opportunity
to partner with local one-stop programs, particularly around mutual
referrals to services, but do not expect this to require a funding
relationship.
One commenter expressed support for actively developing
partnerships with the one-stop delivery system, which they consider
critical for success and beneficial to streamlining services to youth.
However, they recommended that the language related to this requirement
be strengthened to ensure that both the one-stop operators and
YouthBuild program administrators recognize it as a required
partnership and meet to develop mutual parameters for the partnerships.
Past experience of the commenter demonstrated that YouthBuild programs
are sometimes rebuffed when seeking partnership with one-stop
operators. The commenter stated that ensuring the requirement is mutual
will lead to greater success.
Department Response: As YouthBuild grantees are required partners
in the one-stop delivery system, they are responsible for complying
with the requirements in sec. 121 of WIOA and 20 CFR part 678 of these
regulations (see Joint WIOA Final Rule). While compliance with these
requirements may require a financial commitment from the grantee, any
costs incurred would be an allowable cost under the grant. Ensuring
that YouthBuild programs are required partners with the one-stop
delivery system serves to strengthen the safety net for disconnected
youth through stronger connection points to recruitment, referral, and
provision of services to
[[Page 56253]]
such youth. The Department will be issuing further guidance regarding
the requirements of partnership within the one-stop delivery system
separate from the Final Rule. No changes were made to the regulatory
text in response to these comments.
5. Subpart D--Performance Indicators
Section 688.400 What are the performance indicators for YouthBuild
grants?
Comments: One commenter expressed support for the inclusion of two
separate placement measures under WIOA as they felt this would allow
them to report on all enrollees, rather than a subset that was
initially placed, as with WIA. This commenter further provided a
recommendation that the proposed earnings measure should take into
account the local minimum wage standards since these can vary greatly
by location and, without context, may skew the reporting outcomes. This
commenter also expressed concern that the counting of a secondary
diploma only when youth are subsequently in employment or in an
education or training program leading to a recognized postsecondary
credential within 1 year after exit from the program will inadvertently
devalue the importance of a high school diploma or equivalency degree
and discourage programs from the necessary investment that must be made
to get good secondary diploma outcomes.
One commenter expressed general concern over the requirement of
social security numbers, which will negatively impact the serving of
English language learners who will be able to access programs that
could lead to citizenship and which further places nearly unattainable
accountability and performance standards on adult education programs.
Department Response: Section 171(f) of WIOA applied the common
performance indicators applicable to all youth programs authorized
under title I of WIOA described in sec. 116(b)(2)(A)(ii) of WIOA to the
YouthBuild program. The regulations implementing and describing the
youth performance indicators are at 20 CFR 677.155(c) of these
regulations (see Joint WIOA Final Rule). Because the comments
suggesting changes to the primary indicators of performance are general
comments on the primary indicators for youth programs, they have been
addressed in the preamble to that 20 CFR 677.155. Further, there is no
reference to required collection of social security numbers in part
688. The Department has concluded that this comment is outside the
scope of this part.
No changes were made to the regulatory text in response to these
comments.
6. Subpart E--Administrative Rules, Costs, and Limitations
Section 688.520 What cost limits apply to the use of YouthBuild program
funds?
Comments: One commenter requested clarification regarding the
percentage of the grant award that could be used to rehabilitate
community facilities, as separate sections of the NPRM showed a
discrepancy.
Department Response: The Department has revised the NPRM under
Sec. 688.520 to correctly state that the percentage of the grant award
that can be expended toward rehabilitation of community facilities is
15 percent, as stated in Sec. 688.550.
Section 688.540 What are considered to be leveraged funds?
Comments: One commenter requested clarification on leveraged funds
and whether they can be used to pay for meals for youth. The commenter
interpreted leveraged funds to allow the purchase of food because they
are separate from the grant funds and required 25 percent match
requirement of YouthBuild.
Department Response: Per the NPRM, leveraged funds are funds used
for allowable costs under the cost principles. Additional guidance on
the definition of and allowable use of leveraged funds is provided
through the ``Uniform Administrative Requirements, Cost Principles, and
Audit Requirements for Federal Awards'' regulation. The Department does
not have the ability to predetermine the allowability of specific costs
through these regulations. No changes were made to the regulatory text
in response to this comment.
Section 688.550 How are the costs associated with real property treated
in the YouthBuild program?
Comments: One commenter asked the Department to clarify the
definition of costs associated with real property and what such costs
constitute.
Department Response: The Department describes the application of
real property as it relates to allowable costs in this section.
Further, TEGL No. 05-10, ``Match and Allowable Construction and Other
Capital Asset Costs for the YouthBuild Program,'' provides additional
guidance on the costs associated with real property within the
YouthBuild program. No changes were made to the regulatory text in
response to this comment.
Section 688.560 What participant costs are allowable under the
YouthBuild program?
While the Department did not receive any comments on this section,
the final clause of the section has been revised to clarify that the
meaning of ``sponsored health programs'' as those sponsored by
employers or the government.
Section 688.600 Are YouthBuild programs subject to the Davis-Bacon Act
labor standards?
Comments: The Department received many comments related to the
Davis-Bacon Act labor standard provisions. Several commenters requested
that the Department affirm the ``12 unit rule'' under the HOME
Investment Partnerships (HOME) program and the ``8 unit rule'' under
the Community Development Block Grant (CDBG) program as they relate to
the Davis-Bacon Act labor standards. These rules provide exceptions to
the requirement that construction workers be paid prevailing wages when
working on construction sites funded in whole or in part with Federal
funds when the number of units within the project that are funded with
Federal funds fall below the unit threshold of the rule. The commenters
expressed that, in the past, YouthBuild participants have been able to
train on such projects without triggering the prevailing wage
requirement and are seeking the Department's affirmation of the
allowance of these rules.
One commenter requested that the Department reconsider the
YouthBuild Trainee Apprenticeship Program (YB-TAP), which was a formal
certification of the YouthBuild program to allow participants to be
designated as trainees, rather than employees, on any Davis-Bacon-
related project. This designation as a Certified Training Program of
the Department of Labor allowed YouthBuild participants to be paid the
standard wages or stipends as established by their program during their
time on Davis-Bacon work sites, rather than the required prevailing
wage. This commenter suggested that, while the YB-TAP was not well-
received by many areas of the construction industry, this sentiment may
have changed since YB-TAP was dismantled as there is a greater need
across the construction industry for qualified employees than
previously existed.
One commenter expressed support for the continued recognition in
the NPRM that YouthBuild programs are subject to
[[Page 56254]]
the Davis-Bacon Act standards, including prevailing wage rates, when
participants work on projects subject to such standards. Specifically,
this commenter stated that the Department has recognized that
YouthBuild program participants are not considered trainees and
therefore must be paid the prevailing wage rate when on Federally-
funded projects. The commenter supports this NPRM as they believe that
allowing YouthBuild participants to be paid a lower wage on a Davis-
Bacon work site than the prevailing wage would undercut registered
apprentices and incumbent workers.
Department Response: Davis-Bacon prevailing wage rate rules are
quite complex and cover a number of different statutes within the U.S.
Department of Housing and Urban Development (HUD). Within some of these
statutes, there are exemptions under which prevailing wage rates do not
apply. HOME and CDBG are two HUD program examples cited by commenters
for which, if the number of units within the building that have HUD
funding assistance are small enough, the prevailing wage rules do not
apply and YouthBuild participants may be considered active training
participants.
Determining exactly which units of a construction project may be
funded with HUD assistance is quite complicated. It does not
necessarily mean the construction itself is funded by a HUD project,
but instead could mean rental assistance to residents is supplemented
by HUD. Due to the complexity of determining the number of units on a
construction site that are or are not funded with HUD assistance, the
Department is unable to provide further guidance which could be
misconstrued to provide approval for exempting YouthBuild participants
from Davis-Bacon wage rules.
While the Department supports training YouthBuild participants on
HUD-funded projects where viable, a determination of whether YouthBuild
participants on such projects must be paid the relevant prevailing wage
for that project cannot be made by the Employment and Training
Administration (ETA). Rather, HUD consulted extensively with the
Department's Wage and Hour Division on this topic so that HUD can
address such inquiries. YouthBuild programs that are seeking assistance
to determine whether there may be a viable Federally-funded work site
on which participants may train without paying participants the
prevailing wage under the Davis-Bacon Act should consult with HUD's
Labor Standards and Enforcement Regional/Field staff. Contact
information for this staff can be found here: http://portal.hud.gov/hudportal/HUD?src=/program_offices/labor_standards_enforcement/laborrelstf.
The YB-TAP was intended to support the training of YouthBuild
participants on Federally-funded work sites, in order to provide
greater opportunities for youth to work on low-income housing stock
that was managed or owned by HUD. However, as discussed in the preamble
to the 2012 YouthBuild Final Rule (77 FR 9112, 9126, Feb. 15, 2012), as
a result of implementing YB-TAP, the Department found unintended
consequences arose that were a concern for YouthBuild programs. Many of
the organizations that YouthBuild seeks to partner with saw YB-TAP as
being in direct competition because programs were allowed to pay their
participants, as trainees, less than the prevailing wage rate. The
lower ratio of journeyworkers to trainees approved in the YB-TAP
program made it less expensive for a contractor to hire a YouthBuild-
sponsored construction crew versus a journeyworker-staffed crew, and
the YB-TAP standards, in effect, created a competing program approved
by the Department. Accordingly, the Department dismantled YB-TAP.
Therefore, while the provisions for trainees who may be paid less than
Davis-Bacon journeyman wage rates remain in effect as part of the
Davis-Bacon Act labor standards, they do not apply to a YouthBuild
program because there is no YouthBuild program that is a training
program approved by ETA for purposes of Sec. 688.600(c) and 29 CFR
5.5(a)(4)(ii). No changes were made to the regulatory text in response
to these comments.
7. Subpart F--Additional Requirements
Section 688.730 What requirements apply to YouthBuild housing?
Comments: One commenter stated that the statement ``. . . to
increase the stock of affordable homes. . .'' should include ``safe,
healthy, durable, resource efficient affordable homes.'' This same
commenter expressed support for the proposed reduction in the duration
of the restrictive covenant from a minimum of 10 years to a minimum of
5 years.
Department Response: This statement does not appear in the NPRM but
only in the preamble. The NPRM recognizes the importance of safe and
healthy housing as it requires that ``[a]ll transitional or permanent
housing for homeless individuals or families or low-income families
must be safe and sanitary. The housing must meet all applicable State
and local housing codes and licensing requirements in the jurisdiction
in which the housing is located.'' No changes were made to the
regulatory text in response to this comment.
M. Part 651--General Provisions Governing the Wagner-Peyser Act
Employment Service
1. Background on the Wagner-Peyser Act Employment Service
The Wagner-Peyser Act of 1933 established the Employment Service
(ES), which is a nationwide public labor exchange that provides
employment services. The ES seeks to improve the functioning of the
nation's labor markets by bringing together individuals seeking
employment with employers seeking workers. The Wagner-Peyser Act was
amended in 1998 to make ES part of the one-stop delivery system under
WIA and has undergone further changes to integrate services under WIOA.
Parts 651, 652, 653, 654, and 658 update the language and content
of the regulations to implement amendments made by title III of WIOA to
the Wagner-Peyser Act. In some areas, these regulations establish
entirely new responsibilities and procedures, in other areas, the
regulations clarify and update requirements already established. The
regulations make important changes to definitions, data submission, and
increased collaboration, among other requirements of WIOA.
These regulations also address the court order from National
Association for the Advancement of Colored People (NAACP), Western
Region, et al. v. Brennan et al, No. 2010-72, 1974 WL 229 (D.D.C. Aug.
13, 1974) which resulted in a detailed mandate for various Federal and
State actions [referred to as the Judge Richey Court Order (Richey
Order) in the remainder of this preamble]. The Richey Order required
the Department to implement and maintain a Federal and State monitoring
and advocacy system and set forth requirements to ensure the delivery
of employment services, benefits, and protections to Migrant and
Seasonal Farm Workers (MSFW) on a non-discriminatory basis, and to
provide such services in a manner that is qualitatively equivalent and
quantitatively proportionate to those provided to non-farmworkers.
2. Introduction to Part 651
Title 20 CFR part 651 sets forth definitions for 20 CFR parts 652,
653, 654, and 658.
The Department received several comments regarding these
definitions
[[Page 56255]]
and has eliminated, revised, and added definitions, as needed. All
changes to the definitions and the Department's responses to the
comments received (whether changes were made in response to the
comments or not) are explained below. Additionally, the Department has
made technical and clarifying changes. For the remaining definitions
that are not discussed below, the Department received no comments and
made no changes to the regulatory text.
3. Explanation of Changes and Responses to Public Comments
At the beginning of part 651, the Department added clarifying text
which states, ``In addition to the definitions set forth in sec. 3 of
WIOA, the following definitions apply to the regulations in 20 CFR
parts 652, 653, 654, and 658.'' This text is consistent with the
discussion of proposed part 651 contained in the NPRM preamble. The
Department added it to the regulatory text to ensure there is no
confusion as to the application of these definitions and to make clear
that the WIOA sec. 3 definitions also apply to these parts.
Agricultural Employer
The Department added this term and its definition in response to
commenters' concerns with the proposed definition of ``employer.'' The
Department's rationale is described below, in the paragraph that
responds to the comments on the term ``employer.'' This added
definition of ``agricultural employer'' parallels that of the
definition in the Agricultural Worker Protection Act.
Applicant Holding Office
The Department received no comments on this definition; however, it
changed ``U.S.-based workers'' to ``U.S. workers'' for clarification
and uniformity across the definitions in this part. See further
clarification of the Department's interpretation of ``U.S. workers''
below, in the Department's response to comments regarding the Clearance
System definition
Applicant Holding State
The Department received no comments on this definition; however, it
changed ``U.S.-based workers'' to ``U.S. workers'' for clarification
and uniformity across the definitions in this part. See further
clarification of the Department's interpretation of ``U.S. workers''
below, in the Department's response to comments regarding the Clearance
System definition.
Career Services
The Department received no comments on this definition, but the
Final Rule includes a technical correction to ensure the definition
refers to the correct section of WIOA.
Clearance System
Comments: A commenter urged the Department to revise this
definition to make clear that it refers to the ``orderly movement of
U.S.-based job seekers'' because the Agricultural Recruitment System
(ARS) is specific to U.S.-based workers only.
Department Response: The Department agrees that the reference to
job seekers in the definition of clearance system could be clearer. The
Department is partially adopting the commenter's suggestion by revising
the regulatory text to refer to job seekers in this definition as,
``U.S. job seekers.'' The Department notes that Sec. 653.500 outlines
the requirements for the acceptance of intrastate and interstate job
clearance orders seeking U.S. workers to perform farmwork on a
temporary, less than year-round basis. The term, ``U.S. workers'' means
those workers defined at 20 CFR 655.5.
The term, ``U.S. job seekers'' means a U.S. worker who is
interested in obtaining a job. Therefore, a ``U.S. worker'' would not
be a ``job seeker'' if that individual is not interested in obtaining a
job. The change from ``job seekers'' to ``U.S. job seekers'' in this
definition clarifies the intent of the clearance system, which is to
recruit U.S. job seekers at the intrastate and interstate level when no
U.S. job seekers were identified for an agricultural job order placed
at the local level through the ARS.
Employer
Comments: A commenter recommended that the definition of employer
include all employers or joint-employers of H-2A workers under 20 CFR
part 655, subpart B, as well as the relevant Federal laws protecting
farmworkers, including the Migrant and Seasonal Agricultural Workers
Protection Act (AWPA), 29 U.S.C. 1801. In particular, this commenter
suggested that, to allow meaningful and accurate employment
determinations for MSFWs, the definition of employer should be further
expanded to parallel AWPA's definition of ``agricultural employer'' as
``any person who owns or operates a farm, ranch, processing
establishment, cannery, gin, packing shed or nursery, or who produces
or conditions seed, and who either recruits, solicits, hires, employs,
furnishes, or transports any migrant or seasonal agricultural worker.''
Stating that incorporating this definition of agricultural employer
into the employer definition would help ensure that MSFWs are given the
tools to hold those who use their services and labor accountable when a
violation occurs, this commenter concluded that a broad definition of
employer that reflects the unique economic realities of agricultural
employment is crucial for workers to assert their rights and force
growers and contractors to honor their obligations.
Department Response: Although the commenters requested a revised
and broadened definition of ``employer,'' the Department has decided to
retain the current definition of ``employer'' and add a separate
definition of ``agricultural employer'' which parallels that of the
Agricultural Worker Protection Act. The Department anticipates this
approach will effectively allow for meaningful and accurate employment
determinations for MSFWs.
Employment-Related Laws
Comments: Two commenters said that the proposed definition was
circular in that it used the term ``employment-related laws'' in the
definition of employment-related laws; they requested clarification and
stated it is necessary to know the definition of employment-related
laws to identify the agencies that enforce them.
Department Response: The Department agrees with the commenters'
suggestion and has revised the definition by deleting the reference to
``employment-related laws'' within the definition and replacing it
with, ``laws that relate to the employment relationship.'' The
Department clarifies that ``laws that relate to the employment
relationship'' means laws such as, but not limited to, the Fair Labor
Standards Act, the Migrant and Seasonal Agricultural Worker Protection
Act, the Civil Rights Act, and other similar Federal, State, and local
laws. The regulatory text provides examples of some of the agencies
that enforce these laws to give guidance to help identify the enforcing
agencies. However, the Department cannot identify all the agencies that
enforce employment-related laws because such agencies may extend to
each State's respective enforcement agencies, which vary and may change
over time as well as Federal enforcement agencies. Maintaining the
reference generally to agencies that enforce these laws will ensure the
definition of ``employment-related laws'' maintains flexibility over
time.
[[Page 56256]]
Comments: Another commenter expressed concern about the proposed
definition of employment-related laws, asserting it would force
untrained SWA staff to issue actions regarding perceived issues rather
than act on provisions that are within their statutory authority and
stating that State agency staff's activities should relate solely to
the statutory provisions of the authorizing Act.
Department Response: The Department notes that the proposed
definition does not require any action for SWA staff. For further
discussion of SWA staff responsibilities to refer perceived violations
of employment-related laws to the appropriate enforcement agencies,
please see the regulations and accompanying preamble at Sec. 653.500
and subpart E of part 658.
Employment Service (ES)
In the NPRM, the Department added the definition of ``Employment
Service (ES) System.'' The Department received no comments on this
definition, but the DOL WIOA Final Rule makes a non-substantive change
to include the complete term ``Wagner-Peyser Employment Service (ES)
also known as Employment Service (ES),'' and other non-substantive
editorial changes.
Employment Service Office
In the NPRM, the Department defined ``Employment Service Office''
as ``a local office of a State Workforce Agency.'' The Department
received no comments on this definition, but the rule makes a
clarifying change to enhance consistency with the regulations at
Sec. Sec. 652.215 and 678.305 through 315.
Farmwork
Comments: Two commenters expressed support for the elimination of
references to North American Industry Classification System (NAICS)
codes to reduce complexity and support for the addition of ``fish
farming'' to allow for alignment with WIOA sec. 167. Further, these
commenters supported the inclusion of ``food processing,'' which they
asserted would allow for the elimination of ``migrant food processing
workers,'' allow the SWA to more easily train staff to identify MSFWs,
and create stronger alignment with Wage and Hour Division (WHD) and
Office of Foreign Labor Certification (OFLC) regulations. One commenter
urged the Department to define who is included under ``fish farming.''
One commenter opposed the elimination of the NAICS codes from the
proposed definition of farmwork, stating that the NAICS code is updated
on a regular basis to address changes in work activities. This
commenter further asserted that including the phrase ``and any service
or activity so identified through official Department guidance such as
a Training and Employment Guidance Letter'' in the farmwork definition
would make the current definitional structure even more difficult to
understand and follow.
Department Response: The Department is not making substantive
changes to the regulatory text in response to these comments, but has
made a technical edit that makes clear that the definition of
``agricultural commodity'' applies to this definition throughout parts
651, 652, 653, 654, and 658. The Department notes that what activities
are covered under ``fish farming'' is addressed through guidance.
The Department has determined that while the NAICS codes may be
updated, the Department seeks to maintain consistency across its
agencies. Aligning the definition at part 651 with the definition used
at 29 CFR 500.20 and 655.103(c) is intended to help clarify and
streamline the definition for practitioners who are otherwise forced to
rely upon a variety of definitions depending on the program. The
Department has determined it will be more beneficial for practitioners
to draw upon a homogenous definition rather than to refer to a
different and changing set of codes. Additionally, the Department
acknowledges that issuing guidance to clarify or update aspects of the
definition of farmwork is essential to maintain consistency with
current practices and terminology that may change over time.
Comments: One commenter expressed support for broadening the
definition of farmwork to correspond with the AWPA. This commenter also
supported broadening of the definition of ``agricultural commodities,''
by removing the phrase ``produced on a farm'' be removed from the
agricultural commodities definition. In addition, this commenter stated
the proposed agricultural commodities definition is different from the
original source of the language at 12 U.S.C. 1141j(f) and that this
difference could potentially exclude the type of workers that should be
included in the movement toward inclusiveness: The commenter suggested
the definition include downstream activities such as the handling,
packing, and cultivating of commodities that may not traditionally be
grown on land or on farms. This commenter suggested that such a change
is necessary to achieve several of the proposed goals of the WIOA
regulations.
Department Response: The Department has determined that, in order
to maintain consistency with the definitions used by other DOL
agencies, ``on a farm'' should be retained. Workers who perform
``downstream activities'' should be covered by the protections offered
to all other non-farmworkers.
Farmworker
The definition of ``farmworker'' was proposed in the NPRM to
replace the definition of ``agricultural worker.''
Comments: One commenter objected to removing ``who is legally
allowed to work in the United States,'' from the definition and urged
the Department to retain and strengthen this language.
Department Response: The removal of the phrase ``who is legally
allowed to work in the United States'' from the definition aligns this
definition with definitions for the other programs. The Department has
determined that it is unnecessary to mention immigration status in the
definitions for only a subset of programs. No changes have been made to
regulatory text in response to this comment.
The term ``farmworker'' is used throughout this regulation, except
that the Department uses the term ``agricultural worker'' where
discussing OSHA standards or provisions limited to H-2A workers or
regulations in order to maintain consistency with OSHA and H-2A
terminology.
Field Checks
Comments: Expressing concern with the proposed definition's
reliance on the term ``placements,'' a few commenters recommended that,
if the Department intends to use placements as a means to grant SWA
staff jurisdiction to conduct field checks, the Department should
require participating employers in the agricultural clearance system to
report placements after work has begun to the SWA as a condition of
participation. These commenters asserted that requiring State workforce
agencies to seek out placements could impose a burden that is not
expected from other job orders because many agricultural employers do
not immediately report placements during busy harvest periods.
Department Response: The previous definition of ``placements''
included the requirement that the ``employment office verif[y] from a
reliable source, preferably the employer, that the individual had
entered on a job.'' The definition of ``field checks'' in the Final
Rule continues this requirement and does not place any additional
burden on the SWA. The Department further notes that the ES office has
the responsibility to report placements after work has begun, because
it is facilitating the service to the employer, and follow-up
[[Page 56257]]
on such a service is a normal course of action. No change has been made
to the regulatory text in response to these comments.
Field Visits
Comments: Two commenters expressed support for the proposed
definition of field visits, stating it would allow SWA staff and
employers to understand better the difference between a field check and
a field visit.
One commenter asked for clarification of the following language in
the proposed definition: ``The monitor advocate or outreach personnel
must keep records to discuss ES services . . . .''
Department Response: The Department acknowledges that the sentence
``The monitor advocate or outreach personnel must keep records to
discuss ES services . . .'' is not clear enough. To clarify, the
Department has rearranged the text to refer to record keeping
requirements at the end of the definition.
Full Application
Comments: One commenter expressed concern with the removal of a
definition of ``full application'' because of its use of ``full
registration,'' which the commenter stated helps to ensure State agency
staff understand the importance of getting all demographic information
from participants.
Department Response: The Department has determined that State
agencies will continue to collect all pertinent demographic information
through online systems (versus the more antiquated paper-based systems)
because State agencies will eventually need to submit such information
to the Department.
Individual With a Barrier to Employment
Comments: Another commenter recommended the Department clearly
identify receipt of Social Security disability benefits as a barrier to
employment.
Department Response: The Department's response to this
recommendation that an individual in receipt of a Social Security
Disability Insurance (SSDI) payment be considered an ``individual with
a barrier to employment'' is discussed in the preamble text
corresponding to Sec. 680.640.
Individual With a Disability
Comments: The Department received comments which recommended the
addition of a definition for ``individual with a disability'' in
alignment with the definition from sec. 3 of the Americans with
Disabilities Act of 1990 to ensure uniform protection of the class.
Department Response: To emphasize that employment services are
universal and available to everyone, the Department added the
definition of an ``individual with a disability'' which is the same as
the definition in WIOA sec. 3(25). All the definitions in sec. 3 of
WIOA apply to parts 652, 653, 654, and 658; however, because of the
importance of stressing the universal nature of employment services,
the Department has chosen to repeat the definition in part 651, as
noted above.
Job Development
The Department has changed the word ``applicant'' to
``participant'' in this definition in order to conform to the new
definition of ``participant'' in this part, which replaced the term
``applicant.'' No other changes were made to this definition.
Comments: One commenter recommended revising this definition to
include job development with an employer that does not have a job
opening on file with the ES office.
Department Response: Revising the definition of ``job development''
to include ``an employer that does not have a job opening on file with
the ES service office'' would be overly restrictive, because a job
development could occur with an employer who has an opening on file
with the ES office, but the ES office may be working with the employer
to develop a different job. Scenarios like this would create unwanted
limitations on the prospects for assisting job seekers.
Comments: Another commenter recommended the Department revise the
``job development'' definition as a labor exchange service.
Department Response: The Department acknowledges that the service
is indeed a labor exchange service, and labor exchange services are
considered career services. However, the Department has determined that
this revision would not substantively improve the definition of ``job
development.''
Job referral
The Department received no comments on this definition, but the
regulation changes the word ``applicant'' to ``participant,''
conforming to the new definition of ``participant.''
Migrant Farmworker
Comments: A few commenters recommended revising the proposed
definition to clarify what is meant by ``unable to return to his/her
permanent residence within the same day.'' Two commenters stated the
term ``unable'' is overly restrictive and the intent of the regulation
is to consider farmworkers who are ``not reasonably able'' to return to
their permanent residence within the same day as migrant farmworkers.
Department Response: The Department agrees with the commenters that
``not reasonably able,'' as recommended by the commenter, is more
suitable and has changed the regulatory text accordingly. The
Department will provide guidance on how it interprets ``not reasonably
able'' to return to his/her residence within the same day.
One-Stop Center
The Department received no comments on this definition, however the
regulation clarifies that the term one-stop center refers to the
physical center described in sec. 121(e)(2)(A) of WIOA, in contrast
with the broader definition of one-stop delivery system.
Order Holding Office
The Department received no comments on this definition; however, it
changed ``U.S.-based workers'' to ``U.S. workers'' for clarification
and uniformity across the definitions in this part. See further
clarification of the Department's interpretation of ``U.S. workers''
under the Department's response to comments regarding the Clearance
System definition above.
Outreach Contact
Comments: Expressing support for the proposed definition, two
commenters stated this term would provide clarity, particularly when
considering the inclusion of the word ``each,'' and would raise the
importance of the work done by MSFW outreach staff when considering
outreach contacts do not always result in the registration of a
participant.
Other commenters recommended revising the definition to clarify
what type of contacts would qualify as an outreach contact. One
commenter stated the lack of reference to the quality or depth of
follow-up and lack of specification regarding whether the contact needs
to be made outside of the one-stop center makes the proposed definition
overly broad. Another commenter asked the Department to allow for in-
office activity to be included as an outreach contact when the follow-
up activity is being conducted on an MSFW who was initially contacted
while on outreach.
Department Response: The Department notes the definition of
[[Page 56258]]
``outreach contact'' identifies three qualifying activities: the
presentation of information, the offering of assistance, and follow-up
activities; however, the definition does not specify where these
activities need to occur. Outreach duties can take place both inside
and outside the office space. The Department will provide further
guidance on this subject.
Outreach Worker
Comments: A commenter suggested the Department add a definition of
``outreach worker'' to clarify that an outreach worker includes only
employees of a State agency, which this commenter stated is inferred
from proposed Sec. 653.107(b)(10). To accommodate the reality that
many nonprofit organizations provide services to migrant and seasonal
farmworkers (MSFWs), this commenter also suggested the Department add
the term ``nonprofit organization outreach worker'' to mean ``an
employee of, volunteer for, agent of, or contractor for a nonprofit
organization that provides health, educational, social, legal, or
financial services to MSFWs.''
Department Response: The Department declines to add a definition of
outreach worker to indicate they are State agency employees. Paragraph
(a)(1) of Sec. 653.107 clearly states that outreach workers are
employed by State agencies: ``each State agency must employ an adequate
number of outreach workers to conduct MSFW outreach in their service
areas.'' Paragraph (a)(3) of Sec. 653.107 further supports that
outreach workers are only State agency employees by stating, ``for
purposes of hiring and assigning staff to conduct outreach duties, and
to maintain compliance with State agencies' Affirmative Action
programs, State agencies must seek, through merit system procedures,
qualified candidates. . . .'' Finally, Sec. 653.107(b)(10) indicates
that ``outreach workers must be provided with, carry and display, upon
request, identification cards or other material identifying them as
employees of the State agency.'' These references throughout Sec.
653.107 explicitly indicate that outreach workers referenced at 20 CFR
parts 653 and 658 are employees of a State agency.
The Department also declines to add a definition of ``nonprofit
organization outreach worker.'' As explained in the preceding
paragraph, the regulation sets out requirements of outreach workers who
are State agency employees. The Department does not have authority over
the outreach workers employed by nonprofit organizations that do not
receive funding from the Department, and including a definition of them
would cause unnecessary confusion.
Participant
Comments: A few commenters disagreed with the NPRM's replacement of
the term ``applicant'' with ``participant'' throughout the ES program
regulations, stating that both employers and individual job applicants
would find the term change odd. Two commenters asserted the NPRM
contained insufficient justification to change terms in this way. One
commenter suggested the alignment of definitions would help one-stop
partners.
Department Response: The Department disagrees that replacing the
term ``applicant'' with ``participant'' will be odd for employers and
job applicants because the term primarily is for internal data
collection purposes. However, the Department has aligned these
definitions with those used more broadly under WIOA at 20 CFR
677.150(b) (see Joint WIOA Final Rule). The term ``reportable
individual'' is used to cover those individuals who receive employment
services but do not meet the definition of participant in 20 CFR
677.150(a). This term will accurately capture those individuals
formerly referred to in this part as ``applicants.'' With the addition
of the term ``reportable individual,'' and by modifying the definition
of ``participant,'' the Department has aligned these terms with the
definitions of `reportable individual' and `participant' under the rest
of WIOA.
Reportable Individual
Comments: Multiple commenters raised concerns regarding the
proposed replacement of the term ``applicant'' with ``participant,'' as
is addressed above. This is linked to the definition of Reportable
Individual as well.
Department Response: As outlined in the ``participant'' definition
in this section, the Department also has added the definition of
``reportable individual'' in order to capture the individuals who apply
for and/or receive Wagner-Peyser Act funded employment services and to
ensure alignment across the programs.
Respondent
The Department received no comments on this definition, but the
Final Rule adds the word ``individual'' to the definition of
respondent. A respondent is not limited to an employer or a State
agency; rather the respondent can be any individual (such as a field
manager, a co-worker, or a labor contractor) who responds to a
complaint filed pursuant to 20 CFR part 658, subpart E. The Department
determined it prudent to add ``individual'' to the definition for
clarification.
Seasonal Farmworker
Comments: Some commenters expressed concern that the proposed
definition would eliminate thresholds tied to number of days (25) and
proportion of total wages (majority in farmwork) that an individual
must have to qualify as a farmworker. These commenters expressed
concerns that, under the proposed definition, a person employed in
farmwork for 1 day during the past 12 months would qualify as a
farmworker and that this proposed definition might make it difficult to
implement integrity processes that validate the SWA's classification of
individuals as MSFWs.
Department Response: The Department acknowledges commenters'
concerns regarding the removal of the days and total wages originally
included in the seasonal farmworker definition. However, for the
purposes of the ES and the Department's Monitor Advocate System, if a
farmworker qualifies as a seasonal farmworker because he or she worked
1 day in farmwork during the previous 12 months, that is acceptable.
The Department understands that a myriad of circumstances could have
led to the reason why that farmworker was able to work for only 1 day.
For example, the worker could have been unable to find other employment
and only was able to work 1 day, or, as another example, the worker
could have been injured on the job and needed not to return to work in
order to heal. As such, the Department will maintain its proposed
definition.
Supply State(s)
The Department received no comments on this definition; however, it
changed ``U.S.-based workers'' to ``U.S. workers'' for clarification
and uniformity across the definitions in this part.
Supportive Services
Comments: One commenter suggested the definition of ``supportive
services'' should specify whether Wagner-Peyser Act funds can be spent
on supportive services, noting that such clarification is critical to
avoiding disallowed costs.
Department Response: The Department received several comments about
alignment across programs, especially aligning supportive services
across title I and Wagner-Peyser Act (as amended by WIOA title III)
services. The Department has modified the definition of ``supportive
services'' at
[[Page 56259]]
Sec. 680.900 to include an inclusive, though not exhaustive, list of
types of supportive services. To ensure consistency, the Department is
modifying the definition of supportive services to be the same as the
definition used in Sec. 680.900 relating to the WIOA title I formula
programs. The list is not intended to be exhaustive, but rather
illustrative of the types of supportive services that may be available.
The Department notes, however, grantees must not use Wagner-Peyser Act
sec. 7(a) funds, but may use Wagner-Peyser Act sec. 7(b) funds, to
provide supportive services.
Tests
Comments: Some commenters objected to the proposed elimination of
the definition of ``tests,'' arguing that assessments and tests
continue to be integrated into career assessments and planning, and
citing proposed Sec. 678.430(b), which defines one-stop career
services and addresses skills assessments and diagnostic testing (see
Joint WIOA Final Rule).
Department Response: The Department agrees with the commenters'
concerns that tests are integrated into career assessments and
planning. As a result, the Department changed the proposed definition
to add the previous definition of ``tests'' back into this section.
United States Employment Service (USES)
While no comments were received regarding this definition, the
Department has deleted this definition because it is redundant with the
definition of Wagner-Peyser Act Employment Service (ES), above. Because
ES is used throughout the chapter and USES is not, the Department has
determined that the definition for USES is not necessary.
Veteran
Comments: The Department received a few comments requesting
clarification of the term ``veteran.''
Department Response: In response to these comments, the Department
has added the definition of ``veteran'' to the Final Rule. The
definition is the same as the definition in WIOA sec. 3(63)(A), which
in turn is the same as the definition in 38 U.S.C. 101.
Workforce and Labor Market Information (WLMI)
Comments: A couple commenters suggested the Department identify the
types of labor market ``participants'' that make the ``employment,
training, and business decisions'' referenced in the proposed
definition of WLMI, including employers, educators and trainers,
workers, students, and public and private organizations that invest in
workforce development. These commenters also recommended additional
WLMI examples to add to the 20 examples provided in the proposed
definition.
Another commenter recommended the Department consult the Workforce
Information Advisory Council and develop guidelines by area of LMI
regarding this balance of demand for detailed localized data and data
quality.
Department Response: ``Workforce and Labor Market Information'' is
a term used to describe what types of data, information, and analysis
may be used at the national, State, and local level to make policy
decisions, develop strategic plans, and implement decisions. While the
broad parameters of the system content are laid out in Wagner-Peyser
Act sec. 15, as amended by sec. 308 of WIOA, the term WLMI is not
itself defined in either statute. The Department based the proposed
WLMI definition on several factors including: (1) Data that are
commonly considered to be part of the WIA LMI system; (2) additional
items of information that should be considered to meet the new vision
of WIOA; (3) potential types of information that could be included
based on the consultations with the Workforce Information Advisory
Council; and (4) data on outcomes of local employment and training
activities. The Department is intentionally broadening the system's
understanding of what information can and should be considered in
strategic planning. However, the Department is not implying that State
labor market information agencies are required to produce all of the
information included in the definition: such information may be derived
from other sources, such as educational agencies and institutions, or
economic development agencies. LMI agencies and WIOA partners should
share and compare data with these other entities to obtain a fuller
picture of the labor market, particularly the supply side.
Comments: One commenter described the proposed definition of WLMI
as a list of products resulting from an extant system usually referred
to by itself as Labor Market Information (LMI) and recommended removing
the word ``workforce,'' stating that it adds confusion. Stating LMI
should be defined as a scientific process focusing on the domain of the
labor market rather than an open ended list of products, this commenter
recommended that Sec. 651.10 instead define LMI as follows: ``Labor
Market Information (LMI) is an applied science; it is the systematic
collection and analysis of data which describes and predicts the
relationship between labor demand and supply.''
Department Response: The Department examined the recommendation to
shorten and simplify this simplified definition. The commenter's
recommended definition is more restrictive than the statutory language
describing WLMI in sec. 15(a) of the Wagner-Peyser Act. No change was
made to the regulatory text in response to this comment.
Comments: Commenters also suggested that additional items be added
to the proposed WLMI definition to expand what can be considered within
the scope of WLMI for purposes of strategic planning and public
workforce system operations.
Department Response: The Department agrees that clarifications were
needed to the proposed WLMI definition, and as a result, the Final Rule
reflects several changes. The wording of the first and second sentence
of the introductory paragraph was modified to define WLMI and eliminate
reference to the WLMI programs and system. This is not a policy change;
rather, it reinforces the fact that WLMI programs do not produce all of
the information items in the list, and DOL-funded agencies should not
be held accountable for doing so. The proposed WLMI definition also was
changed to add some of the items suggested by commenters and some
wording was revised to clarify the purpose of each listed item.
Workforce and Labor Market Information System (WLMIS)
Comments: Two commenters suggested that the Department identify the
Federal and State agencies that actively participate in the WLMIS as
part of the definition. One of these commenters stated that doing so
would be consistent with the text of proposed Sec. 652.300(b)(2) and
(5), as well as the NPRM preamble discussion of part 652, subpart D
(Workforce and Labor Market Information), under the heading
``Continuous improvement, in part through consultation.'' Both
commenters also suggested that the WLMIS definition should include the
words ``Federal-State cooperative'' before ``system.''
Department Response: ``Federal-State cooperative'' is often used
before ``system,'' to specifically refer to the nature of certain
existing agreements with the Bureau of Labor Statistics and may not
apply more broadly. Additionally, because the list may
[[Page 56260]]
change over time based on changes in agency data collection and data
sharing policies and procedures, the Department declines to include a
list of the Federal and State agencies that participate in WLMIS.
N. Part 652--Establishment and Functioning of State Employment Service
1. Introduction
The regulations at 20 CFR part 652 set forth standards and
procedures regarding the establishment and functioning of State ES
operations. These regulations align part 652 with the WIOA amendments
to the ES program, and with the WIOA reforms to the public workforce
system that affect the ES program. The WIOA-amended Wagner-Peyser Act
furthers longstanding goals of closer collaboration with other
employment and training programs by mandating colocation of ES offices
within one-stop centers or affiliated sites; aligning service delivery
in the one-stop delivery system; and ensuring alignment of State
planning and performance indicators in the one-stop delivery system.
Other new provisions are consistent with long-term Departmental
policies, including increased emphasis on reemployment services for UI
claimants (sec. 7(a)); promotion of robust Workforce and Labor Market
Information (WLMI); the development of national electronic tools for
job seekers and businesses (sec. 3(e)); dissemination of information on
best practices (sec. 3(c)(2)); and professional development for ES
staff (secs. 3(c)(4) and 7(b)(3)).
Inadvertently, the preamble explanation for Sec. 652.215 was
duplicated in the regulatory text. That has been removed and the
intended regulatory language, which is the original language from the
WIA regulations at Sec. 652.215, has been added except for a
nonsubstantive change to the last sentence. The WIOA regulatory text at
Sec. 652.215 is not substantively different from the language
inadvertently used in the NPRM.
The analysis that follows provides the Department's response to
public comments received on the proposed part 652. If a section is not
addressed in the discussion below, it is because the public comments
submitted in response to the NPRM did not substantively address that
specific section and no changes have been made to the regulatory text.
Further, the Department received a number of comments on this part that
were outside the scope of the regulation and the Department offers no
response. Lastly, the Department has made a number of non-substantive
changes to correct grammatical and typographical errors to improve the
readability and conform the document stylistically that are not
discussed in the analysis below.
Comments: Several comments prompted the Department to make minor
changes to parts of the regulations in this section, as discussed
below. One of the major areas in which the Department received comments
was regarding colocation.
The Department received several varying comments regarding
colocation. This part clarifies the intent of colocation and how ES-
only affiliate sites do not meet the intent of WIOA.
Department Response: The Department broadened language in Sec.
678.315(b) (see Joint WIOA Final Rule) to allow multiple programs to
meet the more than 50 percent threshold by combining the time their
staff members are physically present and to emphasize the expectation
that colocation should be completed as expeditiously as possible. The
Department will issue additional guidance on this topic.
Comments: Many commenters also raised questions and provided
comments regarding Wagner-Peyser Act funds usage.
Department Response: The Department clarified that there are no
changes in the activities that may be funded by Wagner-Peyser Act
funds. Specifically, training services may not be provided with sec.
7(a) of the Wagner-Peyser Act funding; however, appropriate career
services and labor exchange services may be provided to individuals in
training and to clarify there is no restriction on funding training
services with sec. 7(b) funds under the Wagner-Peyser Act.
Comments: In terms of reemployment, a few commenters suggested
including developing and documenting reemployment plans and adding
Worker Profiling and Reemployment Services (WPRS) to the list of
required Wagner-Peyser Act activities for UI claimants.
Department Response: The Department noted that providing assistance
to UI claimants in the development of a reemployment plan is not just
for claimants served by the RESEA or the WPRS program. Such assistance
can be provided to any unemployed worker; providing such assistance is
an allowable Wagner-Peyser Act cost.
Comments: Some commenters expressed concern with the regulation at
Sec. 652.209 requiring that reemployment services provided by State
agencies must include conducting eligibility assessments and referring
UI claimants to and providing application assistance for training and
education resources and programs.
Department Response: The Department reiterates that this approach
is consistent with the approach that existed under WIA, and will be
continued under WIOA; States will be provided flexibility to leverage
UI funds, W-P funds, and RESEA funds in States with RESEA programs for
these purposes.
With regard to workforce labor market information, some of the
clarifications identified in this part include: there is a need to
provide extensive education and technical assistance with regard to
accessing wage record data; the Workforce Information Advisory Council
(WIAC) will advise on WLMI and may consider what kind of information is
needed for planning, but it is not involved in developing State Plans;
and the Departments of Labor and Education will issue joint guidance
about use of wage data for performance in the context of the
confidentiality requirements for the use UI wage record data and
education data under the Family Educational Rights and Privacy Act
(FERPA). In order to address concerns regarding ``continuous
improvement'' as it pertains to the WLMI systems (WLMIS), Sec. 652.300
was edited to reflect that the parameters for continuous improvement
will be identified in consultation with the WIAC. Additionally, the
edits to this section align with WIOA and reference the Secretary's
responsibility to prepare a 2-year plan for WLMIS.
2. Overarching Comments on Part 652
Comments: A few commenters recommended that the Department require
that the UI and ES programs be given priority for any remaining Federal
equity to help address chronic underfunding, especially the need to
modernize State computer systems.
Department Response: The Department's response to this
recommendation to require that UI and ES programs be given priority for
any remaining Federal equity is addressed in the preamble text
corresponding to Sec. 683.240.
Comments: One commenter recommended additional funding to improve
systems for reporting purposes to facilitate system alignment between
core programs. The Department also received several comments on
funding.
Department Response: The Department notes that funding levels are
determined by Congress and cannot be resolved through this regulatory
process.
[[Page 56261]]
The Department also made one clarifying change throughout this
part. Previously, the regulatory text in part 652 has used the words
``the Act'' to refer to the Wagner-Peyser Act. Because of the ES
system's integration in the public workforce system, which is governed
by a number of different Acts such as WIOA, this reference has caused
some confusion. To make references to the Wagner-Peyser Act clear, the
Department has replaced ``the Act'' with ``the Wagner-Peyser Act''
throughout the text of the regulations in this part. The definition of
``the Act'' in part 651 has also been amended to reflect this change.
In the titles of the regulatory sections, ``the Act'' has been replaced
with ``the Wagner-Peyser Act.''
3. Subpart A--Employment Service Operations
Comments: One commenter expressed support for Sec. Sec. 652.1
through 652.8 as proposed. Another commenter urged States, localities,
and one-stop centers to make staff-assisted services (ideally provided
by coaches or older worker specialists) available to older workers and
other individuals with barriers to employment. Citing data, the
commenter explained that older workers use self-service and
``automated'' services the least, and that access to staff makes all
the difference. This commenter suggested that, at minimum, all front-
line staffers should be required to have adequate training in
generational competencies in order to provide quality staff-assisted
services to older workers with varied backgrounds and needs at every
stage of the process. Furthermore, this commenter explained that older
workers who may be more likely to qualify for and exhaust their UI
benefits, also benefit from staff-assisted services such as assessment
and reemployment services early in an episode of unemployment.
Department Response: The Department agrees that States, localities,
and one-stop centers must make staff-assisted services available to
older workers and other individuals with barriers to employment and
that these individuals can benefit from these services.
Front-line staff training is addressed in the Wagner-Peyser Act
sec. 3(b)(4) (as amended by sec. 303(b)(4) of WIOA), which requires
State agencies and their staff to assist in the planning and
implementation of activities to enhance the professional development
and career advancement opportunities of staff. The Department strongly
encourages such training to include competencies related to serving
populations with barriers to employment and to accessing services,
including older workers. Additionally, the Department added direct
language from the Wagner-Peyser Act sec. 3(b)(4) to Sec. 652.204 to
indicate that professional development and career advancement may be
supported by the Governor's Reserve.
Section 652.3 Public Labor Exchange Services System
Comments: A commenter urged the Department to work with States to
make the Wagner-Peyser Act program as flexible as possible to integrate
it into the service delivery design of that State. While expressing
support for the alignment of labor exchange services under WIOA with
those provided by the ES program, some commenters urged that the
alignment should reflect and seek to preserve the unique structures and
functions of the various providers, including ES. Some of these
commenters provided examples, including encouraging partners to work
out arrangements to accommodate legal requirements that State public
employees assist with the filing of UI claimant applications, and
having ES staff conduct one-stop orientations as a first entry point
for job seekers.
Department Response: While Sec. 652.3 focuses on the statutory
intent and minimum required functions of the ES program, the regulation
provides flexibility in how services are provided and what other
services are provided. The Department acknowledges the commenter's
examples of ES and UI functions. The regulation provides flexibility
for States and locals to consider effective strategies for providing
meaningful assistance to individuals in filing their UI claims, and
other intake functions.
Comments: A commenter suggested that the alignment of definitions
would help for one-stop partners.
Department Response: The Department agrees with the commenter about
the benefit of aligning definitions across the core programs, and as a
result the terms ``reportable individual'' and ``participant'' have
been aligned with the performance accountability of the other core
programs.
Comments: A commenter noted that ES is focused on providing ``UI
relief,'' job placement, and reemployment services, whereas WIOA
focuses on training workers and providing wrap-around services.
Multiple commenters further discussed how the Wagner-Peyser Act and
WIOA are two different laws with different public policy objectives.
Related to this point, two commenters urged the Department to use the
word ``Act'' when referring to the Wagner-Peyser Act throughout the
regulation (e.g., ``Wagner-Peyser Act services'' rather than ``Wagner-
Peyser services''), reasoning that it is a separate and distinct
enacted law.
Department Response: The Department recognizes the vital role the
ES has in the public workforce system, often serving as the ``front
door'' to the one-stop centers, ensuring universal access to all job
seekers, and in providing labor exchange services that help job seekers
and unemployed workers gain or return to employment. The Department
notes, as the commenters mentioned, that the Wagner-Peyser Act is a
separate law from WIOA, but is a critical component of the reforms that
WIOA envisions. Recognizing this, the Department has added the word
``Act'' behind the references to ``Wagner-Peyser'' to accurately
reflect the distinction between the Wagner-Peyser Act and WIOA.
Comments: In response to the Department's request for comments on
challenges in aligning labor exchange services described under WIOA
with those provided by the ES, one commenter asserted that additional
funds would be needed to create a cohesive, collective reporting system
for WIOA implementation.
Department Response: The Department received several comments on
funding; however, funding levels are determined by Congress and beyond
the scope of the NPRM; therefore they cannot be resolved through this
regulatory process.
Comments: Some commenters suggested that the Department revise
Sec. 652.3(f) to refer to sec. 7(a) of the Wagner-Peyser Act, and thus
ES labor exchange services. Although acknowledging that the referenced
career services under WIOA are similar, these commenters asserted that
they are not a substitute for Wagner-Peyser Act sec. 7(a) services.
Department Response: The Department agrees with the commenters that
career services under WIOA are not a substitute for Wagner-Peyser Act
sec. 7(a) services; Sec. 652.3(f) has been amended to add reference to
sec. 7(a) of the Wagner-Peyser Act.
Comments: A commenter asked whether business service
representatives are required to ``facilitate the match between job
seekers and employers'' (Sec. 652.3(c)) or whether this provision
referred to the overall ES program responsibility.
Department Response: The Department considers the facilitation of
the match between job seekers and employers to be a part of the overall
responsibility of the ES program.
[[Page 56262]]
Business services are an important component of the one-stop delivery
system. While the Wagner-Peyser Act is responsible for facilitating the
match between job seekers and employers, local areas may implement
business services teams that include staff funded by the Wagner-Peyser
Act and other partner programs to ensure quality services to area
businesses and to avoid duplication of services.
Section 652.8 Administrative Provisions
The Department simplified the language in Sec. 652.8(j)(1) by
removing ``including laws prohibiting discrimination on the basis of
age, race, sex, color, religion, national origin, disability, political
affiliation or belief'' because this is redundant with the phrase
immediately preceding it, ``any applicable nondiscrimination law.''
Conforming edits were also made at Sec. Sec. 653.501(c)(ii),
658.411(c)(1) and (2), and 658.420(b)(1).
The Department made a clarifying change to Sec. 652.8(i) by
removing the sentence ``Similarly, all complaints involving such
matters should also be reported to the Secretary directly and
immediately'' and changing the first sentence to read ``Any persons
having knowledge of fraud, criminal activity or other abuse must report
such information directly and immediately to the Secretary, including
all complaints involving such matters.'' This clarifies that complaints
related to fraud and abuse must be reported to the Secretary directly
and immediately. The change reduces confusion about whether the
requirement to report complaints is different from the requirement to
report information to the Secretary; the requirement is the same for
both.
Section 652.9 Labor Disputes
Comments: Stating that proposed Sec. 652.9(a) could be
misinterpreted by States and Workforce Development Boards, two
commenters recommended that the provision be revised to say, ``State
agencies must not make'' instead of ``State agencies may not make.''
Department Response: The Department considers job referrals on job
orders which aid directly or indirectly in the filling of a job opening
which is vacant because of a strike, labor dispute, or work stoppage to
be inconsistent with the Department's policy of neutrality in
activities that may impact union organizing. The Department proposed no
changes to this section, as WIOA did not make any amendments to the
Wagner-Peyser Act relevant to this section. This language--``State
agencies may not make'' was used under previous practice and there were
no apparent misinterpretations or issues. No change was made to the
regulatory text in response to this comment.
4. Subpart B--Services for Veterans
Comments: Some commenters expressed support for proposed Sec.
652.100, particularly the inclusion of the statement regarding
veterans' priority of service.
However, several commenters recommended that the Department define
the term ``veteran'' by specifying that, as provided in 38 U.S.C. 101,
``the term veteran means a person who served in the active military,
naval, or air service, and who was discharged or released therefrom
under conditions other than dishonorable.'' In addition to urging a
definition of ``veteran,'' a commenter also recommended that the
Department establish definitions for ``eligible spouse,'' ``significant
barriers to employment,'' and ``priority of service.'' Additionally,
this commenter recommended that the regulation state veteran referral
qualifications to the Disabled Veterans Outreach Program (DVOP) because
these referrals are Wagner-Peyser Act funded services and not charged
to the Jobs for Veterans State Grants (JVSG).
A commenter recommended that the Department include an option for
LWDBs to require that one-stop operators adhere to labor standards for
staff that work in the one-stop delivery system.
Department Response: The Department agrees with the commenters that
adding a definition of ``veteran'' to the ES regulations would be
beneficial, showing the consistent definition across multiple programs.
The definition under 38 U.S.C. 101 applies to the Wagner-Peyser Act,
WIOA, and veterans' Priority of Service under 38 U.S.C. 4215. (The
definition of ``eligible veteran'' used in the JVSG program authorized
under chapter 41 of title 38 of the U.S.C., is a different definition.)
The Department added the definition of ``veteran'' consistent with 38
U.S.C. 101 and sec. 3(63)(A) of WIOA to the regulation at Sec. 651.10.
In response to the commenters' suggestions to state veteran
referral qualifications to DVOP, as well as define ``eligible spouse,''
``significant barriers to employment,'' and ``priority of service,''
these concerns are already covered by joint guidance from the Veterans'
Employment and Training Service and the Employment and Training
Administration. See TEGL No. 19-13 (``Expansion and Clarification of
Homeless Definition as a Significant Barrier to Employment (SBE)''),
Change 2 and TEGL No. 10-09 (``Implementing Priority of Service for
Veterans and Eligible Spouses in all Qualified Job Training Programs
Funded in whole or in part by the U.S. Department of Labor (DOL)''),
which can be found at http://wdr.doleta.gov/directives). Also,
``eligible spouse'' and ``priority of service'' are fully described in
the regulations governing the JVSG program at 20 CFR parts 1001 and
1010. No change was made to the regulatory text.
The Department's response to the recommendation for LWDBs to
require that one-stop operators adhere to labor standards is addressed
in the Joint WIOA Final Rule preamble discussion for 20 CFR part 678,
subpart C.
5. Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
Section 652.201 What is the role of the State Workforce Agency in the
one-stop delivery system?
Comments: The Department received a few comments stating that this
section should clarify that Wagner-Peyser Act services must be
colocated in at least one one-stop center in each local area and
requested that the Department provide additional direction on what
should be included in the MOU to make sure that local Wagner-Peyser Act
operations are closely connected with Local WDB priorities.
Department Response: The requirements for Wagner-Peyser Act
services to be colocated are outlined in Sec. Sec. 652.202, 678.310,
and 678.315 (see Joint WIOA Final Rule). The Department expects that
the entity that administers the ES system, in consultation with LWDBs
and one-stop partners, may need to make the necessary changes to comply
with this requirement. Additionally, the specific requirements for MOUs
are contained in 20 CFR 678.500, which outlines what must be included
in the MOU executed between the LWDBs, with the agreement of the CEO,
and the one-stop partners relating to the operation of the one-stop
delivery system in the local area. No change was made to the regulatory
text.
Section 652.202 May local employment service offices exist outside of
the one-stop delivery system?
Comments: Some commenters stated that either the existing Sec.
652.202(b) should be retained or that Sec. 652.202 should specify that
``one-stop centers in this rule refer to both comprehensive and
affiliate one-stop centers.'' These commenters reasoned that the
Wagner-Peyser Act requires State workforce
[[Page 56263]]
agencies to provide ES ``statewide in underserved areas.'' They cited
two Department-sponsored studies that they stated demonstrate that the
ES program in affiliated sites was the backbone and core component of
these technologically linked one-stop center sites in many rural
communities where LWDBs could not establish full-service one-stop
centers. Further, these commenters asserted that maintaining current
Sec. 652.202(b) would be consistent with proposed Sec. 680.100(b)(1),
which permits services at ``affiliated sites or at specialized
centers.'' Expressing similar concerns about ES access in rural areas,
a commenter asked whether proposed Sec. 652.202 means that affiliate
ES offices may no longer physically exist.
One commenter explained that the WIOA NPRM's proposed requirements
relating to colocation would do little to improve efficiencies and
stabilization of facilities costs. For example, this commenter stated
that adding one partner program staff to the ES office simply for
complying with the NPRM against stand-alone ES offices (proposed at 20
CFR 678.315(b)) would be fairly simple to accomplish, but meaningless
as far as the stated goals for improved service and coordination, less
duplication, and greater access. This commenter stated that a
requirement to colocate adult and dislocated worker with ES into full
centers would likely be sufficient impetus over time to have the major
core program partners concentrate on finding suitable facilities,
although it would pose a difficult problem in many localities. This
commenter and another stated that although proposed Sec. 652.202 and
related discussion in Sec. Sec. 678.310 and 678.315 (see Joint WIOA
Final Rule) is intended to address greater partner integration where ES
are delivered, the discussion is confusing with overlapping references
to one-stop centers, affiliated sites, and even affiliated sites. These
commenters suggested that perhaps WIOA and the ES program should be
required to colocate in proportion to participants served, forming over
time the basis of a more financially sound, center-based system with
fewer affiliates and locally unique inviting core and non-core program
partners as space is available.
Department Response: Colocation is intended to achieve several
purposes: improved service delivery and coordination, less duplication
of services, and greater access to services in underserved areas. While
the Department understands that it may be difficult to establish full-
service one-stop centers in some rural communities, it has concluded
that retaining the previous Sec. 652.202(b) and allowing local ES
offices to operate solely as affiliated sites or through electronically
or technologically linked access points contradicts the intent of WIOA.
No change was made to the regulatory text in response to these
comments.
Additionally, Sec. 678.315(b) (see Joint WIOA Final Rule) allows
multiple programs to meet the more than 50 percent threshold by
combining the time their staff members are physically present. This is
further discussed in the preamble accompanying 20 CFR 678.315.
Additionally, the Department has determined that requiring
colocation of WIOA and ES program services in proportion to
participants served would be too burdensome a requirement to impose on
States.
Comments: Two commenters asked if there was a timeline for the
requirement that ES offices must be colocated in one-stop centers.
Department Response: The Department expects colocation to be
completed as expeditiously as possible. However, it acknowledged that
there are legitimate concerns about the timeline for the requirement
that ES offices must be colocated in one-stop centers, due to factors
such as real property issues, decisions on site locations, discussions
with municipal or county governments, and development of memoranda of
understanding. Therefore, as indicated in 20 CFR 678.310 (see Joint
WIOA Final Rule), a State in such circumstance must be prepared to
provide the Department with a plan that details the steps the State
will take to achieve colocation of ES and a timetable showing how the
State will achieve this within a reasonable amount of time. The
Department is issuing guidance on the approach it will use to obtain
required plans and timelines for completion.
Section 652.203 Who is responsible for funds authorized under the
Wagner-Peyser Act in the workforce development system?
The Department did not receive any comments on this section. No
changes were made to this section of the regulatory text.
Section 652.204 Must funds authorized under section 7(b) of the Wagner-
Peyser Act (the Governor's Reserve) flow through the one-stop delivery
system?
Comments: Some commenters recommended that this section should
include activities that enhance the professional development and career
advancement for ES staff as an activity that can be supported by the
Governor's Reserve following the amendment of sec. 3(b)(4) of the
Wagner-Peyser Act (amended by sec. 303(b)(4) of WIOA) to make such
activities required. One commenter emphasized the importance of
training activities to enhance the professional development of ES
staff, given WIOA's expansion of services and the central role of ES
staff in providing referrals and application and assistance for
training and education programs and resources.
Expressing support for proposed Sec. 652.204, one commenter urged
the Department to promote the training of staff on how to assist older
workers.
Department Response: The Department acknowledges and supports
professional development for ES staff, and considers it to be essential
in building staff capacity and ensuring staff are fully equipped to
provide seamless and high-quality service to all customers who need ES
services. The commenters' recommendations and support for front-line
staff training are addressed in the Wagner-Peyser Act at sec. 3(b)(4)
(as amended by sec. 303(b)(4) of WIOA), which requires State agencies
and their staff to plan and implement opportunities to enhance the
professional development of staff to ensure quality service delivery.
This is consistent with the uses of funds under sec. 7(b)(3) of the
Wagner-Peyser Act, which allow the funds to be used for ``models for
enhancing professional development and career advancement opportunities
of State agency staff.'' The Department has added language to Sec.
652.204 to clarify that professional development and career advancement
of SWA staff can be supported by funds under sec. 7(b) of the Wagner-
Peyser Act (the Governor's Reserve). The Department also has added
language to the title of Sec. 652.204 to clarify that Sec. 652.204
refers to the sec. 7(b) funds. Additionally, the Department added
language to Sec. 652.204 to clearly state that under sec. 7(b) of the
Wagner-Peyser Act, 10 percent of the State's Wagner-Peyser Act
allotment is reserved for these activities.
With regard to the suggestion to train front-line staff on
assisting older workers, the Department expects that staff are trained
and equipped with the knowledge, skills, and motivation to provide
superior service to all job seekers, including older workers.
Section 652.205 May funds authorized under the Wagner-Peyser Act be
used to supplement funding for labor exchange programs authorized under
separate legislation?
Comments: A commenter asked which other programs would be funded by
the Wagner-Peyser Act, specifically
[[Page 56264]]
whether training would be funded and asked how this is consistent with
Sec. 652.206.
Department Response: Section 652.205 made no changes in the
activities that may be funded by Wagner-Peyser Act funds. Although
Sec. 652.205(a) states that States may use such funds to supplement
any work activity carried out under WIOA, the paragraph clearly applies
to ``funds authorized under 7(a) or 7(b) of the Wagner-Peyser Act.''
Section 7(b) of the Wagner-Peyser Act allows for the provision of
training services, however that is not the primary purpose of 7(b), and
any training services provided with these funds must be consistent with
the allowable activities in 7(b). These allowable 7(b) activities
include services for groups with special needs as well as the extra
costs of exemplary models for delivering labor exchange services, as
well as the other services under sec. 7(a) of the Wagner-Peyser Act.
Section 652.206 May a State use funds authorized under the Wagner-
Peyser Act to provide applicable ``career services,'' as defined in the
Workforce Innovation and Opportunity Act?
Comments: Some commenters recommended that the Department revise
Sec. 652.206 to make clear that the labor exchange services under WIOA
and under the Wagner-Peyser Act are distinct. They proposed removing
the phrase ``funds under sec. 7(a) of the Act must be used,'' so that
this section would be amended as follows:
``Yes, 90 percent of the funds allotted to States under the Wagner-
Peyser Act must be used for services identified under sec. 7(a) of the
Act to assist job seekers and employers and to provide career services
as identified in Sec. 678.430(a) of this chapter and secs.
134(c)(2)(A)(i)-(xi) of WIOA . . . .''
Department Response: The Department has determined that it is not
necessary to amend the regulation as the commenters have requested,
because Sec. 652.206 states that career services must be provided
consistent with the requirements of the Wagner-Peyser Act, which
specifies that 90 percent of the funds allotted to States may be used
for services identified under sec. 7(a) of the Wagner-Peyser Act to
assist job seekers and employers. In addition, sec. 7(b) states that 10
percent of the State's allotment under the Wagner-Peyser Act is
reserved for 7(b) activities. As discussed above, the Department has
added language to Sec. 652.204 to clarify the amount of funds reserved
for 7(b) activities.
Comments: In response to the Department's request for comments on
how services provided by the ES can be more aligned with other services
in the one-stop delivery system, two commenters suggested that the
Department: (1) Require, over time, maximum colocation of ES and title
I adult and dislocated worker staff forming full one-stop centers with
foundations of at least these two core programs in each labor market
area (which may be sub-areas of local areas); (2) implement
standardized triage processes/forms used by staff that are voluntary
for customers; (3) require mandatory coordination of business services;
and (4) encourage more purposeful and deliberate ongoing joint staff
development training.
Department Response: The Department notes the comments about the
alignment of ES services and those of the one-stop delivery system. The
Department intends to ensure colocation of ES and title I adult and
dislocated worker staff over time. The Department has determined that
requiring these specific activities in the regulation as suggested by
the commenters would limit flexibility. The Department will provide
guidance on allowable activities and may address this topic in future
technical assistance. No changes were made to regulatory text in
response to these comments.
Comments: One commenter asked for clarification regarding the
statement that ``career services must be provided consistent with
requirements of the Wagner-Peyser Act,'' particularly whether this
means that career services are charged to the Wagner-Peyser Act only
and how supportive services should be charged. Some commenters
requested that the Department clarify that career services can be
delivered remotely using technology due to the limited number of
Wagner-Peyser Act staff that are available for traditional services.
Department Response: Funds under sec. 7(a) of the Wagner-Peyser Act
may be used to provide career services, whereas funds under sec. 7(b)
may be used to provide career services, supportive services, and
training, as discussed above. The Department encourages Local WDBs to
coordinate ES with title I and other partner programs to have a full
range of training and supportive services available to participants.
The Department understands the importance of providing staff-assisted
services virtual and clarifies that facilitated self-help can be
provided in-person or virtually. The Department emphasizes, however,
that, as stated in 20 CFR 678.305(d)(3) (see Joint WIOA Final Rule), to
meet the definition of providing sufficient ``access'' through the one-
stop center, services provided through a technological ``direct
linkage'' must be meaningful, available in a timely manner, and not
simply a referral to additional services at a later date or time. While
virtual services that do not meet this definition may be provided, they
must supplement the ``access'' to services provided by other means, and
cannot stand-alone as the only access provided through the one-stop
center.
Comments: Requesting clarification regarding what services would
qualify as ``individualized career services,'' a commenter agency urged
the Department to provide joint training with the one-stop partners to
carry out the intent of Sec. 652.206.
Department Response: ``Individualized career services'' are defined
in 20 CFR 678.430(b) (see Joint WIOA Final Rule) and include: (1)
Comprehensive and specialized assessments of the skill levels and
service needs of adults and dislocated workers; (2) development of an
individual employment plan; (3) group counseling; (4) individual
counseling; (5) career planning; (6) short-term pre-vocational
services; (7) internships and work experiences that are linked to
careers (as described in 20 CFR 680.180); (8) workforce preparation
activities; (9) financial literacy services (as described in sec.
129(b)(2)(D) of WIOA and 20 CFR 681.500); (10) out-of-area job search
assistance and relocation assistance; and (11) English language
acquisition and integrated education and training programs.
The Department has issued guidance with regard to the provision of
career services under the ES program in TEGL No. 03-15 (``Guidance on
Services Provided through the Adult and Dislocated Worker Program under
the Workforce Innovation and Opportunity Act (WIOA or Opportunity Act)
and Wagner Peyser, as Amended by WIOA, and Guidance for the Transition
to WIOA Services'') (see http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm); the Departments may provide
additional training, guidance, and technical assistance on this
subject.
Comments: One commenter asked under what conditions the Wagner-
Peyser Act program is no longer authorized for funding and/or
transferred to another funding source and if the ``line of
demarcation'' is when the participant initiates training.
Department Response: WIOA provides flexibility in what Wagner-
Peyser Act funds may be used and when referrals to other programs take
place; however, training is not an allowable
[[Page 56265]]
activity under sec. 7(a) funds. Coordination among programs including
the transfer or referral of participants, is a local decision.
Therefore, the referral process to other programs must generally be
determined at the local level consistent with State one-stop policies.
Section 652.207 How does a State meet the requirement for universal
access to services provided under the Wagner-Peyser Act?
Comments: A couple commenters recommended expanding the
characterization of virtual services to include facilitated self-help
services in which ES staff are proactive; for example, ES staff
initiating email invitations to consider applying for matched job
openings. One commenter disagreed with proposed Sec. Sec. 652.207 and
652.208's reference to services provided remotely or via online self-
service as ``virtual services.'' Stating that these are ``real
services'' and that staff-assisted services can also be provided via
online mechanisms, this commenter recommended that these provisions
instead reference provision of services in person, remotely, or via
other online mechanisms, whether staff-assisted or self-service.
Department Response: Facilitated self-help can be provided in
person or virtually. However, the Department emphasizes that as stated
in 20 CFR 678.305(d)(3) (see Joint WIOA Final Rule), services provided
through technology must be meaningful, available in a timely manner and
not simply a referral to additional services at a later date or time.
Additionally, while the Department agrees that ``virtual services'' are
actual services and that staff-assisted services may also be provided
via online mechanisms, to prevent potential confusion with a change in
this terminology, no change was made in the regulatory text.
Comments: A commenter recommended that Sec. 652.207(b)(1) provide
further detail regarding how States are required to serve individuals
with disabilities, such as a specific reference to WIOA sec. 188,
ensuring programmatic and physical accessibility of all services, and
other applicable sections of the Americans with Disabilities Act. This
commenter expressed concern that the delay in the issuance of sec. 188
nondiscrimination regulations could create possible misunderstandings
concerning States' legal obligations to serve individuals with
disabilities.
Department Response: The Department acknowledges the commenter's
concern about ensuring States are required to serve individuals with
disabilities and ensuring programmatic and physical accessibility of
all services. The ES program, like all services funded by the
Department, must be physically and programmatically accessible to
individuals with disabilities, as further described in 20 CFR 678.800
and 678.305(e) (see Joint WIOA Final Rule), WIOA sec. 188 at 29 CFR
part 38, and any subsequent Civil Rights Center regulations which
govern one-stop center accessibility.
Section 652.208 How are applicable career services related to the
methods of service delivery described in this part?
Comments: A commenter recommended that access points should be
defined in Sec. 652.208 as a means to link job participants back to
the one-stop center to ensure area-wide service.
Department Response: The Department has determined that the
commenter's suggested definition for ``access points'' would not
provide enough clarity and consistency in the intent of this term.
Instead, an applicable example of ``access points'' is contained in 20
CFR 678.310 (see Joint WIOA Final Rule), which states that, in addition
to the requirement for a physical center in each local area where
required one-stop partners must provide access to their programs,
services, and activities, the one-stop delivery system may also provide
access to programs, services, and activities through a network of
eligible one-stop partners that provide at least one or more of the
programs, services, and activities at a physical location or through an
electronically or technologically linked access point, such as a
library.
Comments: One commenter asked at which point registration must
occur for purposes of Wagner-Peyser Act accountability.
Department Response: The Department understands the commenter is
referring to the point performance accountability begins when they
asked about registration. For the core WIOA programs, of which the ES
system is one, performance accountability begins after a determination
of eligibility and an individual receives a service beyond a self-
service or information-only service consistent with 20 CFR 677.150(a)
(see Joint WIOA Final Rule) and Sec. 680.110. For the Wagner-Peyser
Act, which is a program that provides `universal access,' there are no
eligibility criteria. All job seekers meet the eligibility criteria of
the Wagner-Peyser Act, so for performance accountability purposes, it
is when an individual becomes a ``participant'' as discussed in part
651 and 20 CFR 677.150(a). An individual needs to receive a service
beyond self-service or information-only services either in person or
remotely through virtual services in order to be considered a
participant in 20 CFR 677.150(a).
Comments: Noting that proposed Sec. 652.208 appears to contradict
regulations in other sections by use of the word ``may,'' some
commenters urged the Department to ensure that regulations governing
how career services are delivered are consistent for all sections.
Department Response: The word ``may'' is used in Sec. 652.208 to
communicate that the States have different methods by which they may
choose to deliver services under the Wagner-Peyser Act. This is
consistent with the different options in delivering services under
other WIOA title I programs. Regarding the consistency between Wagner-
Peyser Act services and career services in other programs, the
Department notes that the primary function of the Wagner-Peyser Act
under sec. 7(a) is to provide labor exchange services to job seekers.
Labor exchange services are considered a type of career services under
WIOA, and other WIOA career services may be provided consistent with
the Wagner-Peyser Act regulations at Sec. 652.206, or through other
programs.
Section 652.209 What are the requirements under the Wagner-Peyser Act
for providing reemployment services and other activities to referred
unemployment insurance claimants?
Comments: Several commenters recommended that Sec. 652.209(b)(2)
should include developing and documenting reemployment plans as another
reemployment services activity provided by ES staff.
Some of these commenters stated that the reemployment plan is a
component of the Worker Profiling and Reemployment Services (WPRS) and
Reemployment and Eligibility Assessment (REA) programs, and consists of
an agreement between the claimant and the SWA that requires
participation by claimants in selected reemployment services.
Commenters observed that in those programs the failure of the claimant
to agree to, attend, or satisfactorily complete a plan may result in
the denial of benefits. A State agency asked for clarification
regarding how the use of Wagner-Peyser Act funds to support
reemployment and related services to UI claimants fits with the State's
REA and Reemployment Services and Eligibility Assessments (RESEA)
programs. In particular, this
[[Page 56266]]
commenter asked if a claimant starts with UI versus ES, whether the
State can assist them in a comprehensive center.
Department Response: Providing assistance to UI claimants in the
development of a reemployment plan is not just for claimants served by
the RESEA or the WPRS program, but can be for any unemployed worker,
and providing such assistance is an allowable Wagner-Peyser Act cost.
The Department plans to address these issues in guidance.
Wagner-Peyser Act funds may be used to support reemployment
services to UI claimants fits with the State's RESEA program, States
have considerable flexibility to effectively leverage these two funding
sources. The Department notes that not all States have RESEA programs
and RESEA only serves a small percentage of UI claimants. Therefore,
the Department expects that Wagner-Peyser Act funds will be used to
serve all UI claimants more broadly.
States have flexibility under UI and ES to provide services through
a comprehensive center. Two activities that can be funded with either
funding source are conducting eligibility assessments and reviewing
compliance with the State's work search requirements as a condition of
UI eligibility.
Comments: Two commenters disagreed with the proposed requirement
that reemployment services provided by State agencies must include
conducting eligibility assessments and referring UI claimants to and
providing application assistance for training and education resources
and programs. Stating that WIOA does not require including these
services as required reemployment services provided to UI claimants but
merely requires that when these services are provided, States must use
Wagner-Peyser Act sec. 7(a) funds to pay for them, these commenters
stated that proposed Sec. Sec. 652.209 and 652.210 go beyond what is
in the Wagner-Peyser Act and reduce States' flexibility in designing
reemployment services. Expressing concern that activities for UI
claimants should not pull ES staff from providing career services and
other MOU responsibilities, one commenter recommended that the 20 CFR
part 652, subpart C regulations emphasize that both basic career
services and reemployment services must be provided under ES.
Department Response: The approach the Department is taking is to
serve UI claimants and other unemployed workers consistent with the
approach that existed under WIA, and will be continued under WIOA.
States must have the capacity to deliver these services as part of the
Wagner-Peyser Act services. However, it is also the Department's intent
to provide States with flexibility to leverage UI funds, ES funds, and
RESEA funds, in States with RESEA programs, for these purposes and will
clarify that flexibility in future guidance.
Comments: One commenter requested clarification regarding
``referrals and application assistance'' for training and education
resources in proposed Sec. 652.209(b)(3), asking whether ES staff will
be required to provide application assistance for Pell grants and other
student assistance grants.
Department Response: The Department has determined that the
language in the Wagner-Peyser Act sec. 7(a)(3), as amended by sec.
305(b) of WIOA, regarding providing UI claimants with referrals to and
application assistance for training and education programs is clear; no
change was made in the regulatory text. Because training and education
program application processes vary in complexity, the Department
chooses not to be overly prescriptive, giving States flexibility with
regard to implementing this requirement.
Comments: Another commenter asked whether the Profiling
Reemployment Program (PREP) and the RESEA programs would satisfy the
requirement to provide ``reemployment services and other activities''
to UI claimants.
Department Response: The Department assumes the Profiling
Reemployment Program referenced in the comment is a State name for the
Federally required WPRS program. Neither the RESEA program nor the WPRS
program fully satisfies the requirement to provide reemployment
services and other activities to UC claimants. The RESEA program is a
relatively small temporary program that currently serves only a small
percentage of UI claimants and is not operational in all States. The
WPRS program is similarly small in scope. The Department will clarify
this issue in future guidance. No changes were made to the regulatory
text in response to these comments.
Comments: Stating that UI claimants are core customers of the ES,
one commenter expressed support for the proposed expanded definition of
``enhanced career services'' in the one-stop centers to include
assistance with UI claim filing and eligibility assessments. This
commenter discussed recent occurrences of UI claimants flooding one-
stop centers seeking help with claim filing because they are unable to
file claims remotely during periods of service disruption or seasonally
high unemployment.
Department Response: The Department notes the commenter's support
and no change was made to the regulatory text.
Section 652.210 What are the Wagner-Peyser Act's requirements for
administration of the work test, including eligibility assessments, as
appropriate, and assistance to unemployment insurance claimants?
Comments: Expressing concern that ``necessary guidance and
counseling'' is a very intensive service, a few commenters requested
clarification about what is required under this term, and recommended
that the Department make clear that using technology to provide
services remotely is allowable.
Department Response: The Department acknowledges the commenters'
concerns that ``necessary guidance and counseling'' can be an intensive
service. This particular section of the regulation only applies to UI
claimants ``requiring assistance,'' and, therefore, it is not the
entire universe of claimants. If the claimant ``requires assistance,''
he/she is likely to need staff-assisted services. The Department
intends to address this in future guidance.
Comments: One commenter asked who would administer the work test
and eligibility assessments and to what degree are States required to
assist UI claimants if they are a call center State. Another commenter
asked whether the services provided in the WPRS and the RESEA programs
would satisfy the requirements of Sec. 652.210.
Department Response: With regard to using Wagner-Peyser Act
resources to support the work test and eligibility assessments, the
Department is consistent with the approach that existed under WIA, and
will be continued under WIOA; this approach requires that States have
the capacity to deliver these services as part of the Wagner-Peyser Act
endorsement services program. It is also the Department's intent,
however, to provide States with flexibility to leverage UI funds,
Wagner-Peyser Act funds, and RESEA funds in States that operated RESEA
programs for these purposes, and will clarify that flexibility in
future guidance.
Neither the RESEA program nor the WPRS program fully satisfies the
requirement to provide reemployment services and other activities to UC
claimants. The RESEA program is a relatively small temporary program
that serves currently only a small percentage of UI claimants and is
not operational in
[[Page 56267]]
all States. The WPRS program is similarly small in scope. This will be
clarified in future guidance from the Department.
Section 652.211 What are State planning requirements under the Wagner-
Peyser Act?
The Department received only supportive comments on this section,
so no changes were made to the regulatory text.
Section 652.215 Do any provisions in the Workforce Innovation and
Opportunity Act change the requirement that State merit staff employees
must deliver services provided under the Wagner-Peyser Act?
Comments: Several commenters requested that the Department continue
to allow the exemptions for Massachusetts, Colorado, and Michigan from
the merit-based staffing requirements under sec. 3(a) of the Wagner-
Peyser Act that the Secretary of Labor granted prior to WIA. According
to some of these commenters, because the exemptions pre-date WIA, WIOA
does not specifically address or rescind the merit staff exemptions
granted under the Wagner-Peyser Act, and the Department's WIOA NPRM was
silent on the status of the exemptions, the existing State merit staff
exemptions for the demonstration sites remain in full effect. Some
commenters discussed how their one-stop operators chartered under the
existing exemption are performing well and have met or exceeded
performance standards.
One commenter said that in some of the Massachusetts local areas,
Wagner-Peyser Act services are provided by State employees (employed by
the State university) and that the State university meets all the
requirements of merit staff, although it is not part of the SWA. This
commenter recommended that the Department allow any State employees
currently providing Wagner-Peyser Act services whose employing agency
meets the definition of merit staff (5 CFR part 900) to be able to
continue providing those services. According to this commenter,
allowing these employees to continue providing Wagner-Peyser Act
services would meet all of the objectives associated with the
Department's State merit staffing requirement.
Two commenters cited a Department comparative evaluation of the
three merit staff exemption States that they asserted did not conclude
that alternative delivery was improved, and suggested that, if one of
the three demonstration States ceases using non-State government staff,
the temporary demonstration authority should lapse and not be further
authorized by the Department.
Several other commenters indicated that Sec. 652.215 should re-
affirm that no additional demonstrations of alternative delivery of
Wagner-Peyser Act services by non-State government employees should be
authorized. Another commenter requested that Sec. 652.215 specify
whether additional demonstrations would be authorized.
Some commenters urged the Department to remove the State merit
staffing requirement from the Final Rule or, at a minimum, allow for a
waiver whereby States can apply to ``opt out'' of the requirement.
These commenters stated that given that the ``core services'' under
WIA, the ``career services'' under WIOA and the ``employment services''
under the Wagner-Peyser Act are essentially the same services, there no
policy or economic rationale for maintaining a State merit staff
requirement in the ES program while city, county, and non-governmental
employees simultaneously provide the same services in the WIOA
programs. According to these commenters, the Michigan v. Herman court
ruling (81 F. Supp. 2nd 840 (W.D. Mich. 1998)) established that
continuing or eliminating the merit staffing policy was at the
discretion of the Department, meaning that the Department could modify
or eliminate the merit staffing policy simply by changing its
regulations.
Department Response: The Department acknowledges the varying
concerns and points of view regarding the State merit staffing
requirement. The benefits of merit staffing in promoting greater
consistency, efficiency, accountability, and transparency have been
well established, and the Department intends to continue Wagner-Peyser
Act merit staffing requirements under WIOA. To further clarify the
merit staffing requirement, the Department, as noted above, has
replaced the preamble language that was duplicated inadvertently in the
NPRM with the WIA regulatory text of Sec. 652.215, which is not
different substantively from the preamble description in the NPRM. The
only change in the regulatory text from that used in that section of
WIA is that in place of the original last sentence from WIA regulations
at Sec. 652.215, the Department has revised the last sentence to read:
``No additional exemptions, other than the ones previously authorized
under the Wagner-Peyser Act as amended by WIA, will be authorized.''
The Department does not consider this a substantive change from the
language in the WIA version of Sec. 652.215 since the last sentence in
the WIA regulations at Sec. 652.215 was that ``No additional
demonstrations will be authorized.''
Section 652.216 May the one-stop operator provide guidance to State
merit staff employees in accordance with the Wagner-Peyser Act?
Comments: In response to the Department's request for comments
about whether any other changes are needed to allow one-stop operators
to ensure the efficient and effective operations of the one-stop
center, some commenters urged that the purview of one-stop operators
over ES staff should not be expanded because it would undermine the
impartial and unbiased delivery of public labor exchange services to
job seekers and employers throughout the State. Some of these
commenters stated that just as UI staff members located in one-stop
centers are not under the authority of non-State government management,
so too should ES staff not be under the authority of private entity
one-stop operators. These commenters reasoned that undue influence or
pressure by non-State government operators could adversely affect the
integrity of the labor exchange process and undermine the integrity of
work test activities that are mandated under the Wagner-Peyser Act.
Some commenters expressed concerns that a mandatory competitive
process for choosing operators would increase the chance for private
entities as operators overstepping their span of control over State
agency staff from guidance to operational direction for ES programs.
These commenters urged the Department to make clear in the regulations
that the role of operators should not be management of other entity
program staff and especially of processes operated by State merit
staff.
Some commenters expressed support for this proposed section.
Department Response: The Department clarifies that the regulations
for this section did not expand the purview of one-stop operators over
State merit staff. These regulations are unchanged from before WIOA,
with the exception of an added reference to Sec. 678.500 (see Joint
WIOA Final Rule), which provides the requirements for the local MOU.
Regarding concern about the competitive process for choosing
operators and its impact on guidance to and oversight of State merit
staff, the Department reiterates that one-stop operators only may
provide State merit staff employees guidance that is programmatic in
nature regarding the provision of labor exchange services,
[[Page 56268]]
and such guidance must be consistent with the Wagner-Peyser Act, local
MOU, and collective bargaining agreements. All personnel matters remain
under the authority of the State agency. No changes were made to the
regulatory text in this section.
6. Subpart D--Workforce and Labor Market Information
Overarching Comments on Part 652, Subpart D
Comments: In the event wage record reporting requirements are
changed, one commenter emphasized the importance of a strong
educational effort tailored towards State agencies and employers on new
data elements and adapting data systems.
Department Response: The Department agrees with the need to provide
extensive education with regard to accessing wage record data and is
issuing guidance on this issue, and will provide necessary technical
assistance.
Comments: One commenter asked for clarification regarding the
Workforce Information Advisory Council's (WIAC) role under WIOA,
including whether the Council is involved in developing State Plans or
whether it is an independent activity.
Department Response: The WIAC will provide input and
recommendations regarding Unified and Combined State Plans, but it will
not be involved in developing them.
Comments: One commenter asked about the references to work with
other ``Federal agencies'' in Sec. Sec. 652.300 and 652.302; in
particular, to which agencies does this term refer and how will this
partnership be tied to the Federal WIOA process (if at all)?
Department Response: The Department has determined it is not
necessary to list the Federal and State agencies that participate in
the WLMIS, because it is inadvisable to create a list that may change
over time based on changes in agency data collection and data sharing
policies and procedures.
Comments: One commenter suggested that one area needing additional
work is comparing real-time LMI data with State and local area job
vacancy surveys to better understand labor market operations. This
commenter urged that Federal support must be continued at adequate
levels for key infrastructure groups, such as Analyst Resource Center
(ARC), Local Employment and Wage Information Systems (LEWIS), and
Projections Managing Partnership (PMP). Another commenter urged the
Department to require that improvements to the WLMIS include a more
effective and more widely used national job advertising system that
allows employers to quickly and easily post job openings to any and all
one-stop centers located in regions from which they would hire.
Department Response: The Department also acknowledges the
commenter's concern regarding adequate Federal funding; however,
funding levels are determined by Congress and cannot be resolved
through this regulatory process.
The WLMIS already includes or directs employers and job seekers to
some job-posting tools, such as the National Labor Exchange (NLX),
which allows employers to request that their job openings be posted
nationwide.
Comments: One commenter recommended that UI records be available to
NFJP grantees.
Department Response: The Department is reviewing the needs for wage
record access by a wide array of public workforce system grantees and
is working with States on mechanisms to provide aggregate performance
data, including through systems designed to facilitate data sharing of
wage record information.
Section 652.300 What role does the Secretary of Labor have concerning
the Workforce and Labor Market Information System?
Comments: Expressing concerns about the inability to confirm job
matches in neighboring States, one commenter stated that accuracy on
WIOA performance indicators would be greatly improved if the Department
encouraged and supported sharing of UI data across State lines. This
commenter encouraged a Department-led initiative for data exchange in
multi-State economic and workforce regions. Similarly, a commenter
encouraged the Department to facilitate a timely process for Wage
Record Interchange System (WRIS) renegotiation to allow States to more
easily exchange wage records across State lines and improve overall
performance. The letter also urged the Departments of Labor and
Education to issue joint guidance on how to match administrative data
from education, training, and wage systems while maintaining important
privacy protections, such as those provided under the Family
Educational Rights and Privacy Act (FERPA) and UI confidentiality
regulations.
Department Response: The Department is working with States on
improved mechanisms to provide wage data through systems designed to
facilitate data sharing of wage record information. The Department also
is exploring the feasibility of providing cross-State data to enable
States to produce better labor market information, such as labor shed
analysis in regions that cross State borders.
The Departments of Labor and Education are issuing joint guidance
with regard to use of wage data for performance in the context of the
confidentiality requirements for the use UI wage record data and
education data under FERPA.
Comments: One commenter expressed support for the proposed language
at Sec. 652.300 that codified the WLMI requirements in WIOA and
created a platform for their implementation. Regarding the codification
of the Secretary's duties related to ``continuous improvement'' of the
WLMIS, a commenter stated that there is no clear definition of
``continuous improvement'' and asked how the Secretary will determine
what is considered an improvement and how much funding will be made
available to provide measurable improvement of local area LMI. Another
commenter similarly stated the importance that adequate funding be
maintained for LMI programs to produce the information required to
support WIOA under part 652, subpart D.
Department Response: The Department understands the importance of
identifying what is considered ``continuous improvement'' as it
pertains to the WLMIS. As a result, Sec. 652.300(a) has been updated
to reflect that, ``The Secretary will consult with the Workforce
Information Advisory Council on these matters and consider the
council's recommendations.'' This regulatory text contemplates using
the WIAC consultation process to inform the continuous improvement of
the WLMIS. The Department also acknowledges the comments regarding
funding; however, funding levels are determined by Congress and cannot
be resolved through this regulatory process.
Comments: A commenter suggested that, in Sec. 652.300(b), the
Department add a reference to or text from 29 U.S.C. 49l-2(c)
concerning the Secretary's responsibility to prepare a 2-year plan for
the WLMIS.
Department Response: The Final Rule has been updated to reflect
this responsibility, adding the following language: ``Prepare a 2-year
plan for the workforce and labor market information system, as
described in the Wagner-Peyser Act sec. 15(c), as amended by WIOA sec.
308(d).''
[[Page 56269]]
Section 652.301 What are wage records for purposes of the Wagner-Peyser
Act?
Comments: In objecting to the proposed changes in the wage record
confidentiality provisions at 20 CFR part 603, a couple of commenters
explained that providing wage records to educational entities creates
too many opportunities for mistaken use or misuse of UI confidential
information to be of benefit to the State's need for efficiency and
integrity in performance reporting. These commenters asserted that the
inclusion of the Federal Employer Identification Number (FEIN) and
availability of employer name and address only creates the opportunity
for training providers to misuse that information as part of direct
marketing campaigns. These commenters asserted that FEIN data elements
are not essential to the calculation of common measures, because a
unique identifier for each employer could be a State UI account number
instead. Moreover, these commenters suggested that the only reason to
include a FEIN as part of a State wage record definition is the
capacity to integrate wage records into a national database.
Department Response: The Department is committed to ensuring the
confidentiality of UI wage data. The regulations in 20 CFR part 603
establish the permissible disclosures and allowable uses of the data
and include non-disclosure requirements. These requirements must be
embedded in the MOU between the State agency that collects wage record
data and the entity that receives the data in accordance with the
regulation. The Department notes that many public educational
institutions were already able to access wage record data and,
therefore, does not consider the more explicit identification of public
institutions of higher education as a ``public official'' to be a
significant expansion of entities that are permitted to receive the
data.
With regard to the concern for the use of the FEIN, the commenter
is correct that the FEIN is not necessary for performance purposes; it
has the potential to be valuable in the context of creating labor
market information. No changes were made to the regulatory text in
response to these comments.
Section 652.302 How do the Secretary of Labor's responsibilities
described in this part apply to State wage records?
Standardizing Definitions of Wage Information Elements
Comments: Commenting that standard definitions would help wage
records be more consistent across States, a few commenters expressed
support for the proposed language at Sec. 652.302 that directs the
Department, in consultation with other Federal agencies, States, and
the Workforce Information Advisory Council, to develop standard
definitions for wage records and help improve their collection and
reporting. A commenter stated that standard definitions are the most
critical potential contribution of any Federal regulations, both from
the perspective of employers (for whom diverse definitions create
complexity in recordkeeping systems) and for the national LMI system,
which also faces complexity and uncertainty if core elements are
defined differently by States. Some commenters noted the difficulty of
standardizing definitions, emphasizing the need for substantial and
ongoing outreach, guidance, training, and audit support for employers
to implement them correctly.
This commenter also discussed how enhancement of wage records could
involve considerable costs to update the systems, while one other
commenter indicated that there could be efficiencies, costs savings,
and reduction in reporting burden if systems used by States were
standardized, rather than needing to contain customized elements for
each State. Another commenter added that standard definitions would
require changes to Federal law and/or regulations, which would likely
necessitate changes to State laws and/or regulations.
Several commenters expressed contrasting views on the workload
burden of wage record changes on both State workforce agencies and
employers, some saying it would reduce the burden and others saying it
would increase it and also inquiring on the source of funds for the
costs incurred to make such changes.
Department Response: The Department acknowledges the positive
comments concerning standardization of data definitions for wage record
data and improved process for collection of the data. The Department
notes that moving to standardized definitions and new reporting
requirements for wage record data will involve some burden on
employers, payroll associations and other third-party administrators,
and States, and it will also require resources to support it.
Therefore, the Department is committed to approaching this effort in a
highly inclusive and consultative manner that recognizes the realities
of the changes that will need to be made by all the impacted
stakeholders and the resources required to accomplish the change. The
Workforce Information Advisory Council's work may also help inform this
effort. Noting that there are significant benefits to achieving
standardization of data definitions and reporting processes, the
Department made no changes to regulatory text in response to these
comments.
New Wage Information Data Elements
Comments: While acknowledging the potential benefits of receiving
additional information through the wage record reporting process, some
commenters urged the Department to consider the costs and potential
burden of any change to wage record reporting for both employers and
State agencies. These commenters and others suggested that increased
data elements could result in missing or inaccurate data resulting in
costs for State agencies to follow-up on rejected wage reports.
When considering additional data elements, one commenter cautioned
that the Department should examine whether certain data are already
being provided in some other format (e.g., new hire reporting) such
that requiring as part of quarterly wage records could create
duplicative reporting requirements.
Two commenters expressed concerns that more onerous reporting
requirements would decrease timely filing compliance that could make it
more difficult to set up timely and accurate initial monetary
determinations, which could lead to an increase in improper payments.
One commenter asked for clarification regarding whether new data
that might be added to wage record reports would be governed by
different confidentiality standards (other than 20 CFR part 603).
Another commenter urged the Department to include all impacted
stakeholders in the review of the costs and benefits of enhancing wage
records. Similarly, one commenter encouraged the Department to seek
employer input on any changes to the wage records process and to add
employers to the list of stakeholders with which the Secretary is
required to consult included in Sec. 652.302(b).
Department Response: The language in the preamble of the NPRM with
regard to the potential for adding data elements to wage records simply
signaled the Department's intent to continue exploration of adding new
data elements to wage records to support improved labor market
information. It acknowledged the need for continued work with the
Workforce Information Advisory Council and consultation with the full
range of stakeholders. There also was an acknowledgement that to
implement a requirement for new data elements would require
legislation.
[[Page 56270]]
There is no regulatory text on this issue; therefore, a change is not
necessary.
Section 652.303 How do the requirements of part 603 of this chapter
apply to wage records?
The Department received only supportive comments on this section.
No changes were made to the regulatory text in this section.
O. Part 653--Services of the Wagner-Peyser Act Employment Service
In subparts B and F, the Department is implementing the WIOA title
III amendments to the Wagner-Peyser Act, as well as streamlining and
updating certain sections to eliminate duplicative and obsolete
provisions. The Department is also updating the regulations to maintain
consistency with the Judge Richey Court Order (``Richey Order''), NAACP
v. Brennan, 1974 WL 229, at *7, as it pertains to services to migrant
and seasonal farmworkers.
1. Subpart B--Services for Migrant and Seasonal Farmworkers
Section 653.102 Job Information
The Department made several changes to Sec. 653.102, including a
requirement that State Workforce Agencies (SWAs) make job order
information conspicuous and available to migrant and seasonal
farmworkers (MSFWs) ``. . . by all reasonable means'' rather than ``in
all local offices'' to reflect the obligation of State agencies to
contact MSFWs who are not being reached by the normal intake activities
including at their working, living, or gathering areas to explain the
services available at the local one-stop center.
Comments: One commenter suggested the Department add a bulleted
list to provide clarification on what is meant by ``all reasonable
means.''
Department Response: In order to maintain flexibility for the
Department and SWAs to continue to serve MSFWs, the Department will
provide guidance on what is meant by making job order information
conspicuous and available by ``all reasonable means.'' No changes were
made to the regulatory text in response to this comment.
Section 653.103 Process for Migrant and Seasonal Farmworkers To
Participate in Workforce Development Activities
Comments: One commenter asked for clarification regarding the Sec.
653.103(b) requirement for SWAs to ensure MSFWs who are English
Language Learners (ELLs) receive, free of charge, language assistance
necessary to afford them meaningful access to the programs, services,
and information offered by one-stop centers. Specifically, this
commenter asked whether this would require access to interpreters or
that an interpretive language phone line should be made available.
Department Response: SWAs must satisfy this requirement by making
interpretive language phone lines available and free of charge to the
individual who needs or requests such services. See Executive Order
13166 (``Improving Access to Services for Persons with Limited English
Proficiency'') and TEGL No. 26-02 (``Publication of Revised Guidance
Regarding the Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient (LEP) Persons'')
for further guidance.
Section 653.107 Outreach and Agricultural Outreach Plan
Comments: One commenter urged the Department to ensure all State
Monitor Advocate (SMA) and outreach staff full-time equivalent (FTE)
efforts are exclusively dedicated to MSFW services as detailed in the
Agricultural Outreach Plan (AOP). To ensure MSFWs receive dedicated
staff effort and the corresponding benefits, this commenter suggested
requiring States to track personnel time via payroll timesheets and
report that time to the Department to compare actual MSFW time with the
FTE specified in the AOP.
Department Response: The regulations at Sec. 653.108(d) provide
that the SMA must work full-time on monitor advocate functions. It
further requires that any State that proposes less than full-time staff
dedication, demonstrate to its Regional Administrator that the SMA
function can be effectively fulfilled with part-time staffing. As such,
Sec. 653.108(a) explains ``The State Administrator has overall
responsibility for State Workforce Agency self-monitoring.'' Such
regulations are meant to ensure the SMA is devoted to all appropriate
activities on a full-time basis. Furthermore, the regulations at Sec.
653.107(a)(4) require that the 20 States with the highest estimated
year-round MSFW activity to assign full-time, year-round staff to
conduct outreach duties. The assignment of staff must be made in
accordance with State merit staff requirements. The Secretary will
identify the 20 States with the highest estimated year-round MSFW
activity in guidance. These same regulations require the remainder of
the States to hire year-round part-time outreach staff and, during
periods of the highest MSFW activity, to hire full-time outreach staff.
The Department does not deem it necessary for a SWA to track dedicated
MSFW personnel time via payroll timesheets and report that time to the
Department. In light of the State Administrator's requirement for self-
monitoring, however, if an individual knows the State Administrator is
not requiring these provisions, and a formal variance has not been
granted for SMA part-time status, the individual must inform the
Regional Administrator and the Regional Monitor Advocate (RMA) for
appropriate action.
Furthermore, the provision of employment and training services to
MSFWs is the responsibility of the SWA through its local one-stop
centers, and is not exclusively the responsibility of the SMA or the
outreach workers. This is made explicit through the mandates of the
Richey Order, where it states, ``The Federal and State monitoring
system reviews on a continuous basis the services provided to MSFWs, as
well as the benefits and protections to MSFWs, the functioning of the
Complaint System, and the compliance of State ES offices with all
applicable laws, regulations, and directives.''
Section 653.107(a) State Workforce Agency Outreach Responsibilities
Comments: Several commenters supported the incorporation of the
Richey Order language to ``employ an adequate number of outreach
workers'' into Sec. 653.107(a)(1). Although the language in proposed
Sec. 653.107(a)(1) and (4) articulates an expectation for the SWA to
assign outreach staff, other commenters expressed concern that the
language does not provide a threshold, which these commenters explain
could allow SWAs the ability to reduce staffing levels below one MSFW
outreach FTE per significant MSFW office due to reduced availability of
resources. For this reason, the commenters requested the Department
provide clarification on what is meant by the term ``adequate.''
Department Response: The Department interprets the term,
``adequate'' to mean a sufficient number of staff who must locate and
contact MSFWs who are not being reached by the normal intake activities
conducted by the ES offices. The Department does not intend the term
``adequate'' to mean that a SWA should reduce the number of outreach
workers hired--if anything, a SWA may need to bring more outreach
workers on board to meet the needs of MSFWs in the State or work
collaboratively with partners (pursuant to collaborative agreements) to
ensure satisfactory outreach activities are satisfied. The Department
acknowledges that each State allocates Wagner-Peyser
[[Page 56271]]
Act funds in accordance with its respective needs in serving MSFWs. No
change was made to regulatory text in response to these comments.
Comments: One commenter asked whether the provision to hire an
adequate number of outreach workers means that all States, no matter
what their MSFW population, must have outreach workers. This commenter
asserted that this would be difficult in a State where MSFW activity is
low and concentrated for a short duration of time in one area of the
State, but then is spread out in isolated remote areas far from each
other. Stating that interns make good outreach workers, this commenter
asked if interns could meet the criteria for hiring adequate outreach
workers.
Another commenter requested clarification regarding appropriate
funding for year-round part-time staff and specifically whether Wagner-
Peyser Act funds would pay for it under career services. This commenter
also asked that the Department allow non-top 20 States to use
discretion as to what times of year in their regions would be
appropriate to hire outreach workers, if at all.
Department Response: All States (significant and non-significant)
are required to hire outreach workers to locate and contact MSFWs who
are not being reached by the normal intake activities conducted by the
ES offices. Each non-significant State must determine, through fact-
based research, which time of year hosts the peak number of MSFWs, and
the State must hire full-time outreach staff during such periods.
Wagner-Peyser Act funds must be used to hire such outreach workers.
Correspondingly, the Department notes Sec. 653.107(a)(3), outlines the
provisions for hiring outreach workers. Under these provisions, the
SWAs must seek to hire qualified outreach workers through merit system
procedures. Because interns are almost never hired according to merit
system procedures, hiring interns would generally not meet the criteria
of hiring adequate outreach workers.
Comments: One commenter recommended revising the first sentence of
Sec. 653.107(a)(1) to read, ``Each State agency must employ an
adequate number of outreach workers to conduct MSFW outreach in their
service area local ES offices that serve a significant number of
MSFWs.'' This commenter reasoned the Richey Order mandated State
agencies employ an adequate number of staff and assign them to ES
offices that serve a significant number of MSFW workers.
Department Response: The Department has determined the language at
Sec. 653.107(a)(1) requiring each SWA to employ an adequate number of
outreach workers to conduct outreach in its service areas is sufficient
and does not need further clarification. As required in the Richey
Order, it is the Department's responsibility to deliver to MSFWs on a
non-discriminatory basis all services, benefits, and protections
authorized by law and required by Department regulations, to extend
coverage of local job order information to rural areas, and to provide
MSFWs with assistance to enable them to use such information on a non-
discriminatory basis.
Comments: Numerous commenters expressed support for the Sec.
653.107(a)(1) language that SWA Administrators must ensure SMAs and
outreach workers coordinate their outreach efforts with WIOA sec. 167
(NFJP) grantees, public and private community service agencies, and
MSFW groups. One of these commenters asserted that currently
coordination is inconsistent and varies widely.
Department Response: The Department agrees that outreach workers'
coordination with NFJP grantees is essential and that requirement is
maintained in Sec. 653.107(a)(1). The Department has also changed the
word ``should'' to ``must'' in Sec. 653.107(a)(2)(i) and (ii), to
clarify that these aspects of SWAs' outreach efforts are required.
Comments: One commenter noted the text at proposed Sec.
653.107(a)(3) appeared to be missing part of the last sentence
(paragraph (a)(3)(iii)) because it dropped off with the word ``and''
following paragraphs (a)(3)(i) and (ii). This commenter asked if the
intent was to remove the optional qualification of being racially or
ethnically representative of the MSFWs in the service area and
recommended that the Department maintain the ``and/or'' in the current
regulatory language so that an outreach worker does not have to be both
from an MSFW background and bilingual.
Department Response: Text in Sec. 653.107(a)(3)(iii) was
accidentally omitted from the NPRM. The text should read, ``Who are
racially or ethnically representative of the MSFWs in the service
area.'' The Department has included this language (which is taken
verbatim from the existing regulation and has not been altered) in the
Final Rule. Additionally, the Department concurs with the commenters'
recommendation to maintain ``and/or'' to allow for hiring outreach
workers who may have one or more of the required characteristics but
are not required to have all three. The regulatory text reflects these
changes.
Comments: One commenter stated proposed Sec. 653.107(a)(4) would
strengthen the obligation of SWAs to hire dedicated MSFW outreach staff
in part by eliminating the ability of a Regional Administrator to
permit a SWA to deviate from this outreach-staffing obligation. In
contrast, a different commenter objected to the proposed changes in
this provision, stating States have limited resources and hiring
outreach workers is no guarantee the State will achieve the goal
discussed in the preamble to ``ensure that States have a means to
contact MSFWs who are not being reached by the normal intake activities
conducted by the local ES offices.'' Because States are required to
submit outreach plans annually, this commenter suggested that it should
be sufficient to meet the intent of WIOA if the State submits an
acceptable plan for providing the needed services given its particular
circumstances and conditions, without the need to hire additional
workers for this purpose.
Department Response: Section 653.107(a)(4) states that a SWA may
not need to hire additional outreach workers if it is already meeting
the needs of MSFWs in the State. Additionally, the Department does not
consider the AOP to ``be sufficient to meet the intent of WIOA.'' As is
described at Sec. 653.107(d)(2)(iii), the AOP requires a SWA to,
``Describe the State Workforce Agency's proposed outreach activities
including strategies on how to contact MSFWs who are not being reached
by the normal intake activities conducted by the ES offices'' and--as
stated at Sec. 653.107(d)(2)(iv)--to, ``[d]escribe the activities
planned for providing the full range of employment and training
services to the agricultural community, both MSFWs and agricultural
employers, through the one-stop centers.'' Such activities are
anticipated activities/plans. The mechanism in place to ensure a State
is meeting its outreach goals is self-monitoring and periodic reviews
conducted by State, Regional, and the National Monitor Advocate, as
discussed in Sec. 653.108.
Section 653.107(a)(5) provides a requirement that a SWA must
publicize the availability of ES ``through such means as newspaper and
electronic media publicity,'' and one commenter recommended the
Department add ``social media'' as another way to publicize because it
is the widest possible method to distribute information. Another
commenter asked
[[Page 56272]]
whether it could use Wagner-Peyser Act funds to publicize the
availability of ES.
Department Response: The Department considers social media to be
included in electronic media. The Department plans to issue guidance on
publicizing employment services and appropriate funding sources.
Comments: Regarding proposed Sec. 653.107(a)(3), one commenter
recommended that outreach staff qualifications include bilingual staff
to serve monolingual farmworkers, staff to concentrate in rural
agricultural areas, and to carry additional marketing/promotional
materials to attract farmworkers to the job centers.
Department Response: The Department notes that Sec. 653.107(a)(3)
requires SWAs to hire and assign staff through merit system procedures,
who are either: from MSFW backgrounds and/or speak a language common
among MSFWs in the State and/or are racially or ethnically
representative of the MSFWs in the service area. Additionally, Sec.
653.107(a)(4) states, ``All outreach staff must be multilingual if
warranted by the characteristics of the MSFW population in the State,
and must spend a majority of their time in the field.'' The Department
also notes it will offer suggestions for outreach worker materials to
provide MSFWs via technical assistance. No changes have been made in
regulatory text in response to this comment.
Comments: In Sec. 653.107(a)(4), commenters recommended the
Department implement a minimum threshold of at least 50 percent MSFW
outreach staff total hours that they must spend at places where MSFWs
live, work, and congregate (outside of the outreach staff's local
office). Stating that this is particularly important in the top 20
States with the highest estimated year-round MSFW activity, these
commenters reasoned that due to strained resources, local managers
increasingly rely on MSFW outreach staff to backfill for other
positions that may reduce MSFW outreach staff's ability to reach MSFWs
effectively.
Department Response: The Department notes the requirement at Sec.
653.107(a)(4) whereby, ``The 20 States with the highest estimated year-
round MSFW activity, as identified in guidance issued by the Secretary,
must assign, in accordance with State merit staff requirements, full-
time, year-round staff to conduct outreach duties.'' Outreach duties
mean those duties identified at Sec. 653.107(b) and include traveling
to locations where MSFWs congregate, as well as conducting follow-up
activities. This means outreach workers will need to conduct outreach
activities at the areas where MSFWs live, work, and congregate, as well
as from the local ES office. When outreach workers are hired as full-
time, year-round staff, they must dedicate all such time to outreach
activities described at Sec. 653.107(b). Outreach workers in States
which are not classified as the top 20 significant States, who are
hired as year round part-time outreach workers, may dedicate part of
their time to other activities as required by the ES office so long as
they are satisfying their outreach activities pursuant to Sec.
653.107(b) on a part-time basis. No changes were made to regulatory
text in response to these comments.
Section 653.107(b) Outreach Worker's Responsibilities
Comments: Many commenters expressed support for the inclusion of
training on sexual harassment in Sec. 653.107(b)(7). These commenters
also suggested the Department consider expanding this provision to
include similar language about human sexual coercion, assault, and
human trafficking. One commenter recommended the Department include a
provision requiring outreach workers provide MSFWs affected by sexual
harassment with information about the full range of services available
to them in the community, including sexual assault services, the U.S.
Equal Employment Opportunity Commission (EEOC), law enforcement, and
legal services. This commenter also suggested the regulatory text
require outreach workers who become aware of possible sexual harassment
to refer the information to the EEOC or other appropriate enforcement
agency.
Department Response: The Department agrees that in addition to
training outreach workers on how to identify and refer possible
incidents of sexual harassment, training on similar issues such as
sexual coercion, assault, and human trafficking is also key in helping
to connect victims with appropriate resources and support networks. The
Department has added such language to the regulatory text at Sec.
653.107(b)(7). Regarding the suggestion for the Department to require
outreach workers who become aware of possible violations to refer the
information to the appropriate enforcement agencies, the Department
notes that outreach workers' referral responsibilities are discussed at
Sec. 653.107(b)(6).
Comments: Two commenters objected to the NPRM's deletion of the
requirement that ``significant MSFW local offices should conduct
especially vigorous outreach in their service areas,'' expressing
concern that without the word ``vigorous'' some State agency employees
might interpret this as not being a priority or a requirement.
Department Response: The Department's intention is not to signal a
reduction in the required intensity of outreach activities because all
outreach efforts must be vigorous. However, because commenters suggest
the omission could be interpreted to make such a statement, the
Department has decided to include the paragraph in the Final Rule text
at Sec. 653.107(b)(11).
Comments: One commenter suggested the requirement that outreach
workers must explain to MSFWs information on other organizations
serving MSFWs in their area (Sec. 653.107(b)(1)(iii)), and the
regulatory text should include ``information on other organizations
serving MSFWs in their intended area of employment or permanent home.''
Department Response: The Department agrees that such information
should be provided when requested. Such information may be provided as
a follow-up activity with an MSFW who has requested it. No change was
made to the regulatory text in response to this comment.
Comments: One commenter stated the proposed Sec. 653.107(b)(2)
prohibition on outreach workers entering an employer's property or work
area without permission of the employer, owner, or farm labor
contractor should be reviewed. The commenter explained that outreach
workers can enter workers' living quarters if they are doing an
inspection for H-2A employers as part of the field inspection prior to
50 percent of the contract with the employer.
Department Response: The Department notes that SWA staff may enter
MSFW working and housing areas during a field check pursuant to Sec.
653.503. Furthermore, Sec. 653.503(a) requires the SWA to notify an
employer in writing of such field checks.
Comments: Also related to outreach worker access to employer sites,
one commenter recommended the Department revise Sec. 653.107(b)(2) to
secure access rights of SWA outreach workers and to provide for a
reasonable right of access for nonprofit organization outreach workers
at employer-owned or employer-controlled housing. This commenter
explained that the limitations on workers' right of access to conduct
outreach proposed in the NPRM are more onerous than the 1980
regulations because the proposed language would expand the limitation
from entering ``work areas'' to ``an employer's property,'' which this
[[Page 56273]]
commenter stated would commonly include employer-controlled MSFW
housing. The commenter concluded the Department offered no rationale
for this substantial revision of the outreach worker access regulation
in the NPRM, explaining that entry by outreach personnel onto employer
property that is not a work area, such as MSFW housing and gathering
areas, does not implicate the considerations that justify obtaining
permission to enter work areas. The commenter proposed several reasons
to support the need for expanded outreach worker right of access,
including the following:
Farmworkers in employer-controlled housing are uniquely
vulnerable to exploitation and abuse.
The law is unclear on the right of access by service
providers
Employers impede outreach workers' access to MSFWs,
including via threats of violence, threats of arrest and prosecution
and arrest.
Ensuring nonprofit health, education, social, and legal
service providers the right of access to MSFWs would directly further
the central purposes of the Wagner-Peyser Act and WIOA.
In addition, based on the Department's justification of requiring
``permission of the employer, owner, or farm labor contractor,'' the
commenter suggested that the Department should add the phrase ``as
applicable'' after the first use of the word ``without'' in Sec.
653.107(b)(2). Incorporating all of its comments discussed immediately
above, the commenter recommended specific language for Sec.
653.107(b)(2), which it asserted appropriately balances the rights and
responsibilities of employers, property owners, farm labor contractors,
and SWAs.
Department Response: The Department notes that SWA staff may access
MSFWs at their working and living areas through field checks and site
visits. However, the Department has determined it is beyond the scope
of this regulation to secure ``reasonable'' access rights for nonprofit
organization outreach workers to enter employer-owned or employer-
controlled housing. The Department additionally notes its intention was
not to further limit outreach worker access to MSFWs; this was
unintended. The Department has changed Sec. 653.107(b)(2) to use the
original language as included in the existing regulation at 20 CFR
653.107(j)(1)(v), except that the word ``shall'' is replaced with
``must'' throughout.
Comments: A commenter also urged the Department to clarify that, if
a parcel of land or property serves as both a worksite/work area and
housing for MSFWs, outreach personnel do not need to obtain permission
from workers to enter the housing portion of such a parcel or property.
Department Response: Section 653.107(b)(2) requires outreach
workers to obtain permission from workers before entering their living
area and that they must comply with appropriate State laws regarding
access.
Comments: In response to proposed Sec. 653.107(b)(8), one
commenter recommended the Department allow for MSFW outreach records to
be maintained or reproduced by the State's official data collection
system to avoid duplication of data entry.
Department Response: The Department has determined that State
agencies may maintain and reproduce outreach records as they deem
appropriate and in accordance with relevant records retention laws,
since such laws vary by State.
Section 653.107(c) ES Office Outreach Responsibilities
Comments: One commenter recommended the Department exempt non-
significant ES offices from the requirement to file with the SMA a
monthly summary report of outreach efforts because they do not normally
conduct outreach and the requirement would impose an unnecessary burden
on those offices. Another commenter requested clarification on Sec.
653.107(c) regarding whether all States must establish outreach
programs, or that only those top 20 States with significant MSFW
populations establish an outreach program and their local ES office
managers must report on outreach activities to the SMA.
Department Response: The Department will not provide an exemption
for non-significant ES offices from submitting the monthly summary
report because it is important for the SMA to know what efforts all ES
offices are making to locate and contact MSFWs. However, the Department
notes that summary reports must be submitted for months when outreach
is conducted. The Department concluded that maintaining this
requirement as proposed will not impose an unnecessary burden on
offices any more than what was already required at 20 CFR 653.107(n).
Section 653.107(d) State Agricultural Outreach Plan (AOP)
Comments: Several commenters urged the Department to incorporate
language requiring SWAs consult with National Farmworker Jobs Program
(NFJP) grantees or give NFJP grantees the opportunity to contribute to
the AOP. One of these commenters stated that because these plans are
far more important now, they should be treated with that significance.
A commenter stated that the NFJP grantee community was required to
review and comment on these plans under prior legislation.
Department Response: The Department concurs with commenters that
SWAs must consult NFJP grantees and that the grantees have the
opportunity to contribute to AOPs. The Department has changed paragraph
(d)(3) to incorporate the language in the existing regulation at 20 CFR
653.107(d) back into the Final Rule. The Department made nonsubstantive
updating changes to that language to make it consistent with the Final
Rule. The Department also replaced the words ``Regional Administrator''
with ``the Department'' to be consistent with the new State Plan
submission process described in 20 CFR part 676 (see Joint WIOA Final
Rule). AOPs will now be submitted to the Department through a portal,
along with the State Plans.
Section 653.108 State Workforce Agency and State Monitor Advocate
Responsibilities
Comments: Two commenters expressed support for the removal of the
requirement for SMAs to work in the State central office.
One commenter sought clarification on the Sec. 653.108(g)(1)
requirement whereby the SMA must conduct an ``ongoing review'' of the
delivery of services and protections afforded by ES regulations to
MSFWs by the SWA and local ES offices. Further, this commenter asked
whether this requirement would apply to every State or to the top 20
designated States and whether the SMA must review each local ES office.
Asking what ``ongoing review'' would specifically require, this
commenter urged the Department to clarify which local offices must be
reviewed annually, biannually, or less frequently.
Department Response: All SMAs are required to conduct the duties
set forth in Sec. 653.108--which apply to SMAs in both significant and
non-significant States. This includes reviewing the data and reports
submitted by local ES offices as they are submitted to the SWA. The
Department further notes Sec. 653.108(g)(3), which requires that all
SWAs, ``Ensure all significant MSFW one-stop centers not reviewed
onsite by Federal staff, are reviewed at least once per year by State
staff.'' Therefore, all significant offices must be reviewed at least
one time per year if they are not reviewed by Federal staff.
[[Page 56274]]
Comments: One commenter suggested the Department revise Sec.
653.108(i) to require local ES office managers transmit copies of the
entire Complaint System log, rather than transmitting only copies of
logs of MSFW complaints to be consistent with Sec. 658.410 and because
this information is required for reporting.
Department Response: The Department supports the suggestion and has
revised the regulatory text at Sec. 653.108(i) to require local ES
office managers to transmit copies of the entire Complaint System log
as required in Sec. 658.140. Such a change will maintain consistency,
as proposed by the commenter.
Comments: Regarding proposed Sec. 653.108(k) and (l), several
commenters expressed support for strengthening of the relationship
between SMAs and NJFP grantees and coordinating their service delivery.
Some commenters suggested the Department provide guidelines for the
Memorandum of Understanding (MOU), as well as additional guidance and
training for SMAs and NFJP grantees on their respective relationships,
roles, and responsibilities. One commenter recommended the creation of
an evaluation tool or feedback mechanism for NFJP grantees and the SMA.
Department Response: The Department will issue guidance for the
Memorandum of Understanding (MOU) between the SMA and NFJP grantees and
additional guidance and training for the SMA and NFJP grantees on their
respective relationships, roles, and responsibilities.
Additionally, paragraph (1) has been changed to clarify the
requirement to establish an MOU. It now makes clear that an MOU must be
established between the SMA and the NFJP grantees, and the SMA may
establish an MOU with the other organizations serving farmworkers.
Comments: Proposed Sec. 653.108(s) required that the SMA prepare
an Annual Summary, and some commenters suggested the Department require
the summary be provided to NFJP grantees along with any service-related
findings because the guidelines for the Annual Summary includes
instances where the SMA would be summarizing and commenting on NFJP
service delivery both explicitly (Sec. 653.108(s)(7)) and implicitly
where NFJP is part of the one-stop center and the broader ES system.
Another commenter similarly recommended the Department require the SMA
to make the Annual Summary available to grantees. The commenter also
suggested the Department require the SMA to provide grantees a template
of the report in advance to ensure grantees collect pertinent
information throughout the program year. Another commenter asked if the
Annual Summary for the MSFW program could be included in the annual
performance report required under WIOA sec. 116(d).
Department Response: While the Department fully supports increasing
collaboration between the SMA and the NFJP grantees, it has determined
that sharing the Annual Summary with the NFJP grantee is not required.
Because some information contained in the Annual Summary may be for
internal (State/Federal) government use only, the Department does not
deem it in the best interest of the SWA to share such information.
Regarding the suggestion for the Department to require the SMA to
provide grantees a template of the Annual Summary in advance to ensure
grantees collect pertinent information throughout the program year, the
Department notes that such data collection may vary from State to State
and may depend upon each State's MOU with the NFJP grantee. Therefore,
the Department recommends each SMA come to an agreement with the NFJP
grantee (through the MOU) about what data must be shared or collected.
Additionally, the Department has determined the Annual Summary should
not be submitted through the annual performance report process pursuant
to WIOA sec. 116(d) because Sec. 653.108(s) procedures will expedite
the review process for those who need to analyze the reports.
Section 653.109 Data Collection and Performance Accountability Measures
Comments: A couple commenters recommended the Department revise the
references to the pre-WIOA performance indicators. Another commenter
noted that some of the proposed performance indicators in Sec. 653.109
are not in line with the WIOA measures to track participants in
unsubsidized employment in the second quarter after exit, participants
in unsubsidized employment in the fourth quarter after exit, and median
earnings. Therefore, this commenter recommended the Department bring
those measures in line with WIOA to ensure consistency across all
programs.
Department Response: The Department agrees and has changed Sec.
653.109(b)(5), (6) & (7) to be consistent with the WIOA performance
indicators listed in sec. 116 of the law.
The Department has also made a minor edit to Sec. 653.109(b)(9),
to add data on ``apparent violations'' to the list of data the SWA must
collect. This is consistent with the data collection that the SWAs
already perform. Additionally, the Department has added reference to
the data required to be collected by the Combined Plans to Sec.
653.109(d). The regulatory text already referenced the Unified Plans,
and this change aligns the paragraph with the requirements of sec. 103
of WIOA.
Section 653.110 Disclosure of Data
Comments: One commenter recommended the Department revise Sec.
653.110 to clarify that data and records relating to employer
participation in the job service are only confidential in limited
circumstances and that these regulatory disclosure requirements preempt
State laws that render the records and data privileged or confidential.
This commenter raised a 2015 court decision, Texas RioGrande Legal Aid,
Inc., et al. v. Range (TRLA case), in which the Fifth Circuit found
that current Sec. 653.110 did not confer a specific right to obtain
records, which was a rejection of the Departments of Labor and Justice
position in the amicus brief the Departments filed in the case. Stating
that the TRLA case gives the Department a clear road map of how it can
remove all ambiguity from Sec. 653.110, the commenter made specific
suggestions for revisions of the regulatory text.
Department Response: Section 653.110 (a) states, ``SWAs must
disclose to the public, on written request, in conformance with
applicable State and Federal law, the data collected by SWAs and ES
offices pursuant to Sec. 653.109'' and Sec. 653.109(f) requires SWAs
to ``(s)ubmit additional reports to the Department as directed.'' These
reports are considered records, and they, as well as additional reports
submitted by the SWAs to the Department as directed by the Department,
must be disclosed to the public pursuant to Sec. 653.109. In order to
maintain flexibility as data collection evolves, the Department
declines to specify specific required disclosures in this regulation.
Additionally, the regulations at Sec. 653.110(d) allow the SWAs to
withhold from public disclosure intra-agency memoranda and reports (or
parts thereof) and memoranda and reports (or parts thereof) between the
SWA and the ETA, to the extent that they contain statements of opinion
rather than facts, provided the reason for withholding is given to the
requestor in writing. The regulations also allow the State to withhold
documents or parts thereof, which, if disclosed, would constitute an
unwarranted invasion of personal or employer privacy, if the reason for
withholding is given to the requestor in
[[Page 56275]]
writing. The Department concludes that records are implicitly included
in Sec. Sec. 653.109 and 653.110.
The Department will address each of the commenter's requests for
revisions as bulleted below.
Include explicit language conferring a public right to
obtain the records included in Sec. 653.109. Department Response: The
Department interprets the requirements for disclosure at Sec.
653.110(a) to include those reports required at Sec. 653.109(f) and
memoranda and reports referenced at Sec. 653.110(d).
Revise Sec. 653.110(a) to include all ``records'' as well
as all ``data,'' possibly including reference to a well-established
definition of records such as the Freedom of Information Act's
definition at 5 U.S.C. 552a(a)(4). Department Response: The Department
does not deem it necessary to revise Sec. 653.110(a).
Include a right to all records related to employer
participation in the job service, rather than only the data
specifically enumerated in Sec. 653.109. Alternatively, the Department
could revise Sec. 653.109 to include a requirement that State agencies
retain the records underlying the data that section already requires
those agencies to keep. Department Response: The Department will not
make these changes because it would not place such requirements in the
regulations without first requesting public input.
Add a provision in Sec. 653.110 that explicitly preempts
States from enacting laws that would categorically render employer
records identified in Sec. 653.109 undisclosable as privileged and
confidential. Department Response: The Department cannot make this
change because it is outside the scope of what was originally proposed
in the NPRM.
Remove the language ``or are otherwise privileged against
disclosure'' in Sec. 653.110(d) that the Department proposed be added
in the NPRM. The commenter stated that a court could construe this
language to include State public records acts that render employer
records privileged, confidential, or both. Department Response: The
Department finds upon further reflection that the additional language
has caused confusion and is unnecessary. The Department strikes the
phrase from the Final Rule.
Section 653.111 State Workforce Agency Staffing Requirements
Comments: One commenter suggested the requirement in proposed Sec.
653.111(b) for the State agency to hire sufficient numbers of
qualified, permanent, minority staff in significant MSFW ES offices
should apply only to significant MSFW States or significant MSFW areas.
Another commenter asked whether this provision would require State job
postings to include specifically hiring of ``minorities'' from MSFW
backgrounds.
Department Response: The Department declines to change the
regulatory text in response to this comment. Paragraph (b) of Sec.
653.111 is not limited to significant MSFW States or areas; it applies
to significant MSFW ES offices. Even in cases where a State or area is
not deemed significant, there may yet be a significant number of MSFWs
using or located near a significant ES office. The Department seeks to
ensure such MSFWs have the resources they need to access ES services
and significant offices which hire qualified, permanent minority staff
may help facilitate such provision of services
Additionally, a SWA may utilize appropriate language from the Final
Rule for the job postings.
2. Subpart F--Agricultural Recruitment System for U.S. Workers
Section 653.500 Purpose and Scope of Subpart
Comments: One commenter urged the Department to clarify what it
considered imprecise language in Sec. 653.500, stating the proposed
language left unclear which sections of subpart F apply to U.S.
farmworkers who apply for employment under clearance orders that are
attached to applications for foreign temporary agricultural orders.
This commenter suggested the Department confirm if the third sentence
should read ``This subpart affects all job orders for workers . . .''
rather than, ``This section affects all job orders for workers,'' which
would ensure that the provisions of the Agricultural Recruitment System
(ARS) apply to all clearance orders.
Department Response: The Department changed the regulatory text at
Sec. 653.500 to clarify that the purpose described in Sec. 653.500
applies to this entire subpart F versus a single section. To the extent
that the commenter was expressing confusion as to how this subpart
applies to agricultural clearance orders seeking temporary foreign
workers, the Department notes that this subpart is about the ARS, which
is a system used to recruit U.S. workers for temporary, less than year-
round farmwork. Part 655 of this chapter explains the process for
hiring non-U.S. workers for this type of work.
Section 653.501 Requirements for Processing Clearance Orders
Comments: One commenter objected to the continuation of the
requirement to recruit workers in three sequential steps: Locally,
followed by intrastate recruitment, then interstate recruitment, if
needed. This commenter stated the sequential process is inconsistent
with proposed Sec. 653.102, which directs State agencies make job
order information available by all reasonable means, including the
internet, labor exchange systems, and one-stop centers. This commenter
suggested it might be discriminatory and inconsistent with the Richey
Order to carry out a successive local, intrastate, and interstate
recruitment for temporary agricultural jobs while all other jobs are
broadcast at once through every available means.
Similarly, another commenter recommended the Department eliminate
the ARS process because most States use Web-based, online job listing
sites, which after 24 hours automatically upload job orders to the
national level on two sites (US.jobs of the National Labor Exchange and
JOBcentral). This commenter stated the ARS process is obsolete,
outdated, burdensome, and time consuming. Further, the commenter
suggested the ARS regulations need clarification if the ARS is to
remain and recommended that, if retained, the ARS should be required
only for significant MSFW States.
Another commenter suggested the Department update the part 653 ARS
language to account for technological advancements in labor exchange
systems.
Department Response: The Richey Order requires the Department to:
(1) Extend coverage of local Job Bank order information to rural areas
and provide MSFWs with assistance to enable them to use such
information on a non-discriminatory basis; (2) Review all interstate
job orders prior to approval for transmission and require all State and
Federal offices processing such interstate job orders to comply with
specific requirements; and (3) Require each State ES agency to review
and process all intrastate job orders in accordance with the procedures
and requirements set forth in sec. I-D of the Order.
Connecting employers with job seekers at the local level helps both
parties, as there are fewer transportation and housing costs. This
sequential process is particular for agricultural job orders and may
not be appropriate for other employment sectors. Furthermore,
agricultural work is typically rural and housing and transportation
accommodations may be necessary to ensure the workers are able to
access the appropriate worksite. For these reasons, the Department has
determined job
[[Page 56276]]
orders should begin at the local level. Furthermore, the Department has
determined it is required to facilitate a system by which job orders
are cleared through intrastate, then interstate processes as required
under the Richey Order.
In addition, the Department also deems it necessary for non-
significant MSFW States to participate in ARS for three primary
reasons: (1) Equality of opportunity: employers in non-significant
States (just as significant States) must have the opportunity to hire
U.S. workers through the ES system; (2) Uniformity of ES services: ARS
is one of the many services offered through the ES system and should be
offered to agricultural employers and individuals who seek agricultural
employment in any State, regardless of its designation as a significant
State; and (3) Requirement to maintain a system of clearing labor
between the States: sec. 3(a) of the Wagner-Peyser Act mandates the
Department assist SWAs in maintaining a system of clearing labor
between the States which provides workers maximum opportunity to have
access to agricultural jobs.
To reconcile the need to test the local labor market and
subsequently test the intrastate and interstate clearance systems when
using the internet, the Department recommends ES offices suppress
employer information. Suppressing employer information means that a job
seeker will need to contact the ES office in order to receive all
pertinent information regarding the job and the ES office then has the
opportunity to gauge the level of interest in the job from U.S. job
seekers. It also allows the ES office to provide the job seeker with
not only the employment opportunity specifically sought, but also
information on all other services and opportunities offered through the
center.
The Richey Order mandates the Department ``require each State ES
agency to review and process all intrastate job orders in accordance
with the procedures and requirements set forth in section I-D of [the]
Order'' and to review ``all interstate job orders prior to approval for
transmission and shall require all State and Federal offices processing
such interstate job orders to comply with the following requirements.''
The Department's step-by-step process in the regulations implements the
mandates of the Order by ensuring job seekers and employers have access
to ARS in a logical and organized manner.
Lastly, the Department agrees that the references to ``State
agencies'' would be better clarified by the term, ``State Workforce
Agencies'' or ``SWAs.'' As such, the Department will replace the terms
throughout the Final Rule. The Department has also edited Sec.
653.501(c)(1)(ii) to make the regulatory text consistent with 29 CFR
part 38.
Section 653.501(b) ES Office Responsibilities
Comments: One commenter submitted two recommended revisions for the
agricultural clearance form prescribed by the Department (ETA Form 790)
to require an employer to identify and provide contact information of
the grower business for each worksite identified in the job order and,
for those employers who will use the job order in connection with a
future application for temporary employment certification for H-2A, to
provide contact information for the person(s) who will perform
recruiting activities for the job.
Department Response: The Department notes the Paperwork Reduction
Act (PRA) provides the public an opportunity to submit comments and
requests for revisions for the Department's forms, including ETA Form
790. The PRA process should be used to suggest changes to a specific
form.
Further, the Department notes the ETA Form 790 is intended for the
recruitment of domestic, U.S. workers and not for the recruitment of
foreign workers. Instead, Form 9142A, H-2A Application for Temporary
Employment Certification, addresses the requirement for employers
seeking to hire foreign workers. The Department has determined the
suggestion to include recruiter information for foreign workers would
more appropriately be addressed through the PRA process for the Form
9142A. The Department welcomes such comments at that time.
Section 653.501(c) SWA Responsibilities
Comments: A few commenters objected to the language requirement at
proposed Sec. 653.501(c)(1)(i) stating it may limit the SWA's ability
to effectively communicate job requirements (particularly with
Management Information Systems [MIS] or job match systems that contain
character limits) or may impact the look and format to make an
announcement less visibly pleasing. Further, these commenters suggested
the language in this section could be required on all job orders and
that it should not be required on agricultural clearance orders alone.
Department Response: The language in Sec. 653.501(c)(1)(i) is
substantively the same language required at existing Sec. 653.501(a)
and (b). The only difference is ``JS'' is replaced with ``ES.''
Therefore, there should be no additional burden placed on State
agencies from what was originally required. The Department notes the
language is already included in the ETA Form 790; as such, a SWA will
not need to alter its internal systems to accommodate new/different
language.
While no comments were received regarding Sec. 653.501(c)(3)(i),
the Department revised the regulatory text to clarify that order-
holding office notification must be in writing and that email
notification may be acceptable. This revision does not substantively
change the notification requirement but it clarifies the intent of the
requirement to make notification verifiable. This is consistent with
the Department's response to the comment received on Sec.
653.501(c)(3)(iv), described in the following paragraph.
Comments: One commenter recommended that Sec. 653.501(c)(3)(iv) be
changed to require an employer to provide notification in writing
(which may include email) rather than the proposed language that
requires employers to provide an assurance that they will notify the
order-holding office or State agency by email and telephone immediately
upon learning that a crop is maturing earlier or later or other factors
have changed the terms of employment. This commenter reasoned that
allowing notification by telephone could result in miscommunication as
well as difficulties for a State agency to confirm that an employer
provided appropriate notice if the employer states it made a call to
the State agency. Additionally, this commenter suggested that any
changes prompted by this comment may result in needed changes to Sec.
653.501(d)(8).
Department Response: The Department notes Sec. 653.501(c)(3)(iv)
requires the employer to notify the order-holding office or SWA by
``emailing and telephoning immediately upon learning that a crop is
maturing earlier or later . . . .'' This telephonic requirement ensures
information is relayed most expeditiously in case the recipient is not
checking his/her email. It also ensures there is written correspondence
to confirm such notification.
As discussed earlier in Sec. 651.10, the Department has decided to
revise the definition of migrant farmworkers. While the Department did
not receive any comments specifically relating to Sec.
653.501(c)(3)(vi), the Department received comments referring to the
definition of migrant farmworkers who are ``unable'' versus ``not
reasonably able'' to return to their permanent
[[Page 56277]]
residence within the same day (regarding the definitions in Sec.
651.10). The Department agrees with the commenters that ``unable''
appears more restrictive than intended. The Department has decided to
use the words ``not reasonably able'' to return to a permanent
residence, rather than ``unable.'' To align changes in Sec. 651.10
with Sec. 653.501(c)(3)(vi), the Department revised the paragraph to
use the term ``not reasonably able.''
Comments: One commenter urged the Department to elaborate on what
``reasonable access'' for outreach workers means in Sec.
653.501(c)(3)(vii). In addition, this commenter recommended the
Department modify Sec. 653.501(c)(3)(vii) allowing nonprofit
organization outreach workers to have reasonable access to MSFWs to
perform general outreach activities, to meet with a worker who has
requested such meeting, and to meet with the nonprofit organization's
clients or customers. Two other commenters requested clarification on
this provision, asking if the intent is for outreach staff to provide
only outreach services to U.S. workers for clearance orders where a
placement has been confirmed. These commenters stated such
clarification would eliminate the SWA's ability to conduct outreach to
H-2A clearance orders where a placement has not been made.
Department Response: The Department declines to define ``reasonable
access'' in the regulatory text, however reasonable access means that
outreach workers must be able to locate, contact, and interact with
MSFWs at their worksites, living quarters, and gathering areas in order
to be able to provide MSFWs with services and information pursuant to
the outreach workers' duties outlined at Sec. 653.107. Regarding the
commenter's request for the Department to modify Sec.
653.501(c)(3)(vii) to allow nonprofit organization outreach workers
reasonable access to MSFWs to perform general outreach activities, to
meet with a worker who has requested such meeting, and to meet with the
nonprofit organization's clients or customers, the Department has
determined it is beyond the scope of this regulation to secure
``reasonable'' access rights for nonprofit organization outreach
workers and so is not amending the regulation to include such
provisions. Regarding the request for clarification on whether the
intent of Sec. 653.501(c)(3)(vii) is for outreach staff to provide
only outreach services to U.S. workers for clearance orders where a
placement has been confirmed, the Department seeks to clarify the
intent is not for outreach workers to only provide outreach services to
U.S. workers. All outreach workers must follow the requirements set
forth at Sec. 653.107(b).
Comments: A few commenters requested clarification regarding
``eligible workers,'' in Sec. 653.501(c)(5), asking if the Department
intends for the first week wage guarantee to be applicable to all
workers referred (including local workers) or only those workers who
live beyond the local area of intended employment (migrant workers).
Department Response: The eligible workers referred to in Sec.
653.501(c)(5) are those identified at paragraph (d)(4): all referred
farmworkers, farm labor contractors on behalf of farmworkers, or family
heads on behalf of farmworker family members.
Comments: A few commenters also recommended the Department modify
the last sentence of paragraph (c)(5) to align with ES complaint
procedures, which could require an immediate referral to the
Department's Wage and Hour Division (WHD). This sentence as proposed
stated, ``If an employer fails to comply under this section the order
holding office may notify DOL's Wage and Hour Division for possible
enforcement.''
Department Response: The proposed language stating the order
holding office ``may'' notify WHD was intended to allow the issue to be
resolved at the local level without immediate referral to WHD. If the
issue is not resolved at the local level within 5 business days, it
must be referred to WHD for possible enforcement. The Department made
no change to Sec. 653.501(c)(5).
Comments: One commenter urged the Department to clarify the
employer liability outlined in Sec. 653.501(c)(5) applies to U.S.
workers who are referred pursuant to H-2A clearance orders. Also
relating to this provision, one commenter recommended the Department
revise the first sentence to remove the ``at least 10 working days
prior'' phrase to read, ``If there is a change to the anticipated date
of need and the employer fails to confirm with the applicant-holding
office or the order-holding office, prior to referred workers
departure, the employer must pay eligible workers referred through the
clearance system.''
Department Response: Section 653.501(c)(5) applies to any worker
referred through the Agricultural Recruitment System. In response to
the suggestion for the Department to revise Sec. 653.501(c)(5), the
Department has determined that maintaining the language as proposed is
the best way to ensure that migrant workers have ample notice before
departing their residence to begin work pursuant to the clearance
order.
Section 653.501(d) Processing Clearance Orders
Comments: One commenter stated it has always been instructed that
the H-2A precertification process mirrors the ARS process and that
Sec. 653.501 should be followed when recruiting and referring U.S.
domestic workers to H-2A jobs. Two other commenters similarly expressed
concerns with this language, asserting that because all clearance
orders processed by their State are H-2A, the statement that this
section does not apply to foreign temporary workers would eliminate the
first week wage guarantee, which applied to all ARS orders under WIA,
including those tied to H-2A. These commenters also expressed concern
that the workers' rights brochure they use to comply with WIA rules
would no longer be applicable to H-2A clearance orders and, thus, would
be eliminated.
One commenter suggested the Department revise the first sentence of
Sec. 653.501(d) to read, ``This subsection does not apply to clearance
orders . . .'' (rather than ``section''), to clarify the exclusion
applies only to paragraph (d). Asserting that additional confusion is
created by the Sec. 653.501(c)(5) pay guarantee reference to Sec.
653.501(d)(4), this commenter stated that the inconsistent use of
section and subsection make it difficult to read the intent of subpart
F's various provisions. This commenter asserted there is no rationale
for excluding clearance orders attached to H-2A orders from Sec.
653.501(d) provisions other than clearance order transmitting-related
provisions at Sec. 653.501(d)(1) and (3), including the
nondiscrimination criteria (Sec. 653.501(d)(2)), the date-of-need
protections (Sec. 653.501(d)(4), (7), and (9)), and the mandate to
local ES offices to provide workers with a list of workers' rights
(Sec. 653.501(d)(11)). Stating the Department has a mandate to ensure
that the employment of H-2A workers ``will not adversely affect the
wages and working conditions of workers in the U.S. similarly
employed'' (8 U.S.C. 1188(a)(1)(B)), this commenter expressed concern
that these U.S. worker protections in the event of an unexpected or
unannounced change in the date of need are vital to ensuring that H-2A
employers follow through with their statutory obligation to hire
qualified U.S. workers.
Department Response: Only Sec. 653.501(d)(3) does not apply to
clearance orders that are attached to applications for foreign
temporary agricultural workers, pursuant to part
[[Page 56278]]
655, subpart B, as such clearance orders must be sent to the Chicago
National Processing Center. The Department has clarified the regulatory
text at Sec. 653.501(d) by removing the statement ``This section does
not apply to clearance orders that are attached to applications for
foreign temporary agricultural workers pursuant to 20 CFR 655 subpart
B.'' from the opening paragraph of Sec. 653.501(d), and inserting it
at paragraph (d)(3), which clarifies that the approval process
described in paragraph (d)(3) does not apply to clearance orders that
are attached to applications for foreign temporary agricultural workers
pursuant to 20 CFR part 655, subpart B, and that such clearance orders
must be sent to the Chicago National Processing Center.
The Department notes that all steps and requirements for processing
clearance orders at Sec. Sec. 653.500 through 653.503 are intended for
the recruitment of U.S. workers. However, U.S. workers may continue to
be recruited once a job order becomes part of the H-2A process pursuant
to Sec. 655.135(d). The Department will issue guidance on the
Agricultural Recruitment Process.
Comments: In response to the Sec. 653.501(d)(1) requirement that
the order-holding office must transmit a copy of the approved clearance
order to the State agency, one commenter suggested the order-holding
office should be required to transmit the completed clearance order to
the SMA for approval and distribution to streamline the process and
minimize the chance for errors. For similar reasons, this commenter
also suggested the Department replace the Sec. 653.501(d)(3)
requirement for the ETA regional office to review and approve the order
with a requirement for the supply State's SMA to review and approve the
order within 10 working days. The commenter reasoned that regional
offices often approve only to have supply States return the order with
a denial, further delaying the order.
Department Response: The requirement to transmit the completed
clearance order applies to the SWA and it is the SWA's decision whether
the primary individual charged with processing clearance orders is the
SMA or a different SWA employee. The Department has determined the
Regional office is in an appropriate position to assess labor supply
States based on the ES reports it receives from each State in its
region. No change was made to regulatory text in response to this
comment.
Comments: A few commenters recommended the Department remove
proposed Sec. 653.501(d)(4) because it places burdens on the job
seeker to contact the applicant-holding office 9 to 5 days before the
date of need to secure the first weeks wage guarantee and on the SWA to
document such communication. One commenter recommended the Department
revise this paragraph to read, ``The applicant-holding office should
notify referred workers to contact the applicant-holding office or the
order-holding office to verify the date of need cited prior to their
departure.'' This commenter stated this would allow for more
flexibility due to the nature of the industry and would give the worker
the most up-to-date information on the contract prior to departing.
Department Response: The Department has determined it cannot remove
Sec. 653.501(d)(4), as wage guarantees are a requirement under the
Judge Richey Court Order. Further, the Department does not agree with
the commenter that the paragraph should be revised such that the
referred workers should contact the applicant-holding office or the
order-holding office, because the applicant's primary contact is with
the applicant-holding office, not the order-holding office. The
Department has determined it would be an undue burden on the job seeker
to contact the order-holding office. The Department will provide
additional guidance on this process.
Comments: One commenter asked if the checklists that local ES
office staff are required to provide farmworkers and applicants in
their native language (Sec. 653.501(d)(6) and (d)(10)) could be
replaced with the requirement to provide a copy of the clearance order
itself. This commenter noted that it has encountered issues where
workers hired on the interstate clearance orders have indicated they
did not receive accurate information prior to arriving on the job site.
The commenter asserted that requiring staff to provide a copy of the
approved clearance order would help eliminate any confusion and
misinterpretations.
Department Response: The Department notes that some clearance
orders may be more than 20 pages and if a SWA was required to supply
the clearance order to each job seeker, it could overly burden the SWA.
Consistent with the Judge Richey Court Order, the Department has
concluded that notifying the job seeker that the clearance order is
available upon request is sufficient, as long as referred job seekers
obtain a full explanation of the terms and conditions of employment.
Section 653.502 Conditional Access to the Agricultural Recruitment
System
Comments: One commenter expressed concerns that the steps and
requirements outlined in Sec. 653.502 assume that employers have full
knowledge of the ARS in order to submit a written request for
conditional access to the intrastate or interstate clearance system. In
particular, this commenter asserted that for employers to be
sufficiently familiar with the intricacies of the ARS to submit
advanced requests for conditional access would require SWAs to mount a
massive marketing and educational program, which this commenter
asserted would be a large burden.
Department Response: SWA staff should be trained in the ARS
process. When an employer seeks workers for agricultural work, it is
incumbent upon the SWA to explain all available options to the
employer, including the ARS process and the option for conditional
access if applicable. The Department has determined this will not
overly burden SWAs as it was originally required at 20 CFR 654.403.
Section 653.503 Field Checks
Comments: Commenters expressed support for the proposed changes to
this section. However, many commenters expressed concerns or requested
clarification regarding proposed Sec. 653.503.
One commenter stated the requirements of Sec. 653.503(a) are
contradictory to the WIOA structures for statewide activities and that
completing mandatory field checks would cause a significant reduction
in the time spent by the SWA in meeting WIOA's requirements.
Department Response: The Department notes the Judge Richey Court
Order mandated that the Department ensure each SWA hires staff to
conduct field checks and determine whether wages, working, and housing
conditions are as specified in job orders and that actual conditions
and terms of employment do not violate State and Federal law.
Comments: A few commenters recommended the Department remove the
language in proposed Sec. 653.503(a), stating that notifying an
employer after a placement is made would not be transparent and would
add unnecessary burden on State agency staff. Instead, these commenters
recommended the Department add language on the ETA Form 790 or its
supporting documents that employers interested in participating in the
ARS should be informed a field check may be conducted if a worker is
placed.
[[Page 56279]]
Department Response: The Department agrees with the commenter
stating employers should be notified that a field check may be
conducted for all job orders placed through ARS and that such
notification must be transparent. The Department notes Sec. 653.503(a)
requires the SWA to notify the employer in writing, that if a worker is
placed on a clearance order, the SWA, through its ES offices, and/or
Federal staff, will conduct random, unannounced field checks to
determine and document whether wages, hours, and working and housing
conditions are being provided as specified in the clearance order.
To guarantee employers have been notified and have signed a
document accepting field checks, the Department concurs that such
notification may be provided through the attachment to the ETA Form
790. Including the notification in the ETA Form 790 would help ensure
the employer has been notified and concurs with the requirement. The
Department will propose the language be added to the attachment to the
ETA Form 790 in the next Paperwork Reduction Act public notice for the
Form.
Comments: A commenter asked the Department to clarify whether the
``worker placed on a clearance order'' in Sec. 653.503(a) should be
one that would have been referred through the ES system or not. In
addition, the commenter asked if the referenced clearance orders also
include criteria clearance orders, and requested the Department clarify
whether notification in writing can include email.
Department Response: Field checks only pertain to placements made
through the ARS process (pursuant to part 653, subpart F) and can
include criteria and non-criteria job orders--but Sec. 653.503
specifically refers to the placement of U.S. workers. Regarding whether
notification in writing can include email, the Department notes the
attachment to the ETA Form 790 includes such notification and when a
SWA provides the form to the employer and the employer signs it, Sec.
653.503(a) has been satisfied. Additionally, if the SWA so chooses, the
SWA may send an email to the employer when a worker has been placed
which re-emphasizes the possibility for a field check pursuant to Sec.
653.503.
Comments: Several commenters asked for clarification on Sec.
653.503(b). One commenter sought clarification on the meaning of, ``or
at 100 percent of the worksites where less than 10 employment service
placements have been made.'' Another commenter asked the Department to
clarify if field checks at 100 percent of jobsites are required for
clearance orders that have fewer than 10 placements for each order or
if the entire State agency has made fewer than 10 placements on
clearance orders during the quarter. If the field checks at 100 percent
of jobsites is still required for clearance orders with fewer than 10
placements, this commenter asked if the 25 percent minimum still would
apply overall. Another commenter recommended the Department revise
Sec. 653.503(b) to require field checks on ``25 percent of all
agricultural worksites where U.S. placements have been made,'' stating
the language as proposed would burden States that have a low or no
placement rate with conducting field checks of all employers
participating in the H-2A program if the expectation is to include
visits to employers where no placement of U.S. workers has taken place.
One commenter expressed similar concerns, suggesting that because the
majority of employers in that State do not request more than one or two
workers, proposed Sec. 653.503(b) would require the State to visit
each of the 400 plus employers participating in the State's H-2A
program, which would be burdensome. Another commenter requested the
Department clarify whether the Sec. 653.503(b) requirement applies to
criteria clearance orders as well. Reasoning that ``less than 10''
would include worksites with zero placements, this commenter further
suggested the Department revise this language to States, ``worksites
where less than 10 or more than 1 placement was made.''
Department Response: Based on the number of requests the Department
received to clarify the regulatory text at Sec. 653.503(b), the
Department has revised the regulatory text to clarify the requirements.
Section 653.503(b) requires that where the SWA has made placements on
10 or more agricultural clearance orders during the quarter, the SWA
must conduct field checks on at least 25 percent of the total of such
orders. Where the SWA has made placements on at least one but not more
than 9 job orders during the quarter, the SWA must conduct field checks
on all such orders. For example, if a SWA has made placements of U.S.
workers on 100 separate job orders through ARS, the SWA is required to
conduct field checks on at least 25 of those job orders (25 percent of
100). In another example, if a SWA has made placements of U.S. workers
on 6 job orders through ARS, the SWA is required to conduct field
checks on all 6 job orders (100 percent of the orders because there was
more than 1 but fewer than 9 job orders). These field checks only
pertain to placements made through the ARS process (which can include
criteria and non-criteria job orders--but Sec. 653.503 specifically
refers to the placement of U.S. workers). ``Placements,'' which is
defined at Sec. 651.10, means the hiring by a public or private
employer of an individual referred by the ES office for a job or an
interview, provided that the employment office completed all of the
following steps:
Prepared a job order form prior to referral, except in the
case of a job development contact on behalf of a specific applicant;
Made prior arrangements with the employer for the referral
of an individual or individuals;
Referred an individual who had not been specifically
designated by the employer, except for referrals on agricultural job
orders for a specific crew leader or worker;
Verified from a reliable source, preferably the employer,
that the individual had entered on a job; and
Appropriately recorded the placement.
Comments: One commenter asserted that Sec. 653.503(c) expands the
field check requirements from ``wages, hours, working, and housing
conditions'' to the ``full terms and conditions of employment,'' which
would lead to unfair and unequal enforcement activities because ``full
terms and conditions'' is not defined. Further, this commenter stated
the Sec. 653.503(c) requirement that field checks must occur ``at a
time when workers are present'' would lead to a reduction in the time
allowed for training and job placement activities.
Department Response: The Department does not interpret the change
in language to be a substantive expansion from what is now required.
The Department notes that requesting employers sign the ETA Form 790,
thereby agreeing to abide by the ``full terms and conditions'' of
employment, for which field checks appropriately ensure such
compliance. Additionally, the Judge Richey Court Order requires those
conducting field checks, ``to determine whether wages, working and
housing conditions are as specified in job orders and that actual
conditions and terms of employment do not violate State and Federal
law.'' The Department further notes that SWA staff is charged with
providing and explaining to MSFWs information and resources regarding
ES services, other organizations serving MSFWs in the area, and a basic
summary of farmworker rights, including their rights with respect to
the terms and conditions
[[Page 56280]]
of employment. Therefore, conducting such outreach activities (as
required at Sec. 653.107) does not constitute time away from training
and job placement. In fact, such outreach is intended to extend
training and job placement opportunities to MSFWs.
Comments: A commenter stated that the proposed field check
requirements in Sec. 653.503(b) and (d) would have a chilling effect
on employers' decisions to use the ARS. This commenter also suggested
the required field checks are not authorized by the controlling
statutes and may not be constitutional.
Department Response: The Department notes that field checks and
referrals of apparent violations are now required under 20 CFR 653.503,
and employers continue to use the ARS. The existing regulations at 20
CFR 653.503 further require the State agency to document the finding
and attempt informal resolution if through a field check, State agency
personnel observe or receive information, or otherwise have reason to
believe that conditions are not as stated on the job order, or that an
employer is violating an employment related law. The existing
regulations further require the SWA to follow the procedures of subpart
F of this chapter if the matter has not been resolved within 5 working
days.
Attempting informal resolution at the local level is also intended
to assist employers in remedying certain apparent violations that may
resolve the issue and not necessitate the need for a referral to an
enforcement agency.
Further, the Department disagrees with the commenter's suggestion
that the required field checks are not authorized by the controlling
statutes and that they do not provide sufficient certainty and
regularity required to make ``warrantless inspections constitutional.''
Employers know of field checks, which are conducted with sufficient
regularity due to the requirement at Sec. 653.503(b) mandating field
checks on certain percentages of placements depending on how many
placements a State has made.
Comments: A commenter raised concerns regarding the Sec.
653.503(d) requirement to report violations of employment-related law
suggesting it would (among other things) negatively impact the ARS
process; be challenging to implement; and would lead to an increase in
referrals to enforcement agencies.
Department Response: The Department does not agree that Sec.
653.503(d) will foster hostile attitudes between employers and
employees, towards SWA staff, and to the ARS in general. The Department
has received information on numerous occasions from employers and SWA
staff that the ability to resolve issues informally at the local level
has been beneficial because it gives the employer a chance to rectify
the situation before it is referred to an enforcement agency. Not all
issues may be informally resolved and many may be referred to an
enforcement agency, but the regulations generally allow for such
informal resolution where appropriate. The Department has changed the
regulatory text to clarify this.
Comments: Regarding the Sec. 653.503(e) provision that would allow
State agencies to enter into agreements with State and Federal
enforcement agencies to conduct field checks on behalf of SWA
personnel, a commenter stated the information sharing permitted under
this provision would lead to an unwillingness of both workers and
employers to use the system, with an unintended consequence of an
increase in use of Farm Labor Contractors and the H-2A program.
Further, the commenter asserted Sec. 653.503(e) is contradictory in
that the non-SWA ``may conduct field checks instead of and on behalf of
State agency personnel'' but then provides: ``The SWA must supplement
enforcement agency efforts with field checks focusing on areas not
addressed by enforcement agencies.''
Department Response: The Department notes that such arrangements
between State and Federal enforcement agencies are now permitted in the
regulations at 20 CFR 653.503(b) and this has not, to its knowledge,
caused an unwillingness of both workers and employers to use the
system. The Department disagrees with the commenter and has determined
that such arrangements are useful for SWAs in meeting their field check
requirements.
P. Part 654--Special Responsibilities of the Employment Service System
1. Introduction
In the NPRM, the Department proposed to revise the ETA regulations
governing housing for farmworkers at 20 CFR part 654, subpart E, issued
under the authority of the 1933 Wagner-Peyser Act by updating outdated
terminology and by establishing an expiration date for the ETA
standards. This proposed expiration date was intended to transition
housing currently governed by the ETA standards to the Occupational
Safety and Health Administration (OSHA) regulations governing temporary
labor camps for agricultural workers as set forth at 29 CFR 1910.142.
After considering the public comments received on this aspect of the
proposal, the Department withdraws its proposal to establish an
expiration date for the ETA standards in order to transition housing
currently governed by the ETA standards to the OSHA standards, as
explained in further detail below.
The analysis that follows provides the Department's response to
public comments received on the proposed part 684 regulations. If a
section is not addressed in the discussion below, it is because the
public comments submitted in response to the NPRM did not substantively
address that specific section and no changes have been made to the
regulatory text. Further, the Department received a number of comments
on this part that were outside the scope of the regulation and the
Department offers no response. Lastly, the Department has made a number
of non-substantive changes to correct grammatical and typographical
errors to improve the readability and conform the document
stylistically that are not discussed in the analysis below.
Several commenters expressed support for the proposed changes to
subpart E of part 654 stating the housing standards would be
strengthened, would increase safety and sanitation requirements, and
would positively impact the overall health and quality of life for
MSFWs. However, most commenters expressed concerns about the proposal
and in many cases asked that the proposal be withdrawn.
Comments: One commenter noted in the absence of updated OSHA
temporary labor camp regulations, it opposed the phase-out and repeal
of the ETA housing standards because, according to this commenter,
there are several instances where the ETA regulations provide clear,
unambiguous numerical standards, while the OSHA regulations offer vague
guidance. This commenter further asserted that clearly delineated
obligations, with specific numerical benchmarks, eliminate disputes as
to the housing provider's obligations.
Additionally, commenters raised the following reasons for not
supporting the proposal: (1) The high cost of making the necessary
changes; (2) insufficient economic analysis conducted by the
Department; (3) lack of availability of funding assistance; (4)
difficulty (or potential impossibility) in obtaining permits (including
zoning permits); (5) lack of sufficient time to transition; (6) the
difficulty or impossibility of complying with OSHA's requirement at 29
CFR 1910.142(a)(2), which states: ``The principal camp area in which
food
[[Page 56281]]
is prepared and served and where sleeping quarters are located shall be
at least 500 feet from any area in which livestock is kept.''; (7) DOL
hearings conducted in the 1970s pursuant to the same proposal concluded
there was not an adequate basis for the publication of a new final
standard or for the issuance of a new proposal; and (8) there is no
indication that housing under the ETA standards is any less adequate,
safe, or sanitary than that under the OSHA standards.
Many commenters also suggested that the impossibility of complying
with the new standards would lead to a loss of available farmworker
housing because existing housing would still be out of compliance. A
few commenters stated the proposal would put some agricultural
employers out of business. One commenter posited the NPRM did not
provide evidence that employers, SWAs, Department personnel, employees,
or anyone else is experiencing any ``confusion'' about how farmworker
housing is inspected. This commenter also questioned whether the
Department may legally expand the application of the OSHA housing
standards it adopted under special procedures available for consensus
standards to housing to which the OSHA standards never previously
applied.
One commenter suggested the Department allow agricultural employers
a variance for the OSHA requirement at 29 CFR 1910.142(a)(2), asserting
it is not always possible or desirable to have at least 500 feet
between the livestock and food processing/sleeping areas. In order to
better understand the impact of the proposed regulations, the
Department solicited the following information from the public through
the NPRM: (1) The approximate number of agricultural housing units in
the United States provided by agricultural employers for farmworkers;
(2) the approximate percentage of the total farmworker housing units
that currently fall under the ETA standards set forth in 20 CFR part
654; and (3) the estimated cost of bringing those housing units from
the ETA standards into compliance with the OSHA standards. The
Department received few responses. The limited feedback suggested it
would cost individual employers between $15,000 and $300,000 to
transition into the OSHA standards, with one commenter suggesting it
would cost over $1 million for employers in one State. One commenter
indicated that most of its housing inspections fell under the ETA
standards. Several commenters also had specific questions for the
Department.
Department Response: The Department has taken the aforementioned
comments into consideration and withdraws its proposal to establish an
expiration date for the ETA standards in order to transition housing
currently governed by the ETA standards to the OSHA standards governing
temporary labor camps for agricultural workers as set forth at 29 CFR
1910.142. The Department based its decision on the following reasons:
(1) It did not receive sufficient information in response to its
solicitation for information in order to conduct a thorough impact
analysis; (2) it seeks to further investigate information received
suggesting the specificity and clarity provided by the ETA standards
may be helpful when disputes arise; (3) it acknowledges the possible
financial and logistical burdens that the OSHA standards could impose
on some agricultural employers; and (4) it seeks to further study
farmworker housing, how it could be improved, and the impact such
improvement would have on stakeholders.
While the Department withdraws its proposal at this time, it
continues to interpret the regulations at part 654, subpart E, to be
transitional until such time when one set of improved agricultural
housing standards may be used for all farmworkers.
The Department will continue to require compliance with the
regulations at 20 CFR part 654, subpart E, for farmworker housing built
prior to April 3, 1980, or where prior to March 4, 1980, a contract for
the construction of the specific housing was signed. However,
subsequent housing must comply with OSHA temporary labor camp standards
at 29 CFR 1910.142.
The provisions of Sec. 654.403 have been relocated to 20 CFR
653.502 because they more directly relate to the governance and
operation of the Agricultural Recruitment System (ARS) rather than the
condition of worker housing.
Section 654.408 Screening
Comments: One commenter suggested the Department revise proposed
screen requirements at Sec. 654.408 to allow for an exception for
housing with central air conditioning.
Department Response: The Department does not support creating an
exception for housing with central air conditioning because, in cases
where such central air conditioning fails, it would be necessary for
the windows to have proper screens in place. No change to the
regulatory text was made in response to this comment.
Section 654.414 Garbage and Other Refuse
Comments: Asserting that most local municipalities do not provide
for twice weekly garbage disposal services, one commenter recommended
the Department revise the Sec. 654.414(b) language requiring the
``collection of refuse at least twice a week'' to include ``or as often
as possible according to local collection schedules.''
Department Response: The ``at least twice a week'' requirement
helps ensure refuse is properly disposed of and maintains the health
and safety of the workers and the environment. No change to the
regulatory text was made in response to this comment.
Q. Part 658--Administrative Provisions Governing the Wagner-Peyser Act
Employment Service
1. Introduction
Part 658 sets forth systems and procedures for complaints,
monitoring for compliance assessment, enforcement, and sanctions for
violations of the ES regulations and employment-related laws, including
discontinuation of services to employers and decertification of State
Workforce Agencies (SWAs).
The analyses that follows provides the Department's response to
public comments received on the proposed part 658 regulations relating
to administrative provisions governing the ES program. If a section is
not addressed in the discussion below, it is because the public
comments submitted in response to the NPRM did not substantively
address that specific section and no changes have been made to the
regulatory text. The Department has made a number of non-substantive
changes to correct grammatical and typographical errors to improve the
readability and conform the document stylistically that are not
discussed in the analysis below. Lastly, the Department will issue
guidance on the Complaint System, informal resolution, referring
complaints and apparent violations, and on subpart F--Discontinuation
of Services to Employers by the Employment Service.
2. Subpart E--Employment Service and Employment-Related Law Complaint
System
This subpart covers the purpose and scope of the Complaint System,
the requirements pertaining to complaints filed at the local and State
level, and the requirements for when a complaint rises to the Federal
level.
Comments: One commenter urged the Department to reinstate the
original Job
[[Page 56282]]
Service Complaint System as established in 1980 as a cost-effective and
efficient alternative to litigation for disputes between farmworkers
and the employers to whom they have been referred through the job
service network. Stating that the Job Service Complaint System,
established in response to the Richey Order, allowed farmworkers to
obtain quick resolution of complaints regarding jobs to which they had
been referred by the ES system, this commenter stated that the changes
to the Complaint System following the passage of the Immigration Reform
and Control Act of 1986 resulted in the current Complaint System being
of little use to aggrieved workers because they no longer have the
opportunity to participate in the processing of their complaint.
According to this commenter, because the deadlines set out in the 1980
regulations that had made the Complaint System so attractive to
farmworkers have been removed, the Complaint System is no longer an
attractive alternative to litigation. Further, this commenter stated
that because the current Complaint System does not ordinarily result in
a formal finding regarding the worker's complaint, it rarely generates
a result that provides the basis for discontinuation of services to an
employer who has violated the rights of a farmworker referred through
the ES system. For this reason, the commenter stated, employers are
free to violate the rights of domestic farmworkers with impunity,
knowing there is virtually no chance they will face the potentially
severe sanction of discontinuation of employment services (with the
corresponding lack of access to the H-2A program) if they ignore the
guarantees and assurances in their clearance orders.
Department Response: The Department clarifies that complainants
continue to have the opportunity to participate in the processing of
their complaint pursuant to Sec. 658.411(e)(1) and (2), at which time
the complainant must determine if the complaint has been resolved to
his/her satisfaction or if the complaint should be elevated to the next
level of review. Regarding deadlines for resolution of complaints, the
Department notes for complaints submitted to the ES office, the
Complaint System representative is required to send the complaint to
the SWA for resolution or further action if resolution has not been
achieved to the satisfaction of the complainant within 15 working days
after receipt of the complaint, or 5 working days for complaints filed
by or on behalf of MSFWs. For complaints submitted or referred to the
SWA, the SWA is required to make a written determination regarding the
complaint if resolution at the SWA level has not been accomplished
within 30 working days after the complaint was received by the SWA;
this requirement applies whether the complaint was received directly or
from an ES office under paragraph (d)(2)(ii) of this section. The
Department has determined that such time periods are relatively short
and do not place an undue burden on the complainants seeking to resolve
complaints. For employment-related law complaints referred to
enforcement agencies outside of the Department, the Department notes it
is beyond its jurisdiction to impose resolution deadlines for such
agencies. For employment-related law complaints referred to agencies
within the Department, the Department notes that each agency must abide
by its respective regulations and any change to such regulations would
require a Notice of Proposed Rulemaking. Should an organization seek
changes to any such regulations, the Department recommends submitting
comments when such an opportunity presents itself.
Regarding the commenter's assertion that because the current
Complaint System does not ordinarily result in a formal finding
regarding the worker's complaint, it rarely generates a result that
provides the basis for discontinuation of services to an employer who
has violated the rights of a farmworker referred through the ES, the
Department clarifies that a formal finding (i.e., a final determination
by an enforcement agency) is only one of the many bases for
discontinuation of services specified at Sec. 658.501. For example,
Sec. 658.501(a)(1) through (3) do not necessitate such a determination
(as do many of the other provisions under Sec. 658.501).
No change to the regulatory text was made in response to these
comments.
Section 658.400 Purpose and Scope of Subpart
Comments: One commenter stated the proposed change to Sec.
658.400(a) to require the acceptance of ES-related complaints made
within 2 years of the occurrence (increased from 1 year) would have an
adverse effect on SWA performance. Specifically, this commenter
predicted that States would accrue unresolved complaints resulting from
complainants leaving the area before completion of the investigation,
in particular MSFWs. However, a different commenter expressed support
for the expansion from 1 to 2 years, stating that expanding the period
of time to allow an aggrieved worker to file a complaint would
alleviate some of the burdens workers face when asserting their rights,
including fear of retaliation from employers or discomfort in filing
complaints against an employer while still employed when workers
discovered violations before their work ends. Other obstacles addressed
by this commenter were associated with the transient and mobile nature
of the work, such as moving several times, lack of information or
resources to file a complaint, and temporary inability to maintain the
complaint proceedings.
Department Response: While the Department acknowledges the
potential for more complaints to remain unresolved for a longer period
of time the Department has determined that the positive effects
outweigh the fact that some complaints may take longer to resolve. It
is exactly because of the transient nature of MSFWs that it is
important to allow more time for complainants to come forward and for
complaints to be resolved.
The Department made no changes to the regulatory text, except for
the clarifying change to add ``parts 651, 652, 653, 654, and'' to the
end of Sec. 658.400(a). This change clarifies that the ES complaint
system accepts complaints involving the failure to comply with the ES
regulations under parts 651, 652, 653, 654, and part 658, not just part
658, as was proposed. This is consistent with the jurisdiction of the
complaint system under the existing regulations.
Comments: One commenter stated that the Department's proposed
changes to Sec. 658.400(c) significantly expand the required
enforcement activities from ``wages, hours, working, and housing
conditions'' to all employment-related laws, and this commenter
suggested that establishing SWA staff as the ultimate enforcement agent
for dozens of diverse regulatory regimes is counter to WIOA's goals for
preparing an educated and skilled workforce and for meeting the skilled
workforce needs of employers.
Department Response: The Department clarifies that SWA staff
(unless otherwise authorized) are not enforcement agents for
employment-related laws. Rather, SWA staff that become aware of
possible violations of employment-related laws through field checks or
apparent violations is charged with attempting to resolve the issue at
the local level (when appropriate) and, if not resolved, referring the
case to the appropriate enforcement agency.
[[Page 56283]]
Section 658.410 Establishment of Local and State Complaint Systems.
Comments: Stating the NPRM is unclear as to how staffing should be
assigned to address complaints at the various levels (managers and line
staff), some commenters recommended the Department allow local areas to
determine how management and line staff are engaged in handling
complaints, whether in person, on the phone, or other types of
correspondence. One commenter expressed support for having local areas
decide how management and line staff are engaged in handling complaints
and recommended that this process be included in the local plan.
Department Response: The Department clarifies that as long as the
requirements at Sec. 658.410 are met, the ES office manager may
determine specific processes that are conducive for his/her respective
office. The Department has determined the SWA must make decisions
regarding the inclusion of this process in the local plan,
Comments: One commenter asked whether the Department would make the
Complaint System posters available to the SWAs for the Sec. 658.410(d)
requirement that SWAs ensure information pertaining to the use of the
Complaint System is publicized with an ETA-approved poster in each one-
stop center.
Department Response: The Complaint System poster is accessible on
the internet at http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2820.
Comments: Two commenters recommended the Department either remove
the Sec. 658.410(m) requirement that the Complaint System
representative must regularly follow up on complaints after they are
referred to an enforcement agency, or only require SWA staff to request
that an enforcement agency follow up once a resolution to the complaint
has been achieved. These commenters reasoned that, although an existing
requirement under WIA, it is ineffective despite technological advances
because most enforcement agencies do not share outcomes of
investigations with SWA staff due to confidentiality
requirements.A19AU0.
Department Response: The Department notes that the requirement for
the Complaint System representative to follow-up on complaints
submitted by MSFWs pursuant to Sec. 658.410(m) is intended to ensure
complaint resolution. Such follow-up helps ensure that complaints are
progressing within the enforcement agency, and that MSFWs are updated
on the status of their complaints. The Department understands that many
enforcement agencies may be restricted from sharing specific
information. However, the Department has determined that follow-up
activities will deter the possibility for complaints to remain stagnant
and instead will push them closer to resolution. The Department has
determined that eliminating the requirement for follow-up with MSFW
complainants would adversely affect complainants. The Department
further notes that Sec. 658.140(m) has been changed to remove the
requirement for quarterly follow-up on non-MSFW complaints. This is
consistent with Sec. 658.411(b)(1)(i). This inconsistency in the NPRM
was an error.
The Department added two paragraphs to Sec. 658.410, paragraphs
(n) and (o), in response to comments received on proposed Sec.
658.411. Those comments and additions are discussed below.
Section 658.411 Action on Complaints.
Comments: While stating their understanding that the intent is for
Boards to coordinate with all relevant enforcement agencies concerning
MSFW complaints, two commenters recommended the Department retain the
reference to 29 CFR part 42 (which the NPRM removed) because that
regulation coordinates Wage and Hour Division (WHD), Occupational
Safety and Health Administration (OSHA), and Department activities
relating to MSFWs.
Department Response: The Department clarifies that it does not
intend for Workforce Development Boards (WDBs) to coordinate with all
relevant enforcement agencies concerning MSFW complaints; rather, SWAs
must follow the procedures required at Sec. 658.411.
The Department concurs with the commenters that coordination of the
activities of the Wage and Hour Division (WHD), within the former
Employment Standards Administration, OSHA, and the Employment and
Training Administration (ETA) relating to MSFWs is essential. The
intention behind the proposed regulations at Sec. 658.411 was to not
limit coordination to only those agencies, but to expand it to all
employment-related law enforcement agencies. No changes were made to
the regulatory text. Still, the Department acknowledges the vital
importance of Coordinated Enforcement at 29 CFR part 42 and will work
to carry out such activities described at 29 CFR part 42 and also work
to expand coordination with other enforcement agencies such as the
Equal Employment Opportunity Commission (EEOC).
Comments: One commenter recommended the Department add a
requirement that any notices sent to the worker regarding their
complaint must be sent in the worker's native language. Further, this
commenter urged the Department to require all correspondence with a
MSFW regarding his/her complaint be required both by phone and by
certified mail. In addition, this commenter urged the Department to
revise the regulatory text to clarify that any time the regulations
specify that ES staff, the SMA, or other person must communicate with a
MSFW, that communication must be directed to the MSFW's representative,
if he or she has one. This commenter reasoned that because MSFWs
frequently move and change telephone numbers, ES communication directed
to the MSFW's local address or last known telephone number may go
unanswered.
Department Response: The Department agrees with recommendation that
all SWA correspondence regarding a complaint be sent to the worker in
his/her native language would benefit English Language Learner (ELL)
MSFWs and would be consistent with some requirements at part 653 of
this chapter (i.e., assistance in understanding the terms and
conditions of employment must be provided in the worker's native
language if requested, and the provision of a checklist must be
provided in the workers native language where necessary). The
Department has added paragraph (n) to the regulatory text at Sec.
658.410 requiring complaint related correspondence between the
complainant and the SWA to be translated into the complainant's native
language. The Department has determined translating such correspondence
will ensure the complainant understands the status of the complaint and
whether he/she is required to take any action.
The Department also agrees it would be beneficial for the ES office
or the SWA to attempt to communicate with the MSFW in the manner most
likely to reach him/her, particularly via telephone. The Department
recommends that SWAs attempt communication via telephone with MSFWs;
however, the requirement for written notification stands as the
official means for notification because such correspondence helps both
parties maintain records of the complaint status.
The Department further agrees with the commenter that, in cases
where the
[[Page 56284]]
complainant has a designated representative and has requested that the
ES office or the SWA communicate through the representative, such
communication will facilitate complaint resolution and in cases where
the complainant is a MSFW who moves frequently, a representative may be
the most convenient individual to contact. The Department has added a
provision allowing a complainant to designate an individual to act as
his/her representative throughout the filing and processing of a
complaint to the regulatory text at Sec. 658.410(o). References to the
complainant's representative also were added to paragraphs (a)(3) and
(4) of Sec. 658.411. These changes are consistent with the references
to a complainant's representative that were included throughout
proposed Sec. 658.411. The Department received no comments on these
references and made no changes to the regulatory text. It is logical
that ES staff and SWAs following-up on such complaints must be able to
communicate with the complainant's representative if he/she has so
designated.
Comments: One commenter expressed concern that the ES office may
not necessarily be in the best position to determine on its own which
is the most appropriate referral for a worker with a wage claim,
possible Migrant and Seasonal Agricultural Worker Protection Act (AWPA)
violation, or sexual harassment complaint. The commenter suggested the
goal of the complaint process should be to facilitate MSFW's access to
enforcement agencies and other resources and not to become a source of
delay or obstacle. This commenter concluded that the Complaint System
regulations should provide MSFWs with the resources to make their own
informed choices about whether to attempt informal resolution or file a
complaint with an enforcement agency, rather than have the ES office
decide for them.
Department Response: The Department seeks to clarify that one of
the intentions of the Complaint System is to facilitate the resolution
of complaints for MSFWs and non-MSFWs. If an ES staff member or
outreach worker receives information about a possible violation of the
ES regulations or employment-related laws, it is incumbent upon that
individual to assist. Such assistance may mean taking a formal
complaint from the individual or, if that individual does not choose to
submit a complaint, the staff member must attempt resolution through
the apparent violation process outlined at Sec. 658.419. For concerns
that staff may not know the most appropriate avenue to refer the
worker, the Department notes the requirement for outreach workers to be
trained pursuant to Sec. 653.107(b)(7). For MSFWs with the resources
to make their own choice about whether to attempt informal resolution
or file a complaint, the Department clarifies that the complainant has
a choice to submit a formal complaint or allow the ES representative to
file an apparent violation. Either way, the ES staff must assist the
MSFW and attempt to resolve the situation; the tactics for resolving
the situation will vary depending on the issue. For example, EO and CRC
related complaints must be immediately logged and referred to the
appropriate enforcement agency.
Section 658.411(a) Filing Complaints
Comments: Two commenters recommended that Sec. 658.411(a)(3)
provide flexibility for staff to use other complaint forms, rather than
the Complaint/Referral Form prescribed or approved by the Department,
when it is immediately determined that the complaint falls under the
jurisdiction of another agency and such a complaint form is available.
These commenters asserted that such flexibility would be helpful
because most of the employment -related law complaints received by the
SWA involve allegations of lack of payment of wages, which mainly fall
under the jurisdiction of a different State agency.
Department Response: In response to these comments, the Department
has changed Sec. 658.411(a)(3) to provide the flexibility for SWA
staff to use other complaint forms rather than the Complaint/Referral
Form prescribed by the Department so long as the alternate form has
been approved by the Department. The Department included the
requirement that the alternate form be one approved by the Department,
to ensure the ability of the Department to track ES action on
complaints or apparent violations accurately. If SWAs use forms from
different agencies that the Department has not approved, it may make
tracking complaint resolution more challenging.
Comments: Regarding the requirement that ES office and SWA staff
consider complaints submitted via letter or email, two commenters
asserted that the regulatory text proposed does not provide sufficient
understanding of the difference between a customer concern that does
not require formal processing versus a formal complaint. While agreeing
with allowing such flexibility for customers to exercise their right to
file a complaint, these commenters requested guidance on what can be
considered as a signature in an email and what minimum information is
needed to establish that the SWA has sufficient information to initiate
an investigation. Expressing confusion regarding how complaints are
received and processed, some commenters requested the Department
provide clear and consistent guidance. Another commenter recommended
the Department eliminate the requirement for complaints to be signed to
permit MSFW representatives to file complaints on behalf of MSFWs.
Department Response: The Department will issue guidance explaining
the difference between a customer concern and a formal complaint,
including what can be considered a signature in an email, what minimum
information is needed to establish an investigation, and how to receive
and process complaints.
The Department does not agree that the requirement for complaints
to be signed by the complainant be eliminated as a signature is helpful
in processing complaints and referring complaints to the appropriate
enforcement agencies. However, the Department agrees it would be
helpful for MSFW complainants if a representative could file the
complaint on behalf the MSFW. The Department added language to Sec.
658.411(a)(3) allowing a MSFW or his/her representative to sign the
complaint if the MSFW has designated a representative pursuant to Sec.
658.410(o).
Comments: One commenter recommended the Department clarify the
language with respect to taking complaints to specify whether an ES
office must communicate the referral to the MSFW representative.
Department Response: The Department clarifies that when an MSFW (or
his/her representative) files a complaint at an ES office, the
Complaint System representative must follow-up with the complainant or
his/her representative if the complaint has been referred to an
enforcement agency.
Section 658.411(b) Complaints Regarding an Employment-Related Law
Comments: A few commenters objected to the proposed requirement
that local ES offices and SWAs attempt informal resolution of the
complaint. These commenters asserted that incorporating the additional
step of attempted informal resolution by the SWA staff would delay the
referral and investigation, and would become burdensome on the SMA. One
commenter stated that staff are not trained in how to conduct
investigations
[[Page 56285]]
and this process could directly interfere with a possible investigation
by an enforcement agency because it might cause the employer to be
alert of an onsite investigation. Another commenter expressed concern
that if informal resolution was achieved, the complaint would no longer
be referred to a relevant enforcement agency, which would result in the
agency not being able to document the allegation and the resolution
within their management information system.
Department Response: The Department clarifies that ``informal
resolution'' means an attempt to resolve an issue at the local level.
Such resolution may be conducted by the ES office Complaint System
representative and is intended to expedite resolution of certain
complaints. For example, the Complaint System representative can work
with the complainant and the employer to resolve miscommunications or
issues relating to wages or working hours, or in some cases, assist the
employer in coming into compliance with certain working or housing
conditions. Such mediation can be faster than referring the case to an
enforcement agency. However, the Department notes that not all issues
are appropriate for attempted informal resolution, such as most equal
opportunity (EO) or forced labor-related complaints (e.g., human
trafficking, sexual harassment, sexual coercion). In these cases, the
Department has added clarifying language to Sec. 658.411(b)(1)(ii)(B)
requiring the complaints be immediately logged and referred to the
appropriate enforcement agency for prompt action. Certain complaints
also are required to be immediately logged and referred, as discussed
in Sec. 658.411(c). The Department will issue guidance on informal
resolution and referring complaints/apparent violations. Regarding the
concern that informal resolution means that cases are not referred to
enforcement agencies, the Department notes that not all cases need to
be referred to an enforcement agency and in some cases, resolving the
issues at the local level achieves the best outcome for all parties.
Moreover, the Department requires SWAs track all complaints and
apparent violations which are then reported to the Department.
Therefore, the Department still receives such information for tracking
and analysis.
Comments: One commenter urged the Department to revise Sec.
658.411(b)(1)(ii) to specify that any MSFWs affected by an apparent
employment -related law violation should be given outreach materials
identifying the full range of agencies that may be able to assist them,
including health services and legal aid offices, regardless of whether
the ES office determines that a referral is necessary. If the issue is
not resolved within 5 business days, this commenter recommended the
workers be given the option of a referral to appropriate enforcement
agencies, legal aid organizations, or consumer advocate organizations,
regardless of whether the ES office determines that such referral is
appropriate. Expressing concerns about the level of discretion with
respect to the ES office decision to refer a MSFW's complaint regarding
an employment-related law, this commenter urged the Department to
revise Sec. 658.411(b)(1)(ii)(C) and (D) to make clear that referral
of a complaint is mandatory.
Department Response: The Department notes the regulatory text
requires outreach workers to explain to MSFWs at their working, living
or gathering areas the services available at the local one-stop center,
information on the Complaint System and on the other organizations
serving MSFWs in the area, and a basic summary of farmworker rights,
including their rights with respect to the terms and conditions of
employment. This explanation must be provided in a language readily
understood by the MSFWs. The Department interprets the provision of
such information to include health and legal aid services. Further, the
Department recommends through training and guidance that outreach
workers bring outreach material on the various services provided in the
area for the MSFWs. If an ES staff member observes or is in receipt of
information regarding an apparent violation, it may not be feasible to
provide affected MSFWs with the pertinent information at that time;
however, such information may be provided as a follow-up activity.
The Department clarifies that referring employment-related law
complaints to the appropriate enforcement agency after 5 days if the
complaint has not been resolved is required if the issue is not
resolved within 5 business days. The Department further seeks to
clarify that the statement, ``the representative must determine if the
complaint should be referred to . . .'' does not mean that the
representative must determine whether the complaint will be referred;
rather it means the representative must determine if the complaint
should be referred to ``the appropriate enforcement agency'' or
``another public agency'' or a ``legal aid organization,'' etc. Given
that the use of the word ``if'' in this sentence has caused confusion
and may be misinterpreted, the Department has changed the regulatory
text by rewording Sec. 658.411(b)(1)(ii)(C) as follows: If the issue
is not resolved within 5 business days, the representative must refer
the complaint to the appropriate enforcement agency (or another public
agency, a legal aid organization, or a consumer advocate organization,
as appropriate) for further assistance.
Comments: Regarding the Sec. 658.411(b)(2) requirement that the
SWA must initiate procedures for discontinuation of services if an
enforcement agency makes a final determination that the employer
violated an employment-related law, one commenter recommended the
Department require agencies to notify the SWA when such agency has made
a final determination. For non-Department agencies, this commenter said
it would support the development of a form to be used by all agency-
referred cases under the Complaint System that would request
notification of the outcome of the referral and explain the need for
the agency to inform the SWA of the results of the referred complaint.
Department Response: The Department agrees it would be helpful if
enforcement agencies notified the SWA when a final determination has
been made. In order to facilitate the communication, the Department
encourages SWAs to enter into agreements with enforcement agencies
regarding notification of final determination of complaints.
Section 658.411(c) Complaints Alleging a Violation of Rights Under the
Equal Employment Opportunity Commission (EEOC) Regulations or Enforced
by the Department of Labor's Civil Rights Center (CRC)
Comments: Two commenters requested clarification for handling
complaints alleging a violation of rights by employers, asking whether
all complaints must be forwarded to the EEOC if received at the local
or State level. One commenter recommended the Department revise Sec.
658.411(c) to require all complaints involving discrimination be
forwarded directly to the EEOC, rather than requiring the extra steps
of referring a local Equal Opportunity (EO) representative, who would
refer it to the State EO representative, who would then refer the case
to the EEOC. This commenter suggested that the extra steps would add a
layer of complexity and inevitable delay, which could be detrimental to
discrimination complaints given the short limitations period for filing
a charge of discrimination with the EEOC.
[[Page 56286]]
Another commenter asked whether the Sec. 658.411(c)(1) requirement
that the local Complaint System representative must refer the complaint
to a local EO representative would go to the local area EO officer or
the State EO officer.
Department Response: The Department clarifies the EO referral
process. When an ES office or a SWA receives an EO-related complaint,
the complaint must immediately be logged and referred to either the EO
representative at the local or State level, or the EEOC. Once the EO
representative has received the referral, he/she will make a
determination as to whether it is appropriate to resolve the complaint
at that level, or if it should be referred to a different level (e.g.,
a State EO representative may determine that the case would most
appropriately be resolved by the EEOC, or the EEOC may determine that
the case would most appropriately be resolved by the State EO
representative). In order to clarify this in the regulatory text, the
Department removed Sec. 658.411(c)(3) through (4) and clarifies in
(c)(1) that EO-related complaints immediately must be logged and
referred to an EO representative for appropriate handling. The
Department further seeks to clarify that SWAs should not attempt
informal resolution on EO-related complaints or apparent violations as
these matters are highly sensitive and require trained EO
investigators.
The Department has also edited Sec. 658.411(c)(1) and (2) to make
the regulatory text consistent with the anti-discrimination protections
in 29 CFR part 38 and the role of the Department's Civil Rights Center.
Section 658.411(d) Complaints Regarding the ES Regulations
Comments: Noting that many MSFWs do not have a reliable, permanent
mailing address, one commenter urged the Department to revise Sec.
658.411(d) to provide that, when the local ES office needs additional
information from the complainant, the office should communicate with
the complainant in the way most likely to reach him or her, such as by
cell phone or social media. If the complainant fails to respond, and
the ES office determines that it is unable to resolve the complaint or
complete the investigation without the requested information, this
commenter suggested that the complaint be referred to the SMA to
determine whether further action is possible. In addition, this
commenter recommended the Department revise Sec. 658.411(d)(2) to
include allowing for filing of a complaint by email.
Department Response: Regarding the commenter's suggestion at Sec.
658.411(d) for the Department to provide that, when the ES office needs
additional information from the complainant, the office should
communicate with the complainant in the way most likely to reach him or
her, such as by cell phone or social media, the Department agrees that
it would be beneficial for the ES office to attempt to communicate with
the MSFW in the manner most likely to reach him/her, particularly via
telephone. However, the Department has concerns about attempting to
contact the MSFW via social media, as social media may not be a private
communication forum. The Department recommends that SWAs attempt
communication via telephone with MSFWs pursuant to Sec. 658.411(d);
however, the requirement for written notification stands as the
official means for notification because such correspondence helps both
parties maintain records of the complaint status.
Regarding the suggestion for the ES office to refer a complaint to
the SMA if the complainant has not responded, the Department does not
deem this necessary due to its change to the regulations at Sec.
658.400(a) whereby the Complaint System now covers ES-related
complaints made within 2 years of the alleged violation. Increasing the
limitations period to 2 years will provide greater protections to those
participating in the ES by accommodating those individuals who may not
be able to file complaints within a year from the alleged occurrence.
No change was made to the regulatory text in response to these
comments.
In response to the suggestion to allow filing a complaint by email,
the Department notes it proposed in the NPRM that a complaint could be
filed by email and has made no change to the regulatory text at Sec.
658.411(a)(4).
The Department made technical corrections to clarify in (d)(2)(i)
that the complaint would be in regard to an ``alleged'' violation of
the ES regulations and also that the appropriate ES office Complaint
System representative must investigate and attempt to resolve the
complaint immediately upon receipt if all necessary information has
been submitted to the ES office pursuant to paragraph (a)(4)). The
Department corrected the cross-references and corresponding language in
the regulatory text at paragraphs (d)(2)(ii), (d)(3)(ii), and
(d)(4)(ii).
Section 658.411(e) Resolution of Complaints
Comments: Suggesting the NPRM would disproportionately dismiss MSFW
complaints, one commenter recommended the Department eliminate
complaint resolution based on the complainant's failure to respond
within 20 working days or 40 working days if the worker is a MSFW.
Discussing the barriers MSFWs might face in promptly responding to
requests for information, the commenter asserted that MSFWs generally
have limited access to mail services, as mail delivered to labor camps
may be distributed sporadically and is often screened by employers
prior to delivery. Moreover, according to this commenter, a MSFW may
move several times over the course of the season and often does not
know what his or her physical address will be in the future. While
stating that allowing for email correspondence is helpful, this
commenter cautioned that few labor camps have internet access and
workers often do not own cell phones or have an alternative means to
access email. This commenter further suggested the Department either
expand the deadline for complaint resolution to 1 year or, or in the
alternative, allow a provision for MSFWs to reopen complaints within 1
year of being closed for failure to respond to a request for
information. Reasoning that many MSFWs return to the same area each
year for a particular crop, this commenter asserted that establishing a
1-year deadline would allow for the possibility that a worker would
return to the same area and be able to respond to requests for
information related to the complaint.
Department Response: The Department agrees that because MSFWs move
so frequently, it can be difficult for them to receive mail. The
Department seeks to ensure that complaints may be followed through to
resolution without placing a burden on the complainant or the SWA. The
Department has determined that allowing a MSFW to reopen a case after 1
year, as the commenter suggested, is appropriate. It is consistent with
the provision in Sec. 658.400(a) that allows a complainant to file a
complaint with a 2-year limitations period. Such flexibility also
ensures the Department is taking into account the unique needs of MSFWs
and helping such individuals resolve complaints. The Department does
not anticipate an increased burden on the SWA because the complaint
would already be filed with the SWA. Even if the complaint was closed,
the complainant could issue another complaint (regarding the same issue
but
[[Page 56287]]
opening it as a new complaint) because of the 2-year limitations
period. It would not place an additional burden on the SWA because the
SWA would not need to open a new complaint. Instead, it would reopen
the original complaint and have access to much of the information
needed to process the complaint. The Department added Sec. 658.411(f)
to give a complainant the opportunity to reopen a complaint up to 1
year after the SWA has closed the case.
Comments: One commenter urged the Department to require the
reviewer to verify whether any lack of response from a MSFW is
intentional (i.e., the MSFW actually received the request) before
dismissing a complaint, such as by phone call, email, return mail
receipt, or personal delivery by outreach workers.
Department Response: The Department has determined that requiring
the reviewer to verify whether any lack of response from a MSFW is
intentional would be too great a burden on the SWA and would be too
subjective in nature to establish any continuity across the States. No
change was made to the regulatory text in response to this comment.
Section 658.419 Apparent Violations
Comments: Regarding the proposed requirement to refer apparent
violations of employment-related laws to ES office managers, one
commenter recommended that if the apparent violation involves MSFWs,
the SMA also should receive a copy of the documentation.
Department Response: The Department notes that data pertaining to
apparent violations will be sent to SMAs as such information is
required in the Labor Exchange Agricultural Reporting System (LEARS).
No change was made to the regulatory text in response to this comment.
Comments: One commenter requested clarification as to whether the
move of the Apparent Violations section from the MSFW section to the
Complaint System section is an indication that it applies to all
employment industries.
Department Response: The Department notes the Richey Order requires
it to ensure that each State or ES office ``refer every violation of
State or Federal law of which it has knowledge to appropriate State or
Federal enforcement officials, including officials or other agencies of
DOL and of Federal agencies and departments other than DOL, and utilize
to the maximum possible extent the full resources of the DOL monitor/
advocate system in expediting such referrals.'' In this light, the
Department takes it upon itself to ensure that any violation is
appropriately referred while taking into account the procedures
outlined at part 658, subpart E. Furthermore, the Department seeks to
clarify that the Complaint System as stated at Sec. 658.400(a) handles
complaints against an employer about the specific job to which the
applicant was referred through the ES, and complaints involving the
failure to comply with the ES regulations under this part; the
Complaint System also accepts, refers, and, under certain
circumstances, tracks complaints involving employment-related laws. The
Department interprets the mandates of the Richey Order to apply to
industries outside of farm work, however the Complaint System
explicitly contemplates only what is described at part 658, subpart E.
Section 658.420 Responsibilities of the Employment and Training
Administration Regional Office
While the Department did not receive comments regarding Sec.
658.420, it changed the language in paragraphs (b)(1) and (2) to make
it consistent with current civil rights provisions in WIOA sec. 188 and
the implementing regulations at 29 CFR part 38. It also added an
exception in paragraph (c) to complaints filed pursuant to paragraphs
(b)(1) and (2), and added the following sentence, ``The RMA must
follow-up monthly on all complaints filed by MSFWs including complaints
under (b)(1) and (b)(2).'' These changes are consistent with current
practice and were added for clarity.
Section 658.421 Handling of Employment Service Regulation-Related
Complaints
Comments: Suggesting the Department clarify the role of the
Regional Administrator in the ES complaint process, one commenter
recommended the Department revise Sec. 658.421 such that complainants
who allege a violation of the ES regulations may bring a complaint
directly to the Regional Administrator, especially in situations where
the administrative exhaustion procedures in Sec. 658.421(a)(1) are
likely to adversely affect workers.
Department Response: The Department has changed the language of
Sec. 658.421(a)(2) to clarify that this section allows for a complaint
to be filed with the Regional Administrator and if the Regional
Administrator determines that the nature and scope of a complaint
described in paragraph (a) of this section is such that the time
required to exhaust the administrative procedures at the SWA level
would adversely affect a significant number of individuals, the RA must
accept the complaint and take certain actions.
Section 658.422 Handling of Employment-Related Law Complaints by the
Regional Administrator
Comments: One commenter recommended the Department clarify in Sec.
658.422 that complainants may submit employment-related law complaints
directly to the Regional Administrator, commenting that the proposed
text of this section did not clarify what office should take the
complaints.
Department Response: The Department agrees the language in Sec.
658.422 was not explicit in stating that employment-related law
complaints could be filed directly with the Regional Administrator and
that only the title alluded to such a process. The Department added
paragraph (a) that makes this explicit in the regulatory text of this
section. The remaining paragraphs have been renumbered accordingly.
Paragraph (c) has also been changed to clarify that complaints received
from non-MSFWs must be logged, just as complaints from MSFWs under
paragraph (b).
3. Subpart F--Discontinuation of Services to Employers by the
Employment Service
Comments: A few commenters requested general clarification
regarding proposed part 658, subpart F. These commenters stated they
were unclear as to the process and impact of these regulations.
Department Response: The Department will issue guidance on part
658, subpart F.
Section 658.501 Basis for Discontinuation of Services
Comments: Relating to outreach workers' access to employer sites,
one commenter noted proposed Sec. 658.501(a)(7) continues the
requirement for the SWA to initiate discontinuation of services to a
grower who refuses to cooperate in the conduct of field checks pursuant
to Sec. 653.503. The commenter states this means an employer would not
face a penalty for failing to permit outreach workers access to MSFWs
to perform outreach duties. As such, this commenter recommended the
Department revise Sec. 658.501(a)(7) to require State agencies
initiate discontinuation of services to employers who interfere with
the access rights of State agency or nonprofit organization outreach
workers or fail to provide those workers with reasonable access to
MSFWs.
[[Page 56288]]
Department Response: The Department notes Sec. 658.501(a)(2)
provides the basis for discontinuation of services if an employer
submits a job order and refuses to provide assurances, in accordance
with 20 CFR part 653, subpart F. The attachment to the ETA Form 790
includes a requirement whereby ``the employer also assures that
outreach workers shall have reasonable access to the workers in the
conduct of outreach activities pursuant to 20 CFR 653.107.'' The
Department further notes that Sec. 658.501(a)(3) states
discontinuation of services will apply if the employer is found to have
failed to comply fully with assurances made on job orders. The
Department has determined that an employer who does not grant outreach
workers reasonable access to MSFWs as required in the assurances
attachment to the ETA Form 790 may be subject to discontinuation of
services pursuant to part 658, subpart F. No changes have been made to
the regulatory text in response to this comment. However, the
Department seeks to clarify that the subject of granting outreach
workers employed by nonprofit organizations access to MSFWs hired
through the ES is beyond the scope of the Department.
Section 658.504 Reinstatement of Services
Comments: Noting that proposed subpart F did not include a minimum
time during which services are to be discontinued, one commenter
recommended the period of discontinuation of services should be no less
than 2 years if an employer is found to have engaged in the misconduct
set forth in Sec. 658.501. Regarding the restitution provision at
Sec. 658.504(a)(2)(ii), this commenter urged the Department to require
services to be discontinued until the employer provides restitution to
all workers who are harmed by the employer's conduct, rather than
requiring restitution only to the complainant. The commenter asserted
that requiring restitution to only the complainant would give an
employer incentive to violate the terms of the job order.
Department Response: The Department disagrees with the commenter
about the suggestion to impose a minimum time during which services
must be discontinued. The Department disagrees because the time will
vary for an employer to remedy the situation. Once an employer remedies
the issue, employment services may resume (except where the employer
has undergone the discontinuation of services pursuant to Sec.
658.501(a)(8)). Regarding the suggestion for the Department to require
the discontinuation of services continue until an employer provides
restitution to all workers who were harmed by the employer's conduct,
the Department proposes that such a determination must be made on a
case-by-case basis by the appropriate enforcement agency. No changes
have been made to the regulatory text in response to this comment.
4. Subpart G--Review and Assessment of State Workforce Agency
Compliance With Employment Service Regulations
Comments: Expressing support for the flexibility and understanding
of things outside of a State agency's control relative to performance
outcomes, a few commenters recommended the Department extend this
flexibility and understanding to local areas.
Department Response: The Department acknowledges these comments. As
SWAs are the Department's grantees, the Department recommends
commenters request any additional local flexibility (outside what is
required in these regulations) through the SWA.
Section 658.601 State Workforce Agency Responsibility
Comments: Regarding the self-appraisal system for ES operations to
determine success in reaching goals and correct deficiencies in
performance, one commenter requested the Department take into account
statistical adjustments regarding economic conditions and participant
characteristics which may be a factor when identifying plan goals.
Department Response: The Department notes WIOA sec. 102 requires
the State Plan include an analysis of the economic conditions in the
State and WIOA sec. 116 requires the Department to take into account
participant characteristics. Because such information is required under
WIOA, the Department agrees with the commenter and will take
statistical adjustments regarding economic conditions and participant
characteristics into account. The Department received no other comments
on subpart G, and made no changes to the regulatory text except for
occasional non-substantive editorial changes, and changes from USES to
``Employment Service System or ES System,'' to be consistent with the
changes made in part 651.
VI. Rulemaking Analyses and Notices
A. Executive Orders 12866 and 13563: Regulatory Planning and Review
Executive Order (E.O.) 12866 directs agencies, in deciding whether
and how to regulate, to assess all costs and benefits of available
regulatory alternatives, including the alternative of not regulating.
E.O. 13563 is supplemental to and reaffirms E.O. 12866. It emphasizes
the importance of quantifying current and future costs and benefits;
directs that regulations be developed with public participation; and
where relevant and feasible, directs that regulatory approaches be
considered that reduce burdens, harmonize rules across agencies, and
maintain flexibility and freedom of choice for the public. Costs and
benefits should include both quantifiable measures and qualitative
assessments of possible impacts that are difficult to quantify. If
regulation is necessary, agencies should select regulatory approaches
that maximize net benefits. The Office of Management and Budget (OMB)
determines whether a regulatory action is significant and, therefore,
is subject to review.
Section 3(f) of E.O. 12866 defines a ``significant regulatory
action'' as any action that is likely to result in a rule that could:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising from legal mandates,
the President's priorities, or the principles set forth in E.O. 12866.
The Final Rule is not a significant regulatory action under sec.
3(f) of E.O. 12866. The economic effects of the costs and transfers
(i.e., monetary payments from one group to another that do not affect
total resources available to society) that will result from the changes
in this Final Rule are not economically significant because they are
less than $100 million for the first year and all subsequent years
after implementation of the rule.
Outline of the Analysis
Section V.A.1 describes the need for the DOL WIOA Final Rule, and
section V.A.2 describes the alternatives that were considered in the
DOL WIOA NPRM. Section V.A.3 summarizes the public comments received
related to the NPRM, and provides the Department's
[[Page 56289]]
responses to the comments. Section V.A.4 describes the process used to
estimate the costs of this rule and the general inputs used such as
wages and number of affected entities. Section V.A.5 explains updates
made to the assumptions and inputs used in the analysis of this Final
Rule relative to the assumptions and inputs used in the analysis of the
NPRM. Section V.A.5 also describes how these changes affected the costs
and transfers of this Final Rule. Section V.A.6 describes how the
provisions of this Final Rule will result in quantifiable costs and
transfers and presents the calculations the Department used to estimate
them. Finally, section V.A.7 summarizes the estimated first-year and
10-year total costs and transfers and describes the qualitative
benefits of this Final Rule.
Summary of the Analysis
The Department provides the following summary of the Regulatory
Impact Analysis:
(1) This Final Rule is not an ``economically significant rule''
under sec. 3(f)(4) of E.O. 12866.
(2) This Final Rule is not expected to have a significant cost
impact on a substantial number of small entities.
(3) This Final Rule will not impose an unfunded mandate on Federal,
State, local, or tribal governments as defined by the Unfunded Mandates
Reform Act of 1995.
In total, the Department estimates that this Final Rule will
generate costs and transfer payments. As shown in Exhibit 1, this Final
Rule is estimated to have an average annual cost of $35.0 million and a
total 10-year cost of $278.8 million (with 7-percent discounting). In
addition, the Final Rule is estimated to result in annual transfer
payments of $12.9 million and total 10-year transfer payments of $96.9
million (with 7-percent discounting).
Exhibit 1--Estimated Monetized Costs and Transfer Payments of the Final
Rule
[2015 dollars]
------------------------------------------------------------------------
Total costs Transfers ($
($ mil) mil)
------------------------------------------------------------------------
Undiscounted 10-Year Total.............. $350.4 $128.9
10-Year Total with 3% Discounting....... 314.9 113.2
10-Year Total with 7% Discounting....... 278.8 96.9
10-Year Average......................... 35.0 12.9
Annualized with 3% Discounting.......... 36.9 13.3
Annualized with 7% Discounting.......... 39.7 13.8
------------------------------------------------------------------------
The largest contributor to the total cost of this Final Rule is the
requirement related to the development and continuous improvement of
the workforce development system, followed by the Local WDBs career
pathways development and the colocation of ES services. See the cost
subsection of section V.A.6 (Subject-by-Subject Analysis) below for a
detailed explanation.
The Department was unable to quantify several important benefits to
society due to data limitations and a lack of existing data or
evaluation findings. We describe qualitatively the benefits related to
required competition for all one-stop operators. In addition, based on
a review of empirical studies (primarily studies published in peer-
reviewed academic publications and studies sponsored by the
Department), the Department identified the following societal benefits:
(1) Training services increase job placement rates; (2) participants in
occupational training experience higher reemployment rates; (3)
training is associated with higher earnings; and (4) State performance
accountability measures, in combination with the Board membership
provision requiring employer representation, is expected to improve the
quality of the training and, ultimately, the number and caliber of job
placements. The Department identified several channels through which
these benefits might be achieved: (1) Better information about training
providers enables workers to make more informed choices about programs
to pursue; (2) sanctions on under-performing States serve as an
incentive for both States and local entities to monitor performance
more effectively and to intervene early; and (3) enhanced services for
dislocated workers, self-employed individuals, and workers with
disabilities lead to the benefits discussed above.
In addition, the Final Rule will result in transfer payments. The
Department estimates that this Final Rule will result in annual average
transfer payments of $12.9 million and a total 10-year transfer payment
of $96.9 million (with 7-percent discounting). These transfers result
from increased funding for targeting out-of-school youth (OSY). See the
transfer subsection of the section V.A.6 (Subject-by-Subject Analysis)
below for a detailed explanation.
1. Need for Regulation
Public Law 113-128, the Workforce Innovation and Opportunity Act
(WIOA), enacted on July 22, 2014, statutorily requires publication of
implementing regulations, if required, no later than 180 days after the
date of enactment. The Department has determined that implementing
regulations are necessary for the WIOA program to be operated
efficiently and effectively and that such regulations shall provide
Congress and others with uniform information necessary to evaluate the
outcomes of the new workforce law.
2. Alternatives in Light of the Required Publication of Regulations
OMB Circular A-4, which outlines best practices in regulatory
analysis, directs agencies to analyze alternatives outside the scope of
their current legal authority if such alternatives best satisfy the
philosophy and principles of E.O. 12866. Although WIOA provides little
regulatory discretion, the Department assessed, to the extent feasible,
alternatives to the regulations.
In the NPRM, the Department considered significant alternatives to
accomplish the stated objectives of WIOA, while also seeking to
minimize any significant economic impact of the Final Rule on small
entities. This analysis considered the extent to which WIOA's
prescriptive language presented regulatory options that also will allow
for achieving the Act's articulated program goals. The Department, in
many instances, has reiterated the Act's language in the regulatory
text, and has expanded some language to provide clarification and
guidance to the regulated community. The additional regulatory guidance
should result in more efficient administration of the program by
reducing ambiguities and
[[Page 56290]]
subsequent State and local revisions because of unclear statutory
language.
In addition, the Departments considered the issuance of sub-
regulatory guidance in lieu of additional regulations. This policy
option has two primary benefits to the regulated community. First, sub-
regulatory guidance will be issued following publication of the Final
Rule, thereby allowing States and local areas additional time to adhere
to additional guidance. Second, sub-regulatory guidance is more
flexible, allowing for faster modifications and any subsequent
issuances, as necessary.
The Department considered two possible alternatives in the NPRM:
(1) Implement the changes prescribed in WIOA, as noted in this
Final Rule, thereby satisfying the statutory mandate; or
(2) Publish no regulations and rescind existing WIA final
regulations, thereby ignoring the WIOA statutory requirement to publish
implementing regulations, thus forcing the regulated community to
follow statutory language for implementation and compliance purposes.
The Department considered these two options in accordance with the
provisions of E.O. 12866 and chose to publish the WIOA Final Rule--that
is, the first alternative. The Department considered the second
alternative--retaining existing WIA regulations as the guide for WIOA
implementation--but concluded that the requirements have changed
substantially enough that new implementing regulations are necessary
for the public workforce system to achieve program compliance. The
Department considered, but rejected, the third alternative--not to
publish an implementing regulation and rescind existing WIA final
regulations--because the WIOA legislative language, inherently, does
not provide sufficient detailed guidance to implement WIOA effectively;
regulations are necessary to achieve program compliance.
In addition to the regulatory alternatives noted above, the
Department also considered phasing in certain elements of WIOA over
time (different compliance dates), thereby allowing States and
localities more time for planning and successful implementation. As a
policy option, this alternative appears appealing in a broad
theoretical sense and, where feasible (e.g., Wagner-Peyser Act
colocation of services), the Department has recognized and made
allowances for different implementation schedules. Upon further
consideration and to begin to achieve the intended legislative benefits
of WIOA, however, additional implementation delays beyond those noted
in this Final Rule could outweigh the benefits of alternative starting
dates. Specifically, because many critical WIOA elements depend on the
implementation of other provisions (e.g., technology and performance
reporting are intrinsically related), discussions indicated that the
alternative of delaying additional aspects was operationally
infeasible.
Furthermore, in assessing alternatives (e.g., different
requirements for different-sized firms) the data necessary to review
this option fully will not exist until Local WDBs conduct procurements
and announce awards. Similarly, performance standards will be
negotiated at a future time and will be based on a variety of factors,
including State and local economic conditions, resources, and
priorities. Establishing standards in advance of this statutorily
defined process might not be efficient or effective. The enforcement
methods described in the Final Rule reflect prescribed WIOA
requirements, and entity size, in and of itself, should not create
alternative methods for compliance or different periods for achieving
compliance. The Department has not determined sufficiently valid
reasons for altering compliance timeframes beyond those described in
the Final Rule for small entities.
The Department's impact analysis has concluded that, by virtue of
WIOA's prescriptive language, particularly the requirement to publish
implementing regulations within 180 days, no available regulatory
alternatives other than those discussed above are viable.
3. General Comments Received on the Economic Analysis in the Notice of
Proposed Rulemaking
The Department received several public comment submissions that
addressed the economic analysis in the NPRM. The Department considered
the comments received. The significant comments and summaries of the
Department's analyses and determinations are discussed below.
a. A Status Quo Alternative in the Cost-Benefit Analysis
In the NPRM, after considering two possible alternatives: (1)
Implement the changes prescribed in WIOA, or (2) not publish regulation
and rescind existing WIA final regulations, the Department chose the
first alternative.
Comments: Several commenters stated that the Department is required
to present alternatives to the rule and explain why those alternatives
were not selected instead of the approach chosen for the rule. The
commenters suggested that the Department should choose the long-
standing status quo as an alternative, which would maintain the current
system. The commenters stated that the current system has worked for
more than 40 years and would avoid problems that the rule would create.
Department Response: The economic analysis involves assessing one
or more regulatory alternatives against the status quo. OMB's Circular
A-4 provides guidance to agencies for conducting a cost-benefit
analysis and explains that each agency should consider alternative
regulatory approaches and properly evaluate the costs and benefits of
regulations and their alternatives.\1\ An agency, however, is not
required to consider the status quo as a regulatory alternative. As is
frequently the case, for this rule, the status quo is the same as the
baseline, which is the situation likely to occur in the absence of
regulation.
---------------------------------------------------------------------------
\1\ OMB (2003) Circular A-4 Retrieved from: https://www.whitehouse.gov/omb/circulars_a004_a-4/.
---------------------------------------------------------------------------
b. Contextualizing Workforce Innovation and Opportunity Act Costs
In the NPRM, to contextualize the cost of the proposed rule, the
Department expressed the annual cost of the NPRM as being between 1.1
and 1.2 percent of the average annual cost of WIA over fiscal year (FY)
2012 through FY 2014 (using 3-percent and 7-percent discounting,
respectively). The average annual budget for WIA implementation from FY
2012 through FY 2014 for the Department was $2.8 billion.
Comments: One commenter objected to the NPRM's discussion of the
incremental burden of WIOA as a proportion of the Department's annual
$2.8 billion WIA budget. Another commenter stated that contextualizing
WIOA costs in terms of the WIA budget does not reflect the complexities
of implementing WIOA. These commenters suggested that comparing the
incremental WIOA burden against the administrative funds available to
States would be more accurate because these would be the funding source
for most of the new requirements.
In addition, one commenter stated that the Department did not
provide its source of the average annual WIA budget estimate. The
commenter cited DOL's Training and Employment Services budget as a
proxy, which showed that the Department's funding decreased 1.8 percent
from FY 2014 to FY 2015. This percentage is greater than the 1.1 to 1.2
percent of the estimated
[[Page 56291]]
WIOA implementation costs presented in the NPRM.
Department Response: In this Final Rule, the Department presents
the incremental burden of WIOA both as a proportion of the average
annual budget for WIA implementation of $3.5 billion and as a
proportion of the administration and transition funds that might be
used for WIOA implementation.\2\ The source of the average annual
budget for WIA implementation is the Employment and Training
Administration (ETA) budget Web sites.\3\ The Department summed the WIA
funding for the adult, dislocated worker, youth, and ES programs for
each fiscal year from 2012 to 2014 and then averaged the sum over the
3-year period. For the adult and dislocated worker programs, each
fiscal year's funding is calculated as the sum of the program year's
July funding and the previous program year's October funding. The youth
program's and ES program's funding are obligated to States in April and
July, respectively, and therefore corresponds to the fiscal year in
which it is obligated.
---------------------------------------------------------------------------
\2\ This value increased from $2.8 billion in the NPRM to $3.5
billion in the Final Rule because the Department added WIA funding
for the Wagner-Peyser Act ES program from FY 2012 to FY 2014 and the
funding was inflated to 2015 dollars. The Department calculated the
inflation factor using data from Table 24. ``Historical Consumer
Price Index for All Urban Consumers (CPI-U): U.S. City Average, All
Items.''
\3\ U.S. Department of Labor, Employment and Training
Administration. (2015). Archive of State Statutory Formula Funding.
Retrieved from: https://www.doleta.gov/budget/py01_py09_arra_archive.cfm. The Department used data from the
following files to estimate the average annual WIA budget: WIA Adult
Activities Program (Program Years [PYs] 2011, 2012, 2013, and 2014);
WIA Dislocated Worker Activities Program (PYs 2011, 2012, 2013, and
2014); and WIA Youth Activities (PYs 2012, 2013, and 2014). The
youth activities funding is obligated to States in April and
therefore corresponds to the fiscal year in which it is obligated.
The Department inflated the funding for each fiscal year, so that
the average annual WIA budget is in 2015 dollars.
U.S. Department of Labor, Employment and Training
Administration. (2015) State Statutory Formula Funding. Retrieved
from: https://www.doleta.gov/budget/statfund.cfm. The Department
also used data from the following files to estimate the average
annual WIA budget: Employment Services Program Dollar Tables (PYs
2012, 2013, and 2014). The youth activities funding is obligated to
States in April and therefore corresponds to the fiscal year in
which it is obligated. The Department inflated the funding for each
fiscal year, so that the average annual WIA budget is in 2015
dollars.
---------------------------------------------------------------------------
c. Workforce Investment Act Costs
Comments: One commenter suggested that the Department should have
conducted a cost-benefit analysis for both WIA and WIOA. The commenter
also indicated that any estimates from the original WIA regulations are
outdated.
Department Response: The Department estimated incremental costs of
WIOA from WIA as the baseline. Although we did not quantify the WIA
baseline, to the extent possible, we considered the WIA baseline when
estimating the incremental burden. In addition, this analysis includes
no cost-benefit estimates associated with the WIA regulations.
d. Wage Rate Assumptions
To estimate the cost of the requirements in the NPRM, the
Department multiplied the amount of time required to perform an
activity by workers' hourly mean wage rates for their occupational
categories and the loaded wage factors to reflect total compensation,
which includes non-wage factors such as health care and retirement
benefits.
Comments: One commenter asked the Department to provide the sources
of the estimated wage rates and the loaded wage factors.
Department Response: In the NPRM, the Department used the 2013
Bureau of Labor Statistics (BLS) wage rates for State government
employees, including hospitals and schools, for State and local
employees based on the general occupational category of the workers who
would perform the proposed activities. The loaded wage factor is based
on the employer cost for employee compensation data contained in the
BLS Employment Cost Index.
For the Final Rule, please refer to section V.A.4 (Analysis
Considerations) for a description of the sources of the occupational
categories and the loaded wage factor.
e. Burden Estimation Process
Comments: One commenter asked the Department to clarify the process
and assumptions used to develop the labor burden estimates for the rule
requirements.
Department Response: To develop the labor burden estimates of the
rule, the Department considered how much effort would be required for
each activity needed to meet the requirements relative to the baseline
(i.e., the current practice under WIA). We consulted with ETA program
experts to obtain estimates. Please refer to section V.A.4 (Analysis
Considerations) for a description of how the Department estimated the
burden for this Final Rule.
f. Underestimated Costs
In the NPRM, the Department estimated that the rule would result in
an undiscounted total 10-year cost of $384.4 million.
Comments: A few commenters stated that costs for many requirements
were significantly underestimated in the NPRM by the Department. They
also pointed out that the only costs quantified in the NPRM were new
implementation costs and ongoing costs of required activities carried
over from WIA were not considered in the NPRM.
Department Response: The commenters did not provide any cost data
to substantiate their assertion that the Department significantly
underestimated the costs of the requirements in the NPRM. The
Department accurately estimated the compliance costs to affected
entities to the extent possible based on best available information and
program experience. We acknowledge, however, that our cost estimates
are subject to potential uncertainty in, and variability of, the data
and assumptions used in the analysis. Nevertheless, these cost
estimates represent the Department's expert judgment regarding the
additional labor and capital costs associated with the new
requirements. Although we did not quantify the WIA baseline, we
considered the WIA baseline to the extent possible when estimating the
incremental burden associated with implementing this WIOA-required
Final Rule by the requirements of Executive Order 13563, Executive
Order 12866, and OMB Circular A-4. This analysis includes no cost-
benefit estimates associated with the WIA regulations.
g. Data Reporting Requirements
In the NPRM, the Department requested public comments on the
challenges and benefits of requiring additional data elements in
quarterly wage reports, including: (1) Program participants' social
security numbers; (2) the wages program participants earn after exiting
the program; and (3) the names, addresses, States, and (when known) the
Employer Identification Numbers of the employers paying those wages.
Comments: One commenter estimated that the initial and ongoing
costs of modifying its reporting system to accommodate a new data
element on employer wage reports would be approximately $2 million and
that this estimate does not account for other costs associated with
reporting additional information. The commenter stated that costs
associated with audits and delinquent reporting reviews would increase
if additional elements were added to wage reporting.
[[Page 56292]]
Several commenters stated that WIOA's data collection requirements
would require a large effort to track, record, validate, and report;
the commenters also found some of the data to be questionable. The
commenters stated that these proposed requirements would cause hardship
for small States with limited funding.
Department Response: The Department's program experts estimated the
costs of data reporting requirements under WIOA based on their program
experience and consultations with State and local programs. The costs
of modifying the reporting system will vary by size of the program;
therefore, the Department used average cost estimates in the analysis.
The Department did not quantify benefits of the data reporting
requirements related to improved performance reporting and program
evaluation.
h. Mandatory Employment and Services
Comments: One commenter questioned whether any analysis was
available that estimated the projected cost of mandated employment and
services to youth and students with disabilities.
Department Response: The Department is unaware of any cost analysis
of mandated employment and services to youth and students with
disabilities in the United States. The Department does not mandate
supported employment in this DOL WIOA Final Rule.
i. Migrant and Seasonal Farmworker Housing--Estimated Impact on
Employers
In the NPRM, the Department estimated that most of the
approximately 6,400 U.S. employers who hire foreign workers under the
H-2A program and who already provide housing would not be affected by
the NPRM because Occupational Safety and Health Administration (OSHA)
housing standards apply more frequently than the ETA standards for
housing investigations. Specifically, the Department estimated that
every region, except the Northeast and Pacific Northwest, has
agricultural housing that predominantly falls under the OSHA standards.
Compliance, however, varies by State. For example, housing inspections
in Colorado and Wyoming largely fall under ETA standards.
Comments: Four commenters rejected the argument that most employers
who hire foreign workers under the H-2A program would not be affected.
For example, commenters cited that 65 to 75 percent of housing units in
Virginia follow ETA standards with southern States having similar
rates. These commenters objected to the Department's method for
estimating the total number of employers affected by the housing
provision. They suggested that, instead of basing its analysis on
approximations and assumptions due to a lack of housing data, the
Department should ask State Workforce Agencies, which inspect housing
H-2A workers use and operate on behalf of DOL to report data on the
number of housing units inspected. Alternatively, the Department should
contact agricultural employers for cost estimates. Several commenters
provided estimates.
Department Response: The Department agrees that some State
Workforce Agencies may be able to provide the number of housing units
subject to OSHA or ETA standards. In the Final Rule, however, the
Department is rescinding the proposal to establish an expiration date
for the ETA standards in order to transition housing currently governed
by the ETA standards to the OSHA standards. Therefore, estimating the
number of affected employers is no longer necessary for this rule.
j. Migrant and Seasonal Farmworker Housing--Cost Estimates
In the NPRM, the Department did not quantify the costs associated
with the provision related to Migrant and Seasonal Farmworker (MSFW)
housing. The Department asked the public to provide comments on: (1)
The number of housing units farmworkers use, (2) the percentage of
housing units that currently fall under the ETA standards, and (3) the
cost to change from ETA to OSHA standards.
Comments: Several commenters objected that the cost of provision
(w) ``Migrant and Seasonal Farmworker (MSFW) Housing'' was not
quantified.
Department Response: In the Final Rule, the Department is
rescinding its proposal to establish an expiration date for the ETA
standards in order to transition housing currently governed by the ETA
standards to the OSHA standards. Therefore, farmers will experience no
additional costs because of this rule.
k. Migrant and Seasonal Farmworker Housing--Benefits
Department Response: In the Final Rule, the Department is
rescinding its proposal to establish an expiration date for the ETA
standards in order to transition housing currently governed by the ETA
standards to the OSHA standards. Therefore, neither farmers nor
farmworkers will experience benefits related to this provision because
of this rule.
l. Initial Regulatory Flexibility Analysis
Comments: Numerous commenters suggested that the Department failed
to comply with the requirements of the Regulatory Flexibility Act by
not preparing an Initial Regulatory Flexibility Analysis (IRFA) and
making the IRFA available for public comment. The commenters stated
that the IRFA must describe the impact of the proposed rule on small
entities and present alternatives to the proposed rule that would
minimize the impact while accomplishing the stated objectives of the
applicable statutes. In doing so, the IRFA must meet certain guidelines
regarding why the action is being taken, the estimate of small entities
to which the proposed rule would apply, and the discussion of
alternatives.
Department Response: The Department certifies that this rule will
not have a significant economic impact on a substantial number of small
entities because they already receive financial assistance under the
WIA program and likely will continue to do so under the WIOA program.
The Department expects that WIOA will have no cost impact on small
entities and, therefore, preparing an IRFA was unnecessary. See section
V.B (Regulatory Flexibility Act) below for more details.
m. Impact on Small Businesses
Comments: One commenter found that concluding the NPRM would have
no cost impact on small entities was unreasonable. The commenter stated
that the analysis did not show how transfer payments would fully
finance the incremental costs of WIOA. In addition, the analysis did
not quantify the existing costs or identify sources or mechanisms to
pay for the new costs. The commenter also stated that in addition to
affecting one-stop center operators, the regulation would affect small
entities such as small training providers and service providers.
Department Response: The Department considered small training
providers and service providers as small entities in the Regulatory
Flexibility Analysis. We indicated that transfer payments are a
significant aspect of this analysis in that most WIOA cost burdens on
State and Local WDBs will be fully financed through Federal transfer
payments to States. The Department expects that this Final Rule will
have no net cost for small entities.
4. Analysis Considerations
The Department estimated the additional costs and transfers
associated with implementing this WIOA-required Final Rule from the
existing program
[[Page 56293]]
baseline, that is the current practices complying with, at a minimum,
the 2000 WIA Final Rule (65 FR 49294, Aug. 11, 2000).
The Department explains how the required actions of States, Local
WDBs, employers and training entities, government agencies, and other
related entities were linked to the expected costs, benefits, and
transfers. We also consider, where appropriate, the unintended
consequences introduced by this Final Rule. The Department has made
every effort, where feasible, to quantify and monetize the costs,
benefits, and transfers of this Final Rule. We are unable to quantify
benefits associated with the Final Rule because of data limitations and
a lack of operational data or evaluation findings on the provisions of
the Final Rule or WIOA in general. Therefore, we describe some benefits
qualitatively.
The Department has made every effort to quantify all incremental
costs associated with the implementation of WIOA as distinct from those
that already exist under WIA, WIOA's predecessor statute. Despite our
best efforts, however, we might be double counting some activities that
occur under WIA. Thus, the costs itemized below represent an upper
bound for the potential burden of implementing WIOA.
In addition to this Final Rule, DOL and ED are publishing a Joint
Final Rule to implement specific requirements of WIOA that fall under
both Departments' purviews (Joint WIOA Final Rule). The Department
acknowledges that these final rules and their associated impacts might
not be fully independent from one another, but we are unaware of a
reliable method to quantify this interdependence. Therefore, this
analysis does not capture the correlated impacts of the costs,
benefits, and transfers of this Final Rule and those associated with
the Joint WIOA Final Rule.
In accordance with the regulatory analysis guidance articulated in
Circular A-4 and consistent with the Department's practices in previous
rulemakings, this regulatory analysis focuses on the likely
consequences (i.e., costs, benefits, and transfers that accrue to
citizens and residents of the United States) of this WIOA-required
Final Rule. The analysis covers 10 years (2016 through 2025) to ensure
it captures major additional costs and transfers that accrue over time.
The Department expresses all quantifiable impacts in 2015 dollars and
uses 3-percent and 7-percent discounting following Circular A-4.
Exhibit 2 presents the number of entities expected to experience a
change in level of effort (workload) due to the requirements included
in this Final Rule. The Department provides these estimates and uses
them extensively throughout this analysis to estimate the cost of each
provision.
Exhibit 2--Number of Affected Entities by Type
------------------------------------------------------------------------
Number of
Entity type entities
------------------------------------------------------------------------
States impacted by DOL program requirements \4\......... \5\ 57
States without colocated Wagner-Peyer offices and one- \6\ 10
stop delivery systems (one-stops)......................
States without sector strategies........................ \7\ 21
States without policies for career pathways............. \8\ 27
States that must pay their share for proportionate use \9\ 54
of one-stops...........................................
States that receive sanctions........................... \10\ 5
Local areas without colocated ES offices and one-stops.. \11\ 100
Local WDBs.............................................. \12\ 580
Local WDBs newly selecting one-stop operators........... \13\ 250
Local WDBs performing regional plan modifications....... \14\ 300
Eligible Training Providers (ETPs)...................... \15\ 11,400
------------------------------------------------------------------------
Estimated Number of Workers and Level of Effort
The Department presents the estimated average number of workers and
the estimated average level of effort required per worker for each
activity in the subject-by-subject analysis. To derive these estimates,
ETA program experts consulted with State programs to estimate the
average levels of effort and the average number of workers needed for
each activity to meet the requirements relative to the baseline (i.e.,
the current practice under WIA). These estimates are the national
averages for all States; thus, some States could experience higher
actual costs, while actual costs could be lower for other States.
---------------------------------------------------------------------------
\4\ For simplicity, the Department's use of the term ``States''
in this RIA refers to the 50 States; the District of Columbia; the
U.S. territories of American Samoa, Guam, the Commonwealth of the
Northern Mariana Islands, the Commonwealth of Puerto Rico, and the
Virgin Islands; and the Republic of Palau, a country in free
association with the United States.
\5\ Based on internal Department of Labor data.
\6\ Department of Labor estimate.
\7\ Ibid.
\8\ U.S. Department of Education, U.S. Department of Labor, and
U.S. Department of Health and Human Services. (2014). Viewing Party
Guide. National Dialogue on Career Pathways Retrieved from: https://learnwork.workforce3one.org/view/2001425433998607383/info.
\9\ Department of Labor estimate.
\10\ Ibid.
\11\ Ibid.
\12\ Ibid.
\13\ Ibid.
\14\ Ibid.
\15\ Ibid.
---------------------------------------------------------------------------
Compensation Rates
In the subject-by-subject analysis, the Department presents the
additional labor and other costs associated with the implementation of
each provision in this Final Rule. Exhibit 3 presents the compensation
rates for the occupational categories expected to experience an
increase in level of effort (workload) due to the Final Rule. We use
the BLS mean hourly wage rate for State and local
employees.16 17 We adjust the wage rates using a loaded wage
factor to reflect total compensation, which includes non-wage factors
such as health and retirement benefits.\18\ For the State and local
sectors, we use a loaded wage factor of 1.57, which represents the
ratio
[[Page 56294]]
of average total compensation \19\ to average wages in
2015.20 21 We then multiply the loaded wage factor by each
occupational category's wage rate to calculate an hourly compensation
rate.
---------------------------------------------------------------------------
\16\ Bureau of Labor Statistics. (2016). May 2015 national
industry-specific occupational employment and wage estimates: NAICS
999200--State government, excluding schools and hospitals (OES
designation). Retrieved from: http://www.bls.gov/oes/current/naics4_999200.htm.
\17\ Bureau of Labor Statistics. (2016). May 2015 national
industry-specific occupational employment and wage estimates: NAICS
999300--Local government, excluding schools and hospitals (OES
designation). Retrieved from: http://www.bls.gov/oes/current/naics4_999300.htm.
\18\ The Department believes that the overhead costs associated
with this Final Rule are small because the additional activities
required by the Final Rule will be performed by existing employees
whose overhead costs are already covered. However, acknowledging
that there might be additional overhead costs, as a sensitivity
analysis of results, we calculated the impact of more significant
overhead costs by including an overhead rate of 17 percent. This
rate has been used by the Environmental Protection Agency (EPA) in
its final rules (see, for example, EPA Electronic Reporting under
the Toxic Substances Control Act Final Rule, Supporting & Related
Material), and is based upon a Chemical Manufacturers Association
study. An overhead rate from chemical manufacturing may not be
appropriate for all industries, so there may be substantial
uncertainty concerning the estimates based on this illustrative
example. (In contrast, DOL's Employee Benefits Security
Administration (EBSA) includes overhead costs that are substantially
higher and more variable across employee types than EPA's--between
39 and 138 percent of base wages for compensation and benefits
managers, lawyers, paralegals and other legal assistants, and
computer systems analysts--as presented in detail at www.dol.gov/ebsa/pdf/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-march-2016.pdf.) Using an overhead rate of 17 percent
would increase the total cost of the Final Rule by 17 percent, from
$89.9 million in Year 1 to $105.1 million. Over the 10-year period,
using an overhead rate of 17 percent would increase the total
undiscounted cost of the Final Rule from $350.4 million to $409.9
million, or 17 percent.
\19\ Bureau of Labor Statistics. (2016). 2015 Employer Costs for
Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm. The Department calculated this value using
data from Table 3. ``Employer Costs per Hour Worked for Employee
Compensation and Costs as a Percent of Total Compensation: State and
Local Government Workers, by Major Occupational and Industry
Group.'' Total compensation for all workers. To calculate the
average total compensation in 2015 of $44.53, the Department
averaged the total compensation for all workers provided in March,
June, September, and December releases.
\20\ Bureau of Labor Statistics. (2016). 2015 Employer Costs for
Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm.
The Department calculated this value using data from Table 3.
``Employer Costs per Hour Worked for Employee Compensation and Costs
as a Percent of Total Compensation: State and Local Government
Workers, by Major Occupational and Industry Group.'' Wages and
salaries for all workers. To calculate the average wage and salary
in 2015 of $28.41, the Department averaged the wage and salaries for
all workers provided in March, June, September, and December
releases.
\21\ The State and local loaded wage factor was applied to all
non-Federal employees. Discerning the number of State and local-
sector employees and private-sector employees at the local level is
difficult; therefore, the Department used the State and local-sector
loaded wage factor (1.57) instead of the private-sector wage factor
(1.44) for all non-Federal employees to avoid underestimating the
costs.
---------------------------------------------------------------------------
The Department uses the hourly compensation rates presented in
Exhibit 3 throughout this analysis to estimate the labor costs for each
provision.
Exhibit 3--Compensation Rates
[2015 dollars]
----------------------------------------------------------------------------------------------------------------
Hourly
Position Average hourly Loaded wage compensation
wage rate factor rate
a b c = a x b
----------------------------------------------------------------------------------------------------------------
Local Employees
----------------------------------------------------------------------------------------------------------------
Computer systems analysts....................................... $38.70 1.57 $60.76
Database administrators......................................... 37.96 .............. 59.60
Lawyers......................................................... 47.63 .............. 74.78
Management analysts............................................. 38.60 .............. 60.60
Management occupations staff.................................... 40.53 .............. 63.63
Secretaries and administrative assistants....................... 18.66 .............. 29.30
Social workers.................................................. 25.77 .............. 40.46
----------------------------------------------------------------------------------------------------------------
State Employees
----------------------------------------------------------------------------------------------------------------
Chief executive................................................. 54.26 1.57 85.19
Computer systems analysts....................................... 35.78 .............. 56.17
Database administrators......................................... 36.32 .............. 57.02
Lawyers......................................................... 41.71 .............. 64.48
Management analysts............................................. 29.22 .............. 45.88
Management occupations staff.................................... 41.65 .............. 65.39
Secretaries and administrative assistants....................... 17.30 .............. 27.16
Social and community service managers........................... 34.53 .............. 54.21
Social workers.................................................. 22.43 .............. 35.22
----------------------------------------------------------------------------------------------------------------
At a minimum, all affected entities are currently required to
comply with the 2000 WIA Final Rule (65 FR 49294, Aug. 11, 2000);
however, some affected entities might already comply with some
provisions of the Final Rule. This analysis estimates the incremental
costs and transfers that affected entities that are not yet compliant
with the Final Rule will incur. The equation below shows the method the
Department uses to calculate the incremental total cost for each
provision over the 10-year analysis period. The methodology used in
estimating the quantifiable transfers is provided in the subject-by-
subject analysis.
[GRAPHIC] [TIFF OMITTED] TR19AU16.001
Where,
Al Number of affected entities that will incur labor
costs,
Ni Number of staff of occupational category i,
Hi Hours required per staff of occupational category i,
Wi Mean hourly wage rate of staff of occupational
category i,
Li Loaded wage factor of staff of occupational category
i,
Aj Number of affected entities incurring non-labor costs
of type j,
Cj Non-labor cost of type j,
i Occupational category,
n Number of occupational categories,
j Non-labor cost type,
m Number of non-labor cost types, and
T Year.
The total cost of each provision is calculated as the sum of the
total labor cost and total non-labor cost incurred each year over the
10-year period (see Exhibit 28 for the average annual cost of the Final
Rule by provision). The total labor cost is the sum of the labor costs
[[Page 56295]]
for each occupational category i (e.g., computer systems analyst,
database administrators, and lawyers) multiplied by the number of
affected entities that will incur labor costs, Al. The labor
cost for each occupational category i is calculated by multiplying the
number of staff required to perform the required activity,
Ni; the hours required per staff member to perform the
required activity, Hi; the mean hourly wage rate of staff of
occupational category i, Wi; and the loaded wage factor of
staff of occupational category i, Li. The total non-labor
cost is the sum of the non-labor costs for each non-labor cost type j
(e.g., consulting costs) multiplied by the number of affected entities
that will incur non-labor costs, Aj.
Transfer Payments
In addition, the Department provides an assessment of transfer
payments associated with transitioning the Nation's public workforce
system from the requirements of WIA to the new requirements of WIOA. In
accordance with Circular A-4, we consider transfer payments as payments
from one group to another that do not affect total resources available
to society.
One example of transfer payments results from the expectation that
available U.S. workers trained and hired who were previously unemployed
will no longer seek new or continued unemployment insurance benefits.
Assuming other factors remain constant, the Department expects State
unemployment insurance expenditures to decline because of the hiring of
U.S. workers following WIOA implementation. We, however, cannot
quantify all transfer payments due to a lack of adequate data.
5. Updates to the Cost-Benefit Analysis for the Final Rule
In total, the Department estimates that this Final Rule will
generate costs over a 10-year period. The Final Rule is estimated to
result in 10-year undiscounted costs of $350.4 million (in 2015
dollars). In the NPRM, the Department estimated that the proposed rule
would result in $384.4 million in undiscounted costs (in 2013 dollars).
The Final Rule also quantifies transfer payments of $128.9 million (in
2015 dollars). As discussed below, after reviewing public comments and
with further consultation with program experts in the DOL program
areas, we updated the cost and transfer analyses and made changes to
specific provisions in the NPRM that affected costs and transfers.
While the updates made to each provision (i.e., changes from the NPRM
estimates) are discussed under the relevant headings below, a detailed
description of each cost provision remains in section V.A.6 (Subject-
by-Subject Analysis).
General Updates
In the Final Rule economic analysis, the Department updates all
costs and transfers to 2015 dollars from 2013 dollars in the NPRM. This
update increases the estimated costs and transfers of the Final Rule
relative to the costs presented in the NPRM.
In addition, the Department has made several updates to labor
costs. First, we use more specific occupational categories than those
used in the NPRM (i.e., administrative staff, WDB members, counsel
staff, local stakeholders, managers, and technical staff). In the Final
Rule, the occupational categories include chief executives, computer
systems analysts, database administrators, lawyers, management
analysts, management occupations staff, secretaries and administrative
assistants, social and community service managers, and social workers.
Due to the numerous changes made in the analysis, which are described
in detail below, these occupational categories add more specificity to
the labor costs, but determining whether they had a positive or
negative effect on costs or transfers was not possible.
Second, the Department has updated labor costs, including wage
rates and loaded wage factors, to reflect 2015 BLS data. Furthermore,
instead of using State government employee wage rates for workers at
both the State level and local level as in the NPRM, we applied wage
rates for State government employees and local government employees to
workers at the State and local levels, respectively. Depending on the
occupational category, the State-level wage rate could be higher or
lower than the corresponding local-level wage rate; thus, determining
whether this had a positive or negative effect on costs was not
possible.
Third, based on further discussions with program experts, the
Department has increased the overall number of States from 56 to 57 in
the Final Rule because we concluded that the WIOA requirements also
will affect the Republic of Palau.
New State WDB Membership Requirements
This section describes the updates to the NPRM's provision (a)
``New State Workforce Development Board Membership Requirements.'' In
this Final Rule's subject-by-subject analysis, costs related to this
provision are found in provision (a) ``New State WDB Membership
Requirements.'' The cost of this provision reflects the cost for States
to establish State WDBs in accordance with the membership requirements.
The total undiscounted 10-year cost of this provision decreased from
$313,000 in the NPRM to $272,000 in the Final Rule.\22\
---------------------------------------------------------------------------
\22\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
At the State level for the DOL programs, the Department made the
changes presented in Exhibit 4. We replaced the manager with the more
precise occupational categories of chief executives and management
occupations staff. We assumed that 25 percent of the effort would be
the responsibility of a chief executive and 75 percent of a management
occupations staff member. We also replaced the technical staff with the
more precise occupational category of management analyst.
Exhibit 4--Updates to Costs of State-Level DOL Programs--New State WDB Membership Requirements
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(a) New state workforce development board membership requirements (a) New state WDB membership requirements
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 20 One time............. 56 States............ Chief executive.... 1 5 One time............ 57 States.
------------------------------------------------------------ -----------------------------------------------
[[Page 56296]]
Counsel staff.................... 1 15 Management 1 15
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 20 Lawyer............. 1 15
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 20 Management analyst. 2 20
---------------------------------------------------------------------------------------------------------------------------------------------------------
Secretary or admin. 1 20
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development and Continuous Improvement of the Workforce Development
System
This section describes the updates to the NPRM's provision (b)
``Development and Continuous Improvement of the Workforce Development
System.'' In the Final Rule's subject-by-subject analysis, this cost
provision and provision (f) ``Identification of Regions,'' have been
combined in the Final Rule to form provision (b) ``Development and
Continuous Improvement of the Workforce Development System.'' This
provision of the Final Rule estimates the cost for State WDBs to assist
State Governors in: (1) The development and continuous improvement of
the State's workforce development systems, and (2) the identification
of regions, including planning regions, and the designation of local
areas, after consultation with Local WDBs and chief elected officials
(CEOs). The cost estimate for the first item was initially included in
provision (b) of the NPRM along with a portion of the second item.\23\
For these items, the total undiscounted 10-year cost decreased from
$92.1 million in the NPRM to $65.5 million in the Final Rule.\24\
---------------------------------------------------------------------------
\23\ See provision (f) ``Identification of Regions'' below for
revised cost estimates related to the second item, identifying
regions and designating local areas.
\24\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 5 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst.
Exhibit 5--Updates to Costs of State-Level DOL Programs--Development and Continuous Improvement of the Workforce Development System
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(b) Development and continuous improvement of the workforce development system (b) Development and continuous improvement of the workforce development system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sector Strategies Sector Strategies
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 300 Annual............... 21 States............ Management 1 300 Annual.............. 21 States w/o
occupations staff. extensive and
systematic
sector
strategies.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 1,260 Management analyst. 2 1,260
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Career Pathways Career Pathways
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 300 Annual............... 27 States............ Management 1 300 Annual.............. 27 States w/o
occupations staff. policies for
career
pathways.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 1,260 Management analyst. 2 1,260
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 56297]]
Identify Regions Identify Regions
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 40 One time............. 56 States............ Management 1 40 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 40 Lawyer............. 1 40
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 80 Management analyst. 1 80
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 20 Secretary or admin. 1 20
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of Statewide Policies Affecting the State's One-Stop
Delivery System
This section describes the updates to the NPRM's provision (c)
``Development of Statewide Policies Affecting the State's One-Stop
System.'' In the Final Rule, costs related to this provision, found in
(d) ``Development of Statewide Policies Affecting the State's One-Stop
System,'' reflect the efforts of State WDBs to help Governors develop
and review statewide policies affecting the coordinated provision of
services through the States' one-stop delivery systems. The total
undiscounted 10-year cost of this provision increased from $1.2 million
in the NPRM to $1.4 million in the Final Rule.
Exhibit 6 presents the updates to the State-level DOL program. The
Department replaced the managers in our previous estimate with the more
precise occupational categories of management occupations staff and
social and community service managers. After consulting with program
experts, we increased the level of effort for managerial staff from 40
hours to 60 hours to account for the effort related to developing
policies governing service delivery to job seekers under WIOA. We
estimated that 30 percent of the effort (18 hours) would be for a
management occupations staff member and 75 percent (42 hours) for a
social and community service manager. We also increased the level of
effort for lawyers from 40 hours to 60 hours. In addition, we increased
the number of technical staff from two to three and replaced them with
the more precise occupational category of management analyst.
Exhibit 6--Updates to Costs of State-Level DOL Programs--Development of Statewide Policies Affecting the State's One-Stop Delivery System
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development of statewide policies affecting the state's one-stop system (d) Development of statewide policies affecting the state's one-stop delivery system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 40 One time............. 56 States............ Management 1 18 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 40 Social & community 1 42
service manager.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 120 Lawyer............. 1 60
---------------------------------------------------------------------------------------------------------------------------------------------------------
Management analyst. 3 120
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of Strategies for Technological Improvements
This section describes the updates to the NPRM's provision (d)
``Development of Strategies for Technological Improvements.'' In the
Final Rule, costs related to this provision can be found in provision
(e) ``Development of Strategies for Technological Improvements.'' The
cost of this provision reflects the efforts of State WDBs to help
Governors develop strategies for technological improvements to
facilitate access to and improve the quality of services and activities
provided through the one-stop delivery system. The total undiscounted
10-year cost of this provision decreased from $2.3 million in the NPRM
to $2.0 million in the Final Rule.\25\
---------------------------------------------------------------------------
\25\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 7 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of computer systems analyst.
[[Page 56298]]
Exhibit 7--Updates to Costs of State-Level DOL Programs--Development of Strategies for Technological Improvements
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(d) Development of strategies for technological improvements (e) Development of strategies for technological improvements
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 20 Annual............... 56 States............ Management 1 20 Annual.............. 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 40 Computer systems 1 40
analysts.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
State Plan Modification
This section describes the updates to the NPRM's provision (e)
``State Plan Modification.'' After careful consideration, the
Department has decided that incremental costs related to State Plan
modifications are captured in the costs for Unified and Combined State
Plan biennial modifications in the Joint WIOA Final Rule. See provision
(b) ``Unified or Combined State Plans: Expanded Content, Biennial
Modification, and Submission Coordination Requirements'' of the Joint
WIOA Final Rule economic analysis. Therefore, the total undiscounted
10-year cost of this provision of $135,000 in the NPRM was removed in
the Final Rule. Exhibit 8 presents the updates to the State-level DOL
program.
Exhibit 8--Updates to Costs of State-Level DOL Programs--State Plan Modification
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(e) State plan modification Moved to joint DOL-ED final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 10 4th year............. 56 States............ N/A. See Joint WIOA Final Rule
------------------------------------------------------------
Counsel staff.................... 1 4
------------------------------------------------------------
Technical staff.................. 2 10
------------------------------------------------------------
Admin. staff..................... 1 4
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Identification of Regions
This section describes the updates to the NPRM's provision (f)
``Identification of Regions.'' This provision and provision (b)
``Development and Continuous Improvement of the Workforce Development
System,'' have been combined in the Final Rule to form provision (b)
``Development and Continuous Improvement of the Workforce Development
System.'' It reflects the efforts of State WDBs to assist the Governor
in: (1) Developing and continuously improving the State's workforce
development system, and (2) identifying regions, including planning
regions, and designating local areas, after consultation with Local
WDBs and CEOs. A cost estimate for the second item only was initially
included in provision (f) of the NPRM. The total undiscounted 10-year
cost of this provision decreased from $1.1 million in the NPRM to
$968,000 in the Final Rule.\26\
---------------------------------------------------------------------------
\26\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 9 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst.
Exhibit 9--Updates to Costs of State-Level DOL Programs--Identification of Regions
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(f) Identification of regions (b) Development and continuous improvement of the workforce development system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Identification of Regions
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 2 40 2nd & 6th years...... 56 States............ Management 2 40 2nd & 6th years..... 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
[[Page 56299]]
Counsel staff.................... 1 10 Lawyer............. 1 10
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 3 15 Management analyst. 3 15
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 2 10 Secretary or admin. 2 10
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Appoint New Local WDB and Appropriate Firewalls
This section describes the updates to the NPRM's provision (g)
``Appoint New Local Workforce Development Board and Appropriate
Firewalls.'' In the Final Rule, costs related to this provision can be
found in provision (f) ``Appoint New Local WDB and Appropriate
Firewalls.'' It reflects the requirement to appoint new Local WDBs and
establish sufficient firewalls and conflict-of-interest policies and
procedures approved by the Governor when a Local WDB is selected as a
one-stop operator through a sole-source procurement. The total
undiscounted 10-year cost of this provision decreased from $4.6 million
in the NPRM to $4.5 million in the Final Rule.\27\
---------------------------------------------------------------------------
\27\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 10 presents the updates to Local WDBs. In our estimates for
appointing new Local WDBs, the Department replaced the technical staff
with the more precise occupational category of management analyst. In
our estimates for appropriate firewalls, the Department replaced the
technical staff with the more precise occupational category of computer
systems analyst.
Exhibit 10--Updates to Costs of Local WDBs--Appoint New Local WDB and Appropriate Firewalls
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(g) Appoint new local workforce development board and appropriate firewalls (f) Appoint new local WDB and appropriate firewalls
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Appoint New Local WDB Appoint New Local WDB
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 20 One time............. 580 Local WDBs....... Management 1 20 One time............ 580 Local WDBs.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 15 Lawyer............. 1 15
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 20 Management analyst. 2 20
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 20 Secretary or admin. 1 20
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Appropriate Firewalls Appropriate Firewalls
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 8 One time............. 580 Local WDBs....... Management 1 8 One time............ 580 Local WDBs.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 8 Lawyer............. 1 8
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 20 Computer systems 1 20
analyst.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Career Pathways Development
This section describes the updates to the NPRM's provision (h)
``Career Pathways Development.'' In the Final Rule's subject-by-subject
analysis, costs related to this provision can be found in provision (g)
``Local WDB Career Pathways Development.'' The cost of this provision
reflects the cost for Local WDBs, with representatives of secondary and
postsecondary education programs, to lead efforts in developing and
implementing career pathways in the local area by aligning the
employment, training, education, and supportive services needed by
adults and youth, particularly individuals with barriers to employment.
The total undiscounted 10-year cost of this provision decreased from
$70.7 million
[[Page 56300]]
in the NPRM to $65.4 million in the Final Rule.\28\
---------------------------------------------------------------------------
\28\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 11 presents the updates related to Local WDBs. The
Department replaced the technical staff in our previous estimate with
the more precise occupational category of management analyst. All other
aspects of the analysis, including the number of hours by occupational
category, remain unchanged.
Exhibit 11--Updates to Costs of Local WDBs--Career Pathways Development
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(h) Career pathways development (g) Local WDB career pathways development
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 80 Annual............... 580 Local WDBs....... Management 1 80 Annual.............. 580 Local WDBs.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 10 Lawyer............. 1 10
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 80 Management analyst. 1 80
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 20 Secretary or admin. 1 20
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of Proven and Promising Practices
This section describes the updates to the NPRM's provision (i)
``Development of Proven and Promising Practices.'' In the Final Rule,
costs related to this provision can be found in provision (h) ``Local
WDB Development of Proven and Promising Practices.'' It reflects the
cost for Local WDBs to lead local efforts in identifying and promoting
proven and promising strategies and initiatives for meeting the needs
of employers, workers, and job seekers (including individuals with
barriers to employment). Examples include providing physical and
programmatic accessibility to the one-stop delivery system and
identifying and disseminating information on proven and promising
practices conducted in other local areas for meeting such needs. The
total undiscounted 10-year cost of this provision increased from $2.9
million in the NPRM to $21.4 million in the Final Rule.\29\
---------------------------------------------------------------------------
\29\ This variance in cost is a result of increasing the number
of affected entities from 56 States to 580 Local WDBs. Because the
activities performed will be similar for workers at the State and
local level, the level of effort was not reduced.
---------------------------------------------------------------------------
Exhibit 12 presents the updates to the local-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst and removed the counsel and
administrative staff because they would not be involved in local
efforts in identifying and promoting proven and promising strategies at
the Local WDB level.
Exhibit 12--Updates to Costs of Local-Level DOL Programs--Development of Proven and Promising Practices
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Development of proven and promising practices (h) Local WDB development of proven and promising practices
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 20 Annual............... 56 States............ Management 1 20 Annual.............. 580 Local WDBs
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 10 Management analyst. 1 40
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 1 40
------------------------------------------------------------
Admin. staff..................... 1 15
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Technology
This section describes the updates to the NPRM's provision (j)
``Technology.'' In the Final Rule, costs related to this provision can
be found in provision (i) ``Local WDB Development of Technology
Strategies for Public Workforce System Accessibility and
Effectiveness.'' It reflects the efforts of Local WDBs to develop
strategies for using technology to maximize the accessibility and
effectiveness of the local workforce development system for employers,
workers, and job seekers. The total undiscounted 10-year cost of this
provision decreased from $23.7 million in the NPRM to $21.5 million in
the Final Rule.\30\
---------------------------------------------------------------------------
\30\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
[[Page 56301]]
Exhibit 13 presents the updates to the Local WDBs. The Department
replaced the technical staff with the more precise occupational
category of computer systems analyst.
Exhibit 13--Updates to Costs of Local WDBs--Technology
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Technology (i) Local WDBs development of technology strategies for public workforce system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 20 Annual............... 580 Local WDBs....... Management 1 20 Annual.............. 580 Local WDBs.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 40 Computer systems 1 40
analyst.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Selection of the One-Stop Operator
This section describes the updates made to the NPRM's provision (k)
``Selection of the One-Stop Operator.'' In the Final Rule, costs
related to this provision can be found in provision (j) ``Competitive
Process for Selection of the One-Stop Operator.'' The cost of this
provision reflects Local WDBs' selection of a one-stop operator through
a competitive process. The total undiscounted 10-year cost of this
provision decreased from $19.0 million in the NPRM to $14.2 million in
the Final Rule.\31\
---------------------------------------------------------------------------
\31\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 14 presents the updates to Local WDBs. The Department
replaced the technical staff with the more precise occupational
category of social worker.
Exhibit 14--Updates to Costs of Local WDBs--Selection of the One-Stop Operator
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(k) Selection of the one-stop operator (j) Competitive process for selection of the one-stop operator
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 80 2nd, 6th, & 10th 250 Local WDBs newly Management 1 80 2nd, 6th, & 10th 250 Local WDBs
years. selecting one-stop occupations staff. years. newly selecting
operators. one-stop
operators.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 40 Lawyer............. 1 40
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 120 Social worker...... 2 120
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 40 Secretary or admin. 1 40
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coordination With Education Providers
This section describes the updates to the NPRM's provision (l)
``Coordination with Education Providers.'' In the Final Rule, costs
related to this provision can be found in provision (k) ``Local WDB
Coordination with Education Providers.'' The cost of this provision
reflects Local WDBs coordinating activities with education and training
providers in the local area. The total undiscounted 10-year cost of
this provision increased from $3.2 million in the NPRM to $21.4 million
in the Final Rule.\32\
---------------------------------------------------------------------------
\32\ This variance in cost is a result of increasing the number
of affected entities from 56 States to 580 Local WDBs. Because the
activities performed will be similar for workers at the State and
local level, the level of effort was not reduced.
---------------------------------------------------------------------------
Exhibit 15 presents the updates to the local-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst. We removed the counsel and
administrative staff because they would not be involved in this effort
at the Local WDB level.
[[Page 56302]]
Exhibit 15--Updates to Costs of Local-Level DOL Programs--Coordination With Education Providers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(l) Coordination with education providers (k) Local WDB coordination with education providers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 30 Annual............... 56 States............ Management 1 20 Annual.............. 580 Local WDBs.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 10 Management analyst. 1 40
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 1 40
------------------------------------------------------------
Admin. staff..................... 1 10
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Regional Plans
This section describes the updates to the NPRM's provision (m)
``Regional Plans.'' In the Final Rule, costs related to this provision
can be found in provision (l) ``Regional Plans.'' The cost of this
provision reflects the efforts of Local WDBs and CEOs within a planning
region to prepare, submit to the State, and obtain approval of a single
regional plan that includes a description of the regional planning
activities described in WIOA and incorporates local plans for each
local area in the planning region. The total undiscounted 10-year cost
of this provision decreased from $10.3 million in the NPRM to $9.5
million in the Final Rule.\33\
---------------------------------------------------------------------------
\33\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 16 presents the updates to Local WDBs. The Department
replaced the technical staff with the more precise occupational
category of management analyst.
Exhibit 16--Updates to Costs of Local WDBs--Regional Plans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(m) Regional plans (l) Regional plans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 2 20 2nd & 6th years...... 580 Local WDBs....... Management 2 20 2nd & 6th years..... 580 Local WDBs.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 8 Lawyer............. 1 8
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 40 Management analyst. 2 40
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 8 Secretary or admin. 1 8
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Local and Regional Plan Modification
This section describes the updates to the NPRM's provision (n)
``Local and Regional Plan Modification.'' In the Final Rule, costs
related to this provision can be found in provision (m) ``Local and
Regional Plan Modification.'' The cost of this provision reflects the
efforts of each Local WDB, in partnership with the CEO, to review the
local plan every 2 years and submit a modification as needed, based on
significant changes in labor market and economic conditions and other
factors. The total undiscounted 10-year cost of this provision
decreased from $4.1 million in the NPRM to $3.8 million in the Final
Rule.\34\
---------------------------------------------------------------------------
\34\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 17 presents the updates to the Local WDBs for regional
plans. For local and regional plan modification, the Department
replaced the technical staff with the more precise occupational
category of management analyst.
[[Page 56303]]
Exhibit 17--Updates to Costs of Local-Level Boards--Local and Regional Plan Modification
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(n) Local and regional plan modification (m) Local and regional plan modification
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Local Plan Modification Local Plan Modification
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 10 4th year............. 580 Local WDBs....... Management 1 10 4th year............ 580 Local WDBs.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 4 Lawyer............. 1 4
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 10 Management analyst. 2 10
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 4 Secretary or admin. 1 4
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Regional Plan Modification Regional Plan Modification
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 2 10 4th & 8th years...... 300 Local WDBs that Management 2 10 4th & 8th years..... 300 Local WDBs
will modify regional occupations staff. that will
plans. modify regional
plans.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 4 Lawyer............. 1 4
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 20 Management analyst. 2 20
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 5 Secretary or admin. 1 5
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Improved Information About Potential Training Program Providers
This section describes the updates to the NPRM's provision (o)
``Improved Information about Potential Training Program Providers.'' In
the Final Rule, costs related to this provision can be found in
provision (n) ``Improved Information about Eligible Training Program
Providers.'' The cost of this provision reflects the efforts of State-
maintained Eligible Training Provider Lists (ETPLs) to provide
information to the public on the effectiveness of Eligible Training
Providers (ETPs) in achieving positive outcomes for WIOA training
participants. The total undiscounted 10-year cost of this provision
increased from $5.5 million in the NPRM to $4.5 million in the Final
Rule.\35\
---------------------------------------------------------------------------
\35\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 18 presents the updates to the State-level DOL program. The
Department replaced the technical staff in our previous estimate with
the more precise occupational category of management analyst.
Exhibit 18--Updates to Costs of State-Level DOL Programs--Improved Information About Potential Training Program Providers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(o) Improved information about potential training program providers (n) Improved information about eligible training program providers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 32 Annual............... 56 States............ Management 1 32 Annual.............. 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 40 Management analyst. 2 40
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 80 Secretary or admin. 1 80
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 56304]]
Sanctions on Under-Performing States
This section describes the updates to the NPRM's provision (p)
``Sanctions on Under-Performing States.'' In the Final Rule, costs
related to this provision can be found in provision (o) ``Sanctions on
Under-Performing States.'' It reflects the costs related to States that
are sanctioned when they fail to meet the State-adjusted levels of
performance for a program for a second consecutive program year or if
they fail to submit a report for any program year. The total
undiscounted 10-year cost related to this provision decreased from $5.2
million in the NPRM to $408,000 in the Final Rule.\36\
---------------------------------------------------------------------------
\36\ This variance in cost is a result of the reduction in the
number of affected States.
---------------------------------------------------------------------------
Exhibit 19 presents the updates to the State-level DOL program. In
the NPRM, the Department accounted for the cost of each State to
calculate the annual performance levels of its core programs to
determine whether it is subject to sanctions. After consulting with our
program experts, the Department acknowledges that the determination on
whether States receive sanctions will be made at the Federal level
using an objective statistical model. This cost is now accounted for in
provision (c) of the Joint WIOA Final Rule economic analysis. In this
DOL WIOA Final Rule, the Department is now accounting only for costs
associated with receiving a sanction. We reduced the number of States
from 56 to 5 because only five States, at most, are expected to receive
a sanction each year. We replaced the technical staff in our previous
estimate with the more precise occupational category of management
analyst.
Exhibit 19--Updates to Costs for State-Level DOL Programs--Sanctions on Under-Performing States
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(p) Sanctions on under-performing states (o) Sanctions on under-performing states
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 40 Annual............... 56 States............ Chief executive.... 1 40 Annual.............. 5 States.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 80 Management analyst. 1 80
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 40 Secretary or admin. 1 40
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Colocation of ES Services
This section describes the updates to the NPRM's provision (q)
``Colocation of Wagner-Peyser Services.'' In the Final Rule, costs
related to this provision can be found in provision (p) ``Colocation of
ES Services.'' The cost of this provision reflects the requirement for
ES offices and one-stop centers to colocate. The total undiscounted 10-
year cost for this provision decreased from $63.9 million in the NPRM
to $57.9 million in the Final Rule.\37\
---------------------------------------------------------------------------
\37\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 20 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst. In addition, we inflated
the consultant cost from $10,000 in 2013 dollars to $10,200 in 2015
dollars.\38\ The consultants will assist with planning, property issues
(e.g., selling buildings currently owned by ES and finding buildings
that meet certain safety requirements), and integrating information
technology (IT) and case management systems.
---------------------------------------------------------------------------
\38\ Bureau of Labor Statistics. (2016). CPI Detailed Report
Data for February 2016. Retrieved from: http://www.bls.gov/cpi/cpid1602.pdf.
The Department calculated the inflation factor of 1.02 using
data from Table 24. ``Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. City Average, All Items.'' To calculate the
inflation factor, the Department divided the average annual CPI-U
for 2015 by the average annual CPI-U for 2013 (=237.017/232.957).
Exhibit 20--Updates to Costs of State-Level DOL Programs--Colocation of ES Services
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(q) Colocation of ES services (p) Colocation of ES services
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 10 40 One time............. 10 States............ Management 10 40 One time............ 10 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 10 10 Lawyer............. 10 10
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 20 25 Management analyst. 20 25
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 10 5 Secretary or admin. 10 5
assistant.
------------------------------------------------------------ -----------------------------------------------
Consultant cost.................. $10,000 Consultant cost.... $10,200
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 56305]]
Exhibit 21 presents the updates to the local-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst.
Exhibit 21--Updates to Costs of Local-Level DOL Programs--Colocation of ES Services
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(q) Colocation of ES services (p) Colocation of ES services
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 100 40 One time............. 100 Local areas...... Management 100 40 One time............ 100 Local areas.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 200 25 Management analyst. 200 25
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 100 5 Secretary or admin. 100 5
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Partners Required To Pay Their Share for Proportionate Use of One-Stop
Delivery System
This section describes the updates to the NPRM's provision (r)
``Partners Required to Pay their Share for Proportionate Use of One-
Stop Delivery System.'' In the Final Rule, costs related to this
provision can be found in provision (q) ``Partners Required to Pay
their Share for Proportionate Use of One-Stop Delivery System.'' It
reflects the cost related to each one-stop partner contributing its
proportional share to the funding of one-stop infrastructure costs. The
total undiscounted 10-year cost decreased from $68.0 million in the
NPRM to $45.6 million in the Final Rule.
Exhibit 22 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of social worker. All other aspects of the
analysis, including the number of hours by occupational category,
remain unchanged.
Exhibit 22--Updates to Costs for State-Level DOL Programs--Partners Required To Pay Their Share for Proportionate Use of One-Stop Delivery System
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(r) Partners required to pay their share for proportionate use of one-stop delivery system (q) Partners required to pay their share for proportionate use of one-stop delivery
---------------------------------------------------------------------------------------------------------- system
--------------------------------------------------------------------------------------
Average Average Average
Labor category number of level of Frequency Number of affected Average level of Number of
workers effort entities Labor category number of effort Frequency affected
(hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 50 40 3rd, 6th, & 9th years 54 States that need Management 50 40 3rd, 6th, & 9th 54 States that
to pay their occupations staff. years. need to pay
proportional share. their
proportional
share.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 50 1 Lawyer............. 50 1
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 100 40 Social worker...... 100 40
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 50 5 Secretary or admin. 50 5
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Establishing Training Provider Eligibility Procedures, Including Adding
Registered Apprenticeship
This section describes the updates to the NPRM's provision (s)
``Establishing Training Provider Eligibility Procedures, Including
Adding Registered Apprenticeship.'' In the Final Rule, costs related to
this provision can be found in provision (r) ``Establishing Training
Provider Eligibility Procedures, Including Procedures for Adding
Registered Apprenticeship Programs to the State Eligible Training
Provider List.'' The cost of this provision reflects the efforts of the
Governor, after consultation with the State WDB, to establish criteria,
information requirements, and procedures for the eligibility of
providers of training services to receive funds under WIOA for the
provision of training services in local areas in the State (i.e.,
procedures for initial determination and renewals of eligibility). The
total undiscounted 10-year cost related to this provision increased
from $529,000 in the NPRM to $2.5 million in the Final Rule.
Exhibit 23 presents the updates to the State-level DOL program. For
establishing eligibility procedures for training providers, the
Department replaced the technical staff with the more precise
occupational category of management analyst. We also added a
[[Page 56306]]
burden for reporting: One database administrator per ETP that will
incur a 3-hour, one-time cost.
Exhibit 23--Updates to Costs to State-Level DOL Programs--Establishing Training Provider Eligibility Procedures, Including Adding Registered Apprenticeship
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(s) Establishing training provider eligibility procedures, including adding registered apprenticeship (r) Establishing training provider eligibility procedures, including procedures for
---------------------------------------------------------------------------------------------------------- adding registered apprenticeship programs to the state eligible training provider
list
Average --------------------------------------------------------------------------------------
Average level of Number of affected Average
Labor category number of effort Frequency entities Average level of Number of
workers (hrs.) Labor category number of effort Frequency affected
workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Establishing Training Provider Eligibility Procedures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 40 One time............. 56 States............ Management 1 40 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 20 Lawyer............. 1 20
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 80 Management analyst. 1 80
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Database 1 3 One time............ 11,400 ETPs.
administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Determining Eligibility of New and Previously Eligible Providers
This section describes the updates to the NPRM's provision (t)
``Determining Eligibility of New and Previously Eligible Providers.''
In the Final Rule, costs related to this provision can be found in
provision (s) ``Determining Initial Eligibility of New and Previously
Eligible Providers.'' The costs reflect the efforts of the Governor,
after consultation with the State WDB, to establish procedures for
determining eligibility of providers and include application and
renewal procedures, eligibility criteria, and information requirements.
The total undiscounted 10-year cost of this provision decreased from
$1.1 million in the NPRM to $879,000 in the Final Rule.
Exhibit 24 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst.
Exhibit 24--Updates to Costs of State-Level DOL Programs--Determining Eligibility of New and Previously Eligible Providers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(t) Determining eligibility of new and previously eligible providers (s) Determining initial eligibility of new and previously eligible providers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 40 One time............. 56 States............ Management 1 40 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 110 Management analyst. 2 110
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 2 50 Secretary or admin. 2 50
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Biennial Review of Eligibility
This section describes the updates to the NPRM's provision (u)
``Biennial Review of Eligibility.'' In the Final Rule, costs related to
this provision can be found in provision (t) ``Biennial Review of
Training Provider Eligibility.'' The cost of this provision reflects
the costs of training providers to submit information for evaluation as
specified in the Governor's eligibility criteria, information
requirements, and procedures. The total undiscounted 10-year cost of
this provision decreased from $2.7 million in the NPRM to $2.1 million
in the Final Rule.\39\
---------------------------------------------------------------------------
\39\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 25 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst.
[[Page 56307]]
Exhibit 25--Updates to Costs of State-Level DOL Programs--Biennial Review of Eligibility
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(u) Biennial review of eligibility (t) Biennial review of eligibility
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 30 4th, 6th, 8th, & 10th 56 States............ Management 1 30 4th, 6th, 8th, & 57 States.
years. occupations staff. 10th years.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 60 Management analyst. 2 60
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 2 30 Secretary or admin. 2 30
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Disseminating the Training Provider List With Accompanying Information
This section describes the updates to the NPRM's provision (v)
``Disseminating the Training Provider List with Accompanying
Information.'' In the Final Rule, costs related to this provision can
be found in provision (u) ``Disseminating the Training Provider List
with Accompanying Information.'' The cost of this provision reflects
the efforts of the Governor or State agency to disseminate the State
ETPL and accompanying performance and cost information to Local WDBs in
the State and to members of the public. The total undiscounted 10-year
cost of this provision decreased from $1.7 million in the NPRM to $1.5
million in the Final Rule.\40\
---------------------------------------------------------------------------
\40\ This variance in cost is a result of the Department's
updates of the wage rates used throughout this analysis.
---------------------------------------------------------------------------
Exhibit 26 presents the updates to the State-level DOL program. The
Department replaced the technical staff with the more precise
occupational category of management analyst.
Exhibit 26--Updates to Costs of State-Level DOL Programs--Disseminating the Training Provider List With Accompanying Information
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(v) Disseminating the training provider list with accompanying information (u) Disseminating the training provider list with accompanying information
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 30 One time............. 56 States............ Management 1 30 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 80 Management analyst. 2 80
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 2 45 Secretary or admin. 2 45
assistant.
------------------------------------------------------------ -----------------------------------------------
IT reprogramming or database 2 125 Database 2 125
staff. administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Migrant and Seasonal Farmworker Housing
This section describes the updates to the NPRM's provision (w)
``Migrant and Seasonal Farmworker Housing.'' The cost of this provision
was not quantified in the NPRM because this this provision has been
rescinded in the Final Rule.
In addition, the Department moved one provision that appeared in
the Joint WIOA NPRM to this DOL WIOA Final Rule. The Department
describes this provision below.
Identification and Dissemination of Best Practices
After careful consideration, the Department has concluded that the
costs associated with provision (d) ``Identification and Dissemination
of Best Practices'' in the Joint WIOA NPRM economic analysis are more
appropriate for this Final Rule because the requirement affects State
WDBs only. The costs of this provision reflect efforts by State WDBs to
assist Governors in identifying and disseminating best practices. This
provision results in a total undiscounted 10-year cost of $3.1 million.
[[Page 56308]]
Exhibit 27--Updates to Costs of State-Level DOL Programs--Identification and Dissemination of Best Practices
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Moved from joint WIOA NPRM (c) Identification and dissemination of best practices
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of
Labor category number of effort Frequency entities Labor category number of effort Frequency affected
workers (hrs.) workers (hrs.) entities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A. See Joint WIOA NPRM Management 1 20 Annual.............. 57 States.
occupations staff.
-------------------------------------------------
Management analyst. 2 40
-------------------------------------------------
Secretary or admin. 1 20
assistant.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Youth Funds Targeting Out-of-School Youth
This section describes the updates to the transfer payments
analysis. In the NPRM, the Department described the transfer payments
qualitatively due to data limitations and a lack of operational data or
evaluation findings on the provisions of the NPRM or WIOA in general.
In this DOL WIOA Final Rule, the Department was able to quantify the
transfer payments related to youth funds targeting OSY. This accounts
for transfers expected to result from decreases in burdens on taxpayers
as more youth leave the youth programs and obtain employment. For
transfers associated with youth funds targeting OSY, the quantified
transfer payments increased from $0 in the NPRM to $128.9 million in
the Final Rule.
6. Subject-by-Subject Analysis
The Department's analysis below covers the expected costs of the
following 21 provisions of the WIOA Final Rule against the baseline of
the current practice under WIA: (a) ``New State WDB Membership
Requirements;'' (b) ``Development and Continuous Improvement of the
Workforce Development System;'' (c) ``Identification and Dissemination
of Best Practices;'' (d) ``Development of Statewide Policies Affecting
the State's One-Stop System;'' (e) ``Development of Strategies for
Technological Improvements;'' (f) ``Appoint New Local WDB and
Appropriate Firewalls;'' (g) ``Local WDB Career Pathways Development;''
(h) ``Local WDB Development of Proven and Promising Practices;'' (i)
``Local WDB Development of Technology Strategies for Public Workforce
System Accessibility and Effectiveness;'' (j) ``Competitive Process for
Selection of the One-Stop Operators;'' (k) ``Local WDB Coordination
with Education Providers;'' (l) ``Regional Plans;'' (m) ``Local and
Regional Plan Modification;'' (n) ``Improved Information about Eligible
Training Program Providers;'' (o) ``Sanctions on Under-Performing
States;'' (p) ``Colocation of ES Services;'' (q) ``Partners Required to
Pay their Share for Proportionate Use of the One-Stop Delivery
System;'' (r) ``Establishing Training Provider Eligibility Procedures,
Including Procedures for Adding Registered Apprenticeship Programs to
the State Eligible Training Provider List;'' (s) ``Determining Initial
Eligibility of New and Previously Eligible Providers;'' (t) ``Biennial
Review of Training Provider Eligibility;'' and (u) ``Disseminating the
Training Provider List with Accompanying Information.''
In addition, the Department analyzed the expected transfers related
to ``Youth Funds Targeting Out-of-School Youth.''
The Department emphasizes that many of the provisions in this WIOA-
required Final Rule also are existing requirements under WIA. For
example, the requirement that States ``prepare annual reports'' is a
current requirement under WIA that States routinely undertake.
Accordingly, our regulatory analysis focuses on new costs and transfers
that can be attributed exclusively to the enactment of WIOA, as
addressed in this Final Rule. Much of WIA's infrastructure and
operations are carried forward under WIOA and, therefore, are not
considered ``new'' burdens resulting from this Final Rule.
Quantifiable Costs of the Final Rule
The following sections describe the provisions that are expected to
result in costs.
a. New State WDB Membership Requirements
States must establish State WDBs in accordance with the membership
requirements of WIOA sec. 101(b). Under WIOA sec. 101(b)(1)(C)(i), the
majority of the State WDB representatives must be from businesses or
organizations in the State. These representatives must be owners, chief
executive officers, or chief operating officers of the businesses or
executives with optimum policy-making or hiring authority. WIA did not
include specific requirements for percentage of State WDB business
members.
WIOA sec. 101(b)(1)(C)(ii) requires at least 20 percent of State
WDB members to be representatives of labor organizations who have been
nominated by State labor federations and at least one member to be a
member of a labor organization or a training director from a joint
labor-management apprenticeship program (if such program exists in the
State). Members may include representatives of community-based
organizations (CBOs) that have demonstrated expertise in addressing the
employment, training, or education needs of individuals with barriers
to employment or eligible youth.
WIA sec. 111(b)(1)(C) required that State WDB members include
representatives of labor organizations, representatives of
organizations that have experience with respect to youth activities and
expertise in the delivery of workforce investment activities, including
chief executive officers of community colleges and CBOs. No minimum
percentage requirement for this type of membership, however, was
required. In accordance with WIOA sec. 101(b)(2), State WDB membership
must represent the diverse geographic areas of the State. WIA did not
include a requirement that State WDB representation cover the diverse
geographic areas of the State.
Costs
To estimate State WDB costs (see Exhibit 4), the Department
multiplied the estimated average number of chief executives per State
(1) by the time required to adjust the State WDB membership (5 hours)
and by the hourly
[[Page 56309]]
compensation rate ($85.19/hour). We repeated the calculation for the
following occupational categories: lawyers (1 lawyer at $65.48/hour for
15 hours), management occupations staff (1 manager at $65.39/hour for
15 hours), management analysts (2 analysts at $45.88/hour for 20 hours
each), and secretaries or administrative assistants (1 assistant at
$27.16/hour for 20 hours). We summed the labor cost for all five
occupational categories ($4,767) and multiplied the result by the
number of States (57). This calculation results in a one-time cost of
$271,742 in the first year of the Final Rule, which is an average
annual cost of $27,174.
b. Development and Continuous Improvement of the Workforce Development
System
WIOA sec. 101(d)(3)(A) through (G) require the State WDB assist the
Governor in developing and continuously improving the State's workforce
development system, including identifying barriers and means for their
removal to coordinate and align programs and activities better;
developing career pathway strategies to support individuals in entering
or retaining employment; developing customer outreach strategies;
developing and expanding strategies to meet the need of employers,
workers, and job seekers through industry or sector partnerships
related to in-demand industry sectors and occupations; identifying
regions, including planning regions, and designating local areas (after
consultation with Local WDBs and CEOs); \41\ developing and
continuously improving the one-stop delivery system; and developing
strategies to train and inform staff.
---------------------------------------------------------------------------
\41\ According to WIOA sec. 106(a)(1), identification of regions
is part of the process for developing the State Plan and is
necessary to receive an allotment under other provisions of WIOA.
---------------------------------------------------------------------------
WIA sec. 111(d)(2) also required the State WDB to assist the
Governor in developing and continuously improving the statewide
workforce development system; however, the list of included activities
was limited to review of local plans and development of linkages to
ensure coordination and non-duplication among the programs and
activities of one-stop partners. Like WIOA, WIA required State WDBs to
assist the Governor in designating local areas (WIA sec. 111(d)(4)).
State WDBs, however, have significantly more explicit responsibilities
in terms of developing strategies for workforce development systems in
the State.
Costs
The Department estimated the State WDBs' annual labor costs for
developing or expanding sector strategies (see Exhibit 5) by
multiplying the estimated average number of management occupations
staff members per State (1) by the time required to review the
workforce development system (300 hours) and by the hourly compensation
rate ($65.39/hour). We performed the same calculation for the
management analysts (2 analysts at $45.88/hour for 1,260 hours each).
We summed the labor cost for both categories ($135,235) and multiplied
the result by the number of States that do not have extensive and
systematic sector strategies (21). Over the 10-year period, this
calculation yields an estimated recurring annual cost of $2.8 million
($2,839,927), which is equal to a 10-year total cost of $28.4 million
($28,399,266).
Similarly, the Department estimated the State WDBs' annual labor
cost for expanding career pathways strategies by multiplying the
estimated average number of management occupations staff members per
State (1) by the time required to review the workforce development
system (300 hours) and by the hourly compensation rate ($65.39/hour).
We repeated the calculation for the management analysts (2 analysts at
$45.88/hour for 1,260 hours each). We summed the labor cost for the two
occupational categories ($135,235) and multiplied the result by the
number of States that do not have policies for career pathways
(27).\42\ Over the 10-year period, this calculation yields an estimated
recurring annual cost of $3.7 million ($3,651,334), which is equal to a
total 10-year cost of $36.5 million ($36,513,342).
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\42\ U.S. Department of Education, U.S. Department of Labor, and
U.S. Department of Health and Human Services (2014, September).
Viewing party guide. National Dialogue on Career Pathways. Retrieved
from: https://learnwork.workforce3one.org/view/2001425433998607383/info.
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The Department estimated the labor cost that State WDBs will incur
to identify regions by multiplying the estimated average number of
lawyers per State (1) by the time required to review the workforce
development system (40 hours) and by the hourly compensation rate
($65.48/hour). We performed the same calculation for the following
occupational categories: Management occupations staff (1 manager at
$65.39/hour for 40 hours), management analysts (1 analyst at $45.88/
hour for 80 hours), and secretaries or administrative assistants (1
assistant at $27.16/hour for 20 hours). We summed the labor cost for
all four occupational categories ($9,448) and multiplied the result by
the number of States (57) to estimate this one-time labor cost of
$538,559. Over the 10-year period, this calculation yields an average
annual cost of $53,856.
The Department estimated the labor cost for State WDBs (See Exhibit
9) by first multiplying the estimated average number of lawyers per
State (1) by the time required to identify regions in the State (10
hours each) and by the hourly compensation rate ($65.48/hour). We
performed the same calculation for the following occupational
categories: Management occupations staff (2 managers at $65.39/hour for
40 hours each), management analysts (3 analysts at $45.88/hour for 15
hours each), and secretaries or administrative assistants (2 assistants
at $27.16/hour for 10 hours each). We summed the labor costs for all
four occupational categories ($8,494) and multiplied the result by the
number of States (57) to estimate this cost as $484,147, occurring in
2017 and 2021 and resulting in an average annual cost of $96,829. This
is equal to a total 10-year cost of $968,293.
The sum of these costs yields a total average annual cost of $6.6
million ($6,641,946) for individuals from the State level to review the
workforce development system. This is equal to total 10-year cost of
$66.4 million ($66,419,460).
c. Identification and Dissemination of Best Practices
Under WIOA sec. 101(d)(6), State WDBs must assist Governors in
identifying and disseminating best practices, including practices for:
1. The effective operation of one-stop centers, relating to the use
of business outreach, partnerships, and service delivery strategies,
including strategies for serving individuals with barriers to
employment.
2. The development of effective Local WDBs, which could include
information on contributing factors to enable Local WDBs to exceed
negotiated levels of performance, sustain fiscal integrity, and achieve
other measures of effectiveness.
3. The development of effective training programs that support
efficient placement of individuals into employment or career pathways
and that respond to real-time labor market analysis; that effectively
use direct assessment and prior learning assessment to measure an
individual's prior knowledge, skills, competencies, and experiences;
and that evaluate such skills and competencies for adaptability.
WIA did not include requirements relating to State WDBs supporting
the
[[Page 56310]]
development of best practices. Therefore, costs will be incurred by
State WDBs to assist Governors in identifying and disseminating the
best practices. State WDBs will incur annual labor costs to become
compliant with this provision.
Costs
The Department estimated the labor cost that States would incur
(see Exhibit 27) by multiplying the estimated average number of
management occupations staff members per State (1) by the time required
to assist in the development of best practices (20 hours) and by the
hourly compensation rate ($65.39/hour). We performed the same
calculation for the management analysts (2 analysts at $45.88/hour for
40 hours each) and secretaries or administrative assistants (1
assistant at $27.16/hour for 20 hours). We summed the labor cost for
all three occupational categories ($5,521) and multiplied the result by
the number of States (57) to estimate this annual labor cost at
$314,720, which results in a 10-year cost of $3.1 million ($3,147,198).
d. Development of Statewide Policies Affecting the State's One-Stop
Delivery System
Under WIOA sec. 101(d)(6), State WDBs must assist Governors in
developing and reviewing statewide policies that affect the coordinated
provision of services through the State's one-stop delivery system.
These policies include those concerning objective criteria and
procedures for Local WDBs to assess one-stop centers and guidance for
the allocation of one-stop center infrastructure funds, and policies
relating to the appropriate roles and contributions of one-stop
partners within the one-stop delivery system, including approaches to
facilitating equitable and efficient cost allocation.
WIA did not include requirements relating to State WDBs' support of
the development of policies affecting the coordinated provision of
services through the State's one-stop delivery system.
Costs
The Department estimated the labor cost that State WDBs will incur
(see Exhibit 6) by multiplying the estimated average number of lawyers
per State (1) by the time required to provide objective criteria and
procedures (60 hours) and by the hourly compensation rate ($65.48/
hour). We performed the same calculation for the management occupations
staff (1 manager at $65.39/hour for 18 hours), social and community
service managers (1 manager at $54.21/hour for 42 hours), and
management analysts (3 analysts at $45.88/hour for 120 hours each). We
summed the labor cost for all four occupational categories ($23,899)
and multiplied the result by the number of States (57) to estimate this
one-time labor cost at $1.4 million ($1,362,268), which results in an
average annual cost of $136,227.
e. Development of Strategies for Technological Improvements
Under WIOA sec. 101(d)(7), State WDBs must assist Governors in
developing strategies for technological improvements to facilitate
access to and improve the quality of services and activities provided
through the one-stop delivery system. These strategies include
improvements to enhance digital literacy skills, accelerate acquisition
of skills and recognized postsecondary credentials by participants,
strengthen professional development of providers and workforce
professionals, and ensure technology is accessible to individuals with
disabilities and individuals residing in remote areas.
WIA did not include requirements relating to State WDBs' support of
the development of strategies for technological improvements to
facilitate access to, and improve the quality of, one-stop delivery
system services and activities.
Costs
The Department estimated the labor cost that State WDBs will incur
(see Exhibit 7) by multiplying the estimated average number of
management occupations staff members per State (1) by the time required
to develop strategies (20 hours) and by the hourly compensation rate
($65.39/hour). We repeated the calculation for the computer systems
analysts (1 analyst at $56.17/hour for 40 hours). We summed the labor
cost for both categories ($3,555) and multiplied the result by the
number of States (57) to estimate a recurring annual cost of $202,612,
which is equal to a total 10-year cost of $2.0 million ($2,026,122).
f. Appoint New Local WDB and Appropriate Firewalls
The Local WDB is appointed by the CEOs in each local area in
accordance with State criteria established under WIOA sec. 107(b) and
is certified by the Governor every 2 years, in accordance with WIOA
sec. 107(c)(2). The WIOA sec. 107(b)(2) membership criteria differ from
the WIA sec. 117(b)(2) Local WDB membership criteria, and will result
in a new one-time cost incurred by local CEOs in each local area
because they will have to appoint a new Local WDB whose membership
satisfies the requirements of WIOA sec. 107(b)(2). In particular, WIOA
requires that a majority of Local WDB members be representatives of
local area business (sec. 107(b)(2)(A)), whereas WIA required
membership from local area business but did not include the requirement
that such membership be a majority.
Additionally, WIOA sec. 107(b)(2)(B) requires that at least 20
percent of Local WDB membership be representatives of labor
organizations (including at least one member from a joint labor-
management apprenticeship program, if one exists in the local area);
CBOs (optional); and organizations with youth employment, training, or
educational expertise (optional). WIA required Local WDB membership
from representatives of labor organizations and CBOs, but did not
include reference to apprenticeship programs or organizations with
youth expertise, nor did WIA include the minimum 20-percent
requirement.
Further, WIOA requires Local WDB membership to include a
representative from an adult education provider and a representative of
higher education providing workforce investment activities (including
community colleges), while the WIA Local WDB membership requirements
did not reference such membership representation.
Under Sec. 679.410(a), a Local WDB may be selected as a one-stop
operator through sole-source procurement or through successful
competition, in accordance with part 678, subpart D (see Joint WIOA
Final Rule). The procedures for sole-source selection of one-stop
operators include requirements about maintaining written documentation
and developing appropriate firewalls and conflict-of-interest policies.
Therefore, when a Local WDB is selected as a one-stop operator through
a sole-source procurement, it must establish sufficient firewalls and
conflict-of-interest policies and procedures that the Governor
approves. These requirements will result in one-time costs for the
Local WDBs that will elect sole-source one-stop operator competition.
Costs
The Department estimated the labor costs incurred by Local WDBs
(see Exhibit 10) by multiplying the estimated average number of lawyers
per Board (1) by the time required to appoint a new Local WDB (15
hours) and by the hourly compensation rate ($74.78/hour). We performed
the same calculation for the following occupational categories:
[[Page 56311]]
Management occupations staff members (1 manager at $63.63/hour for 20
hours), management analysts (2 analysts at $60.60/hour for 20 hours
each), and secretaries or administrative assistant (1 assistant at
$29.30/hour for 20 hours). We summed the labor cost for the four
occupational categories ($5,404) and multiplied the result by the
number of Local Boards (580) to estimate this one-time cost as $3.1
million ($3,134,494), which results in an average annual cost of
$313,449.
In addition, the Department estimated the labor cost for Local WDBs
to develop written agreements by multiplying the estimated average
number of lawyers per Local WDB (1) by the time required to develop
written agreements (8 hours) and by the hourly compensation rate
($74.78/hour). We repeated the calculation for the management
occupations staff members (1 manager at $63.63/hour for 8 hours) and
computer systems analysts (1 analyst at $60.76 for 20 hours). We summed
the labor cost for the three occupational categories ($2,322) and
multiplied the result by the number of Local WDBs (580) to estimate
this one-time cost as $1.3 million ($1,347,038), which results in an
average annual cost of $134,704.
In total, these calculations yield a one-time cost of $4.5 million
($4,481,532), which results in an average annual cost of $448,153 for
individuals from the local level to appoint new Local WDBs and set
administrative firewalls that avoid conflicts of interest.
g. Local WDB Career Pathways Development
Under WIOA sec. 107(d)(5), Local WDBs, with representatives of
secondary and postsecondary education programs, must lead efforts to
develop and implement career pathways within the local area by aligning
the employment, training, education, and supportive services needed by
adults and youth, particularly individuals with barriers to employment.
WIA did not include requirements relating to Local WDBs developing or
implementing career pathways.
Costs
The Department estimated the labor cost for Local WDBs (see Exhibit
11) by first multiplying the estimated average number of lawyers per
Local WDB (1) by the time required to develop and implement career
pathways (10 hours) and by the hourly compensation rate ($74.78/hour).
We performed the same calculation for the following occupational
categories: Management occupations staff members (1 manager at $63.63/
hour for 80 hours), management analysts (1 analyst at $60.60/hour for
80 hours), and secretaries or administrative assistants (1 assistant at
$29.30/hour for 20 hours). We summed the labor cost for all four
occupational categories ($11,272) and multiplied the result by the
number of Local WDBs (580) to estimate a recurring annual cost of $6.5
million ($6,537,876), which is equal to a total 10-year cost of $65.4
million ($65,378,760).
h. Local WDB Development of Proven and Promising Practices
Under WIOA sec. 107(d)(6), Local WDBs must lead efforts in the
local area to identify and promote proven and promising strategies and
initiatives for meeting the needs of employers, workers, and job
seekers (including individuals with barriers to employment), including
providing physical and programmatic accessibility to the one-stop
delivery system, in accordance with WIOA sec. 188 and the Americans
with Disabilities Act, if applicable. This provision further requires
Local WDBs to identify and disseminate information on proven and
promising practices carried out in other local areas for meeting such
needs. WIA did not include requirements for Local WDBs to identify or
promote proven strategies for meeting the needs of employers, workers,
and job seekers in the local workforce development system.
Costs
For Local WDBs (see Exhibit 12), the Department estimated this
labor cost by first multiplying the estimated average number of
management occupations staff members per State (1) by the time required
to identify and promote proven strategies (20 hours) and by the hourly
compensation rate ($63.63/hour). We performed the same calculation for
the management analyst occupational category (1 analyst at $60.60/hour
for 40 hours). We summed the labor cost for these two occupational
categories ($3,697) and multiplied the result by the number of Local
WDBs (580) to estimate a recurring annual cost of $2.1 million
($2,144,028), which is equal to a total 10-year cost of $21.4 million
($21,440,280).
i. Local WDB Development of Technology Strategies for Public Workforce
System Accessibility and Effectiveness
Under WIOA sec. 107(d)(7), Local WDBs must develop strategies for
using technology to maximize the accessibility and effectiveness of the
local workforce development system for employers, workers, and job
seekers by facilitating connections among the case management
information systems for the one-stop partner programs, facilitating
access to services provided through the one-stop delivery system
(including facilitating access in remote areas), identifying strategies
for better meeting the needs of individuals with barriers to employment
(such as improving digital literacy skills), and leveraging resources
and capacity within the local workforce development system. WIA did not
include requirements for Local WDBs to develop technology strategies
for improving accessibility and effectiveness of the local workforce
development system.
Costs
The Department estimated the cost for Local WDBs (see Exhibit 13)
by first multiplying the estimated average number of management
occupations staff members per Local WDB (1) by the time required to
develop technology strategies (20 hours) and by the hourly compensation
rate ($63.63/hour). We performed the same calculation for the computer
systems analysts (1 analyst at $60.76/hour for 40 hours). We summed the
labor cost for these two occupational categories ($3,703) and
multiplied the result by the number of Local WDBs (580) to estimate a
recurring annual cost of $2.1 million ($2,147,740), which is equal to a
total 10-year cost of $21.5 million ($21,477,400).
j. Competitive Process for Selection of the One-Stop Operator
Under WIOA sec. 107(d)(10)(A), Local WDBs must, consistent with
WIOA sec. 121(d) and with the agreement of the CEO for the local area,
designate or certify one-stop operators and may terminate for cause the
eligibility of such operators. WIOA sec. 121(d)(2)(A) specifies that
selection of a one-stop operator must be through a competitive process.
WIA sec. 117(d)(2) also required Local WDBs to designate one-stop
operators; however, WIA sec. 121(d)(2) allowed for designation of a
one-stop operator through either a competitive process or in accordance
with an agreement reached between the Local WDB and a consortium of
entities that includes at least three one-stop partners. Therefore,
WIOA requires a newly competitive procurement process for all Local WDB
designations of one-stop operators. The one-stop competition
regulations at part 678, subpart D (see Joint WIOA Final Rule),
however, provide for sole-source procurement for one-stop operators
under limited conditions. Nevertheless,
[[Page 56312]]
because of the new WIOA requirement mandating competitive one-stop
operative procurement, this analysis assumes that all 580 Local WDBs
would have to implement a competitive procurement process. Of these
Local WDBs, only 250 Local WDBs would have to newly implement a
competitive procurement process.
Costs
The Department estimated the cost for Local WDBs (see Exhibit 14)
by first multiplying the estimated average number of lawyers per Local
WDB (1) by the time required to designate one-stop operators (40 hours)
and by the hourly compensation rate ($74.78/hour). We performed the
same calculation for the following occupational categories: Management
occupations staff members (1 manager at $63.63/hour for 80 hours),
social workers (2 workers at $40.46/hour for 120 hours each), and
secretaries or administrative assistants (1 assistant at $29.30/hour
for 40 hours). We summed the labor costs for these four occupational
categories ($18,964) and multiplied the result by the number of Local
WDBs that will be newly selecting one-stop operators competitively
(250) to estimate a cost of $4.7 million ($4,741,000) occurring in
2017, 2021, and 2025. Over the 10-year period, this calculation yields
an average annual cost of $1.4 million ($1,422,300), which is equal to
a total cost of $14.2 million ($14,223,000).
k. Local WDB Coordination With Education Providers
Under WIOA sec. 107(d)(11), Local WDBs must coordinate activities
with education and training providers in the local area, including
providers of workforce investment activities, providers of adult
education and literacy activities under title II of WIOA, certain
providers of career and technical education, and local agencies
administering certain plans under the Rehabilitation Act of 1973. WIA
did not include requirements relating to Local WDB coordination with
education providers.
Costs
For Local WDBs, the Department estimated this labor cost (see
Exhibit 15) by first multiplying the estimated average number of
management occupations staff members per State (1) by the time required
to coordinate activities with local education and training providers
(20 hours) and by the hourly compensation rate ($63.63/hour). We
performed the same calculation for the management analyst occupational
category (1 analyst at $60.60/hour for 40 hours). We summed the labor
cost for both occupational categories ($3,697) and multiplied the
result by the number of Local WDBs (580) to estimate a recurring annual
cost of $2.1 million ($2,144,028), which is equal to a 10-year total
cost of $21.4 million ($21,440,280).
l. Regional Plans
WIOA sec. 106(c)(2) requires Local WDBs and CEOs within a planning
region to prepare, submit to the State, and obtain approval of a single
regional plan that includes a description of the regional planning
activities described in WIOA and incorporates local plans for each
local area in the planning region. Specifically, WIOA sec. 106(c)(1)
specifies that regional planning must include the following seven
activities: (1) Establishment of regional service strategies, including
use of cooperative service delivery alignment; (2) development and
implementation of sector initiatives for in-demand industry sectors or
occupations for the region; (3) collection and analysis of regional
labor market data (in conjunction with the State); (4) establishment of
administrative cost arrangements, including the pooling of funds for
regional administrative costs, as appropriate; (5) coordination of
transportation and other supportive services, as appropriate, for the
region; (6) coordination of services with regional economic development
services and providers; and (7) establishment of an agreement
concerning how the planning region will negotiate collectively and
reach agreement with the Governor on local levels of performance for,
and report on, the performance accountability measures for local areas
or the planning region. WIA did not include provisions relating to
State WDB identification of regions or regional coordination.
Costs
For Local WDBs (see Exhibit 16), the Department estimated this cost
by first multiplying the estimated average number of lawyers per Local
WDB (1) by the time required to prepare, submit, and obtain approval of
a single regional plan (8 hours) and by the hourly compensation rate
($74.78/hour). We performed the same calculation for the following
occupational categories: Management occupations staff members (2
managers at $63.63/hour for 20 hours each), management analysts (2
analysts at $60.60/hour for 40 hours each), and secretaries or
administrative staff (1 staff member at $29.30/hour for 8 hours). We
summed the labor cost for the four occupational categories ($8,226) and
multiplied the result by the number of Local WDBs (580) to estimate
this cost as $4.8 million ($4,770,987), which occurs in 2017 and 2021.
This calculation results in an average annual cost of $954,197, which
is equal to a total 10-year cost of $9.5 million ($9,541,974).
m. Local and Regional Plan Modification
Under WIOA sec. 108(a), each Local WDB, in partnership with the
CEO, must review the local plan every 2 years and submit a modification
as needed, based on significant changes in labor market and economic
conditions and other factors. These factors include changes to local
economic conditions, changes in the financing available to support WIOA
title I and partner-provided WIOA services, changes to the Local WDB
structure, and a need to revise strategies to meet performance goals.
If the local area is part of a planning region, the Local WDB must
comply with WIOA sec. 106(c) in the preparation and submission of a
regional plan. WIA sec. 118 did not require local plan review and
modification more frequently than the 5-year duration of a WIA local
plan.
Costs
For Local WDBs (see Exhibit 17), the Department estimated the local
plan modification cost by first multiplying the estimated average
number of lawyers per Local WDB (1) by the time required to review and
modify the 4-year plan (4 hours) and by the hourly compensation rate
($74.78/hour). We performed the same calculation for the following
occupational categories: management occupations staff members (1
manager at $63.63/hour for 10 hours), management analysts (2 analysts
at $60.60/hour for 10 hours each), and secretaries or administrative
assistants (1 assistant at $29.30/hour for 4 hours). We summed the
labor cost for all four occupational categories ($2,265) and multiplied
the result by the number of Local WDBs (580) to estimate this one-time
cost of $1.3 million ($1,313,480), occurring in 2019. Over the 10-year
period, this calculation yields an average annual cost of $131,348.
Similarly, the Department estimated the regional plan modification
cost for Local WDBs by first multiplying the estimated average number
of lawyers per regional board (1) by the time required to review and
modify the 4-year plan (4 hours) and by the hourly compensation rate
($74.78/hour). We performed the same calculation for the following
occupational categories: management occupations staff members (2
managers at $63.63/hour for 10 hours
[[Page 56313]]
each), management analysts (2 analysts $60.60/hour for 20 hours each),
and secretaries or administrative assistants (1 assistant at $29.30/
hour for 5 hours). We summed the labor cost for all four occupational
categories ($4,142) and multiplied the result by the number of regional
boards (300) to estimate a cost of $1.2 million ($1,242,666), occurring
in 2020 and 2023. Over the 10-year period, this calculation yields an
average annual cost of $248,533, which is equal to a total cost of $2.5
million ($2,485,332).
The sum of these costs yields a 10-year cost of $3.8 million
($3,798,812), which results in an average annual cost of $379,881 for
individuals from the Local WDBs to review and modify the 4-year plan.
n. Improved Information About Eligible Training Program Providers
WIOA sec. 122 establishes requirements for State ETPLs to provide
information to the public on the effectiveness of ETPs in achieving
positive outcomes for WIOA training participants. The State-maintained
ETPLs provide adults, dislocated workers, and other workers with better
information about potential training program providers and enable them
to make better-informed choices about programs to pursue. As explained
in WIOA sec. 122, the required information for the State ETPL includes
performance information on WIOA participants including percentage
employed 2 and 4 quarters after program exit, median earnings 2
quarters after exit, and percentage obtaining a credential. Other
reporting requirements for the State ETPLs include the cost of
attendance for WIOA participants, credentialing program information,
program completion rate, and additional information the State may
require.\43\
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\43\ The costs associated with performance reporting for ETPs is
explained in the WIOA sec. 116 analysis in the ``Workforce
Innovation and Opportunity Act; Joint Rule for Unified and Combined
State Plans, Performance Accountability, and the One-Stop System
Joint Provisions''; Notice of Proposed Rulemaking at 80 FR 20573.
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To be included on an ETPL, training providers must establish
eligibility through an application procedure and then must maintain
eligibility, including a biennial review by a State- appointed agency,
according to a State Governor's procedure. Once it determines
eligibility for ETPs, the State must make easily understood ETPLs
publicly available, through electronic means and the one-stop delivery
system. Finally, information analyzed and published by the Local WDBs
about local labor markets also will help trainees and providers target
their efforts and develop reasonable expectations about outcomes.
Costs
At the State level for DOL programs (see Exhibit 18), the
Department estimated this labor cost by first multiplying the estimated
average number of management occupations staff members per State (1) by
the time required to provide additional information about eligible
training program providers (32 hours) and by the hourly compensation
rate ($65.39/hour). We performed the same calculation for the following
occupational categories: Management analysts (2 analysts at $45.88/hour
for 40 hours each), and secretaries or administrative assistants (1
assistant at $27.16/hour for 80 hours). We summed the labor cost for
all three occupational categories ($7,936) and multiplied the result by
the number of States (57) to estimate a recurring annual cost of
$452,334. This is equal to a 10-year total cost of $4.5 million
($4,523,338).
o. Sanctions on Under-Performing States
Section 116(f)(1)(B) of WIOA requires the Department to assess a
sanction if a State fails to meet the State-adjusted levels for program
performance for a second consecutive program year or if ``a State fails
to submit a report under subsection (d) for any program year.'' Three
reports are required under WIOA sec. 116(d): State annual performance
reports, local area performance reports, and ETP performance reports.
Of these, only the State annual performance report must be submitted by
the State to the Secretary of Labor. Section 116(f)(1) of WIOA requires
that sanctions for performance failure continue until such date the
Secretary of Labor or the Secretary of Education (as appropriate)
determines that the State meets such State-adjusted levels of
performance and has submitted such reports for the appropriate program
years. Under WIA, the Department had discretion over whether to issue
sanctions for underperformance or failure to submit a performance
report.
Costs
At the State level (see Exhibit 19), the Department estimated the
costs by first multiplying the estimated average number of chief
executives per State (1), the time required to evaluate State
performance (40 hours), and the hourly compensation rate ($85.19/hour).
We performed the same calculation for management analysts (1 analyst at
$45.88/hour for 80 hours) and secretaries or administrative assistants
(1 assistant at $27.16/hour for 40 hours). We summed the labor cost for
all three occupational categories ($8,164) and multiplied the result by
the number of States receiving sanctions (5) to estimate a recurring
annual cost of $40,822, which is equal to a 10-year total cost of
$408,220.
p. Colocation of ES Services
WIOA sec. 121(e)(3) requires colocation of ES offices and one-stop
centers established under title I of WIOA. Fulfilling this requirement
could involve resolving real property issues, decisions on site
locations, discussions with municipal or county governments, and
development of agreements with partners to participate at both
comprehensive and affiliated sites. Colocation is intended to improve
service delivery, avoid duplication of services, and enhance
coordination of services, including location of staff to ensure
expanded access to services in underserved areas. WIA did not include
requirements for collocation.
Costs
At the State level for DOL programs (see Exhibit 20), the
Department estimated this labor cost by first multiplying the estimated
average number of lawyers per State (10), the time required to colocate
ES services (10 hours each), and the hourly compensation rate ($65.48/
hour). We performed the same calculation for the following occupational
categories: Management occupations staff members (10 managers at
$65.39/hour for 40 hours each), management analysts (20 staff at
$45.88/hour for 25 hours each), and secretaries or administrative
assistants (10 assistants at $27.16/hour for 5 hours each). We summed
the labor cost for all four occupational categories ($57,002) and
multiplied the result by the number of States without colocated ES
services (10) to estimate a one-time cost of $570,020, which results in
an annual cost of $57,002.
At the State level, the Department estimated consultant costs for
assisting with planning, property issues (e.g., selling buildings
currently owned by ES and finding buildings that meet certain safety
requirements), and integrating IT and case management systems by
multiplying the estimated consultant costs ($10,200) by the number of
States without colocated ES services (10). This calculation yields an
estimated one-time cost of $102,000, resulting in an average annual
cost of $10,200.
At the local level (see Exhibit 21), the Department estimated labor
costs by first multiplying the estimated average number of management
occupations
[[Page 56314]]
staff members for all local entities within a State (100), the time
required to colocate ES services (40 hours each), and the hourly
compensation rate ($63.63/hour). We performed the same calculation for
the management analysts (200 analysts at $60.60/hour for 25 hours each)
and secretaries or administrative assistants (100 assistants at $29.30/
hour for 5 hours each). We summed the labor cost for all three
occupational categories ($572,170) and multiplied the result by the
number of local areas without colocated ES offices and one-stop centers
(100) to estimate a one-time cost of $57.2 million ($57,217,000),
resulting in an annual cost of $5.7 million ($5,721,700).
The sum of these costs yields a one-time cost of $57.9 million
($57,889,020), which results in an average annual cost of $5.8 million
($5,788,902) for individuals from the State and local levels to
colocate ES services.
q. Partners Required To Pay Their Share for Proportionate Use of One-
Stop Delivery System
An important goal under both the local and State funding mechanisms
is to ensure that each one-stop partner contributes its proportional
share to the funding of one-stop infrastructure costs, consistent with
Federal cost principles. Under WIOA sec. 121(h), in general, Governors
must ensure that one-stop partners appropriately share costs.
Contributions must be based on a proportional share of use and all
funds must be spent solely for allowable purposes in a manner
consistent with the applicable authorizing statute and all other
applicable legal requirements, including Federal cost principles. WIOA
sec. 121(h)(1) established two methods for funding the infrastructure
costs of one-stop centers: A local funding mechanism and a State
funding mechanism. Both methods use the funds provided to one-stop
partners by their authorizing legislations; there is no separate
funding source for one-stop infrastructure costs. WIA did not include
directives relating to the funding of the one-stop infrastructure.
Costs
At the State level (see Exhibit 22), the Department estimated the
costs related to this provision (e.g., the cost of developing memoranda
of understanding) by first multiplying the estimated average number of
lawyers per State (50), the time required for States to comply with
payment requirements proportional to use of one-stop delivery systems
(1 hour each), and the hourly compensation rate ($65.48/hour). We
performed the same calculation for the following occupational
categories: Management occupations staff members (50 managers at
$65.39/hour for 40 hours each), social workers (100 workers at $35.22/
hour for 40 hours each), and secretaries or administrative assistants
(50 assistants at $27.16/hour for 5 hours each). We summed these
products for all four occupational categories ($281,724) and multiplied
the result by the number of States that need to pay their proportional
share (54) to estimate a cost of $15.2 million ($15,213,096) occurring
in 2018, 2021, and 2024, resulting in an average annual cost of $4.6
million ($4,563,929). This is equal to a total 10-year cost of $45.6
million ($45,639,288).
r. Establishing Training Provider Eligibility Procedures, Including
Procedures for Adding Registered Apprenticeship Programs to the State
Eligible Training Provider List
Under WIOA sec. 122(a)(1), the Governor, after consultation with
the State WDB, must establish criteria, information requirements, and
procedures regarding the eligibility of providers of training services
to receive funds under WIOA for the provision of training services in
local areas in the State (i.e., procedures for initial determination
and renewals of eligibility). In establishing the ETP eligibility
criteria, the Governor must take into account: (1) The performance of
training providers; (2) the need to ensure access to training services
throughout the State, including in rural areas and through the use of
technology; (3) information reporting to State agencies with respect to
other Federal and State programs involving training services, including
one-stop partner programs; (4) the degree to which the training
programs relate to in-demand industry sectors and occupations in the
States; (5) any relevant State licensing requirements for the program;
(6) ways in which the criteria can encourage providers to use industry-
recognized certifications; (7) the ability of the providers to offer
programs that lead to recognized postsecondary credentials; (8) the
quality of a training program; (9) the ability of the providers to
provide training services to individuals who are employed and
individuals with barriers to employment; and (10) other factors the
Governor determines appropriate to ensure accountability of the
providers, informed choice of participants, one-stop centers ensure
providers meet the needs of local employers and participants, and
collection of information is not unduly burdensome or costly to
providers (WIOA sec. 122(b)(1)).
In establishing the information requirements, the Governor must
require that a training provider submit appropriate, accurate, and
timely information to the State, which must include information on
performance, recognized postsecondary credentials received by
participants, cost of attendance, the program completion rate, and
eligibility criteria established by the Governor (WIOA sec. 122(b)(2)).
As explained in Sec. 680.410, training providers, including those
operating under the individual training account exceptions, must
qualify as ETPs, except for those engaged in on-the-job and customized
training (for which the Governor should establish qualifying procedures
as discussed in Sec. 680.530). Registered apprenticeship programs are
automatically eligible to be included in the ETPL, provided the program
remains a registered apprenticeship program. All registered
apprenticeship programs must be informed of their automatic eligibility
to be included on the list, and must be provided an opportunity to
consent to their inclusion, before being placed on the State list of
eligible training providers and programs. The Governor must establish a
mechanism for registered apprenticeship program sponsors in the State
to be informed of their automatic eligibility and to indicate that the
program sponsor wishes to be included on the State list of eligible
training providers and programs. The regulation specifies that this
mechanism must place minimal burden on registered apprenticeship
program sponsors and must be developed in accordance with guidance from
the U.S. Department of Labor Office of Apprenticeship representative in
the State or with the assistance of the recognized State apprenticeship
agency, as applicable.
Under WIA sec. 122(b)(2), the Governor had to establish a procedure
for Local WDBs to use to determine initial eligibility. Other than
requiring performance information, however, WIA did not prescribe
requirements for what must be included in the Governor-established
eligibility criteria, information requirements, and ETP procedures.
Regarding apprenticeships, WIA sec. 122(b)(1) required such training
programs to submit an ETP application to the relevant Local WDB to
include such information as the Local WDB may require.
Costs
At the State level (see Exhibit 23), the Department estimated this
cost by first multiplying the estimated average
[[Page 56315]]
number of lawyers per State (1); the time needed to establish criteria,
information requirements, and procedures for training provider
eligibility (20 hours); and the hourly compensation rate ($65.48/hour).
We performed the same calculation for the management occupations staff
members (1 manager at $65.39/hour for 40 hours) and management analysts
(1 analyst at $45.88/hour for 80 hours). We summed the labor cost for
all three occupational categories ($7,596) and multiplied the result by
the number of States (57) to estimate a one-time cost of $432,949,
resulting in an annual cost of $43,295.
At the local level, the Department estimated this cost by first
multiplying the estimated average number of database administrators per
ETP (1); the time needed to establish criteria, information
requirements, and procedures for training provider eligibility (3
hours); and the hourly compensation rate ($59.60/hour). We summed the
labor cost ($179) and multiplied the result by the number of ETPs
(11,400) to estimate a one-time cost of $2.0 million ($2,038,320),
resulting in an annual cost of $203,832.
The sum of these amounts yields a one-time cost of $2.5 million
($2,471,269), which results in an average annual cost of $247,127 for
individuals from the State and local levels to establish criteria,
information requirements, and procedures for training provider
eligibility.
s. Determining Initial Eligibility of New and Previously Eligible
Training Providers
Under the requirements of WIOA sec. 122, the Governor, after
consultation with the State WDB, establishes the procedures for
determining eligibility of training providers, which include
application and renewal procedures, eligibility criteria, and
information requirements. The Governor was permitted to establish a
transition procedure under which WIA-ETPs could continue to be eligible
through June 30, 2016 (or such earlier date determined appropriate by
the Governor).\44\ Under Sec. 680.450, all providers that previously
have not been eligible under either WIA sec. 122 or WIOA sec. 122,
except for registered apprenticeship programs, must submit required
information to be considered for initial eligibility in accordance with
the Governor's procedures. Under WIOA sec. 122(b)(4)(B), providers
receive initial eligibility for only 1 fiscal year and after the
initial eligibility expires, providers are subject to the Governor's
application procedures for continued eligibility, described in Sec.
680.460, to remain eligible (see provision (t) Biennial Review of
Training Provider Eligibility below).
---------------------------------------------------------------------------
\44\ In the NPRM, the Department stated that the Governor may
establish a transition procedure under which WIA-ETPs may continue
to be eligible through December 31, 2015. The Department extended
the time for the implementation of continued eligibility
requirements for training providers eligible under WIA by 6 months,
unless the Governor determined that an earlier date was possible.
---------------------------------------------------------------------------
Costs
At the State level for DOL programs (see Exhibit 24), the
Department estimated this labor cost by first multiplying the estimated
average number of management occupations staff members per State (1),
the time needed to determine provider eligibility (40 hours), and the
hourly compensation rate ($65.39/hour). We performed the same
calculation for the management analysts (2 analysts at $45.88/hour for
110 hours each) and secretaries or administrative assistants (2
assistants at $27.16/hour for 50 hours each). We summed the labor cost
for all three occupational categories ($15,425) and multiplied the
result by the number of States (57) to estimate a one-time cost of
$879,236, resulting in an annual cost of $87,924.
t. Biennial Review of Training Provider Eligibility
Under WIOA sec. 122(c)(2), the procedures established by the
Governor must provide for biennial review and renewal of eligibility
for providers of training services. Paragraph (h) of Sec. 680.460
provides discretion for a State to establish eligibility criteria that
require more frequent review but specifies that the review must be at
least every 2 years. This biennial review process will require the
submission of information from training providers and the evaluation of
such information as specified in the Governor's eligibility criteria,
information requirements, and procedures. Paragraph (j) of Sec.
680.460 requires that the procedure for biennial review of training
provider eligibility include verification of the registration status of
registered apprenticeship programs.
WIA required training providers to submit performance information
and meet performance levels annually to remain eligible (WIA sec.
122(c)(5) and Sec. 663.530). The WIA regulations at Sec. 663.540
required the annual submission of the following information to allow
the Local WDB to determine subsequent eligibility of training
providers: Program-specific performance information, information on
program costs, and any additional verifiable performance information
that the Governor determines to be appropriate for obtaining subsequent
eligibility.
Costs
At the State level (see Exhibit 25), the Department estimated this
labor cost by first multiplying the estimated average number of
management occupations staff members per State (1), the time needed to
perform the eligibility review (30 hours), and the hourly compensation
rate ($65.39/hour). We performed the same calculation for the
management analysts (2 analysts at $45.88/hour for 60 hours each) and
secretaries or administrative assistants (2 assistants at $27.16/hour
for 30 hours each). We summed the labor cost for all three occupational
categories ($9,097) and multiplied the result by the number of States
(57) to estimate a cost of $518,523 that occurs four times over the 10-
year analysis period (i.e., 2019, 2021, 2023, and 2025), that is, an
average annual cost of $207,409. This is equal to a 10-year total cost
of $2.1 million ($2,074,093).
u. Disseminating the Training Provider List With Accompanying
Information
To assist participants in choosing employment and training
activities, the Governor or State agency must disseminate the State
ETPL and accompanying performance and cost information to Local WDBs in
the State and to members of the public online through Web sites and
searchable databases and through whatever means the State uses to
disseminate information to consumers, including the one-stop delivery
system and its program partners throughout the State (WIOA sec. 122(d),
Sec. 680.500). WIA also required the designated State agency to
disseminate the State ETPL and accompanying performance and cost
information to the one-stop delivery systems within the State but did
not include specific requirements that the State ETPL be made
electronically available online (see Sec. 663.555).
Costs
At the State level (see Exhibit 26), the Department estimated this
labor cost by first multiplying the estimated average number of
management occupations staff members per State (1), the time needed to
disseminate the ETPL with accompanying information (30 hours), and the
hourly compensation rate
[[Page 56316]]
($65.39/hour). We performed the same calculation for the following
occupational categories: Database administrators (2 administrators at
$57.02/hour for 125 hours each), management analysts (2 analysts at
$45.88/hour for 80 hours each), and secretaries or administrative
assistants (2 assistants at $27.16/hour for 45 hours each). We summed
the labor cost for all four occupational categories ($26,002) and
multiplied the result by the number of States (57) to estimate a one-
time cost of $1.5 million ($1,482,108), resulting in an annual cost of
$148,211.
Relative to the baseline of current practice under WIA, the 21
provisions of the WIOA Final Rule described above are expected to
result in costs of $350.4 million ($350,375,401) over the total 10-year
period. This is equivalent to an average annual cost of $35.0 million
($35,037,540). See section V.A.7 (Summary of the Analysis) for a
summary of these costs.
Quantifiable Transfer Payments
This section describes the quantifiable transfer payments expected
to result from the Final Rule. Transfer payments, as defined by
Circular A-4, are payments from one group to another that do not affect
total resources available to society. Because of data limitations, the
Department relied on expert judgement for some of the transfer
estimates.
a. Youth Funds Targeting Out-of-School Youth
Under WIA, local areas were required to spend at least 30 percent
of youth funds to assist eligible OSY. Under WIOA, States and local
areas will be required to spend at least 75 percent of youth funds on
OSY.
In addition to several benefits, discussed below in section V.A.7
(Summary of the Analysis), the Department's focus on OSY will result in
transfers related to a larger tax base and reduced burdens on
taxpayers. These programs are expected to help youth that are
particularly vulnerable, such as those who are low-income, minorities,
or high school dropouts. Unassisted OSY have a higher likelihood of
imposing large costs on society. Based on the Current Population Survey
(CPS) by the U.S. Census Bureau, there were 6 million ``disconnected
youth'' between the ages of 16 and 24 (i.e., youth who are not enrolled
in school and not employed) in 2015.
Child Trends also found that due to their lack of education, youth
without high school degrees are more likely to live in poverty and
receive government assistance.\45\
---------------------------------------------------------------------------
\45\ Child Trends Databank. (2015). High school dropout rates.
Retrieved from: http://www.childtrends.org/?indicators=high-school-dropout-rates.
---------------------------------------------------------------------------
Wald and Martinez (2002) found that dropouts were in prison at
rates 10 to 20 times higher than youth who graduated from high
school.\46\ Incarcerating these individuals represents an additional
cost to taxpayers. Belfield and Levin (2012) found that each
disconnected youth costs taxpayers approximately $236,000 over the
youth's lifetime and imposes $704,000 in societal costs. The estimated
fiscal burden accounts for lost tax payments, public crime expenditures
(e.g., incarceration and legal system costs), higher public health and
welfare expenditures, and reduced public education costs. The estimate
of the societal cost includes lost earnings, crime costs (e.g.,
incarceration and reduced quality of life), increased health, welfare,
and social services expenditures, lower workforce productivity, and
lower education spending.\47\ In their report, Measure of America found
that the cost of youth disconnection--including health care, public
assistance, and incarceration--was $26.8 billion in 2013.\48\
---------------------------------------------------------------------------
\46\ Wald, M., and Martinez, T. (2003). Connected by 25:
Improving the life chances of the country's most vulnerable 14-24
year olds (Working Paper). William and Flora Hewlett Foundation.
Retrieved from: http://law.stanford.edu/wp-content/uploads/2015/07/Wald-and-Martinez-Connected-by-251.pdf.
\47\ Belfield, C. R., Levin, H. M., and Rosen, R. (2012). The
economic value of opportunity youth. Retrieved from: http://www.serve.gov/sites/default/files/ctools/econ_value_opportunity_youth.pdf?utm_source=5+Things+to+Know+about+Youth+not+Employed+or+in+School&utm_campaign=5+things+to+know+about+youth+not+employed+or+in+school&utm_medium=email.
\48\ Lewis, K., and Burd-Sharps, S. (2015). Zeroing in on place
and race: Youth disconnection in America's cities. Measure of
America of the Social Science Research Council. Retrieved from:
http://ssrc-static.s3.amazonaws.com/wp-content/uploads/2015/06/MOA-Zeroing-In-Final.pdf.
---------------------------------------------------------------------------
Transfers
Under WIOA, individuals exiting the youth program will have an
increased likelihood of gaining employment. According to ETA program
data from FY 2015, 102,723 youth exit the youth program each year. The
Department assumes that the increase in funding will result in a 15-
percent increase in youth exiting the program each year, resulting in
118,132 youth exiting per year. Of the 15,409 additional youth exiting
the youth program under WIOA due to the increased funding targeting
youth, the Department assumed that 20 percent will gain employment due
to the expertise they gained from the youth program. According to the
Young Invincibles' report,\49\ on average, an unemployed 18- to 24-
year-old will cost Federal and State governments more than $4,100 each
year \50\ in forgone tax revenue and safety-net benefits paid out,
which is equal to $4,182 in 2015 dollars.\51\ The Department assumed
that all youth obtaining full-time year-round jobs after exiting the
youth program will be 24 years old, and will reduce the taxpayer burden
by $4,182. The full benefits to youth unemployment will account for
individuals who exited the program before they became 24 years old, and
remained employed until becoming at least 25 years old.
---------------------------------------------------------------------------
\49\ O'Sullivan, R., Mugglestone, K., and Allison, T. (2014). In
this together: The hidden cost of young adult unemployment. Young
Invincibles. Retrieved from: http://younginvincibles.org/wp-content/uploads/2014/01/In-This-Together-The-Hidden-Cost-of-Young-Adult-Unemployment.pdf.
\50\ This is compared to a full-time year-round worker.
\51\ Bureau of Labor Statistics. (2016). CPI Detailed Report
Data for February 2016. Retrieved from: http://www.bls.gov/cpi/cpid1602.pdf. The Department calculated the inflation factor of 1.02
using data from Table 24. ``Historical Consumer Price Index for All
Urban Consumers (CPI-U): U.S. City Average, All Items.'' To
calculate the inflation factor, the Department divided the average
annual CPI-U for 2015 by the average annual CPI-U for 2013
(=237.017/232.957).
---------------------------------------------------------------------------
The Department multiplied the number of youth that will gain
employment due to WIOA (3,082) by the annual cost to taxpayers ($4,182)
to estimate an annual benefit of $12.9 million ($12,887,628). Over the
10-year analysis period, this calculation results in a total benefit of
$128.9 million ($128,876,276) to Federal and State governments.
7. Summary of the Analysis
Exhibit 28 summarizes the estimated average annual costs for each
provision of the Final Rule. The exhibit also presents a high-level
qualitative description of the benefits resulting from full WIOA
implementation of each regulatory provision in this DOL WIOA Final
Rule. These qualitative forecasts are predicated on program experience
and are outcomes for which data will become available only after
implementation. The Department estimates the average annual cost of the
Final Rule over the 10-year analysis period at $35.0 million. The
largest contributor to this cost is the provision related to the
development and continuous improvement of the workforce development
system, which is $6.6 million per year. The next largest cost results
from the Local WDB career pathways development, which is an estimated
$6.5 million per year, followed by the colocation of ES
[[Page 56317]]
services at an estimated $5.8 million per year.
Exhibit 28--Estimated Costs of the Final Rule by Provision
[2015 dollars]
----------------------------------------------------------------------------------------------------------------
Average annual
costs Percent of
Provision ---------------- total costs Qualitative benefit highlights
(undiscounted)
----------------------------------------------------------------------------------------------------------------
(a) New State WDB Membership Requirements.. $27,174 0.08% Policy implementation efficiencies
from reduced size and
maneuverability.
(b) Development and Continuous Improvement 6,641,946 18.96 Mission clarification and ongoing
of the Workforce Development System. commitment should foster future
envisioned benefits continuing to
accrue; Enhanced employer and
employee services as a result of
recognition of real labor markets
(without artificial jurisdictional
boundaries).
(c) Identification and Dissemination of 314,720 0.90 Mission clarification and system
Best Practices. building.
(d) Development of Statewide Policies 136,227 0.39 Mission clarification for State
Affecting the State's One-Stop Delivery WDBs and overall system building
System. capacity.
(e) Development of Strategies for 202,612 0.58 Recognition of the efficiencies
Technological Improvements. generated by technology and
enhanced management capabilities
especially using outcome data.
(f) Appoint New Local WDB and Appropriate 448,153 1.28 Efficient use of Local WDB time;
Firewalls. avoids conflicts of interest and
negative publicity; administrative
savings.
(g) Local WDB Career Pathways Development.. 6,537,876 18.66 Improved educational and employment
outcomes; potential employees are
better prepared for jobs.
(h) Local WDB Development of Proven and 2,144,028 6.12 Improved job placements and
Promising Practices. customer service.
(i) Local WDB Development of Technology 2,147,740 6.13 Improved customer service; better
Strategies for Public Workforce System decision-making from improved
Accessibility and Effectiveness. service level data; reduced paper
costs, improved collaboration
across service partners; improved
customer service planning.
(j) Competitive Process for Selection of 1,422,300 4.06 Improved public confidence in the
the One-Stop Operator. process; avoided conflicts of
interest.
(k) Local WDB Coordination with Education 2,144,028 6.12 Improved preparation of workers and
Providers. youth for future jobs; enhanced
placements and outcomes.
(l) Regional Plans......................... 954,197 2.72 Savings from expanded
collaboration; increased services
to customers; reduced
administrative overhead.
(m) Local and Regional Plan Modification... 379,881 1.08 Increased coordination of services
leading to resource efficiencies;
transparency.
(n) Improved Information about Potential 452,334 1.29 Improved customer decision-making;
Eligible Training Program Providers. linkage of resources to outcomes
and accountability for training
and improved placement outcomes.
(o) Sanctions on Under-Performing States... 40,822 0.12 Improved services; better use of
WIOA funds; enhanced recognition
of performance imperatives by
States and local areas; more
accountability.
(p) Colocation of ES Services.............. 5,788,902 16.52 Reduced administrative overhead;
improved service delivery and
customer service; more efficient
and effective public
administration.
(q) Partners Required to Pay their Share 4,563,929 13.03 Expanded system cohesion; improved
for Proportionate Use of One-Stop Delivery service delivery; avoidance of
System. fragmented or duplication of
services.
(r) Establishing Training Provider 247,127 0.71 Increased training opportunities,
Eligibility Procedures, Including especially for youth; effective
Procedures for Adding Registered administration linking to
Apprenticeship Programs to the State accountability and outcomes.
Eligible Training Provider List.
(s) Determining Initial Eligibility of New 87,924 0.25 Increased transparency; uniform
and Previously Eligible Providers. treatment of ETPs; reduced
incidents of non-meritorious
performance.
(t) Biennial Review of Training Provider 207,409 0.59 Increased competition leading to
Eligibility. more and better placements.
(u) Disseminating the Training Provider 148,211 0.42 More informed customer choice;
List with Accompanying Information. clearer link of training resources
to desired outcomes; more
transparency.
--------------------------------
Total Costs............................ 35,037,540 100.00 ...................................
----------------------------------------------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
Exhibit 29 summarizes the estimated transfers related to the Final
Rule. The Department estimates the total average annual transfer of the
Final Rule to be $12.9 million.
[[Page 56318]]
Exhibit 29--Estimated Transfers of the Final Rule by Provision
[2015 dollar]
------------------------------------------------------------------------
Average
annual
Provision transfer
(undiscounted)
------------------------------------------------------------------------
(a) Youth Funds Targeting Out-of-School Youth........... $12,887,628
---------------
Total Transfers..................................... 12,887,628
------------------------------------------------------------------------
Exhibit 30 summarizes the estimated first-year costs for each
provision of this Final Rule. The Department estimates the total first-
year cost of this Final Rule to be $89.9 million. The largest
contributor to the first-year cost is the provision related to the
colocation of ES services at an estimated $57.9 million. The next
largest first-year cost results from the development and continuous
improvement of the workforce development system at an estimated $7.0
million, followed by the Local WDB career pathways development at an
estimated $6.5 million.
Exhibit 30--Estimated First-Year Costs of the Final Rule by Provision
[2015 dollars]
------------------------------------------------------------------------
Percent of
Provision Total first- total first-
year costs year costs
------------------------------------------------------------------------
(a) New State WDB Membership $271,742 0.30
Requirements...........................
(b) Development and Continuous 7,029,820 7.82
Improvement of the Workforce
Development System.....................
(c) Identification and Dissemination of 314,720 0.35
Best Practices.........................
(d) Development of Statewide Policies 1,362,268 1.52
Affecting the State's One-Stop Delivery
System.................................
(e) Development of Strategies for 202,612 0.23
Technological Improvements.............
(f) Appoint New Local WDB and 4,481,532 4.99
Appropriate Firewalls..................
(g) Local WDB Career Pathways 6,537,876 7.28
Development............................
(h) Local WDB Development of Proven and 2,144,028 2.39
Promising Practices....................
(i) Local WDB Development of Technology 2,147,740 2.39
Strategies for Public Workforce System
Accessibility and Effectiveness........
(j) Competitive Process for Selection of 0 0.00
the One-Stop Operator..................
(k) Local WDB Coordination with 2,144,028 2.39
Education Providers....................
(l) Regional Plans...................... 0 0.00
(m) Local and Regional Plan Modification 0 0.00
(n) Improved Information about Eligible 452,334 0.50
Training Program Providers.............
(o) Sanctions on Under-Performing States 40,822 0.05
(p) Colocation of ES Services........... 57,889,020 64.43
(q) Partners Required to Pay their Share 0 0.00
for Proportionate Use of One-Stop
Delivery System........................
(r) Establishing Training Provider 2,471,269 2.75
Eligibility Procedures, Including
Procedures for Adding Registered
Apprenticeship Programs to the State
Eligible Training Provider List........
(s) Determining Initial Eligibility of 879,236 0.98
New and Previously Eligible Providers..
(t) Biennial Review of Training Provider 0 0.00
Eligibility............................
(u) Disseminating the Training Provider 1,482,108 1.65
List with Accompanying Information.....
-------------------------------
Total cost.......................... 89,851,156 100.00
------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
Exhibit 31 summarizes the estimated first-year transfers of this
Final Rule. The Department estimates the total first-year transfer of
this Final Rule to be $12.9 million.
Exhibit 31--Estimated First-Year Transfers of the Final Rule by
Provision
[2015 dollars]
------------------------------------------------------------------------
Total first-
Provision year transfers
------------------------------------------------------------------------
(a) Youth Funds Targeting Out-of-School Youth........... $12,887,628
---------------
Total transfer...................................... 12,887,628
------------------------------------------------------------------------
Exhibit 32 summarizes the estimated annual and total costs and
transfers of this DOL WIOA Final Rule. The estimated total
(undiscounted) cost of the rule sums to $350.4 million over the 10-year
analysis period, which is equal to an average annual cost of $35.0
million per year. In total, the estimated 10-year discounted costs of
the Final Rule range from $278.8 million to $314.9 million (with 7- and
3-percent discounting, respectively).
The estimated total (undiscounted) transfers of the rule sum to
$128.9 million over the 10-year analysis period, for an average annual
transfer of $12.9 million per year. In total, the estimated 10-year
discounted transfers of the Final Rule range from $96.9 million to
$113.2 million (with 7- and 3-percent discounting, respectively).
To contextualize the cost of the Final Rule, the Department's
average annual budget for WIA over the FY 2012-2014 was $3.5
billion.\52\ Thus, the annual
[[Page 56319]]
additional cost of implementing the Final Rule is 1.1 percent of the
average annual cost of implementing WIA over the FY 2012-2014 (with
either 3-percent or 7-percent discounting). In response to public
comments, we also contextualize the cost of the Final Rule relative to
the amount of administrative and transition funds available to States,
which averaged $200.1 million between PY 2014 and PY 2015.\53\ The
annual additional cost of implementing the Final Rule is between 18.5
percent and 19.8 percent of the average annual administrative and
transition funds budget (with 3-percent and 7-percent discounting,
respectively).
---------------------------------------------------------------------------
\52\ U.S. Department of Labor, Employment and Training
Administration. (2015). Archive of State Statutory Formula Funding.
Retrieved from: https://www.doleta.gov/budget/py01_py09_arra_archive.cfm. The Department used data from the
following files to estimate the average annual WIA budget: WIA Adult
Activities Program (PYs 2011, 2012, 2013, and 2014); WIA Dislocated
Worker Activities Program (PYs 2011, 2012, 2013, and 2014); and WIA
Youth Activities (PYs 2012, 2013, and 2014). Note that for the adult
and dislocated worker activities programs, each fiscal year's
funding is calculated as the sum of the program year's July funding
and the previous program year's October funding. The youth
activities funding is obligated to States in April and therefore
corresponds to the fiscal year in which it is obligated. The
Department inflated the funding for each fiscal year, so that the
average annual WIA budget is in 2015 dollars.
U.S. Department of Labor, Employment and Training
Administration. (2015) State Statutory Formula Funding. Retrieved
from: https://www.doleta.gov/budget/statfund.cfm. The Department
also used data from the following files to estimate the average
annual WIA budget: Employment Services Program Dollar Tables (PYs
2012, 2013, and 2014). Note that Wagner-Peyser Act funds for a
program year are obligated to States in July; therefore, these funds
correspond to the fiscal year in which they are obligated. The
Department inflated the funding for each fiscal year, so that the
average annual WIA budget is in 2015 dollars.
\53\ TEGL No. 34-14, TEGL No. 12-14, and TEGL No. 24-14. Funds
from PY 2014 were inflated to 2015 dollars.
Exhibit 32--Estimated Monetized Costs and Transfers of the Final Rule
[2015 dollars]
------------------------------------------------------------------------
Year Total costs Transfers
------------------------------------------------------------------------
2016.................................... $89,851,156 $12,887,628
2017.................................... 30,471,554 12,887,628
2018.................................... 35,688,517 12,887,628
2019.................................... 23,550,089 12,887,628
2020.................................... 20,475,421 12,887,628
2021.................................... 46,203,174 12,887,628
2022.................................... 20,475,421 12,887,628
2023.................................... 22,236,610 12,887,628
2024.................................... 35,688,517 12,887,628
2025.................................... 25,734,944 12,887,628
Undiscounted 10-Year Total.............. 350,375,401 128,876,276
10-Year Total with 3% Discounting....... 314,911,219 113,232,100
10-Year Total with 7% Discounting....... 278,750,652 96,853,514
10-Year Average......................... 35,037,540 12,887,628
Annualized with 3% Discounting.......... 36,917,202 13,274,256
Annualized with 7% Discounting.......... 39,687,822 13,789,762
------------------------------------------------------------------------
Qualitative Benefits
The Department was unable to quantify the important benefits to
society due to data limitations and a lack of existing data or
evaluation findings on the particular items. These include benefits
from increased competition for all one-stop operators, the increased
employment opportunities for unemployed or underemployed U.S. workers,
benefits of colocation of ES services, enhanced ETP process, regional
planning, and evaluation of State programs. Below, the Department
describes qualitatively these benefits in qualitative terms. These
qualitative forecasts are predicated on program experience and are
outcomes for which data will become available only after
implementation. Although these studies are largely based on programs
and their existing requirements under WIA, they capture the essence of
the societal benefits that can be expected from this Final Rule.
Exhibit 33--Cost Savings by Study
------------------------------------------------------------------------
Cost savings (percent)
Study -------------------------------
Low estimate High estimate
------------------------------------------------------------------------
Segal (2005) \54\....................... 5 50
Hodge (2000) \55\....................... 6 12
Hilke (1993) \56\....................... 5 20
------------------------------------------------------------------------
Cohen (1997) \57\....................... 31
------------------------------------------------------------------------
Burt and Boyett (1979) \58\............. 11 18
------------------------------------------------------------------------
State evaluation research. In support of a State's strategic plan
and goals, State-conducted evaluations and other forms of research will
enable each State to test various interventions geared toward State
conditions and opportunities. Results from such evaluation and
research, if used by States, could improve service quality and
effectiveness, potentially leading to higher employment rates and
earnings among participants. Implementing various innovations that have
been tested and found effective also could lead to lower unit costs and
increased numbers of individuals served within a State. Sharing the
findings nationally could lead to new service or management practices
that other States could adopt to improve participant
[[Page 56320]]
results, lower unit costs, or increase the number served.
---------------------------------------------------------------------------
\54\ Segal, G. (2005). Making Florida's government competitive.
Backgrounder. (44). The James Madison Institute. Retrieved from:
http://reason.org/files/fb2c24752ac451b648c88d99b262dcfe.pdf.
\55\ Hodge, G. A. (2000). Privatization: An International Review
of Performance. Boulder, CO: Westview Press.
\56\ Hilke, J. (1993). Cost Savings from Privatization: A
Compilation of Study Findings (How to Guide No. 6). Reason
Foundation. Retrieved from: http://reason.org/files/b987e7bd89f4c4e21c8a73857b7001e8.pdf.
\57\ Cohen, W. S. (1997). Defense Reform Initiative Report.
Washington, DC: Department of Defense.
\58\ Burt, N. D., and Boyett, J. E. (1979). Reduction in selling
price after the introduction of competition. Journal of Marketing
Research, 16(2), 275-279.
---------------------------------------------------------------------------
Training's impact on placement. A recent study found that flexible
and innovative training that is closely related to a real and in-demand
occupation is associated with better labor market outcomes for training
participants. Youth disconnected from work and school can benefit from
comprehensive and integrated models of training that combine education,
occupational skills, and support services.\59\ The study noted,
however, that evidence for effective employment and training-related
programs for youth is less extensive than for adults, and that there
are fewer positive findings from evaluations.\60\ The WIA youth program
remains largely untested.\61\ One study found that WIA training
services increase placement rates by 4.4 percent among adults and by
5.9 percent among dislocated workers,\62\ while another study concluded
that placement rates are 3 to 5 percent higher among all training
recipients.\63\
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\59\ U.S. Department of Labor, U.S. Department of Commerce, U.S.
Department of Education, and U.S. Department of Health and Human
Services. (2014). What Works In Job Training: A Synthesis of the
Evidence. Retrieved from: http://www.dol.gov/asp/evaluation/jdt/jdt.pdf.
\60\ Ibid.
\61\ Decker, P. T., and Berk, J. A. (2011.) Ten years of the
Workforce Investment Act (WIA): Interpreting the research on WIA and
related programs. Journal of Policy Analysis and Management, 30(4),
906-926.
\62\ Hollenbeck, K., Schroeder, D., King, C. T., and Huang, W.-
J. (2005). Net impact estimates for services provided through the
Workforce Investment Act (Occasional Paper 2005-06). Washington, DC:
U.S. Department of Labor, Employment and Training Administration,
Office of Policy and Research, Division of Research and
Demonstration. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Net%20Impact%20Estimates%20for%20Services%20Provided%20through%20the%20Workforce%20Investment%20Act-%20Final%20Report.pdf.
\63\ Heinrich, C. J., Mueser, P. R., and Troske, K. R. (2009).
Workforce Investment Act non-experimental net impact evaluation.
Columbia, MD: IMPAQ International, LLC. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Workforce%20Investment%20Act%20Non-Experimental%20Net%20Impact%20Evaluation%20-%20Final%20Report.pdf.
---------------------------------------------------------------------------
Participants in occupational training had a 5 percentage points
higher reemployment rate than those who received no training, and
reemployment rates were highest among recipients of on-the-job
training, a difference of 10 to 11 percentage points.\64\ The study
found that training, however, did not correspond to higher employment
retention or earnings.\65\ A Youth Opportunity Grant Initiative study
found that Youth Opportunity was successful at improving outcomes for
high-poverty youth. Youth Opportunity also increased the labor-force
participation rate overall and for subgroups, including 16- to 19-year-
old adolescents, women, African Americans, and in-school youth.\66\
Department-sponsored research found that participants who received core
services (often funded by ES) and other services in one-stop centers
were more likely to enter and retain employment.\67\
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\64\ Park, J. (2011). Does occupational training by the Trade
Adjustment Assistance Program really help reemployment?: Success
measured as matching. Washington, DC: U.S. Department of Labor,
Employment and Training Administration. Retrieved from: https://wdr.doleta.gov/research/FullText_Documents/ETAOP_2011-09.pdf.
\65\ Ibid.
\66\ Jackson, R. H., Malen[eacute] Dixon, R., McCoy, A.,
Pistorino, C., Zador, P., Lopdell, J, Bruno, L. (2007). Youth
Opportunity Grant Initiative: Impact and synthesis report. Prepared
by Decision Information Resources, Inc. for U.S. Department of
Labor, Employment and Training Administration. Retrieved from:
http://wdr.doleta.gov/research/FullText_Documents/YO%20Impact%20and%20Synthesis%20Report.pdf.
\67\ U.S. Department of Labor, Employment and Training
Administration, Office of Policy Development and Research. (2013).
Five-Year research and evaluation strategic plan program years 2012-
2017. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/ETAOP_2013_21.pdf.
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Training's impact on wages. Before enactment of WIA, Job Training
Partnership Act services had a modest but statistically significant
impact on the earnings of adult participants.\68\ WIA training
increased participants' quarterly earnings by $660; these impacts
persisted beyond 2 years and were largest among women.\69\ WIA adult
program participants who received core services (e.g., skill
assessment, labor market information) or intensive services (e.g.,
specialized assessments, counseling) earned up to $200 more per quarter
than non-WIA participants did. Earnings of participants who received
training services in addition to core and intensive services initially
were less but caught up within 10 quarters with the earnings of
participants who received only core or intensive services; marginal
benefits of training could exceed $400 per quarter. Earnings
progressions were similar for WIA adult program participants and users
of the labor exchange only.\70\ WIA training services also improved
participants' long-term wage rates, doubling earnings after 10 quarters
over those not receiving training services.\71\ WIA participants who
did not receive training, however, earned $550 to $700 more in the
first quarter after placement. The study also noted that individuals
who did not receive training received effective short-term counseling
that enabled them to gain an immediate advantage in the labor
market.\72\
---------------------------------------------------------------------------
\68\ Barnow, B., and Gubits, D. (2003). Review of recent pilot,
demonstration, research, and evaluation initiatives to assist in the
implementation of programs under the Workforce Investment Act
(Occasional Paper 2003-10). U.S. Department of Labor, Employment and
Training Administration. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/ETAOP%202003-10%20Review%20of%20Recent%20Pilot%2C%20Demonostration%2C%20Research%2C%20and%20Evaluation%20Initiatives.pdf.
\69\ Ibid.
\70\ Chrisinger, C. K. (2011). Earnings progression among
workforce development participants: Evidence from Washington State.
U.S. Department of Labor, Employment and Training Administration.
Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/ETAOP_2011-11.pdf.
\71\ Heinrich, C. J., Mueser, P. R., and Troske, K. R. (2009).
Workforce Investment Act non-experimental net impact evaluation.
Columbia, MD: IMPAQ International, LLC. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Workforce%20Investment%20Act%20Non-Experimental%20Net%20Impact%20Evaluation%20-%20Final%20Report.pdf.
\72\ Ibid.
---------------------------------------------------------------------------
Another Department program, the Job Corps program for disadvantaged
youth and young adults, produced sustained increases in earnings for
participants in their early twenties. Students who completed Job Corps
vocational training experienced average earnings increases by the
fourth follow-up year over the comparison group, whereas those who did
not complete training experienced no increase.\73\ Another publication
also noted that, on average, adults experienced a $743 quarterly post-
exit earnings boost.\74\
---------------------------------------------------------------------------
\73\ Gritz, M., and Johnson, T. (2001). National Job Corps
Study: Assessing program effects on earnings for students achieving
key program milestones. Prepared by Battelle Memorial Institute for
U.S. Department of Labor, Employment and Training Administration,
Office of Policy and Research. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/MilestoneImpactReport-Final.pdf.
\74\ Hollenbeck, K., Schroeder, D., C.T. King, C. T., and Huang,
W.-J. (2005). Net impact estimates for services provided through the
Workforce Investment Act (Occasional Paper 2005-06). Washington, DC:
U.S. Department of Labor, Employment and Training Administration,
Office of Policy and Research, Division of Research and
Demonstration. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Net%20Impact%20Estimates%20for%20Services%20Provided%20through%20the%20Workforce%20Investment%20Act-%20Final%20Report.pdf.
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Those who completed training experienced a 15-percent increase in
employment rates and an increase in hourly wages of $1.21 relative to
participants without training.\75\
[[Page 56321]]
Participation in WIA training also had a distinct positive, but
smaller, effect on employment and earnings, with employment 4.4
percentage points higher and quarterly earnings $660 higher than for
comparison group members.
---------------------------------------------------------------------------
\75\ Needels, K., Bellotti, J., Dadgar, M., and Nicholson, W.
(2006). Evaluation of the Military Base National Emergency Grants:
Final report (Occasional Paper 2007-02). Prepared by Mathematica
Policy Research for U.S. Department of Labor, Employment and
Training Administration, Office of Policy Development and Research.
Retrieved from: https://wdr.doleta.gov/research/FullText_Documents/Evaluation%20of%20the%20Military%20Base%20National
%20Emergency%20Grants%20Final%20Report.pdf.
---------------------------------------------------------------------------
The following are channels through which these benefits might be
achieved:
Better information for workers. The accountability measures will
provide workers with higher-quality information about potential
training program providers and enable them to make better-informed
choices about which programs to pursue. The information analyzed and
published by the State and Local WDBs about local labor markets also
will help trainees and providers target their efforts and develop
reasonable expectations about outcomes.
Consumers of educational services, including disadvantaged and
displaced workers, require reliable information on the value of
different training options to make informed choices. Displaced workers
tend to be farther removed from schooling and lack information about
available courses and the fields with the highest economic return.\76\
Given these information gaps and financial pressures, that displaced
workers learn of the economic returns to various training plans is
important.\77\ Nevertheless, one study determined that the cost-
effectiveness of WIA job training for disadvantaged workers is
``modestly positive'' due to the limited sample of States on which the
research was based.\78\
---------------------------------------------------------------------------
\76\ Greenstone, M., and Looney, A. (2011). Building America's
job skills with effective workforce programs: A training strategy to
raise wages and increase work opportunities. Washington, DC: The
Hamilton Project. Retrieved from: http://www.brookings.edu/~/media/
research/files/papers/2011/11/training-greenstone-looney/
11_training_greenstone_looney.pdf.
\77\ Jacobson, L. S., LaLonde, R. J., and Sullivan, D. G.
(2011). Policies to reduce high-tenured displaced workers' earnings
losses through retraining (Discussion Paper 2011-11). Washington,
DC: The Hamilton Project. Retrieved from: http://www.brookings.edu/
~/media/research/files/papers/2011/11/displaced-jacobson-lalaonde-
sullivan/11_displaced_jls_paper.pdf.
\78\ Heinrich, C. J., Mueser, P. R., Troske, K. R., Jeon, K.-S.,
and Kahvecioglu, D. C. (2009). New estimates of public employment
and training program net impacts: A nonexperimental evaluation of
the Workforce Investment Act program (Discussion Paper 4569). Bonn,
Germany: Institute for the Study of Labor (IZA). Retrieved from:
http://ftp.iza.org/dp4569.pdf.
---------------------------------------------------------------------------
Sanctions to under-performing States. WIOA requires the Department
to place sanctions on States that underperform for 2 consecutive years.
The sanction will be 5 percent of set-aside funding. Having a clear and
credible sanction will serve as an incentive for States and local
entities to monitor performance more effectively and to intervene early
to avoid the loss of funding.
Evaluations of WIA indicate that sanctions have a larger influence
on programs than incentives do. Two-thirds of local areas have
indicated that the possibility of sanctions influenced their programs,
whereas only slightly more than half indicated that incentives had an
influence.\79\ Further, several Job Centers consider student placement
outcomes in staff performance evaluations and pay for vocational
instructors.\80\ This practice has significantly increased staff
interest in successful student placement following program
completion.\81\
---------------------------------------------------------------------------
\79\ Dunham, K., Mack, M., Salzman, J., and Wiegand, A. (2005).
Evaluation of the WIA performance measurement system: Survey report.
Prepared by Social Policy Research Associates for U.S. Department of
Labor, Employment and Training Administration. Retrieved from:
http://wdr.doleta.gov/research/FullText_Documents/Evaluation%20of%20the%20WIA%20Performance%20Measurement%20System%20-%20Survey%20Report.pdf.
\80\ Johnson, T., Gritz, M., Jackson, R., Burghardt, J., Boussy,
C., Leonard, J., and Orians, C. (1999). National Job Corps study:
Report on the process analysis. Prepared by Mathematica Policy
Research, Inc. for U.S. Department of Labor, Employment and Training
Administration. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/99-jc_analysis.pdf.
\81\ Ibid.
---------------------------------------------------------------------------
State performance accountability measures. This requirement will
include significant data collection for Local WDBs to address
performance indicators for the core programs in their jurisdictions.
This data collection will enable the State WDBs to assess performance
across each State. Training providers will be required to provide data
to Local WDBs, which will represent a cost in the form of increased
data collection and processing. Employers and employees also will have
to provide information to the training providers, which will take time.
This provision, in combination with the State and Local WDB membership
provisions requiring employer/business representation, is expected to
improve the quality of local training and, ultimately, the number and
caliber of job placements.
Implementation of follow-up measures, rather than termination-based
measures, might improve long-term labor market outcomes, although some
could divert resources from training activities.\82\
---------------------------------------------------------------------------
\82\ Courty, P., and Marschke, G. (2007). Making government
accountable: Lessons from a federal job training program. Public
Administration Review, 67(5), 904-916.
---------------------------------------------------------------------------
Before-after earning metrics capture the contribution of training
to earnings potential and minimize incentives to select only training
participants with high initial earnings.\83\ With the exception of
programs in a few States, current incentives do not reward enrollment
of the least advantaged.\84\ In addition, the study noted evidence that
the performance standards can be ``gamed'' in an attempt to maximize
their centers' measured performance.\85\
---------------------------------------------------------------------------
\83\ Heckman, J. J., Heinrich, C., and Smith, J. A. (1997).
Assessing the performance of performance standards in public
bureaucracies. The American Economic Review, 87(2), 389-395.
\84\ Ibid.
\85\ Ibid.
---------------------------------------------------------------------------
Pressure to meet performance levels could lead providers to focus
on offering services to participants most likely to succeed. For
example, current accountability measures might create incentives for
training providers to screen participants for motivation, delay
participation for those needing significant improvement, or discourage
participation by those with high existing wages.\86\
---------------------------------------------------------------------------
\86\ Dunham, K., Mack, M., Salzman, J., and Wiegand, A. (2005).
Evaluation of the WIA performance measurement system: Survey report.
Prepared by Social Policy Research Associates for U.S. Department of
Labor, Employment and Training Administration. Retrieved from:
http://wdr.doleta.gov/research/FullText_Documents/Evaluation%20of%20the%20WIA%20Performance%20Measurement%20System%20-%20Survey%20Report.pdf.
---------------------------------------------------------------------------
The following subsections present additional channels by which
economic benefits might be associated with various aspects of the Final
Rule:
Dislocated workers. A study found that, for dislocated workers,
receiving WIA services significantly increased employment rates by 13.5
percent and boosted post-exit quarterly earnings by $951.\87\ Another
study found, however, that training in the WIA dislocated worker
program had a net benefit close to zero or even below zero.\88\
---------------------------------------------------------------------------
\87\ Hollenbeck, K., Schroeder, D., King, C.T., and Huang., W.-
J. (2005). Net Impact Estimates for Services Provided through the
Workforce Investment Act (Occasional Paper 2005-06). Washington, DC:
U.S. Department of Labor, Employment and Training Administration,
Office of Policy and Research, Division of Research and
Demonstration. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Net%20Impact%20Estimates%20for%20Services%20Provided%20through%20the%20Workforce%20Investment%20Act-%20Final%20Report.pdf.
\88\ Heinrich, C.J., Mueser, P.R., and Troske, K.R. (2009).
Workforce Investment Act non-experimental net impact evaluation.
Columbia, MD: IMPAQ International, LLC. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Workforce%20Investment%20Act%20Non-Experimental%20Net%20Impact%20Evaluation%20-%20Final%20Report.pdf.
---------------------------------------------------------------------------
Self-employed individuals. Job seekers who received self-employment
[[Page 56322]]
services started businesses sooner and had longer-lasting businesses
than nonparticipants. Self-employment assistance participants were 19
times more likely to be self-employed than nonparticipants and
expressed high levels of satisfaction with self-employment. A study of
Maine, New Jersey, and New York programs found that participants were
four times more likely to obtain employment of any kind than
nonparticipants were.\89\
---------------------------------------------------------------------------
\89\ Kosanovich, W.T., Fleck, H., Yost, B., Armon, W. and
Siliezar, S. (2001). Comprehensive assessment of self-employment
assistance programs. Prepared by DTI Associates for U.S. Department
of Labor, Office of Workforce Security. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Comprehensive%20Assessment%20of%20Self-Employment%20Assistance%20Programs.pdf.
---------------------------------------------------------------------------
Workers with disabilities. A study of individuals with disabilities
enrolled in training for a broad array of occupations found that the
mean hourly wage and hours worked per quarter for program graduates
were higher than for individuals who did not complete the program.
Out-of-school youth. Several benefits are expected to result from
the Department's increased funding for OSY--especially those from
vulnerable groups such as low-income youth, minorities, and high school
dropouts. According to Lerman (2005), that youth who have left school
recently develop skills directing them toward having productive careers
is critical.\90\ As discussed above in the transfer subsection of the
section V.A.6 (Subject-by-Subject Analysis), increased investment in
programs that target OSY is expected to result in higher youth
employment, higher incomes, reduced crime, and a reduction in the waste
of human potential. As a note of caution, however, Lerman (2005) found
that only a few of the programs sponsored by the Department, other
Federal and State government agencies, and private foundations aimed at
helping at-risk, OSY have resulted in concrete benefits that have
exceeded each program's costs.\91\
---------------------------------------------------------------------------
\90\ Lerman, R.I. (2005). Programs to support out-of-school
youth (Occasional Paper 2005-14). Washington, DC: U.S. Department of
Labor, Employment and Training Administration. Retrieved from:
http://wdr.doleta.gov/research/FullText_Documents/Programs%20to%20Support%20Out-of-School%20Youth%20Report.pdf.
\91\ Ibid.
---------------------------------------------------------------------------
In conclusion, after a review of the quantitative and qualitative
analysis of the impacts of this Final Rule, the Department has
determined that the societal benefits justify the anticipated costs.
Qualitative Transfers
In addition, there is an important transfer payment that the
Department was unable to quantify. Below, the Department describes
qualitatively the transfer payment that is expected to result from
layoff aversion due to rapid response activities.
Layoff Aversion Due to Rapid Response Activities. Under the WIA
Regulations, rapid response operators could use the funds to assess the
potential for averting layoffs. Under WIOA, the regulations at Sec.
682.330 require rapid response to include layoff aversion strategies
and activities, but only as applicable. The Final Rule includes several
broad strategies and specific activities that are critical to gathering
information, maintaining readiness, and ensuring the ability to
capitalize on opportunities that will prevent, or minimize the duration
of, unemployment.
Although adding layoff aversion to a State's portfolio of rapid
response services will not necessarily change the rapid response costs
for States because States take resources from other rapid response
activities to do so, layoff aversion is economically valuable in many
ways. Saving jobs keeps people working and earning income to be spent
in the economy and prevents the costs associated with unemployment,
including unemployment insurance and retraining. Businesses sell goods
and services, make profits, and pay taxes, while maintaining a skilled
workforce. Communities thrive when residents are working and actively
participating in the economy. Preventing job loss, and minimizing the
duration of unemployment, ensures that the public workforce system is a
critically important player in creating and maintaining a successful
economy, and layoff aversion can deliver meaningful, positive benefits
such as retaining wages, maintaining economic activity, expanding tax
bases, minimizing the costs of retraining, and increasing employee
morale.
This benefit is difficult to quantify because it is not possible to
measure the number of individuals who would have been unemployed or the
duration of their unemployment if layoff aversion services were not
available.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605 of the RFA allows an
agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. Further, under the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 (SBREFA), an
agency is required to produce compliance guidance for small entities if
the rule has a significant economic impact.
The Small Business Administration (SBA) defines a small business as
one that is ``independently owned and operated and which is not
dominant in its field of operation.'' The definition of small business
varies from industry to industry to the extent necessary to reflect
industry size differences properly. An agency must either use the SBA
definition for a small entity or establish an alternative definition,
in this instance, for the workforce industry. The Department has
adopted the SBA definition for the purposes of this certification.
The Department has notified the Chief Counsel for Advocacy, SBA,
under the RFA at 5 U.S.C. 605(b), and certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. This finding is supported, in large measure, by the fact that
small entities are already receiving financial assistance under the WIA
program and will likely continue to do so under the WIOA program as
articulated in this Final Rule.
Affected Small Entities
This Final Rule can be expected to impact small one-stop center
operators. One-stop operators can be a single entity (public, private,
or nonprofit) or a consortium of entities. The types of entities that
might be a one-stop operator include: (1) An institution of higher
education; (2) an ES SWA established under the Wagner-Peyser Act; (3) a
community-based organization, nonprofit organization, or workforce
intermediary; (4) a private for-profit entity; (5) a government agency;
(6) a Local WDB, with the approval of the local CEO and the Governor;
or (7) another interested organization or entity that can carry out the
duties of the one-stop operator. Examples include a local chamber of
commerce or other business organization, or a labor organization.
Impact on Small Entities
The Department indicates that transfer payments are a significant
aspect of this analysis in that the majority of WIOA program cost
burdens on State and Local WDBs will be fully financed through Federal
transfer
[[Page 56323]]
payments to States. The Department has highlighted costs that are new
to WIOA implementation and this Final Rule. Therefore, the Department
expects that the DOL WIOA Final Rule will have no cost impact on small
entities.
C. Small Business Regulatory Enforcement Fairness Act of 1996
The Department has determined that this Final Rule does not impose
a significant impact on a substantial number of small entities under
the RFA; therefore, the Department is not required to produce any
Compliance Guides for Small Entities as mandated by the SBREFA.
D. Paperwork Reduction Act
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise a collection of information, including publishing
for public comment a summary of the collection of information and a
brief description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the public and Federal agencies with an opportunity to comment
on proposed and continuing collections of information in accordance
with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity helps to
ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
A Federal agency may not conduct or sponsor a collection of
information unless it is approved by OMB under the PRA and displays a
currently valid OMB control number. The public is also not required to
respond to a collection of information unless it displays a currently
valid OMB control number. In addition, notwithstanding any other
provisions of law, no person will be subject to penalty for failing to
comply with a collection of information if the collection of
information does not display a currently valid OMB control number (44
U.S.C. 3512).
In accordance with the PRA, the Department submitted a series of
ICRs to OMB when the NPRM was published. The NPRM provided an
opportunity for the public to comment on the information collections
directly to the Department; commenters also were advised that comments
under the PRA could be submitted directly to OMB. OMB issued a notice
of action for each request asking the Department to resubmit the ICRs
at the final rule stage and after considering public comments. Where
information collection instruments were not ready at the time the NPRM
published, the Department provided additional opportunities for the
public to comment on the information collections through notices in the
Federal Register that provided additional comment periods on the
associated forms and instructions. These comment periods provided at
least 60 days for comments to be submitted to the agency. Each of these
ICRs was then submitted for OMB approval, and the Department published
notices in the Federal Register that invited comments to be sent to OMB
for a period lasting at least 30 days. The Department also submitted
each ICR for further approval to incorporate the provisions of this
Final Rule; these Final Rule ICRs were not subject to further public
comment. The Department provides a status of the each ICR in the
summary section that immediately follows in this portion of the
preamble. Where a review remained pending, when this preamble was
drafted, the Department will publish an additional notice to announce
OMB's final action on the ICR.
It should be noted that the ICR review status reported in this
section only relates to requests related directly to this Final Rule.
Certain ICR packages that were previously approved are being updated to
change references to those in the Final Rule. As has been the practice
throughout WIOA implementation, the Department will continue to update
stakeholders on the status of the ICRs through other means.
For some packages, substantive requirements were approved via a
notice of action and as of the date of the drafting of this preamble,
the information collection is being updated to reflect references in
the WIOA Final Regulations. We note that the ETA Workforce Innovation
and Opportunity Act Performance Accountability, Information, and
Reporting System review is pending as of the date this preamble was
drafted. The substantive requirements will be approved through a notice
of action by OMB, and will take effect as of that date. The Department
will announce this approval.
The information collections in this Final Rule are summarized as
follows.
State Training Provider Eligibility Collection
Agency: DOL-ETA.
Title of Collection: State Training Provider Eligibility
Collection.
Type of Review: New collection.
OMB Control Number: 1205-0523.
Affected Public: State, Local, and Tribal Governments, and Private
Sector.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 122).
Total Estimated Number of Respondents Annually: 11,457.
Total Estimated Number of Annual Responses: 11,457.
Frequency of Responses: On Occasion.
Total Estimated Annual Time Burden: 8,835 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: Sec. 680.450, Sec. 680.460, Sec. 680.490,
Sec. 680.500.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: Under WIOA sec. 122, the Governor, after consultation
with the State WDB, must establish criteria, information requirements,
and procedures regarding the eligibility of providers of training
services to receive funds under WIOA for the provision of training
services in local areas in the State. The Final Rule describes the
process for adding ``new''' providers to the ETPL, explains the
detailed application process for previously WIA-eligible providers to
remain eligible under WIOA, describes the performance information that
providers are required to submit to the State in order to establish or
renew eligibility, and explains the requirements for distributing the
ETPL and accompanying information about the programs and providers on
the list.
The Department received no comments concerning this information
collection.
ETA Workforce Innovation and Opportunity Act Performance
Accountability, Information, and Reporting System
Agency: DOL-ETA.
Title of Collection: ETA Workforce Innovation and Opportunity Act
Performance Accountability, Information, and Reporting System.
Type of Review: New collection.
OMB Control Number: 1205-0521.
Affected Public: State, Local, and Tribal Governments; Individuals
or Households.
[[Page 56324]]
Obligation to Respond: Required to Obtain or Retain Benefits.
Total Estimated Number of Respondents Annually: 17,262,375.
Total Estimated Number of Annual Responses: 34,526,494.
Total Estimated Annual Time Burden: 8,881,228 hours.
Total Estimated Annual Other Costs Burden: $6,791,395.
Regulations Sections: Sec. 684.420, Sec. 684.610, Sec. 684.700,
Sec. 684.800, Sec. 685.210, Sec. 685.400, Sec. 688.420, Sec.
688.610.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: This new information collection will consolidate the
existing information collections for YouthBuild, National Farmworkers
Jobs Program, Indian, and Native Americans Program participants. These
information collections are currently approved under OMB Control
Numbers 1205-0422, 1205-0425, and 1205-0464. The WIOA Performance
Management and Information and Reporting System would standardize the
initial application, quarterly, and annual reporting processes for
program participants.
Comments: The Department received comments in specific areas (e.g.,
performance indicators, ICR documents) and general topics (e.g., burden
estimates).
The Department received comments expressing concern that the
proposed Participant Individual Record Layout (PIRL) did not identify
which data elements are optional, required, or only required for a
specific program or for specific participant characteristics.
Similarly, four commenters requested that the final version of the PIRL
contain information indicating which programs are required to report
each data element and under which conditions each data element must be
reported to help States determine how to modify their systems to
capture the data properly. Two commenters assumed that, except where
clearly indicated otherwise, all data elements are required for all
participants, even those receiving minimal staff involvement, and
commented that this would be a significant change from existing
reporting requirements. One commenter requested that, if the intent is
that all data elements before section E be gathered for all programs,
the Department consider limiting the required data elements to those
really needed for each program. Particularly for title III, this
commenter expressed concern that participants would drop out if asked
to provide large amounts of information not directly related to
matching them with a job.
Department Response: The PIRL consists of required and optional
data elements for multiple programs and partners. Therefore, it is not
expected that every data element will apply to every individual in
every program. As noted above, the Department has extended the PIRL by
identifying the reporting requirements for each program. For instance,
as indicated by one of the commenters, it would not be realistic to
collect the same depth and breadth of information from individual
accessing ES services relative to individual receiving training
services under a different program. Additional guidance and technical
assistance will be provided on data collection and reporting
requirements specific for each program.
Comments: Several commenters stated that the proposed information
collection is not clear regarding the Indian and Native American (INA)
program's reporting obligations and suggested that WIOA sec. 166
grantees have their own reporting systems, performance indicators, and
a separate DOL-only PIRL. Two commenters also asked if all of the
proposed reporting forms are required in order to begin programming a
management information system.
Department Response: The Department notes that the performance
indicators for the INA program are statutorily required by WIOA; the
Department does not have the discretion to deviate from the indicators
required in sec. 166(h)(1)(A) of WIOA. The Department has included INA
programs in these comprehensive performance reporting requirements for
the workforce programs. Section 166(h)(1)(A) requires the Secretary of
Labor, in consultation with the Native American Employment and Training
Council (NAETC), to develop additional performance indicators and
standards. Different programs will be subject to different data element
reporting requirements; in other words, INA program grantees only will
be reporting on data elements in the DOL-only PIRL that are
specifically related to the INA program. Additionally, the reporting
template/form included in this ICR will be the required form for each
program mentioned in the PIRL. In other words, while there is only one
common form to be used, there will be one report form required for each
grantee within the various programs included in this ICR.
Comments: A commenter expressed concerns regarding the burden of
increased reporting requirements on the INA program, including the need
for technical experts to design reporting systems to capture all new
requirements and the re-training of employees on reporting procedures.
Two different commenters recommended that the Department fund the
development of a robust, flexible, and secure Web-based system that
will meet the needs of both the grantees and the Federal system. One of
the commenters stated that a Web-based reporting system would address
many of the problems associated with the current Bear Tracks management
information system, which lacks support for grantees' internal
management and reporting requirements and is difficult to support and
upgrade, particularly for non-Windows users.
Department Response: The Department urges the commenters to review
the program additional matrix added to the PIRL, which designates which
data elements need to be collected by each program. All data elements
listed in the PIRL are not required to be collected by the INA program;
therefore, the burden is not as heavy as anticipated.
The Department has worked on an appropriate balance between
stewardship of Federal funds through tracking and reporting outcomes
and not over-burdening recipients of those Federal funds with excessive
reporting and other administrative requirements. However, reporting is
essential for tracking participant outcomes and the overall
effectiveness of all programs, including the INA program. Although the
performance indicators require additional follow-up and longer tracking
periods for participants, the Department does not consider this to be a
significant increase in reporting burden.
The Department concurs with the commenter on the need for training
on the new performance indicators and reporting requirements and will
provide on-going technical assistance to grantees as the system
transitions to the new performance indicators and reporting
requirements under WIOA. The Department also agrees with the commenter
that it will require technical experts to develop a reporting system
for INA program grantees and will be working in collaboration with the
NAETC and with INA program grantees to develop a management information
system that will allow grantees to track and report on INA
participants. The Department will provide guidance and technical
assistance at subsequent NAETC meetings to include the reporting
process and system.
The Department will consider a transition period for grantees so
that
[[Page 56325]]
consultation and training is provided on the final reporting
requirements for WIOA and to allow the development of a new reporting
system. The Department commits to working with the NAETC on developing
the revised reporting system and will consider web-based reporting as a
means to reduce the maintenance of the system.
Comments: Referencing PIRL section E.04 (Indian and Native American
Program), a commenter requested clarification on whether the Bear
Tracks management information system is mandated for the INA program
and, if so, who would fund the costly system enhancements to meet WIOA
reporting requirements. The commenter asserted that disaggregation is a
concern for tribal affiliation in California because many California
tribes are small and data elements such as date of birth, zip code,
barriers to employment, and tribal affiliation may reveal personally
identifiable information (PII). The commenter asked if the Department
has completed and evaluated a privacy impact study for California
Indian Manpower Consortium and requested confidentiality assurances for
California tribes.
Department Response: The Bear Tracks management information system
is not a DOL-mandated system for INA program grantees. It was developed
in collaboration with the NAETC and INA grantee community to increase
reporting efficiency and accuracy and to allow for the transmission of
individual participant records to the Department. Although the Bear
Tracks management information system is not mandatory, INA program
grantees will be required to use a system that transmits participant
data in a manner that meets the Department's reporting requirements.
The Department has taken several steps to manage the secure transfer of
individual participant records. These steps include: A page for the
file upload (for grantees) that is Secure Socket Layer (SSL) enabled; a
Secure File Transfer protocol (S-FTP) used to transfer files from the
Employment and Training Administration (ETA) to the State of Kansas for
UI wage matching (Kansas has an S-FTP server and DOL has the S-FTP
client) and lastly, only aggregate data are returned to the Department
with data suppressed on grantees with fewer than 4 records. The
Department has completed a Privacy Impact Assessment (PIA) for the
Enterprise Business Support System (EBSS), which is the system that
collects and stores data for the INA program (See the PIA located at:
http://www.dol.gov/oasam/ocio/programs/PIA/ETA/ETA-EBSS.htm) DOL has
determined that the safeguards and controls for this system adequately
protect the information as indicated in EBSS System Security Plan,
dated March 5, 2013.
Comments: Other commenters asserted that the gathering of
information required for the PIRL would have significant costs, a few
commenters urged the Department to evaluate each data element and
require only those that are either mandated by statute or that truly
have meaning and add value. One of these commenters stated that, while
there are costs to modify information technology (IT) systems,
including increased time spent gathering the data, it is ultimately the
customers who pay these costs because more resources spent gathering
data means less resources spent assisting customers and longer waits to
see staff.
Department Response: Although the PIRL consists of several data
elements not previously collected by the Department's workforce
programs, most of the data elements were previously required under the
WIA ``WIASRD,'' which is the precursor to the PIRL. In general, data
elements were added only if required by WIOA either directly or
indirectly (i.e., if required for one or more performance calculations,
or required for eligibility determinations). As noted previously, the
Department has taken every effort to strike a balance between its
fiduciary responsibilities pertaining to stewardship of Federal funds
and the desire to not impose undue administrative burden.
The intent of this ICR is to streamline reporting across the
Department's workforce programs, and this is reflected in the PIRL
through the inclusion all data elements necessary for each of the
programs included in the collection to meet their individual program
reporting requirements. Programs are required only to collect and
report on those elements that are statutorily required and/or necessary
to determine performance outcomes for those individuals to whom they
provide services. The Department has minimized, to the extent possible,
the burden placed on customers and service providers through the
implementation of this new reporting system and will provide further
support to ease this transition through future guidance and technical
assistance.
Comments: Two commenters expressed concern that there are common
data elements in both the Joint WIOA PIRL and the DOL-only PIRL that
have different definitions and recommended that the Department ensure
the definitions of common data elements remain consistent. One
commenter recommended that the Department align the numbering between
the Joint WIOA PIRL and the DOL-only PIRL data elements and correct
situations in which some numbers are used more than once. Another
commenter expressed concern that some data elements in the proposed
DOL-only PIRL relating to participant characteristics are defined
differently than in the VR Report 911.
Department Response: The Departments have worked to eliminate
inconsistencies and align reporting requirements and the specific data
elements, including using the exact same definitions for both versions
of the PIRL, and aligning all element numbers. In addition, the
Rehabilitation Services Administration (RSA) has added additional 911
elements to be consistent with the PIRL. Both DOL and RSA are revising
existing data collection instruments. The increase in burden required
to reorganize and renumber all of the data elements would exceed any
burden removed by having consistent fields numbered across programs.
RSA is also revising instructions to eliminate any duplicate numbers.
Where appropriate, for reporting purposes, RSA also plans to aggregate
some of the more detailed 911 data elements to be consistent with the
PIRL.
Comments: A commenter asked how data conflicts would be addressed
if multiple PIRLs are submitted for the same individual by different
agencies that have the individual on a different participation
timeline. This commenter also expressed concern about integrating data
from programs that are not part of the State system but are
administered through grants to local areas and organizations throughout
the State (e.g., YouthBuild and INA programs). If the information
reported by these programs is to end up in an integrated PIRL, this
commenter asserted that it will take time and effort for the State to
establish a way to obtain and report the data from these additional
programs to incorporate with ES, WIOA, and TAA.
Department Response: The Department notes that States have the
flexibility to submit a separate PIRL for each program, or a PIRL for
each participant, including services received from all programs. The
Department will perform any integration that takes place using multiple
PIRL data elements to link individual records in the case where a
unique identifier across programs is not available. There will also be
an upload option for the entire PIRL layout, for those States who wish
to integrate their programs into one data file submission. Regarding
grantee programs outside of the State, the
[[Page 56326]]
Department agrees that this level of data integration may be difficult
or in some cases not appropriate. The Department will continue to
evaluate which programs should be integrated, and the most efficient
methods to do so.
Comments: A commenter inquired if one PIRL file will be integrated
for all programs (title I subtitle B, title I subtitle D, title II, ES
program, trade, and other non-WIOA programs noted) or whether each
program will have its own file. If each program provides its own file,
the commenter requested clarification regarding whether Trade would
need to collect data elements that are not Trade-specific (e.g., low-
income, low levels of literacy, and other data elements not currently
reported in TAPR). A commenter expressed support for requiring Trade
programs to use the PIRL as its program reporting layout, but requested
clarification on the specific reporting requirements for TAA. For
example, the commenter asked if quarterly Unemployment Insurance (UI)
benefit information, as currently required on the TAPR, is still
required and, if so, where these data will be collected on the PIRL. A
commenter also expressed the understanding that each State can select
if TAA will be included in the PIRL or reported in a separate program
report.
Department Response: Although the PIRL will be used for multiple
DOL programs (both formula and discretionary), not all data elements
will apply to every program, for example, data on cultural barriers is
required by the WIOA statute for title I programs but there is no
similar requirement for TAA programs. Therefore, data elements
pertaining to cultural barriers would not be collected for individuals
participating in the TAA program only. All data elements of the TAPR
are included in the PIRL. UI benefit information is to be reported
collected in PIRL 401. Each program will be made aware of which
elements are required data elements; the additional data elements in
the PIRL will be considered optional for States and grantees to report
on.
Comments: Regarding section B (One-Stop Center Program
Participation Information), a commenter said that because National
Farmworker Jobs Program (NFJP) grantees operate their own case
management and data management programs, they only can be expected to
report participation in other WIOA programs for individuals for whom
they arrange co-enrollment. The commenter expressed concern that there
is not consistency among one-stop operators from service area to
service area or State-to-State relating to the amount of cooperation
and data sharing that States are willing or legally able to do with
non-State agencies.
Department Response: NFJP grantees are a required one-stop partner
and must enter into a memorandum of understanding (MOU) with Local WDBs
as described in WIOA sec. 121(c). As part of this MOU, Local WDBs and
the required partners must describe the manner in which the services
will be coordinated and delivered through the one-stop delivery system,
including the methods of individual referrals between the one-stop
operator and the one-stop partners for appropriate services and
activities. WIOA sec. 121(c)(2)(B) also provides that other provisions
consistent with WIOA may be included in the MOU, and the Department
encourages required one-stop partners, such as NFJP grantees, to
include language that can facilitate sharing of co-enrollment data for
reporting purposes. The Department will issue additional guidance
regarding the development of MOUs between Local WDBs and required one-
stop partners. No revision to the data element text has been made.
Comments: Regarding section D (Program Outcomes Information), a
commenter expressed support for maintaining the ability of grantees to
use supplemental data sources to track performance outcomes for all
participants who are not found in wage records, reasoning that it
provides certain program operators with the necessary flexibility to
obtain performance outcome data without having access to wage records
(e.g., community-based organizations). If such grantees use
supplemental data sources but are unable to calculate performance
outcomes for participants who choose not to provide their social
security number, the commenter urged the Department to provide
flexibility so there is no disincentive for serving these individuals
(e.g., allow grantees to exclude these participants from performance
outcome calculations but still include them in service counts, i.e.,
the participant served and exited column).
Department Response: For individuals that do not have or choose not
to provide a Social Security Number (SSN), the Department will allow
for supplemental data to be used to track employment rates and wages of
the participants. The Department notes that employment and wages must
be collected and verified for a participant through either wage record
matching or through supplemental wage information, in order for the
participant to be included as being in unsubsidized employment during
the second quarter and in the fourth quarters after exit; this
requirement allows such participants without disclosed SSNs to be
included in performance outcomes. States should report SSN matched data
without reporting the SSN as the unique identifier, except to the
extent permitted under the H-1B grant program. The data provided by UI
is the most reliable and least burdensome data available for reporting
employment rates and wages; however, the Department will allow data
from the other sources listed in the PIRL to be used when UI data are
unavailable. In other words, participants who identify as having a SSN
and those who do not will all be accountable for performance outcomes
as well as overall participant and exiter counts. Both the Departments
of Education and Labor continue to work to find solutions that will
allow States to access the data needed to comply with these
requirements under WIOA.
Comments: A commenter asked, concerning section E.02 (H-1B),
whether only agencies that operate the H-1B program are responsible for
completing this section, or whether programs under WIOA are required to
confirm whether a person is an H-1B participant and, if so, whether
WIOA is required to report these data elements. Similarly, noting that
the PIRL has additional program data elements, e.g., H-1B (section
E.02), Reintegration of Ex-Offenders (sections E.05 and E.06), and
Office of Disability Employment Policy (ODEP) (section E.08), another
commenter asked if States are now required to gather the data from the
organizations that have been awarded these grants or whether grantees
are expected to submit their own files. If the State is required to
report on these programs, the commenter asked for additional guidance
relating to how States will learn the identity of these grantees and
expressed concern about sufficient lead time for State IT departments
to make system modifications.
Department Response: The Department is implementing the PIRL format
across multiple programs, but not all programs will require the same
data elements. For instance, H-1B grantees will be responsible for the
collection and reporting of the required data elements under the H-1B
section of the PIRL. Similarly, other discretionary grant programs will
report only on those sections of the PIRL (i.e., those data elements
that pertain to their respective program). In other words, the PIRL
file for a participant in one program may look quite different from the
PIRL file for a participant in a different program.
[[Page 56327]]
States will not be responsible for the submission of discretionary
grant programs--the grantees themselves will have the responsibility of
submitting data on their participants.
Comments: Three commenters expressed confusion concerning PIRL
408--Highest School Grad Completed (WIOA), on what to report for this
data element. If an individual completes a full-time technical or
vocational school, noting that although this data element no longer
includes an option for vocational school, the Program Performance
Scorecard lists vocational school under Educational Level. The
commenters also asked whether it was a mistake that ``Other
Postsecondary Degree or Certification'' is no longer included as an
option under this data element. A commenter suggested that either the
Department should further define this data element for consistent use
and to avoid user error, or this data element should be removed. An
advocacy organization recommended that the Department revise this data
element to include educational attainment completed in foreign
countries in the data element specification, reasoning that it would
aid service providers in determining the appropriate services a
participant requires.
Department Response: The Department has revised this data element
for better clarity. If an individual has attained a postsecondary
technical or vocational degree, the participant would be coded as a `5'
as per the element instructions. The option of ``other postsecondary
degree or certification'' is not included here as the Department urges
States and grantees to best choose one of the eight options for this
element. Additionally, to reduce reporting burden, the Department did
not add a separate option for completing an education program or
attaining a degree or certificate. If this is the scenario, this
participant's degree would be treated as one earned domestically and
also be coded as such.
Comments: In discussing the measurable skill gains, a commenter
expressed concern that the specifications include individuals who have
an Exclusionary Reasons (PIRL 923) code of ``01.'' Although
acknowledging that this is to allow title II adult education providers
to report on their corrections education/education of other
institutionalized individuals, this commenter asserted that not
excluding these individuals from title I performance is of concern
because most participants who have been excluded from performance due
to being institutionalized or incarcerated are waiting adjudication in
a jail and are unable to secure bond; they are not in a prison where
adult education providers are providing services. The commenter stated
that there should be a better way to calculate and report this measure
specific to each program. Another commenter expressed concerns
regarding the burden of reporting on measurable skill gains as well as
the accuracy of the measure. The commenter asserted that gathering and
documenting information such as transcripts, report cards, progress
reports, and exams would pose a hardship to States because schools will
not provide student information, citing FERPA laws. Further, the
commenter said that testing individuals for educational functional
levels is costly, time consuming, and unrealistic.
A commenter suggested there should be a minimum threshold of
participation for a customer to reach (to be defined by Local WDBs)
before that customer is counted towards this performance indicator
(e.g., number of hours completed). This commenter also recommended that
customers who start an education or training program in the last
quarter of the program year should be subject to measure in the
following program year given that they may not be able to demonstrate
measurable gains so quickly. Moreover, given the diversity of possible
education and training programs, this commenter recommended that
requirements for documentation should be clear and simple, offer
maximum flexibility as to what can demonstrate a skill gains, and
stipulate that documentation is necessary only as back-up in the event
of an audit, but not necessary to report on an outcome.
Department Response: In the final ICR, the Department excludes
those who become institutionalized, as defined in PIRL 923, option
``01.'' Although the Department understands the concerns around data
gathering, the measure is required by statute; therefore, programs
should form the necessary partnerships to obtain the information.
Further, the Department has determined that, given the diversity of
participant needs and program services, imposing a time threshold by
which progress may be documented would be somewhat arbitrary and make
the measure more complex. Such practice could result in excluding a
number of participants from performance accountability reporting
requirements, even if those participants would achieve a gain under one
of the measures of progress. The Department recognizes that
participants enrolling late in the program year may not have enough
time to achieve a measurable skill gains prior to the end of the first
program year, and the Department recognized this could be perceived to
negatively impact performance. However, the negotiation process and the
statistical adjustment model may take into account enrollment patterns
and lower baseline data when setting targets for the measurable skill
gains indicator. The Department is concerned about incentivizing
behavior that discourages service providers from enrolling individuals,
such as disconnected youth, when they first approach programs. The
Department emphasizes that programs must not delay enrollment in a
program or prohibit participants from entering a program late in the
program year. All participant outcomes, regardless if achieved at the
end of the reporting period in which they enrolled or in the next
reporting period count as positive outcomes for the program as they are
not exit-based measures.
Comments: A commenter sought clarification on what data elements by
program need to be recorded and when, asserting that there is no clear
definition of what is required to be reported and at what stage of
participation. Commenting that many data elements in the PIRL are
unlikely to apply to all program and participant circumstances, an
advocacy organization recommended that the Department develop an
intelligent reporting system that uses logic models to streamline
questions so they are only relevant to each program's and participant's
circumstances. A commenter asked how the NFJP grantees will report on
the elements that are not currently required for NFJP grants and only
required for the main WIOA programs and asked whether such data
elements would be ``blocked'' for the NJFP grantees.
Department Response: The Department notes that the PIRL is expected
to be utilized by multiple programs. Not all data elements will be
required for all programs. Some data elements are program-specific and,
as noted by commenters, will not apply to their programs. In addition,
data elements pertaining to characteristics are expected to be captured
at the point of participation. The data reporting solution will be
flexible enough to accommodate only NFJP variables, or additional
variables if the grantee choses to report on those.
Comments: Regarding burden estimates, a commenter recommended that
workforce agencies that will be submitting data to the Department
should determine a governance structure before moving forward with data
projects. The commenter explained
[[Page 56328]]
that data governance refers to the operating discipline for managing
data and information as a key enterprise asset, asserting that a data
governance plan should consider: Decision-making authority, compliance
monitoring, policies and standards, data inventories, full lifecycle
management, preservation, data quality, data classification, data
security and access, data risk management, and data validation. As an
initial step in developing a data governance plan, this commenter
recommended that workforce agencies determine the value and sensitivity
of the information they seek to collect. Also, the commenter asserted
that training on data quality, roles and responsibilities, prevention
of mistakes, and correction of data quality should be offered and
required for those with data input responsibilities. Finally, to enable
government information sharing and to enhance the utility of collected
data, this commenter recommended that workforce agencies begin
exploring the National Information Exchange Model (NIEM).
Department Response: The Department agrees on the importance of the
items mentioned in the comment. For purposes of the Paperwork Reduction
Act, associated burden is limited to the data collection and data
submission components. Additionally, it would be very difficult to
assign specific burden estimates on each element listed above.
Work Application and Job Order Recordkeeping
Agency: DOL-ETA.
Title of Collection: Work Application and Job Order Recordkeeping.
Type of Review: Revision.
OMB Control Number: 1205-0001.
Affected Public: State Governments.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 121).
Total Estimated Number of Respondents Annually: 52.
Total Estimated Number of Annual Responses: 52.
Frequency of Responses: Quarterly.
Total Estimated Annual Time Burden: 417 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: Sec. 652.8.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: The Final Rule would not affect the burden hours
associated with creating work application and job order records.
However, the rule would change the record retention requirements for
work applications and job orders from 1 year to 3 years in order to
align with other Wagner-Peyser Act record retention requirements.
The Department received no comments concerning this information
collection.
Migrant and Seasonal Farmworker Monitoring Report and Complaint/
Apparent Violation Form
Agency: DOL-ETA.
Title of Collection: Migrant and Seasonal Farmworker Monitoring
Report and Complaint/Apparent Violation Form.
Type of Review: Revision.
OMB Control Number: 1205-0039.
Affected Public: State and Local Governments; Individuals or
Households.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 167).
Total Estimated Number of Respondents Annually: 3,552.
Total Estimated Number of Annual Responses: 7,416.
Frequency of Responses: On Occasion.
Total Estimated Annual Time Burden: 9,706 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: Sec. Sec. 653.107, 653.108(g)(6), (s), (i),
and (m), 653.109, 658.601.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: This information collection package includes the ETA Form
5148 (Services to Migrant and Seasonal Farmworkers Report) and the ETA
Form 8429 (Complaint/Apparent Violation Form). SWAs must submit
(pursuant to Sec. 653.109) ETA Form 5148 quarterly to report the level
of services provided to MSFWs through the one-stop centers and through
outreach staff to demonstrate the degree to which MSFWs are serviced
and to ensure that such services are provided on a basis that is
``qualitatively equivalent and quantitatively proportionate'' to the
services provided to non-MSFWs, as required in the Judge Richey Court
Order. The Department requires SWAs to use ETA Form 8429 when logging
and referring complaints and/or apparent violations pursuant to part
658, subpart E.
ETA Forms 5148 and 8429 were updated to reflect the new
requirements in the Wagner-Peyser Act regulations. Additionally, the
Department modified Form 5148 by eliminating parts 3 and 4 and
replacing part 3 with the Annual Summary that the SWAs will now need to
submit at the end of the fourth quarter. Form 8429 was modified to
include the submission of apparent violations.
The Department anticipates there will be no changes in the
estimated total number of burden hours with the changes to these forms.
Comments: During the NPRM, the Department received comments on the
data collection section (Sec. 653.109, Data Collection and Performance
Accountability Measures). A few commenters recommended the Department
revise the references to the pre-WIOA performance indicators. Another
commenter noted that some of the proposed performance indicators in
Sec. 653.109 are not in line with the WIOA measures to track
participants in unsubsidized employment in the second quarter after
exit, participants in unsubsidized employment in the fourth quarter
after exit, and median earnings. Therefore, this commenter recommended
the Department bring those measures in line with WIOA to ensure
consistency across all programs.
Department Response: The Department agrees and has changed Sec.
653.109(b)(5), (6) & (7) to be consistent with the WIOA performance
indicators listed in WIOA sec. 116.
Standard Job Corps Contractor Gathering Information
Agency: DOL-ETA.
Title of Collection: Standard Job Corps Contractor Gathering
Information.
Type of Review: Revision.
OMB Control Number: 1205-0219.
Affected Public: Private Sector.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 147).
Total Estimated Number of Respondents Annually: 2,543.
Total Estimated Number of Annual Responses: 197,459.
Frequency of Responses: Weekly.
Total Estimated Annual Time Burden: 54,442 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: Sec. 686.945.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: The Final Rule retains the same information collection
requirements as those previously found at 20 CFR 670.960, but relocated
the requirements to 20 CFR 686.945. Consistent with the WIA
regulations,
[[Page 56329]]
the DOL WIOA Final Rule requires the Department to provide guidelines
for maintaining records for each student during enrollment and for
disposition of records after separation. As a result, the Department
does not anticipate any changes in the information collection.
Comments: The Department received no comments concerning this
information collection.
Placement Verification and Follow-up of Job Corps Participants
Agency: DOL-ETA.
Title of Collection: Placement Verification and Follow-up of Job
Corps Participants.
Type of Review: Revision.
OMB Control Number: 1205-0426.
Affected Public: Individuals or Households; Private Sector.
Obligation to Respond: Voluntary.
Total Estimated Number of Respondents Annually: 49,200.
Total Estimated Number of Annual Responses: 93,400.
Frequency of Responses: On occasion.
Total Estimated Annual Time Burden: 21,700.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: Sec. Sec. 686.945, 686.955, 686.1000,
686.1010, 686.1020, 686.1030, 686.1040.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: Job Corps' performance management system, which includes
the OMS, is a well-established measurement system the Job Corps
community has been using to track performance of centers and service
providers for many years. It will be updated to reflect the new
requirements of WIOA, including the new primary indicators of
performance, but may also include breakouts of data that will help
program managers target interventions in order to achieve the primary
indicators. As a result, additional information would be collected from
respondents.
Comments: The Department received two comments in response to the
ICR. Both comments concerned the use of administrative data, such as UI
wage data, and surveys to collect performance information under the
WIOA.
Commenters stated that, as WIOA requires wage records be used as a
primary source of information for performance reporting, the proposal
to continue relying on surveys through the Post Enrollment Data
Collection System (PEDCS) is unnecessary and inefficient. The
commenters recommended that the Department utilize UI wage data through
the WRIS, and consider the use of State longitudinal data systems to
augment credential attainment. One commenter, however, clearly pointed
out the various limitations of the currently available administrative
data.
Department Response: The Department notes that, currently, no
source of administrative data exists that can meet the specific data
reporting requirements of WIOA. Such records, in their current form, do
not include information sufficient to support reporting at this time on
all the different indicators required. For example, the data available
from records collected by UI do not include individual information
about wage rates, hours worked, or earnings at the individual student
level. In addition, UI wage records do not provide any information
about enrollment in school or training programs or attainment of
secondary or postsecondary credentials, which are key program outcomes,
and needed for accurately calculating several of the six primary WIOA
measures. Finally, UI wage record information available to Job Corps
through national data bases such as the Common Reporting Information
System (CRIS) on employer identification number are not consistently
available across States, which would lead Job Corps to underreport on
the proposed effectiveness in serving employers measure.
Job Corps has revised the PEDCS to collect data and information
about post-enrollment placements to align with specific WIOA reporting
requirements. The revised PEDC will collect information to report on
five of the six WIOA required primary performance indicators,
Ultimately, Job Corps intends to incorporate the use of
administrative data (State wage records) to track student outcomes
under WIOA. Adding administrative data to its current methods will
allow Job Corps to correlate information in a more efficient, accurate,
and repeatable manner. Enhanced data collection and reporting process
will be highly useful for program operators and program leadership in
understanding the outcomes of all youth who interact with the Job Corps
program.
National Dislocated Workers Emergency Grant Application and Reporting
Procedures
Agency: DOL-ETA.
Title of Collection: National Dislocated Workers Emergency Grant
Application and Reporting Procedures.
Type of Review: Revision.
OMB Control Number: 1205-0439.
Affected Public: State, Local, and Tribal Governments.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 170).
Total Estimated Number of Respondents Annually: 159.
Total Estimated Number of Annual Responses: 1,587.
Frequency of Responses: On Occasion.
Total Estimated Annual Time Burden: 1,086 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: Sec. 687.150.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: Specified activities must be conducted before an
application for a NDWG is submitted. The NPRM required that a project
implementation plan, which is already required for all NEGs under WIA,
be submitted post-NDWG award. However, the Final Rule requires that a
project implementation plan be submitted after receiving a DWG unless
otherwise specified. The Department has retained the essence of
proposed Sec. 687.150, but made changes to the Final Rule that better
allow the Department to appraise the variety of needs and services
under the new statute and tailor application requirements accordingly.
The Department has added a sentence to this section reflecting that the
application requirements may vary based on the category of DWG. The
project implementation plan requirement may not apply to all DWGs at
all times. Requirements will be noted in grant terms and conditions.
Comments: The Department received no comments concerning this
information collection.
Employment and Training Administration Financial Reporting Form ETA-
9130
Agency: DOL-ETA.
Title of Collection: Employment and Training Administration
Financial Reporting Form ETA-9130.
Type of Review: Revision.
OMB Control Number: 1205-0461.
Affected Public: State, Local, and Tribal Governments.
Obligation to Respond: Required to obtain or retain a benefit (2
CFR 200.327).
Total Estimated Number of Respondents Annually: 1,000.
Total Estimated Number of Annual Responses: 20,000.
Frequency of Responses: Quarterly.
[[Page 56330]]
Total Estimated Annual Time Burden: 15,001 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: secs. 184(c), 184(d), and 185 of WIOA, 2 CFR
parts 200 and 2900 and Sec. Sec. 681.430, 683.150, 683.200, 683.300,
683.730, 683.740, 683.750.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: DOL-ETA awards approximately $8 billion in formula and
discretionary grants each year to an average of 1,000 recipients.
Financial reports for each of these grants must be submitted quarterly
on the financial report form ETA-9130. Recipients include but are not
limited to: State Employment Security Agencies which are comprised of
three components: Wagner-Peyser Act ES, Unemployment Insurance program,
and Trade Program Grant Agreements; as well as WIOA Youth, Adult, and
Dislocated Worker programs; National Dislocated Worker Grants; National
Farmworker Jobs Program (NFJP); Indian and Native American programs;
the Senior Community Service Employment Program; WIOA discretionary
grants; and H-1B Job Training Grants. The Final Rule reflects OMB's
Uniform Guidance, which standardizes the administrative, cost, and
audit provisions for all grants and cooperative agreements provided
under part 683. The Final Rule establishes consistent and uniform
guidance that increases accountability and transparency, promotes
fiscal integrity, and reduces duplication in the quarterly financial
reports. This information collection supports secs. 184(c), 184(d), and
185 of WIOA and 2 CFR parts 200 and 2900.
Changes in the time and burden were made from the NPRM to the Final
Rule. There was a significant increase since this information
collection package covers all of the grant programs that ETA
administers and not simply WIOA ETA-9130 forms.
Comments: On August 4, 2015, a request for comment for the
Employment and Training Administration Financial Report Form #9130 (OMB
Control No. 1205-0461) published in the Federal Register (Vol. 80, p.
46337). This provided a 60-day period, ending on October 5, 2015, for
the public to submit comments to DOL on the proposed change to the
collection of information. A total of eight comments were received from
four commenters.
One commenter suggested breaking out the activities that make up
statewide administrative funds and having a separate report for each.
The same commenter requested viewing access to the e-Grants Federal
Reporting System for entities to review the reports. The commenter
described only having access to scans of the proposed submissions to
review for approval.
Department Response: The Department made no changes to the report
in response to the comment. The Statewide Youth, Statewide Adult, and
Statewide Dislocated Worker ETA-9130 reports break out administrative
expenditures in line 10f (Total Administrative Expenditures). To
minimize the burden on grantees, a separate report solely for
administrative expenditures (as one expenditure line item) is not
required.
Regarding the second comment, for internal control reasons, only
one password and one PIN are assigned to each grantee. The password is
needed to enter data into the e-Grants Federal Reporting System. The
PIN takes the place of the authorized signature and is needed to
certify data. Only one person can sign and submit financial reports. It
is at the grantees' discretion which staff members are tasked with
these responsibilities. Once the reporting quarter is locked from
further modification, WIA/WIOA summary obligation and expenditure
reports are published at http://www.doleta.gov/budget/. These sites are
available to the public.
Comments: A commenter further commented that, for WIOA alone, there
are over 15 reports. The commenter asked why the Adult and Dislocated
Worker first and second increments cannot be merged into one report.
Department Response: The yearly base and advance funds in each
individual funding stream are considered separate appropriations. To be
in compliance with generally accepted accounting principles, the
Department must assign a separate accounting code to each
appropriation. Therefore, the Department must require a separate
financial report for each accounting line on a grant. Additionally,
auditors must be able to determine whether an entity has over or
underspent funds available, which is not possible if awards made under
different appropriations are merged.
Comments: A commenter noted that the instructions for reporting/
line item 10j (Total Recipient Share Required) for Statewide Rapid
Response and other WIOA reports indicate that this line item must
include the amount of non-Federal share that employers are required to
provide, based on incumbent worker training contracts. The commenter
stated that, although grantees implemented reporting and programming
changes to accommodate the implementation of WIOA, not all grantees are
obtaining this information, as it was not required in the past and that
obtaining this information would require programming and accounting
changes at both the State and local area levels. The commenter
indicated that there is no match requirement listed in the 2015 WIOA
grant agreements and thinks this requirement should be eliminated or
made voluntary until the start of the next program year.
Department Response: The Department explains that the 2015 grant
agreement outlines that funds must be expended in accordance with all
applicable Federal statutes, regulations, and policies. Per WIOA sec.
134(d)(4)(C), employers participating in a local area incumbent worker
training (IWT) program shall be required to pay for the non-Federal
share of the cost of providing the training to incumbent workers of the
employers. WIOA sec. 134(d)(4)(D)(ii) specifies that such contributions
shall not be less than 10 percent of the cost, for employers with not
more than 50 employees; 25 percent of the cost, for employers with more
than 50 employees but not more than 100 employees; and 50 percent of
the cost, for employers with more than 100 employees. The Department
noted that in the 60-day public comment notice (80 FR 46337), this
requirement was mistakenly included in the National Dislocated Worker
Grants ETA-9130 (G) and the Statewide Rapid Response ETA-9130 (H).
Consequentially, the condition to report employers' non-Federal share
of the cost of providing IWT was eliminated in these two reports.
Comments: The same commenter noted that throughout the reporting
instructions for WIOA grants and also in the supporting statement made
available with the notice published at 80 FR 46337, there were numerous
references to WIOA cost limitations or baselines that apply on a fiscal
year basis. The regulations stated that they apply on a program year
basis. The commenter requested that this be corrected or clarified.
Department Response: The numbers cited in the supporting statement,
including the corresponding time frames, are solely to demonstrate
grantee reporting cost and time burden calculations. They are not
related to the statutory cost limitations and baselines. The fiscal
year references within the
[[Page 56331]]
instructions are changed to program year, where applicable.
Comments: Some commenters noted that the proposed Indirect
Expenditures reporting/line item instructions only refer to an indirect
cost rate and asked for further instructions for States using a cost
allocation plan.
Department Response: It is allowable for States to continue to use
Statewide Cost Allocation Plans (SWCAP). For States using SWCAPs, it
will not be required to report indirect expenditures. The instructions
are modified and also, will be included in ETA's financial reporting
training.
Comments: A commenter questioned whether the reporting/line item
11b (Transitional Jobs Expenditures) was intentionally included on the
National Dislocated Worker Grants (ETA-9130 (G)) or not. It was further
suggested that ETA-9130 (G) capture the temporary employment wages to
align with the ETA-9104 Quarterly Progress Report.
Department Response: Transitional jobs are intentionally included
because an NDWG grantee may choose to use this strategy to serve a
dislocated worker who has been separated for a long period of time or
has inconsistent work history. The Department concludes that including
this resource ensures that NDWG grantees have the flexibility and
available tools necessary to provide people with the services they need
to return to work. It is not related to wages for temporary jobs in
disaster grants.
Comments: Another commenter requested additional guidance for
single-area States where WIOA is administered by a single agency and
functions as both the State and local levels with no subrecipients. The
commenter specifically requested guidance about the Indirect
Expenditures reporting/line items required for the State level WIOA
reporting, but not for local level reporting.
Department Response: Single-area States report indirect
expenditures for the statewide reports only, and only if they have an
indirect cost rate. If using a SWCAP, no indirect cost reporting is
required. This information also will be included in ETA's financial
reporting training.
E. Executive Order 13132 (Federalism)
E.O. 13132 requires Federal agencies to ensure that the principles
of Federalism established by the Framers of our Constitution guide the
executive departments and agencies in the formulation and
implementation of policies and to further the policies of the Unfunded
Mandates Reform Act. Further, agencies must strictly adhere to
constitutional principles. Agencies must closely examine the
constitutional and statutory authority supporting any action that would
limit the policy-making discretion of the States and they must
carefully assess the necessity for any such action. To the extent
practicable, State and local officials must be consulted before any
such action is implemented. Section 3(b) of the E.O. further provides
that Federal agencies must implement regulations that have a
substantial direct effect only if statutory authority permits the
regulation and it is of national significance. The Department has
reviewed this Final Rule in light of these requirements and has
determined that, with the enactment of WIOA and its clear requirement
to publish national implementing regulations, E.O. sec. 3(b) has been
reviewed fully and its requirement satisfied.
Accordingly, the Department has reviewed this WIOA-required Final
Rule and has determined that the rulemaking has no Federalism
implications. The DOL WIOA Final Rule, as noted above, has no
substantial direct effects on States, on the relationships between the
States, or on the distribution of power and responsibilities among the
various levels of government as described by E.O. 13132. The Department
has determined that this Final Rule does not have a sufficient
Federalism implication to warrant the preparation of a summary impact
statement.
F. Unfunded Mandates Reform Act of 1995
This Act directs agencies to assess the effects of Federal
regulatory actions on State, local, and tribal governments, and the
private sector. A Federal mandate is any provision in a regulation that
imposes an enforceable duty upon State, local, or tribal governments,
or imposes a duty on the private sector that is not voluntary.
Comments: In response to the NPRM, the Department received some
comments that addressed unfunded mandates. One commenter said that the
Department usually establishes a set funding level regardless of the
level of services performed and that providing insufficient funding for
a required program without an option for increasing the funding
essentially creates an unfunded mandate. Another commenter asserted
that because WIOA did not mandate a shared performance tracking system,
the required collaboration across agencies represents an unfunded
mandate. This commenter said that most of the reason that systems are
not already in place is due to financial constraints. Another commenter
asserted that WIOA implementation costs are an unfunded mandate for
many States due to an actual decrease in funding for some States, and
because the costs used in the NPRM's cost-benefit analysis looked only
at incremental implementation costs, and were significantly below
actual costs. This commenter urged the Department to grant waivers from
required tasks to match the States' allotments, and to provide
additional funding and technical assistance for States to develop
sustainable systems for meeting the requirements. One commenter
similarly asserted that the new requirements are a de facto unfunded
mandate, and provided a policy paper that concluded that Federal funds
are insufficient to cover required activities. The commenter suggested
that unless additional funds are provided, waivers would be needed to
give States flexibility to prioritize activities. Another commenter
also expressed concern that new WIOA requirements are not accompanied
by implementation funding.
Department Response: The Department acknowledges the commenters'
concerns and has detailed the cost burden associated with this Final
Rule in section VI.A (Executive Orders 12866 and 13563: Regulatory
Planning and Review). Grant funding is provided annually to all
programs authorized under WIOA and that funding will be used to cover
the costs of implementing this rule.
As noted above, under the Unfunded Mandates Reform Act of 1995, a
Federal mandate is any provision in a regulation that imposes an
enforceable duty upon State, local, or tribal governments, or imposes a
duty upon the private sector that is not voluntary. WIOA contains
specific language supporting employment and training activities for
Indian, Alaska Natives, and Native Hawaiian individuals. These program
requirements are supported, as is the WIOA workforce development system
generally, by Federal formula grant funds, and, accordingly, are not
considered unfunded mandates. Similarly, Migrant and Seasonal
Farmworker activities are authorized and funded under the WIOA program
as is currently done under the WIA program. The States are mandated to
perform certain activities for the Federal government under WIOA and
will be reimbursed (grant funding) for the resources required to
perform those activities. The same process and grant relationship
exists between States and Local WDBs under the WIA program and must
continue under the WIOA program as identified in this NPRM.
[[Page 56332]]
WIOA contains language establishing procedures regarding the
eligibility of training providers to receive funds under the WIOA
program and contains clear State information collection requirements
for eligible training providers (e.g., submission of appropriate,
accurate, and timely information). A decision by a private training
entity to participate as a provider under the WIOA program is purely
voluntary and, therefore, information collection burdens do not impose
a duty on the private sector that is not voluntarily assumed.
Following consideration of these factors, the Department has
determined that the DOL WIOA Final Rule contains no unfunded Federal
mandates, which are defined in 2 U.S.C. 658(6) to include either a
``Federal intergovernmental mandate'' or a ``Federal private sector
mandate.''
G. Plain Language
E.O. 12866 and E.O. 13563 require regulations to be written in a
manner that is easy to understand.
Comments: One commenter stated that the NPRM's commitment that the
Department has included the relevant WIOA provisions in the proposed
regulations for completeness was not fulfilled and cited examples of
missing statutory language. While acknowledging that adding the
statutory text would extend the length of the rules, this commenter
said that it would help the reader in not having to flip back and forth
between two documents to understand what is required.
Department Response: To the extent practicable, the Department has
attempted to address this commenter's concern in the Final Rule. In
particular, many of the regulations in this Final Rule are verbatim
implementations of WIOA's directives. However, because in some places
it would be confusing, distracting, and excessive to add all of the
relevant WIOA statutory language, some references to WIOA remain. The
overall format of these WIOA regulations reflects the Department's
commitment to writing regulations that are reader-friendly. The
Department has attempted to make this Final Rule easy to understand.
For example, the regulatory text is presented in a ``question and
answer'' format and organized consistent with WIOA. In consideration of
the foregoing, the Department has concluded that it has drafted this
Final Rule in plain language.
H. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires the assessment of the impact of this rule on family
well-being. A rule that is determined to have a negative effect on
families must be supported with an adequate rationale. The Department
has assessed this Final Rule in light of this requirement and
determined that the DOL WIOA Final Rule will not have a negative effect
on families.
I. Executive Order 13175 (Indian Tribal Governments)
The Department reviewed this Final Rule under the terms of E.O.
13175 and the Department's Tribal Consultation Policy and has
determined that the rule will have tribal implications as the final
regulations have substantial direct effects on one or more Indian
tribes, the relationship between the Federal government and Indian
tribes, or the distribution of power and responsibilities between the
Federal government and Indian tribes. As described in the preamble to
the NPRM, the Department carried out several consultations with tribal
institutions, including tribal officials, that allowed the tribal
officials to provide meaningful and timely input into the Department's
proposal. Additionally, through the notice and comment rulemaking
process, the Department received comments on the programs and
provisions in WIOA that have tribal implications and we have responded
to these comments in the section-by-section discussions in this Final
Rule and in the Joint WIOA Final Rule.
In addition to the comments received through its notice and comment
rulemaking process, the Department received feedback from the Indian
and Native American (INA) community and the public prior to the
publication of the NPRM. This feedback was summarized in the NPRM at 80
FR 20832-20833.
J. Executive Order 12630 (Government Actions and Interference With
Constitutionally Protected Property Rights)
The Department has determined that this Final Rule is not subject
to E.O. 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights, because it does not involve
implementation of a policy with takings implications.
K. Executive Order 12988 (Civil Justice Reform)
This DOL WIOA Final Rule was drafted and reviewed in accordance
with E.O. 12988, Civil Justice Reform, and the Department has
determined that the Final Rule will not unduly burden the Federal court
system. The WIOA regulations were written to minimize litigation and,
to the extent feasible, provide a clear legal standard for affected
conduct. In addition, the WIOA regulations have been reviewed carefully
to eliminate drafting errors and ambiguities.
L. Executive Order 13211 (Energy Supply)
This DOL WIOA Final Rule was drafted and reviewed in accordance
with E.O. 13211, Energy Supply. The Department has determined that this
Final Rule will not have a significant adverse effect on the supply,
distribution, or use of energy and is not subject to E.O. 13211.
List of Subjects
20 CFR Part 603
Grant programs--labor, Privacy, Reporting and recordkeeping
requirements, Unemployment compensation, Wages.
20 CFR Part 651
Employment, Grant programs--labor.
20 CFR Part 652
Employment, Grant programs--labor, Reporting and recordkeeping
requirements.
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs--labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 654
Employment, Government procurement, Housing standards, Manpower,
Migrant labor, Reporting and recordkeeping requirements.
20 CFR Part 658
Administrative practice and procedure, Employment, Grant programs--
labor, Reporting and recordkeeping requirements.
20 CFR Part 675
Employment, Grant programs--labor.
20 CFR Parts 679 and 680
Employment, Grant programs--labor.
[[Page 56333]]
20 CFR Part 681
Employment, Grant programs--labor, Youth.
20 CFR Part 682
Employment, Grant programs--labor.
20 CFR Part 683
Employment, Grant programs--labor, Reporting and recordkeeping
requirements.
20 CFR Part 684
Employment, Grant programs--labor, Indians, Reporting and
recordkeeping requirements.
20 CFR Part 685
Employment, Grant programs--labor, Migrant labor, Reporting and
recordkeeping requirements.
20 CFR Part 686
Employment, Grant programs--labor, Job Corps.
20 CFR Part 687
Employment, Grant programs--labor.
20 CFR Part 688
Employment, Grant programs--labor, Youth, YouthBuild.
For the reasons stated in the preamble, ETA amends title 20 CFR,
chapter V, as follows:
PART 603--FEDERAL-STATE UNEMPLOYMENT COMPENSATION (UC) PROGRAM;
CONFIDENTIALITY AND DISCLOSURE OF STATE UC INFORMATION
0
1. Revise the authority citation for part 603 to read as follows:
Authority: Secs. 116, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014); 20 U.S.C 1232g.
0
2. Amend Sec. 603.2 by revising paragraph (d) to read as follows:
Sec. 603.2 What definitions apply to this part?
* * * * *
(d) Public official means:
(1) An official, agency, or public entity within the executive
branch of Federal, State, or local government who (or which) has
responsibility for administering or enforcing a law, or an elected
official in the Federal, State, or local government.
(2) Public postsecondary educational institutions established and
governed under the laws of the State. These include the following:
(i) Institutions that are part of the State's executive branch.
This means the head of the institution must derive his or her authority
from the Governor, either directly or through a State WDB, commission,
or similar entity established in the executive branch under the laws of
the State.
(ii) Institutions which are independent of the executive branch.
This means the head of the institution derives his or her authority
from the State's chief executive officer for the State education
authority or agency when such officer is elected or appointed
independently of the Governor.
(iii) Publicly governed, publicly funded community and technical
colleges.
(3) Performance accountability and customer information agencies
designated by the Governor of a State to be responsible for
coordinating the assessment of State and local education or workforce
training program performance and/or evaluating education or workforce
training provider performance.
(4) The chief elected official of a local area as defined in WIOA
sec. 3(9).
(5) A State educational authority, agency, or institution as those
terms are used in the Family Educational Rights and Privacy Act, to the
extent they are public entities.
* * * * *
0
3. Amend Sec. 603.5 by revising paragraph (e) to read as follows:
Sec. 603.5 What are the exceptions to the confidentiality
requirement?
* * * * *
(e) Public official. Disclosure of confidential UC information to a
public official for use in the performance of his or her official
duties is permissible.
(1) ``Performance of official duties'' means administration or
enforcement of law or the execution of the official responsibilities of
a Federal, State, or local elected official. Administration of law
includes research related to the law administered by the public
official. Execution of official responsibilities does not include
solicitation of contributions or expenditures to or on behalf of a
candidate for public or political office or a political party.
(2) For purposes of Sec. 603.2(d)(2) through (5), ``performance of
official duties'' includes, in addition to the activities set out in
paragraph (e)(1) of this section, use of the confidential UC
information for the following limited purposes:
(i) State and local performance accountability under WIOA sec. 116,
including eligible training provider performance accountability under
WIOA secs. 116(d) and 122;
(ii) The requirements of discretionary Federal grants awarded under
WIOA; or
(iii) As otherwise required for education or workforce training
program performance accountability and reporting under Federal or State
law.
* * * * *
0
4. Amend Sec. 603.6 by adding paragraph (b)(8) to read as follows:
Sec. 603.6 What disclosures are required by this subpart?
* * * * *
(b) * * *
(8) To comply with WIOA sec. 116(e)(4), States must, to the extent
practicable, cooperate in the conduct of evaluations (including related
research projects) provided for by the Secretary of Labor or the
Secretary of Education under the provisions of Federal law identified
in WIOA sec. 116(e)(1); WIOA secs. 169 and 242(c)(2)(D); sec. 12(a)(5),
14, and 107 of the Rehabilitation Act of 1973 (29 U.S.C. 709(a)(5),
711, 727) (applied with respect to programs carried out under title I
of that Act (29 U.S.C. 720 et seq.)); and the investigations provided
for by the Secretary of Labor under sec. 10(b) of the Wagner-Peyser Act
(29 U.S.C. 49i(b)). For purposes of this part, States must disclose
confidential UC information to a Federal official (or an agent or
contractor of a Federal official) requesting such information in the
course of such evaluations. This disclosure must be done in accordance
with appropriate privacy and confidentiality protections established in
this part. This disclosure must be made to the ``extent practicable'',
which means that the disclosure would not interfere with the efficient
administration of the State UC law, as required by Sec. 603.5.
* * * * *
0
5. Revise part 651 to read as follows:
PART 651--GENERAL PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
Sec.
651.10 Definitions of terms used in this part and parts 652, 653,
654, and 658 of this chapter.
Authority: 29 U.S.C. 49a; 38 U.S.C. part III, 4101, 4211; Secs.
503, 3, 189, Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
Sec. 651.10 Definitions of terms used in this part and parts 652,
653, 654, and 658 of this chapter.
In addition to the definitions set forth in sec. 3 of WIOA, the
following definitions apply to the regulations in parts 652, 653, 654,
and 658 of this chapter:
Act means the Wagner-Peyser Act (codified at 29 U.S.C. 49 et seq.).
[[Page 56334]]
Administrator, Office of Workforce Investment (OWI Administrator)
means the chief official of the Office of Workforce Investment (OWI) or
the Administrator's designee.
Affirmative action means positive, result-oriented action imposed
on or assumed by an employer pursuant to legislation, court order,
consent decree, directive of a fair employment practice authority,
government contract, grant or loan, or voluntary affirmative action
plan adopted pursuant to the affirmative action guidelines of the Equal
Employment Opportunity Commission (see 29 CFR part 1608) to provide
equal employment opportunities for members of a specified group which
for reasons of past custom, historical practice, or other non-
occupationally valid purposes has been discouraged from entering
certain occupational fields.
Agricultural employer means any employer as defined in this part
who owns or operates a farm, ranch, processing establishment, cannery,
gin, packing shed or nursery, or who produces or conditions seed, and
who either recruits, solicits, hires, employs, furnishes, or transports
any migrant or seasonal farmworker or any agricultural employer as
described in 29 U.S.C. 1802(2).
Agricultural worker see Farmworker.
Applicant holding office means a Wagner-Peyser Act Employment
Service (ES) office that is in receipt of a clearance order and has
access to U.S. workers who may be willing and available to perform
farmwork on a less than year-round basis.
Applicant Holding State means a State Workforce Agency that is in
receipt of a clearance order from another State and potentially has
U.S. workers who may be willing and available to perform farmwork on a
less than year-round basis.
Bona fide occupational qualification (BFOQ) means that an
employment decision or request based on age, sex, national origin or
religion is based on a finding that such characteristic is necessary to
the individual's ability to perform the job in question. Since a BFOQ
is an exception to the general prohibition against discrimination on
the basis of age, sex, national origin, or religion, it must be
interpreted narrowly in accordance with the Equal Employment
Opportunity Commission regulations set forth at 29 CFR parts 1604,
1605, and 1627.
Career services means the services described in sec. 134(c)(2) of
the Workforce Innovation and Opportunity Act (WIOA) and Sec. 678.430
of this chapter.
Clearance order means a job order that is processed through the
clearance system under the Agricultural Recruitment System (ARS).
Clearance system means the orderly movement of U.S. job seekers as
they are referred through the employment placement process by an ES
office. This includes joint action of local ES offices in different
labor market areas and/or States.
Complainant means the individual, employer, organization,
association, or other entity filing a complaint.
Complaint means a representation made or referred to a State or ES
office of an alleged violation of the ES regulations and/or other
Federal laws enforced by the Department's Wage and Hour Division (WHD)
or Occupational Safety and Health Administration (OSHA), as well as
other Federal, State, or local agencies enforcing employment-related
law.
Decertification means the rescission by the Secretary of the year-
end certification made under sec. 7 of the Wagner-Peyser Act to the
Secretary of the Treasury that the State agency may receive funds
authorized by the Wagner-Peyser Act.
Department means the United States Department of Labor, including
its agencies and organizational units.
Employer means a person, firm, corporation, or other association or
organization which currently has a location within the United States to
which U.S. workers may be referred for employment, and which proposes
to employ a worker at a place within the United States and which has an
employer relationship with respect to employees under this subpart as
indicated by the fact that it hires, pays, fires, supervises, and
otherwise controls the work of such employees. An association of
employers is considered an employer if it has all of the indicia of an
employer set forth in this definition. Such an association, however, is
considered as a joint employer with the employer member if either
shares in exercising one or more of the definitional indicia.
Employment and Training Administration (ETA) means the component of
the Department of Labor that administers Federal government job
training and worker dislocation programs, Federal grants to States for
public ES programs, and unemployment insurance benefits. These services
are provided primarily through State and local workforce development
systems.
Employment-related laws means those laws that relate to the
employment relationship, such as those enforced by the Department's
WHD, OSHA, or by other Federal, State, or local agencies.
Employment Service (ES) office means a site in a local WDB where
staff of the State Workforce Agency, consistent with the requirements
of Sec. 652.215 of this chapter, provide Wagner-Peyser Act services as
a one-stop partner program. A site must be colocated with a one-stop
center consistent with the requirements of Sec. Sec. 678.305 through
678.315 of this chapter.
Employment Service (ES) regulations means the Federal regulations
at this part and parts 652, 653, 654, 658 of this chapter, and 29 CFR
part 75.
Establishment means a public or private economic employing unit
generally at a single physical location which produces and/or sells
goods or services, for example, a mine, factory, store, farm, orchard
or ranch. It is usually engaged in one, or predominantly one, type of
commercial or governmental activity. Each branch or subsidiary unit of
a large employer in a geographical area or community must be considered
an individual establishment, except that all such units in the same
physical location is considered a single establishment. A component of
an establishment which may not be located in the same physical
structure (such as the warehouse of a department store) also must be
considered as part of the parent establishment. For the purpose of the
``seasonal farmworker'' definition, farm labor contractors and crew
leaders are not considered establishments; it is the organizations to
which they supply the workers that are the establishments.
Farmwork means the cultivation and tillage of the soil, dairying,
the production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities. This includes the raising of
livestock, bees, fur-bearing animals, or poultry, the farming of fish,
and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations, including preparation for market,
delivery to storage or to market or to carriers for transportation to
market. It also includes the handling, planting, drying, packing,
packaging, processing, freezing, or grading prior to delivery for
storage of any agricultural or horticultural commodity in its
unmanufactured state. For the purposes of this definition, agricultural
commodities means all commodities produced on a farm including crude
gum (oleoresin) from a living tree products processed by the original
producer of the crude gum (oleoresin) from which they are derived,
including
[[Page 56335]]
gum spirits of turpentine and gum rosin. Farmwork also means any
service or activity covered under Sec. 655.103(c) of this chapter and/
or 29 CFR 500.20(e) and any service or activity so identified through
official Department guidance such as a Training and Employment Guidance
Letter.
Farmworker means an individual employed in farmwork, as defined in
this section.
Field checks means random, unannounced appearances by State
Workforce Agency personnel at agricultural worksites to which ES
placements have been made through the intrastate or interstate
clearance system to ensure that conditions are as stated on the job
order and that the employer is not violating an employment-related law.
Field visits means appearances by Monitor Advocates or State
Workforce Agency outreach personnel to the working and living areas of
migrant and seasonal farmworkers (MSFWs), to discuss employment
services and other employment-related programs with MSFWs, crew
leaders, and employers. Monitor Advocates or outreach personnel must
keep records of each such visit.
Governor means the chief executive of a State or an outlying area.
Hearing Officer means a Department of Labor Administrative Law
Judge, designated to preside at Department administrative hearings.
Individual with a disability means an individual with a disability
as defined in sec. 3 of the Americans with Disabilities Act of 1990 (42
U.S.C. 12102).
Interstate clearance order means an agricultural job order for
temporary employment (employment on a less than year-round basis)
describing one or more hard-to-fill job openings, which an ES office
uses to request recruitment assistance from other ES offices in a
different State.
Intrastate clearance order means an agricultural job order for
temporary employment (employment on a less than year-round basis)
describing one or more hard-to-fill job openings, which an ES office
uses to request recruitment assistance from other ES offices within the
State.
Job development means the process of securing a job interview with
a public or private employer for a specific participant for whom the ES
office has no suitable opening on file.
Job information means information derived from data compiled in the
normal course of ES activities from reports, job orders, applications,
and the like.
Job opening means a single job opportunity for which the ES office
has on file a request to select and refer participants.
Job order means the document containing the material terms and
conditions of employment relating to wages, hours, working conditions,
worksite and other benefits, submitted by an employer.
Job referral means:
(1) The act of bringing to the attention of an employer a
participant or group of participants who are available for specific job
openings or for a potential job; and
(2) The record of such referral. ``Job referral'' means the same as
``referral to a job.''
Labor market area means an economically integrated geographic area
within which individuals can reside and find employment within a
reasonable distance or can readily change employment without changing
their place of residence. Such an area must be identified in accordance
with criteria used by the Department's Bureau of Labor Statistics in
defining such areas or similar criteria established by a Governor.
Local Office Manager means the official in charge of all ES
activities in a one-stop center.
Local Workforce Development Board or Local WDB means a Local
Workforce Development Board established under sec. 107 of WIOA.
Migrant farmworker means a seasonal farmworker (as defined in this
section) who travels to the job site so that the farmworker is not
reasonably able to return to his/her permanent residence within the
same day. Full-time students traveling in organized groups rather than
with their families are excluded.
Migrant food processing worker see Migrant Farmworker.
MSFW means a migrant farmworker or a seasonal farmworker.
Occupational Information Network (O*NET) system means the online
reference database which contains detailed descriptions of U.S.
occupations, distinguishing characteristics, classification codes, and
information on tasks, knowledge, skills, abilities, and work activities
as well as information on interests, work styles, and work values.
One-stop center means a physical center within the one-stop
delivery system, as described in sec. 121(e)(2)(A) of WIOA.
One-stop delivery system means a one-stop delivery system described
in sec. 121(e) of WIOA.
One-stop partner means an entity described in sec. 121(b) of WIOA
and Sec. 678.400 of this chapter that is participating in the
operation of a one-stop delivery system.
O*NET-SOC means the occupational codes and titles used in the O*NET
system, based on and grounded in the Standard Occupational
Classification (SOC), which are the titles and codes utilized by
Federal statistical agencies to classify workers into occupational
categories for the purpose of collecting, calculating, and
disseminating data. The SOC system is issued by the Office of
Management and Budget and the Department of Labor is authorized to
develop additional detailed O*NET occupations within existing SOC
categories. The Department uses O*NET-SOC titles and codes for the
purposes of collecting descriptive occupational information and for
State reporting of data on training, credential attainment, and
placement in employment by occupation.
Onsite review means an appearance by the State Monitor Advocate
and/or Federal staff at an ES office to monitor the delivery of
services and protections afforded by ES regulations to MSFWs by the
State Workforce Agency and local ES offices.
Order holding office means an ES office that has accepted a
clearance order from an employer seeking U.S. workers to perform
farmwork on a less than year-round basis through the Agricultural
Recruitment System.
Outreach contact means each MSFW that receives the presentation of
information, offering of assistance, or follow-up activity from an
outreach worker.
Participant means a reportable individual who has received services
other than the services described in Sec. 677.150(a)(3) of this
chapter, after satisfying all applicable programmatic requirements for
the provision of services, such as eligibility determination. (See
Sec. 677.150(a) of this chapter.)
(1) The following individuals are not Participants, subject to
Sec. 677.150(a)(3)(ii) and(iii) of this chapter:
(i) Individuals who only use the self-service system; and
(ii) Individuals who receive information-only services or
activities.
(2) Wagner-Peyser Act participants must be included in the
program's performance calculations
Placement means the hiring by a public or private employer of an
individual referred by the ES office for a job or an interview,
provided that the employment office completed all of the following
steps:
[[Page 56336]]
(1) Prepared a job order form prior to referral, except in the case
of a job development contact on behalf of a specific participant;
(2) Made prior arrangements with the employer for the referral of
an individual or individuals;
(3) Referred an individual who had not been specifically designated
by the employer, except for referrals on agricultural job orders for a
specific crew leader or worker;
(4) Verified from a reliable source, preferably the employer, that
the individual had entered on a job; and
(5) Appropriately recorded the placement.
Public housing means housing operated by or on behalf of any public
agency.
Regional Administrator (RA) means the chief Department of Labor
Employment and Training Administration (ETA) official in each
Department regional office.
Reportable individual means an individual who has taken action that
demonstrates an intent to use Wagner-Peyser Act services and who meets
specific reporting criteria of the Wagner-Peyser Act (see Sec.
677.150(b) of this chapter), including:
(1) Individuals who provide identifying information;
(2) Individuals who only use the self-service system; or
(3) Individuals who only receive information-only services or
activities.
Respondent means the employer, individual, or State agency
(including a State agency official) who is alleged to have committed
the violation described in a complaint.
Seasonal farmworker means an individual who is employed, or was
employed in the past 12 months, in farmwork (as defined in this
section) of a seasonal or other temporary nature and is not required to
be absent overnight from his/her permanent place of residence. Non-
migrant individuals who are full-time students are excluded. Labor is
performed on a seasonal basis where, ordinarily, the employment
pertains to or is of the kind exclusively performed at certain seasons
or periods of the year and which, from its nature, may not be
continuous or carried on throughout the year. A worker who moves from
one seasonal activity to another, while employed in farmwork, is
employed on a seasonal basis even though he/she may continue to be
employed during a major portion of the year. A worker is employed on
other temporary basis where he/she is employed for a limited time only
or his/her performance is contemplated for a particular piece of work,
usually of short duration. Generally, employment which is contemplated
to continue indefinitely is not temporary.
Secretary means the Secretary of the U.S. Department of Labor or
the Secretary's designee.
Significant MSFW one-stop centers are those designated annually by
the Department and include those ES offices where MSFWs account for 10
percent or more of annual participants in employment services and those
local ES offices which the administrator determines must be included
due to special circumstances such as an estimated large number of MSFWs
in the service area. In no event may the number of significant MSFW
one-stop centers be less than 100 centers on a nationwide basis.
Significant MSFW States are those States designated annually by the
Department and must include the 20 States with the highest number of
MSFW participants.
Significant multilingual MSFW one-stop centers are those designated
annually by the Department and include those significant MSFW ES
offices where 10 percent or more of MSFW participants are estimated to
require service provisions in a language(s) other than English unless
the administrator determines other one-stop centers also must be
included due to special circumstances.
Solicitor means the chief legal officer of the U.S. Department of
Labor or the Solicitor's designee.
Standard Metropolitan Statistical Area (SMSA) means a metropolitan
area designated by the Bureau of Census which contains:
(1) At least 1city of 50,000 inhabitants or more; or
(2) Twin cities with a combined population of at least 50,000.
State means any of the 50 States, the District of Columbia, Guam,
Puerto Rico, and the Virgin Islands.
State Administrator means the chief official of the SWA.
State agency or State Workforce Agency (SWA) means the State ES
agency designated under sec. 4 of the Wagner-Peyser Act.
State hearing official means a State official designated to preside
at State administrative hearings convened to resolve complaints
involving ES regulations pursuant to subpart E of part 658 of this
chapter.
State Workforce Development Board or State WDB means the entity
within a State appointed by the Governor under sec. 101 of WIOA.
Supply State(s) means a State that potentially has U.S. workers who
may be recruited for referral through the Agricultural Recruitment
System to the area of intended employment in a different State.
Supportive services means services that are necessary to enable an
individual to participate in activities authorized under WIOA or the
Wagner-Peyser Act. These services may include, but are not limited to,
the following:
(1) Linkages to community services;
(2) Assistance with transportation;
(3) Assistance with child care and dependent care;
(4) Assistance with housing;
(5) Needs-related payments;
(6) Assistance with educational testing;
(7) Reasonable accommodations for individuals with disabilities;
(8) Referrals to health care;
(9) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eyeglasses and protective
eye gear;
(10) Assistance with books, fees, school supplies, and other
necessary items for students enrolled in postsecondary education
classes; and
(11) Payments and fees for employment and training-related
applications, tests, and certifications.
Tests means a standardized method of measuring an individual's
possession of, interest in, or ability to acquire, job skills and
knowledge. Use of tests by one-stop staff must be in accordance with
the provisions of:
(1) Title 41 CFR part 60-3, Uniform Guidelines on Employee
Selection Procedures;
(2) Title 29 CFR part 1627, Records To Be Made or Kept Relating to
Age; Notices To Be Posted; Administrative Exemptions; and
(3) The Department of Labor's regulations on Nondiscrimination on
the Basis of Handicap in Programs and Activities Receiving or
Benefiting from Federal Financial Assistance, which have been published
as 29 CFR part 32.
Training services means services described in sec. 134(c)(3) of
WIOA.
Unemployment insurance claimant means a person who files a claim
for benefits under any State or Federal unemployment compensation law.
Veteran means a person who served in the active military, naval, or
air service, and who was discharged or released therefrom under
conditions other than dishonorable, as defined under 38 U.S.C. 101 and
sec. 3(63)(A) of WIOA.
Wagner-Peyser Act Employment Service (ES) also known as Employment
Service (ES) means the national system of public ES offices described
under the Wagner-Peyser Act. Employment services are delivered through
a
[[Page 56337]]
nationwide system of one-stop centers, and are managed by State
Workforce Agencies and the various local offices of the State Workforce
Agencies, and funded by the United States Department of Labor.
WIOA means the Workforce Innovation and Opportunity Act (codified
at 29 U.S.C. 3101 et seq.).
Workforce and Labor Market Information (WLMI) means the body of
knowledge that describes the relationship between labor demand and
supply. This includes identification and analysis of the socio-economic
factors that influence employment, training, and business decisions,
such as worker preparation, educational program offerings and related
policy decisions within national, State, Substate, and local labor
market areas. WLMI includes, but is not limited to:
(1) Employment numbers by occupation and industry;
(2) Unemployment numbers and rates;
(3) Short- and long-term industry and occupational employment
projections;
(4) Information on business employment dynamics, including the
number and nature of business establishments, and share and location of
industrial production;
(5) Local employment dynamics, including business turnover rates;
new hires, job separations, net job losses;
(6) Job vacancy counts;
(7) Job seeker and job posting data from the public labor exchange
system;
(8) Identification of high growth and high demand industries,
occupations, and jobs;
(9) Information on employment and earnings for wage and salary
workers and for the self-employed;
(10) Information on work hours, benefits, unionization, trade
disputes, conditions of employment, and retirement;
(11) Information on occupation-specific requirements regarding
education, training, skills, knowledge, and experience;
WLMI also may include, as either source data or as outputs of
analysis of source data:
(12) Population and workforce growth and decline, classified by
age, sex, race, and other demographic characteristics;
(13) Identification of emerging occupations and evolving skill
demands;
(14) Business skill and hiring requirements;
(15) Workforce characteristics, which may include skills,
experience, education, credential attainment, competencies, etc.;
(16) Workforce available in geographic areas;
(17) Information on regional and local economic development
activity, including job creation through business start-ups and
expansions;
(18) Enrollments in and completers from educational programs,
training and registered apprenticeship;
(19) Trends in industrial and occupational restructuring;
(20) Shifts in consumer demands;
(21) Data contained in governmental or administrative reporting
including wage records as identified in Sec. 652.301 of this chapter;
(22) Labor market intelligence gained from interaction with
businesses, industry or trade associations, education agencies,
government entities, and the public; and
(23) Other economic factors.
Workforce and Labor Market Information System (WLMIS) means the
system that collects, analyzes, interprets, and disseminates workforce
characteristics and employment-related data, statistics, and
information at national, State, and local labor market areas and makes
that information available to the public, workforce development system,
one-stop partner programs, and the education and economic development
communities.
Workforce development activity means an activity carried out
through a workforce development program as defined in sec. 3 of WIOA.
Working days or business days means those days that the order-
holding ES office is open for public business, for purposes of the
Agricultural Recruitment System.
Work test means activities designed to ensure that an individual
whom a State determines to be eligible for unemployment insurance
benefits is able to work, available for work, and actively seeking work
in accordance with the State's unemployment compensation law.
0
6. Revise part 652 to read as follows:
PART 652--ESTABLISHMENT AND FUNCTIONING OF STATE EMPLOYMENT SERVICE
Subpart A--Employment Service Operations
Sec.
652.1 Introduction.
652.2 Scope and purpose of the Wagner-Peyser Act Employment Service.
652.3 Public labor exchange services system.
652.4 Allotment of funds and grant agreement.
652.5 Services authorized.
652.6-652.7 [Reserved]
652.8 Administrative provisions.
652.9 Labor disputes.
Subpart B--Services for Veterans
Sec.
652.100 Services for veterans.
Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
Sec.
652.200 What is the purpose of this subpart?
652.201 What is the role of the State Workforce Agency in the one-
stop delivery system?
652.202 May local Employment Service offices exist outside of the
one-stop delivery system?
652.203 Who is responsible for funds authorized under the Wagner-
Peyser Act in the workforce development system?
652.204 Must funds authorized under section 7(b) of the Wagner-
Peyser Act (the Governor's Reserve) flow through the one-stop
delivery system?
652.205 May funds authorized under the Wagner-Peyser Act be used to
supplement funding for labor exchange programs authorized under
separate legislation?
652.206 May a State use funds authorized under the Wagner-Peyser Act
to provide applicable ``career services,'' as defined in the
Workforce Innovation and Opportunity Act?
652.207 How does a State meet the requirement for universal access
to services provided under the Wagner-Peyser Act?
652.208 How are applicable career services related to the methods of
service delivery described in this part?
652.209 What are the requirements under the Wagner-Peyser Act for
providing reemployment services and other activities to referred
unemployment insurance claimants?
652.210 What are the Wagner-Peyser Act's requirements for
administration of the work test, including eligibility assessments,
as appropriate, and assistance to unemployment insurance claimants?
652.211 What are State planning requirements under the Wagner-Peyser
Act?
652.215 Do any provisions in the Workforce Innovation and
Opportunity Act change the requirement that State merit staff
employees must deliver services provided under the Wagner-Peyser
Act?
652.216 May the one-stop operator provide guidance to State merit
staff employees in accordance with the Wagner-Peyser Act?
Subpart D--Workforce and Labor Market Information
Sec.
652.300 What role does the Secretary of Labor have concerning the
Workforce and Labor Market Information System?
652.301 What are wage records for purposes of the Wagner-Peyser Act?
652.302 How do the Secretary of Labor's responsibilities described
in this part apply to State wage records?
652.303 How do the requirements of part 603 of this chapter apply to
wage records?
[[Page 56338]]
Authority: 29 U.S.C. 49l-2; Secs. 189 and 503, Public Law 113-
128, 128 Stat. 1425 (Jul. 22, 2014).
Subpart A--Employment Service Operations
Sec. 652.1 Introduction.
These regulations implement the provisions of the Wagner-Peyser
Act, known hereafter as the Wagner-Peyser Act, as amended by title III
of the Workforce Innovation and Opportunity Act (WIOA), Public Law 113-
128. The Wagner-Peyser Act Employment Service (ES) is a core program
under the WIOA, and an integral component of the one-stop delivery
system. Congress intended that the States exercise broad authority in
implementing provisions of the Wagner-Peyser Act.
Sec. 652.2 Scope and purpose of the Wagner-Peyser Act Employment
Service.
The basic purpose of the ES is to improve the functioning of the
nation's labor markets by bringing together individuals who are seeking
employment and employers who are seeking workers.
Sec. 652.3 Public labor exchange services system.
At a minimum, each State must administer a labor exchange system
which has the capacity, to:
(a) Assist job seekers in finding employment, including promoting
their familiarity with the Department's electronic tools;
(b) Assist employers in filling jobs;
(c) Facilitate the match between job seekers and employers;
(d) Participate in a system for clearing labor among the States,
including the use of standardized classification systems issued by the
Secretary, under sec. 15 of the Wagner-Peyser Act;
(e) Meet the work test requirements of the State unemployment
compensation system; and
(f) Provide labor exchange services as identified in Sec.
678.430(a) of this chapter, sec. 7(a) of the Wagner-Peyser Act, and
sec. 134(c)(2)(A)(iv) of WIOA.
Sec. 652.4 Allotment of funds and grant agreement.
(a) Allotments. The Secretary must provide planning estimates in
accordance with sec. 6(b)(5) of the Wagner-Peyser Act. Within 30 days
of receipt of planning estimates from the Secretary, the State must
make public the sub-State resource distributions, and describe the
process and schedule under which these resources will be issued,
planned, and committed. This notification must include a description of
the procedures by which the public may review and comment on the sub-
State distributions, including a process by which the State will
resolve any complaints.
(b) Grant agreement. To establish a continuing relationship under
the Wagner-Peyser Act, the Governor and the Secretary must sign a grant
agreement, including a statement assuring that the State must comply
with the Wagner-Peyser Act and all applicable rules and regulations.
Consistent with this agreement and sec. 6 of the Wagner-Peyser Act,
State allotments will be obligated through a notification of
obligation.
Sec. 652.5 Services authorized.
The funds allotted to each State under sec. 6 of the Wagner-Peyser
Act must be expended consistent with an approved plan under Sec. Sec.
676.100 through 676.145 of this chapter and Sec. 652.211. At a
minimum, each State must provide the minimum labor exchange elements
listed at Sec. 652.3.
Sec. Sec. 652.6-652.7 [Reserved]
Sec. 652.8 Administrative provisions.
(a) Administrative requirements. The Employment Security Manual is
not applicable to funds appropriated under the Wagner-Peyser Act.
Except as provided for in paragraph (f) of this section, administrative
requirements and cost principles applicable to grants under this part
are as specified in 2 CFR parts 200 and 2900 which govern the Uniform
Guidelines, cost principles, and audit requirements for Federal awards.
(b) Management systems, reporting, and recordkeeping. (1) The State
must ensure that a financial system provides fiscal control and
accounting procedures sufficient to permit preparation of required
reports, and the tracing of funds to a level of expenditure adequate to
establish that funds have not been expended in violation of the
restrictions on the use of such funds. (sec. 10(a) of the Wagner-Peyser
Act)
(2) The financial management system and the program information
system must provide Federally-required records and reports that are
uniform in definition, accessible to authorized Federal and State
staff, and verifiable for monitoring, reporting, audit and evaluation
purposes. (sec. 10(c) of the Wagner-Peyser Act)
(c) Reports required. (1) Each State must make reports pursuant to
instructions issued by the Secretary and in such format as the
Secretary prescribes.
(2) The Secretary is authorized to monitor and investigate pursuant
to sec. 10 of the Wagner-Peyser Act.
(d) Special administrative and cost provisions. (1) Neither the
Department nor the State is a guarantor of the accuracy or truthfulness
of information obtained from employers or applicants in the process of
operating a labor exchange activity.
(2) Prior approval authority--as described in various sections of
29 CFR part 97, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments, and Office of
Management and Budget Circular A-87 (Revised)--is delegated to the
State except that the Secretary reserves the right to require transfer
of title on nonexpendable Automated Data Processing Equipment (ADPE),
in accordance with provisions contained in 2 CFR parts 200 and 2900.
The Secretary reserves the right to exercise prior approval authority
in other areas, after providing advance notice to the State.
(3) Application for financial assistance and modification
requirements must be as specified under this part.
(4) Cost of promotional and informational activities consistent
with the provisions of the Wagner-Peyser Act, describing services
offered by employment security agencies, job openings, labor market
information, and similar items are allowable.
(5) Each State must retain basic documents for the minimum period
specified below, consistent with 2 CFR parts 200 and 2900:
(i) Work application: 3 years.
(ii) Job order: 3 years.
(6) Payments from the State's Wagner-Peyser Act allotment made into
a State's account in the Unemployment Trust Fund for the purpose of
reducing charges against Reed Act funds (sec. 903(c) of the Social
Security Act, as amended (42 U.S.C. 1103(c)) are allowable costs,
provided that:
(i) The charges against Reed Act funds were for amounts
appropriated, obligated, and expended for the acquisition of automatic
data processing installations or for the acquisition or major
renovation of State-owned office building; and
(ii) With respect to each acquisition of improvement of property
pursuant to paragraph (d)(6)(i) of this section, the payments are
accounted for in the State's records as credits against equivalent
amounts of Reed Act funds used for administrative expenditures.
(e) Disclosure of information. (1) The State must assure the proper
disclosure of information pursuant to sec. 3(b) of the Wagner-Peyser
Act.
[[Page 56339]]
(2) The information specified in sec. 3(b) and other sections of
the Wagner-Peyser Act, also must be provided to officers or any
employee of the Federal government or of a State government lawfully
charged with administration of unemployment compensation laws, ES
activities under the Wagner-Peyser Act or other related legislation,
but only for purposes reasonably necessary for the proper
administration of such laws.
(f) Audits. (1) The State must follow the audit requirements found
at Sec. 683.210 of this chapter, except that funds expended pursuant
to sec. 7(b) of the Wagner-Peyser Act must be audited annually.
(2) The Comptroller General and the Inspector General of the
Department have the authority to conduct audits, evaluations or
investigations necessary to meet their responsibilities under sec.
9(b)(1) and 9(b)(2), respectively, of the Wagner-Peyser Act.
(3) The audit, conducted pursuant to paragraph (f)(1) or (2) of
this section, must be submitted to the Secretary who will follow the
resolution process specified in Sec. Sec. 683.420 through 683.440 of
this chapter.
(g) Sanctions for violation of the Wagner-Peyser Act. (1) The
Secretary may impose appropriate sanctions and corrective actions for
violation of the Wagner-Peyser Act, regulations, or State Plan,
including the following:
(i) Requiring repayment, for debts owed the government under the
grant, from non-Federal funds;
(ii) Offsetting debts arising from the misexpenditure of grant
funds, against amounts to which the State is or may be entitled under
the Wagner-Peyser Act, provided that debts arising from gross
negligence or willful misuse of funds may not be offset against future
grants. When the Secretary reduces amounts allotted to the State by the
amount of the misexpenditure, the debt must be fully satisfied;
(iii) Determining the amount of Federal cash maintained by the
State or a subrecipient in excess of reasonable grant needs,
establishing a debt for the amount of such excessive cash, and charging
interest on that debt; and
(iv) Imposing other appropriate sanctions or corrective actions,
except where specifically prohibited by the Wagner-Peyser Act or
regulations.
(2) To impose a sanction or corrective action, the Secretary must
utilize the initial and final determination procedures outlined in
paragraph (f)(3) of this section and specified in the administrative
provisions at Sec. Sec. 683.420 through 683.440 of this chapter.
(h) Other violations. Violations or alleged violations of the
Wagner-Peyser Act, regulations, or grant terms and conditions except
those pertaining to audits or discrimination must be determined and
handled in accordance with part 658, subpart H, of this chapter.
(i) Fraud and abuse. Any persons having knowledge of fraud,
criminal activity or other abuse must report such information directly
and immediately to the Secretary, including all complaints involving
such matters.
(j) Nondiscrimination and affirmative action requirements. States
must:
(1) Assure that no individual be excluded from participation in,
denied the benefits of, subjected to discrimination under, or denied
employment in the administration or in connection with any services or
activities authorized under the Wagner-Peyser Act in violation of any
applicable nondiscrimination law. All complaints alleging
discrimination must be filed and processed according to the procedures
in the applicable Department of Labor nondiscrimination regulations.
(2) Assure that discriminatory job orders will not be accepted,
except where the stated requirement is a bona fide occupational
qualification (BFOQ). See, generally, 42 U.S.C. 2000(e)-2(e), 29 CFR
parts 1604, 1606, and 1625.
(3) Assure that employers' valid affirmative action requests will
be accepted and a significant number of qualified applicants from the
target group(s) will be included to enable the employer to meet its
affirmative action obligations.
(4) Assure that employment testing programs will comply with 41 CFR
part 60-3 and 29 CFR part 32 and 29 CFR 1627.3(b)(1)(iv).
(5) Nondiscrimination and equal opportunity requirements and
procedures, including complaint processing and compliance reviews, will
be governed by the applicable Department of Labor nondiscrimination
regulations.
Sec. 652.9 Labor disputes.
(a) State agencies may not make a job referral on job orders which
will aid directly or indirectly in the filling of a job opening which
is vacant because the former occupant is on strike, or is being locked
out in the course of a labor dispute, or the filling of which is
otherwise an issue in a labor dispute involving a work stoppage.
(b) Written notification must be provided to all applicants
referred to jobs not at issue in the labor dispute that a labor dispute
exists in the employing establishment and that the job to which the
applicant is being referred is not at issue in the dispute.
(c) When a job order is received from an employer reportedly
involved in a labor dispute involving a work stoppage, State agencies
must:
(1) Verify the existence of the labor dispute and determine its
significance with respect to each vacancy involved in the job order;
and
(2) Notify all potentially affected staff concerning the labor
dispute.
(d) State agencies must resume full referral services when they
have been notified of, and verified with the employer and workers'
representative(s), that the labor dispute has been terminated.
(e) State agencies must notify the regional office in writing of
the existence of labor disputes which:
(1) Result in a work stoppage at an establishment involving a
significant number of workers; or
(2) Involve multi-establishment employers with other establishments
outside the reporting State.
Subpart B--Services for Veterans
Sec. 652.100 Services for veterans.
Veterans receive priority of service for all Department-funded
employment and training programs as described in 20 CFR part 1010. The
Department's Veterans' Employment and Training Service (VETS)
administers the Jobs for Veterans State Grants (JVSG) program under
chapter 41 of title 38 of the U.S. Code and other activities and
training programs which provide services to specific populations of
eligible veterans. VETS' general regulations are located in parts 1001,
1002, and 1010 of this title.
Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
Sec. 652.200 What is the purpose of this subpart?
(a) This subpart provides guidance to States to implement the
services provided under the Wagner-Peyser Act, as amended by WIOA, in a
one-stop delivery system environment.
(b) Except as otherwise provided, the definitions contained in part
651 of this chapter and sec. 2 of the Wagner-Peyser Act apply to this
subpart.
Sec. 652.201 What is the role of the State Workforce Agency in the
one-stop delivery system?
(a) The role of the State Workforce Agency (SWA) in the one-stop
delivery system is to ensure the delivery of services authorized under
sec. 7(a) of the Wagner-Peyser Act. The SWA is a required one-stop
partner in each local one-stop delivery system and is subject to the
provisions relating to such
[[Page 56340]]
partners that are described at part 678 of this chapter.
(b) Consistent with those provisions, the State agency must:
(1) Participate in the one-stop delivery system in accordance with
sec. 7(e) of the Wagner-Peyser Act;
(2) Be represented on the Workforce Development Boards (WDBs) that
oversee the local and State one-stop delivery system and be a party to
the Memorandum of Understanding, described at Sec. 678.500 of this
chapter, addressing the operation of the one-stop delivery system; and
(3) Provide these services as part of the one-stop delivery system.
Sec. 652.202 May local Employment Service offices exist outside of
the one-stop delivery system?
No. Local ES offices may not exist outside of the one-stop service
delivery system. A State must colocate ES, as provided in Sec. Sec.
678.310 through 678.315 of this chapter.
Sec. 652.203 Who is responsible for funds authorized under the
Wagner-Peyser Act in the workforce development system?
The SWA retains responsibility for all funds authorized under the
Wagner-Peyser Act, including those funds authorized under sec. 7(a)
required for providing the services and activities delivered as part of
the one-stop delivery system.
Sec. 652.204 Must funds authorized under the Wagner-Peyser Act (the
Governor's Reserve) flow through the one-stop delivery system?
No, sec. 7(b) of the Wagner-Peyser Act provides that 10 percent of
the State's allotment under the Wagner-Peyser Act is reserved for use
by the Governor for performance incentives, supporting exemplary models
of service delivery, professional development and career advancement of
SWA staff, and services for groups with special needs. However, these
funds may flow through the one-stop delivery system.
Sec. 652.205 May funds authorized under the Wagner-Peyser Act be used
to supplement funding for labor exchange programs authorized under
separate legislation?
(a) Section 7(c) of the Wagner-Peyser Act enables States to use
funds authorized under sec. 7(a) or 7(b) of the Wagner-Peyser Act to
supplement funding of any workforce activity carried out under WIOA.
(b) Funds authorized under the Wagner-Peyser Act may be used under
sec. 7(c) to provide additional funding to other activities authorized
under WIOA if:
(1) The activity meets the requirements of the Wagner-Peyser Act,
and its own requirements;
(2) The activity serves the same individuals as are served under
the Wagner-Peyser Act;
(3) The activity provides services that are coordinated with
services under the Wagner-Peyser Act; and
(4) The funds supplement, rather than supplant, funds provided from
non-Federal sources.
Sec. 652.206 May a State use funds authorized under the Wagner-Peyser
Act to provide applicable ``career services,'' as defined in the
Workforce Innovation and Opportunity Act?
Yes, funds authorized under sec. 7(a) of the Wagner-Peyser Act must
be used to provide basic career services as identified in Sec.
678.430(a) of this chapter and secs. 134(c)(2)(A)(i)-(xi) of WIOA, and
may be used to provide individualized career services as identified in
Sec. 678.430(b) of this chapter and sec. 134(c)(2)(A)(xii) of WIOA.
Funds authorized under sec. 7(b) of the Wagner-Peyser Act may be used
to provide career services. Career services must be provided consistent
with the requirements of the Wagner-Peyser Act.
Sec. 652.207 How does a State meet the requirement for universal
access to services provided under the Wagner-Peyser Act?
(a) A State has discretion in how it meets the requirement for
universal access to services provided under the Wagner-Peyser Act. In
exercising this discretion, a State must meet the Wagner-Peyser Act's
requirements.
(b) These requirements are:
(1) Labor exchange services must be available to all employers and
job seekers, including unemployment insurance (UI) claimants, veterans,
migrant and seasonal farmworkers, and individuals with disabilities;
(2) The State must have the capacity to deliver labor exchange
services to employers and job seekers, as described in the Wagner-
Peyser Act, on a statewide basis through:
(i) Self-service, including virtual services;
(ii) Facilitated self-help service; and
(iii) Staff-assisted service;
(3) In each local area, in at least one comprehensive physical
center, staff funded under the Wagner-Peyser Act must provide labor
exchange services (including staff-assisted labor exchange services)
and career services as described in Sec. 652.206; and
(4) Those labor exchange services provided under the Wagner-Peyser
Act in a local area must be described in the Memorandum of
Understanding (MOU) described in Sec. 678.500 of this chapter.
Sec. 652.208 How are applicable career services related to the
methods of service delivery described in in this part?
Career services may be delivered through any of the applicable
three methods of service delivery described in Sec. 652.207(b)(2).
These methods are:
(a) Self-service, including virtual services;
(b) Facilitated self-help service; and
(c) Staff-assisted service.
Sec. 652.209 What are the requirements under the Wagner-Peyser Act
for providing reemployment services and other activities to referred
unemployment insurance claimants?
(a) In accordance with sec. 3(c)(3) of the Wagner-Peyser Act, the
SWA, as part of the one-stop delivery system, must provide reemployment
services to UI claimants for whom such services are required as a
condition for receipt of UI benefits. Services must be appropriate to
the needs of UI claimants who are referred to reemployment services
under any Federal or State UI law.
(b) The SWA also must provide other activities, including:
(1) Coordination of labor exchange services with the provision of
UI eligibility services as required by sec. 5(b)(2) of the Wagner-
Peyser Act;
(2) Administration of the work test, conducting eligibility
assessments, and registering UI claimants for employment services in
accordance with a State's unemployment compensation law, and provision
of job finding and placement services as required by sec. 3(c)(3) and
described in sec. 7(a)(3)(F) of the Wagner-Peyser Act; and
(3) Referring UI claimants to, and providing application assistance
for, training and education resources and programs, including Federal
Pell grants and other student assistance under title IV of the Higher
Education Act, the Montgomery GI Bill, Post-9/11 GI Bill, and other
Veterans Educational Assistance, training provided for youth, and adult
and dislocated workers, as well as other employment training programs
under WIOA, and for Vocational Rehabilitation Services under title I of
the Rehabilitation Act of 1973.
Sec. 652.210 What are the Wagner-Peyser Act's requirements for
administration of the work test, including eligibility assessments, as
appropriate, and assistance to unemployment insurance claimants?
(a) State UI law or rules establish the requirements under which UI
claimants must register and search for work in order to fulfill the UI
work test requirements.
[[Page 56341]]
(b) Staff funded under the Wagner-Peyser Act must assure that:
(1) UI claimants receive the full range of labor exchange services
available under the Wagner-Peyser Act that are necessary and
appropriate to facilitate their earliest return to work, including
career services specified in Sec. 652.206 and listed in sec.
134(c)(2)A) of WIOA;
(2) UI claimants requiring assistance in seeking work receive the
necessary guidance and counseling to ensure they make a meaningful and
realistic work search; and
(3) ES staff will provide UI program staff with information about
UI claimants' ability or availability for work, or the suitability of
work offered to them.
Sec. 652.211 What are State planning requirements under the Wagner-
Peyser Act?
The ES is a core program identified in WIOA and must be included as
part of each State's Unified or Combined State Plans. See Sec. Sec.
676.105 through 676.125 of this chapter for planning requirements for
the core programs.
Sec. 652.215 Do any provisions in the Workforce Innovation and
Opportunity Act change the requirement that State merit staff employees
must deliver services provided under the Wagner-Peyser Act?
No, the Secretary requires that labor exchange services provided
under the authority of the Wagner-Peyser Act, including services to
veterans, be provided by State merit-staff employees. This
interpretation is authorized by and consistent with the provisions in
secs. 3(a) and 5(b) of the Wagner-Peyser Act and the Intergovernmental
Personnel Act (42 U.S.C 4701 et seq.). The Secretary has and has
exercised the legal authority under sec. 3(a) of the Wagner-Peyser Act
to set additional staffing standards and requirements and to conduct
demonstrations to ensure the effective delivery of services provided
under the Wagner-Peyser Act. No additional exemptions, other than the
ones previously authorized under the Wagner-Peyser Act as amended by
WIA, will be authorized.
Sec. 652.216 May the one-stop operator provide guidance to State
merit staff employees in accordance with the Wagner-Peyser Act?
Yes, the one-stop delivery system envisions a partnership in which
Wagner-Peyser Act labor exchange services are coordinated with other
activities provided by other partners in a one-stop setting. As part of
the local Memorandum of Understanding described in Sec. 678.500 of
this chapter, the SWA, as a one-stop partner, may agree to have staff
receive guidance from the one-stop operator regarding the provision of
labor exchange services. Personnel matters, including compensation,
personnel actions, terms and conditions of employment, performance
appraisals, and accountability of State merit staff employees funded
under the Wagner-Peyser Act, remain under the authority of the SWA. The
guidance given to employees must be consistent with the provisions of
the Wagner-Peyser Act, the local Memorandum of Understanding, and
applicable collective bargaining agreements.
Subpart D--Workforce and Labor Market Information
Sec. 652.300 What role does the Secretary of Labor have concerning
the Workforce and Labor Market Information System?
(a) The Secretary of Labor must oversee the development,
maintenance, and continuous improvement of the workforce and labor
market information system defined in Wagner-Peyser Act sec. 15 and
Sec. 651.10 of this chapter. The Department also will identify
parameters of continuous improvement. The Secretary will consult with
the Workforce Information Advisory Council on these matters and
consider the council's recommendations.
(b) With respect to data collection, analysis, and dissemination of
workforce and labor market information as defined in Wagner-Peyser Act
sec. 15 and Sec. 651.10 of this chapter, the Secretary must:
(1) Assign responsibilities within the Department of Labor for
elements of the workforce and labor market information system described
in sec. 15(a) of the Wagner-Peyser Act to ensure that the statistical
and administrative data collected are consistent with appropriate
Bureau of Labor Statistics standards and definitions, and that the
information is accessible and understandable to users of such data;
(2) Actively seek the cooperation of heads of other Federal
agencies to establish and maintain mechanisms for ensuring
complementarity and non-duplication in the development and operation of
statistical and administrative data collection activities;
(3) Solicit, receive, and evaluate the recommendations of the
Workforce Information Advisory Council established by Wagner-Peyser Act
sec. 15(d);
(4) Eliminate gaps and duplication in statistical undertakings;
(5) Through the Bureau of Labor Statistics and the Employment and
Training Administration, and in collaboration with States, develop and
maintain the elements of the workforce and labor market information
system, including the development of consistent procedures and
definitions for use by States in collecting and reporting the workforce
and labor market information data described in Wagner-Peyser Act sec.
15 and defined in Sec. 651.10 of this chapter;
(6) Establish procedures for the system to ensure that the data and
information are timely, and paperwork and reporting for the system are
reduced to a minimum; and
(7) Prepare a 2-year plan for the workforce and labor market
information system, as described in the Wagner-Peyser Act sec. 15(c),
as amended by WIOA sec. 308(d).
Sec. 652.301 What are wage records for purposes of the Wagner-Peyser
Act?
Wage records, for purposes of the Wagner-Peyser Act, are records
that contain ``wage information'' as defined in Sec. 603.2(k) of this
chapter. In this part, ``State wage records'' refers to wage records
produced or maintained by a State.
Sec. 652.302 How do the Secretary of Labor's responsibilities
described in this part apply to State wage records?
(a) A significant portion of the workforce and labor market
information--defined in Sec. 651.10 of this chapter--are developed
using State wage records.
(b) Based on the Secretary of Labor's responsibilities described in
Wagner-Peyser Act sec. 15 and Sec. 652.300, the Secretary of Labor
will, in consultation with Federal agencies, and States, and
considering recommendations from the Workforce Information Advisory
Council described in Wagner-Peyser Act sec. 15(d), develop:
(1) Standardized definitions for the data elements comprising
``wage records'' as defined in Sec. 652.301; and
(2) Improved processes and systems for the collection and reporting
of wage records.
(c) In carrying out these activities, the Secretary also may
consult with other stakeholders, such as employers.
Sec. 652.303 How do the requirements of part 603 of this chapter
apply to wage records?
All information collected by the State in wage records referred to
in Sec. 652.302 is subject to the confidentiality regulations at part
603 of this chapter.
0
7. Revise part 653 to read as follows:
[[Page 56342]]
PART 653--SERVICES OF THE WAGNER-PEYSER ACT EMPLOYMENT SERVICE
SYSTEM
Subpart A--[Reserved]
Subpart B--Services for Migrant and Seasonal Farmworkers (MSFWs)
Sec.
653.100 Purpose and scope of subpart.
653.101 Provision of services to migrant and seasonal farmworkers.
653.102 Job information.
653.103 Process for migrant and seasonal farmworkers to participate
in workforce development activities.
653.104-653.106 [Reserved]
653.107 Outreach and Agricultural Outreach Plan.
653.108 State Workforce Agency and State Monitor Advocate
responsibilities.
653.109 Data collection and performance accountability measures.
653.110 Disclosure of data.
653.111 State Workforce Agency staffing requirements.
Subparts C-E--[Reserved]
Subpart F--Agricultural Recruitment System for U.S. Workers (ARS)
Sec.
653.500 Purpose and scope of subpart.
653.501 Requirements for processing clearance orders.
653.502 Conditional access to the Agricultural Recruitment System.
653.503 Field checks.
Authority: Secs. 167, 189, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014); 29 U.S.C. chapter 4B; 38 U.S.C. part III,
chapters 41 and 42.
Subpart A--[Reserved]
Subpart B--Services for Migrant and Seasonal Farmworkers (MSFWs)
Sec. 653.100 Purpose and scope of subpart.
(a) This subpart sets forth the principal regulations of the
Wagner-Peyser Act Employment Service (ES) concerning the provision of
services for MSFWs consistent with the requirement that all services of
the workforce development system be available to all job seekers in an
equitable fashion. This includes ensuring MSFWs have access to these
services in a way that meets their unique needs. MSFWs must receive
services on a basis which is qualitatively equivalent and
quantitatively proportionate to services provided to non-MSFWs.
(b) This subpart contains requirements that State Workforce
Agencies (SWAs) establish a system to monitor their own compliance with
ES regulations governing services to MSFWs.
(c) Established under this subpart are special services to ensure
MSFWs receive the full range of career services as defined in WIOA sec.
134(c)(2).
Sec. 653.101 Provision of services to migrant and seasonal
farmworkers.
Each one-stop center must offer MSFWs the full range of career and
supportive services, benefits and protections, and job and training
referral services as are provided to non-MSFWs. In providing such
services, the one-stop centers must consider and be sensitive to the
preferences, needs, and skills of individual MSFWs and the availability
of job and training opportunities.
Sec. 653.102 Job information.
All SWAs must make job order information conspicuous and available
to MSFWs by all reasonable means. Such information must, at minimum, be
available through internet labor exchange systems and through the one-
stop centers. One-stop centers must provide adequate staff assistance
to MSFWs to access job order information easily and efficiently. In
designated significant MSFW multilingual offices, such assistance must
be provided to MSFWs in their native language, whenever requested or
necessary.
Sec. 653.103 Process for migrant and seasonal farmworkers to
participate in workforce development activities.
(a) Each one-stop center must determine whether participants are
MSFWs as defined at Sec. 651.10 of this chapter.
(b) All SWAs will ensure that MSFWs who are English Language
Learners (ELLs) receive, free of charge, the language assistance
necessary to afford them meaningful access to the programs, services,
and information offered by the one-stop centers.
(c) One-stop center staff must provide MSFWs a list of available
career and supportive services in their native language.
(d) One-stop center staff must refer and/or register MSFWs for
services, as appropriate, if the MSFW is interested in obtaining such
services.
Sec. Sec. 653.104-653.106 [Reserved]
Sec. 653.107 Outreach and Agricultural Outreach Plan.
(a) State Workforce Agency (SWA) outreach responsibilities. (1)
Each SWA must employ an adequate number of outreach workers to conduct
MSFW outreach in their service areas. SWA Administrators must ensure
State Monitor Advocates and outreach workers coordinate their outreach
efforts with WIOA title I sec. 167 grantees as well as with public and
private community service agencies and MSFW groups.
(2) As part of their outreach, SWAs must:
(i) Communicate the full range of workforce development services to
MSFWs.
(ii) Conduct thorough outreach efforts with extensive follow-up
activities in supply States.
(3) For purposes of hiring and assigning staff to conduct outreach
duties, and to maintain compliance with SWAs' Affirmative Action
programs, SWAs must seek, through merit system procedures, qualified
candidates who:
(i) Are from MSFW backgrounds;
(ii) Speak a language common among MSFWs in the State; or
(iii) Are racially or ethnically representative of the MSFWs in the
service area.
(4) The 20 States with the highest estimated year-round MSFW
activity, as identified in guidance issued by the Secretary, must
assign, in accordance with State merit staff requirements, full-time,
year-round staff to conduct outreach duties. The remainder of the
States must hire year-round part-time outreach staff and, during
periods of the highest MSFW activity must hire full-time outreach
staff. All outreach staff must be multilingual if warranted by the
characteristics of the MSFW population in the State, and must spend a
majority of their time in the field.
(5) The SWA must publicize the availability of employment services
through such means as newspaper and electronic media publicity.
Contacts with public and private community agencies, employers and/or
employer organizations, and MSFW groups also must be utilized to
facilitate the widest possible distribution of information concerning
employment services.
(b) Outreach worker's responsibilities. Outreach workers must
locate and contact MSFWs who are not being reached by the normal intake
activities conducted by the ES offices. Outreach workers'
responsibilities include:
(1) Explaining to MSFWs at their working, living, or gathering
areas (including day-haul sites), by means of written and oral
presentations either spontaneous or recorded, in a language readily
understood by them, the following:
(i) The services available at the local one-stop center (which
includes the availability of referrals to training, supportive
services, and career services, as well as specific employment
opportunities), and other related services;
(ii) Information on the Employment Service and Employment-related
Law Complaint System;
(iii) Information on the other organizations serving MSFWs in the
area; and
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(iv) A basic summary of farmworker rights, including farmworker
rights with respect to the terms and conditions of employment.
(2) Outreach workers must not enter work areas to perform outreach
duties described in this section on an employer's property without
permission of the employer unless otherwise authorized to enter by law;
must not enter workers' living areas without the permission of the
workers; and must comply with appropriate State laws regarding access.
(3) After making the presentation, outreach workers must urge the
MSFWs to go to the local one-stop center to obtain the full range of
employment and training services.
(4) If an MSFW cannot or does not wish to visit the local one-stop
center, the outreach worker must offer to provide on-site the
following:
(i) Assistance in the preparation of applications for employment
services;
(ii) Assistance in obtaining referral(s) to current and future
employment opportunities;
(iii) Assistance in the preparation of either ES or employment-
related law complaints;
(iv) Referral of complaints to the ES office Complaint Specialist
or ES office manager;
(v) Referral to supportive services and/or career services in which
the individual or a family member may be interested; and
(vi) As needed, assistance in making appointments and arranging
transportation for individual MSFW(s) or members of his/her family to
and from local one-stop centers or other appropriate agencies.
(5) Outreach workers must make follow-up contacts as necessary and
appropriate to provide the assistance specified in paragraphs (b)(1)
through (4) of this section.
(6) Outreach workers must be alert to observe the working and
living conditions of MSFWs and, upon observation or upon receipt of
information regarding a suspected violation of Federal or State
employment-related law, document and refer information to the ES office
manager for processing in accordance with Sec. 658.411 of this
chapter. Additionally, if an outreach worker observes or receives
information about apparent violations (as described in Sec. 658.419 of
this chapter), the outreach worker must document and refer the
information to the appropriate ES office manager.
(7) Outreach workers must be trained in local office procedures and
in the services, benefits, and protections afforded MSFWs by the ES,
including training on protecting farmworkers against sexual harassment.
While sexual harassment is the primary requirement, training also may
include similar issues such as sexual coercion, assault, and human
trafficking. Such trainings are intended to help outreach workers
identify when such issues may be occurring in the fields and how to
document and refer the cases to the appropriate enforcement agencies.
They also must be trained in the procedure for informal resolution of
complaints. The program for such training must be formulated by the
State Administrator, pursuant to uniform guidelines developed by the
Employment and Training Administration (ETA). The SMA must be given an
opportunity to review and comment on the State's program.
(8) Outreach workers must maintain complete records of their
contacts with MSFWs and the services they perform. These records must
include a daily log, a copy of which must be sent monthly to the ES
office manager and maintained on file for at least 2 years. These
records must include the number of contacts, the names of contacts (if
available), and the services provided (e.g., whether a complaint was
received, whether a request for career services was received, and
whether a referral was made). Outreach workers also must maintain
records of each possible violation or complaint of which they have
knowledge, and their actions in ascertaining the facts and referring
the matters as provided herein. These records must include a
description of the circumstances and names of any employers who have
refused outreach workers access to MSFWs pursuant to paragraph (b)(2)
of this section.
(9) Outreach workers must not engage in political, unionization, or
anti-unionization activities during the performance of their duties.
(10) Outreach workers must be provided with, carry and display,
upon request, identification cards or other material identifying them
as employees of the SWA.
(11) Outreach workers in significant MSFW local offices must
conduct especially vigorous outreach in their service areas.
(c) ES office outreach responsibilities. Each ES office manager
must file with the SMA a monthly summary report of outreach efforts.
These reports must summarize information collected, pursuant to
paragraph (b)(8) of this section. The ES office manager and/or other
appropriate State office staff must assess the performance of outreach
workers by examining the overall quality and productivity of their
work, including the services provided and the methods and tools used to
offer services. Performance must not be judged solely by the number of
contacts made by the outreach worker. The monthly reports and daily
outreach logs must be made available to the SMA and Federal on-site
review teams.
(d) State Agricultural Outreach Plan (AOP). (1) Each SWA must
develop an AOP every 4 years as part of the Unified or Combined State
Plans required under sec. 102 or 103 of WIOA.
(2) The AOP must:
(i) Provide an assessment of the unique needs of MSFWs in the area
based on past and projected agricultural and MSFW activity in the
State;
(ii) Provide an assessment of available resources for outreach;
(iii) Describe the SWA's proposed outreach activities including
strategies on how to contact MSFWs who are not being reached by the
normal intake activities conducted by the one-stop center;
(iv) Describe the activities planned for providing the full range
of employment and training services to the agricultural community,
including both MSFWs and agricultural employers, through the one-stop
centers; and
(v) Provide an assurance that the SWA is complying with the
requirements under Sec. 653.111 if the State has significant MSFW one-
stop centers.
(3) In developing the AOP, the SWA must solicit information and
suggestions from WIOA sec. 167 National Farmworker Jobs Program (NFJP)
grantees, other appropriate MSFW groups, public agencies, agricultural
employer organizations, and other interested organizations. In
addition, at least 45 calendar days before submitting its final AOP to
the Department, the SWA must provide the proposed AOP to NFJP grantees,
public agencies, agricultural employer organizations, and other
organizations expressing an interest and allow at least 30 calendar
days for review and comment. The SWA must:
(i) Consider any comments received in formulating its final
proposed AOP.
(ii) Inform all commenting parties in writing whether their
comments have been incorporated and, if not, the reasons therefore.
(iii) Transmit the comments and recommendations received and its
responses to the Department with the submission of the AOP. (If the
comments are received after the submission of the AOP, they may be sent
separately to the Department.)
(4) The AOP must be submitted in accordance with paragraph (d) of
this
[[Page 56344]]
section and planning guidance issued by the Department.
(5) The Annual Summaries required at Sec. 653.108(s) must update
the Department on the SWA's progress toward meetings its goals set
forth in the AOP.
Sec. 653.108 State Workforce Agency and State Monitor Advocate
responsibilities.
(a) State Administrators must ensure their SWAs monitor their own
compliance with ES regulations in serving MSFWs on an ongoing basis.
The State Administrator has overall responsibility for SWA self-
monitoring.
(b) The State Administrator must appoint a State Monitor Advocate.
The State Administrator must inform farmworker organizations and other
organizations with expertise concerning MSFWs of the opening and
encourage them to refer qualified applicants to apply through the State
merit system prior to appointing a State Monitor Advocate. Among
qualified candidates determined through State merit system procedures,
the SWAs must seek persons:
(1) Who are from MSFW backgrounds; or
(2) Who speak Spanish or other languages of a significant
proportion of the State MSFW population; or
(3) Who have substantial work experience in farmworker activities.
(c) The SMA must have direct, personal access, when necessary, to
the State Administrator. The SMA must have status and compensation as
approved by the civil service classification system and be comparable
to other State positions assigned similar levels of tasks, complexity,
and responsibility.
(d) The SMA must be assigned staff necessary to fulfill effectively
all of the duties set forth in this subpart. The number of staff
positions must be determined by reference to the number of MSFWs in the
State, as measured at the time of the peak MSFW population, and the
need for monitoring activity in the State. The SMA must devote full-
time to Monitor Advocate functions. Any State that proposes less than
full-time dedication must demonstrate to its Regional Administrator
that the SMA function can be effectively performed with part-time
staffing.
(e) All SMAs and their staff must attend, within the first 3 months
of their tenure, a training session conducted by the Regional Monitor
Advocate. They also must attend whatever additional training sessions
are required by the Regional or National Monitor Advocate.
(f) The SMA must provide any relevant documentation requested from
the SWA by the Regional Monitor Advocate or the National Monitor
Advocate.
(g) The SMA must:
(1) Conduct an ongoing review of the delivery of services and
protections afforded by the ES regulations to MSFWs by the SWA and ES
offices (including progress made in achieving affirmative action
staffing goals). The SMA, without delay, must advise the SWA and local
offices of problems, deficiencies, or improper practices in the
delivery of services and protections afforded by these regulations and
may request a corrective action plan to address these deficiencies. The
SMA must advise the SWA on means to improve the delivery of services.
(2) Participate in on-site reviews on a regular basis, using the
following procedures:
(i) Before beginning an onsite review, the SMA or review staff must
study:
(A) Program performance data;
(B) Reports of previous reviews;
(C) Corrective action plans developed as a result of previous
reviews;
(D) Complaint logs; and
(E) Complaints elevated from the office or concerning the office.
(ii) Ensure that the onsite review format, developed by ETA, is
used as a guideline for onsite reviews.
(iii) Upon completion of an onsite monitoring review, the SMA must
hold one or more wrap-up sessions with the ES office manager and staff
to discuss any findings and offer initial recommendations and
appropriate technical assistance.
(iv) After each review the SMA must conduct an in-depth analysis of
the review data. The conclusions and recommendations of the SMA must be
put in writing and must be sent to the State Administrator, to the
official of the SWA with authority over the ES office, and other
appropriate SWA officials.
(v) If the review results in any findings of noncompliance with the
regulations under this chapter, the ES office manager must develop and
propose a written corrective action plan. The plan must be approved or
revised by appropriate superior officials and the SMA. The plan must
include actions required to correct or to take major steps to correct
any compliance issues within 30 business days, and if the plan allows
for more than 30 business days for full compliance, the length of, and
the reasons for, the extended period must be specifically stated. SWAs
are responsible for assuring and documenting that the ES office is in
compliance within the time period designated in the plan.
(vi) SWAs must submit to the appropriate ETA regional office copies
of the onsite review reports and corrective action plans for ES
offices.
(vii) The SMA may recommend that the review described in paragraph
(g)(2) of this section be delegated to a responsible, professional
member of the administrative staff of the SWA, if and when the State
Administrator finds such delegation necessary. In such event, the SMA
is responsible for and must approve the written report of the review.
(3) Ensure all significant MSFW one-stop centers not reviewed
onsite by Federal staff, are reviewed at least once per year by State
staff, and that, if necessary, those ES offices in which significant
problems are revealed by required reports, management information, the
Complaint System, or other means are reviewed as soon as possible.
(4) Review and approve the SWA's Agricultural Outreach Plan (AOP).
(5) On a random basis, review outreach workers' daily logs and
other reports including those showing or reflecting the workers'
activities.
(6) Write and submit annual summaries to the State Administrator
with a copy to the Regional Administrator as described in paragraph (s)
of this section.
(h) The SMA must participate in Federal reviews conducted pursuant
to part 658, subpart G, of this chapter.
(i) At the discretion of the State Administrator, the SMA may be
assigned the responsibility as the Complaint Specialist. The SMA must
participate in and monitor the performance of the Complaint System, as
set forth at Sec. Sec. 658.400 and 658.401 of this chapter. The SMA
must review the ES office's informal resolution of complaints relating
to MSFWs and must ensure that the ES office manager transmits copies of
the Complaint System logs pursuant to part 658, subpart E, of this
chapter to the SWA.
(j) The SMA must serve as an advocate to improve services for
MSFWs.
(k) The SMA must establish an ongoing liaison with WIOA sec. 167
National Farmworker Jobs Program (NFJP) grantees and other
organizations serving farmworkers, employers, and employer
organizations in the State.
(l) The SMA must meet (either in person or by alternative means),
at minimum, quarterly, with representatives of the organizations
pursuant to paragraph (k) of this section, to receive complaints,
assist in referrals of alleged violations to enforcement agencies,
receive input on improving coordination with ES offices or
[[Page 56345]]
improving the coordination of services to MSFWs. To foster such
collaboration, the SMAs must establish Memorandums of Understanding
(MOUs) with the NFJP grantees and may establish MOUs with other
organizations serving farm workers as appropriate.
(m) The SMA must conduct frequent field visits to the working,
living, and gathering areas of MSFWs, and must discuss employment
services and other employment-related programs with MSFWs, crew
leaders, and employers. Records must be kept of each such field visit.
(n) The SMA must participate in the appropriate regional public
meeting(s) held by the Department of Labor Regional Farm Labor
Coordinated Enforcement Committee, other Occupational Safety and Health
Administration and Wage and Hour Division task forces, and other
committees as appropriate.
(o) The SMA must ensure that outreach efforts in all significant
MSFW ES offices are reviewed at least yearly. This review will include
accompanying at least one outreach worker from each significant MSFW ES
office on field visits to MSFWs' working, living, and/or gathering
areas. The SMA must review findings from these reviews with the ES
office managers.
(p) The SMA must review on at least a quarterly basis all
statistical and other MSFW-related data reported by ES offices in
order:
(1) To determine the extent to which the SWA has complied with the
ES regulations; and
(2) To identify the areas of non-compliance.
(q) The SMA must have full access to all statistical and other
MSFW-related information gathered by SWAs and ES offices, and may
interview SWA and ES office staff with respect to reporting methods.
Subsequent to each review, the SMA must consult, as necessary, with the
SWA and ES offices and provide technical assistance to ensure accurate
reporting.
(r) The SMA must review and comment on proposed State ES
directives, manuals, and operating instructions relating to MSFWs and
must ensure:
(1) That they accurately reflect the requirements of the
regulations; and
(2) That they are clear and workable. The SMA also must explain and
make available at the requestor's cost, pertinent directives and
procedures to employers, employer organizations, farmworkers,
farmworker organizations, and other parties expressing an interest in a
readily identifiable directive or procedure issued and receive
suggestions on how these documents can be improved.
(s) The SMA must prepare for the State Administrator, the Regional
Monitor Advocate, and the National Monitor Advocate an Annual Summary
describing how the State provided employment services to MSFWs within
the State based on statistical data, reviews, and other activities as
required in this chapter. The summary must include:
(1) A description of the activities undertaken during the program
year by the SMA pertaining to his/her responsibilities set forth in
this section and other applicable regulations in this chapter.
(2) An assurance that the SMA has direct, personal access, whenever
he/she finds it necessary, to the State Administrator and that the SMA
has status and compensation approved by the civil service
classification system, and is comparable to other State positions
assigned similar levels of tasks, complexity, and responsibility.
(3) An assurance the SMA devotes all of his/her time to monitor
advocate functions. Or, if the SWA proposed the SMA conducts his/her
functions on a part-time basis, an explanation of how the SMA functions
are effectively performed with part-time staffing.
(4) A summary of the monitoring reviews conducted by the SMA,
including:
(i) A description of any problems, deficiencies, or improper
practices the SMA identified in the delivery of services;
(ii) A summary of the actions taken by the SWA to resolve the
problems, deficiencies, or improper practices described in its service
delivery; and
(iii) A summary of any technical assistance the SMA provided for
the SWA and the ES offices.
(5) A summary of the outreach efforts undertaken by all significant
and non-significant MSFW ES offices.
(6) A summary of the State's actions taken under the Complaint
System described in part 658, subpart E, of this chapter, identifying
any challenges, complaint trends, findings from reviews of the
Complaint System, trainings offered throughout the year, and steps
taken to inform MSFWs and employers, and farmworker advocacy groups
about the Complaint System.
(7) A summary of how the SMA is working with WIOA sec. 167 NFJP
grantees and other organizations serving farmworkers, employers and
employer organizations, in the State, and an assurance that the SMA is
meeting at least quarterly with representatives of these organizations.
(8) A summary of the statistical and other MSFW-related data and
reports gathered by SWAs and ES offices for the year, including an
overview of the SMA's involvement in the SWA's reporting systems.
(9) A summary of the training conducted for SWA personnel,
including ES office personnel, on techniques for accurately reporting
data.
(10) A summary of activities related to the AOP and an explanation
of how those activities helped the State reach the goals and objectives
described in the AOP. At the end of the 4-year AOP cycle, the summary
must include a synopsis of the SWA's achievements over the previous 4
years to accomplish the goals set forth in the AOP, and a description
of the goals which were not achieved and the steps the SWA will take to
address those deficiencies.
(11) For significant MSFW ES offices, a summary of the functioning
of the State's affirmative action staffing program under Sec. 653.111.
Sec. 653.109 Data collection and performance accountability measures.
SWAs must:
(a) Collect career service indicator data for the career services
specified in WIOA sec. 134(c)(2)(A)(xii).
(b) Collect data, in accordance with applicable ETA Reports and
Guidance, on:
(1) The number of MSFWs contacted through outreach activities;
(2) The number of MSFWs and non-MSFWs registered for career
services;
(3) The number of MSFWs referred to and placed in agricultural
jobs;
(4) The number of MSFWs referred to and placed in non-agricultural
jobs;
(5) The percentage of MSFW program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(6) The median earnings of MSFW program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(7) The percentage of MSFW program participants who are in
unsubsidized employment during the fourth quarter after exit from the
program;
(8) The number of MSFWs served who identified themselves as male,
female, Hispanic or Latino, Black or African-American, American Indian
or Alaska Native, Asian, Native Hawaiian or Pacific Islander, or White;
(9) Agricultural clearance orders (including field checks), MSFW
complaints and apparent violations, and monitoring activities; and
(10) Any other data required by the Department.
[[Page 56346]]
(c) Provide necessary training to SWA personnel, including ES
office personnel, on techniques for accurately reporting data.
(d) Collect and submit data on MSFWs required by the Unified or
Combined State Plan, as directed by the Department.
(e) Periodically verify data required to be collected under this
section, take necessary steps to ensure its validity, and submit the
data for verification to the Department, as directed by the Department.
(f) Submit additional reports to the Department as directed.
(g) Meet equity indicators that address ES controllable services
and include, at a minimum, individuals referred to a job, receiving job
development, and referred to supportive or career services.
(h) Meet minimum levels of service in significant MSFW States. That
is, only significant MSFW SWAs will be required to meet minimum levels
of service to MSFWs. Minimum level of service indicators must include,
at a minimum, individuals placed in a job, individuals placed long-term
(150 days or more) in a non-agricultural job, a review of significant
MSFW ES offices, field checks conducted, outreach contacts per week,
and processing of complaints. The determination of the minimum service
levels required of significant MSFW States for each year must be based
on the following:
(1) Past SWA performance in serving MSFWs, as reflected in on-site
reviews and data collected under paragraph (b) of this section.
(2) The need for services to MSFWs in the upcoming year, comparing
prior and projected levels of MSFW activity.
Sec. 653.110 Disclosure of data.
(a) SWAs must disclose to the public, on written request, in
conformance with applicable State and Federal law, the data collected
by SWAs and ES offices pursuant to Sec. 653.109, if possible within 10
business days after receipt of the request.
(b) If a request for data held by a SWA is made to the ETA national
or regional office, the ETA must forward the request to the SWA for
response.
(c) If the SWA cannot supply the requested data within 10 business
days after receipt of the request, the SWA must respond to the
requestor in writing, giving the reason for the delay and specifying
the date by which it expects to be able to comply.
(d) SWA intra-agency memoranda and reports (or parts thereof) and
memoranda and reports (or parts thereof) between the SWA and the ETA,
to the extent that they contain statements of opinion rather than
facts, may be withheld from public disclosure provided the reason for
withholding is given to the requestor in writing. Similarly, documents
or parts thereof, which, if disclosed, would constitute an unwarranted
invasion of personal or employer privacy, also may be withheld provided
the reason is given to the requestor in writing.
Sec. 653.111 State Workforce Agency staffing requirements.
(a) The SWA must implement and maintain an affirmative action
program for staffing in significant MSFW one-stop centers, and must
employ ES staff in a manner facilitating the delivery of employment
services tailored to the special needs of MSFWs, including:
(1) The positioning of multilingual staff in offices serving a
significant number of Spanish-speaking or ELL participants; and
(2) The hiring of staff members from the MSFW community or members
of community-based migrant programs.
(b) The SWA must hire sufficient numbers of qualified, permanent
minority staff in significant MSFW ES offices. SWAs will determine
whether a ``sufficient number'' of staff have been hired by conducting
a comparison between the characteristics of the staff and the workforce
and determining if the composition of the local office staff(s) is
representative of the racial and ethnic characteristics of the
workforce in the ES office service area(s). SWAs with significant MSFW
ES offices, must undertake special efforts to recruit MSFWs and persons
from MSFW backgrounds for its staff.
(1) Where qualified minority applicants are not available to be
hired as permanent staff, qualified minority part-time, provisional, or
temporary staff must be hired in accordance with State merit system
procedures, where applicable.
(2) If an ES office does not have a sufficient number of qualified
minority staff, the SWA must establish a goal to achieve sufficient
staffing at the ES office. The SWA also must establish a reasonable
timetable for achieving the staffing goal by hiring or promoting
available, qualified staff in the under-represented categories. In
establishing timetables, the SWA must consider the vacancies
anticipated through expansion, contraction, and turnover in the
office(s) and available funds. All affirmative action programs must
establish timetables that are designed to achieve the staffing goal no
later than 1year after the submission of the Unified or Combined State
Plan or Annual Summary, whichever is sooner. Once such goals have been
achieved, the SWA must submit a State Plan modification request to the
Department with the assurance that the requirements of paragraph (b) of
this section have been achieved.
(3) The SMA, Regional Monitor Advocate, or the National Monitor
Advocate, as part of his/her regular reviews of SWA compliance with
these regulations, must monitor the extent to which the SWA has
complied with its affirmative action program.
Subparts C-E--[Reserved]
Subpart F--Agricultural Recruitment System for U.S. Workers (ARS)
Sec. 653.500 Purpose and scope of subpart.
This subpart includes the requirements for the acceptance of
intrastate and interstate job clearance orders which seek U.S. workers
to perform farmwork on a temporary, less than year-round basis. Orders
seeking workers to perform farmwork on a year-round basis are not
subject to the requirements of this subpart. This subpart affects all
job orders for workers who are recruited through the ES intrastate and
interstate clearance systems for less than year-round farmwork,
including both MSFWs and non-MSFW job seekers.
Sec. 653.501 Requirements for processing clearance orders.
(a) Assessment of need. No ES office or SWA may place a job order
seeking workers to perform farmwork into intrastate or interstate
clearance unless:
(1) The ES office and employer have attempted and have not been
able to obtain sufficient workers within the local labor market area;
or
(2) The ES office anticipates a shortage of local workers.
(b) ES office responsibilities. (1) Each ES office must ensure the
agricultural clearance form prescribed by the Department (ETA Form 790
or its subsequently issued form), and its attachments are complete when
placing intrastate or interstate clearance orders seeking workers.
(2) All clearance orders must be posted in accordance with
applicable ETA guidance. If the job order for the ES office
incorporates offices beyond the local office commuting area, the ES
office must suppress the employer information in order to facilitate
the orderly movement of workers within the ES.
(3) ES staff must determine, through a preoccupancy housing
inspection performed by ES staff or an appropriate public agency, that
the housing assured
[[Page 56347]]
by the employer is either available and meets the applicable housing
standards or has been approved for conditional access to the clearance
system as set forth in Sec. 653.502; except that mobile range housing
for sheepherders and goatherders must meet existing Departmental
guidelines and/or applicable regulations.
(c) SWA responsibilities. (1) SWAs must ensure intrastate and
interstate clearance orders:
(i) Include the following language: ``In view of the statutorily
established basic function of the ES as a no-fee labor exchange, that
is, as a forum for bringing together employers and job seekers, neither
the ETA nor the SWAs are guarantors of the accuracy or truthfulness of
information contained on job orders submitted by employers. Nor does
any job order accepted or recruited upon by the ES constitute a
contractual job offer to which the ETA or a SWA is in any way a
party;''
(ii) Do not contain an unlawful discriminatory specification
including, for beneficiaries (as defined in 29 CFR 38.4) only, on the
basis of citizenship status or participant status;
(iii) Are signed by the employer; and
(iv) State all the material terms and conditions of the employment,
including:
(A) The crop;
(B) The nature of the work;
(C) The anticipated period and hours of employment;
(D) The anticipated starting and ending date of employment and the
anticipated number of days and hours per week for which work will be
available;
(E) The hourly wage rate or the piece rate estimated in hourly wage
rate equivalents for each activity and unit size;
(F) Any deductions to be made from wages;
(G) A specification of any non-monetary benefits to be provided by
the employer;
(H) Any hours, days, or weeks for which work is guaranteed, and,
for each guaranteed week of work except as provided in paragraph
(c)(3)(i) of this section, the exclusive manner in which the guarantee
may be abated due to weather conditions or other acts of God beyond the
employer's control; and
(I) Any bonus or work incentive payments or other expenses which
will be paid by the employer in addition to the basic wage rate,
including the anticipated time period(s) within which such payments
will be made.
(2) SWAs must ensure:
(i) The wages and working conditions offered are not less than the
prevailing wages and working conditions among similarly employed
farmworkers in the area of intended employment or the applicable
Federal or State minimum wage, whichever is higher. If the wages
offered are expressed as piece rates or as base rates and bonuses, the
employer must make the method of calculating the wage and supporting
materials available to ES staff who must check if the employer's
calculation of the estimated hourly wage rate is reasonably accurate
and is not less than the prevailing wage rate or applicable Federal or
State minimum wage, whichever is higher; and
(ii) The employer has agreed to provide or pay for the
transportation of the workers and their families at or before the end
of the period of employment specified in the job order on at least the
same terms as transportation is commonly provided by employers in the
area of intended employment to farmworkers and their families recruited
from the same area of supply. Under no circumstances may the payment or
provision of transportation occur later than the departure time needed
to return home to begin the school year, in the case of any worker with
children 18 years old or younger, or be conditioned on the farmworker
performing work after the period of employment specified in the job
order.
(3) SWAs must ensure the clearance order includes the following
assurances:
(i) The employer will provide to workers referred through the
clearance system the number of hours of work cited in paragraph
(c)(1)(iv)(D) of this section for the week beginning with the
anticipated date of need, unless the employer has amended the date of
need at least 10 business days prior to the original date of need
(pursuant to paragraph (c)(3)(iv) of this section) by so notifying the
order-holding office in writing (email notification may be acceptable).
The SWA must make a record of this notification and must attempt to
inform referred workers of the change expeditiously.
(ii) No extension of employment beyond the period of employment
specified in the clearance order may relieve the employer from paying
the wages already earned, or if specified in the clearance order as a
term of employment, providing transportation or paying transportation
expenses to the worker's home.
(iii) The working conditions comply with applicable Federal and
State minimum wage, child labor, social security, health and safety,
farm labor contractor registration and other employment-related laws.
(iv) The employer will expeditiously notify the order-holding
office or SWA by emailing and telephoning immediately upon learning
that a crop is maturing earlier or later, or that weather conditions,
over-recruitment or other factors have changed the terms and conditions
of employment.
(v) The employer, if acting as a farm labor contractor (``FLC'') or
farm labor contractor employee (``FLCE'') on the order, has a valid
Federal FLC certificate or Federal FLCE identification card and when
appropriate, any required State farm labor contractor certificate.
(vi) The availability of no cost or public housing which meets the
Federal standards and which is sufficient to house the specified number
of workers requested through the clearance system. This assurance must
cover the availability of housing for only those workers, and when
applicable, family members who are not reasonably able to return to
their residence in the same day.
(vii) Outreach workers must have reasonable access to the workers
in the conduct of outreach activities pursuant to Sec. 653.107.
(viii) The job order contains all the material terms and conditions
of the job. The employer must assure this by signing the following
statement in the clearance order: ``This clearance order describes the
actual terms and conditions of the employment being offered by me and
contains all the material terms and conditions of the job.''
(4) If a SWA discovers that an employer's clearance order contains
a material misrepresentation, the SWA may initiate the Discontinuation
of Services as set forth in part 658, subpart F of this chapter.
(5) If there is a change to the anticipated date of need and the
employer fails to notify the order-holding office at least 10 business
days prior to the original date of need the employer must pay eligible
(pursuant to paragraph (d)(4) of this section) workers referred through
the clearance system the specified hourly rate of pay, or if the pay is
piece-rate, the higher of the Federal or State minimum wage for the
first week starting with the originally anticipated date of need or
provide alternative work if such alternative work is stated on the
clearance order. If an employer fails to comply under this section the
order holding office may notify the Department's Wage and Hour Division
for possible enforcement.
(d) Processing clearance orders. (1) The order-holding office must
transmit an electronic copy of the approved clearance order to its SWA.
The SWA
[[Page 56348]]
must distribute additional electronic copies of the form with all
attachments (except that the SWA may, at its discretion, delegate this
distribution to the local office) as follows:
(i) At least one copy of the clearance order must be sent to each
of the SWAs selected for recruitment (areas of supply);
(ii) At least one copy of the clearance order must be sent to each
applicant-holding ETA regional office;
(iii) At least one copy of the clearance order must be sent to the
order-holding ETA regional office; and
(iv) At least one copy of the clearance order must be sent to the
Regional Farm Labor Coordinated Enforcement Committee and/or other
Occupational Safety and Health Administration and Wage and Hour
Division regional agricultural coordinators, and/or other committees as
appropriate in the area of employment.
(2) The ES office may place an intrastate or interstate order
seeking workers to perform farmwork for a specific farm labor
contractor or for a worker preferred by an employer provided the order
meets ES nondiscrimination criteria. The order would not meet such
criteria, for example, if it requested a ``white male crew leader'' or
``any white male crew leader.''
(3) The approval process described in paragraph (d)(3) of this
section does not apply to clearance orders that are attached to
applications for foreign temporary agricultural workers pursuant to
part 655, subpart B, of this chapter; such clearance orders must be
sent to the processing center as directed by ETA in guidance. For non-
criteria clearance orders (orders that are not attached to applications
under part 655, subpart B, of this chapter), the ETA regional office
must review and approve the order within 10 business days of its
receipt of the order, and the Regional Administrator or his/her
designee must approve the areas of supply to which the order will be
extended. Any denial by the Regional Administrator or his/her designee
must be in writing and state the reasons for the denial.
(4) The applicant holding office must notify all referred
farmworkers, farm labor contractors on behalf of farmworkers, or family
heads on behalf of farmworker family members, to contact an ES office,
preferably the order-holding office, to verify the date of need cited
in the clearance order between 9 and 5 business days prior to the
original date of need cited in the clearance order; and that failure to
do so will disqualify the referred farmworker from the first weeks' pay
as described in paragraph (c)(3)(i) of this section. The SWA must make
a record of this notification.
(5) If the worker referred through the clearance system contacts an
ES office (in any State) other than the order holding office, that ES
office must assist the referred worker in contacting the order holding
office on a timely basis. Such assistance must include, if necessary,
contacting the order holding office by telephone or other timely means
on behalf of the worker referred through the clearance system.
(6) ES office staff must assist all farmworkers, upon request in
their native language, to understand the terms and conditions of
employment set forth in intrastate and interstate clearance orders and
must provide such workers with checklists in their native language
showing wage payment schedules, working conditions, and other material
specifications of the clearance order.
(7) If an order holding office learns that a crop is maturing
earlier than expected or that other material factors, including weather
conditions and recruitment levels have changed since the date the
clearance order was accepted, the SWA must contact immediately the
applicant holding office which must inform immediately crews and
families scheduled to report to the job site of the changed
circumstances and must adjust arrangements on behalf of such crews and
families.
(8) When there is a delay in the date of need, SWAs must document
notifications by employers and contacts by individual farmworkers or
crew leaders on behalf of farmworkers or family heads on behalf of
farmworker family members to verify the date of need.
(9) If weather conditions, over-recruitment, or other conditions
have eliminated the scheduled job opportunities, the SWAs involved must
make every effort to place the workers in alternate job opportunities
as soon as possible, especially if the worker(s) is/(are) already en-
route or at the job site. ES office staff must keep records of actions
under this section.
(10) Applicant-holding offices must provide workers referred on
clearance orders with a checklist summarizing wages, working conditions
and other material specifications in the clearance order. Such
checklists, where necessary, must be in the workers' native language.
The checklist must include language notifying the worker that a copy of
the original clearance order is available upon request. SWAs must use a
standard checklist format provided by the Department (such as in Form
WH516 or a successor form).
(11) The applicant-holding office must give each referred worker a
copy of the list of worker's rights described in the Department's ARS
Handbook.
(12) If the labor supply SWA accepts a clearance order, the SWA
must actively recruit workers for referral. In the event a potential
labor supply SWA rejects a clearance order, the reasons for rejection
must be documented and submitted to the Regional Administrator having
jurisdiction over the SWA. The Regional Administrator will examine the
reasons for rejection, and, if the Regional Administrator agrees, will
inform the Regional Administrator with jurisdiction over the order-
holding SWA of the rejection and the reasons. If the Regional
Administrator who receives the notification of rejection does not
concur with the reasons for rejection, that Regional Administrator will
inform the National Monitor Advocate, who, in consultation with the
appropriate ETA higher authority, will make a final determination on
the acceptance or rejection of the order.
Sec. 653.502 Conditional access to the Agricultural Recruitment
System.
(a) Filing requests for conditional access--(1) ``Noncriteria''
employers. Except as provided in paragraph (a)(2) of this section, an
employer whose housing does not meet applicable standards may file with
the ES office serving the area in which its housing is located, a
written request for its clearance orders to be conditionally allowed
into the intrastate or interstate clearance system, provided that the
employer's request assures its housing will be in full compliance with
the requirements of the applicable housing standards at least 20
calendar days (giving the specific date) before the housing is to be
occupied.
(2) ``Criteria'' employers. If the request for conditional access
described in paragraph (a)(1) of this section is from an employer
filing a clearance order pursuant to an application for temporary alien
agricultural labor certification for H-2A workers under subpart B of
part 655 of this chapter, the request must be filed with the Certifying
Officer (CO) at the processing center designated by ETA in guidance to
make determinations on applications for temporary employment
certification under the H-2A program.
(3) Assurance. The employer's request pursuant to paragraph (a)(1)
or (2) of this section must contain an assurance that the housing will
be in full compliance with the applicable housing standards at least 20
calendar days
[[Page 56349]]
(stating the specific date) before the housing is to be occupied.
(b) Processing requests--(1) SWA processing. Upon receipt of a
written request for conditional access to the intrastate or interstate
clearance system under paragraph (a)(1) of this section, the ES office
must send the request to the SWA, which, in turn, must forward it to
the Regional Administrator.
(2) Regional office processing and determination. Upon receipt of a
request for conditional access pursuant to paragraph (b)(1) of this
section, the Regional Administrator must review the matter and, as
appropriate, must either grant or deny the request.
(c) Authorization. The authorization for conditional access to the
intrastate or interstate clearance system must be in writing, and must
state that although the housing does not comply with the applicable
standards, the employer's job order may be placed into intrastate or
interstate clearance until a specified date. The Regional Administrator
must send the authorization to the employer and must send copies (hard
copy or electronic) to the appropriate SWA and ES office. The employer
must submit and the ES office must attach copies of the authorization
to each of the employer's clearance orders which is placed into
intrastate or interstate clearance.
(d) Notice of denial. If the Regional Administrator denies the
request for conditional access to the intrastate or interstate
clearance system he/she must provide written notice to the employer,
the appropriate SWA, and the ES office, stating the reasons for the
denial.
(e) Inspection. The ES office serving the area containing the
housing of any employer granted conditional access to the intrastate or
interstate clearance system must assure that the housing is inspected
no later than the date by which the employer has promised to have its
housing in compliance with the applicable housing standards. An
employer however, may request an earlier preliminary inspection. If, on
the date set forth in the authorization, the housing is not in full
compliance with the applicable housing standards as assured in the
request for conditional access, the ES office must afford the employer
5 calendar days to bring the housing into full compliance. After the 5-
calendar-day period, if the housing is not in full compliance with the
applicable housing standards as assured in the request for conditional
access, the ES office must immediately:
(1) Notify the RA or the NPC designated by the Regional
Administrator;
(2) Remove the employer's clearance orders from intrastate and
interstate clearance; and
(3) If workers have been recruited against these orders, in
cooperation with the ES agencies in other States, make every reasonable
attempt to locate and notify the appropriate crew leaders or workers,
and to find alternative and comparable employment for the workers.
Sec. 653.503 Field checks.
(a) If a worker is placed on a clearance order, the SWA must notify
the employer in writing that the SWA, through its ES offices, and/or
Federal staff, must conduct random, unannounced field checks to
determine and document whether wages, hours, and working and housing
conditions are being provided as specified in the clearance order.
(b) Where the SWA has made placements on 10 or more agricultural
clearance orders (pursuant to this subpart) during the quarter, the SWA
must conduct field checks on at least 25 percent of the total of such
orders. Where the SWA has made placements on nine or fewer job orders
during the quarter (but at least one job order), the SWA must conduct
field checks on 100 percent of all such orders. This requirement must
be met on a quarterly basis.
(c) Field checks must include visit(s) to the worksite at a time
when workers are present. When conducting field checks, ES staff must
consult both the employees and the employer to ensure compliance with
the full terms and conditions of employment.
(d) If SWA or Federal personnel observe or receive information, or
otherwise have reason to believe that conditions are not as stated in
the clearance order or that an employer is violating an employment-
related law, the SWA must document the finding and attempt informal
resolution where appropriate (for example, informal resolution must not
be attempted in certain cases, such as E.O. related issues and others
identified by the Department through guidance.) If the matter has not
been resolved within 5 business days, the SWA must initiate the
Discontinuation of Services as set forth at part 658, subpart F, of
this chapter and must refer apparent violations of employment-related
laws to appropriate enforcement agencies in writing.
(e) SWAs may enter into formal or informal arrangements with
appropriate State and Federal enforcement agencies where the
enforcement agency staff may conduct field checks instead of and on
behalf of SWA personnel. The agreement may include the sharing of
information and any actions taken regarding violations of the terms and
conditions of the employment as stated in the clearance order and any
other violations of employment-related laws. An enforcement agency
field check must satisfy the requirement for SWA field checks where all
aspects of wages, hours, working and housing conditions have been
reviewed by the enforcement agency. The SWA must supplement enforcement
agency efforts with field checks focusing on areas not addressed by
enforcement agencies.
(f) ES staff must keep records of all field checks.
PART 654--SPECIAL RESPONSIBILITIES OF THE EMPLOYMENT SERVICE SYSTEM
0
8. Revise the authority citation for part 654 to read as follows:
Authority: 29 U.S.C. 49k; 8 U.S.C. 1188(c)(4); 41 Op.A.G. 406
(1959).
0
9. Revise subpart E of part 654 to read as follows:
Subpart E--Housing for Farmworkers
Purpose and Applicability
Sec.
654.400 Scope and purpose.
654.401 Applicability.
654.402 Variances.
654.403 [Reserved]
Housing Standards
Sec.
654.404 Housing site.
654.405 Water supply.
654.406 Excreta and liquid waste disposal.
654.407 Housing.
654.408 Screening.
654.409 Heating.
654.410 Electricity and lighting.
654.411 Toilets.
654.412 Bathing, laundry, and hand washing.
654.413 Cooking and eating facilities.
654.414 Garbage and other refuse.
654.415 Insect and rodent control.
654.416 Sleeping facilities.
654.417 Fire, safety, and first aid.
Subpart E--Housing for Farmworkers
Purpose and Applicability
Sec. 654.400 Scope and purpose.
(a) This subpart sets forth the Department's Employment and
Training Administration (ETA) standards for agricultural housing and
variances. Local Wagner-Peyser Act Employment Service (ES) offices, as
part of the State ES agencies and in cooperation with the ES program,
assist employers in recruiting farmworkers from places outside the area
of intended employment. The experiences of the ES agencies indicate
that employees so
[[Page 56350]]
referred have on many occasions been provided with inadequate, unsafe,
and unsanitary housing conditions. To discourage this practice, it is
the policy of the Federal-State ES system to deny its intrastate and
interstate recruitment services to employers until the State ES agency
has ascertained that the employer's housing meets certain standards.
(b) To implement this policy, Sec. 653.501 of this chapter
provides that recruitment services must be denied unless the employer
has signed an assurance that if the workers are to be housed, a
preoccupancy inspection has been conducted, and the ES staff has
ascertained that, with respect to intrastate or interstate clearance
orders, the employer's housing meets the full set of standards set
forth at 29 CFR 1910.142 or this subpart, except that mobile range
housing for sheepherders or goatherders must meet existing Departmental
guidelines and/or applicable regulations.
Sec. 654.401 Applicability.
(a) Employers whose housing was completed or under construction
prior to April 3, 1980, or was under a signed contract for construction
prior to March 4, 1980, may continue to follow the full set of the
Department's ETA standards set forth in this subpart.
(b) The Department will consider agricultural housing which
complies with ETA transitional standards set forth in this subpart also
to comply with the Occupational Safety and Health Administration (OSHA)
temporary labor camp standards at 29 CFR 1910.142.
Sec. 654.402 Variances.
(a) An employer may apply for a structural variance from a specific
standard(s) in this subpart by filing a written application for such a
variance with the local ES office serving the area in which the housing
is located. This application must:
(1) Clearly specify the standard(s) from which the variance is
desired;
(2) Adequately justify that the variance is necessary to obtain a
beneficial use of an existing facility, and to prevent a practical
difficulty or unnecessary hardship; and
(3) Clearly set forth the specific alternative measures which the
employer has taken to protect the health and safety of workers and
adequately show that such alternative measures have achieved the same
result as the standard(s) from which the employer desires the variance.
(b) Upon receipt of a written request for a variance under
paragraph (a) of this section, the local ES office must send the
request to the State office which, in turn, must forward it to the ETA
Regional Administrator (RA). The RA must review the matter and, after
consultation with OSHA, must either grant or deny the request for a
variance.
(c) The variance granted by the RA must be in writing, must state
the particular standard(s) involved, and must state as conditions of
the variance the specific alternative measures which have been taken to
protect the health and safety of the workers. The RA must send the
approved variance to the employer and must send copies to OSHA's
Regional Administrator, the Regional Administrator of the Wage and Hour
Division (WHD), and the appropriate State Workforce Agency (SWA) and
the local ES office. The employer must submit and the local ES office
must attach copies of the approved variance to each of the employer's
job orders which is placed into intrastate or interstate clearance.
(d) If the RA denies the request for a variance, the RA must
provide written notice stating the reasons for the denial to the
employer, the appropriate SWA, and the local ES office. The notice also
must offer the employer an opportunity to request a hearing before a
Department of Labor Hearing Officer, provided the employer requests
such a hearing from the RA within 30 calendar days of the date of the
notice. The request for a hearing must be handled in accordance with
the complaint procedures set forth at Sec. Sec. 658.424 and 658.425 of
this chapter.
(e) The procedures of paragraphs (a) through (d) of this section
only apply to an employer who has chosen, as evidenced by its written
request for a variance, to comply with the ETA housing standards at
Sec. Sec. 654.404 through 654.417.
Sec. 654.403 [Reserved]
Housing Standards
Sec. 654.404 Housing site.
(a) Housing sites must be well drained and free from depressions in
which water may stagnate. They must be located where the disposal of
sewage is provided in a manner which neither creates nor is likely to
create a nuisance, or a hazard to health.
(b) Housing must not be subject to, or in proximity to, conditions
that create or are likely to create offensive odors, flies, noise,
traffic, or any similar hazards.
(c) Grounds within the housing site must be free from debris,
noxious plants (poison ivy, etc.) and uncontrolled weeds or brush.
(d) The housing site must provide a space for recreation reasonably
related to the size of the facility and the type of occupancy.
Sec. 654.405 Water supply.
(a) An adequate and convenient supply of water that meets the
standards of the State health authority must be provided.
(b) A cold water tap must be available within 100 feet of each
individual living unit when water is not provided in the unit. Adequate
drainage facilities must be provided for overflow and spillage.
(c) Common drinking cups are not permitted.
Sec. 654.406 Excreta and liquid waste disposal.
(a) Facilities must be provided and maintained for effective
disposal of excreta and liquid waste. Raw or treated liquid waste may
not be discharged or allowed to accumulate on the ground surface.
(b) Where public sewer systems are available, all facilities for
disposal of excreta and liquid wastes must be connected thereto.
(c) Where public sewers are not available, a subsurface septic
tank-seepage system or other type of liquid waste treatment and
disposal system, privies or portable toilets must be provided. Any
requirements of the State health authority must be complied with.
Sec. 654.407 Housing.
(a) Housing must be structurally sound, in good repair, in a
sanitary condition and must provide protection to the occupants against
the elements.
(b) Housing must have flooring constructed of rigid materials,
smooth finished, readily cleanable, and so located as to prevent the
entrance of ground and surface water.
(c) The following space requirements must be provided:
(1) For sleeping purposes only in family units and in dormitory
accommodations using single beds, not less than 50 square feet of floor
space per occupant;
(2) For sleeping purposes in dormitory accommodations using double
bunk beds only, not less than 40 square feet per occupant; and
(3) For combined cooking, eating, and sleeping purposes not less
than 60 square feet of floor space per occupant.
(d) Housing used for families with one or more children over 6
years of age must have a room or partitioned sleeping area for the
husband and wife. The partition must be of rigid materials and
installed so as to provide reasonable privacy.
(e) Separate sleeping accommodations must be provided for each sex
or each family.
[[Page 56351]]
(f) Adequate and separate arrangements for hanging clothing and
storing personal effects for each person or family must be provided.
(g) At least one-half of the floor area in each living unit must
have a minimum ceiling height of 7 feet. No floor space may be counted
toward minimum requirements where the ceiling height is less than 5
feet.
(h) Each habitable room (not including partitioned areas) must have
at least one window or skylight opening directly to the out-of-doors.
The minimum total window or skylight area, including windows in doors,
must equal at least 10 percent of the usable floor area. The total
openable area must equal at least 45 percent of the minimum window or
skylight area required, except where comparably adequate ventilation is
supplied by mechanical or some other method.
Sec. 654.408 Screening.
(a) All outside openings must be protected with screening of not
less than 16 mesh.
(b) All screen doors must be tight fitting, in good repair, and
equipped with self-closing devices.
Sec. 654.409 Heating.
(a) All living quarters and service rooms must be provided with
properly installed, operable heating equipment capable of maintaining a
temperature of at least 68 degrees Fahrenheit ([deg]F) if during the
period of normal occupancy the temperature in such quarters falls below
68 [deg]F.
(b) Any stoves or other sources of heat utilizing combustible fuel
must be installed and vented in such a manner as to prevent fire
hazards and a dangerous concentration of gases. No portable heaters
other than those operated by electricity may be provided. If a solid or
liquid fuel stove is used in a room with wooden or other combustible
flooring, there must be a concrete slab, insulated metal sheet, or
other fireproof material on the floor under each stove, extending at
least 18 inches beyond the perimeter of the base of the stove.
(c) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or a stovepipe must be of fireproof material. A vented metal
collar must be installed around a stovepipe, or vent passing through a
wall, ceiling, floor, or roof.
(d) When a heating system has automatic controls, the controls must
be of the type which cut off the fuel supply upon the failure or
interruption of the flame or ignition, or whenever a predetermined safe
temperature or pressure is exceeded.
Sec. 654.410 Electricity and lighting.
(a) All housing sites must be provided with electric service.
(b) Each habitable room and all common use rooms, and areas such
as: laundry rooms, toilets, privies, hallways, stairways, etc., must
contain adequate ceiling or wall-type light fixtures. At least one
wall-type electrical convenience outlet must be provided in each
individual living room.
(c) Adequate lighting must be provided for the yard area, and
pathways to common use facilities.
(d) All wiring and lighting fixtures must be installed and
maintained in a safe condition.
Sec. 654.411 Toilets.
(a) Toilets must be constructed, located, and maintained so as to
prevent any nuisance or public health hazard.
(b) Water closets or privy seats for each sex must be in the ratio
of not less than one such unit for each 15 occupants, with a minimum of
one unit for each sex in common use facilities.
(c) Urinals, constructed of nonabsorbent materials, may be
substituted for men's toilet seats on the basis of one urinal or 24
inches of trough-type urinal for one toilet seat up to a maximum of
one-third of the required toilet seats.
(d) Except in individual family units, separate toilet
accommodations for men and women must be provided. If toilet facilities
for men and women are in the same building, they must be separated by a
solid wall from floor to roof or ceiling. Toilets must be distinctly
marked ``men'' and ``women'' in English and in the native language of
the persons expected to occupy the housing.
(e) Where common use toilet facilities are provided, an adequate
and accessible supply of toilet tissue, with holders, must be
furnished.
(f) Common use toilets and privies must be well lighted and
ventilated and must be clean and sanitary.
(g) Toilet facilities must be located within 200 feet of each
living unit.
(h) Privies may not be located closer than 50 feet from any living
unit or any facility where food is prepared or served.
(i) Privy structures and pits must be fly-tight. Privy pits must
have adequate capacity for the required seats.
Sec. 654.412 Bathing, laundry, and hand washing.
(a) Bathing and hand washing facilities, supplied with hot and cold
water under pressure, must be provided for the use of all occupants.
These facilities must be clean and sanitary and located within 200 feet
of each living unit.
(b) There must be a minimum of 1 showerhead per 15 persons.
Showerheads must be spaced at least 3 feet apart, with a minimum of 9
square feet of floor space per unit. Adequate, dry dressing space must
be provided in common use facilities. Shower floors must be constructed
of nonabsorbent nonskid materials and sloped to properly constructed
floor drains. Except in individual family units, separate shower
facilities must be provided each sex. When common use shower facilities
for both sexes are in the same building they must be separated by a
solid nonabsorbent wall extending from the floor to ceiling, or roof,
and must be plainly designated ``men'' or ``women'' in English and in
the native language of the persons expected to occupy the housing.
(c) Lavatories or equivalent units must be provided in a ratio of 1
per 15 persons.
(d) Laundry facilities, supplied with hot and cold water under
pressure, must be provided for the use of all occupants. Laundry trays
or tubs must be provided in the ratio of 1 per 25 persons. Mechanical
washers may be provided in the ratio of 1 per 50 persons in lieu of
laundry trays, although a minimum of 1 laundry tray per 100 persons
must be provided in addition to the mechanical washers.
Sec. 654.413 Cooking and eating facilities.
(a) When workers or their families are permitted or required to
cook in their individual unit, a space must be provided and equipped
for cooking and eating. Such space must be provided with:
(1) A cookstove or hot plate with a minimum of two burners;
(2) Adequate food storage shelves and a counter for food
preparation;
(3) Provisions for mechanical refrigeration of food at a
temperature of not more than 45 [deg]F;
(4) A table and chairs or equivalent seating and eating
arrangements, all commensurate with the capacity of the unit; and
(5) Adequate lighting and ventilation.
(b) When workers or their families are permitted or required to
cook and eat in a common facility, a room or building separate from the
sleeping facilities must be provided for cooking and eating. Such room
or building must be provided with:
(1) Stoves or hot plates, with a minimum equivalent of 2 burners,
in a ratio of 1 stove or hot plate to 10
[[Page 56352]]
persons, or 1 stove or hot plate to 2 families;
(2) Adequate food storage shelves and a counter for food
preparation;
(3) Mechanical refrigeration for food at a temperature of not more
than 45 [deg]F;
(4) Tables and chairs or equivalent seating adequate for the
intended use of the facility;
(5) Adequate sinks with hot and cold water under pressure;
(6) Adequate lighting and ventilation; and
(7) Floors must be of nonabsorbent, easily cleaned materials.
(c) When central mess facilities are provided, the kitchen and mess
hall must be in proper proportion to the capacity of the housing and
must be separate from the sleeping quarters. The physical facilities,
equipment, and operation must be in accordance with provisions of
applicable State codes.
(d) Wall surface adjacent to all food preparation and cooking areas
must be of nonabsorbent, easily cleaned material. In addition, the wall
surface adjacent to cooking areas must be of fire-resistant material.
Sec. 654.414 Garbage and other refuse.
(a) Durable, fly-tight, clean containers in good condition of a
minimum capacity of 20 gallons, must be provided adjacent to each
housing unit for the storage of garbage and other refuse. Such
containers must be provided in a minimum ratio of 1 per 15 persons.
(b) Provisions must be made for collection of refuse at least twice
a week, or more often if necessary. The disposal of refuse, which
includes garbage, must be in accordance with State and local law.
Sec. 654.415 Insect and rodent control.
Housing and facilities must be free of insects, rodents, and other
vermin.
Sec. 654.416 Sleeping facilities.
(a) Sleeping facilities must be provided for each person. Such
facilities must consist of comfortable beds, cots, or bunks, provided
with clean mattresses.
(b) Any bedding provided by the housing operator must be clean and
sanitary.
(c) Triple deck bunks may not be provided.
(d) The clear space above the top of the lower mattress of a double
deck bunk and the bottom of the upper bunk must be a minimum of 27
inches. The distance from the top of the upper mattress to the ceiling
must be a minimum of 36 inches.
(e) Beds used for double occupancy may be provided only in family
accommodations.
Sec. 654.417 Fire, safety, and first aid.
(a) All buildings in which people sleep or eat must be constructed
and maintained in accordance with applicable State or local fire and
safety laws.
(b) In family housing and housing units for less than 10 persons,
of one story construction, two means of escape must be provided. One of
the two required means of escape may be a readily accessible window
with an openable space of not less than 24 x 24 inches.
(c) All sleeping quarters intended for use by 10 or more persons,
central dining facilities, and common assembly rooms must have at least
two doors remotely separated so as to provide alternate means of escape
to the outside or to an interior hall.
(d) Sleeping quarters and common assembly rooms on the second story
must have a stairway, and a permanent, affixed exterior ladder or a
second stairway.
(e) Sleeping and common assembly rooms located above the second
story must comply with the State and local fire and building codes
relative to multiple story dwellings.
(f) Fire extinguishing equipment must be provided in a readily
accessible place located not more than 100 feet from each housing unit.
Such equipment must provide protection equal to a 2\1/2\ gallon stored
pressure or 5-gallon pump-type water extinguisher.
(g) First aid facilities must be provided and readily accessible
for use at all time. Such facilities must be equivalent to the 16 unit
first aid kit recommended by the American Red Cross, and provided in a
ratio of 1 per 50 persons.
(h) No flammable or volatile liquids or materials must be stored in
or adjacent to rooms used for living purposes, except for those needed
for current household use.
(i) Agricultural pesticides and toxic chemicals may not be stored
in the housing area.
0
10. Revise part 658 to read as follows:
PART 658--ADMINISTRATIVE PROVISIONS GOVERNING THE WAGNER-PEYSER ACT
EMPLOYMENT SERVICE
Subpart A-D--[Reserved]
Subpart E--Employment Service and Employment-Related Law Complaint
System (Complaint System)
Sec.
658.400 Purpose and scope of subpart.
Complaints Filed at the Local and State Level
Sec.
658.410 Establishment of local and State complaint systems.
658.411 Action on complaints.
658.417 State hearings.
658.418 Decision of the State hearing official.
658.419 Apparent violations.
When a Complaint Rises to the Federal Level
Sec.
658.420 Responsibilities of the Employment and Training
Administration regional office.
658.421 Handling of Wagner-Peyser Act Employment Service regulation-
related complaints.
658.422 Handling of employment-related law complaints by the
Regional Administrator.
658.424 Proceedings before the Office of Administrative Law Judges.
658.425 Decision of Department of Labor Administrative Law Judge.
658.426 Complaints against the United States Employment Service.
Subpart F--Discontinuation of Services to Employers by the Wagner-
Peyser Act Employment Service
Sec.
658.500 Scope and purpose of subpart.
658.501 Basis for discontinuation of services.
658.502 Notification to employers.
658.503 Discontinuation of services.
658.504 Reinstatement of services.
Subpart G--Review and Assessment of State Workforce Agency Compliance
With Employment Service Regulations
Sec.
658.600 Scope and purpose of subpart.
658.601 State Workforce Agency responsibility.
658.602 Employment and Training Administration National Office
responsibility.
658.603 Employment and Training Administration Regional Office
responsibility.
658.604 Assessment and evaluation of program performance data.
658.605 Communication of findings to State agencies.
Subpart H--Federal Application of Remedial Action to State Workforce
Agencies
Sec.
658.700 Scope and purpose of subpart.
658.701 Statements of policy.
658.702 Initial action by the Regional Administrator.
658.703 Emergency corrective action.
658.704 Remedial actions.
658.705 Decision to decertify.
658.706 Notice of decertification.
658.707 Requests for hearings.
658.708 Hearings.
658.709 Conduct of hearings.
658.710 Decision of the Administrative Law Judge.
658.711 Decision of the Administrative Review Board.
Authority: Secs. 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014); 29 U.S.C. chapter 4B.
[[Page 56353]]
Subpart A-D--[Reserved]
Subpart E--Employment Service and Employment-Related Law Complaint
System (Complaint System)
Sec. 658.400 Purpose and scope of subpart.
(a) This subpart sets forth the regulations governing the Complaint
System for the Wagner-Peyser Act Employment Service (ES) at the State
and Federal levels. Specifically, the Complaint System handles
complaints against an employer about the specific job to which the
applicant was referred through the ES and complaints involving the
failure to comply with the ES regulations under parts 651, 652, 653,
and 654 of this chapter and this part. As noted in Sec. 658.411(d)(6),
this subpart only covers ES-related complaints made within 2 years of
the alleged violation.
(b) Any complaints alleging violations under the Unemployment
Insurance program, under Workforce Innovation and Opportunity Act
(WIOA) title I programs, or complaints by veterans alleging employer
violations of the mandatory listing requirements under 38 U.S.C. 4212
are not covered by this subpart and must be referred to the appropriate
administering agency which would follow the procedures set forth in the
respective regulations.
(c) The Complaint System also accepts, refers, and, under certain
circumstances, tracks complaints involving employment-related laws as
defined in Sec. 651.10 of this chapter.
(d) A complainant may designate an individual to act as his/her
representative.
Complaints Filed at the Local and State Level
Sec. 658.410 Establishment of local and State complaint systems.
(a) Each State Workforce Agency (SWA) must establish and maintain a
Complaint System pursuant to this subpart.
(b) The State Administrator must have overall responsibility for
the operation of the Complaint System. At the ES office level the
manager must be responsible for the operation of the Complaint System.
(c) SWAs must ensure centralized control procedures are established
for the processing of complaints. The manager of the ES office and the
SWA Administrator must ensure a central complaint log is maintained,
listing all complaints taken by the ES office or the SWA, and
specifying for each complaint:
(1) The name of the complainant;
(2) The name of the respondent (employer or State agency);
(3) The date the complaint is filed;
(4) Whether the complaint is by or on behalf of a migrant and
seasonal farmworker (MSFW);
(5) Whether the complaint concerns an employment-related law or the
ES regulations; and
(6) The action taken and whether the complaint has been resolved.
(d) State agencies must ensure information pertaining to the use of
the Complaint System is publicized, which must include, but is not
limited to, the prominent display of an Employment and Training
Administration (ETA)-approved Complaint System poster in each one-stop
center.
(e) Each one-stop center must ensure there is appropriate staff
available during regular office hours to take complaints.
(f) Complaints may be accepted in any one-stop center, or by a
State Workforce Agency, or elsewhere by an outreach worker.
(g) All complaints filed through the local ES office must be
handled by a trained Complaint System representative.
(h) All complaints received by a SWA must be assigned to a State
agency official designated by the State Administrator, provided that
the State agency official designated to handle MSFW complaints must be
the State Monitor Advocate (SMA).
(i) State agencies must ensure any action taken by the Complaint
System representative, including referral on a complaint from an MSFW
is fully documented containing all relevant information, including a
notation of the type of each complaint pursuant to Department guidance,
a copy of the original complaint form, a copy of any ES-related
reports, any relevant correspondence, a list of actions taken, a record
of pertinent telephone calls and all correspondence relating thereto.
(j) Within 1 month after the end of the calendar quarter, the ES
office manager must transmit an electronic copy of the quarterly
Complaint System log described in paragraph (c) of this section to the
SMA. These logs must be made available to the Department upon request.
(k) The appropriate SWA or ES office representative handling a
complaint must offer to assist the complainant through the provision of
appropriate services.
(l) The State Administrator must establish a referral system for
cases where a complaint is filed alleging a violation that occurred in
the same State but through a different ES office.
(m) Follow-up on unresolved complaints. When a complaint is
submitted or referred to a SWA, the Complaint System representative
(where the complainant is an MSFW, the Complaint System representative
will be the SMA), must follow-up monthly regarding MSFW complaints, and
must inform the complainant of the status of the complaint. No follow-
up with the complainant is required for non-MSFW complaints.
(n) When a complainant is an English Language Learner (ELL), all
written correspondence with the complainant under part 658, subpart E
must include a translation into the complainant's native language.
(o) A complainant may designate an individual to act as his/her
representative throughout the filing and processing of a complaint.
Sec. 658.411 Action on complaints.
(a) Filing complaints. (1) Whenever an individual indicates an
interest in filing a complaint under this subpart with an ES office or
SWA representative, or an outreach worker, the individual receiving the
complaint must offer to explain the operation of the Complaint System
and must offer to take the complaint in writing.
(2) During the initial discussion with the complainant, the staff
taking the complaint must:
(i) Make every effort to obtain all the information he/she
perceives to be necessary to investigate the complaint;
(ii) Request that the complainant indicate all of the physical
addresses, email, and telephone numbers through which he/she might be
contacted during the investigation of the complaint; and
(iii) Request that the complainant contact the Complaint System
representative before leaving the area if possible, and explain the
need to maintain contact during the investigation.
(3) The staff must ensure the complainant (or his/her
representative) submits the complaint on the Complaint/Referral Form or
another complaint form prescribed or approved by the Department or
submits complaint information which satisfies paragraph (a)(4) of this
section. The Complaint/Referral Form must be used for all complaints,
including complaints about unlawful discrimination, except as provided
in paragraph (a)(4) of this section. The staff must offer to assist the
complainant in filling out the form and submitting all necessary
information, and must do so if the complainant desires such assistance.
If the complainant also represents several other complainants, all such
[[Page 56354]]
complainants must be named. The complainant, or his/her representative,
must sign the completed form in writing or electronically. The identity
of the complainant(s) and any persons who furnish information relating
to, or assisting in, an investigation of a complaint must be kept
confidential to the maximum extent possible, consistent with applicable
law and a fair determination of the complaint. A copy of the completed
complaint submission must be given to the complainant(s), and the
complaint form must be given to the appropriate Complaint System
representative described in Sec. 658.410(g).
(4) Any complaint in a reasonable form (letter or email) which is
signed by the complainant, or his/her representative, and includes
sufficient information to initiate an investigation must be treated as
if it were a properly completed Complaint/Referral Form filed in
person. A letter (via hard copy or email) confirming the complaint was
received must be sent to the complainant and the document must be sent
to the appropriate Complaint System representative. The Complaint
System representative must request additional information from the
complainant if the complainant has not provided sufficient information
to investigate the matter expeditiously.
(b) Complaints regarding an employment-related law. (1) When a
complaint is filed regarding an employment-related law with a ES office
or a SWA the office must determine if the complainant is an MSFW.
(i) If the complainant is a non-MSFW, the office must immediately
refer the complainant to the appropriate enforcement agency, another
public agency, a legal aid organization, and/or a consumer advocate
organization, as appropriate, for assistance. Upon completing the
referral the local or State representative is not required to follow-up
with the complainant.
(ii) If the complainant is a MSFW, the ES office or SWA Complaint
System representative must:
(A) Take from the MSFW or his/her representative, in writing (hard
copy or electronic), the complaint(s) describing the alleged
violation(s) of the employment-related law(s); and
(B) Attempt to resolve the issue informally at the local level,
except in cases where the complaint was submitted to the SWA and the
SMA determines that he/she must take immediate action and except in
cases where informal resolution at the local level would be detrimental
to the complainant(s). In cases where informal resolution at the local
level would be detrimental to the complainant(s), the Complaint System
Representative or SMA (depending on where the complaint was filed) must
immediately refer the complaint to the appropriate enforcement agency.
Concurrently, the Complaint System representative must offer to refer
the MSFW to other employment services should the MSFW be interested.
(C) If the issue is not resolved within 5 business days, the
Complaint System representative must refer the complaint to the
appropriate enforcement agency (or another public agency, a legal aid
organization, or a consumer advocate organization, as appropriate) for
further assistance.
(D) If the ES office or SWA Complaint System representative
determines that the complaint must be referred to a State or Federal
agency, he/she must refer the complaint to the SMA who must immediately
refer the complaint to the appropriate enforcement agency for prompt
action.
(E) If the complaint was referred to the SMA under paragraph
(b)(1)(ii)(D) of this section, the representative must provide the
SMA's contact information to the complainant. The SMA must notify the
complainant of the enforcement agency to which the complaint was
referred.
(2) If an enforcement agency makes a final determination that the
employer violated an employment-related law and the complaint is
connected to a job order, the SWA must initiate procedures for
discontinuation of services immediately in accordance with subpart F of
this part. If this occurs, the SWA must notify the complainant and the
employer of this action.
(c) Complaints alleging a violation of rights under the Equal
Employment Opportunity Commission (EEOC) regulations or enforced by the
Department of Labor's Civil Rights Center (CRC). (1) All complaints
received by a ES office or a SWA alleging unlawful discrimination, as
well as reprisal for protected activity, in violation of EEOC
regulations, must be logged and immediately referred to either a local
Equal Opportunity (EO) representative, the State EO representative, or
the EEOC. The Complaint System representative must notify the
complainant of the referral in writing.
(2) Any complaints received either at the local and State level or
at the ETA regional office, that allege violations of civil rights laws
and regulations such as those under title VI of the Civil Rights Act or
sec. 188 of WIOA, including for beneficiaries (as defined in 29 CFR
38.4) only, on the basis of citizenship status or participant status,
as well as reprisal for protected activity, must immediately be logged
and directed or forwarded to the recipient's Equal Opportunity Officer
or the CRC.
(d) Complaints regarding the ES regulations (ES complaints). (1)
When an ES complaint is filed with a ES office or a SWA the following
procedures apply:
(i) When an ES complaint is filed against an employer, the proper
office to handle the complaint is the ES office serving the area in
which the employer is located.
(ii) When a complaint is against an employer in another State or
against another SWA:
(A) The ES office or SWA receiving the complaint must send, after
ensuring that the Complaint/Referral Form is adequately completed, a
copy of the Complaint/Referral Form and copies of any relevant
documents to the SWA in the other State. Copies of the referral letter
must be sent to the complainant, and copies of the complaint and
referral letter must be sent to the ETA Regional Office(s) with
jurisdiction over the transferring and receiving State agencies. All
such copies must be sent via hard copy or electronic mail.
(B) The SWA receiving the complaint must handle the complaint as if
it had been initially filed with that SWA.
(C) The ETA regional office with jurisdiction over the receiving
SWA must follow-up with it to ensure the complaint is handled in
accordance with these regulations.
(D) If the complaint is against more than one SWA, the complaint
must so clearly state. Additionally, the complaints must be processed
as separate complaints and must be handled according to procedures in
this paragraph (d).
(iii) When an ES complaint is filed against a ES office, the proper
office to handle the complaint is the ES office serving the area in
which the alleged violation occurred.
(iv) When an ES complaint is filed against more than one ES offices
and is in regard to an alleged agency-wide violation the SWA
representative or his/her designee must process the complaint.
(v) When a complaint is filed alleging a violation that occurred in
the same State but through a different ES office, the ES office where
the complaint is filed must ensure that the Complaint/Referral Form is
adequately completed and send the form to the appropriate local ES
office for tracking, further referral if necessary, and follow-up. A
copy of the referral letter must be sent
[[Page 56355]]
to the complainant via hard copy or electronic mail.
(2)(i) If a complaint regarding an alleged violation of the ES
regulations is filed in a ES office by either a non-MSFW or MSFW, or
their representative(s) (or if all necessary information has been
submitted to the office pursuant to paragraph (a)(4) of this section),
the appropriate ES office Complaint System representative must
investigate and attempt to resolve the complaint immediately upon
receipt.
(ii) If resolution has not been achieved to the satisfaction of the
complainant within 15 working days after receipt of the complaint, or 5
working days with respect to complaints filed by or on behalf of MSFWs,
(or after all necessary information has been submitted to the ES office
pursuant to paragraph (a)(4) of this section), the Complaint System
representative must send the complaint to the SWA for resolution or
further action.
(iii) The ES office must notify the complainant and the respondent,
in writing (via hard copy or electronic mail), of the determination
(pursuant to paragraph (d)(5) of this section) of its investigation
under paragraph (d)(2)(i) of this section, or of the referral to the
SWA (if referred).
(3) When a non-MSFW or his/her representative files a complaint
regarding the ES regulations with a SWA, or when a non-MSFW complaint
is referred from a ES office the following procedures apply:
(i) If the complaint is not transferred to an enforcement agency
under paragraph (b)(1)(i) of this section the Complaint System
representative must investigate and attempt to resolve the complaint
immediately upon receipt.
(ii) If resolution at the SWA level has not been accomplished
within 30 working days after the complaint was received by the SWA (or
after all necessary information has been submitted to the SWA pursuant
to paragraph (a)(4) of this section), whether the complaint was
received directly or from a ES office pursuant to paragraph (d)(2)(ii)
of this section, the SWA must make a written determination regarding
the complaint and must send electronic copies to the complainant and
the respondent. The determination must follow the procedures set forth
in paragraph (d)(5) of this section.
(4)(i) When a MSFW or his/her representative files a complaint
regarding the ES regulations directly with a SWA, or when a MSFW
complaint is referred from a ES office, the SMA must investigate and
attempt to resolve the complaint immediately upon receipt and may, if
necessary, conduct a further investigation.
(ii) If resolution at the SWA level has not been accomplished
within 20 business days after the complaint was received by the SWA (or
after all necessary information has been submitted to the SWA pursuant
to paragraph (a)(4) of this section), the SMA must make a written
determination regarding the complaint and must send electronic copies
to the complainant and the respondent. The determination must follow
the procedures set forth in paragraph (d)(5) of this section.
(5)(i) All written determinations by ES or SWA officials on
complaints under the ES regulations must be sent by certified mail (or
another legally viable method) and a copy of the determination may be
sent via electronic mail. The determination must include all of the
following:
(A) The results of any SWA investigation;
(B) The conclusions reached on the allegations of the complaint;
(C) If a resolution was not reached, an explanation of why the
complaint was not resolved; and
(D) If the complaint is against the SWA, an offer to the
complainant of the opportunity to request, in writing, a hearing within
20 business days after the certified date of receipt of the
notification.
(ii) If the SWA determines that the employer has not violated the
ES regulations, the SWA must offer to the complainant the opportunity
to request a hearing within 20 working days after the certified date of
receipt of the notification.
(iii) If the SWA, within 20 business days from the certified date
of receipt of the notification provided for in paragraph (d)(5) of this
section, receives a written request (via hard copy or electronic mail)
for a hearing, the SWA must refer the complaint to a State hearing
official for hearing. The SWA must, in writing (via hard copy or
electronic mail), notify the respective parties to whom the
determination was sent that:
(A) The parties will be notified of the date, time, and place of
the hearing;
(B) The parties may be represented at the hearing by an attorney or
other representative;
(C) The parties may bring witnesses and/or documentary evidence to
the hearing;
(D) The parties may cross-examine opposing witnesses at the
hearing;
(E) The decision on the complaint will be based on the evidence
presented at the hearing;
(F) The State hearing official may reschedule the hearing at the
request of a party or its representative; and
(G) With the consent of the SWA's representative and of the State
hearing official, the party who requested the hearing may withdraw the
request for hearing in writing before the hearing.
(iv) If the State agency makes a final determination that the
employer who has or is currently using the ES has violated the ES
regulations, the determination, pursuant to paragraph (d)(5) of this
section, must state that the State will initiate procedures for
discontinuation of services to the employer in accordance with subpart
F of this part.
(6) A complaint regarding the ES regulations must be handled to
resolution by these regulations only if it is made within 2 years of
the alleged occurrence.
(e) Resolution of complaints. A complaint is considered resolved
when:
(1) The complainant indicates satisfaction with the outcome via
written correspondence;
(2) The complainant chooses not to elevate the complaint to the
next level of review;
(3) The complainant or the complainant's authorized representative
fails to respond to a request for information under paragraph (a)(4) of
this section within 20 working days or, in cases where the complainant
is an MSFW, 40 working days of a written request by the appropriate ES
office or State agency;
(4) The complainant exhausts all available options for review; or
(5) A final determination has been made by the enforcement agency
to which the complaint was referred.
(f) Reopening of case after resolution. If the complainant or the
complainant's authorized representative fails to respond pursuant to
paragraph (e)(3) of this section, the complainant or the complainant's
authorized representative may reopen the case within 1 year after the
SWA has closed the case.
Sec. 658.417 State hearings.
(a) The hearing described in Sec. 658.411(d)(5) must be held by
State hearing officials. A State hearing official may be any State
official authorized to hold hearings under State law. Examples of
hearing officials are referees in State unemployment compensation
hearings and officials of the State agency authorized to preside at
State administrative hearings.
(b) The State hearing official may decide to conduct hearings on
more than one complaint concurrently if he/she determines that the
issues are
[[Page 56356]]
related or that the complaints will be handled more expeditiously if
conducted together.
(c) The State hearing official, upon the referral of a case for a
hearing, must:
(1) Notify all involved parties of the date, time, and place of the
hearing; and
(2) Reschedule the hearing, as appropriate.
(d) In conducting a hearing, the State hearing official must:
(1) Regulate the course of the hearing;
(2) Issue subpoenas if necessary, provided the official has the
authority to do so under State law;
(3) Ensure that all relevant issues are considered;
(4) Rule on the introduction of evidence and testimony; and
(5) Take all actions necessary to ensure an orderly proceeding.
(e) All testimony at the hearing must be recorded and may be
transcribed when appropriate.
(f) The parties must be afforded the opportunity to present,
examine, and cross-examine witnesses.
(g) The State hearing official may elicit testimony from witnesses,
but may not act as advocate for any party.
(h) The State hearing official must receive and include in the
record, documentary evidence offered by any party and accepted at the
hearing. Copies thereof must be made available by the party submitting
the document to other parties to the hearing upon request.
(i) Federal and State rules of evidence do not apply to hearings
conducted pursuant to this section; however rules or principles
designed to assure production of the most credible evidence available
and to subject testimony to test by cross-examination, must be applied
where reasonably necessary by the State hearing official. The State
hearing official may exclude irrelevant, immaterial, or unduly
repetitious evidence.
(j) The case record, or any portion thereof, must be available for
inspection and copying by any party at, prior to, or subsequent to the
hearing upon request. Special procedures may be used for disclosure of
medical and psychological records such as disclosure to a physician
designated by the individual.
(k) The State hearing official must, if feasible, resolve the
dispute at any time prior to the conclusion of the hearing.
(l) At the State hearing official's discretion, other appropriate
individuals, organizations, or associations may be permitted to
participate in the hearing as amicus curiae (friends of the court) with
respect to any legal or factual issues relevant to the complaint. Any
documents submitted by the amicus curiae must be included in the
record.
(m) If the parties to the hearing are located in more than one
State or are located in the same State but access to the hearing
location is extremely inconvenient for one or more parties as
determined by the State hearing official, the hearing official must:
(1) Whenever possible, hold a single hearing at a location
convenient to all parties or their representatives wishing to appear
and present evidence, with all such parties and/or their
representatives present.
(2) If a hearing location cannot be established by the State
hearing official under paragraph (m)(1) of this section, the State
hearing official may conduct, with the consent of the parties, the
hearing by a telephone conference call from a State agency office. If
the hearing is conducted via telephone conference call the parties and
their representatives must have the option to participate in person or
via telephone.
(3) Where the State agency is not able, for any reason, to conduct
a telephonic hearing under paragraph (m)(2) of this section, the State
agencies in the States where the parties are located must take evidence
and hold the hearing in the same manner as used for appealed interstate
unemployment claims in those States, to the extent that such procedures
are consistent with this section.
Sec. 658.418 Decision of the State hearing official.
(a) The State hearing official may:
(1) Rule that it lacks jurisdiction over the case;
(2) Rule that the complaint has been withdrawn properly in writing;
(3) Rule that reasonable cause exists to believe that the request
has been abandoned; or
(4) Render such other rulings as are appropriate to resolve the
issues in question.
However, the State hearing official does not have authority or
jurisdiction to consider the validity or constitutionality of the ES
regulations or of the Federal statutes under which they are
promulgated.
(b) Based on the entire record, including the investigations and
determinations of the ES offices and State agencies and any evidence
provided at the hearing, the State hearing official must prepare a
written decision. The State hearing official must send a copy of the
decision stating the findings of fact and conclusions of law, and the
reasons therefor to the complainant, the respondent, entities serving
as amicus capacity (if any), the State agency, the Regional
Administrator, and the Solicitor of Labor, Attn: Associate Solicitor
for Employment and Training Legal Services, Department of Labor, Room
N2101, 200 Constitution Avenue NW., Washington, DC 20210. The
notification to the complainant and respondent must be sent by
certified mail or by other legally viable means.
(c) All decisions of a State hearing official must be accompanied
by a written notice informing the parties (not including the Regional
Administrator, the Solicitor of Labor, or entities serving in an amicus
capacity) that they may appeal the judge's decision within 20 working
days of the certified date of receipt of the decision, and they may
file an appeal in writing with the Regional Administrator. The notice
must give the address of the Regional Administrator.
Sec. 658.419 Apparent violations.
(a) If a SWA, ES office employee, or outreach worker, observes, has
reason to believe, or is in receipt of information regarding a
suspected violation of employment-related laws or ES regulations by an
employer, except as provided at Sec. 653.503 of this chapter (field
checks) or Sec. 658.411 (complaints), the employee must document the
suspected violation and refer this information to the ES office
manager.
(b) If the employer has filed a job order with the ES office within
the past 12 months, the ES office must attempt informal resolution
provided at Sec. 658.411.
(c) If the employer has not filed a job order with the ES office
during the past 12 months, the suspected violation of an employment-
related law must be referred to the appropriate enforcement agency in
writing.
When a Complaint Rises to the Federal Level
Sec. 658.420 Responsibilities of the Employment and Training
Administration regional office.
(a) Each Regional Administrator must establish and maintain a
Complaint System within each ETA regional office.
(b) The Regional Administrator must designate Department of Labor
officials to handle ES regulation-related complaints as follows:
(1) Any complaints received either at the local and State level or
at the ETA regional office, that allege violations of civil rights laws
and regulations such as those under Title VI of the Civil Rights Act or
sec. 188 of WIOA, including for beneficiaries (as defined in 29 CFR
38.4) only, on the basis of citizenship status or participant status,
as well as reprisal
[[Page 56357]]
for protected activity, must immediately be logged and directed or
forwarded to the recipient's Equal Opportunity Officer or the CRC.
(2) All complaints alleging discrimination on the basis of genetic
information must be assigned to a Regional Director for Equal
Opportunity and Special Review and, where appropriate, handled in
accordance with procedures Coordinated Enforcement at 29 CFR part 31.
(3) All complaints other than those described in paragraphs (b)(1)
and (2) of this section, must be assigned to a regional office official
designated by the Regional Administrator, provided that the regional
office official designated to handle MSFW complaints must be the
Regional Monitor Advocate (RMA).
(c) Except for those complaints under paragraphs (b)(1) and (2) of
this section, the Regional Administrator must designate Department of
Labor officials to handle employment-related law complaints in
accordance with Sec. 658.411, provided that the regional official
designated to handle MSFW employment-related law complaints must be the
RMA. The RMA must follow up monthly on all complaints filed by MSFWs
including complaints under paragraphs (b)(1) and (2) of this section.
(d) The Regional Administrator must ensure that all complaints and
all related documents and correspondence are logged with a notation of
the nature of each item.
Sec. 658.421 Handling of Wagner-Peyser Act Employment Service
regulation-related complaints.
(a)(1) Except as provided below in paragraph (a)(2) of this
section, no complaint alleging a violation of the ES regulations may be
handled at the ETA regional office level until the complainant has
exhausted the SWA administrative remedies set forth at Sec. Sec.
658.411 through 658.418. If the Regional Administrator determines that
a complaint has been prematurely filed with an ETA regional office, the
Regional Administrator must inform the complainant within 10 working
days in writing that the complainant must first exhaust those remedies
before the complaint may be filed in the regional office. A copy of
this letter and a copy of the complaint also must be sent to the State
Administrator.
(2) If a complaint is submitted directly to the Regional
Administrator and if he/she determines that the nature and scope of a
complaint described in paragraph (a) of this section is such that the
time required to exhaust the administrative procedures at the SWA level
would adversely affect a significant number of individuals, the RA must
accept the complaint and take the following action:
(i) If the complaint is filed against an employer, the regional
office must handle the complaint in a manner consistent with the
requirements imposed upon State agencies by Sec. Sec. 658.411 and
658.418. A hearing must be offered to the parties once the Regional
Administrator makes a determination on the complaint.
(ii) If the complaint is filed against a SWA, the regional office
must follow procedures established at Sec. 658.411(d).
(b) The ETA regional office is responsible for handling appeals of
determinations made on complaints at the SWA level. An appeal includes
any letter or other writing which the Regional Administrator reasonably
understands to be requesting review if it is received by the regional
office and signed by a party to the complaint.
(c)(1) Once the Regional Administrator receives a timely appeal,
he/she must request the complete SWA file, including the original
Complaint/Referral Form from the appropriate SWA.
(2) The Regional Administrator must review the file in the case and
must determine within 10 business days whether any further
investigation or action is appropriate; however if the Regional
Administrator determines that he/she needs to request legal advice from
the Office of the Solicitor at the U.S. Department of Labor then the
Regional Administrator is allowed 20 business days to make this
determination.
(d) If the Regional Administrator determines that no further action
is warranted, the Regional Administrator will send his/her
determination in writing to the appellant within 5 days of the
determination, with a notification that the appellant may request a
hearing before a Department of Labor Administrative Law Judge (ALJ) by
filing a hearing request in writing with the Regional Administrator
within 20 working days of the appellant's receipt of the notification.
(e) If the Regional Administrator determines that further
investigation or other action is warranted, the Regional Administrator
must undertake such an investigation or other action necessary to
resolve the complaint.
(f) After taking the actions described in paragraph (e) of this
section, the Regional Administrator must either affirm, reverse, or
modify the decision of the State hearing official, and must notify each
party to the State hearing official's hearing or to whom the State
office determination was sent, notice of the determination and notify
the parties that they may appeal the determination to the Department of
Labor's Office of Administrative Law Judges within 20 business days of
the party's receipt of the notice.
(g) If the Regional Administrator finds reason to believe that a
SWA or one of its ES offices has violated ES regulations, the Regional
Administrator must follow the procedures set forth at subpart H of this
part.
Sec. 658.422 Handling of employment-related law complaints by the
Regional Administrator.
(a) This section applies to all complaints submitted directly to
the Regional Administrator or his/her representative.
(b) Each complaint filed by an MSFW alleging violation(s) of
employment-related laws must be taken in writing, logged, and referred
to the appropriate enforcement agency for prompt action.
(c) Each complaint submitted by a non-MSFW alleging violation(s) of
employment-related laws must be logged and referred to the appropriate
enforcement agency for prompt action.
(d) Upon referring the complaint in accordance with paragraphs (b)
and (c) of this section, the regional official must inform the
complainant of the enforcement agency (and individual, if known) to
which the complaint was referred.
Sec. 658.424 Proceedings before the Office of Administrative Law
Judges.
(a) If a party requests a hearing pursuant to Sec. 658.421 or
Sec. 658.707, the Regional Administrator must:
(1) Send the party requesting the hearing, and all other parties to
the prior State level hearing, a written notice (hard copy or
electronic) that the matter will be referred to the Office of
Administrative Law Judges for a hearing;
(2) Compile four hearing files (hard copy or electronic) containing
copies of all documents relevant to the case, indexed and compiled
chronologically; and
(3) Send simultaneously one hearing file to the Department of Labor
Chief Administrative Law Judge, 800 K Street NW., Suite 400N,
Washington, DC 20001-8002, one hearing file to the OWI Administrator,
and one hearing file to the Solicitor of Labor, Attn: Associate
Solicitor for Employment and Training Legal Services, and retain one
hearing file.
(b) Proceedings under this section are governed by the rules of
practice and procedure at subpart A of 29 CFR part
[[Page 56358]]
18, Rule of Practice and Procedure for Administrative Hearings before
the Office of Administrative Law Judges, except where otherwise
specified in this section or at Sec. 658.425.
(c) Upon receipt of a hearing file, the ALJ designated to the case
must notify the party requesting the hearing, all parties to the prior
State hearing official hearing (if any), the State agency, the Regional
Administrator, the OWI Administrator, and the Solicitor of Labor of the
receipt of the case. After conferring all the parties, the ALJ may
decide to make a determination on the record in lieu of scheduling a
hearing.
(d) The ALJ may decide to consolidate cases and conduct hearings on
more than one complaint concurrently if he/she determines that the
issues are related or that the complaints will be handled more
expeditiously.
(e) If the parties to the hearing are located in more than one
State or are located in the same State but access to the hearing
location is extremely inconvenient for one or more parties as
determined by the ALJ, the ALJ must:
(1) Whenever possible, hold a single hearing, at a location
convenient to all parties or their representatives wishing to appear
and present evidence, with all such parties and/or their
representatives present.
(2) If a hearing location cannot be established by the ALJ at a
location pursuant to paragraph (e)(1) of this section, the ALJ may
conduct, with the consent of the parties, the hearing by a telephone
conference call. If the hearing is conducted via telephone conference
call the parties and their representatives must have the option to
participate in person or via telephone.
(3) Where the ALJ is unable, for any reason, to conduct a
telephonic hearing under paragraph (e)(2) of this section, the ALJ must
confer with the parties on how to proceed.
(f) Upon deciding to hold a hearing, the ALJ must notify all
involved parties of the date, time, and place of the hearing.
(g) The parties to the hearing must be afforded the opportunity to
present, examine, and cross-examine witnesses. The ALJ may elicit
testimony from witnesses, but may not act as advocate for any party.
The ALJ has the authority to issue subpoenas.
(h) The ALJ must receive, and make part of the record, documentary
evidence offered by any party and accepted at the hearing, provided
that copies of such evidence is provided to the other parties to the
proceeding prior to the hearing at the time required by the ALJ.
(i) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination must be applied where reasonably
necessary by the ALJ conducting the hearing. The ALJ may exclude
irrelevant, immaterial, or unduly repetitious evidence.
(j) The case record, or any portion thereof, must be available for
inspection and copying by any party to the hearing at, prior to, or
subsequent to the hearing upon request. Special procedures may be used
for disclosure of medical and psychological records such as disclosure
to a physician designated by the individual concerned.
(k) The ALJ must, if feasible, encourage resolution of the dispute
by conciliation at any time prior to the conclusion of the hearing.
Sec. 658.425 Decision of Department of Labor Administrative Law
Judge.
(a) The ALJ may:
(1) Rule that he/she lacks jurisdiction over the case;
(2) Rule that the appeal has been withdrawn, with the written
consent of all parties;
(3) Rule that reasonable cause exists to believe that the appeal
has been abandoned; or
(4) Render such other rulings as are appropriate to the issues in
question. However, the ALJ does not have jurisdiction to consider the
validity or constitutionality of the ES regulations or of the Federal
statutes under which they are promulgated.
(b) Based on the entire record, including any legal briefs, the
record before the State agency, the investigation (if any) and
determination of the Regional Administrator, and evidence provided at
the hearing, the ALJ must prepare a written decision. The ALJ must send
a copy of the decision stating the findings of fact and conclusions of
law to the parties to the hearing, including the State agency, the
Regional Administrator, the OWI Administrator, and the Solicitor, and
to entities filing amicus briefs (if any).
(c) The decision of the ALJ serves as the final decision of the
Secretary.
Sec. 658.426 Complaints against the United States Employment Service.
(a) Complaints alleging that an ETA regional office or the National
Office has violated ES regulations must be mailed to the Assistant
Secretary for Employment and Training, U.S. Department of Labor,
Washington, DC 20210. Such complaints must include:
(1) A specific allegation of the violation;
(2) The date of the incident;
(3) Location of the incident;
(4) The individual alleged to have committed the violation; and
(5) Any other relevant information available to the complainant.
(b) The Assistant Secretary or the Regional Administrator as
designated must make a determination and respond to the complainant
after investigation of the complaint.
Subpart F--Discontinuation of Services to Employers by the Wagner-
Peyser Act Employment Service
Sec. 658.500 Scope and purpose of subpart.
This subpart contains the regulations governing the discontinuation
of services provided pursuant part 653 of this chapter to employers by
the ETA, including SWAs.
Sec. 658.501 Basis for discontinuation of services.
(a) The SWA must initiate procedures for discontinuation of
services to employers who:
(1) Submit and refuse to alter or withdraw job orders containing
specifications which are contrary to employment-related laws;
(2) Submit job orders and refuse to provide assurances, in
accordance with the Agricultural Recruitment System for U.S. Workers at
part 653, subpart F, of this chapter, that the jobs offered are in
compliance with employment-related laws, or to withdraw such job
orders;
(3) Are found through field checks or otherwise to have either
misrepresented the terms or conditions of employment specified on job
orders or failed to comply fully with assurances made on job orders;
(4) Are found by a final determination by an appropriate
enforcement agency to have violated any employment-related laws and
notification of this final determination has been provided to the
Department or the SWA by that enforcement agency;
(5) Are found to have violated ES regulations pursuant to Sec.
658.411;
(6) Refuse to accept qualified workers referred through the
clearance system;
(7) Refuse to cooperate in the conduct of field checks conducted
pursuant to Sec. 653.503 of this chapter; or
(8) Repeatedly cause the initiation of the procedures for
discontinuation of services pursuant to paragraphs (a)(1) through (7)
of this section.
(b) The SWA may discontinue services immediately if, in the
judgment of the State Administrator, exhaustion of the administrative
procedures set
[[Page 56359]]
forth in this subpart in paragraphs (a)(1) through (7) of this section
would cause substantial harm to a significant number of workers. In
such instances, procedures at Sec. Sec. 658.503 and 658.504 must be
followed.
(c) If it comes to the attention of a ES office or SWA that an
employer participating in the ES may not have complied with the terms
of its temporary labor certification, under, for example the H-2A and
H-2B visa programs, State agencies must engage in the procedures for
discontinuation of services to employers pursuant to paragraphs (a)(1)
through (8) of this section and simultaneously notify the Chicago
National Processing Center (CNPC) of the alleged non-compliance for
investigation and consideration of ineligibility pursuant to Sec.
655.184 or Sec. 655.73 of this chapter respectively for subsequent
temporary labor certification.
Sec. 658.502 Notification to employers.
(a) The SWA must notify the employer in writing that it intends to
discontinue the provision of employment services pursuant to this part
and parts 652, 653, and 654 of this chapter, and the reason therefore.
(1) Where the decision is based on submittal and refusal to alter
or to withdraw job orders containing specifications contrary to
employment-related laws, the SWA must specify the date the order was
submitted, the job order involved, the specifications contrary to
employment-related laws and the laws involved. The SWA must notify the
employer in writing that all employment services will be terminated in
20 working days unless the employer within that time:
(i) Provides adequate evidence that the specifications are not
contrary to employment-related laws; or
(ii) Withdraws the specifications and resubmits the job order in
compliance with all employment-related laws; or
(iii) If the job is no longer available, makes assurances that all
future job orders submitted will be in compliance with all employment-
related laws; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(2) Where the decision is based on the employer's submittal of an
order and refusal to provide assurances that the job is in compliance
with employment-related laws or to withdraw the order, the SWA must
specify the date the order was submitted, the job order involved, and
the assurances involved. The employer must be notified that all
employment services will be terminated within 20 working days unless
the employer within that time:
(i) Resubmits the order with the appropriate assurances; or
(ii) If the job is no longer available, make assurances that all
future job orders submitted will contain all necessary assurances that
the job offered is in compliance with employment-related laws; or
(iii) Requests a hearing from the SWA pursuant to Sec. 658.417.
(3) Where the decision is based on a finding that the employer has
misrepresented the terms or conditions of employment specified on job
orders or failed to comply fully with assurances made on job orders,
the SWA must specify the basis for that determination. The employer
must be notified that all employment services will be terminated in 20
working days unless the employer within that time:
(i) Provides adequate evidence that terms and conditions of
employment were not misrepresented; or
(ii) Provides adequate evidence that there was full compliance with
the assurances made on the job orders; or
(iii) Provides resolution of a complaint which is satisfactory to a
complainant referred by the ES; and
(iv) Provides adequate assurance that specifications on future
orders will accurately represent the terms and conditions of employment
and that there will be full compliance with all job order assurances;
or
(v) Requests a hearing from the SWA pursuant to Sec. 658.417.
(4) Where the decision is based on a final determination by an
enforcement agency, the SWA must specify the enforcement agency's
findings of facts and conclusions of law. The employer must be notified
that all employment services will be terminated in 20 working days
unless the employer within that time:
(i) Provides adequate evidence that the enforcement agency has
reversed its ruling and that the employer did not violate employment-
related laws; or
(ii) Provides adequate evidence that the appropriate fines have
been paid and/or appropriate restitution has been made; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future.
(5) Where the decision is based on a finding of a violation of ES
regulations under Sec. 658.411, the SWA must specify the finding. The
employer must be notified that all employment services will be
terminated in 20 working days unless the employer within that time:
(i) Provides adequate evidence that the employer did not violate ES
regulations; or
(ii) Provides adequate evidence that appropriate restitution has
been made or remedial action taken; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(6) Where the decision is based on an employer's failure to accept
qualified workers referred through the clearance system, the SWA must
specify the workers referred and not accepted. The employer must be
notified that all employment services will be terminated in 20 working
days unless the employer within that time:
(i) Provides adequate evidence that the workers were accepted; or
(ii) Provides adequate evidence that the workers were not available
to accept the job; or
(iii) Provides adequate evidence that the workers were not
qualified; and
(iv) Provides adequate assurances that qualified workers referred
in the future will be accepted; or
(v) Requests a hearing from the SWA pursuant to Sec. 658.417.
(7) Where the decision is based on lack of cooperation in the
conduct of field checks, the SWA must specify the lack of cooperation.
The employer must be notified that all employment services will be
terminated in 20 working days unless the employer within that time:
(i) Provides adequate evidence that he/she did cooperate; or
(ii) Cooperates immediately in the conduct of field checks; and
(iii) Provides assurances that he/she will cooperate in future
field checks in further activity; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(b) If the employer chooses to respond pursuant to this section by
providing documentary evidence or assurances, he/she must at the same
time request a hearing if such hearing is desired in the event that the
SWA does not accept the documentary evidence or assurances as adequate.
(c) Where the decision is based on repeated initiation of
procedures for discontinuation of services, the employer must be
notified that services have been terminated.
(d) If the employer makes a timely request for a hearing, in
accordance with this section, the SWA must follow procedures set forth
at Sec. 658.411 and notify the complainant whenever the
[[Page 56360]]
discontinuation of services is based on a complaint pursuant to Sec.
658.411.
Sec. 658.503 Discontinuation of services.
(a) If the employer does not provide a satisfactory response in
accordance with Sec. 658.502, within 20 working days, or has not
requested a hearing, the SWA must immediately terminate services to the
employer.
(b) If services are discontinued to an employer subject to Federal
Contractor Job Listing Requirements, the SWA must notify the ETA
regional office immediately.
Sec. 658.504 Reinstatement of services.
(a) Services may be reinstated to an employer after discontinuation
under Sec. 658.503(a) and (b), if:
(1) The State is ordered to do so by a Federal ALJ Judge or
Regional Administrator; or
(2)(i) The employer provides adequate evidence that any policies,
procedures or conditions responsible for the previous discontinuation
of services have been corrected and that the same or similar
circumstances are not likely to occur in the future; and
(ii) The employer provides adequate evidence that he/she has
responded adequately to any findings of an enforcement agency, SWA, or
ETA, including restitution to the complainant and the payment of any
fines, which were the basis of the discontinuation of services.
(b) The SWA must notify the employer requesting reinstatement
within 20 working days whether his/her request has been granted. If the
State denies the request for reinstatement, the basis for the denial
must be specified and the employer must be notified that he/she may
request a hearing within 20 working days.
(c) If the employer makes a timely request for a hearing, the SWA
must follow the procedures set forth at Sec. 658.417.
(d) The SWA must reinstate services to an employer if ordered to do
so by a State hearing official, Regional Administrator, or Federal ALJ
as a result of a hearing offered pursuant to paragraph (c) of this
section.
Subpart G--Review and Assessment of State Workforce Agency
Compliance With Employment Service Regulations
Sec. 658.600 Scope and purpose of subpart.
This subpart sets forth the regulations governing review and
assessment of State Workforce Agency (SWA) compliance with the ES
regulations at this part and parts 651, 652, 653, and 654 of this
chapter. All recordkeeping and reporting requirements contained in this
part and part 653 of this chapter have been approved by the Office of
Management and Budget as required by the Paperwork Reduction Act of
1980.
Sec. 658.601 State Workforce Agency responsibility.
(a) Each SWA must establish and maintain a self-appraisal system
for ES operations to determine success in reaching goals and to correct
deficiencies in performance. The self-appraisal system must include
numerical (quantitative) appraisal and non-numerical (qualitative)
appraisal.
(1) Numerical appraisal at the ES office level must be conducted as
follows:
(i) Performance must be measured on a quarterly-basis against
planned service levels as stated in the Unified or Combined State Plan
(``State Plan''). The State Plan must be consistent with numerical
goals contained in ES office plans.
(ii) To appraise numerical activities/indicators, actual results as
shown on the Department's ETA 9002A report, or any successor report
required by the Department must be compared to planned levels.
Differences between achievement and plan levels must be identified.
(iii) When the numerical appraisal of required activities/
indicators identifies significant differences from planned levels,
additional analysis must be conducted to isolate possible contributing
factors. This data analysis must include, as appropriate, comparisons
to past performance, attainment of State Plan goals and consideration
of pertinent non-numerical factors.
(iv) Results of ES office numerical reviews must be documented and
significant deficiencies identified. A corrective action plan as
described in paragraph (a)(6) of this section must be developed to
address these deficiencies.
(v) The result of ES office appraisal, including corrective action
plans, must be communicated in writing to the next higher level of
authority for review. This review must cover adequacy of analysis,
appropriateness of corrective actions, and need for higher level
involvement. When this review is conducted at an area or district
office, a report describing ES office performance within the area or
district jurisdiction must be communicated to the SWA on a quarterly
basis.
(2) Numerical appraisal at the SWA level must be conducted as
follows:
(i) Performance must be measured on a quarterly basis against
planned service levels as stated in the State Plan. The State Plan must
be consistent with numerical goals contained in ES office plans.
(ii) To appraise these key numerical activities/indicators, actual
results as shown on the ETA 9002A report, or any successor report
required by the Department must be compared to planned levels.
Differences between achievement and plan levels must be identified.
(iii) The SWA must review statewide data and performance against
planned service levels as stated in the State Plan on at least a
quarterly basis to identify significant statewide deficiencies and to
determine the need for additional analysis, including identification of
trends, comparisons to past performance, and attainment of State Plan
goals.
(iv) Results of numerical reviews must be documented and
significant deficiencies identified. A corrective action plan as
described in paragraph (a)(5) of this section must be developed to
address these deficiencies. These plans must be submitted to the ETA
Regional Office as part of the periodic performance process described
at Sec. 658.603(d)(2).
(3) Non-numerical (qualitative) appraisal of ES office activities
must be conducted at least annually as follows:
(i) Each ES office must assess the quality of its services to
applicants, employers, and the community and its compliance with
Federal regulations.
(ii) At a minimum, non-numerical review must include an assessment
of the following factors:
(A) Appropriateness of services provided to participants and
employers;
(B) Timely delivery of services to participants and employers;
(C) Staff responsiveness to individual participants and employer
needs;
(D) Thoroughness and accuracy of documents prepared in the course
of service delivery; and
(E) Effectiveness of ES interface with external organizations, such
as other ETA-funded programs, community groups, etc.
(iii) Non-numerical review methods must include:
(A) Observation of processes;
(B) Review of documents used in service provisions; and
(C) Solicitation of input from applicants, employers, and the
community.
(iv) The result of non-numerical reviews must be documented and
deficiencies identified. A corrective action plan addressing these
deficiencies as described in paragraph (a)(6) of this section must be
developed.
[[Page 56361]]
(v) The result of ES office non-numerical appraisal, including
corrective actions, must be communicated in writing to the next higher
level of authority for review. This review must cover thoroughness and
adequacy of ES office appraisal, appropriateness of corrective actions,
and need for higher level involvement. When this review is conducted at
an area or district level, a report summarizing local ES office
performance within that jurisdiction must be communicated to the SWA on
an annual basis.
(4) As part of its oversight responsibilities, the SWA must conduct
onsite reviews in those ES offices which show continuing internal
problems or deficiencies in performance as indicated by such sources as
data analysis, non-numerical appraisal, or other sources of
information.
(5) Non-numerical (qualitative) review of SWA ES activities must be
conducted as follows:
(i) SWA operations must be assessed annually to determine
compliance with Federal regulations.
(ii) Results of non-numerical reviews must be documented and
deficiencies identified. A corrective action plan addressing these
deficiencies must be developed.
(6) Corrective action plans developed to address deficiencies
uncovered at any administrative level within the State as a result of
the self-appraisal process must include:
(i) Specific descriptions of the type of action to be taken, the
time frame involved, and the assignment of responsibility.
(ii) Provision for the delivery of technical assistance as needed.
(iii) A plan to conduct follow-up on a timely basis to determine if
action taken to correct the deficiencies has been effective.
(7)(i) The provisions of the ES regulations which require numerical
and non-numerical assessment of service to special applicant groups
(e.g., services to veterans at 20 CFR part 1001--Services for Veterans
and services to MSFWs at this part and part 653 of this chapter), are
supplementary to the provisions of this section.
(ii) Each State Administrator and ES office manager must ensure
their staff know and carry out ES regulations, including regulations on
performance standards and program emphases, and any corrective action
plans imposed by the SWA or by the Department.
(iii) Each State Administrator must ensure the SWA complies with
its approved State Plan.
(iv) Each State Administrator must ensure to the maximum extent
feasible the accuracy of data entered by the SWA into Department-
required management information systems. Each SWA must establish and
maintain a data validation system pursuant to Department instructions.
The system must review every local ES office at least once every 4
years. The system must include the validation of time distribution
reports and the review of data gathering procedures.
(b) [Reserved]
Sec. 658.602 Employment and Training Administration National Office
responsibility.
The ETA National Office must:
(a) Monitor ETA Regional Offices' operations under ES regulations;
(b) From time to time, conduct such special reviews and audits as
necessary to monitor ETA regional office and SWA compliance with ES
regulations;
(c) Offer technical assistance to the ETA regional offices and SWAs
in carrying out ES regulations and programs;
(d) Have report validation surveys conducted in support of resource
allocations; and
(e) Develop tools and techniques for reviewing and assessing SWA
performance and compliance with ES regulations.
(f) ETA must appoint a National Monitor Advocate (NMA), who must
devote full time to the duties set forth in this subpart. The NMA must:
(1) Review the effective functioning of the Regional Monitor
Advocates (RMAs) and SMAs;
(2) Review the performance of SWAs in providing the full range of
employment services to MSFWs;
(3) Take steps to resolve or refer ES-related problems of MSFWs
which come to his/her attention;
(4) Take steps to refer non ES-related problems of MSFWs which come
to his/her attention;
(5) Recommend to the Administrator changes in policy toward MSFWs;
and
(6) Serve as an advocate to improve services for MSFWs within the
ES system. The NMA must be a member of the National Farm Labor
Coordinated Enforcement Staff Level Working Committee and other
Occupational Safety and Health Administration (OSHA) and Wage and Hour
Division (WHD) task forces, and other committees as appropriate.
(g) The NMA must be appointed by the Office of Workforce Investment
Administrator (Administrator) after informing farmworker organizations
and other organizations with expertise concerning MSFWs of the opening
and encouraging them to refer qualified applicants to apply through the
Federal merit system. Among qualified candidates, determined through
merit systems procedures, individuals must be sought who meet the
criteria used in the selection of the SMAs, as provided in SWA self-
monitoring requirements at Sec. 653.108(b) of this chapter.
(h) The NMA must be assigned staff necessary to fulfill effectively
all the responsibilities set forth in this subpart.
(i) The NMA must submit the Annual Report to the OWI Administrator,
the ETA Assistant Secretary, and the National Farm Labor Coordinated
Enforcement Committee covering the matters set forth in this subpart.
(j) The NMA must monitor and assess SWA compliance with ES
regulations affecting MSFWs on a continuing basis. His/her assessment
must consider:
(1) Information from RMAs and SMAs;
(2) Program performance data, including the service indicators;
(3) Periodic reports from regional offices;
(4) All Federal on-site reviews;
(5) Selected State on-site reviews;
(6) Other relevant reports prepared by the ES;
(7) Information received from farmworker organizations and
employers; and
(8) His/her personal observations from visits to SWAs, ES offices,
agricultural work sites, and migrant camps. In the Annual Report, the
NMA must include both a quantitative and qualitative analysis of his/
her findings and the implementation of his/her recommendations by State
and Federal officials, and must address the information obtained from
all of the foregoing sources.
(k) The NMA must review the activities of the State/Federal
monitoring system as it applies to services to MSFWs and the Complaint
System including the effectiveness of the regional monitoring function
in each region and must recommend any appropriate changes in the
operation of the system. The NMA's findings and recommendations must be
fully set forth in the Annual Report.
(l) If the NMA finds the effectiveness of any RMA has been
substantially impeded by the Regional Administrator or other regional
office official, he/she must, if unable to resolve such problems
informally, report and recommend appropriate actions directly to the
OWI Administrator. If the NMA receives information that the
effectiveness of any SMA has been substantially impeded by the State
Administrator or other State or
[[Page 56362]]
Federal ES official, he/she must, in the absence of a satisfactory
informal resolution at the regional level, report and recommend
appropriate actions directly to the OWI Administrator.
(m) The NMA must be informed of all proposed changes in policy and
practice within the ES, including ES regulations, which may affect the
delivery of services to MSFWs. The NMA must advise the Administrator
concerning all such proposed changes which may adversely affect MSFWs.
The NMA must propose directly to the OWI Administrator changes in ES
policy and administration which may substantially improve the delivery
of services to MSFWs. He/she also must recommend changes in the funding
of SWAs and/or adjustment or reallocation of the discretionary portions
of funding formulae.
(n) The NMA must participate in the review and assessment
activities required in this section and Sec. Sec. 658.700 through
658.711. As part of such participation, the NMA, or if he/she is unable
to participate, a RMA must accompany the National Office review team on
National Office on-site reviews. The NMA must engage in the following
activities in the course of each State on-site review:
(1) He/she must accompany selected outreach workers on their field
visits.
(2) He/she must participate in a random field check(s) of migrant
camps or work site(s) where MSFWs have been placed on inter or
intrastate clearance orders.
(3) He/she must contact local WIOA sec. 167 National Farmworker
Jobs Program grantees or other farmworker organizations as part of the
on-site review, and, discuss with representatives of these
organizations current trends and any other pertinent information
concerning MSFWs.
(4) He/she must meet with the SMA and discuss the full range of the
employment services to MSFWs, including monitoring and the Complaint
System.
(o) In addition to the duties specified in paragraph (f)(8) of this
section, the NMA each year during the harvest season must visit the
four States with the highest level of MSFW activity during the prior
fiscal year, if they are not scheduled for a National Office on-site
review during the current fiscal year, and must:
(1) Meet with the SMA and other SWA staff to discuss MSFW service
delivery; and
(2) Contact representatives of MSFW organizations and interested
employer organizations to obtain information concerning ES delivery and
coordination with other agencies.
(p) The NMA must perform duties specified in Sec. Sec. 658.700
through 765.711. As part of this function, he/she must monitor the
performance of regional offices in imposing corrective action. The NMA
must report any deficiencies in performance to the Administrator.
(q) The NMA must establish routine and regular contacts with WIOA
sec. 167 National Farmworker Jobs Program grantees, other farmworker
organizations and agricultural employers and/or employer organizations.
He/she must attend conferences or meetings of these groups wherever
possible and must report to the Administrator and the National Farm
Labor Coordinated Enforcement Committee on these contacts when
appropriate. The NMA must include in the Annual Report recommendations
about how the Department might better coordinate ES and WIOA sec. 167
National Farmworker Jobs Program services as they pertain to MSFWs.
(r) In the event that any SMA or RMA, enforcement agency, or MSFW
group refers a matter to the NMA which requires emergency action, he/
she must assist them in obtaining action by appropriate agencies and
staff, inform the originating party of the action taken, and, upon
request, provide written confirmation.
(s) Through all the mechanisms provided in this subpart, the NMA
must aggressively seek to ascertain and remedy, if possible, systemic
deficiencies in the provisions of employment services and protections
afforded by these regulations to MSFWs. The NMA must:
(1) Use the regular reports on complaints submitted by SWAs and ETA
regional offices to assess the adequacy of these systems and to
determine the existence of systemic deficiencies.
(2) Provide technical assistance to ETA regional office and State
Workforce Agency staff for administering the Complaint System, and any
other employment services as appropriate.
(3) Recommend to the Regional Administrator specific instructions
for action by regional office staff to correct any ES-related systemic
deficiencies. Prior to any ETA review of regional office operations
concerning employment services to MSFWs, the NMA must provide to the
Regional Administrator a brief summary of ES-related services to MSFWs
in that region and his/her recommendations for incorporation in the
regional review materials as the Regional Administrator and ETA
reviewing organization deem appropriate.
(4) Recommend to the National Farm Labor Coordinated Enforcement
Committee specific instructions for action by WHD and OSHA regional
office staff to correct any non-ES-related systemic deficiencies of
which he/she is aware.
Sec. 658.603 Employment and Training Administration Regional Office
responsibility.
(a) The Regional Administrator must have responsibility for the
regular review and assessment of SWA performance and compliance with ES
regulations.
(b) The Regional Administrator must participate with the National
Office staff in reviewing and approving the State Plan for the SWAs
within the region. In reviewing the State Plans the Regional
Administrator and appropriate National Office staff must consider
relevant factors including the following:
(1) State Workforce Agency compliance with ES regulations;
(2) State Workforce Agency performance against the goals and
objectives established in the previous State Plan;
(3) The effect which economic conditions and other external factors
considered by the ETA in the resource allocation process may have had
or are expected to have on the SWA's performance;
(4) SWA adherence to national program emphasis; and
(5) The adequacy and appropriateness of the State Plan for carrying
out ES programs.
(c) The Regional Administrator must assess the overall performance
of SWAs on an ongoing basis through desk reviews and the use of
required reporting systems and other available information.
(d) As appropriate, Regional Administrators must conduct or have
conducted:
(1) Comprehensive on-site reviews of SWAs and their offices to
review SWA organization, management, and program operations;
(2) Periodic performance reviews of SWA operation of ES programs to
measure actual performance against the State Plan, past performance,
the performance of other SWAs, etc.;
(3) Audits of SWA programs to review their program activity and to
assess whether the expenditure of grant funds has been in accordance
with the approved budget. Regional Administrators also may conduct
audits through other agencies or organizations or may require the SWA
to have audits conducted;
[[Page 56363]]
(4) Validations of data entered into management information systems
to assess:
(i) The accuracy of data entered by the SWAs into the management
information system;
(ii) Whether the SWAs' data validating and reviewing procedures
conform to Department instructions; and
(iii) Whether SWAs have implemented any corrective action plans
required by the Department to remedy deficiencies in their validation
programs;
(5) Technical assistance programs to assist SWAs in carrying out ES
regulations and programs;
(6) Reviews to assess whether the SWA has complied with corrective
action plans imposed by the Department or by the SWA itself; and
(7) Random, unannounced field checks of a sample of agricultural
work sites to which ES placements have been made through the clearance
system to determine and document whether wages, hours, working and
housing conditions are as specified on the job order. If regional
office staff find reason to believe that conditions vary from job order
specifications, findings must be documented on the Complaint/Apparent
Violation Referral Form and provided to the State Workforce Agency to
be handled as an apparent violation under Sec. 658.419.
(e) The Regional Administrator must provide technical assistance to
SWAs to assist them in carrying out ES regulations and programs.
(f) The Regional Administrator must appoint a RMA who must devote
full time to the duties set forth in this subpart. The RMA must:
(1) Review the effective functioning of the SMAs in his/her region;
(2) Review the performance of SWAs in providing the full range of
employment services to MSFWs;
(3) Take steps to resolve ES-related problems of MSFWs which come
to his/her attention;
(4) Recommend to the Regional Administrator changes in policy
towards MSFWs;
(5) Review the operation of the Complaint System; and
(6) Serve as an advocate to improve service for MSFWs within the
ES. The RMA must be a member of the Regional Farm Labor Coordinated
Enforcement Committee.
(g) The RMA must be appointed by the Regional Administrator after
informing farmworker organizations and other organizations in the
region with expertise concerning MSFWs of the opening and encouraging
them to refer qualified applicants to apply through the Federal merit
system. The RMA must have direct personal access to the Regional
Administrator wherever he/she finds it necessary. Among qualified
candidates, individuals must be sought who meet the criteria used in
the selection of the SMAs, as provided in Sec. 653.108(b) of this
chapter.
(h) The Regional Administrator must ensure that staff necessary to
fulfill effectively all the regional office responsibilities set forth
in this section are assigned. The RMA must notify the Regional
Administrator of any staffing deficiencies and the Regional
Administrator must take appropriate action.
(i) The RMA within the first 3 months of his/her tenure must
participate in a training session(s) approved by the National Office.
(j) At the regional level, the RMA must have primary responsibility
for:
(1) Monitoring the effectiveness of the Complaint System set forth
at subpart E of this part;
(2) Apprising appropriate State and ETA officials of deficiencies
in the Complaint System; and
(3) Providing technical assistance to SMAs in the region.
(k) At the ETA regional level, the RMA must have primary
responsibility for ensuring SWA compliance with ES regulations as it
pertains to services to MSFWs is monitored by the regional office. He/
she must independently assess on a continuing basis the provision of
employment services to MSFWs, seeking out and using:
(1) Information from SMAs, including all reports and other
documents;
(2) Program performance data;
(3) The periodic and other required reports from SWAs;
(4) Federal on-site reviews;
(5) Other reports prepared by the National Office;
(6) Information received from farmworker organizations and
employers; and
(7) Any other pertinent information which comes to his/her
attention from any possible source.
(8) In addition, the RMA must consider his/her personal
observations from visits to ES offices, agricultural work sites, and
migrant camps.
(l) The RMA must assist the Regional Administrator and other line
officials in applying appropriate corrective and remedial actions to
State agencies.
(m) The Regional Administrator's quarterly report to the National
Office must include the RMA's summary of his/her independent assessment
as required in paragraph (f)(5) of this section. The fourth quarter
summary must include an annual summary from the region. The summary
also must include both a quantitative and a qualitative analysis of
his/her reviews and must address all the matters with respect to which
he/she has responsibilities under these regulations.
(n) The RMA must review the activities and performance of the SMAs
and the State monitoring system in the region, and must recommend any
appropriate changes in the operation of the system to the Regional
Administrator. The RMA's review must include a determination whether
the SMA:
(1) Does not have adequate access to information;
(2) Is being impeded in fulfilling his/her duties; or
(3) Is making recommendations which are being consistently ignored
by SWA officials. If the RMA believes that the effectiveness of any SMA
has been substantially impeded by the State Administrator, other State
agency officials, or any Federal officials, he/she must report and
recommend appropriate actions to the Regional Administrator. Copies of
the recommendations must be provided to the NMA electronically or in
hard copy.
(o) The RMA must be informed of all proposed changes in policy and
practice within the ES, including ES regulations, which may affect the
delivery of services to MSFWs. He/she must advise the Regional
Administrator on all such proposed changes which, in his/her opinion,
may adversely affect MSFWs or which may substantially improve the
delivery of services to MSFWs.
The RMA also may recommend changes in ES policy or regulations, as
well as changes in the funding of State Workforce Agencies and/or
adjustments of reallocation of the discretionary portions of funding
formulae as they pertain to MSFWs.
(p) The RMA must participate in the review and assessment
activities required in this section and Sec. Sec. 658.700 through
658.711. He/she, an assistant, or another RMA, must participate in
National Office and regional office on-site statewide reviews of
employment services to MSFWs in States in the region. The RMA must
engage in the following activities in the course of participating in an
on-site SWA review:
(1) Accompany selected outreach workers on their field visits;
(2) Participate in a random field check of migrant camps or work
sites where MSFWs have been placed on intrastate or interstate
clearance orders;
(3) Contact local WIOA sec. 167 National Farmworker Jobs Program
grantees or other farmworker
[[Page 56364]]
organizations as part of the on-site review, and must discuss with
representatives of these organizations perceived trends, and/or other
relevant information concerning MSFWs in the area; and
(4) Meet with the SMA and discuss the full range of the employment
services to MSFWs, including monitoring and the Complaint System.
(q) During the calendar quarter preceding the time of peak MSFW
activity in each State, the RMA must meet with the SMA and must review
in detail the State Workforce Agency's capability for providing the
full range of services to MSFWs as required by ES regulations, during
the upcoming harvest season. The RMA must offer technical assistance
and recommend to the SWA and/or the Regional Administrator any changes
in State policy or practice that he/she finds necessary.
(r) The RMA each year during the peak harvest season must visit
each State in the region not scheduled for an on-site review during
that fiscal year and must:
(1) Meet with the SMA and other SWA staff to discuss MSFW service
delivery; and
(2) Contact representatives of MSFW organizations to obtain
information concerning ES delivery and coordination with other agencies
and interested employer organizations.
(s) The RMA must initiate and maintain regular and personal
contacts, including informal contacts in addition to those specifically
required by these regulations, with SMAs in the region. In addition,
the RMA must have personal and regular contact with the NMA. The RMA
also must establish routine and regular contacts with WIOA sec. 167
National Farmworker Jobs Program grantees, other farmworker
organizations and agricultural employers and/or employer organizations
in his/her region. He/she must attend conferences or meetings of these
groups wherever possible and must report to the Regional Administrator
and the Regional Farm Labor Coordinated Enforcement Committee on these
contacts when appropriate. He/she also must make recommendations as to
how the Department might better coordinate ES and WIOA sec. 167
National Farmworker Jobs Program services to MSFWs.
(t) The RMA must attend MSFW-related public meeting(s) conducted in
the region. Following such meetings or hearings, the RMA must take such
steps or make such recommendations to the Regional Administrator, as
he/she deems necessary to remedy problem(s) or condition(s) identified
or described therein.
(u) The RMA must attempt to achieve regional solutions to any
problems, deficiencies, or improper practices concerning services to
MSFWs which are regional in scope. Further, he/she must recommend
policies, offer technical assistance, or take any other necessary steps
as he/she deems desirable or appropriate on a regional, rather than
State-by-State basis, to promote region-wide improvement in the
delivery of employment services to MSFWs. He/she must facilitate
region-wide coordination and communication regarding provision of
employment services to MSFWs among SMAs, State Administrators, and
Federal ETA officials to the greatest extent possible. In the event
that any SWA or other RMA, enforcement agency, or MSFW group refers a
matter to the RMA which requires emergency action, he/she must assist
them in obtaining action by appropriate agencies and staff, inform the
originating party of the action taken, and, upon request, provide
written confirmation.
(v) The RMA must initiate and maintain such contacts as he/she
deems necessary with RMAs in other regions to seek to resolve problems
concerning MSFWs who work, live, or travel through the region. He/she
must recommend to the Regional Administrator and/or the National Office
inter-regional cooperation on any particular matter, problem, or policy
with respect to which inter-regional action is desirable.
(w) The RMA must establish regular contacts with the regional
agricultural coordinators from WHD and OSHA and any other regional
staff from other Federal enforcement agencies and must establish
contacts with the staff of other Department agencies represented on the
Regional Farm Labor Coordinated Enforcement Committee and to the extent
necessary, on other pertinent task forces or committees.
(x) The RMA must participate in the regional reviews of the State
Plans, and must comment to the Regional Administrator as to the SWA
compliance with the ES regulations as they pertain to services to
MSFWs, including the staffing of ES offices.
Sec. 658.604 Assessment and evaluation of program performance data.
(a) State Workforce Agencies must compile program performance data
required by the Department, including statistical information on
program operations.
(b) The Department must use the program performance data in
assessing and evaluating whether each SWA has complied with ES
regulations and its State Plan.
(c) In assessing and evaluating program performance data, the
Department must act in accordance with the following general
principles:
(1) The fact that the program performance data from a SWA, whether
overall or relative to a particular program activity, indicate poor
program performance does not by itself constitute a violation of ES
regulations or of the State Workforce Agency's responsibilities under
its State Plan;
(2) Program performance data, however, may so strongly indicate
that a SWA's performance is so poor that the data may raise a
presumption (prima facie case) that a SWA is violating ES regulations
or the State Plan. A SWA's failure to meet the operational objectives
set forth in the State Plan raises a presumption that the agency is
violating ES regulations and/or obligations under its State Plan. In
such cases, the Department must afford the SWA an opportunity to rebut
the presumption of a violation pursuant to the procedures at subpart H
of this part.
(3) The Department must take into account that certain program
performance data may measure items over which SWAs have direct or
substantial control while other data may measure items over which the
SWA has indirect or minimal control.
(i) Generally, for example, a SWA has direct and substantial
control over the delivery of employment services such as referrals to
jobs, job development contacts, counseling, referrals to career and
supportive services, and the conduct of field checks.
(ii) State Workforce Agencies, however, have only indirect control
over the outcome of services. For example, SWAs cannot guarantee that
an employer will hire a referred applicant, nor can they guarantee that
the terms and conditions of employment will be as stated on a job
order.
(iii) Outside forces, such as a sudden heavy increase in
unemployment rates, a strike by SWA employees, or a severe drought or
flood, may skew the results measured by program performance data.
(4) The Department must consider a SWA's failure to keep accurate
and complete program performance data required by ES regulations as a
violation of the ES regulations.
Sec. 658.605 Communication of findings to State agencies.
(a) The Regional Administrator must inform SWAs in writing of the
results of
[[Page 56365]]
review and assessment activities and, as appropriate, must discuss with
the State Administrator the impact or action required by the Department
as a result of review and assessment activities.
(b) The ETA National Office must transmit the results of any review
and assessment activities it conducted to the Regional Administrator
who must send the information to the SWA.
(c) Whenever the review and assessment indicates a SWA violation of
ES regulations or its State Plan, the Regional Administrator must
follow the procedures set forth at subpart H of this part.
(d) Regional Administrators must follow-up any corrective action
plan imposed on a SWA under subpart H of this part by further review
and assessment of the State Workforce Agency pursuant to this subpart.
Subpart H--Federal Application of Remedial Action to State
Workforce Agencies
Sec. 658.700 Scope and purpose of subpart.
This subpart sets forth the procedures which the Department must
follow upon either discovering independently or receiving from other(s)
information indicating that SWAs may not be adhering to ES regulations.
Sec. 658.701 Statements of policy.
(a) It is the policy of the Department to take all necessary
action, including the imposition of the full range of sanctions set
forth in this subpart, to ensure State Workforce Agencies comply with
all requirements established by ES regulations.
(b) It is the policy of the Department to initiate decertification
procedures against SWAs in instances of serious or continual violations
of ES regulations if less stringent remedial actions taken in
accordance with this subpart fail to resolve noncompliance.
(c) It is the policy of the Department to act on information
concerning alleged violations by SWAs of the ES regulations received
from any person or organization.
Sec. 658.702 Initial action by the Regional Administrator.
(a) The ETA Regional Administrator is responsible for ensuring that
all SWAs in his/her region are in compliance with ES regulations.
(b) Wherever a Regional Administrator discovers or is apprised of
possible SWA violations of ES regulations by the review and assessment
activities under subpart G of this part, or through required reports or
written complaints from individuals, organizations, or employers which
are elevated to the Department after the exhaustion of SWA
administrative remedies, the Regional Administrator must conduct an
investigation. Within 10 business days after receipt of the report or
other information, the Regional Administrator must make a determination
whether there is probable cause to believe that a SWA has violated ES
regulations.
(c) The Regional Administrator must accept complaints regarding
possible SWA violations of ES regulations from employee organizations,
employers or other groups, without exhaustion of the complaint process
described at subpart E of this part, if the Regional Administrator
determines that the nature and scope of the complaint are such that the
time required to exhaust the administrative procedures at the State
level would adversely affect a significant number of applicants. In
such cases, the Regional Administrator must investigate the matter
within 10 business days, may provide the SWA 10 business days for
comment, and must make a determination within an additional 10 business
days whether there is probable cause to believe that the SWA has
violated ES regulations.
(d) If the Regional Administrator determines that there is no
probable cause to believe that a SWA has violated ES regulations, he/
she must retain all reports and supporting information in Department
files. In all cases where the Regional Administrator has insufficient
information to make a probable cause determination, he/she must so
notify the Administrator in writing and the time for the investigation
must be extended 20 additional business days.
(e) If the Regional Administrator determines there is probable
cause to believe a SWA has violated ES regulations, he/she must issue a
Notice of Initial Findings of Non-compliance by registered mail (or
other legally viable means) to the offending SWA. The notice will
specify the nature of the violation, cite the regulations involved, and
indicate corrective action which may be imposed in accordance with
paragraphs (g) and (h) of this section. If the non-compliance involves
services to MSFWs or the Complaint System, a copy of said notice must
be sent to the NMA.
(f)(1) The SWA may have 20 business days to comment on the
findings, or up to 20 additional days, if the Regional Administrator
determines a longer period is appropriate. The SWA's comments must
include agreement or disagreement with the findings and suggested
corrective actions, where appropriate.
(2) After the period elapses, the Regional Administrator must
prepare within 20 business days, written final findings which specify
whether the SWA has violated ES regulations. If in the final findings
the Regional Administrator determines the SWA has not violated ES
regulations, the Regional Administrator must notify the State
Administrator of this finding and retain supporting documents in his/
her files. If the final finding involves services to MSFWs or the
Complaint System, the Regional Administrator also must notify the NMA.
If the Regional Administrator determines a SWA has violated ES
regulations, the Regional Administrator must prepare a Final Notice of
Noncompliance which must specify the violation(s) and cite the
regulations involved. The Final Notice of Noncompliance must be sent to
the SWA by registered mail or other legally viable means. If the
noncompliance involves services to MSFWs or the Complaint System, a
copy of the Final Notice must be sent to the NMA.
(g) If the violation involves the misspending of grant funds, the
Regional Administrator may order in the Final Notice of Noncompliance a
disallowance of the expenditure and may either demand repayment or
withhold future funds in the amount in question. If the Regional
Administrator disallows costs, the Regional Administrator must give the
reasons for the disallowance, inform the SWA that the disallowance is
effective immediately and that no more funds may be spent in the
disallowed manner, and offer the SWA the opportunity to request a
hearing pursuant to Sec. 658.707. The offer, or the acceptance of an
offer of a hearing, however, does not stay the effectiveness of the
disallowance. The Regional Administrator must keep complete records of
the disallowance.
(h) If the violation does not involve misspending of grant funds or
the Regional Administrator determines that the circumstances warrant
other action:
(1) The Final Notice of Noncompliance must direct the SWA to
implement a specific corrective action plan to correct all violations.
If the SWA's comment demonstrates with supporting evidence (except
where inappropriate) that all violations have already been corrected,
the Regional Administrator need not impose a corrective action plan and
instead may cite the violation(s) and accept the SWA's resolution,
subject to follow-up review, if necessary. If the Regional
Administrator determines that the violation(s) cited had been found
previously and that the corrective action(s) taken had not corrected
the
[[Page 56366]]
violation(s) contrary to the findings of previous follow-up reviews,
the Regional Administrator must apply remedial actions to the SWA
pursuant to Sec. 658.704.
(2) The Final Notice of Noncompliance must specify the time by
which each corrective action must be taken. This period may not exceed
40 business days unless the Regional Administrator determines that
exceptional circumstances necessitate corrective actions requiring a
longer time period. In such cases, and if the violations involve
services to MSFWs or the Complaint System, the Regional Administrator
must notify the Administrator in writing of the exceptional
circumstances which necessitate more time, and must specify the
additional time period. The specified time must commence with the date
of signature on the registered mail receipt.
(3) When the time provided for in paragraph (h)(2) of this section
elapses, Department staff must review the SWA's efforts as documented
by the SWA to determine if the corrective action(s) has been taken and
if the SWA has achieved compliance with ES regulations. If necessary,
Department staff must conduct a follow-up visit as part of this review.
(4) If, as a result of this review, the Regional Administrator
determines the SWA has corrected the violation(s), the Regional
Administrator must record the basis for this determination, notify the
SWA, send a copy to the Administrator, and retain a copy in Department
files.
(5) If, as a result of this review, the Regional Administrator
determines the SWA has taken corrective action but is unable to
determine if the violation has been corrected due to seasonality or
other factors, the Regional Administrator must notify in writing the
SWA and the Administrator of his/her findings. The Regional
Administrator must conduct further follow-up at an appropriate time to
make a final determination if the violation has been corrected. If the
Regional Administrator's follow-up reveals that violations have not
been corrected, the Regional Administrator must apply remedial actions
to the SWA pursuant to Sec. 658.704.
(6) If, as a result of the review the Regional Administrator
determines the SWA has not corrected the violations and has not made
good faith efforts and adequate progress toward the correction of the
violations, the Regional Administrator must apply remedial actions to
the SWA pursuant to Sec. 658.704.
(7) If, as a result of the review, the Regional Administrator
determines the SWA has made good faith efforts and adequate progress
toward the correction of the violation and it appears the violation
will be fully corrected within a reasonable amount of time, the SWA
must be advised by registered mail or other legally viable means (with
a copy sent to the Administrator) of this conclusion, of remaining
differences, of further needed corrective action, and that all
deficiencies must be corrected within a specified time period. This
period may not exceed 40 business days unless the Regional
Administrator determines exceptional circumstances necessitate
corrective action requiring more time. In such cases, the Regional
Administrator must notify the Administrator in writing of the
exceptional circumstances which necessitate more time, and must specify
that time period. The specified time commences with the date of
signature on the registered mail receipt.
(8)(i) If the SWA has been given additional time pursuant to
paragraph (h)(7) of this section, Department staff must review the
SWA's efforts as documented by the SWA at the end of the time period.
If necessary, the Department must conduct a follow-up visit as part of
this review.
(ii) If the SWA has corrected the violation(s), the Regional
Administrator must document that finding, notify in writing the SWA and
the Administrator, and retain supporting documents in Department files.
If the SWA has not corrected the violation(s), the Regional
Administrator must apply remedial actions pursuant to Sec. 658.704.
Sec. 658.703 Emergency corrective action.
In critical situations as determined by the Regional Administrator,
where it is necessary to protect the integrity of the funds, or ensure
the proper operation of the program, the Regional Administrator may
impose immediate corrective action. Where immediate corrective action
is imposed, the Regional Administrator must notify the SWA of the
reason for imposing the emergency corrective action prior to providing
the SWA an opportunity to comment.
Sec. 658.704 Remedial actions.
(a) If a SWA fails to correct violations as determined pursuant to
Sec. 658.702, the Regional Administrator must apply one or more of the
following remedial actions to the SWA:
(1) Imposition of special reporting requirements for a specified
time;
(2) Restrictions of obligational authority within one or more
expense classifications;
(3) Implementation of specific operating systems or procedures for
a specified time;
(4) Requirement of special training for SWA personnel;
(5) With the approval of the Assistant Secretary and after
affording the State Administrator the opportunity to request a
conference with the Assistant Secretary, the elevation of specific
decision-making functions from the State Administrator to the Regional
Administrator;
(6) With the approval of the Assistant Secretary and after
affording the State Administrator the opportunity to request a
conference with the Assistant Secretary, the imposition of Federal
staff in key SWA positions;
(7) With the approval of the Assistant Secretary and after
affording the State Administrator the opportunity to request a
conference with the Assistant Secretary, funding of the SWA on a short-
term basis or partial withholding of funds for a specific function or
for a specific geographical area;
(8) Holding of public hearings in the State on the SWA's
deficiencies;
(9) Disallowance of funds pursuant to Sec. 658.702(g); or
(10) If the matter involves a serious or continual violation, the
initiation of decertification procedures against the State Workforce
Agency, as set forth in paragraph (e) of this section.
(b) The Regional Administrator must send, by registered mail, a
Notice of Remedial Action to the SWA. The Notice of Remedial Action
must set forth the reasons for the remedial action. When such a notice
is the result of violations of regulations governing services to MSFWs
(Sec. Sec. 653.100 through 653.113 of this chapter) or the Complaint
System (Sec. Sec. 658.400 through 658.426), a copy of said notice must
be sent to the Administrator, who must publish the notice promptly in
the Federal Register.
(c) If the remedial action is other than decertification, the
notice must state the remedial action must take effect immediately. The
notice also must state the SWA may request a hearing pursuant to Sec.
658.707 by filing a request in writing with the Regional Administrator
pursuant to Sec. 658.707 within 20 business days of the SWA's receipt
of the notice. The offer of hearing, or the acceptance thereof,
however, does not stay or otherwise delay the implementation of
remedial action.
(d) Within 60 business days after the initial application of
remedial action, the Regional Administrator must conduct a review of
the SWA's compliance with ES regulations unless
[[Page 56367]]
the Regional Administrator determines more time is necessary. In such
cases, the Regional Administrator must notify the Administrator in
writing of the circumstances which necessitate more time, and specify
that time period. If necessary, Department staff must conduct a follow-
up visit as part of this review. If the SWA is in compliance with the
ES regulations, the Regional Administrator must fully document these
facts and must terminate the remedial actions. The Regional
Administrator must notify the SWA of his/her findings. When the case
involves violations of regulations governing services to MSFWs or the
Complaint System, a copy of said notice must be sent to the
Administrator, who must promptly publish the notice in the Federal
Register. The Regional Administrator must conduct, within a reasonable
time after terminating the remedial actions, a review of the SWA's
compliance to determine whether any remedial actions must be reapplied.
(e) If, upon conducting the on-site review referred to in paragraph
(c) of this section, the Regional Administrator finds the SWA remains
in noncompliance, the Regional Administrator must continue the remedial
action and/or impose different additional remedial actions. The
Regional Administrator must fully document all such decisions and, when
the case involves violations of regulations governing services to MSFWs
or the Complaint System, must send copies to the Administrator, who
must promptly publish the notice in the Federal Register.
(f)(1) If the SWA has not brought itself into compliance with ES
regulations within 120 business days of the initial application of
remedial action, the Regional Administrator must initiate
decertification unless the Regional Administrator determines the
circumstances necessitate continuing remedial action for more time. In
such cases, the Regional Administrator must notify the Administrator in
writing of the circumstances which necessitate the extended time, and
specify the time period.
(2) The Regional Administrator must notify the SWA by registered
mail or by other legally viable means of the decertification
proceedings, and must state the reasons therefor. Whenever such a
notice is sent to a SWA, the Regional Administrator must prepare five
copies (hard copies or electronic copies) containing, in chronological
order, all the documents pertinent to the case along with a request for
decertification stating the grounds therefor. One copy must be
retained. Two must be sent to the ETA National Office, one must be sent
to the Solicitor of Labor, Attention: Associate Solicitor for
Employment and Training, and, if the case involves violations of
regulations governing services to MSFWs or the Complaint System, one
copy must be sent to the NMA. All copies also must be sent
electronically to each respective party. The notice sent by the
Regional Administrator must be published promptly in the Federal
Register.
Sec. 658.705 Decision to decertify.
(a) Within 30 business days of receiving a request for
decertification, the ETA Assistant Secretary must review the case and
must decide whether to proceed with decertification.
(b) The Assistant Secretary must grant the request for
decertification unless he/she makes a finding that:
(1) The violations of ES regulations are neither serious nor
continual;
(2) The SWA is in compliance; or
(3) The Assistant Secretary has reason to believe the SWA will
achieve compliance within 80 business days unless exceptional
circumstances necessitate more time, pursuant to the remedial action
already applied or to be applied. (In the event the Assistant Secretary
does not have sufficient information to act upon the request, he/she
may postpone the determination for up to an additional 20 business days
in order to obtain any available additional information.) In making a
determination of whether violations are ``serious'' or ``continual,''
as required by paragraph (b)(1) of this section, the Assistant
Secretary must consider:
(i) Statewide or multiple deficiencies as shown by performance data
and/or on-site reviews;
(ii) Recurrent violations, even if they do not persist over
consecutive reporting periods, and
(iii) The good faith efforts of the State to achieve full
compliance with ES regulations as shown by the record.
(c) If the Assistant Secretary denies a request for
decertification, he/she must write a complete report documenting his/
her findings and, if appropriate, instructing an alternate remedial
action or actions be applied. Electronic copies of the report must be
sent to the Regional Administrator. Notice of the Assistant Secretary's
decision must be published promptly in the Federal Register and the
report of the Assistant Secretary must be made available for public
inspection and copying.
(d) If the Assistant Secretary decides decertification is
appropriate, he/she must submit the case to the Secretary providing
written explanation for his/her recommendation of decertification.
(e) Within 30 business days after receiving the Assistant
Secretary's report, the Secretary must determine whether to decertify
the SWA. The Secretary must grant the request for decertification
unless he/she makes one of the three findings set forth in paragraph
(b) of this section. If the Secretary decides not to decertify, he/she
must then instruct that remedial action be continued or that alternate
actions be applied. The Secretary must write a report explaining his/
her reasons for not decertifying the SWA and copies (hard copy and
electronic) will be sent to the SWA. Notice of the Secretary's decision
must be published promptly in the Federal Register, and the report of
the Secretary must be made available for public inspection and copy.
(f) Where either the Assistant Secretary or the Secretary denies a
request for decertification and orders further remedial action, the
Regional Administrator must continue to monitor the SWA's compliance.
If the SWA achieves compliance within the time established pursuant to
paragraph (b) of this section, the Regional Administrator must
terminate the remedial actions. If the SWA fails to achieve full
compliance within that time period after the Secretary's decision not
to decertify, the Regional Administrator must submit a report of his/
her findings to the Assistant Secretary who must reconsider the request
for decertification pursuant to the requirements of paragraph (b) of
this section.
Sec. 658.706 Notice of decertification.
If the Secretary decides to decertify a SWA, he/she must send a
Notice of Decertification to the SWA stating the reasons for this
action and providing a 10 business day period during which the SWA may
request an administrative hearing in writing to the Secretary. The
notice must be published promptly in the Federal Register.
Sec. 658.707 Requests for hearings.
(a) Any SWA which received a Notice of Decertification under Sec.
658.706 or a notice of disallowance under Sec. 658.702(g) may request
a hearing on the issue by filing a written request for hearing with the
Secretary within 10 business days of receipt of the notice. This
request must state the reasons the SWA believes the basis of the
decision to be wrong, and it must be signed by the State Administrator
(electronic signatures may be accepted).
(b) When the Secretary receives a request for a hearing from a SWA,
he/she must send copies of a file containing
[[Page 56368]]
all materials and correspondence relevant to the case to the Assistant
Secretary, the Regional Administrator, the Solicitor of Labor, and the
Department of Labor Chief Administrative Law Judge. When the case
involves violations of regulations governing services to MSFWs or the
Complaint System, a copy must be sent to the NMA.
(c) The Secretary must publish notice of hearing in the Federal
Register. This notice must invite all interested parties to attend and
to present evidence at the hearing. All interested parties who make
written request to participate must thereafter receive copies (hard
copy and/or electronic) of all documents filed in said proceedings.
Sec. 658.708 Hearings.
(a) Upon receipt of a hearing file by the Chief Administrative Law
Judge, the case must be docketed and notice sent by electronic mail,
other means of electronic service, or registered mail, return receipt
requested, to the Solicitor of Labor, Attention: Associate Solicitor
for Employment and Training, the Administrator, the Regional
Administrator and the State Administrator. The notice must set a time,
place, and date for a hearing on the matter and must advise the parties
that:
(1) They may be represented at the hearing;
(2) They may present oral and documentary evidence at the hearing;
(3) They may cross-examine opposing witnesses at the hearing; and
(4) They may request rescheduling of the hearing if the time,
place, or date set are inconvenient.
(b) The Solicitor of Labor or the Solicitor's designee will
represent the Department at the hearing.
Sec. 658.709 Conduct of hearings.
(a) Proceedings under this section are governed by secs. 5 through
8 of the Administrative Procedure Act, 5 U.S.C. 553 et seq. and the
rules of practice and procedure at subpart A of 29 CFR part 18, except
as otherwise specified in this section.
(b) Technical rules of evidence do not apply, but rules or
principles designed to assure production of the most credible evidence
available and to subject testimony to test by cross-examination, must
be applied if necessary by the ALJ conducting the hearing. The ALJ may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record must be
open to examination by the parties. Opportunity must be given to refute
facts and arguments advanced on either side of the issue. A transcript
must be made of the oral evidence except to the extent the substance
thereof is stipulated for the record.
(c) Discovery may be conducted as provided in the rules of practice
and procedure at 29 CFR 18.50 through 18.65.
(d) When a public officer is a respondent in a hearing in an
official capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the proceeding does not abate and the officer's
successor is automatically substituted as a party. Proceedings
following the substitution must be in the name of the substituted
party, but any misnomer not affecting the substantive rights of the
parties must be disregarded. An order of substitution may be entered at
any time, but the omission to enter such an order may not affect the
substitution.
Sec. 658.710 Decision of the Administrative Law Judge.
(a) The ALJ has jurisdiction to decide all issues of fact and
related issues of law and to grant or deny appropriate motions, but
does not have jurisdiction to decide upon the validity of Federal
statutes or regulations.
(b) The decision of the ALJ must be based on the hearing record,
must be in writing, and must state the factual and legal basis of the
decision. The ALJ's decision must be available for public inspection
and copying.
(c) Except when the case involves the decertification of a SWA, the
decision of the ALJ will be considered the final decision of the
Secretary.
(d) If the case involves the decertification of an appeal to the
SWA, the decision of the ALJ must contain a notice stating that, within
30 calendar days of the decision, the SWA or the Administrator may
appeal to the Administrative Review Board, United States Department of
Labor, by sending a written appeal to the Administrative Review Board.
Sec. 658.711 Decision of the Administrative Review Board.
(a) Upon the receipt of an appeal to the Administrative Review
Board, United States Department of Labor, the ALJ must certify the
record in the case to the Administrative Review Board, which must make
a decision to decertify or not on the basis of the hearing record.
(b) The decision of the Administrative Review Board is the final
decision of the Secretary on decertification appeals. It must be in
writing, and must set forth the factual and legal basis for the
decision. Notice of the Administrative Review Board's decision must be
published in the Federal Register, and copies must be made available
for public inspection and copying.
0
11. Add part 675 to read as follows:
PART 675--INTRODUCTION TO THE REGULATIONS FOR THE WORKFORCE
DEVELOPMENT SYSTEMS UNDER TITLE I OF THE WORKFORCE INNOVATION AND
OPPORTUNITY ACT
Sec.
675.100 What are the purposes of title I of the Workforce Innovation
and Opportunity Act?
675.200 What do the regulations for workforce development systems
under title I of the Workforce Innovation and Opportunity Act cover?
675.300 What definitions apply to these regulations?
Authority: Secs. 2, 3, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Sec. 675.100 What are the purposes of title I of the Workforce
Innovation and Opportunity Act?
The purposes of title I of the Workforce Innovation and Opportunity
Act (WIOA) include:
(a) Increasing access to, and opportunities for individuals to
receive, the employment, education, training, and support services
necessary to succeed in the labor market, with a particular focus on
those individuals with disabilities or other barriers to employment
including out of school youth with the goal of improving their
outcomes;
(b) Enhancing the strategic role for States and elected officials,
and Local Workforce Development Boards (WDBs) in the public workforce
system by increasing flexibility to tailor services to meet employer
and worker needs at State, regional, and local levels;
(c) Streamlining service delivery across multiple programs by
requiring colocation, coordination, and integration of activities and
information to make the system understandable and accessible for
individuals, including individuals with disabilities and those with
other barriers to employment, and businesses.
(d) Supporting the alignment of the workforce investment,
education, and economic development systems in support of a
comprehensive, accessible, and high-quality workforce development
system at the Federal, State, and local and regional levels;
(e) Improving the quality and labor market relevance of workforce
investment, education, and economic development efforts by promoting
the use of industry and sector partnerships,
[[Page 56369]]
career pathways, and regional service delivery strategies in order to
both provide America's workers with the skills and credentials that
will enable them to secure and advance in employment with family-
sustaining wages, and to provide America's employers with the skilled
workers the employers need to succeed in a global economy;
(f) Promoting accountability using core indicators of performance
measured across all WIOA authorized programs, sanctions, and high
quality evaluations to improve the structure and delivery of services
through the workforce development system to address and improve the
employment and skill needs of workers, job seekers, and employers;
(g) Increasing the prosperity and economic growth of workers,
employers, communities, regions, and States; and
(h) Providing workforce development activities through statewide
and local workforce development systems to increase employment,
retention and earnings of participants and to increase industry-
recognized postsecondary credential attainment to improve the quality
of the workforce, reduce welfare dependency, increase economic self-
sufficiency, meet skill requirements of employers, and enhance
productivity and competitiveness of the nation.
Sec. 675.200 What do the regulations for workforce development
systems under title I of the Workforce Innovation and Opportunity Act
cover?
(a) The regulations found in parts 675 through 688 of this chapter
set forth the regulatory requirements that are applicable to programs
operated with funds provided under title I of WIOA. This part describes
the purpose of that Act, explains the format of these regulations, and
sets forth definitions for terms that apply to each part. Parts 676,
677 and 678 of this chapter contain regulations relating to Unified and
Combined State Plans, performance accountability, and the one-stop
delivery system and the roles of one-stop partners, respectively. Part
679 of this chapter contains regulations relating to statewide and
local governance of the workforce development system. Part 680 of this
chapter sets forth requirements applicable to WIOA title I programs
serving adults and dislocated workers. Part 681 of this chapter sets
forth requirements applicable to WIOA title I programs serving youth.
Part 682 of this chapter contains regulations relating to statewide
activities. Part 683 of this chapter sets forth the administrative
requirements applicable to programs funded under WIOA title I. Parts
684 and 685 of this chapter contain the particular requirements
applicable to programs serving Indians and Native Americans and Migrant
and Seasonal Farmworkers, respectively. Parts 686 and 687 of this
chapter describe the particular requirements applicable to the Job
Corps and the national dislocated worker grant programs, respectively.
Part 688 of this chapter contains the regulations governing the
YouthBuild program. In addition, part 603 of this chapter provides the
requirements regarding confidentiality and disclosure of State
Unemployment Compensation program data under WIOA.
(b) Finally, parts 651 through 658 of this chapter address
provisions for the Wagner-Peyser Act Employment Service, as amended by
WIOA title III. Specifically, part 651 of this chapter contains general
provisions and definitions of terms used in parts 651 through 658 of
this chapter; part 652 of this chapter establishes the State Employment
Service and describes its operation and services; part 653 of this
chapter describes employment services to migrant and seasonal
farmworkers and the role of the State Monitor Advocate; part 654 of
this chapter addresses the special responsibilities of the Employment
Service regarding housing for farmworkers; and part 658 of this chapter
contains the administrative provisions that apply to the Wagner-Peyser
Act Employment Service.
(c) Title 29 CFR part 38 contains the Department's
nondiscrimination regulations implementing WIOA sec. 188.
Sec. 675.300 What definitions apply to these regulations?
In addition to the definitions set forth in WIOA and those set
forth in specific parts of this chapter, the following definitions
apply to the regulations in parts 675 through 688 of this chapter:
Consultation means the process by which State and/or local
stakeholders convene to discuss changes to the public workforce system
and constitutes a robust conversation in which all parties are given an
opportunity to share their thoughts and opinions.
Contract means a legal instrument by which a non-Federal entity
purchases property or services needed to carry out the project or
program under a Federal award. The term as used in this part does not
include a legal instrument, even if the non-Federal entity considers it
a contract, when the substance of the transaction meets the definition
of a Federal award or subaward as defined in this section.
Contractor means an entity that receives a contract as defined in
this section.
Cooperative agreement means a legal instrument of financial
assistance between a Federal awarding agency or pass-through entity and
a non-Federal entity that, consistent with 31 U.S.C. 6302-6305:
(1) Is used to enter into a relationship the principal purpose of
which is to transfer anything of value from the Federal awarding agency
or pass-through entity to the non-Federal entity to carry out a public
purpose authorized by a law of the United States (see 31 U.S.C.
6101(3)); and not to acquire property or services for the Federal
government or pass-through entity's direct benefit or use;
(2) Is distinguished from a grant in that it provides for
substantial involvement between the Federal awarding agency or pass-
through entity and the non-Federal entity in carrying out the activity
contemplated by the Federal award.
(3) The term does not include:
(i) A cooperative research and development agreement as defined in
15 U.S.C. 3710a; or
(ii) An agreement that provides only:
(A) Direct United States Government cash assistance to an
individual;
(B) A subsidy;
(C) A loan;
(D) A loan guarantee; or
(E) Insurance.
Department means the U.S. Department of Labor, including its
agencies and organizational units.
Employment and training activity means a workforce investment
activity that is carried out for an adult or dislocated worker under
part 678 of this chapter.
Equal opportunity data or EO data means data on race and ethnicity,
age, sex, and disability required by 29 CFR part 38 of the Department
of Labor regulations implementing sec. 188 of WIOA, governing
nondiscrimination.
Employment and Training Administration or ETA means the Employment
and Training Administration of the U.S. Department of Labor.
Family means two or more persons related by blood, marriage, or
decree of court, who are living in a single residence, and are included
in one or more of the following categories:
(1) A married couple and dependent children;
(2) A parent or guardian and dependent children; or
(3) A married couple.
[[Page 56370]]
Federal award means:
(1) The Federal financial assistance that a non-Federal entity
receives directly from a Federal awarding agency or indirectly from a
pass-through entity, as described in 2 CFR 200.101 (Applicability);
(2) The cost-reimbursement contract under the Federal Acquisition
Regulations that a non-Federal entity receives directly from a Federal
awarding agency or indirectly from a pass-through entity, as described
in 2 CFR 200.101 (Applicability); and
(3) The instrument setting forth the terms and conditions. The
instrument is the grant agreement, cooperative agreement, other
agreement for assistance covered in paragraph (b) of 2 CFR 200.40
(Federal financial assistance), or the cost-reimbursement contract
awarded under the Federal Acquisition Regulations.
(4) Federal award does not include other contracts that a Federal
agency uses to buy goods or services from a contractor or a contract to
operate Federal government owned, contractor operated facilities
(GOCOs).
Federal financial assistance means:
(1) For grants and cooperative agreements, assistance in the form
of:
(i) Grants;
(ii) Cooperative agreements;
(iii) Non-cash contributions or donations of property (including
donated surplus property);
(iv) Direct appropriations;
(v) Food commodities; and
(vi) Other financial assistance, except assistance listed in
paragraph (2) of this definition.
(2) For purposes of the audit requirements at 2 CFR part 200,
subpart F, Federal financial assistance includes assistance that non-
Federal entities receive or administer in the form of:
(i) Loans;
(ii) Loan Guarantees;
(iii) Interest subsidies; and
(iv) Insurance.
(3) Federal financial assistance does not include amounts received
as reimbursement for services rendered to individuals as described in 2
CFR 200.502, which outlines the basis for determining Federal awards
expended.
Grant or grant agreement means a legal instrument of financial
assistance between a Federal awarding agency and a non-Federal entity
that, consistent with 31 U.S.C. 6302, 6304:
(1) Is used to enter into a relationship the principal purpose of
which is to transfer anything of value from the Federal awarding agency
to carry out a public purpose authorized by a law of the United States
(see 31 U.S.C. 6101(3)); and not to acquire property or services for
the Federal awarding agency's direct benefit or use;
(2) Is distinguished from a cooperative agreement in that it does
not provide for substantial involvement between the Federal awarding
agency or pass-through entity and the non-Federal entity in carrying
out the activity contemplated by the Federal award.
(3) Grant agreement does not include an agreement that provides
only:
(i) Direct United States Government cash assistance to an
individual;
(ii) A subsidy;
(iii) A loan;
(iv) A loan guarantee; or
(v) Insurance.
Grantee means the direct recipient of grant funds from the
Department of Labor under a grant or grant agreement. A grantee also
may be referred to as a recipient.
Individual with a disability means an individual with any
disability as defined in sec. 3 of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12102). For purposes of WIOA sec. 188, this term is
defined at 29 CFR 38.4.
Labor Federation means an alliance of two or more organized labor
unions for the purpose of mutual support and action.
Literacy means an individual's ability to read, write, and speak in
English, and to compute, and solve problems, at levels of proficiency
necessary to function on the job, in the family of the individual, and
in society.
Local WDB means a Local Workforce Development Board (WDB)
established under WIOA sec. 107, to set policy for the local workforce
development system.
Non-Federal entity, as defined in 2 CFR 2900.2, means a State,
local government, Indian tribe, institution of higher education (IHE),
for-profit entity, foreign public entity, foreign organization or
nonprofit organization that carries out a Federal award as a recipient
or subrecipient.
Obligations when used in connection with a non-Federal entity's
utilization of funds under a Federal award, means orders placed for
property and services, contracts and subawards made, and similar
transactions during a given period that require payment by the non-
Federal entity during the same or a future period.
Outlying area means:
(1) The United States Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands; and
(2) The Republic of Palau, except during a period that the
Secretaries determine both that a Compact of Free Association is in
effect and that the Compact contains provisions for training and
education assistance prohibiting the assistance provided under WIOA.
Pass-through entity means a non-Federal entity that provides a
subaward to a subrecipient to carry out part of a Federal program.
Recipient means a non-Federal entity that receives a Federal award
directly from a Federal awarding agency to carry out an activity under
a Federal program. The term recipient does not include subrecipients.
Register means the process for collecting information, including
identifying information, to determine an individual's eligibility for
services under WIOA title I. Individuals may be registered in a variety
ways, as described in Sec. 680.110 of this chapter.
Secretary means the Secretary of the U.S. Department of Labor, or
their designee.
Secretaries means the Secretaries of the U.S. Department Labor and
the U.S. Department of Education, or their designees.
Self-certification means an individual's signed attestation that
the information they submit to demonstrate eligibility for a program
under title I of WIOA is true and accurate.
State means each of the several States of the United States, the
District of Columbia, and the Commonwealth of Puerto Rico. The term
``State'' does not include outlying areas.
State WDB means a State Workforce Development Board (WDB)
established under WIOA sec. 101.
Subgrant or subaward means an award provided by a pass-through
entity to a subrecipient for the subrecipient to carry out part of a
Federal award received by the pass-through entity. It does not include
payments to a contractor or payments to an individual that is a
beneficiary of a Federal program. A subaward may be provided through
any form of legal agreement, including an agreement that the pass-
through entity considers a contract.
Subrecipient means a non-Federal entity that receives a subaward
from a pass-through entity to carry out part of a Federal program, but
does not include an individual that is a beneficiary of such program. A
subrecipient also may be a recipient of other Federal awards directly
from a Federal awarding agency.
Unliquidated obligations means, for financial reports prepared on a
cash basis, obligations incurred by the non-Federal entity that have
not been paid (liquidated). For reports prepared on an accrual
expenditure basis, these are obligations incurred by the non-Federal
[[Page 56371]]
entity for which an expenditure has not been recorded.
Unobligated balance means the amount of funds under a Federal award
that the non-Federal entity has not obligated. The amount is computed
by subtracting the cumulative amount of the non-Federal entity's
unliquidated obligations and expenditures of funds under the Federal
award from the cumulative amount of the funds that the Federal awarding
agency or pass- through entity authorized the non- Federal entity to
obligate.
Wagner-Peyser Act means the Act of June 6, 1933, as amended,
codified at 29 U.S.C. 49 et seq.
WIA regulations mean the regulations in parts 660 through 672 of
this chapter, the Wagner-Peyser Act regulations in part 652, subpart C,
of this chapter, and the regulations implementing WIA sec. 188 in 29
CFR part 37.
WIOA regulations mean the regulations in parts 675 through 687 of
this chapter, the Wagner-Peyser Act regulations in part 652, subpart C,
of this chapter, and the regulations implementing WIA sec. 188 in 29
CFR part 38.
Workforce investment activities mean the array of activities
permitted under title I of WIOA, which include employment and training
activities for adults and dislocated workers, as described in WIOA sec.
134, and youth activities, as described in WIOA sec. 129.
Youth workforce investment activity means a workforce investment
activity that is carried out for eligible youth under part 679 of this
chapter.
0
12. Add part 679 to read as follows:
PART 679--STATEWIDE AND LOCAL GOVERNANCE OF THE WORKFORCE
DEVELOPMENT SYSTEM UNDER TITLE I OF THE WORKFORCE INNOVATION AND
OPPORTUNITY ACT
Subpart A--State Workforce Development Board
Sec.
679.100 What is the purpose of the State Workforce Development
Board?
679.110 What is the State Workforce Development Board?
679.120 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
679.130 What are the functions of the State Workforce Development
Board?
679.140 How does the State Workforce Development Board meet its
requirement to conduct business in an open manner under ``sunshine
provision'' of the Workforce Innovation and Opportunity Act?
679.150 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Development
Board?
679.160 Under what circumstances may the State Workforce Development
Board hire staff?
Subpart B--Workforce Innovation and Opportunity Act Local Governance
(Workforce Development Areas)
Sec.
679.200 What is the purpose of requiring States to identify regions?
679.210 What are the requirements for identifying a region?
679.220 What is the purpose of the local area?
679.230 What are the general procedural requirements for designation
of local areas?
679.240 What are the substantive requirements for designation of
local areas that were not designated as local areas under the
Workforce Investment Act of 1998?
679.250 What are the requirements for initial and subsequent
designation of workforce development areas that had been designated
as local areas under the Workforce Investment Act of 1998?
679.260 What do the terms ``performed successfully'' and ``sustained
fiscal integrity'' mean for purposes of designating local areas?
679.270 What are the special designation provisions for single-area
States?
679.280 How does the State fulfill the requirement to provide
assistance to local areas within a planning region that wish to
redesignate into a single local area?
679.290 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce
development area?
Subpart C--Local Workforce Development Boards
Sec.
679.300 What is the vision and purpose of the Local Workforce
Development Board?
679.310 What is the Local Workforce Development Board?
679.320 Who are the required members of the Local Workforce
Development Board?
679.330 Who must chair a Local Workforce Development Board?
679.340 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
679.350 What criteria will be used to establish the membership of
the Local Workforce Development Board?
679.360 What is a standing committee, and what is its relationship
to the Local Workforce Development Board?
679.370 What are the functions of the Local Workforce Development
Board?
679.380 How does the Local Workforce Development Board satisfy the
consumer choice requirements for career services and training
services?
679.390 How does the Local Workforce Development Board meet its
requirement to conduct business in an open manner under the
``sunshine provision'' of the Workforce Innovation and Opportunity
Act?
679.400 Who are the staff to the Local Workforce Development Board
and what is their role?
679.410 Under what conditions may a Local Workforce Development
Board directly be a provider of career services, or training
services, or act as a one-stop operator?
679.420 What are the functions of the local fiscal agent?
679.430 How do entities performing multiple functions in a local
area demonstrate internal controls and prevent conflict of interest?
Subpart D--Regional and Local Plan
Sec.
679.500 What is the purpose of the regional and local plan?
679.510 What are the requirements for regional planning?
679.520 What are the requirements for approval of a regional plan?
679.530 When must the regional plan be modified?
679.540 How are local planning requirements reflected in a regional
plan?
679.550 What are the requirements for the development of the local
plan?
679.560 What are the contents of the local plan?
679.570 What are the requirements for approval of a local plan?
679.580 When must the local plan be modified?
Subpart E--Waivers/WorkFlex (Workforce Flexibility Plan)
Sec.
679.600 What is the purpose of the general statutory and regulatory
waiver authority in the Workforce Innovation and Opportunity Act?
679.610 What provisions of the Workforce Innovation and Opportunity
Act and the Wagner-Peyser Act may be waived, and what provisions may
not be waived?
679.620 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under the Workforce Innovation and Opportunity Act?
679.630 Under what conditions may the Governor submit a workforce
flexibility plan?
679.640 What limitations apply to the State's workforce flexibility
plan authority under the Workforce Innovation and Opportunity Act?
Authority: Secs. 101, 106, 107, 108, 189, 503, Public Law 113-
128, 128 Stat. 1425 (Jul. 22, 2014).
[[Page 56372]]
Subpart A--State Workforce Development Board
Sec. 679.100 What is the purpose of the State Workforce Development
Board?
The purpose of the State Workforce Development Board (WDB) is to
convene State, regional, and local workforce system and partners, to--
(a) Enhance the capacity and performance of the workforce
development system;
(b) Align and improve the outcomes and effectiveness of Federally-
funded and other workforce programs and investments; and
(c) Through these efforts, promote economic growth.
(d) Engage public workforce system representatives, including
businesses, education providers, economic development, labor
representatives, and other stakeholders to help the workforce
development system achieve the purpose of the Workforce Innovation and
Opportunity Act (WIOA); and
(e) Assist to achieve the State's strategic and operational vision
and goals as outlined in the State Plan.
Sec. 679.110 What is the State Workforce Development Board?
(a) The State WDB is a board established by the Governor in
accordance with the requirements of WIOA sec. 101 and this section.
(b) The membership of the State WDB must meet the requirements of
WIOA sec. 101(b) and must represent diverse geographic areas of the
State, including urban, rural, and suburban areas. The WDB membership
must include:
(1) The Governor;
(2) A member of each chamber of the State legislature, appointed by
the appropriate presiding officers of such chamber, as appropriate
under State law; and
(3) Members appointed by the Governor, which must include:
(i) A majority of representatives of businesses or organizations in
the State who:
(A) Are the owner or chief executive officer for the business or
organization, or is an executive with the business or organization with
optimum policy-making or hiring authority, and also may be members of a
Local WDB as described in WIOA sec. 107(b)(2)(A)(i);
(B) Represent businesses, or organizations that represent
businesses described in paragraph (b)(3)(i) of this section, that, at a
minimum, provide employment and training opportunities that include
high-quality, work-relevant training and development in in-demand
industry sectors or occupations in the State; and
(C) Are appointed from a list of potential members nominated by
State business organizations and business trade associations; and
(D) At a minimum, one member representing small businesses as
defined by the U.S. Small Business Administration.
(ii) Not less than 20 percent who are representatives of the
workforce within the State, which:
(A) Must include two or more representatives of labor organizations
nominated by State labor federations;
(B) Must include one representative who must be a member of a labor
organization or training director from a joint labor-management
registered apprenticeship program, or, if no such joint program exists
in the State, a member of a labor organization or training director who
is a representative of an registered apprenticeship program;
(C) May include one or more representatives of community-based
organizations that have demonstrated experience and expertise in
addressing the employment, training, or education needs of individuals
with barriers to employment, including organizations that serve
veterans or provide or support competitive, integrated employment for
individuals with disabilities; and
(D) May include one or more representatives of organizations that
have demonstrated experience and expertise in addressing the
employment, training, or education needs of eligible youth, including
representatives of organizations that serve out-of-school youth.
(iii) The balance of the members:
(A) Must include representatives of the Government including:
(1) The lead State officials with primary responsibility for the
following core programs--
(i) The adult, dislocated worker, and youth programs authorized
under title I of WIOA and the Wagner-Peyser Act;
(ii) The Adult Education and Family Literacy Act (AEFLA) program
authorized under title II of WIOA; and
(iii) The State Vocational Rehabilitation (VR) program authorized
under the Rehabilitation Act of 1973, as amended by title IV of WIOA.
(iv) Where the lead official represents more than one core program,
that official must ensure adequate representation of the needs of all
core programs under his or her jurisdiction.
(2) Two or more chief elected officials (collectively representing
both cities and counties, where appropriate).
(B) May include other appropriate representatives and officials
designated by the Governor, such as, but not limited to, State agency
officials responsible for one-stop partner programs, economic
development or juvenile justice programs in the State, individuals who
represent an Indian tribe or tribal organization as defined in WIOA
sec. 166(b), and State agency officials responsible for education
programs in the State, including chief executive officers of community
colleges and other institutions of higher education.
(c) The Governor must select a chairperson for the State WDB from
the business representatives on the WDB described in paragraph
(b)(3)(i) of this section).
(d) The Governor must establish by-laws that at a minimum address:
(1) The nomination process used by the Governor to select the State
WDB chair and members;
(2) The term limitations and how the term appointments will be
staggered to ensure only a portion of membership expire in a given
year;
(3) The process to notify the Governor of a WDB member vacancy to
ensure a prompt nominee;
(4) The proxy and alternative designee process that will be used
when a WDB member is unable to attend a meeting and assigns a designee
as per the following requirements:
(i) If the alternative designee is a business representative, he or
she must have optimum policy-making hiring authority.
(ii) Other alternative designees must have demonstrated experience
and expertise and optimum policy-making authority.
(5) The use of technology, such as phone and Web-based meetings,
that must be used to promote WDB member participation;
(6) The process to ensure members actively participate in convening
the workforce development system's stakeholders, brokering
relationships with a diverse range of employers, and leveraging support
for workforce development activities; and
(7) Other conditions governing appointment or membership on the
State WDB as deemed appropriate by the Governor.
(e) Members who represent organizations, agencies or other entities
described in paragraphs (b)(3)(ii) through (iii) of this section must
be individuals who have optimum policy-making authority in the
organization or for the core program that they represent.
(f)(1) A State WDB member may not represent more than one of the
categories described in:
(i) Paragraph (b)(3)(i) of this section (business representatives);
[[Page 56373]]
(ii) Paragraph (b)(3)(ii) of this section (workforce
representatives); or
(iii) Paragraph (b)(3)(iii) of this section (government
representatives).
(2) A State WDB member may not serve as a representative of more
than one subcategory under paragraph (b)(3)(ii) of this section.
(3) A State WDB member may not serve as a representative of more
than one subcategory under paragraph (b)(3)(iii) of this section,
except that where a single government agency is responsible for
multiple required programs, the head of the agency may represent each
of the required programs.
(g) All required WDB members must have voting privileges. The
Governor also may convey voting privileges to non-required members.
Sec. 679.120 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
For purposes of Sec. 679.110:
(a) A representative with ``optimum policy-making authority'' is an
individual who can reasonably be expected to speak affirmatively on
behalf of the entity he or she represents and to commit that entity to
a chosen course of action.
(b) A representative with ``demonstrated experience and expertise''
means an individual with documented leadership in developing or
implementing workforce development, human resources, training and
development, or a core program function. Demonstrated experience and
expertise may include individuals with experience in education or
training of job seekers with barriers to employment as described in
Sec. 679.110(b)(3)(ii)(C) and (D).
Sec. 679.130 What are the functions of the State Workforce
Development Board?
Under WIOA sec. 101(d), the State WDB must assist the Governor in
the:
(a) Development, implementation, and modification of the 4-year
State Plan;
(b) Review of statewide policies, programs, and recommendations on
actions that must be taken by the State to align workforce development
programs to support a comprehensive and streamlined workforce
development system. Such review of policies, programs, and
recommendations must include a review and provision of comments on the
State Plans, if any, for programs and activities of one-stop partners
that are not core programs;
(c) Development and continuous improvement of the workforce
development system, including--
(1) Identification of barriers and means for removing barriers to
better coordinate, align, and avoid duplication among programs and
activities;
(2) Development of strategies to support career pathways for the
purpose of providing individuals, including low-skilled adults, youth,
and individuals with barriers to employment, including individuals with
disabilities, with workforce investment activities, education, and
supportive services to enter or retain employment;
(3) Development of strategies to provide effective outreach to and
improved access for individuals and employers who could benefit from
workforce development system;
(4) Development and expansion of strategies to meet the needs of
employers, workers, and job seekers particularly through industry or
sector partnerships related to in-demand industry sectors and
occupations;
(5) Identification of regions, including planning regions for the
purposes of WIOA sec. 106(a), and the designation of local areas under
WIOA sec. 106, after consultation with Local WDBs and chief elected
officials;
(6) Development and continuous improvement of the one-stop delivery
system in local areas, including providing assistance to Local WDBs,
one-stop operators, one-stop partners, and providers. Such assistance
includes assistance with planning and delivering services, including
training and supportive services, to support effective delivery of
services to workers, job seekers, and employers; and
(7) Development of strategies to support staff training and
awareness across the workforce development system and its programs;
(d) Development and updating of comprehensive State performance and
accountability measures to assess core program effectiveness under WIOA
sec. 116(b);
(e) Identification and dissemination of information on best
practices, including best practices for--
(1) The effective operation of one-stop centers, relating to the
use of business outreach, partnerships, and service delivery
strategies, including strategies for serving individuals with barriers
to employment;
(2) The development of effective Local WDBs, which may include
information on factors that contribute to enabling Local WDBs to exceed
negotiated local levels of performance, sustain fiscal integrity, and
achieve other measures of effectiveness; and
(3) Effective training programs that respond to real-time labor
market analysis, that effectively use direct assessment and prior
learning assessment to measure an individual's prior knowledge, skills,
competencies, and experiences for adaptability, to support efficient
placement into employment or career pathways;
(f) Development and review of statewide policies affecting the
coordinated provision of services through the State's one-stop delivery
system described in WIOA sec. 121(e), including the development of--
(1) Objective criteria and procedures for use by Local WDBs in
assessing the effectiveness, physical and programmatic accessibility
and continuous improvement of one-stop centers. Where a Local WDB
serves as the one-stop operator, the State WDB must use such criteria
to assess and certify the one-stop center;
(2) Guidance for the allocation of one-stop center infrastructure
funds under WIOA sec. 121(h); and
(3) Policies relating to the appropriate roles and contributions of
entities carrying out one-stop partner programs within the one-stop
delivery system, including approaches to facilitating equitable and
efficient cost allocation in the system;
(g) Development of strategies for technological improvements to
facilitate access to, and improve the quality of services and
activities provided through the one-stop delivery system, including
such improvements to--
(1) Enhance digital literacy skills (as defined in sec. 202 of the
Museum and Library Service Act, 20 U.S.C. 9101);
(2) Accelerate acquisition of skills and recognized postsecondary
credentials by participants;
(3) Strengthen professional development of providers and workforce
professionals; and
(4) Ensure technology is accessible to individuals with
disabilities and individuals residing in remote areas;
(h) Development of strategies for aligning technology and data
systems across one-stop partner programs to enhance service delivery
and improve efficiencies in reporting on performance accountability
measures, including design implementation of common intake, data
collection, case management information, and performance accountability
measurement and reporting processes and the incorporation of local
input into such design and implementation to improve coordination of
services across one-stop partner programs;
(i) Development of allocation formulas for the distribution of
funds for employment and training activities for adults and youth
workforce investment activities, to local areas as permitted under WIOA
secs. 128(b)(3) and 133(b)(3);
[[Page 56374]]
(j) Preparation of the annual reports described in paragraphs (1)
and (2) of WIOA sec. 116(d);
(k) Development of the statewide workforce and labor market
information system described in sec. 15(e) of the Wagner-Peyser Act;
and
(l) Development of other policies as may promote statewide
objectives for and enhance the performance of the workforce development
system in the State.
Sec. 679.140 How does the State Workforce Development Board meet its
requirement to conduct business in an open manner under the ``sunshine
provision'' of the Workforce Innovation and Opportunity Act?
(a) The State WDB must conduct business in an open manner as
required by WIOA sec. 101(g).
(b) The State WDB must make available to the public, on a regular
basis through electronic means and open meetings, information about the
activities and functions of the State WDB, including:
(1) The State Plan, or modification to the State Plan, prior to
submission of the State Plan or modification of the State Plan;
(2) Information regarding membership;
(3) Minutes of formal meetings of the State WDB upon request;
(4) State WDB by-laws as described at Sec. 679.110(d).
Sec. 679.150 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Development Board?
(a) The State may use any State entity that meets the requirements
of WIOA sec. 101(e) to perform the functions of the State WDB. This may
include:
(1) A State council;
(2) A State WDB within the meaning of the Workforce Investment Act
of 1998, as in effect on the day before the date of enactment of WIOA;
or
(3) A combination of regional WDBs or similar entity.
(b) If the State uses an alternative entity, the State Plan must
demonstrate that the alternative entity meets all three of the
requirements of WIOA sec. 101(e)(1):
(1) Was in existence on the day before the date of enactment of the
Workforce Investment Act of 1998 (WIA);
(2) Is substantially similar to the State WDB described in WIOA
secs. 101(a)-(c) and Sec. 679.110; and
(3) Includes representatives of business and labor organizations in
the State.
(c) If the alternative entity does not provide representatives for
each of the categories required under WIOA sec. 101(b), the State Plan
must explain the manner in which the State will ensure an ongoing role
for any unrepresented membership group in the workforce development
system. The State WDB must maintain an ongoing and meaningful role for
an unrepresented membership group, including entities carrying out the
core programs, by such methods as:
(1) Regularly scheduled consultations with entities within the
unrepresented membership groups;
(2) Providing an opportunity for input into the State Plan or other
policy development by unrepresented membership groups; and
(3) Establishing an advisory committee of unrepresented membership
groups.
(d) In parts 675 through 687 of this chapter, all references to the
State WDB also apply to an alternative entity used by a State.
Sec. 679.160 Under what circumstances may the State Workforce
Development Board hire staff?
(a) The State WDB may hire a director and other staff to assist in
carrying out the functions described in WIOA sec. 101(d) and Sec.
679.130 using funds described in WIOA sec. 129(b)(3) or sec.
134(a)(3)(B)(i).
(b) The State WDB must establish and apply a set of objective
qualifications for the position of director that ensures the individual
selected has the requisite knowledge, skills, and abilities to meet
identified benchmarks and to assist in effectively carrying out the
functions of the State WDB.
(c) The director and staff must be subject to the limitations on
the payment of salary and bonuses described in WIOA sec. 194(15).
Subpart B--Workforce Innovation and Opportunity Act Local
Governance (Workforce Development Areas)
Sec. 679.200 What is the purpose of requiring States to identify
regions?
The purpose of identifying regions is to align workforce
development activities and resources with larger regional economic
development areas and available resources to provide coordinated and
efficient services to both job seekers and employers.
Sec. 679.210 What are the requirements for identifying a region?
(a) The Governor must assign local areas to a region prior to
submission of the State Unified or Combined Plan, in order for the
State to receive WIOA title I, subtitle B adult, dislocated worker, and
youth allotments.
(b) The Governor must develop a policy and process for identifying
regions. Such policy must include:
(1) Consultation with the Local WDBs and chief elected officials
(CEOs) in the local area(s) as required in WIOA sec.
102(b)(2)(D)(i)(II) and WIOA sec. 106(a)(1); and
(2) Consideration of the extent to which the local areas in a
proposed region:
(i) Share a single labor market;
(ii) Share a common economic development area; and
(iii) Possess the Federal and non-Federal resources, including
appropriate education and training institutions, to administer
activities under WIOA subtitle B.
(c) In addition to the required criteria described in paragraph
(b)(2) of this section, other factors the Governor also may consider
include:
(1) Population centers;
(2) Commuting patterns;
(3) Land ownership;
(4) Industrial composition;
(5) Location quotients;
(6) Labor force conditions;
(7) Geographic boundaries; and
(8) Additional factors as determined by the Secretary.
(d) Regions must consist of:
(1) One local area;
(2) Two or more contiguous local areas in a single State; or
(3) Two or more contiguous local areas in two or more States.
(e) Planning regions are those regions described in paragraph
(d)(2) or (3) of this section. Planning regions are subject to the
regional planning requirements in Sec. 679.510.
Sec. 679.220 What is the purpose of the local area?
(a) The purpose of a local area is to serve as a jurisdiction for
the administration of workforce development activities and execution of
adult, dislocated worker, and youth funds allocated by the State. Such
areas may be aligned with a region identified in WIOA sec. 106(a)(1) or
may be components of a planning region, each with its own Local WDB.
Also, significantly, local areas are the areas within which Local WDBs
oversee their functions, including strategic planning, operational
alignment and service delivery design, and a jurisdiction where
partners align resources at a sub-State level to design and implement
overall service delivery strategies.
(b) The Governor must designate local areas (local areas) in order
for the State to receive adult, dislocated worker, and youth funding
under title I, subtitle B of WIOA.
[[Page 56375]]
Sec. 679.230 What are the general procedural requirements for
designation of local areas?
As part of the process of designating or redesignating a local
area, the Governor must develop a policy for designation of local areas
that must include:
(a) Consultation with the State WDB;
(b) Consultation with the chief elected officials and affected
Local WDBs; and
(c) Consideration of comments received through a public comment
process which must:
(1) Offer adequate time for public comment prior to designation of
the local area; and
(2) Provide an opportunity for comment by representatives of Local
WDBs, chief elected officials, businesses, institutions of higher
education, labor organizations, other primary stakeholders, and the
general public regarding the designation of the local area.
Sec. 679.240 What are the substantive requirements for designation of
local areas that were not designated as local areas under the Workforce
Investment Act of 1998?
(a) Except as provided in Sec. 679.250, the Governor may designate
or redesignate a local area in accordance with policies and procedures
developed by the Governor, which must include at a minimum
consideration of the extent to which the proposed area:
(1) Is consistent with local labor market areas;
(2) Has a common economic development area; and
(3) Has the Federal and non-Federal resources, including
appropriate education and training institutions, to administer
activities under WIOA subtitle B.
(b) The Governor may approve a request at any time for designation
as a workforce development area from any unit of general local
government, including a combination of such units, if the State WDB
determines that the area meets the requirements of paragraph (a)(1) of
this section and recommends designation.
(c) Regardless of whether a local area has been designated under
this section or Sec. 679.250, the Governor may redesignate a local
area if the redesignation has been requested by a local area and the
Governor approves the request.
Sec. 679.250 What are the requirements for initial and subsequent
designation of workforce development areas that had been designated as
local areas under the Workforce Investment Act of 1998?
(a) If the chief elected official and Local WDB in a local area
submits a request for initial designation, the Governor must approve
the request if, for the 2 program years preceding the date of enactment
of WIOA, the following criteria are met:
(1) The local area was designated as a local area for purposes of
WIA;
(2) The local area performed successfully; and
(3) The local area sustained fiscal integrity.
(b) Subject to paragraph (c) of this section, after the period of
initial designation, if the chief elected official and Local WDB in a
local area submits a request for subsequent designation, the Governor
must approve the request if the following criteria are met for the 2
most recent program years of initial designation:
(1) The local area performed successfully;
(2) The local area sustained fiscal integrity; and
(3) In the case of a local area in a planning region, the local
area met the regional planning requirements described in WIOA sec.
106(c)(1).
(c) No determination of subsequent eligibility may be made before
the conclusion of Program Year (PY) 2017.
(d) The Governor:
(1) May review a local area designated under paragraph (b) of this
section at any time to evaluate whether that the area continues to meet
the requirements for subsequent designation under that paragraph; and
(2) Must review a local area designated under paragraph (b) of this
section before submitting its State Plan during each 4-year State
planning cycle to evaluate whether the area continues to meet the
requirements for subsequent designation under that paragraph.
(e) For purposes of subsequent designation under paragraphs (b) and
(d) of this section, the local area and chief elected official must be
considered to have requested continued designation unless the local
area and chief elected official notify the Governor that they no longer
seek designation.
(f) Local areas designated under Sec. 679.240 or States designated
as single-area States under Sec. 679.270 are not subject to the
requirements described in paragraph (b) of this section related to the
subsequent designation of a local area.
(g) The Governor may approve, under paragraph (c) of this section,
a request for designation as a local area from areas served by rural
concentrated employment programs as described in WIOA sec.
107(c)(1)(C).
Sec. 679.260 What do the terms ``performed successfully'' and
``sustained fiscal integrity'' mean for purposes of designating local
areas?
(a) For the purpose of initial local area designation, the term
``performed successfully'' means that the local area met or exceeded
the levels of performance the Governor negotiated with the Local WDB
and chief elected official under WIA sec. 136(c) for the last 2 full
program years before the enactment of WIOA, and that the local area has
not failed any individual measure for the last 2 consecutive program
years before the enactment of WIOA.
(b) For the purpose of determining subsequent local area
designation, the term ``performed successfully'' means that the local
area met or exceeded the levels of performance the Governor negotiated
with the Local WDB and chief elected official for core indicators of
performance as provided in paragraphs (b)(1) and (2) of this section as
appropriate, and that the local area has not failed any individual
measure for the last 2 consecutive program years in accordance with a
State-established definition, provided in the State Plan, of met or
exceeded performance.
(1) For subsequent designation determinations made at the
conclusion of PY 2017, a finding of whether a local area performed
successfully must be limited to having met or exceeded the negotiated
levels for the Employment Rate 2nd Quarter after Exit and the Median
Earnings indicators of performance, as described at Sec.
677.155(a)(1)(i) and (iii) of this chapter respectively, for PY 2016
and PY 2017.
(2) For subsequent designation determinations made at the
conclusion of PY 2018, or at any point thereafter, a finding of whether
a local area performed successfully must be based on all six of the
WIOA indicators of performance as described at Sec. 677.155(a)(1)(i)
through (vi) of this chapter for the 2 most recently completed program
years.
(c) For the purpose of determining initial and subsequent local
area designation under Sec. 679.250(a) and (b), the term ``sustained
fiscal integrity'' means that the Secretary has not made a formal
determination that either the grant recipient or the administrative
entity of the area misexpended funds due to willful disregard of the
requirements of the provision involved, gross negligence, or failure to
comply with accepted standards of administration for the 2-year period
preceding the determination.
[[Page 56376]]
Sec. 679.270 What are the special designation provisions for single-
area States?
(a) The Governor of any State that was a single-State local area
under the WIA as in effect on July 1, 2013 may designate the State as a
single-State local area under WIOA.
(b) The Governor of a State local area under paragraph (a) of this
section who seeks to designate the State as a single-State local area
under WIOA must:
(1) Identify the State as a single-area State in the Unified or
Combined State Plan; and
(2) Include the local plan for approval as part of the Unified or
Combined State Plan.
(c) The State WDB for a single-area State must act as the Local WDB
and carry out the functions of the Local WDB in accordance with WIOA
sec. 107 and Sec. 679.370, except that the State is not required to
meet and report on a set of local performance accountability measures.
(d) Single-area States must conduct the functions of the Local WDB
as outlined in paragraph (c) of this section to achieve the
incorporation of local interests but may do so in a manner that reduces
unnecessary burden and duplication of processes.
(e) States must carry out the duties of State and Local WDBs in
accordance with guidance issued by the Secretary of Labor.
Sec. 679.280 How does the State fulfill the requirement to provide
assistance to local areas within a planning region that wish to
redesignate into a single local area?
(a) When the chief elected officials and Local WDBs of each local
area within a planning region make a request to the Governor to
redesignate into a single local area, the State WDB must authorize
statewide adult, dislocated worker, and youth program funds to
facilitate such redesignation.
(b) When statewide funds are not available, the State may provide
funds for redesignation in the next available program year.
(c) Redesignation activities that may be carried out by the local
areas include:
(1) Convening sessions and conferences;
(2) Renegotiation of contracts and agreements; and
(3) Other activities directly associated with the redesignation as
deemed appropriate by the State WDB.
Sec. 679.290 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce development
area?
(a) A unit of local government (or combination of units) or a local
area which has requested but has been denied its request for
designation as a workforce development area under Sec. 679.250 may
appeal the decision to the State WDB, in accordance with appeal
procedures established in the State Plan and Sec. 683.630(a) of this
chapter.
(b) If a decision on the appeal is not rendered in a timely manner
or if the appeal to the State WDB does not result in designation, the
entity may request review by the Secretary of Labor, under the
procedures set forth at Sec. 683.640 of this chapter.
Subpart C--Local Workforce Development Boards
Sec. 679.300 What is the vision and purpose of the Local Workforce
Development Board?
(a) The vision for the Local WDB is to serve as a strategic leader
and convener of local workforce development system stakeholders. The
Local WDB partners with employers and the workforce development system
to develop policies and investments that support public workforce
system strategies that support regional economies, the development of
effective approaches including local and regional sector partnerships
and career pathways, and high quality, customer centered service
delivery and service delivery approaches;
(b) The purpose of the Local WDB is to--
(1) Provide strategic and operational oversight in collaboration
with the required and additional partners and workforce stakeholders to
help develop a comprehensive and high-quality workforce development
system in the local area and larger planning region;
(2) Assist in the achievement of the State's strategic and
operational vision and goals as outlined in the Unified State Plan or
Combined State Plan; and
(3) Maximize and continue to improve the quality of services,
customer satisfaction, effectiveness of the services provided.
Sec. 679.310 What is the Local Workforce Development Board?
(a) The Local WDB is appointed by the chief elected official(s) in
each local area in accordance with State criteria established under
WIOA sec. 107(b), and is certified by the Governor every 2 years, in
accordance with WIOA sec. 107(c)(2).
(b) In partnership with the chief elected official(s), the Local
WDB sets policy for the portion of the statewide workforce development
system within the local area and consistent with State policies.
(c) The Local WDB and the chief elected official(s) may enter into
an agreement that describes the respective roles and responsibilities
of the parties.
(d) The Local WDB, in partnership with the chief elected
official(s), develops the local plan and performs the functions
described in WIOA sec. 107(d) and Sec. 679.370.
(e) If a local area includes more than one unit of general local
government in accordance with WIOA sec. 107(c)(1)(B), the chief elected
officials of such units may execute an agreement to describe their
responsibilities for carrying out the roles and responsibilities. If
the chief elected officials are unable to reach agreement after a
reasonable effort, the Governor may appoint the members of the Local
WDB from individuals nominated or recommended as specified in WIOA sec.
107(b).
(f) If the State Plan indicates that the State will be treated as a
local area under WIOA, the State WDB must carry out the roles of the
Local WDB in accordance with WIOA sec. 107, except that the State is
not required to meet and report on a set of local performance
accountability measures.
(g) The CEO must establish by-laws, consistent with State policy
for Local WDB membership, that at a minimum address:
(1) The nomination process used by the CEO to select the Local WDB
chair and members;
(2) The term limitations and how the term appointments will be
staggered to ensure only a portion of membership expire in a given
year;
(3) The process to notify the CEO of a WDB member vacancy to ensure
a prompt nominee;
(4) The proxy and alternative designee process that will be used
when a WDB member is unable to attend a meeting and assigns a designee
as per the requirements at Sec. 679.110(d)(4);
(5) The use of technology, such as phone and Web-based meetings,
that will be used to promote WDB member participation;
(6) The process to ensure WDB members actively participate in
convening the workforce development system's stakeholders, brokering
relationships with a diverse range of employers, and leveraging support
for workforce development activities; and
(7) A description of any other conditions governing appointment or
membership on the Local WDB as deemed appropriate by the CEO.
Sec. 679.320 Who are the required members of the Local Workforce
Development Board?
(a) For each local area in the State, the members of Local WDB must
be selected by the chief elected official consistent
[[Page 56377]]
with criteria established under WIOA sec. 107(b)(1) and criteria
established by the Governor, and must meet the requirements of WIOA
sec. 107(b)(2).
(b) A majority of the members of the Local WDB must be
representatives of business in the local area. At a minimum, two
members must represent small business as defined by the U.S. Small
Business Administration. Business representatives serving on Local WDBs
also may serve on the State WDB. Each business representative must meet
the following criteria:
(1) Be an owner, chief executive officer, chief operating officer,
or other individual with optimum policy-making or hiring authority; and
(2) Provide employment opportunities in in-demand industry sectors
or occupations, as those terms are defined in WIOA sec. 3(23).
(c) At least 20 percent of the members of the Local WDB must be
workforce representatives. These representatives:
(1) Must include two or more representatives of labor
organizations, where such organizations exist in the local area. Where
labor organizations do not exist, representatives must be selected from
other employee representatives;
(2) Must include one or more representatives of a joint labor-
management, or union affiliated, registered apprenticeship program
within the area who must be a training director or a member of a labor
organization. If no union affiliated registered apprenticeship programs
exist in the area, a representative of a registered apprenticeship
program with no union affiliation must be appointed, if one exists;
(3) May include one or more representatives of community-based
organizations that have demonstrated experience and expertise in
addressing the employment, training or education needs of individuals
with barriers to employment, including organizations that serve
veterans or provide or support competitive integrated employment for
individuals with disabilities; and
(4) May include one or more representatives of organizations that
have demonstrated experience and expertise in addressing the
employment, training, or education needs of eligible youth, including
representatives of organizations that serve out-of-school youth.
(d) The Local WDB also must include:
(1) At least one eligible training provider administering adult
education and literacy activities under WIOA title II;
(2) At least one representative from an institution of higher
education providing workforce investment activities, including
community colleges; and
(3) At least one representative from each of the following
governmental and economic and community development entities:
(i) Economic and community development entities;
(ii) The State Employment Service office under the Wagner-Peyser
Act (29 U.S.C. 49 et seq.) serving the local area; and
(iii) The programs carried out under title I of the Rehabilitation
Act of 1973, other than sec. 112 or part C of that title;
(e) The membership of Local WDBs may include individuals or
representatives of other appropriate entities in the local area,
including:
(1) Entities administering education and training activities who
represent local educational agencies or community-based organizations
with demonstrated expertise in addressing the education or training
needs for individuals with barriers to employment;
(2) Governmental and economic and community development entities
who represent transportation, housing, and public assistance programs;
(3) Philanthropic organizations serving the local area; and
(4) Other appropriate individuals as determined by the chief
elected official.
(f) Members must be individuals with optimum policy-making
authority within the entities they represent.
(g) Chief elected officials must establish a formal nomination and
appointment process, consistent with the criteria established by the
Governor and State WDB under sec. 107(b)(1) of WIOA for appointment of
members of the Local WDBs, that ensures:
(1) Business representatives are appointed from among individuals
who are nominated by local business organizations and business trade
associations;
(2) Labor representatives are appointed from among individuals who
are nominated by local labor federations (or, for a local area in which
no employees are represented by such organizations, other
representatives of employees); and
(3) When there is more than one local area provider of adult
education and literacy activities under title II, or multiple
institutions of higher education providing workforce investment
activities as described in WIOA sec. 107(b)(2)(C)(i) or (ii),
nominations are solicited from those particular entities.
(h) An individual may be appointed as a representative of more than
one entity if the individual meets all the criteria for representation,
including the criteria described in paragraphs (c) through (g) of this
section, for each entity.
(i) All required WDB members must have voting privilege. The chief
elected official may convey voting privileges to non-required members.
Sec. 679.330 Who must chair a Local Workforce Development Board?
The Local WDB must elect a chairperson from among the business
representatives on the WDB.
Sec. 679.340 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
For purposes of selecting representatives to Local WDBs:
(a) A representative with ``optimum policy-making authority'' is an
individual who can reasonably be expected to speak affirmatively on
behalf of the entity he or she represents and to commit that entity to
a chosen course of action.
(b) A representative with ``demonstrated experience and expertise''
means an individual who:
(1) Is a workplace learning advisor as defined in WIOA sec. 3(70);
(2) Contributes to the field of workforce development, human
resources, training and development, or a core program function; or
(3) The Local WDB recognizes for valuable contributions in
education or workforce development related fields.
Sec. 679.350 What criteria will be used to establish the membership
of the Local Workforce Development Board?
The Local WDB is appointed by the chief elected official(s) in the
local area in accordance with State criteria established under WIOA
sec. 107(b), and is certified by the Governor every 2 years, in
accordance with WIOA sec. 107(c)(2).
Sec. 679.360 What is a standing committee, and what is its
relationship to the Local Workforce Development Board?
(a) Standing committees may be established by the Local WDB to
provide information and assist the Local WDB in carrying out its
responsibilities under WIOA sec. 107. Standing committees must be
chaired by a member of the Local WDB, may include other members of the
Local WDB, and must include other individuals appointed by the Local
WDB who are not members of the Local WDB and who have demonstrated
experience and expertise in accordance with Sec. 679.340(b) and as
determined by the Local WDB. Standing committees may include each of
the following:
[[Page 56378]]
(1) A standing committee to provide information and assist with
operational and other issues relating to the one-stop delivery system,
which may include representatives of the one-stop partners.
(2) A standing committee to provide information and to assist with
planning, operational, and other issues relating to the provision of
services to youth, which must include community-based organizations
with a demonstrated record of success in serving eligible youth.
(3) A standing committee to provide information and to assist with
operational and other issues relating to the provision of services to
individuals with disabilities, including issues relating to compliance
with WIOA sec. 188, if applicable, and applicable provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.)
regarding providing programmatic and physical access to the services,
programs, and activities of the one-stop delivery system, as well as
appropriate training for staff on providing supports for or
accommodations to, and finding employment opportunities for,
individuals with disabilities.
(b) The Local WDB may designate other standing committees in
addition to those specified in paragraph (a) of this section.
(c) Local WDBs may designate an entity in existence as of the date
of the enactment of WIOA, such as an effective youth council, to serve
as a standing committee as long as the entity meets the requirements of
WIOA sec. 107(b)(4).
Sec. 679.370 What are the functions of the Local Workforce
Development Board?
As provided in WIOA sec. 107(d), the Local WDB must:
(a) Develop and submit a 4-year local plan for the local area, in
partnership with the chief elected official and consistent with WIOA
sec. 108;
(b) If the local area is part of a planning region that includes
other local areas, develop and submit a regional plan in collaboration
with other local areas. If the local area is part of a planning region,
the local plan must be submitted as a part of the regional plan;
(c) Conduct workforce research and regional labor market analysis
to include:
(1) Analyses and regular updates of economic conditions, needed
knowledge and skills, workforce, and workforce development (including
education and training) activities to include an analysis of the
strengths and weaknesses (including the capacity to provide) of such
services to address the identified education and skill needs of the
workforce and the employment needs of employers;
(2) Assistance to the Governor in developing the statewide
workforce and labor market information system under the Wagner-Peyser
Act for the region; and
(3) Other research, data collection, and analysis related to the
workforce needs of the regional economy as the WDB, after receiving
input from a wide array of stakeholders, determines to be necessary to
carry out its functions;
(d) Convene local workforce development system stakeholders to
assist in the development of the local plan under Sec. 679.550 and in
identifying non-Federal expertise and resources to leverage support for
workforce development activities. Such stakeholders may assist the
Local WDB and standing committees in carrying out convening, brokering,
and leveraging functions at the direction of the Local WDB;
(e) Lead efforts to engage with a diverse range of employers and
other entities in the region in order to:
(1) Promote business representation (particularly representatives
with optimum policy-making or hiring authority from employers whose
employment opportunities reflect existing and emerging employment
opportunities in the region) on the Local WDB;
(2) Develop effective linkages (including the use of
intermediaries) with employers in the region to support employer
utilization of the local workforce development system and to support
local workforce investment activities;
(3) Ensure that workforce investment activities meet the needs of
employers and support economic growth in the region by enhancing
communication, coordination, and collaboration among employers,
economic development entities, and service providers; and
(4) Develop and implement proven or promising strategies for
meeting the employment and skill needs of workers and employers (such
as the establishment of industry and sector partnerships), that provide
the skilled workforce needed by employers in the region, and that
expand employment and career advancement opportunities for workforce
development system participants in in-demand industry sectors or
occupations;
(f) With representatives of secondary and postsecondary education
programs, lead efforts to develop and implement career pathways within
the local area by aligning the employment, training, education, and
supportive services that are needed by adults and youth, particularly
individuals with barriers to employment;
(g) Lead efforts in the local area to identify and promote proven
and promising strategies and initiatives for meeting the needs of
employers, workers and job seekers, and identify and disseminate
information on proven and promising practices carried out in other
local areas for meeting such needs;
(h) Develop strategies for using technology to maximize the
accessibility and effectiveness of the local workforce development
system for employers, and workers and job seekers, by:
(1) Facilitating connections among the intake and case management
information systems of the one-stop partner programs to support a
comprehensive workforce development system in the local area;
(2) Facilitating access to services provided through the one-stop
delivery system involved, including access in remote areas;
(3) Identifying strategies for better meeting the needs of
individuals with barriers to employment, including strategies that
augment traditional service delivery, and increase access to services
and programs of the one-stop delivery system, such as improving digital
literacy skills; and
(4) Leveraging resources and capacity within the local workforce
development system, including resources and capacity for services for
individuals with barriers to employment;
(i) In partnership with the chief elected official for the local
area:
(1) Conduct oversight of youth workforce investment activities
authorized under WIOA sec. 129(c), adult and dislocated worker
employment and training activities under WIOA secs. 134(c) and (d), and
the entire one-stop delivery system in the local area;
(2) Ensure the appropriate use and management of the funds provided
under WIOA subtitle B for the youth, adult, and dislocated worker
activities and one-stop delivery system in the local area; and
(3) Ensure the appropriate use management, and investment of funds
to maximize performance outcomes under WIOA sec. 116;
(j) Negotiate and reach agreement on local performance indicators
with the chief elected official and the Governor;
(k) Negotiate with CEO and required partners on the methods for
funding the infrastructure costs of one-stop centers in the local area
in accordance with Sec. 678.715 of this chapter or must notify the
Governor if they fail to reach agreement at the local level and will
use
[[Page 56379]]
a State infrastructure funding mechanism;
(l) Select the following providers in the local area, and where
appropriate terminate such providers in accordance with 2 CFR part 200:
(1) Providers of youth workforce investment activities through
competitive grants or contracts based on the recommendations of the
youth standing committee (if such a committee is established); however,
if the Local WDB determines there is an insufficient number of eligible
training providers in a local area, the Local WDB may award contracts
on a sole-source basis as per the provisions at WIOA sec. 123(b);
(2) Providers of training services consistent with the criteria and
information requirements established by the Governor and WIOA sec. 122;
(3) Providers of career services through the award of contracts, if
the one-stop operator does not provide such services; and
(4) One-stop operators in accordance with Sec. Sec. 678.600
through 678.635 of this chapter;
(m) In accordance with WIOA sec. 107(d)(10)(E) work with the State
to ensure there are sufficient numbers and types of providers of career
services and training services serving the local area and providing the
services in a manner that maximizes consumer choice, as well as
providing opportunities that lead to competitive integrated employment
for individuals with disabilities;
(n) Coordinate activities with education and training providers in
the local area, including:
(1) Reviewing applications to provide adult education and literacy
activities under WIOA title II for the local area to determine whether
such applications are consistent with the local plan;
(2) Making recommendations to the eligible agency to promote
alignment with such plan; and
(3) Replicating and implementing cooperative agreements to enhance
the provision of services to individuals with disabilities and other
individuals, such as cross training of staff, technical assistance, use
and sharing of information, cooperative efforts with employers, and
other efforts at cooperation, collaboration, and coordination;
(o) Develop a budget for the activities of the Local WDB, with
approval of the chief elected official and consistent with the local
plan and the duties of the Local WDB;
(p) Assess, on an annual basis, the physical and programmatic
accessibility of all one-stop centers in the local area, in accordance
with WIOA sec. 188, if applicable, and applicable provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); and
(q) Certification of one-stop centers in accordance with Sec.
678.800 of this chapter.
Sec. 679.380 How does the Local Workforce Development Board satisfy
the consumer choice requirements for career services and training
services?
(a) In accordance with WIOA sec. 122 and in working with the State,
the Local WDB satisfies the consumer choice requirement for training
services by:
(1) Determining the initial eligibility of entities providing a
program of training services, renewing the eligibility of providers,
and considering the possible termination of an eligible training
provider due to the provider's submission of inaccurate eligibility and
performance information or the provider's substantial violation of
WIOA;
(2) Working with the State to ensure there are sufficient numbers
and types of providers of training services, including eligible
training providers with expertise in assisting individuals with
disabilities and eligible training providers with expertise in
assisting adults in need of adult education and literacy activities
described under WIOA sec. 107(d)(10)(E), serving the local area;
(3) Ensuring the dissemination and appropriate use of the State
list through the local one-stop delivery system;
(4) Receiving performance and cost information from the State and
disseminating this information through the one-stop delivery systems
within the State; and
(5) Providing adequate access to services for individuals with
disabilities.
(b) Working with the State, the Local WDB satisfies the consumer
choice requirement for career services by:
(1) Determining the career services that are best performed by the
one-stop operator consistent with Sec. Sec. 678.620 and 678.625 of
this chapter and career services that require contracting with a career
service provider; and
(2) Identifying a wide-array of potential career service providers
and awarding contracts where appropriate including to providers to
ensure:
(i) Sufficient access to services for individuals with
disabilities, including opportunities that lead to integrated,
competitive employment for individuals with disabilities; and
(ii) Sufficient access for adult education and literacy activities.
Sec. 679.390 How does the Local Workforce Development Board meet its
requirement to conduct business in an open manner under the ``sunshine
provision'' of the Workforce Innovation and Opportunity Act?
The Local WDB must conduct its business in an open manner as
required by WIOA sec. 107(e), by making available to the public, on a
regular basis through electronic means and open meetings, information
about the activities of the Local WDB. This includes:
(a) Information about the Local Plan, or modification to the Local
Plan, before submission of the plan;
(b) List and affiliation of Local WDB members;
(c) Selection of one-stop operators;
(d) Award of grants or contracts to eligible training providers of
workforce investment activities including providers of youth workforce
investment activities;
(e) Minutes of formal meetings of the Local WDB; and
(f) Local WDB by-laws, consistent with Sec. 679.310(g).
Sec. 679.400 Who are the staff to the Local Workforce Development
Board and what is their role?
(a) WIOA sec. 107(f) grants Local WDBs authority to hire a director
and other staff to assist in carrying out the functions of the Local
WDB.
(b) Local WDBs must establish and apply a set of qualifications for
the position of director that ensures the individual selected has the
requisite knowledge, skills, and abilities to meet identified
benchmarks and to assist in carrying out the functions of the Local
WDB.
(c) The Local WDB director and staff must be subject to the
limitations on the payment of salary and bonuses described in WIOA sec.
194(15).
(d) In general, Local WDB staff only may assist the Local WDB
fulfill the required functions at WIOA sec. 107(d).
(e) Should the WDB select an entity to staff the WDB that provides
additional workforce functions beyond the functions described at WIOA
sec. 107(d), such an entity is required to enter into a written
agreement with the Local WDB and chief elected official(s) to clarify
their roles and responsibilities as required by Sec. 679.430.
Sec. 679.410 Under what conditions may a Local Workforce Development
Board directly be a provider of career services, or training services,
or act as a one-stop operator?
(a)(1) A Local WDB may be selected as a one-stop operator:
(i) Through sole source procurement in accordance with Sec.
678.610 of this chapter; or
[[Page 56380]]
(ii) Through successful competition in accordance with Sec.
678.615 of this chapter.
(2) The chief elected official in the local area and the Governor
must agree to the selection described in paragraph (a)(1) of this
section.
(3) Where a Local WDB acts as a one-stop operator, the State must
ensure certification of one-stop centers in accordance with Sec.
678.800 of this chapter.
(b) A Local WDB may act as a provider of career services only with
the agreement of the chief elected official in the local area and the
Governor.
(c) A Local WDB is prohibited from providing training services,
unless the Governor grants a waiver in accordance with the provisions
in WIOA sec. 107(g)(1).
(1) The State must develop a procedure for approving waivers that
includes the criteria at WIOA sec. 107(g)(1)(B)(i):
(i) Satisfactory evidence that there is an insufficient number of
eligible training providers of such a program of training services to
meet local demand in the local area;
(ii) Information demonstrating that the WDB meets the requirements
for eligible training provider services under WIOA sec. 122; and
(iii) Information demonstrating that the program of training
services prepares participants for an in-demand industry sector or
occupation in the local area.
(2) The local area must make the proposed request for a waiver
available to eligible training providers and other interested members
of the public for a public comment period of not less than 30 days and
includes any comments received during this time in the final request
for the waiver.
(3) The waiver must not exceed the duration of the local plan and
may be renewed by submitting a new waiver request consistent with
paragraphs (c)(1) and (2) of this section for additional periods, not
to exceed the durations of such subsequent plans.
(4) The Governor may revoke the waiver if the Governor determines
the waiver is no longer needed or that the Local WDB involved has
engaged in a pattern of inappropriate referrals to training services
operated by the Local WDB.
(d) The restrictions on the provision of career and training
services by the Local WDB, as one-stop operator, also apply to staff of
the Local WDB.
Sec. 679.420 What are the functions of the local fiscal agent?
(a) In order to assist in administration of the grant funds, the
chief elected official or the Governor, where the Governor serves as
the local grant recipient for a local area, may designate an entity to
serve as a local fiscal agent. Designation of a fiscal agent does not
relieve the chief elected official or Governor of liability for the
misuse of grant funds. If the CEO designates a fiscal agent, the CEO
must ensure this agent has clearly defined roles and responsibilities.
(b) In general the fiscal agent is responsible for the following
functions:
(1) Receive funds.
(2) Ensure sustained fiscal integrity and accountability for
expenditures of funds in accordance with Office of Management and
Budget circulars, WIOA and the corresponding Federal Regulations and
State policies.
(3) Respond to audit financial findings.
(4) Maintain proper accounting records and adequate documentation.
(5) Prepare financial reports.
(6) Provide technical assistance to subrecipients regarding fiscal
issues.
(c) At the direction of the Local WDB or the State WDB in single-
area States, the fiscal agent may have the following additional
functions:
(1) Procure contracts or obtain written agreements.
(2) Conduct financial monitoring of service providers.
(3) Ensure independent audit of all employment and training
programs.
Sec. 679.430 How do entities performing multiple functions in a local
area demonstrate internal controls and prevent conflict of interest?
Local organizations often function simultaneously in a variety of
roles, including local fiscal agent, Local WDB staff, one-stop
operator, and direct provider of services. Any organization that has
been selected or otherwise designated to perform more than one of these
functions must develop a written agreement with the Local WDB and CEO
to clarify how the organization will carry out its responsibilities
while demonstrating compliance with WIOA and corresponding regulations,
relevant Office of Management and Budget circulars, and the State's
conflict of interest policy.
Subpart D--Regional and Local Plan
Sec. 679.500 What is the purpose of the regional and local plan?
(a) The local plan serves as 4-year action plan to develop, align,
and integrate service delivery strategies and to support the State's
vision and strategic and operational goals. The local plan sets forth
the strategy to:
(1) Direct investments in economic, education, and workforce
training programs to focus on providing relevant education and training
to ensure that individuals, including youth and individuals with
barriers to employment, have the skills to compete in the job market
and that employers have a ready supply of skilled workers;
(2) Apply job-driven strategies in the one-stop delivery system;
(3) Enable economic, education, and workforce partners to build a
skilled workforce through innovation in, and alignment of, employment,
training, and education programs; and
(4) Incorporate the local plan into the regional plan per Sec.
679.540.
(b) In the case of planning regions, a regional plan is required to
meet the purposes described in paragraph (a) of this section and to
coordinate resources among multiple WDBs in a region.
(c) The Governor must establish and disseminate to Local WDBs and
regional planning areas a policy for the submission of local and
regional plans. The policy must set a deadline for the submission of
the regional and local plans that accounts for the activities required
in plan development outlined in Sec. Sec. 679.510 and 679.550.
Sec. 679.510 What are the requirements for regional planning?
(a) Local WDBs and chief elected officials within an identified
planning region (as defined in WIOA secs. 106(a)(2)(B)-(C) and Sec.
679.200) must:
(1) Participate in a regional planning process that results in:
(i) The preparation of a regional plan, as described in paragraph
(a)(2) of this section and consistent with any guidance issued by the
Department;
(ii) The establishment of regional service strategies, including
use of cooperative service delivery agreements;
(iii) The development and implementation of sector initiatives for
in-demand industry sectors or occupations for the planning region;
(iv) The collection and analysis of regional labor market data (in
conjunction with the State) which must include the local planning
requirements at Sec. 679.560(a)(1)(i) and (ii);
(v) The coordination of administrative cost arrangements, including
the pooling of funds for administrative costs, as appropriate;
(vi) The coordination of transportation and other supportive
services as appropriate;
(vii) The coordination of services with regional economic
development services and providers; and
(viii) The establishment of an agreement concerning how the
planning
[[Page 56381]]
region will collectively negotiate and reach agreement with the
Governor on local levels of performance for, and report on, the
performance accountability measures described in WIOA sec. 116(c) for
local areas or the planning region.
(2) Prepare, submit, and obtain approval of a single regional plan
that:
(i) Includes a description of the activities described in paragraph
(a)(1) of this section; and
(ii) Incorporates local plans for each of the local areas in the
planning region, consistent with Sec. 679.540(a).
(b) Consistent with Sec. 679.550(b), the Local WDBs representing
each local area in the planning region must provide an opportunity for
public comment on the development of the regional plan or subsequent
plan modifications before submitting the plan to the Governor. To
provide adequate opportunity for public comment, the Local WDBs must:
(1) Make copies of the proposed regional plan available to the
public through electronic and other means, such as public hearings and
local news media;
(2) Include an opportunity for comment by members of the public,
including representatives of business, labor organizations, and
education;
(3) Provide no more than a 30-day period for comment on the plan
before its submission to the Governor, beginning on the date on which
the proposed plan is made available; and
(4) The Local WDBs must submit any comments that express
disagreement with the plan to the Governor along with the plan.
(5) Consistent with WIOA sec. 107(e), the Local WDB must make
information about the plan available to the public on a regular basis
through electronic means and open meetings.
(c) The State must provide technical assistance and labor market
data, as requested by local areas, to assist with regional planning and
subsequent service delivery efforts.
(d) As they relate to regional areas and regional plans, the terms
local area and local plan are defined in WIOA secs. 106(c)(3)(A)-(B).
Sec. 679.520 What are the requirements for approval of a regional
plan?
Consistent with the requirements of Sec. 679.570, the Governor
must review completed plans (including a modification to the plan).
Such plans will be considered approved 90 days after receipt of the
plan unless the Governor determines in writing that:
(a) There are deficiencies in workforce investment activities that
have been identified through audits and the local area has not made
acceptable progress in implementing plans to address deficiencies; or
(b) The plan does not comply with applicable provisions of WIOA and
the WIOA regulations, including the required consultations and public
comment provisions, and the nondiscrimination requirements of 29 CFR
part 38.
(c) The plan does not align with the State Plan, including with
regard to the alignment of the core programs to support the strategy
identified in the State Plan in accordance with WIOA sec. 102(b)(1)(E)
and Sec. 676.105 of this chapter.
Sec. 679.530 When must the regional plan be modified?
(a) Consistent with Sec. 679.580, the Governor must establish
procedures governing the modification of regional plans.
(b) At the end of the first 2-year period of the 4-year local plan,
the Local WDBs within a planning region, in partnership with the
appropriate chief elected officials, must review the regional plan and
prepare and submit modifications to the regional plan to reflect
changes:
(1) In regional labor market and economic conditions; and
(2) Other factors affecting the implementation of the local plan,
including but not limited to changes in the financing available to
support WIOA title I and partner-provided WIOA services.
Sec. 679.540 How are local planning requirements reflected in a
regional plan?
(a) The regional plan must address the requirements at WIOA secs.
106(c)(1)(A)-(H), and incorporate the local planning requirements
identified for local plans at WIOA secs. 108(b)(1)-(22).
(b) The Governor may issue regional planning guidance that allows
Local WDBs and chief elected officials in a planning region to address
any local plan requirements through the regional plan where there is a
shared regional responsibility.
Sec. 679.550 What are the requirements for the development of the
local plan?
(a) Under WIOA sec. 108, each Local WDB must, in partnership with
the appropriate chief elected officials, develop and submit a
comprehensive 4-year plan to the Governor.
(1) The plan must identify and describe the policies, procedures,
and local activities that are carried out in the local area, consistent
with the State Plan.
(2) If the local area is part of a planning region, the Local WDB
must comply with WIOA sec. 106(c) and Sec. Sec. 679.510 through
679.540 in the preparation and submission of a regional plan.
(b) Consistent with Sec. 679.510(b), the Local WDB must provide an
opportunity for public comment on the development of the local plan or
subsequent plan modifications before submitting the plan to the
Governor. To provide adequate opportunity for public comment, the Local
WDB must:
(1) Make copies of the proposed local plan available to the public
through electronic and other means, such as public hearings and local
news media;
(2) Include an opportunity for comment by members of the public,
including representatives of business, labor organizations, and
education;
(3) Provide no more than a 30-day period for comment on the plan
before its submission to the Governor, beginning on the date on which
the proposed plan is made available, prior to its submission to the
Governor; and
(4) The Local WDB must submit any comments that express
disagreement with the plan to the Governor along with the plan.
(5) Consistent WIOA sec. 107(e), the Local WDB must make
information about the plan available to the public on a regular basis
through electronic means and open meetings.
Sec. 679.560 What are the contents of the local plan?
(a) The local workforce investment plan must describe strategic
planning elements, including:
(1) A regional analysis of:
(i) Economic conditions including existing and emerging in-demand
industry sectors and occupations; and
(ii) Employment needs of employers in existing and emerging in-
demand industry sectors and occupations.
(iii) As appropriate, a local area may use an existing analysis,
which is a timely current description of the regional economy, to meet
the requirements of paragraphs (a)(1)(i) and (ii) of this section;
(2) Knowledge and skills needed to meet the employment needs of the
employers in the region, including employment needs in in-demand
industry sectors and occupations;
(3) An analysis of the regional workforce, including current labor
force employment and unemployment data, information on labor market
trends, and educational and skill levels of the workforce, including
individuals with barriers to employment;
(4) An analysis of workforce development activities, including
[[Page 56382]]
education and training, in the region. This analysis must include the
strengths and weaknesses of workforce development activities and
capacity to provide the workforce development activities to address the
education and skill needs of the workforce, including individuals with
barriers to employment, and the employment needs of employers;
(5) A description of the Local WDB's strategic vision to support
regional economic growth and economic self-sufficiency. This must
include goals for preparing an educated and skilled workforce
(including youth and individuals with barriers to employment), and
goals relating to the performance accountability measures based on
performance indicators described in Sec. 677.155(a)(1) of this
chapter; and
(6) Taking into account analyses described in paragraphs (a)(1)
through (4) of this section, a strategy to work with the entities that
carry out the core programs and required partners to align resources
available to the local area, to achieve the strategic vision and goals
described in paragraph (a)(5) of this section.
(b) The plan must include a description of the following
requirements at WIOA secs. 108(b)(2)-(21):
(1) The workforce development system in the local area that
identifies:
(i) The programs that are included in the system; and
(ii) How the Local WDB will support the strategy identified in the
State Plan under Sec. 676.105 of this chapter and work with the
entities carrying out core programs and other workforce development
programs, including programs of study authorized under the Carl D.
Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2301 et
seq.) to support service alignment;
(2) How the Local WDB will work with entities carrying out core
programs to:
(i) Expand access to employment, training, education, and
supportive services for eligible individuals, particularly eligible
individuals with barriers to employment;
(ii) Facilitate the development of career pathways and co-
enrollment, as appropriate, in core programs; and
(iii) Improve access to activities leading to a recognized
postsecondary credential (including a credential that is an industry-
recognized certificate or certification, portable, and stackable);
(3) The strategies and services that will be used in the local
area:
(i) To facilitate engagement of employers in workforce development
programs, including small employers and employers in in-demand industry
sectors and occupations;
(ii) To support a local workforce development system that meets the
needs of businesses in the local area;
(iii) To better coordinate workforce development programs and
economic development;
(iv) To strengthen linkages between the one-stop delivery system
and unemployment insurance programs; and
(v) That may include the implementation of initiatives such as
incumbent worker training programs, on-the-job training programs,
customized training programs, industry and sector strategies, career
pathways initiatives, utilization of effective business intermediaries,
and other business services and strategies designed to meet the needs
of regional employers. These initiatives must support the strategy
described in paragraph (b)(3) of this section;
(4) An examination of how the Local WDB will coordinate local
workforce investment activities with regional economic development
activities that are carried out in the local area and how the Local WDB
will promote entrepreneurial skills training and microenterprise
services;
(5) The one-stop delivery system in the local area, including:
(i) How the Local WDB will ensure the continuous improvement of
eligible providers through the system and that such providers will meet
the employment needs of local employers, workers, and job seekers;
(ii) How the Local WDB will facilitate access to services provided
through the one-stop delivery system, including in remote areas,
through the use of technology and other means;
(iii) How entities within the one-stop delivery system, including
one-stop operators and the one-stop partners, will comply with WIOA
sec. 188, if applicable, and applicable provisions of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) regarding the
physical and programmatic accessibility of facilities, programs and
services, technology, and materials for individuals with disabilities,
including providing staff training and support for addressing the needs
of individuals with disabilities; and
(iv) The roles and resource contributions of the one-stop partners;
(6) A description and assessment of the type and availability of
adult and dislocated worker employment and training activities in the
local area;
(7) A description of how the Local WDB will coordinate workforce
investment activities carried out in the local area with statewide
rapid response activities;
(8) A description and assessment of the type and availability of
youth workforce investment activities in the local area including
activities for youth who are individuals with disabilities, which must
include an identification of successful models of such activities;
(9) How the Local WDB will coordinate relevant secondary and
postsecondary education programs and activities with education and
workforce investment activities to coordinate strategies, enhance
services, and avoid duplication of services;
(10) How the Local WDB will coordinate WIOA title I workforce
investment activities with the provision of transportation and other
appropriate supportive services in the local area;
(11) Plans, assurances, and strategies for maximizing coordination,
improving service delivery, and avoiding duplication of Wagner-Peyser
Act (29 U.S.C. 49 et seq.) services and other services provided through
the one-stop delivery system;
(12) How the Local WDB will coordinate WIOA title I workforce
investment activities with adult education and literacy activities
under WIOA title II. This description must include how the Local WDB
will carry out the review of local applications submitted under title
II consistent with WIOA secs. 107(d)(11)(A) and (B)(i) and WIOA sec.
232;
(13) Copies of executed cooperative agreements which define how all
local service providers, including additional providers, will carry out
the requirements for integration of and access to the entire set of
services available in the local one-stop delivery system. This includes
cooperative agreements (as defined in WIOA sec. 107(d)(11)) between the
Local WDB or other local entities described in WIOA sec. 101(a)(11)(B)
of the Rehabilitation Act of 1973 (29 U.S.C. 721(a)(11)(B)) and the
local office of a designated State agency or designated State unit
administering programs carried out under title I of the Rehabilitation
Act (29 U.S.C. 720 et seq.) (other than sec. 112 or part C of that
title (29 U.S.C. 732, 741) and subject to sec. 121(f)) in accordance
with sec. 101(a)(11) of the Rehabilitation Act (29 U.S.C. 721(a)(11))
with respect to efforts that will enhance the provision of services to
individuals with disabilities and to other individuals, such as cross
training of staff, technical assistance, use and sharing of
information, cooperative efforts with employers, and other efforts at
cooperation, collaboration, and coordination;
[[Page 56383]]
(14) An identification of the entity responsible for the disbursal
of grant funds described in WIOA sec. 107(d)(12)(B)(i)(III), as
determined by the chief elected official or the Governor under WIOA
sec. 107(d)(12)(B)(i);
(15) The competitive process that will be used to award the
subgrants and contracts for WIOA title I activities;
(16) The local levels of performance negotiated with the Governor
and chief elected official consistent with WIOA sec. 116(c), to be used
to measure the performance of the local area and to be used by the
Local WDB for measuring the performance of the local fiscal agent
(where appropriate), eligible providers under WIOA title I subtitle B,
and the one-stop delivery system in the local area;
(17) The actions the Local WDB will take toward becoming or
remaining a high-performing WDB, consistent with the factors developed
by the State WDB;
(18) How training services outlined in WIOA sec. 134 will be
provided through the use of individual training accounts, including, if
contracts for training services will be used, how the use of such
contracts will be coordinated with the use of individual training
accounts under that chapter, and how the Local WDB will ensure informed
customer choice in the selection of training programs regardless of how
the training services are to be provided;
(19) The process used by the Local WDB, consistent with WIOA sec.
108(d), to provide a 30-day public comment period prior to submission
of the plan, including an opportunity to have input into the
development of the local plan, particularly for representatives of
businesses, education, and labor organizations;
(20) How one-stop centers are implementing and transitioning to an
integrated, technology-enabled intake and case management information
system for programs carried out under WIOA and by one-stop partners;
and
(21) The direction given by the Governor and the Local WDB to the
one-stop operator to ensure priority for adult career and training
services will be given to recipients of public assistance, other low-
income individuals, and individuals who are basic skills deficient
consistent with WIOA sec. 134(c)(3)(E) and Sec. 680.600 of this
chapter.
(c) The local plan must include any additional information required
by the Governor.
(d) The local plan must identify the portions that the Governor has
designated as appropriate for common response in the regional plan
where there is a shared regional responsibility, as permitted by Sec.
679.540(b).
(e) Comments submitted during the public comment period that
represent disagreement with the plan must be submitted with the local
plan.
Sec. 679.570 What are the requirements for approval of a local plan?
(a) Consistent with the requirements at Sec. 679.520 the Governor
must review completed plans (including a modification to the plan).
Such plans will be considered approved 90 days after the Governor
receives the plan unless the Governor determines in writing that:
(1) There are deficiencies in workforce investment activities that
have been identified through audits and the local area has not made
acceptable progress in implementing plans to address deficiencies; or
(2) The plan does not comply with applicable provisions of WIOA and
the WIOA regulations, including the required consultations and public
comment provisions, and the nondiscrimination requirements of 29 CFR
part 38.
(3) The plan does not align with the State Plan, including with
regard to the alignment of the core programs to support the strategy
identified in the State Plan in accordance with WIOA sec. 102(b)(1)(E)
and Sec. 676.105 of this chapter.
(b) In cases where the State is a single local area:
(1) The State must incorporate the local plan into the State's
Unified or Combined State Plan and submit it to the U.S. Department of
Labor in accordance with the procedures described in Sec. 676.105 of
this chapter.
(2) The Secretary of Labor performs the roles assigned to the
Governor as they relate to local planning activities.
(3) The Secretary of Labor will issue planning guidance for such
States.
Sec. 679.580 When must the local plan be modified?
(a) Consistent with the requirements at Sec. 679.530, the Governor
must establish procedures governing the modification of local plans.
(b) At the end of the first 2-year period of the 4-year local plan,
each Local WDB, in partnership with the appropriate chief elected
officials, must review the local plan and prepare and submit
modifications to the local plan to reflect changes:
(1) In labor market and economic conditions; and
(2) Other factors affecting the implementation of the local plan,
including but not limited to:
(i) Significant changes in local economic conditions;
(ii) Changes in the financing available to support WIOA title I and
partner-provided WIOA services;
(iii) Changes to the Local WDB structure; and
(iv) The need to revise strategies to meet local performance goals.
Subpart E--Waivers/WorkFlex (Workforce Flexibility Plan)
Sec. 679.600 What is the purpose of the general statutory and
regulatory waiver authority in the Workforce Innovation and Opportunity
Act?
(a) The purpose of the general statutory and regulatory waiver
authority provided at sec. 189(i)(3) of the WIOA is to provide
flexibility to States and local areas and enhance their ability to
improve the statewide workforce development system to achieve the goals
and purposes of WIOA.
(b) A waiver may be requested to address impediments to the
implementation of a Unified or Combined State Plan, including the
continuous improvement strategy, consistent with the purposes of title
I of WIOA as identified in Sec. 675.100 of this chapter.
Sec. 679.610 What provisions of the Workforce Innovation and
Opportunity Act and the Wagner-Peyser Act may be waived, and what
provisions may not be waived?
(a) The Secretary may waive for a State, or local area in a State,
any of the statutory or regulatory requirements of subtitles A, B and E
of title I of WIOA, except for requirements relating to:
(1) Wage and labor standards;
(2) Non-displacement protections;
(3) Worker rights;
(4) Participation and protection of workers and participants;
(5) Grievance procedures and judicial review;
(6) Nondiscrimination;
(7) Allocation of funds to local areas;
(8) Eligibility of providers or participants;
(9) The establishment and functions of local areas and Local WDBs;
(10) Procedures for review and approval of State and Local plans;
(11) The funding of infrastructure costs for one-stop centers; and
(12) Other requirements relating to the basic purposes of title I
of WIOA described in Sec. 675.100 of this chapter.
(b) The Secretary may waive for a State, or local area in a State,
any of the statutory or regulatory requirements of secs. 8 through 10
of the Wagner- Peyser Act (29 U.S.C. 49g-49i) except for requirements
relating to:
[[Page 56384]]
(1) The provision of services to unemployment insurance claimants
and veterans; and
(2) Universal access to the basic labor exchange services without
cost to job seekers.
Sec. 679.620 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under the Workforce Innovation and Opportunity Act?
(a) The Secretary will issue guidelines under which the States may
request general waivers of WIOA and Wagner-Peyser Act requirements.
(b) A Governor may request a general waiver in consultation with
appropriate chief elected officials:
(1) By submitting a waiver plan which may accompany the State's
WIOA 4-year Unified or Combined State Plan or 2-year modification; or
(2) After a State's WIOA Plan is approved, by separately submitting
a waiver plan.
(c) A Governor's waiver request may seek waivers for the entire
State or for one or more local areas within the State.
(d) A Governor requesting a general waiver must submit to the
Secretary a plan to improve the statewide workforce development system
that:
(1) Identifies the statutory or regulatory requirements for which a
waiver is requested and the goals that the State or local area, as
appropriate, intends to achieve as a result of the waiver and how those
goals relate to the Unified or Combined State Plan;
(2) Describes the actions that the State or local area, as
appropriate, has undertaken to remove State or local statutory or
regulatory barriers;
(3) Describes the goals of the waiver and the expected programmatic
outcomes if the request is granted;
(4) Describes how the waiver will align with the Department's
policy priorities, such as:
(i) Supporting employer engagement;
(ii) Connecting education and training strategies;
(iii) Supporting work-based learning;
(iv) Improving job and career results; and
(v) Other priorities as articulated in guidance;
(5) Describes the individuals affected by the waiver, including how
the waiver will impact services for disadvantaged populations or
individuals with multiple barriers to employment; and
(6) Describes the processes used to:
(i) Monitor the progress in implementing the waiver;
(ii) Provide notice to any Local WDB affected by the waiver;
(iii) Provide any Local WDB affected by the waiver an opportunity
to comment on the request;
(iv) Ensure meaningful public comment, including comment by
business and organized labor, on the waiver; and
(v) Collect and report information about waiver outcomes in the
State's WIOA Annual Report.
(7) The Secretary may require that States provide the most recent
data available about the outcomes of the existing waiver in cases where
the State seeks renewal of a previously approved waiver.
(e) The Secretary will issue a decision on a waiver request within
90 days after the receipt of the original waiver request.
(f) The Secretary will approve a waiver request if and only to the
extent that:
(1) The Secretary determines that the requirements for which a
waiver is requested impede the ability of either the State or local
area to implement the State's Plan to improve the statewide workforce
development system;
(2) The Secretary determines that the waiver plan meets all of the
requirements of WIOA sec. 189(i)(3) and Sec. Sec. 679.600 through
679.620; and
(3) The State has executed a memorandum of understanding (MOU) with
the Secretary requiring the State to meet, or ensure that the local
area meets, agreed-upon outcomes and to implement other appropriate
measures to ensure accountability.
(g) A waiver may be approved for as long as the Secretary
determines appropriate, but for not longer than the duration of the
State's existing Unified or Combined State Plan.
(h) The Secretary may revoke a waiver granted under this section if
the Secretary determines that the State has failed to meet the agreed
upon outcomes, measures, failed to comply with the terms and conditions
in the MOU described in paragraph (f) of this section or any other
document establishing the terms and conditions of the waiver, or if the
waiver no longer meets the requirements of Sec. Sec. 679.600 through
679.620.
Sec. 679.630 Under what conditions may the Governor submit a
workforce flexibility plan?
(a) A State may submit to the Secretary, and the Secretary may
approve, a workforce flexibility (workflex) plan under which the State
is authorized to waive, in accordance with the plan:
(1) Any of the statutory or regulatory requirements under title I
of WIOA applicable to local areas, if the local area requests the
waiver in a waiver application, except for:
(i) Requirements relating to the basic purposes of title I of WIOA
described in Sec. 675.100 of this chapter;
(ii) Wage and labor standards;
(iii) Grievance procedures and judicial review;
(iv) Nondiscrimination;
(v) Eligibility of participants;
(vi) Allocation of funds to local areas;
(vii) Establishment and functions of local areas and Local WDBs;
(viii) Procedures for review and approval of local plans; and
(ix) Worker rights, participation, and protection.
(2) Any of the statutory or regulatory requirements applicable to
the State under secs. 8 through 10 of the Wagner-Peyser Act (29 U.S.C.
49g-49i), except for requirements relating to:
(i) The provision of services to unemployment insurance claimants
and veterans; and
(ii) Universal access to basic labor exchange services without cost
to job seekers.
(3) Any of the statutory or regulatory requirements applicable
under the Older Americans Act of 1965 (OAA) (42 U.S.C. 3001 et seq.),
to State agencies on aging with respect to activities carried out using
funds allotted under OAA sec. 506(b) (42 U.S.C. 3056d(b)), except for
requirements relating to:
(i) The basic purposes of OAA;
(ii) Wage and labor standards;
(iii) Eligibility of participants in the activities; and
(iv) Standards for grant agreements.
(b) A workforce flexibility plan submitted under paragraph (a) of
this section must include descriptions of:
(1) The process by which local areas in the State may submit and
obtain State approval of applications for waivers of requirements under
title I of WIOA;
(2) A description of the criteria the State will use to approve
local area waiver requests and how such requests support implementation
of the goals identified State Plan;
(3) The statutory and regulatory requirements of title I of WIOA
that are likely to be waived by the State under the workforce
flexibility plan;
(4) The statutory and regulatory requirements of secs. 8 through 10
of the Wagner-Peyser Act that are proposed for waiver, if any;
(5) The statutory and regulatory requirements of the OAA that are
proposed for waiver, if any;
(6) The outcomes to be achieved by the waivers described in
paragraphs (b)(1) through (5) of this section including, where
appropriate, revisions
[[Page 56385]]
to adjusted levels of performance included in the State or local plan
under title I of WIOA, and a description of the data or other
information the State will use to track and assess outcomes; and
(7) The measures to be taken to ensure appropriate accountability
for Federal funds in connection with the waivers.
(c) A State's workforce flexibility plan may accompany the State's
Unified or Combined State Plan, 2-year modification, or may be
submitted separately as a modification to that plan.
(d) The Secretary may approve a workforce flexibility plan
consistent with the period of approval of the State's Unified or
Combined State Plan, and not for more than 5 years.
(e) Before submitting a workforce flexibility plan to the Secretary
for approval, the State must provide adequate notice and a reasonable
opportunity for comment on the proposed waiver requests under the
workforce flexibility plan to all interested parties and to the general
public.
(f) The Secretary will issue guidelines under which States may
request designation as a work-flex State. These guidelines may require
a State to implement an evaluation of the impact of work-flex in the
State.
Sec. 679.640 What limitations apply to the State's workforce
flexibility plan authority under the Workforce Innovation and
Opportunity Act?
(a)(1) Under work-flex waiver authority a State must not waive the
WIOA, Wagner-Peyser Act or OAA requirements which are excepted from the
work-flex waiver authority and described in Sec. 679.630(a).
(2) Requests to waive statutory and regulatory requirements of
title I of WIOA applicable at the State level may not be granted under
work-flex waiver authority granted to a State. Such requests only may
be granted by the Secretary under the general waiver authority
described at Sec. Sec. 679.610 through 679.620.
(b) As required in Sec. 679.630(b)(6), States must address the
outcomes to result from work-flex waivers as part of its workforce
flexibility plan. The Secretary may terminate a State's work-flex
designation if the State fails to meet agreed-upon outcomes or other
terms and conditions contained in its workforce flexibility plan.
0
13. Add part 680 to read as follows:
PART 680--ADULT AND DISLOCATED WORKER ACTIVITIES UNDER TITLE I OF
THE WORKFORCE INNOVATION AND OPPORTUNITY ACT
Subpart A--Delivery of Adult and Dislocated Worker Activities Under
Title I of the Workforce Innovation and Opportunity Act
Sec.
680.100 What is the role of the adult and dislocated worker programs
in the one-stop delivery system?
680.110 When must adults and dislocated workers be registered and
considered a participant?
680.120 What are the eligibility criteria for career services for
adults in the adult and dislocated worker programs?
680.130 What are the eligibility criteria for career services for
dislocated workers in the adult and dislocated worker programs?
680.140 What Workforce Innovation and Opportunity Act title I adult
and dislocated worker services are Local Workforce Development
Boards required and permitted to provide?
680.150 What career services must be provided to adults and
dislocated workers?
680.160 How are career services delivered?
680.170 What is the individual employment plan?
680.180 What is an internship or work experience for adults and
dislocated workers?
680.190 What is a transitional job?
680.195 What funds may be used for transitional jobs?
Subpart B--Training Services
Sec.
680.200 What are training services for adults and dislocated
workers? 680.210 Who may receive training services?
680.220 Are there particular career services an individual must
receive before receiving training services under the Workforce
Innovation and Opportunity Act?
680.230 What are the requirements for coordination of Workforce
Innovation and Opportunity Act training funds and other grant
assistance?
Subpart C--Individual Training Accounts
Sec.
680.300 How are training services provided?
680.310 Can the duration and amount of Individual Training Accounts
be limited?
680.320 Under what circumstances may mechanisms other than
Individual Training Accounts be used to provide training services?
680.330 How can Individual Training Accounts, supportive services,
and needs-related payments be used to support placing participating
adults and dislocated workers into a registered apprenticeship
program and support participants once they are in a registered
apprenticeship program?
680.340 What are the requirements for consumer choice?
680.350 May Workforce Innovation and Opportunity Act title I adult
and dislocated worker funds be used to directly support adult
education and literacy activities?
Subpart D--Eligible Training Providers
Sec.
680.400 What is the purpose of this subpart?
680.410 What is an eligible training provider?
680.420 What is a ``program of training services''?
680.430 Who is responsible for managing the training provider
eligibility process?
680.440 [Reserved]
680.450 What is the initial eligibility process for new providers
and programs?
680.460 What is the application procedure for continued eligibility?
680.470 What are the procedures for including and removing
registered apprenticeship programs on a State list of eligible
training providers and programs?
680.480 May an eligible training provider lose its eligibility?
680.490 What kind of performance and cost information must eligible
training providers other than registered apprenticeship programs
provide for each program of training services?
680.500 How is the State list of eligible training providers and
programs disseminated?
680.510 In what ways can a Local Workforce Development Board
supplement the information available from the State list of eligible
training providers and programs?
680.520 May individuals choose training providers and programs
located outside of the local area or outside of the State?
680.530 What eligibility requirements apply to providers of on-the-
job-training, customized training, incumbent worker training, and
other training exceptions?
Subpart E--Priority and Special Populations
680.600 What priority must be given to low-income adults and public
assistance recipients and individuals who are basic skills deficient
served with adult funds under title I of the Workforce Innovation
and Opportunity Act?
680.610 Does the statutory priority for use of adult funds also
apply to dislocated worker funds?
680.620 How does the Temporary Assistance for Needy Families program
relate to the one-stop delivery system?
680.630 How does a displaced homemaker qualify for services under
title I of the Workforce Innovation and Opportunity Act?
680.640 May an individual with a disability whose family does not
meet income eligibility criteria under the Workforce Innovation and
Opportunity Act be eligible for priority as a low-income adult?
[[Page 56386]]
680.650 Do veterans receive priority of service under the Workforce
Innovation and Opportunity Act?
680.660 Are separating military service members eligible for
dislocated worker activities under the Workforce Innovation and
Opportunity Act?
Subpart F--Work-Based Training
680.700 What are the requirements for on-the-job training?
680.710 What are the requirements for on-the-job training contracts
for employed workers?
680.720 What conditions govern on-the-job training payments to
employers?
680.730 Under what conditions may a Governor or Local Workforce
Development Board raise the on-the-job training reimbursement rate
up to 75 percent of the wage rate?
680.740 How can on-the-job training funds be used to support placing
participants into a registered apprenticeship program?
680.750 Can Individual Training Account and on-the-job training
funds be combined to support placing participants into a registered
apprenticeship program?
680.760 What is customized training?
680.770 What are the requirements for customized training for
employed workers?
680.780 Who is an ``incumbent worker'' for purposes of statewide and
local employment and training activities?
680.790 What is incumbent worker training?
680.800 What funds may be used for incumbent worker training?
680.810 What criteria must be taken into account for an employer to
be eligible to receive local incumbent worker funds?
680.820 Are there cost sharing requirements for local area incumbent
worker training?
680.830 May funds provided to employers for work-based training be
used to assist, promote, or deter union organizing?
680.840 May funds provided to employers for work-based training and
other work experiences be used to fill job openings as a result of a
labor dispute?
Subpart G--Supportive Services
680.900 What are supportive services for adults and dislocated
workers?
680.910 When may supportive services be provided to participants?
680.920 Are there limits on the amount or duration of funds for
supportive services?
680.930 What are needs-related payments?
680.940 What are the eligibility requirements for adults to receive
needs-related payments?
680.950 What are the eligibility requirements for dislocated workers
to receive needs-related payments?
680.960 May needs-related payments be paid while a participant is
waiting to start training classes?
680.970 How is the level of needs-related payments determined?
Authority: Secs. 122, 134, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart A--Delivery of Adult and Dislocated Worker Activities Under
Title I of the Workforce Innovation and Opportunity Act
Sec. 680.100 What is the role of the adult and dislocated worker
programs in the one-stop delivery system?
(a) The one-stop delivery system is the basic delivery system for
adult and dislocated worker services. Through this system, adults and
dislocated workers can access a continuum of services. The services are
classified as career and training services.
(b) The chief elected official or his/her designee(s), as the local
grant recipient(s) for the adult and dislocated worker programs, is a
required one-stop partner and is subject to the provisions relating to
such partners described in part 678 of this chapter. Consistent with
those provisions:
(1) Career services for adults and dislocated workers must be made
available in at least one one-stop center in each local area. Services
also may be available elsewhere, either at affiliated sites or at
specialized centers. For example, specialized centers may be
established to serve workers being dislocated from a particular
employer or industry, or to serve residents of public housing.
(2) Through the one-stop delivery system, adults and dislocated
workers needing training are provided Individual Training Accounts
(ITAs) and access to lists of eligible training providers and programs
of training. These lists contain quality consumer information,
including cost and performance information for each of the providers'
programs, so that participants can make informed choices on where to
use their ITAs. (ITAs are more fully discussed in subpart C of this
part.)
Sec. 680.110 When must adults and dislocated workers be registered
and considered a participant?
(a) Registration is the process for collecting information to
support a determination of eligibility. This information may be
collected through methods that include electronic data transfer,
personal interview, or an individual's application. Individuals are
considered participants when they have received a Workforce Innovation
and Opportunity Act (WIOA) service other than self-service or
information-only activities and have satisfied all applicable
programmatic requirements for the provision of services, such as
eligibility determination (see Sec. 677.150(a) of this chapter).
(b) Adults and dislocated workers who receive services funded under
WIOA title I other than self-service or information-only activities
must be registered and must be a participant.
(c) EO data, as defined in Sec. 675.300 of this chapter, must be
collected on every individual who is interested in being considered for
WIOA title I financially assisted aid, benefits, services, or training
by a recipient, and who has signified that interest by submitting
personal information in response to a request from the grant recipient
or designated service provider.
Sec. 680.120 What are the eligibility criteria for career services
for adults in the adult and dislocated worker programs?
To be eligible to receive career services as an adult in the adult
and dislocated worker programs, an individual must be 18 years of age
or older. To be eligible for any dislocated worker programs, an
eligible adult must meet the criteria of Sec. 680.130. Eligibility
criteria for training services are found at Sec. 680.210.
Sec. 680.130 What are the eligibility criteria for career services
for dislocated workers in the adult and dislocated worker programs?
(a) To be eligible to receive career services as a dislocated
worker in the adult and dislocated worker programs, an individual must
meet the definition of ``dislocated worker'' at WIOA sec. 3(15).
Eligibility criteria for training services are found at Sec. 680.210.
(b) Governors and Local Workforce Development Boards (WDBs) may
establish policies and procedures for one-stop centers to use in
determining an individual's eligibility as a dislocated worker,
consistent with the definition at WIOA sec. 3(15). These policies and
procedures may address such conditions as:
(1) What constitutes a ``general announcement'' of plant closing
under WIOA sec. 3(15)(B)(ii) or (iii);
(2) What constitutes ``unemployed as a result of general economic
conditions in the community in which the individual resides or because
of natural disasters'' for determining the eligibility of self-employed
individuals, including family members and farm workers or ranch hands,
under WIOA sec. 3(15)(C); and
(3) What constitutes ``unlikely to return to a previous industry or
occupation'' under WIOA sec. 3(15)(A)(iii), consistent with Sec.
680.660.
Sec. 680.140 What Workforce Innovation and Opportunity Act title I
adult and dislocated worker services are Local Workforce Development
Boards required and permitted to provide?
(a) WIOA title I formula funds allocated to local areas for adults
and
[[Page 56387]]
dislocated workers must be used to provide career and training services
through the one-stop delivery system. Local WDBs determine the most
appropriate mix of these services, but both types must be available for
eligible adults and dislocated workers. Different eligibility criteria
apply for each type of services. See Sec. Sec. 680.120, 680.130, and
680.210.
(b) WIOA title I funds also may be used to provide the additional
services described in WIOA sec. 134(d), including:
(1) Job seeker services, such as:
(i) Customer support to enable individuals with barriers to
employment (including individuals with disabilities) and veterans, to
navigate among multiple services and activities;
(ii) Training programs for displaced homemakers and for individuals
training for nontraditional employment (as defined in WIOA sec. 3(37)
as occupations or fields of work in which individuals of one gender
comprise less than 25 percent of the individuals so employed), in
conjunction with programs operated in the local area;
(iii) Work support activities for low-wage workers, in coordination
with one-stop partners, which will provide opportunities for these
workers to retain or enhance employment. These activities may include
any activities available under the WIOA adult and dislocated worker
programs in coordination with activities and resources available
through partner programs. These activities may be provided in a manner
that enhances the worker's ability to participate, for example by
providing them at nontraditional hours or providing on-site child care;
(iv) Supportive services, including needs-related payments, as
described in subpart G of this part; and
(v) Transitional jobs, as described in Sec. 680.190, to
individuals with barriers to employment who are chronically unemployed
or have an inconsistent work history;
(2) Employer services, such as:
(i) Customized screening and referral of qualified participants in
training services to employers;
(ii) Customized employment-related services to employers, employer
associations, or other such organization on a fee-for-service basis
that are in addition to labor exchange services available to employers
under the Wagner-Peyser Act Employment Service;
(iii) Activities to provide business services and strategies that
meet the workforce investment needs of area employers, as determined by
the Local WDB and consistent with the local plan (see Sec. 678.435 of
this chapter and WIOA sec. 134(d)(1)(A)(ix)); and
(3) Coordination activities, such as:
(i) Employment and training activities in coordination with child
support enforcement activities, as well as child support services and
assistance activities, of the State and local agencies carrying out
part D of title IV of the Social Security Act (42 U.S.C. 651 et seq.);
(ii) Employment and training activities in coordination with
cooperative extension programs carried out by the Department of
Agriculture;
(iii) Employment and training activities in coordination with
activities to facilitate remote access to services provided through a
one-stop delivery system, including facilitating access through the use
of technology;
(iv) Improving coordination between workforce investment activities
and economic development activities carried out within the local area
involved, and to promote entrepreneurial skills training and
microenterprise services;
(v) Improving services and linkages between the local workforce
development system (including the local one-stop delivery system) and
employers, including small employers, in the local area;
(vi) Strengthening linkages between the one-stop delivery system
and the unemployment insurance programs; and
(vii) Improving coordination between employment and training
activities and programs carried out in the local area for individuals
with disabilities, including programs carried out by State agencies
relating to intellectual disabilities and developmental disabilities,
activities carried out by Statewide Independent Living Councils
established under sec. 705 of the Rehabilitation Act of 1973 (29 U.S.C.
796d), programs funded under part B of chapter 1 of title VII of such
Act (29 U.S.C. 796e et seq.), and activities carried out by centers for
independent living, as defined in sec. 702 of such Act (29 U.S.C.
796a);
(4) Implementing a Pay-for-Performance contract strategy for
training services in accordance with Sec. Sec. 683.500 through 683.530
of this chapter for which up to 10 percent of the Local WDB's total
adult and dislocated worker funds may be used;
(5) Technical assistance for one-stop centers, partners, and
eligible training providers (ETPs) on the provision of service to
individuals with disabilities in local areas, including staff training
and development, provision of outreach and intake assessments, service
delivery, service coordination across providers and programs, and
development of performance accountability measures;
(6) Activities to adjust the economic self-sufficiency standards
referred to in WIOA sec. 134(a)(3)(A)(xii) for local factors or
activities to adopt, calculate or commission for approval, economic
self-sufficiency standards for the local areas that specify the income
needs of families, by family size, the number and ages of children in
the family, and sub-State geographical considerations;
(7) Implementing promising service to workers and businesses, which
may include support for education, training, skill upgrading, and
statewide networking for employees to become workplace learning
advisors and maintain proficiency in carrying out the activities
associated with such advising; and
(8) Incumbent worker training programs, as described in subpart F
of this part.
Sec. 680.150 What career services must be provided to adults and
dislocated workers?
(a) At a minimum, all of the basic career services described in
WIOA secs. 134(c)(2)(A)(i)-(xi) and Sec. 678.430(a) of this chapter
must be provided in each local area through the one-stop delivery
system.
(b) Individualized career services described in WIOA sec.
134(c)(2)(A)(xii) and Sec. 678.430(b) of this chapter must be made
available, if determined appropriate in order for an individual to
obtain or retain employment.
(c) Follow-up services, as described in WIOA sec.
134(c)(2)(A)(xiii) and Sec. 678.430(c) of this chapter, must be made
available, as determined appropriate by the Local WDB, for a minimum of
12 months following the first day of employment, to participants who
are placed in unsubsidized employment.
Sec. 680.160 How are career services delivered?
Career services must be provided through the one-stop delivery
system. Career services may be provided directly by the one-stop
operator or through contracts with service providers that are approved
by the Local WDB. The Local WDB only may be a provider of career
services when approved by the chief elected official and the Governor
in accordance with the requirements of WIOA sec. 107(g)(2) and Sec.
679.410 of this chapter.
Sec. 680.170 What is the individual employment plan?
The individual employment plan (IEP) is an individualized career
service, under WIOA sec. 134(c)(2)(A)(xii)(II),
[[Page 56388]]
that is developed jointly by the participant and career planner when
determined appropriate by the one-stop center or one-stop partner. The
plan is an ongoing strategy to identify employment goals, achievement
objectives, and an appropriate combination of services for the
participant to achieve the employment goals.
Sec. 680.180 What is an internship or work experience for adults and
dislocated workers?
For the purposes of WIOA sec. 134(c)(2)(A)(xii)(VII), an internship
or work experience is a planned, structured learning experience that
takes place in a workplace for a limited period of time. Internships
and other work experience may be paid or unpaid, as appropriate and
consistent with other laws, such as the Fair Labor Standards Act. An
internship or other work experience may be arranged within the private
for profit sector, the non-profit sector, or the public sector. Labor
standards apply in any work experience setting where an employee/
employer relationship, as defined by the Fair Labor Standards Act,
exists. Transitional jobs are a type of work experience, as described
in Sec. Sec. 680.190 and 680.195.
Sec. 680.190 What is a transitional job?
A transitional job is one that provides a time-limited work
experience, that is wage-paid and subsidized, and is in the public,
private, or non-profit sectors for those individuals with barriers to
employment who are chronically unemployed or have inconsistent work
history, as determined by the Local WDB. These jobs are designed to
enable an individual to establish a work history, demonstrate work
success in an employee-employer relationship, and develop the skills
that lead to unsubsidized employment.
Sec. 680.195 What funds may be used for transitional jobs?
The local area may use up to 10 percent of their combined total of
adult and dislocated worker allocations for transitional jobs as
described in Sec. 680.190. Transitional jobs must be combined with
comprehensive career services (see Sec. 680.150) and supportive
services (see Sec. 680.900).
Subpart B--Training Services
Sec. 680.200 What are training services for adults and dislocated
workers?
Types of training services are listed in WIOA sec. 134(c)(3)(D) and
in paragraphs (a) through (k) of this section. This list is not all-
inclusive and additional training services may be provided.
(a) Occupational skills training, including training for
nontraditional employment;
(b) On-the-job training (OJT) (see Sec. Sec. 680.700, 680.710,
680.720, and 680.730);
(c) Incumbent worker training, in accordance with WIOA sec.
134(d)(4) and Sec. Sec. 680.780, 680.790, 680.800, 680.810, and
680.820;
(d) Programs that combine workplace training with related
instruction, which may include cooperative education programs;
(e) Training programs operated by the private sector;
(f) Skills upgrading and retraining;
(g) Entrepreneurial training;
(h) Transitional jobs in accordance with WIOA sec 134(d)(5) and
Sec. Sec. 680.190 and 680.195;
(i) Job readiness training provided in combination with services
listed in paragraphs (a) through (h) of this section;
(j) Adult education and literacy activities, including activities
of English language acquisition and integrated education and training
programs, provided concurrently or in combination with training
services listed in paragraphs (a) through (g) of this section; and
(k) Customized training conducted with a commitment by an employer
or group of employers to employ an individual upon successful
completion of the training (see Sec. Sec. 680.760 and 680.770).
Sec. 680.210 Who may receive training services?
Under WIOA sec. 134(c)(3)(A) training services may be made
available to employed and unemployed adults and dislocated workers who:
(a) A one-stop center or one-stop partner determines, after an
interview, evaluation, or assessment, and career planning, are:
(1) Unlikely or unable to obtain or retain employment that leads to
economic self-sufficiency or wages comparable to or higher than wages
from previous employment through career services;
(2) In need of training services to obtain or retain employment
leading to economic self-sufficiency or wages comparable to or higher
than wages from previous employment; and
(3) Have the skills and qualifications to participate successfully
in training services;
(b) Select a program of training services that is directly linked
to the employment opportunities in the local area or the planning
region, or in another area to which the individuals are willing to
commute or relocate;
(c) Are unable to obtain grant assistance from other sources to pay
the costs of such training, including such sources as State-funded
training funds, Trade Adjustment Assistance (TAA), and Federal Pell
Grants established under title IV of the Higher Education Act of 1965,
or require WIOA assistance in addition to other sources of grant
assistance, including Federal Pell Grants (provisions relating to fund
coordination are found at Sec. 680.230 and WIOA sec. 134(c)(3)(B));
and
(d) If training services are provided through the adult funding
stream, are determined eligible in accordance with the State and local
priority system in effect for adults under WIOA sec. 134(c)(3)(E) and
Sec. 680.600.
Sec. 680.220 Are there particular career services an individual must
receive before receiving training services under the Workforce
Innovation and Opportunity Act?
(a) Yes, except as provided by paragraph (b) of this section, an
individual must at a minimum receive either an interview, evaluation,
or assessment, and career planning or any other method through which
the one-stop center or partner can obtain enough information to make an
eligibility determination to be determined eligible for training
services under WIOA sec. 134(c)(3)(A)(i) and Sec. 680.210. Where
appropriate, a recent interview, evaluation, or assessment, may be used
for the assessment purpose.
(b) The case file must contain a determination of need for training
services under Sec. 680.210 as determined through the interview,
evaluation, or assessment, and career planning informed by local labor
market information and training provider performance information, or
through any other career service received. There is no requirement that
career services be provided as a condition to receipt of training
services; however, if career services are not provided before training,
the Local WDB must document the circumstances that justified its
determination to provide training without first providing the services
described in paragraph (a) of this section.
(c) There is no Federally required minimum time period for
participation in career services before receiving training services.
[[Page 56389]]
Sec. 680.230 What are the requirements for coordination of Workforce
Innovation and Opportunity Act training funds and other grant
assistance?
(a) WIOA funding for training is limited to participants who:
(1) Are unable to obtain grant assistance from other sources to pay
the costs of their training; or
(2) Require assistance beyond that available under grant assistance
from other sources to pay the costs of such training. Programs and
training providers must coordinate funds available to pay for training
as described in paragraphs (b) and (c) of this section. In making the
determination under this paragraph (a), one-stop centers may take into
account the full cost of participating in training services, including
the cost of support services and other appropriate costs.
(b) One-stop centers must coordinate training funds available and
make funding arrangements with one-stop partners and other entities to
apply the provisions of paragraph (a) of this section. One-stop centers
must consider the availability of other sources of grants to pay for
training costs such as Temporary Assistance for Needy Families (TANF),
State-funded training funds, and Federal Pell Grants, so that WIOA
funds supplement other sources of training grants.
(c) A WIOA participant may enroll in WIOA-funded training while
his/her application for a Pell Grant is pending as long as the one-stop
center has made arrangements with the training provider and the WIOA
participant regarding allocation of the Pell Grant, if it is
subsequently awarded. In that case, the training provider must
reimburse the one-stop center the WIOA funds used to underwrite the
training for the amount the Pell Grant covers, including any education
fees the training provider charges to attend training. Reimbursement is
not required from the portion of Pell Grant assistance disbursed to the
WIOA participant for education-related expenses.
Subpart C--Individual Training Accounts
Sec. 680.300 How are training services provided?
Training services for eligible individuals are typically provided
by training providers who receive payment for their services through an
ITA. The ITA is a payment agreement established on behalf of a
participant with a training provider. WIOA title I adult and dislocated
workers purchase training services from State eligible training
providers they select in consultation with the career planner, which
includes discussion of program quality and performance information on
the available eligible training providers. Payments from ITAs may be
made in a variety of ways, including the electronic transfer of funds
through financial institutions, vouchers, or other appropriate methods.
Payments also may be made incrementally, for example, through payment
of a portion of the costs at different points in the training course.
Under limited conditions, as provided in Sec. 680.320 and WIOA sec.
134(d)(3)(G), a Local WDB may contract for these services, rather than
using an ITA for this purpose. In some limited circumstances, the Local
WDB may itself provide the training services, but only if it obtains a
waiver from the Governor for this purpose, and the Local WDB meets the
other requirements of Sec. 679.410 of this chapter and WIOA sec.
107(g)(1).
Sec. 680.310 Can the duration and amount of Individual Training
Accounts be limited?
(a) Yes, the State or Local WDB may impose limits on ITAs, such as
limitations on the dollar amount and/or duration.
(b) Limits to ITAs may be established in different ways:
(1) There may be a limit for an individual participant that is
based on the needs identified in the IEP, such as the participant's
occupational choice or goal and the level of training needed to succeed
in that goal; or
(2) There may be a policy decision by the State WDB or Local WDB to
establish a range of amounts and/or a maximum amount applicable to all
ITAs.
(c) Limitations established by State or Local WDB policies must be
described in the State or Local Plan, respectively, but must not be
implemented in a manner that undermines WIOA's requirement that
training services are provided in a manner that maximizes customer
choice in the selection of an ETP. Exceptions to ITA limitations may be
provided for individual cases and must be described in State or Local
WDB policies.
(d) An individual may select training that costs more than the
maximum amount available for ITAs under a State or local policy when
other sources of funds are available to supplement the ITA. These other
sources may include: Pell Grants; scholarships; severance pay; and
other sources.
Sec. 680.320 Under what circumstances may mechanisms other than
Individual Training Accounts be used to provide training services?
(a) Contracts for services may be used instead of ITAs only when
one or more of the following five exceptions apply, and the local area
has fulfilled the consumer choice requirements of Sec. 680.340:
(1) When the services provided are on-the-job-training (OJT),
customized training, incumbent worker training, or transitional jobs.
(2) When the Local WDB determines that there are an insufficient
number of eligible training providers in the local area to accomplish
the purpose of a system of ITAs. The determination process must include
a public comment period for interested providers of at least 30 days,
and be described in the Local Plan.
(3) When the Local WDB determines that there is a training services
program of demonstrated effectiveness offered in the area by a
community-based organization or another private organization to serve
individuals with barriers to employment, as described in paragraph (b)
of this section. The Local WDB must develop criteria to be used in
determining demonstrated effectiveness, particularly as it applies to
the individuals with barriers to employment to be served. The criteria
may include:
(i) Financial stability of the organization;
(ii) Demonstrated performance in the delivery of services to
individuals with barriers to employment through such means as program
completion rate; attainment of the skills, certificates or degrees the
program is designed to provide; placement after training in
unsubsidized employment; and retention in employment; and
(iii) How the specific program relates to the workforce investment
needs identified in the local plan.
(4) When the Local WDB determines that it would be most appropriate
to contract with an institution of higher education (see WIOA sec.
3(28)) or other provider of training services in order to facilitate
the training of multiple individuals in in-demand industry sectors or
occupations, provided that the contract does not limit consumer choice.
(5) When the Local WDB is considering entering into a Pay-for-
Performance contract, and the Local WDB ensures that the contract is
consistent with Sec. 683.510 of this chapter.
(b) Under paragraph (a)(3) of this section, individuals with
barriers to
[[Page 56390]]
employment include those individuals in one or more of the following
categories, as prescribed by WIOA sec. 3(24):
(1) Displaced homemakers;
(2) Low-income individuals;
(3) Indians, Alaska Natives, and Native Hawaiians;
(4) Individuals with disabilities;
(5) Older individuals, i.e., those aged 55 or over;
(6) Ex-offenders;
(7) Homeless individuals;
(8) Youth who are in or have aged out of the foster care system;
(9) Individuals who are English language learners, individuals who
have low levels of literacy, and individuals facing substantial
cultural barriers;
(10) Eligible migrant and seasonal farmworkers, defined in WIOA
sec. 167(i);
(11) Individuals within 2 years of exhausting lifetime eligibility
under TANF (part A of title IV of the Social Security Act);
(12) Single-parents (including single pregnant women);
(13) Long-term unemployed individuals; or
(14) Other groups determined by the Governor to have barriers to
employment.
(c) The Local Plan must describe the process to be used in
selecting the providers under a contract for services.
Sec. 680.330 How can Individual Training Accounts, supportive
services, and needs-related payments be used to support placing
participating adults and dislocated workers into a registered
apprenticeship program and support participants once they are in a
registered apprenticeship program?
Registered apprenticeships automatically qualify to be a on a
State's eligible training provider list (ETPL) as described in Sec.
680.470.
(a) ITAs can be used to support placing participants in registered
apprenticeship through:
(1) Pre-apprenticeship training, as defined in Sec. 681.480 of
this chapter; and
(2) Training services provided under a registered apprenticeship
program.
(b) Supportive services may be provided as described in Sec. Sec.
680.900 and 680.910.
(c) Needs-related payments may be provided as described in
Sec. Sec. 680.930, 680.940, 680.950, 680.960, and 680.970.
(d) Work-based training options also may be used to support
participants in registered apprenticeship programs (see Sec. Sec.
680.740 and 680.750).
Sec. 680.340 What are the requirements for consumer choice?
(a) Training services, whether under ITAs or under contract, must
be provided in a manner that maximizes informed consumer choice in
selecting an eligible provider.
(b) Each Local WDB, through the one-stop center, must make
available to customers the State list of eligible training providers
required in WIOA sec. 122(d). The list includes a description of the
programs through which the providers may offer the training services,
and the performance and cost information about those providers
described in WIOA sec. 122(d). Additionally, the Local WDB must make
available information identifying eligible providers as may be required
by the Governor under WIOA sec. 122(h) (where applicable).
(c) An individual who has been determined eligible for training
services under Sec. 680.210 may select a provider described in
paragraph (b) of this section after consultation with a career planner.
Unless the program has exhausted training funds for the program year,
the one-stop center must refer the individual to the selected provider,
and establish an ITA for the individual to pay for training. For
purposes of this paragraph (c), a referral may be carried out by
providing a voucher or certificate to the individual to obtain the
training.
(d) The cost of referral of an individual with an ITA to a training
provider is paid by the applicable adult or dislocated worker program
under title I of WIOA.
(e) Each Local WDB, through the one-stop center, may coordinate
funding for ITAs with funding from other Federal, State, local, or
private job training programs or sources to assist the individual in
obtaining training services.
(f) Consistent with paragraph (a) of this section, priority
consideration must be given to programs that lead to recognized
postsecondary credentials (defined at WIOA sec. 3(52)) that are aligned
with in-demand industry sectors or occupations in the local area.
Sec. 680.350 May Workforce Innovation and Opportunity Act title I
adult and dislocated worker funds be used to directly support adult
education and literacy activities?
Yes, under WIOA sec. 134(c)(3)(D)(x), title I funds may provide
adult education and literacy activities if they are provided
concurrently or in combination with one or more of the following
training services:
(a) Occupational skills training, including training for
nontraditional employment;
(b) OJT;
(c) Incumbent worker training (as described in Sec. Sec. 680.780,
680.790, 680.800, 680.810, and 680.820);
(d) Programs that combined workplace training and related
instruction, which may include cooperative education programs;
(e) Training programs operated by the private sector;
(f) Skill upgrading and retraining; or
(g) Entrepreneurial training.
Subpart D--Eligible Training Providers
Sec. 680.400 What is the purpose of this subpart?
(a) This subpart describes the process for determining eligible
training providers and programs for WIOA title I, subtitle B adult,
dislocated worker, and out-of-school youth (OSY) aged 16-24 training
participants and for publicly disseminating the list of these providers
with relevant information about their programs. The workforce
development system established under WIOA emphasizes informed consumer
choice, job-driven training, provider performance, and continuous
improvement. The quality and selection of providers and programs of
training services is vital to achieving these core principles.
(b) The State list of eligible training providers and programs and
the related eligibility procedures ensure the accountability, quality
and labor-market relevance of programs of training services that
receive funds through WIOA title I, subtitle B. The State list of
eligible training providers and programs also is a means for ensuring
informed customer choice for individuals eligible for training. In
administering the eligible training provider eligibility process,
States and local areas must work to ensure that qualified providers
offering a wide variety of job-driven programs of training services are
available. The State list of eligible training providers and programs
is made publicly available online through Web sites and searchable
databases as well as any other means the State uses to disseminate
information to consumers, including formats accessible to individuals
with disabilities. The list must be accompanied by relevant performance
and cost information and must be presented in a way that is easily
understood, in order to maximize informed consumer choice and serve all
significant population groups, and also must be available in an
electronic format. The State eligible training provider performance
reports, as required under WIOA sec. 116(d)(4), are addressed
separately in Sec. 677.230 of this chapter.
Sec. 680.410 What is an eligible training provider?
An ETP:
[[Page 56391]]
(a) Is the only type of entity that receives funding for training
services, as defined in Sec. 680.200, through an individual training
account;
(b) Must be included on the State list of eligible training
providers and programs under this subpart;
(c) Must provide a program of training services; and
(d) Must be one of the following types of entities:
(1) Institutions of higher education that provide a program which
leads to a recognized postsecondary credential;
(2) Entities that carry out programs registered under the National
Apprenticeship Act (29 U.S.C. 50 et seq.); or
(3) Other public or private providers of training services, which
may include:
(i) Community-based organizations;
(ii) Joint labor-management organizations; and
(iii) Eligible providers of adult education and literacy activities
under title II of WIOA if such activities are provided in combination
with training services described at Sec. 680.350.
Sec. 680.420 What is a ``program of training services''?
A program of training services is one or more courses or classes,
or a structured regimen, that provides the services in Sec. 680.200
and leads to:
(a) An industry-recognized certificate or certification, a
certificate of completion of a registered apprenticeship, a license
recognized by the State involved or the Federal government, an
associate or baccalaureate degree;
(b) Consistent with Sec. 680.350, a secondary school diploma or
its equivalent;
(c) Employment; or
(d) Measurable skill gains toward a credential described in
paragraph (a) or (b) of this section or employment.
Sec. 680.430 Who is responsible for managing the training provider
eligibility process?
(a) The Governor, in consultation with the State WDB, establishes
the criteria, information requirements, and procedures, including
procedures identifying the respective roles of the State and local
areas, governing the eligibility of providers and programs of training
services to receive funds through ITAs.
(b) The Governor may designate a State agency (or appropriate State
entity) to assist in carrying out the process and procedures for
determining the eligibility of training providers and programs of
training services. The Governor or such agency (or appropriate State
entity) is responsible for:
(1) Ensuring the development and maintenance of the State list of
eligible training providers and programs, as described in Sec. Sec.
680.450 (initial eligibility), 680.460 (continued eligibility), and
680.490 (performance and cost information reporting requirements);
(2) Ensuring that programs meet eligibility criteria and
performance levels established by the State, including verifying the
accuracy of the information;
(3) Removing programs that do not meet State-established program
criteria or performance levels, as described in Sec. 680.480(c);
(4) Taking appropriate enforcement actions against providers that
intentionally provide inaccurate information, or that substantially
violate the requirements of WIOA, as described in Sec. 680.480(a) and
(b); and
(5) Disseminating the State list of eligible training providers and
programs, accompanied by performance and cost information relating to
each program, to the public and the Local WDBs throughout the State, as
further described in Sec. 680.500.
(c) The Local WDB must:
(1) Carry out the procedures assigned to the Local WDB by the
State, such as determining the initial eligibility of entities
providing a program of training services, renewing the eligibility of
providers and programs, and considering the possible termination of an
eligible training provider due to the provider's submission of
inaccurate eligibility and performance information or the provider's
substantial violation of WIOA requirements;
(2) Work with the State to ensure there are sufficient numbers and
types of providers of training services, including eligible providers
with expertise in assisting individuals with disabilities and eligible
providers with expertise in assisting adults in need of adult education
and literacy activities described under WIOA sec. 107(d)(10)(E),
serving the local area; and
(3) Ensure the dissemination and appropriate use of the State list
of eligible training providers and programs through the local one-stop
delivery system, including formats accessible to individuals with
disabilities.
(d) The Local WDB may make recommendations to the Governor on the
procedure used in determining eligibility of providers and programs.
(e) The Local WDB may, except with respect to registered
apprenticeship programs:
(1) Require additional criteria and information from local
providers as criteria to become or remain eligible in that local area;
and
(2) Set higher levels of performance than those required by the
State as criteria for local programs to become or remain eligible to
provide services in that local area.
Sec. 680.440 [Reserved]
Sec. 680.450 What is the initial eligibility process for new
providers and programs?
(a) All providers and programs that have not previously been
eligible to provide training services under WIOA sec. 122 or WIA sec.
122, except for registered apprenticeship programs, must submit
required information to be considered for initial eligibility in
accordance with the Governor's procedures.
(b) Apprenticeship programs registered under the National
Apprenticeship Act are exempt from initial eligibility procedures.
Registered apprenticeship programs must be included and maintained on
the State list of eligible training providers and programs as long as
the program remains registered, unless the registered apprenticeship
program is removed from the list for a reason set forth in Sec.
680.470. Procedures for registered apprenticeship programs to be
included and maintained on the list are described in Sec. 680.470.
(c) In establishing the State requirements described in paragraph
(e) of this section, the Governor must, in consultation with the State
WDB, develop a procedure for determining the eligibility of training
providers and programs. This procedure, which must be described in the
State Plan, must be developed after:
(1) Soliciting and taking into consideration recommendations from
Local WDBs and providers of training services within the State;
(2) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to
submit comments on the procedure; and
(3) Designating a specific time period for soliciting and
considering the recommendations of Local WDBs and providers, and for
providing an opportunity for public comment.
(d) For institutions of higher education that provide a program
that leads to a recognized postsecondary credential and for other
public or private providers of programs of training services, including
joint labor-management organizations, and providers of adult education
and literacy activities, the Governor must establish criteria and State
requirements
[[Page 56392]]
for providers and programs seeking initial eligibility.
(e) The Governor must require providers and programs seeking
initial eligibility to provide verifiable program specific performance
information. At a minimum, these criteria must require applicant
providers to:
(1) Describe each program of training services to be offered;
(2) Provide information addressing a factor related to the
indicators of performance, as described in WIOA secs.
116(b)(2)(A)(i)(I)-(IV) and Sec. 680.460(g)(1) through (4) which
include unsubsidized employment during the second quarter after exit,
unsubsidized employment during the fourth quarter after exit, median
earnings and credentials attainment;
(3) Describe whether the provider is in a partnership with a
business;
(4) Provide other information the Governor may require in order to
demonstrate high quality programs of training services, which may
include information related to training services that lead to a
recognized postsecondary credential; and
(5) Provide information that addresses alignment of the training
services with in-demand industry sectors and occupations, to the extent
possible.
(f) In establishing the initial eligibility procedures and
criteria, the Governor may establish minimum performance standards,
based on the performance information described in paragraph (e) of this
section.
(g) Under WIOA sec. 122(b)(4)(B), eligible training providers
receive initial eligibility for only 1 year for a particular program.
(h) After the initial eligibility expires, these initially eligible
training providers are subject to the Governor's application procedures
for continued eligibility, described at Sec. 680.460, in order to
remain eligible.
Sec. 680.460 What is the application procedure for continued
eligibility?
(a) The Governor must establish an application procedure for
eligible training providers and programs to maintain their continued
eligibility. The application procedure must take into account the
program's prior eligibility status.
(1) Training providers and programs that were previously eligible
under WIA will be subject to the application procedure for continued
eligibility after the close of the Governor's transition period for
implementation.
(2) Training providers and programs that were not previously
eligible under WIA and have been determined to be initially eligible
under WIOA, under the procedures described at Sec. 680.450, will be
subject to the application procedure for continued eligibility after
their initial eligibility expires.
(b) The Governor must develop this procedure after:
(1) Soliciting and taking into consideration recommendations from
Local WDBs and providers of training services within the State;
(2) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to
submit comments on such procedure; and
(3) Designating a specific time period for soliciting and
considering the recommendations of Local WDBs and providers, and for
providing an opportunity for public comment.
(c) Procedures for registered apprenticeship programs to be
included and maintained on the list are described in Sec. 680.470.
Apprenticeship programs registered under the National Apprenticeship
Act must be included and maintained on the State list of eligible
training providers and programs as long as the program remains
registered, unless the registered apprenticeship program is removed
from the list for a reason set forth in Sec. 680.470.
(d) The application procedure must describe the roles of the State
and local areas in receiving and reviewing provider applications and in
making eligibility determinations.
(e) The application procedure must be described in the State Plan.
(f) In establishing eligibility criteria, the Governor must take
into account:
(1) The performance of the eligible training provider's program on:
(i) The performance accountability measures described in WIOA secs.
116(b)(2)(A)(i)(I)-(IV) and the other matters required by WIOA sec.
122(b)(2);
(ii) Other appropriate measures of performance outcomes determined
by the Governor for program participants receiving training services
under WIOA title I, subtitle B, taking into consideration the
characteristics of the population served and relevant economic
conditions; and
(iii) Outcomes of the program for students in general with respect
to employment and earnings as defined in WIOA sec. 116(b)(2).
(iv) All of these measures may include minimum performance
standards.
(v) Until data from the conclusion of each performance indicator's
first data cycle are available, the Governor may take into account
alternate factors related to the measures described in paragraphs
(f)(1)(i) through (iv) of this section.
(2) Ensuring access to training services throughout the State,
including in rural areas, and through the use of technology;
(3) Information reported to State agencies on Federal and State
training programs other than programs within WIOA title I, subtitle B;
(4) The degree to which programs of training services relate to in-
demand industry sectors and occupations in the State;
(5) State licensure requirements of training providers;
(6) Encouraging the use of industry-recognized certificates and
credentials;
(7) The ability of providers to offer programs of training services
that lead to postsecondary credentials;
(8) The quality of the program of training services including a
program that leads to a recognized postsecondary credential;
(9) The ability of the providers to provide training services to
individuals who are employed and individuals with barriers to
employment;
(10) Whether the providers timely and accurately submitted all of
the information required for completion of eligible training provider
performance reports required under WIOA sec. 116(d)(4) and all of the
information required for initial and continued eligibility in this
subpart; and
(11) Other factors that the Governor determines are appropriate in
order to ensure: The accountability of providers; that one-stop centers
in the State will meet the needs of local employers and participants;
and, that participants will be given an informed choice among
providers.
(g) The information requirements that the Governor establishes
under paragraph (f)(1) of this section must require eligible training
providers to submit appropriate, accurate, and timely information for
participants receiving training under WIOA title I, subtitle B. That
information must include:
(1) The percentage of program participants who are in unsubsidized
employment during the second quarter after exit from the program;
(2) The percentage of program participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(3) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(4) The percentage of program participants who obtain a recognized
postsecondary credential, or a secondary school diploma or its
[[Page 56393]]
recognized equivalent during participation in or within 1 year after
exit from the program;
(5) Information on recognized postsecondary credentials received by
program participants;
(6) Information on cost of attendance, including costs of tuition
and fees, for program participants;
(7) Information on the program completion rate for such
participants.
(h) The eligibility criteria must require that:
(1) Providers submit performance and cost information as described
in paragraph (g) of this section and in the Governor's procedures for
each program of training services for which the provider has been
determined to be eligible, in a timeframe and manner determined by the
State, but at least every 2 years; and
(2) That the collection of information required to demonstrate
compliance with the criteria is not unduly burdensome or costly to
providers.
(i) The procedure for continued eligibility also must provide for
the State biennially to review provider eligibility information to
assess the renewal of training provider eligibility. Such procedures
may establish minimum levels of training provider performance as
criteria for continued eligibility.
(j) The procedure for biennial review of the provider eligibility
must include verification of the registration status of registered
apprenticeship programs and removal of any registered apprenticeship
programs as described in Sec. 680.470.
(k) The Governor may establish procedures and timeframes for
providing technical assistance to eligible training providers who are
not intentionally supplying inaccurate information or who have not
substantially violated any of the requirements under this section but
are failing to meet the criteria and information requirements due to
undue cost or burden.
(l) The Governor's procedures must include what the Governor
considers to be a substantial violation of the requirement to timely
and accurately submit all of the information required for completion of
the eligible training provider performance reports required under WIOA
sec. 116(d)(4) and all of the information required for initial and
continued eligibility in this subpart.
(1) The Governor's procedures on determining a substantial
violation must take into account exceptional circumstances beyond the
provider's control, such as natural disasters, unexpected personnel
transitions, and unexpected technology-related issues.
(2) Providers who substantially violate the requirement in
paragraph (g) of this section to timely and accurately submit all
required information must be removed from the State list of eligible
training providers and programs, as provided in Sec. 680.480(b).
Sec. 680.470 What are the procedures for including and removing
registered apprenticeship programs on a State list of eligible training
providers and programs?
(a) All registered apprenticeship programs that are registered with
the U.S. Department of Labor, Office of Apprenticeship, or a recognized
State apprenticeship agency, are automatically eligible to be included
in the State list of eligible training providers and programs. All
registered apprenticeship programs must be informed of their automatic
eligibility to be included on the list, and must be provided an
opportunity to consent to their inclusion, before being placed on the
State list of eligible training providers and programs. The Governor
must establish a mechanism for registered apprenticeship program
sponsors in the State to be informed of their automatic eligibility and
to indicate that the program sponsor wishes to be included on the State
list of eligible training providers and programs. This mechanism must
place minimal burden on registered apprenticeship program sponsors and
must be developed in accordance with guidance from the U.S. Department
of Labor Office of Apprenticeship or with the assistance of the
recognized State apprenticeship agency, as applicable.
(b) Once on the State list of eligible training providers and
programs, registered apprenticeship programs will remain on the list:
(1) Until they are deregistered;
(2) Until the registered apprenticeship program notifies the State
that it no longer wants to be included on the list; or
(3) Until the registered apprenticeship program is determined to
have intentionally supplied inaccurate information or to have
substantially violated any provision of title I of WIOA or the WIOA
regulations, including 29 CFR part 38.
(c) A registered apprenticeship program whose eligibility is
terminated under paragraph (b)(3) of this section must be terminated
for not less than 2 years and is liable to repay all youth, adult, and
dislocated worker training funds it received during the period of
noncompliance. The Governor must specify in the procedures required by
Sec. 680.480 which individual or entity is responsible for making
these determinations and the process by which the determination will be
made, which must include an opportunity for a hearing that meets the
requirements of Sec. 683.630(b) of this chapter.
(d) Inclusion of a registered apprenticeship in the State list of
eligible training providers and programs allows an individual who is
eligible to use WIOA title I, subtitle B funds to use those funds
toward registered apprenticeship training, consistent with their
availability and limitations as prescribed by Sec. 680.300. The use of
ITAs and other WIOA title I, subtitle B funds toward registered
apprenticeship training is further described in Sec. 680.330.
(e) The Governor is encouraged to consult with the State and Local
WDBs, ETA's Office of Apprenticeship, recognized State apprenticeship
agencies (where they exist in the Governor's State) or other State
agencies, to establish voluntary reporting of performance information.
(f) Pre-apprenticeship providers that wish to provide training
services to participants using WIOA title I, subtitle B funds are
subject to the eligibility procedures of this subpart.
Sec. 680.480 May an eligible training provider lose its eligibility?
(a) Yes. A training provider must meet the Governors requirements
for eligibility and provide accurate information in order to retain its
status as an eligible training provider.
(b) Providers determined to have intentionally supplied inaccurate
information or to have substantially violated any provision of title I
of WIOA or the WIOA regulations, including 29 CFR part 38, must be
removed from the State list of eligible training providers and programs
in accordance with the enforcement provisions of WIOA sec. 122(f). A
provider whose eligibility is terminated under these conditions must be
terminated for not less than 2 years and is liable to repay all youth,
adult, and dislocated worker training funds it received during the
period of noncompliance. The Governor must specify in the procedures
which individual or entity is responsible for making these
determinations and the process by which the determination will be made,
which must include an opportunity for a hearing that meets the
requirements of Sec. 683.630(b) of this chapter.
(c) As a part of the biennial review of eligibility established by
the Governor, the State must remove programs of training services that
fail to meet criteria
[[Page 56394]]
established by the Governor to remain eligible, which may include
failure to meet established minimum performance levels. Registered
apprenticeship programs only may be removed for the reasons set forth
in Sec. 680.470.
(d) The Governor must establish an appeals procedure for providers
of training services to appeal a denial of eligibility under this
subpart that meets the requirements of Sec. 683.630(b) of this
chapter, which explains the appeals process for denial or termination
of eligibility of a provider of training services.
(e) Where a Local WDB has established higher minimum performance
standards, according to Sec. 680.430(e), the Local WDB may remove a
program of training services from the eligible programs in that local
area for failure to meet those higher performance standards. Training
providers may appeal a denial of eligibility under Sec. 683.630(b) of
this chapter.
Sec. 680.490 What kind of performance and cost information must
eligible training providers other than registered apprenticeship
programs provide for each program of training services?
(a) In accordance with the State procedure under Sec. 680.460(i),
eligible training providers, except registered apprenticeship programs,
must submit, at least every 2 years, appropriate, timely, and accurate
performance and cost information.
(b) Program-specific performance information must include:
(1) The information described in WIOA sec. 122(b)(2)(A) for
individuals participating in the programs of training services who are
receiving assistance under WIOA. This information includes indicators
of performance as described in WIOA secs. 116(b)(2)(I)-(IV) and Sec.
680.460(g)(1) through (4);
(2) Information identifying the recognized postsecondary
credentials received by such participants in Sec. 680.460(g)(5);
(3) Program cost information, including tuition and fees, for WIOA
participants in the program in Sec. 680.460(g)(6); and
(4) Information on the program completion rate for WIOA
participants in Sec. 680.460(g)(7).
(c) Governors may require any additional performance information
(such as the information described at WIOA sec. 122(b)(1)) that the
Governor determines to be appropriate to determine, maintain
eligibility, or better to inform consumers.
(d) Governors must establish a procedure by which a provider can
demonstrate that providing additional information required under this
section would be unduly burdensome or costly. If the Governor
determines that providers have demonstrated such extraordinary costs or
undue burden:
(1) The Governor must provide access to cost-effective methods for
the collection of the information;
(2) The Governor may provide additional resources to assist
providers in the collection of the information from funds for statewide
workforce investment activities reserved under WIOA secs. 128(a) and
133(a)(1); or
(3) The Governor may take other steps to assist eligible training
providers in collecting and supplying required information such as
offering technical assistance.
Sec. 680.500 How is the State list of eligible training providers and
programs disseminated?
(a) In order to assist participants in choosing employment and
training activities, the Governor or State agency must disseminate the
State list of eligible training providers and programs and accompanying
performance and cost information to Local WDBs in the State and to
members of the public online, including through Web sites and
searchable databases, and through whatever other means the State uses
to disseminate information to consumers, including the one-stop
delivery system and its program partners throughout the State.
(b) The State list of eligible training providers and programs and
information must be updated regularly and provider and program
eligibility must be reviewed biennially according to the procedures
established by the Governor in Sec. 680.460(i).
(c) In order to ensure informed consumer choice, the State list of
eligible training providers and programs and accompanying information
must be widely available to the public through electronic means,
including Web sites and searchable databases, as well as through any
other means the State uses to disseminate information to consumers. The
list and accompanying information must be available through the one-
stop delivery system and its partners including the State's secondary
and postsecondary education systems. The list must be accessible to
individuals seeking information on training outcomes, as well as
participants in employment and training activities funded under WIOA,
including those under Sec. 680.210, and other programs. In accordance
with WIOA sec. 188, the State list also must be accessible to
individuals with disabilities.
(d) The State list of eligible training providers and programs must
be accompanied by appropriate information to assist participants in
choosing employment and programs of training services. Such information
must include:
(1) Recognized postsecondary credential(s) offered;
(2) Provider information supplied to meet the Governor's
eligibility procedure as described in Sec. Sec. 680.450 and 680.460;
(3) Performance and cost information as described in Sec. 680.490;
and
(4) Additional information as the Governor determines appropriate.
(e) The State list of eligible training providers and programs and
accompanying information must be made available in a manner that does
not reveal personally identifiable information about an individual
participant. In addition, in developing the information to accompany
the State list described in Sec. 680.490(b), disclosure of personally
identifiable information from an education record must be carried out
in accordance with the Family Educational Rights and Privacy Act,
including the circumstances relating to prior written consent.
Sec. 680.510 In what ways can a Local Workforce Development Board
supplement the information available from the State list of eligible
training providers and programs?
(a) Local WDBs may supplement the criteria and information
requirements established by the Governor in order to support informed
consumer choice and the achievement of local performance indicators.
However, the Local WDB may not do so for registered apprenticeship
programs.
(b) This additional information may include:
(1) Information on programs of training services that are linked to
occupations in demand in the local area;
(2) Performance and cost information, including program-specific
performance and cost information, for the local outlet(s) of multi-site
eligible training providers;
(3) Information that shows how programs are responsive to local
requirements; and
(4) Other appropriate information related to the objectives of
WIOA.
Sec. 680.520 May individuals choose training providers and programs
located outside of the local area or outside of the State?
(a) An individual may choose training providers and programs
outside of the local area provided the training program
[[Page 56395]]
is on the State list, in accordance with local policies and procedures.
(b) An individual may choose eligible training providers and
programs outside of the State consistent with State and local policies
and procedures. State policies and procedures may provide for
reciprocal or other agreements established with another State to permit
eligible training providers in a State to accept ITAs provided by the
other State.
Sec. 680.530 What eligibility requirements apply to providers of on-
the-job-training, customized training, incumbent worker training, and
other training exceptions?
(a) Providers of on-the-job training, customized training,
incumbent worker training, internships, paid or unpaid work experience,
or transitional jobs are not subject to the requirements applicable to
entities listed on the eligible training provider list, and are not
included on the State list of eligible training providers and programs.
(b) For providers of training described in paragraph (a) of this
section, the Governor may establish performance criteria those
providers must meet to receive funds under the adult or dislocated
worker programs pursuant to a contract as provided in Sec. 680.320.
(c) One-stop operators in a local area must collect such
performance information as the Governor may require and determine
whether the providers meet any performance criteria the Governor may
establish under paragraph (b) of this section.
(d) One-stop operators must disseminate information identifying
providers and programs that have met the Governor's performance
criteria, along with the relevant performance information about them,
through the one-stop delivery system.
Subpart E--Priority and Special Populations
Sec. 680.600 What priority must be given to low-income adults and
public assistance recipients and individuals who are basic skills
deficient served with adult funds under title I of the Workforce
Innovation and Opportunity Act?
(a) WIOA sec. 134(c)(3)(E) states that priority for individualized
career services (see Sec. 678.430(b) of this chapter) and training
services funded with title I adult funds must be given to recipients of
public assistance, other low-income individuals, and individuals who
are basic skills deficient (as defined in WIOA sec. 3(5)(B)) in the
local area.
(b) States and local areas must establish criteria by which the
one-stop center will apply the priority under WIOA sec. 134(c)(3)(E).
Such criteria may include the availability of other funds for providing
employment and training-related services in the local area, the needs
of the specific groups within the local area, and other appropriate
factors.
(c) The priority established under paragraph (a) of this section
does not necessarily mean that these services only may be provided to
recipients of public assistance, other low-income individuals, and
individuals who are basic skills deficient. The Local WDB and the
Governor may establish a process that also gives priority to other
individuals eligible to receive such services, provided that it is
consistent with priority of service for veterans (see Sec. 680.650)
and the priority provisions of WIOA sec. 134(c)(3)(E), discussed above
in paragraphs (a) and (b) of this section.
Sec. 680.610 Does the statutory priority for use of adult funds also
apply to dislocated worker funds?
No, the statutory priority only applies to adult funds and only
applies to providing individualized career services, as described in
Sec. 680.150(b), and training services. Funds allocated for dislocated
workers are not subject to this requirement.
Sec. 680.620 How does the Temporary Assistance for Needy Families
program relate to the one-stop delivery system?
The local TANF program is a required partner in the one-stop
delivery system. Part 678 of this chapter describes the roles of such
partners in the one-stop delivery system and it applies to the TANF
program. TANF serves individuals who also may be served by the WIOA
programs and, through appropriate linkages and referrals, these
customers will have access to a broader range of services through the
cooperation of the TANF program in the one-stop delivery system. TANF
participants, who are determined to be WIOA eligible, and who need
occupational skills training may be referred through the one-stop
delivery system to receive WIOA training, when TANF grant and other
grant funds are not available to the individual in accordance with
Sec. 680.230(a). WIOA participants who also are determined TANF
eligible may be referred to the TANF program for assistance.
Sec. 680.630 How does a displaced homemaker qualify for services
under title I of the Workforce Innovation and Opportunity Act?
(a) Individuals who meet the definitions of a ``displaced
homemaker'' (see WIOA sec. 3(16)) qualify for career and training
services with dislocated worker title I funds.
(b) Displaced homemakers also may qualify for career and training
services with adult funds under title I if the requirements of this
part are met (see Sec. Sec. 680.120 and 680.600).
(c) Displaced homemakers also may be served in statewide employment
and training projects conducted with reserve funds for innovative
programs for displaced homemakers, as described in Sec. 682.210(c) of
this chapter.
(d) The definition of displaced homemaker includes the dependent
spouse of a member of the Armed Forces on active duty (as defined in
sec. 101(d)(1) of title 10, United States Code) and whose family income
is significantly reduced because of a deployment, a call or order to
active duty under a provision of law referred to in sec. 101(a)(13)(B)
of title 10, United State Code, a permanent change of station, or the
service-connected death or disability of the member.
Sec. 680.640 May an individual with a disability whose family does
not meet income eligibility criteria under the Workforce Innovation and
Opportunity Act be eligible for priority as a low-income adult?
Yes, even if the family of an individual with a disability does not
meet the income eligibility criteria, the individual with a disability
is to be considered a low-income individual if the individual's own
income:
(a) Meets the income criteria established in WIOA sec.
3(36)(A)(vi); or
(b) Meets the income eligibility criteria for payments under any
Federal, State or local public assistance program (see WIOA sec.
3(36)(A)(i)).
Sec. 680.650 Do veterans receive priority of service under the
Workforce Innovation and Opportunity Act?
Yes, veterans, as defined under WIOA sec. 3(63)(A) and 38 U.S.C.
101, receive priority of service in all Department of Labor-funded
training programs under 38 U.S.C. 4215 and described in 20 CFR part
1010. A veteran still must meet each program's eligibility criteria to
receive services under the respective employment and training program.
For income-based eligibility determinations, amounts paid while on
active duty or paid by the Department of Veterans Affairs (VA) for
vocational rehabilitation, disability payments, or related VA-funded
programs are not to be considered as income, in accordance with 38
U.S.C. 4213 and Sec. 683.230 of this chapter.
[[Page 56396]]
Sec. 680.660 Are separating military service members eligible for
dislocated worker activities under the Workforce Innovation and
Opportunity Act?
If the separating service member is separating from the Armed
Forces with a discharge that is anything other than dishonorable, the
separating service member qualifies for dislocated worker activities
based on the following criteria:
(a) The separating service member has received a notice of
separation, a DD-214 from the Department of Defense, or other
documentation showing a separation or imminent separation from the
Armed Forces to satisfy the termination or layoff part of the
dislocated worker eligibility criteria in WIOA sec. 3(15)(A)(i);
(b) The separating service member qualifies for the dislocated
worker eligibility criteria on eligibility for or exhaustion of
unemployment compensation in WIOA sec. 3(15)(A)(ii)(I) or (II); and,
(c) As a separating service member, the individual meets the
dislocated worker eligibility criteria that the individual is unlikely
to return to a previous industry or occupation in WIOA sec.
3(15)(A)(iii).
Subpart F--Work-Based Training
Sec. 680.700 What are the requirements for on-the-job training?
(a) OJT is defined at WIOA sec. 3(44). OJT is provided under a
contract with an employer or registered apprenticeship program sponsor
in the public, private non-profit, or private sector. Through the OJT
contract, occupational training is provided for the WIOA participant in
exchange for the reimbursement, typically up to 50 percent of the wage
rate of the participant, for the extraordinary costs of providing the
training and supervision related to the training. In limited
circumstances, as provided in WIOA sec. 134(c)(3)(h) and Sec. 680.730,
the reimbursement may be up to 75 percent of the wage rate of the
participant.
(b) OJT contracts under WIOA title I, must not be entered into with
an employer who has received payments under previous contracts under
WIOA or WIA if the employer has exhibited a pattern of failing to
provide OJT participants with continued long-term employment as regular
employees with wages and employment benefits (including health
benefits) and working conditions at the same level and to the same
extent as other employees working a similar length of time and doing
the same type of work.
(c) An OJT contract must be limited to the period of time required
for a participant to become proficient in the occupation for which the
training is being provided. In determining the appropriate length of
the contract, consideration should be given to the skill requirements
of the occupation, the academic and occupational skill level of the
participant, prior work experience, and the participant's IEP.
Sec. 680.710 What are the requirements for on-the-job training
contracts for employed workers?
OJT contracts may be written for eligible employed workers when:
(a) The employee is not earning a self-sufficient wage or wages
comparable to or higher than wages from previous employment, as
determined by Local WDB policy;
(b) The requirements in Sec. 680.700 are met; and
(c) The OJT relates to the introduction of new technologies,
introduction to new production or service procedures, upgrading to new
jobs that require additional skills, workplace literacy, or other
appropriate purposes identified by the Local WDB.
Sec. 680.720 What conditions govern on-the-job training payments to
employers?
(a) OJT payments to employers are deemed to be compensation for the
extraordinary costs associated with training participants and
potentially lower productivity of the participants while in the OJT.
(b) Employers may be reimbursed up to 50 percent of the wage rate
of an OJT participant, and up to 75 percent using the criteria in Sec.
680.730, for the extraordinary costs of providing the training and
additional supervision related to the OJT.
(c) Employers are not required to document such extraordinary
costs.
Sec. 680.730 Under what conditions may a Governor or Local Workforce
Development Board raise the on-the-job training reimbursement rate up
to 75 percent of the wage rate?
(a) The Governor may increase the reimbursement rate for OJT
contracts funded through the statewide employment and training
activities described in Sec. 682.210 of this chapter up to 75 percent,
and the Local WDB also may increase the reimbursement rate for OJT
contracts described in Sec. 680.320(a)(1) up to 75 percent, when
taking into account the following factors:
(1) The characteristics of the participants taking into
consideration whether they are ``individuals with barriers to
employment,'' as defined in WIOA sec. 3(24);
(2) The size of the employer, with an emphasis on small businesses;
(3) The quality of employer-provided training and advancement
opportunities, for example if the OJT contract is for an in-demand
occupation and will lead to an industry-recognized credential; and
(4) Other factors the Governor or Local WDB may determine to be
appropriate, which may include the number of employees participating,
wage and benefit levels of the employees (both at present and after
completion), and relation of the training to the competitiveness of the
participant.
(b) Governors or Local WDBs must document the factors used when
deciding to increase the wage reimbursement levels above 50 percent up
to 75 percent.
Sec. 680.740 How can on-the-job training funds be used to support
placing participants into a registered apprenticeship program?
(a) OJT contracts may be entered into with registered
apprenticeship program sponsors or participating employers in
registered apprenticeship programs for the OJT portion of the
registered apprenticeship program consistent with Sec. 680.700.
Depending on the length of the registered apprenticeship and State and
local OJT policies, these funds may cover some or all of the registered
apprenticeship training.
(b) If the apprentice is unemployed at the time of participation,
the OJT must be conducted as described in Sec. 680.700. If the
apprentice is employed at the time of participation, the OJT must be
conducted as described in Sec. 680.710.
Sec. 680.750 Can Individual Training Account and on-the-job training
funds be combined to support placing participants into a registered
apprenticeship program?
There is no Federal prohibition on using both ITA and OJT funds
when placing participants into a registered apprenticeship program. See
Sec. 680.330 on using ITAs to support participants in registered
apprenticeship.
Sec. 680.760 What is customized training?
Customized training is training:
(a) That is designed to meet the special requirements of an
employer (including a group of employers);
(b) That is conducted with a commitment by the employer to employ
an individual upon successful completion of the training; and
(c) For which the employer pays for a significant cost of the
training, as determined by the Local WDB in
[[Page 56397]]
accordance with the factors identified in WIOA sec. 3(14).
Sec. 680.770 What are the requirements for customized training for
employed workers?
Customized training of an eligible employed individual may be
provided for an employer or a group of employers when:
(a) The employee is not earning a self-sufficient wage or wages
comparable to or higher than wages from previous employment, as
determined by Local WDB policy;
(b) The requirements in Sec. 680.760 are met; and
(c) The customized training relates to the purposes described in
Sec. 680.710(c) or other appropriate purposes identified by the Local
WDB.
Sec. 680.780 Who is an ``incumbent worker'' for purposes of statewide
and local employment and training activities?
States and local areas must establish policies and definitions to
determine which workers, or groups of workers, are eligible for
incumbent worker services. To qualify as an incumbent worker, the
incumbent worker needs to be employed, meet the Fair Labor Standards
Act requirements for an employer-employee relationship, and have an
established employment history with the employer for 6 months or more,
with the following exception: In the event that the incumbent worker
training is being provided to a cohort of employees, not every employee
in the cohort must have an established employment history with the
employer for 6 months or more as long as a majority of those employees
being trained do meet the employment history requirement. An incumbent
worker does not have to meet the eligibility requirements for career
and training services for adults and dislocated workers under WIOA,
unless they also are enrolled as a participant in the WIOA adult or
dislocated worker program.
Sec. 680.790 What is incumbent worker training?
Incumbent worker training must satisfy the requirements in WIOA
sec. 134(d)(4) and increase the competitiveness of the employee or
employer. For purposes of WIOA sec. 134(d)(4)(B), incumbent worker
training is training:
(a) Designed to meet the special requirements of an employer
(including a group of employers) to retain a skilled workforce or avert
the need to lay off employees by assisting the workers in obtaining the
skills necessary to retain employment.
(b) Conducted with a commitment by the employer to retain or avert
the layoffs of the incumbent worker(s) trained.
Sec. 680.800 What funds may be used for incumbent worker training?
(a) The local area may reserve up to 20 percent of their combined
total of adult and dislocated worker allocations for incumbent worker
training as described in Sec. 680.790;
(b) The State may use their statewide activities funds (per WIOA
sec. 134(a)(3)(A)(i)) and Rapid Response funds for statewide incumbent
worker training activities (see Sec. Sec. 682.210(b) and 682.320(b)(4)
of this chapter).
Sec. 680.810 What criteria must be taken into account for an employer
to be eligible to receive local incumbent worker training funds?
The Local WDB must consider under WIOA sec. 134(d)(4)(A)(ii):
(a) The characteristics of the individuals in the program;
(b) The relationship of the training to the competitiveness of an
individual and the employer; and
(c) Other factors the Local WDB determines appropriate, including
number of employees trained, wages and benefits including post training
increases, and the existence of other training opportunities provided
by the employer.
Sec. 680.820 Are there cost sharing requirements for local area
incumbent worker training?
Yes. Under WIOA secs. 134(d)(4)(C) and 134(d)(4)(D)(i)-(iii),
employers participating in incumbent worker training are required to
pay the non-Federal share of the cost of providing training to their
incumbent workers. The amount of the non-Federal share depends upon the
limits established under WIOA secs. 134(d)(4)(ii)(C) and (D).
Sec. 680.830 May funds provided to employers for work-based training
be used to assist, promote, or deter union organizing?
No. Funds provided to employers for work-based training, as
described in this subpart, must not be used to directly or indirectly
assist, promote, or deter union organizing.
Sec. 680.840 May funds provided to employers for work-based training
and other work experiences be used to fill job openings as a result of
a labor dispute?
No. Funds provided to employers for work-based training, as
described in this subpart and in subpart A of this part, may not be
used to directly or indirectly aid in the filling of a job opening
which is vacant because the former occupant is on strike, or is being
locked out in the course of a labor dispute, or the filling of which is
otherwise an issue in a labor dispute involving a work stoppage.
Subpart G--Supportive Services
Sec. 680.900 What are supportive services for adults and dislocated
workers?
Supportive services for adults and dislocated workers are defined
at WIOA sec. 3(59) and secs. 134(d)(2) and (3). Local WDBs, in
consultation with the one-stop partners and other community service
providers, must develop a policy on supportive services that ensures
resource and service coordination in the local area. The policy should
address procedures for referral to such services, including how such
services will be funded when they are not otherwise available from
other sources. The provision of accurate information about the
availability of supportive services in the local area, as well as
referral to such activities, is one of the career services that must be
available to adults and dislocated workers through the one-stop
delivery system. (WIOA sec. 134(c)(2)(A)(ix) and Sec. 678.430 of this
chapter). Local WDBs must ensure that needs-related payments are made
in a manner consistent with Sec. Sec. 680.930, 680.940, 680.950,
680.960, and 680.970. Supportive services are services that are
necessary to enable an individual to participate in activities
authorized under WIOA sec. 134(c)(2) and (3). These services may
include, but are not limited to, the following:
(a) Linkages to community services;
(b) Assistance with transportation;
(c) Assistance with child care and dependent care;
(d) Assistance with housing;
(e) Needs-related payments, as described at Sec. Sec. 680.930,
680.940, 680.950, 680.960, and 680.970;
(f) Assistance with educational testing;
(g) Reasonable accommodations for individuals with disabilities;
(h) Legal aid services;
(i) Referrals to health care;
(j) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eyeglasses and protective
eye gear;
(k) Assistance with books, fees, school supplies, and other
necessary items for students enrolled in postsecondary education
classes; and
(l) Payments and fees for employment and training-related
applications, tests, and certifications.
[[Page 56398]]
Sec. 680.910 When may supportive services be provided to
participants?
(a) Supportive services may only be provided to individuals who
are:
(1) Participating in career or training services as defined in WIOA
secs. 134(c)(2) and (3); and
(2) Unable to obtain supportive services through other programs
providing such services.
(b) Supportive services only may be provided when they are
necessary to enable individuals to participate in career service or
training activities.
Sec. 680.920 Are there limits on the amount or duration of funds for
supportive services?
(a) Local WDBs may establish limits on the provision of supportive
services or provide the one-stop center with the authority to establish
such limits, including a maximum amount of funding and maximum length
of time for supportive services to be available to participants.
(b) Procedures also may be established to allow one-stop centers to
grant exceptions to the limits established under paragraph (a) of this
section.
Sec. 680.930 What are needs-related payments?
Needs-related payments provide financial assistance to participants
for the purpose of enabling them to participate in training and are a
supportive service authorized by WIOA sec. 134(d)(3). Unlike other
supportive services, in order to qualify for needs-related payments a
participant must be enrolled in training.
Sec. 680.940 What are the eligibility requirements for adults to
receive needs-related payments?
Adults must:
(a) Be unemployed;
(b) Not qualify for, or have ceased qualifying for, unemployment
compensation; and
(c) Be enrolled in a program of training services under WIOA sec.
134(c)(3).
Sec. 680.950 What are the eligibility requirements for dislocated
workers to receive needs-related payments?
To receive needs-related payments, a dislocated worker must:
(a) Be unemployed, and:
(1) Have ceased to qualify for unemployment compensation or trade
readjustment allowance under TAA; and
(2) Be enrolled in a program of training services under WIOA sec.
134(c)(3) by the end of the 13th week after the most recent layoff that
resulted in a determination of the worker's eligibility as a dislocated
worker, or, if later, by the end of the 8th week after the worker is
informed that a short-term layoff will exceed 6 months; or
(b) Be unemployed and did not qualify for unemployment compensation
or trade readjustment assistance under TAA and be enrolled in a program
of training services under WIOA sec. 134(c)(3).
Sec. 680.960 May needs-related payments be paid while a participant
is waiting to start training classes?
Yes, payments may be provided if the participant has been accepted
in a training program that will begin within 30 calendar days. The
Governor may authorize local areas to extend the 30-day period to
address appropriate circumstances.
Sec. 680.970 How is the level of needs-related payments determined?
(a) The payment level for adults must be established by the Local
WDB. For statewide projects, the payment level for adults must be
established by the State WDB.
(b) For dislocated workers, payments must not exceed the greater of
either of the following levels:
(1) The applicable weekly level of the unemployment compensation
benefit, for participants who were eligible for unemployment
compensation as a result of the qualifying dislocation; or
(2) The poverty level for an equivalent period, for participants
who did not qualify for unemployment compensation as a result of the
qualifying layoff. The weekly payment level must be adjusted to reflect
changes in total family income, as determined by Local WDB policies.
0
14. Add part 681 to read as follows:
PART 681--YOUTH ACTIVITIES UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Subpart A--Standing Youth Committees
Sec.
681.100 What is a standing youth committee?
681.110 Who is included on a standing youth committee?
681.120 What does a standing youth committee do?
Subpart B--Eligibility for Youth Services
Sec.
681.200 Who is eligible for youth services?
681.210 Who is an ``out-of-school youth''?
681.220 Who is an ``in-school youth''?
681.230 What does ``school'' refer to in the ``not attending or
attending any school'' in the out-of-school and in-school
eligibility criteria?
681.240 When do local youth programs verify dropout status?
681.250 Who does the low-income eligibility requirement apply to?
681.260 How does the Department define ``high poverty area'' for the
purposes of the special regulation for low-income youth in the
Workforce Innovation and Opportunity Act?
681.270 May a local program use eligibility for free or reduced
price lunches under the National School Lunch Program as a
substitute for the income eligibility criteria under title I of the
Workforce Innovation and Opportunity Act?
681.280 Is a youth with a disability eligible for youth services
under the Workforce Innovation and Opportunity Act if his or her
family income exceeds the income eligibility criteria?
681.290 How does the Department define the ``basic skills
deficient'' criterion this part?
681.300 How does the Department define the ``requires additional
assistance to enter or complete an educational program, or to secure
and hold employment'' criterion in this part for OSY?
681.310 How does the Department define the ``requires additional
assistance to complete an educational program, or to secure and hold
employment'' criterion in this part for ISY?
681.320 Must youth participants enroll to participate in the youth
program?
Subpart C--Youth Program Design, Elements, and Parameters
Sec.
681.400 What is the process used to select eligible youth providers?
681.410 Does the requirement that a State and local area expend at
least 75 percent of youth funds to provide services to out-of-school
youth apply to all youth funds?
681.420 How must Local Workforce Development Boards design Workforce
Innovation and Opportunity Act youth programs?
681.430 May youth participate in both the Workforce Innovation and
Opportunity Act (WIOA) youth and adult programs concurrently, and
how do local program operators track concurrent enrollment in the
WIOA youth and adult programs?
681.440 How does a local youth program determine if an 18 to 24 year
old is enrolled in the Workforce Innovation and Opportunity Act
(WIOA) youth program or the WIOA adult program?
681.450 For how long must a local Workforce Innovation and
Opportunity Act youth program serve a participant?
681.460 What services must local programs offer to youth
participants?
681.470 Does the Department require local programs to use Workforce
Innovation and Opportunity Act funds for each of the 14 program
elements?
681.480 What is a pre-apprenticeship program?
681.490 What is adult mentoring?
681.500 What is financial literacy education?
681.510 What is comprehensive guidance and counseling?
681.520 What are leadership development opportunities?
[[Page 56399]]
681.530 What are positive social and civic behaviors?
681.540 What is occupational skills training?
681.550 Are Individual Training Accounts permitted for youth
participants?
681.560 What is entrepreneurial skills training and how is it
taught?
681.570 What are supportive services for youth?
681.580 What are follow-up services for youth?
681.590 What is the work experience priority and how will local
youth programs track the work experience priority?
681.600 What are work experiences?
681.610 Does the Workforce Innovation and Opportunity Act require
Local Workforce Development Boards to offer summer employment
opportunities in the local youth program?
681.620 How are summer employment opportunities administered?
681.630 What does education offered concurrently with and in the
same context as workforce preparation activities and training for a
specific occupation or occupational cluster mean?
681.640 Are incentive payments to youth participants permitted?
681.650 How can parents, youth, and other members of the community
get involved in the design and implementation of local youth
programs?
Subpart D--One-Stop Services to Youth
Sec.
681.700 What is the connection between the youth program and the
one-stop delivery system?
681.710 Do Local Workforce Development Boards have the flexibility
to offer services to area youth who are not eligible under the youth
program through the one-stop centers?
Authority: Secs. 107, 121, 123, 129, 189, 503, Pub. L. 113-128,
128 Stat. 1425 (Jul. 22, 2014).
Subpart A--Standing Youth Committees
Sec. 681.100 What is a standing youth committee?
The Workforce Innovation and Opportunity Act (WIOA) eliminates the
requirement for Local Workforce Development Boards (WDBs) to establish
a youth council. However, the Department encourages Local WDBs to
establish a standing committee to provide information and to assist
with planning, operational, oversight, and other issues relating to the
provision of services to youth. If the Local WDB does not designate a
standing youth committee, it retains responsibility for all aspects of
youth formula programs.
Sec. 681.110 Who is included on a standing youth committee?
(a) If a Local WDB decides to form a standing youth committee, the
committee must include a member of the Local WDB, who chairs the
committee, members of community-based organizations with a demonstrated
record of success in serving eligible youth, and other individuals with
appropriate expertise and experience who are not members of the Local
WDB.
(b) The committee must reflect the needs of the local area. The
committee members appointed for their experience and expertise may
bring their expertise to help the committee address the employment,
training, education, human and supportive service needs of eligible
youth including out-of-school youth (OSY). Members may represent
agencies such as secondary and postsecondary education, training,
health, disability, mental health, housing, public assistance, and
justice, or be representatives of philanthropic or economic and
community development organizations, and employers. The committee may
also include parents, participants, and youth.
(c) A Local WDB may designate an existing entity such as an
effective youth council as the standing youth committee if it fulfills
the requirements above in paragraph (a) of this section.
Sec. 681.120 What does a standing youth committee do?
Under the direction of the Local WDB, a standing youth committee
may:
(a) Recommend policy direction to the Local WDB for the design,
development, and implementation of programs that benefit all youth;
(b) Recommend the design of a comprehensive community workforce
development system to ensure a full range of services and opportunities
for all youth, including disconnected youth;
(c) Recommend ways to leverage resources and coordinate services
among schools, public programs, and community-based organizations
serving youth;
(d) Recommend ways to coordinate youth services and recommend
eligible youth service providers;
(e) Provide on-going leadership and support for continuous quality
improvement for local youth programs;
(f) Assist with planning, operational, and other issues relating to
the provision of services to youth; and
(g) If so delegated by the Local WDB after consultation with the
chief elected official (CEO), oversee eligible youth providers, as well
as other youth program oversight responsibilities.
Subpart B--Eligibility for Youth Services
Sec. 681.200 Who is eligible for youth services?
Both in-school youth (ISY) and OSY are eligible for youth services.
Sec. 681.210 Who is an ``out-of-school youth''?
An OSY is an individual who is:
(a) Not attending any school (as defined under State law);
(b) Not younger than age 16 or older than age 24 at time of
enrollment. Because age eligibility is based on age at enrollment,
participants may continue to receive services beyond the age of 24 once
they are enrolled in the program; and
(c) One or more of the following:
(1) A school dropout;
(2) A youth who is within the age of compulsory school attendance,
but has not attended school for at least the most recent complete
school year calendar quarter. School year calendar quarter is based on
how a local school district defines its school year quarters. In cases
where schools do not use quarters, local programs must use calendar
year quarters;
(3) A recipient of a secondary school diploma or its recognized
equivalent who is a low-income individual and is either basic skills
deficient or an English language learner;
(4) An offender;
(5) A homeless individual aged 16 to 24 who meets the criteria
defined in sec. 41403(6) of the Violence Against Women Act of 1994 (42
U.S.C. 14043e-2(6)), a homeless child or youth aged 16 to 24 who meets
the criteria defined in sec. 725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)) or a runaway;
(6) An individual in foster care or who has aged out of the foster
care system or who has attained 16 years of age and left foster care
for kinship guardianship or adoption, a child eligible for assistance
under sec. 477 of the Social Security Act (42 U.S.C. 677), or in an
out-of-home placement;
(7) An individual who is pregnant or parenting;
(8) An individual with a disability; or
(9) A low-income individual who requires additional assistance to
enter or complete an educational program or to secure or hold
employment.
Sec. 681.220 Who is an ``in-school youth''?
An ISY is an individual who is:
(a) Attending school (as defined by State law), including secondary
and postsecondary school;
(b) Not younger than age 14 or (unless an individual with a
disability who is
[[Page 56400]]
attending school under State law) older than age 21 at time of
enrollment. Because age eligibility is based on age at enrollment,
participants may continue to receive services beyond the age of 21 once
they are enrolled in the program;
(c) A low-income individual; and
(d) One or more of the following:
(1) Basic skills deficient;
(2) An English language learner;
(3) An offender;
(4) A homeless individual aged 14 to 21 who meets the criteria
defined in sec. 41403(6) of the Violence Against Women Act of 1994 (42
U.S.C. 14043e-2(6)), a homeless child or youth aged 14 to 21 who meets
the criteria defined in sec. 725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)), or a runaway;
(5) An individual in foster care or who has aged out of the foster
care system or who has attained 16 years of age and left foster care
for kinship guardianship or adoption, a child eligible for assistance
under sec. 477 of the Social Security Act (42 U.S.C. 677), or in an
out-of-home placement;
(6) An individual who is pregnant or parenting;
(7) An individual with a disability; or
(8) An individual who requires additional assistance to complete an
educational program or to secure or hold employment.
Sec. 681.230 What does ``school'' refer to in the ``not attending or
attending any school'' in the out-of-school and in-school eligibility
criteria?
In general, the applicable State law for secondary and
postsecondary institutions defines ``school.'' However, for purposes of
WIOA, the Department does not consider providers of adult education
under title II of WIOA, YouthBuild programs, the Job Corps program,
high school equivalency programs, or dropout re-engagement programs to
be schools. Therefore, in all cases except the one provided below, WIOA
youth programs may consider a youth to be an OSY for purposes of WIOA
youth program eligibility if he or she attend adult education provided
under title II of WIOA, YouthBuild, Job Corps, high school equivalency
programs, or dropout re-engagement programs regardless of the funding
source of those programs. Youth attending high school equivalency
programs funded by the public K-12 school system who are classified by
the school system as still enrolled in school are an exception; they
are considered ISY.
Sec. 681.240 When do local youth programs verify dropout status?
Local WIOA youth programs must verify a youth's dropout status at
the time of WIOA youth program enrollment. An individual who is out of
school at the time of enrollment, and subsequently placed in any
school, is an OSY for the purposes of the 75 percent expenditure
requirement for OSY throughout his/her participation in the program.
Sec. 681.250 Who does the low-income eligibility requirement apply
to?
(a) For OSY, only those youth who are the recipient of a secondary
school diploma or its recognized equivalent and are either basic skills
deficient or an English language learner, and youth who require
additional assistance to enter or complete an educational program or to
secure or hold employment, must be low-income. All other OSY meeting
OSY eligibility under Sec. 681.210(c)(1), (2), (4), (5), (6), (7), and
(8) are not required to be low-income.
(b) All ISY must be low-income to meet the ISY eligibility
criteria, except those that fall under the low-income exception.
(c) WIOA allows a low-income exception where five percent of WIOA
youth may be participants who ordinarily would be required to be low-
income for eligibility purposes and meet all other eligibility criteria
for WIOA youth except the low-income criteria. A program must calculate
the five percent based on the percent of newly enrolled youth in the
local area's WIOA youth program in a given program year who would
ordinarily be required to meet the low-income criteria.
(d) In addition to the criteria in the definition of ``low-income
individual'' in WIOA sec. 3(36), a youth is low-income if he or she
receives or is eligible to receive a free or reduced price lunch under
the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 et
seq. or if he or she lives in a high poverty area.
Sec. 681.260 How does the Department define ``high poverty area'' for
the purposes of the special regulation for low-income youth in the
Workforce Innovation and Opportunity Act?
A youth who lives in a high poverty area is automatically
considered to be a low-income individual. A high poverty area is a
Census tract, a set of contiguous Census tracts, an American Indian
Reservation, Oklahoma Tribal Statistical Area (as defined by the U.S.
Census Bureau), Alaska Native Village Statistical Area or Alaska Native
Regional Corporation Area, Native Hawaiian Homeland Area, or other
tribal land as defined by the Secretary in guidance or county that has
a poverty rate of at least 25 percent as set every 5 years using
American Community Survey 5-Year data.
Sec. 681.270 May a local program use eligibility for free or reduced
price lunches under the National School Lunch Program as a substitute
for the income eligibility criteria under title I of the Workforce
Innovation and Opportunity Act?
Yes, WIOA sec. 3(36) defines a low-income individual to include an
individual who receives (or is eligible to receive) a free or reduced
price lunch under the Richard B. Russell National School Lunch Act.
Sec. 681.280 Is a youth with a disability eligible for youth services
under the Workforce Innovation and Opportunity Act if his or her family
income exceeds the income eligibility criteria?
Yes, for an individual with a disability, income level for
eligibility purposes is based on the individual's own income rather
than his or her family's income. WIOA sec. 3(36)(A)(vi) states that an
individual with a disability whose own income meets the low-income
definition in clause (ii) (income that does not exceed the higher of
the poverty line or 70 percent of the lower living standard income
level), but who is a member of a family whose income exceeds this
income requirement is eligible for youth services. Furthermore, only
ISY with a disability must be low income. OSY with a disability are not
required to be low-income.
Sec. 681.290 How does the Department define the ``basic skills
deficient'' criterion in this part?
(a) As used in Sec. 681.210(c)(3), a youth is ``basic skills
deficient'' if he or she:
(1) Have English reading, writing, or computing skills at or below
the 8th grade level on a generally accepted standardized test; or
(2) Are unable to compute or solve problems, or read, write, or
speak English at a level necessary to function on the job, in the
individual's family, or in society.
(b) The State or Local WDB must establish its policy on paragraph
(a)(2) of this section in its respective State or local plan.
(c) In assessing basic skills, local programs must use assessment
instruments that are valid and appropriate for the target population,
and must provide reasonable accommodation in the assessment process, if
necessary, for individuals with disabilities.
[[Page 56401]]
Sec. 681.300 How does the Department define the ``requires additional
assistance to enter or complete an educational program, or to secure
and hold employment'' criterion in this part for OSY?
Either the State or the local level may establish definitions and
eligibility documentation requirements for the ``requires additional
assistance to enter or complete an educational program, or to secure
and hold employment'' criterion of Sec. 681.210(c)(9). In cases where
the State WDB establishes State policy on this criterion, the State WDB
must include the definition in the State Plan. In cases where the State
WDB does not establish a policy, the Local WDB must establish a policy
in its local plan if using this criterion.
Sec. 681.310 How does the Department define the ``requires additional
assistance to complete an educational program, or to secure and hold
employment'' criterion in this part for ISY?
(a) Either the State or the local level may establish definitions
and eligibility documentation requirements for the ``requires
additional assistance to complete an educational program, or to secure
and hold employment'' criterion of Sec. 681.220(d)(8). In cases where
the State WDB establishes State policy on this criterion, the State WDB
must include the definition in the State Plan. In cases where the State
WDB does not establish a policy, the Local WDB must establish a policy
in its local plan if using this criterion.
(b) In each local area, not more than five percent of the ISY newly
enrolled in a given program year may be eligible based on the
``requires additional assistance to complete an educational program or
to secure or hold employment'' criterion.
Sec. 681.320 Must youth participants enroll to participate in the
youth program?
(a) Yes, to participate in youth programs, participants must enroll
in the WIOA youth program.
(b) In order to be a participant in the WIOA youth program, all of
the following must occur:
(1) An eligibility determination;
(2) The provision of an objective assessment;
(3) Development of an individual service strategy; and
(4) Participation in any of the 14 WIOA youth program elements.
Subpart C--Youth Program Design, Elements, and Parameters
Sec. 681.400 What is the process used to select eligible youth
service providers?
(a) The grant recipient/fiscal agent has the option to provide
directly some or all of the youth workforce investment activities.
(b) However, as provided in WIOA sec. 123, if a Local WDB chooses
to award grants or contracts to youth service providers to carry out
some or all of the youth workforce investment activities, the Local WDB
must award such grants or contracts on a competitive basis, subject to
the exception explained in paragraph (b)(4) of this section:
(1) The Local WDB must identify youth service providers based on
criteria established in the State Plan (including such quality criteria
established by the Governor for a training program that leads to a
recognized postsecondary credential) and take into consideration the
ability of the provider to meet performance accountability measures
based on the primary indicators of performance for youth programs.
(2) The Local WDB must procure the youth service providers in
accordance with the Uniform Guidance at 2 CFR parts 200 and 2900, in
addition to applicable State and local procurement laws.
(3) If the Local WDB establishes a standing youth committee under
Sec. 681.100 it may assign the committee the function of selecting of
grants or contracts.
(4) Where the Local WDB determines there are an insufficient number
of eligible youth providers in the local area, such as a rural area,
the Local WDB may award grants or contracts on a sole source basis.
Sec. 681.410 Does the requirement that a State and local area expend
at least 75 percent of youth funds to provide services to out-of-school
youth apply to all youth funds?
Yes. The 75 percent requirement applies to both statewide youth
activities funds and local youth funds with 2 exceptions.
(a) Only statewide funds spent on direct services to youth are
subject to the OSY expenditure requirement. Funds spent on statewide
youth activities that do not provide direct services to youth, such as
most of the required statewide youth activities listed in WIOA sec.
129(b)(1), are not subject to the OSY expenditure requirement. For
example, administrative costs, monitoring, and technical assistance are
not subject to OSY expenditure requirement; while funds spent on direct
services to youth such as statewide demonstration projects, are subject
to the OSY expenditure requirement.
(b) For a State that receives a small State minimum allotment under
WIOA sec. 127(b)(1)(C)(iv)(II) for youth or WIOA sec.
132(b)(1)(B)(iv)(II) for adults, the State may submit a request to the
Secretary to decrease the percentage to not less than 50 percent for a
local area in the State, and the Secretary may approve such a request
for that program year, if the State meets the following requirements:
(1) After an analysis of the ISY and OSY populations in the local
area, the State determines that the local area will be unable to use at
least 75 percent of the local area WIOA youth funds to serve OSY due to
a low number of OSY; and
(2) The State submits to the Secretary, for the local area, a
request including a proposed percentage decreased to not less than 50
percent to provide workforce investment activities for OSY.
(c) In the exercise of discretion afforded by WIOA sec. 129(a)(4),
the Secretary has determined that requests to decrease the percentage
of funds used to provide youth workforce investment activities for OSY
will not be granted to States that received 90 percent of the allotment
percentage for the past year. Therefore, when the Secretary receives
such a request from a State, the request will be denied.
(d) For local area funds, the administrative costs of carrying out
local workforce investment activities described in WIOA sec. 128(b)(4)
are not subject to the OSY expenditure requirement. All other local
area youth funds beyond the administrative costs are subject to the OSY
expenditure requirement.
Sec. 681.420 How must Local Workforce Development Boards design
Workforce Innovation and Opportunity Act youth programs?
(a) The design framework services of local youth programs must:
(1) Provide for an objective assessment of each youth participant
that meets the requirements of WIOA sec. 129(c)(1)(A), and includes a
review of the academic and occupational skill levels, as well as the
service needs and strengths, of each youth for the purpose of
identifying appropriate services and career pathways for participants
and informing the individual service strategy;
(2) Develop, and update as needed, an individual service strategy
based on the needs of each youth participant that is directly linked to
one or more indicators of performance described in WIOA sec.
116(b)(2)(A)(ii), that identifies career pathways that include
education and employment goals, that considers career planning and the
results of the objective assessment and that prescribes
[[Page 56402]]
achievement objectives and services for the participant; and
(3) Provide case management of youth participants, including
follow-up services.
(b) The local plan must describe the design framework for youth
programs in the local area, and how the 14 program elements required in
Sec. 681.460 are to be made available within that framework.
(c) Local WDBs must ensure appropriate links to entities that will
foster the participation of eligible local area youth. Such links may
include connections to:
(1) Local area justice and law enforcement officials;
(2) Local public housing authorities;
(3) Local education agencies;
(4) Local human service agencies;
(5) WIOA title II adult education providers;
(6) Local disability-serving agencies and providers and health and
mental health providers;
(7) Job Corps representatives; and
(8) Representatives of other area youth initiatives, such as
YouthBuild, and including those that serve homeless youth and other
public and private youth initiatives.
(d) Local WDBs must ensure that WIOA youth service providers meet
the referral requirements in WIOA sec. 129(c)(3)(A) for all youth
participants, including:
(1) Providing these participants with information about the full
array of applicable or appropriate services available through the Local
WDBs or other eligible providers, or one-stop partners; and
(2) Referring these participants to appropriate training and
educational programs that have the capacity to serve them either on a
sequential or concurrent basis.
(e) If a youth applies for enrollment in a program of workforce
investment activities and either does not meet the enrollment
requirements for that program or cannot be served by that program, the
eligible training provider of that program must ensure that the youth
is referred for further assessment, if necessary, or referred to
appropriate programs to meet the skills and training needs of the
youth.
(f) In order to meet the basic skills and training needs of
applicants who do not meet the eligibility requirements of a particular
program or who cannot be served by the program, each youth provider
must ensure that these youth are referred:
(1) For further assessment, as necessary; and
(2) To appropriate programs, in accordance with paragraph (d)(2) of
this section.
(g) Local WDBs must ensure that parents, youth participants, and
other members of the community with experience relating to youth
programs are involved in both the design and implementation of its
youth programs.
(h) The objective assessment required under paragraph (a)(1) of
this section or the individual service strategy required under
paragraph (a)(2) of this section is not required if the program
provider determines that it is appropriate to use a recent objective
assessment or individual service strategy that was developed under
another education or training program.
(i) The Local WDBs may implement a WIOA Pay-for-Performance
contract strategy for program elements described at Sec. 681.460, for
which the Local WDB may reserve and use not more than 10 percent of the
total funds allocated to the local area under WIOA sec. 128(b). For
additional regulations on WIOA Pay-for-Performance contract strategies,
see Sec. 683.500 of this chapter.
Sec. 681.430 May youth participate in both the Workforce Innovation
and Opportunity Act (WIOA) youth and adult programs concurrently, and
how do local program operators track concurrent enrollment in the WIOA
youth and adult programs?
(a) Yes, individuals who meet the respective program eligibility
requirements may participate in adult and youth programs concurrently.
Such individuals must be eligible under the youth or adult eligibility
criteria applicable to the services received. Local program operators
may determine, for these individuals, the appropriate level and balance
of services under the youth and adult programs.
(b) Local program operators must identify and track the funding
streams which pay the costs of services provided to individuals who are
participating in youth and adult programs concurrently, and ensure no
duplication of services.
(c) Individuals who meet the respective program eligibility
requirements for WIOA youth title I and title II may participate in
title I youth and title II concurrently.
Sec. 681.440 How does a local youth program determine if an 18 to 24
year old is enrolled in the Workforce Innovation and Opportunity Act
(WIOA) youth program or the WIOA adult program?
A local program must determine the appropriate program for the
participant based on the service needs of the participant and if the
participant is career-ready based on an assessment of their
occupational skills, prior work experience, employability, and the
participant's needs.
Sec. 681.450 For how long must a local Workforce Innovation and
Opportunity Act youth program serve a participant?
Local youth programs must provide service to a participant for the
amount of time necessary to ensure successful preparation to enter
postsecondary education and/or unsubsidized employment. While there is
no minimum or maximum time a youth can participate in the WIOA youth
program, programs must link participation to the individual service
strategy and not the timing of youth service provider contracts or
program years.
Sec. 681.460 What services must local programs offer to youth
participants?
(a) Local programs must make each of the following 14 services
available to youth participants:
(1) Tutoring, study skills training, instruction and evidence-based
dropout prevention and recovery strategies that lead to completion of
the requirements for a secondary school diploma or its recognized
equivalent (including a recognized certificate of attendance or similar
document for individuals with disabilities) or for a recognized
postsecondary credential;
(2) Alternative secondary school services, or dropout recovery
services, as appropriate;
(3) Paid and unpaid work experiences that have academic and
occupational education as a component of the work experience, which may
include the following types of work experiences:
(i) Summer employment opportunities and other employment
opportunities available throughout the school year;
(ii) Pre-apprenticeship programs;
(iii) Internships and job shadowing; and
(iv) On-the-job training opportunities;
(4) Occupational skill training, which includes priority
consideration for training programs that lead to recognized
postsecondary credentials that align with in-demand industry sectors or
occupations in the local area involved, if the Local WDB determines
that the programs meet the quality criteria described in WIOA sec. 123;
(5) Education offered concurrently with and in the same context as
workforce preparation activities and training for a specific occupation
or occupational cluster;
(6) Leadership development opportunities, including community
service and peer-centered activities encouraging responsibility and
other positive social and civic behaviors;
(7) Supportive services, including the services listed in Sec.
681.570;
[[Page 56403]]
(8) Adult mentoring for a duration of at least 12 months, that may
occur both during and after program participation;
(9) Follow-up services for not less than 12 months after the
completion of participation, as provided in Sec. 681.580;
(10) Comprehensive guidance and counseling, which may include drug
and alcohol abuse counseling, as well as referrals to counseling, as
appropriate to the needs of the individual youth;
(11) Financial literacy education;
(12) Entrepreneurial skills training;
(13) Services that provide labor market and employment information
about in-demand industry sectors or occupations available in the local
area, such as career awareness, career counseling, and career
exploration services; and
(14) Activities that help youth prepare for and transition to
postsecondary education and training.
(b) Local programs have the discretion to determine what specific
program services a youth participant receives, based on each
participant's objective assessment and individual service strategy.
Local programs are not required to provide every program service to
each participant.
(c) When available, the Department encourages local programs to
partner with existing local, State, or national entities that can
provide program element(s) at no cost to the local youth program.
Sec. 681.470 Does the Department require local programs to use
Workforce Innovation and Opportunity Act funds for each of the 14
program elements?
No. The Department does not require local programs to use WIOA
youth funds for each of the program elements. Local programs may
leverage partner resources to provide some of the readily available
program elements. However, the local area must ensure that if a program
element is not funded with WIOA title I youth funds, the local program
has an agreement in place with a partner organization to ensure that
the program element will be offered. The Local WDB must ensure that the
program element is closely connected and coordinated with the WIOA
youth program.
Sec. 681.480 What is a pre-apprenticeship program?
A pre-apprenticeship is a program designed to prepare individuals
to enter and succeed in an apprenticeship program registered under the
Act of August 16, 1937 (commonly known as the ``National Apprenticeship
Act''; 50 Stat. 664, chapter 663; 29 U.S.C. 50 et. seq.) (referred to
in this part as a ``registered apprenticeship'' or ``registered
apprenticeship program'') and includes the following elements:
(a) Training and curriculum that aligns with the skill needs of
employers in the economy of the State or region involved;
(b) Access to educational and career counseling and other
supportive services, directly or indirectly;
(c) Hands-on, meaningful learning activities that are connected to
education and training activities, such as exploring career options,
and understanding how the skills acquired through coursework can be
applied toward a future career;
(d) Opportunities to attain at least one industry-recognized
credential; and
(e) A partnership with one or more registered apprenticeship
programs that assists in placing individuals who complete the pre-
apprenticeship program in a registered apprenticeship program.
Sec. 681.490 What is adult mentoring?
(a) Adult mentoring for youth must:
(1) Last at least 12 months and may take place both during the
program and following exit from the program;
(2) Be a formal relationship between a youth participant and an
adult mentor that includes structured activities where the mentor
offers guidance, support, and encouragement to develop the competence
and character of the mentee; and
(3) While group mentoring activities and mentoring through
electronic means are allowable as part of the mentoring activities, at
a minimum, the local youth program must match the youth with an
individual mentor with whom the youth interacts on a face-to-face
basis.
(b) Mentoring may include workplace mentoring where the local
program matches a youth participant with an employer or employee of a
company.
Sec. 681.500 What is financial literacy education?
The financial literacy education program element may include
activities which:
(a) Support the ability of participants to create budgets, initiate
checking and savings accounts at banks, and make informed financial
decisions;
(b) Support participants in learning how to effectively manage
spending, credit, and debt, including student loans, consumer credit,
and credit cards;
(c) Teach participants about the significance of credit reports and
credit scores; what their rights are regarding their credit and
financial information; how to determine the accuracy of a credit report
and how to correct inaccuracies; and how to improve or maintain good
credit;
(d) Support a participant's ability to understand, evaluate, and
compare financial products, services, and opportunities and to make
informed financial decisions;
(e) Educate participants about identity theft, ways to protect
themselves from identify theft, and how to resolve cases of identity
theft and in other ways understand their rights and protections related
to personal identity and financial data;
(f) Support activities that address the particular financial
literacy needs of non-English speakers, including providing the support
through the development and distribution of multilingual financial
literacy and education materials;
(g) Support activities that address the particular financial
literacy needs of youth with disabilities, including connecting them to
benefits planning and work incentives counseling;
(h) Provide financial education that is age appropriate, timely,
and provides opportunities to put lessons into practice, such as by
access to safe and affordable financial products that enable money
management and savings; and
(i) Implement other approaches to help participants gain the
knowledge, skills, and confidence to make informed financial decisions
that enable them to attain greater financial health and stability by
using high quality, age-appropriate, and relevant strategies and
channels, including, where possible, timely and customized information,
guidance, tools, and instruction.
Sec. 681.510 What is comprehensive guidance and counseling?
Comprehensive guidance and counseling provides individualized
counseling to participants. This includes drug and alcohol abuse
counseling, mental health counseling, and referral to partner programs,
as appropriate. When referring participants to necessary counseling
that cannot be provided by the local youth program or its service
providers, the local youth program must coordinate with the
organization it refers to in order to ensure continuity of service.
Sec. 681.520 What are leadership development opportunities?
Leadership development opportunities are opportunities that
encourage responsibility, confidence, employability, self-
determination, and other positive social behaviors such as:
(a) Exposure to postsecondary educational possibilities;
(b) Community and service learning projects;
[[Page 56404]]
(c) Peer-centered activities, including peer mentoring and
tutoring;
(d) Organizational and team work training, including team
leadership training;
(e) Training in decision-making, including determining priorities
and problem solving;
(f) Citizenship training, including life skills training such as
parenting and work behavior training;
(g) Civic engagement activities which promote the quality of life
in a community; and
(h) Other leadership activities that place youth in a leadership
role such as serving on youth leadership committees, such as a Standing
Youth Committee.
Sec. 681.530 What are positive social and civic behaviors?
Positive social and civic behaviors are outcomes of leadership
opportunities, which are incorporated by local programs as part of
their menu of services. Positive social and civic behaviors focus on
areas that may include the following:
(a) Positive attitudinal development;
(b) Self-esteem building;
(c) Openness to work with individuals from diverse backgrounds;
(d) Maintaining healthy lifestyles, including being alcohol- and
drug-free;
(e) Maintaining positive social relationships with responsible
adults and peers, and contributing to the well-being of one's
community, including voting;
(f) Maintaining a commitment to learning and academic success;
(g) Avoiding delinquency; and
(h) Positive job attitudes and work skills.
Sec. 681.540 What is occupational skills training?
(a) The Department defines occupational skills training as an
organized program of study that provides specific vocational skills
that lead to proficiency in performing actual tasks and technical
functions required by certain occupational fields at entry,
intermediate, or advanced levels. Local areas must give priority
consideration to training programs that lead to recognized
postsecondary credentials that align with in-demand industry sectors or
occupations in the local area. Such training must:
(1) Be outcome-oriented and focused on an occupational goal
specified in the individual service strategy;
(2) Be of sufficient duration to impart the skills needed to meet
the occupational goal; and
(3) Lead to the attainment of a recognized postsecondary
credential.
(b) The chosen occupational skills training must meet the quality
standards in WIOA sec. 123.
Sec. 681.550 Are Individual Training Accounts permitted for youth
participants?
Yes. In order to enhance individual participant choice in their
education and training plans and provide flexibility to service
providers, the Department allows WIOA Individual Training Accounts
(ITAs) for OSY, ages 16 to 24 using WIOA youth funds when appropriate.
Sec. 681.560 What is entrepreneurial skills training and how is it
taught?
Entrepreneurial skills training provides the basics of starting and
operating a small business.
(a) Such training must develop the skills associated with
entrepreneurship. Such skills may include, but are not limited to, the
ability to:
(1) Take initiative;
(2) Creatively seek out and identify business opportunities;
(3) Develop budgets and forecast resource needs;
(4) Understand various options for acquiring capital and the trade-
offs associated with each option; and
(5) Communicate effectively and market oneself and one's ideas.
(b) Approaches to teaching youth entrepreneurial skills include,
but are not limited to, the following:
(1) Entrepreneurship education that provides an introduction to the
values and basics of starting and running a business. Entrepreneurship
education programs often guide youth through the development of a
business plan and also may include simulations of business start-up and
operation.
(2) Enterprise development which provides supports and services
that incubate and help youth develop their own businesses. Enterprise
development programs go beyond entrepreneurship education by helping
youth access small loans or grants that are needed to begin business
operation and by providing more individualized attention to the
development of viable business ideas.
(3) Experiential programs that provide youth with experience in the
day-to-day operation of a business. These programs may involve the
development of a youth-run business that young people participating in
the program work in and manage. Or, they may facilitate placement in
apprentice or internship positions with adult entrepreneurs in the
community.
Sec. 681.570 What are supportive services for youth?
Supportive services for youth, as defined in WIOA sec. 3(59), are
services that enable an individual to participate in WIOA activities.
These services include, but are not limited to, the following:
(a) Linkages to community services;
(b) Assistance with transportation;
(c) Assistance with child care and dependent care;
(d) Assistance with housing;
(e) Needs-related payments;
(f) Assistance with educational testing;
(g) Reasonable accommodations for youth with disabilities;
(h) Legal aid services;
(i) Referrals to health care;
(j) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eyeglasses and protective
eye gear;
(k) Assistance with books, fees, school supplies, and other
necessary items for students enrolled in postsecondary education
classes; and
(l) Payments and fees for employment and training-related
applications, tests, and certifications.
Sec. 681.580 What are follow-up services for youth?
(a) Follow-up services are critical services provided following a
youth's exit from the program to help ensure the youth is successful in
employment and/or postsecondary education and training. Follow-up
services may include regular contact with a youth participant's
employer, including assistance in addressing work-related problems that
arise.
(b) Follow-up services for youth also may include the following
program elements:
(1) Supportive services;
(2) Adult mentoring;
(3) Financial literacy education;
(4) Services that provide labor market and employment information
about in-demand industry sectors or occupations available in the local
area, such as career awareness, career counseling, and career
exploration services; and
(5) Activities that help youth prepare for and transition to
postsecondary education and training.
(c) All youth participants must be offered an opportunity to
receive follow-up services that align with their individual service
strategies. Furthermore, follow-up services must be provided to all
participants for a minimum of 12 months unless the participant declines
to receive follow-up services or the participant cannot be located or
contacted. Follow-up services
[[Page 56405]]
may be provided beyond 12 months at the State or Local WDB's
discretion. The types of services provided and the duration of services
must be determined based on the needs of the individual and therefore,
the type and intensity of follow-up services may differ for each
participant. Follow-up services must include more than only a contact
attempted or made for securing documentation in order to report a
performance outcome.
Sec. 681.590 What is the work experience priority and how will local
youth programs track the work experience priority?
(a) Local youth programs must expend not less than 20 percent of
the funds allocated to them to provide ISY and OSY with paid and unpaid
work experiences that fall under the categories listed in Sec.
681.460(a)(3) and further defined in Sec. 681.600.
(b) Local WIOA youth programs must track program funds spent on
paid and unpaid work experiences, including wages and staff costs for
the development and management of work experiences, and report such
expenditures as part of the local WIOA youth financial reporting. The
percentage of funds spent on work experience is calculated based on the
total local area youth funds expended for work experience rather than
calculated separately for ISY and OSY. Local area administrative costs
are not subject to the 20 percent minimum work experience expenditure
requirement.
Sec. 681.600 What are work experiences?
(a) Work experiences are a planned, structured learning experience
that takes place in a workplace for a limited period of time. Work
experience may be paid or unpaid, as appropriate. A work experience may
take place in the private for-profit sector, the non-profit sector, or
the public sector. Labor standards apply in any work experience where
an employee/employer relationship, as defined by the Fair Labor
Standards Act or applicable State law, exists. Consistent with Sec.
680.840 of this chapter, funds provided for work experiences may not be
used to directly or indirectly aid in the filling of a job opening that
is vacant because the former occupant is on strike, or is being locked
out in the course of a labor dispute, or the filling of which is
otherwise an issue in a labor dispute involving a work stoppage. Work
experiences provide the youth participant with opportunities for career
exploration and skill development.
(b) Work experiences must include academic and occupational
education. The educational component may occur concurrently or
sequentially with the work experience. Further academic and
occupational education may occur inside or outside the work site.
(c) The types of work experiences include the following categories:
(1) Summer employment opportunities and other employment
opportunities available throughout the school year;
(2) Pre-apprenticeship programs;
(3) Internships and job shadowing; and
(4) On-the-job training (OJT) opportunities as defined in WIOA sec.
3(44) and in Sec. 680.700 of this chapter.
Sec. 681.610 Does the Workforce Innovation and Opportunity Act
require Local Workforce Development Boards to offer summer employment
opportunities in the local youth program?
No, WIOA does not require Local WDBs to offer summer youth
employment opportunities as summer employment is no longer its own
program element under WIOA. However, WIOA does require Local WDBs to
offer work experience opportunities using at least 20 percent of their
funding, which may include summer employment.
Sec. 681.620 How are summer employment opportunities administered?
Summer employment opportunities are a component of the work
experience program element. If youth service providers administer the
work experience program element, they must be selected by the Local WDB
according to the requirements of WIOA sec. 123 and Sec. 681.400, based
on criteria contained in the State Plan. However, the summer employment
administrator does not need to select the employers who are providing
the employment opportunities through a competitive process.
Sec. 681.630 What does education offered concurrently with and in the
same context as workforce preparation activities and training for a
specific occupation or occupational cluster mean?
This program element reflects an integrated education and training
model and describes how workforce preparation activities, basic
academic skills, and hands-on occupational skills training are to be
taught within the same time frame and connected to training in a
specific occupation, occupational cluster, or career pathway.
Sec. 681.640 Are incentive payments to youth participants permitted?
Yes, incentive payments to youth participants are permitted for
recognition and achievement directly tied to training activities and
work experiences. The local program must have written policies and
procedures in place governing the award of incentives and must ensure
that such incentive payments are:
(a) Tied to the goals of the specific program;
(b) Outlined in writing before the commencement of the program that
may provide incentive payments;
(c) Align with the local program's organizational policies; and
(d) Are in accordance with the requirements contained in 2 CFR part
200.
Sec. 681.650 How can parents, youth, and other members of the
community get involved in the design and implementation of local youth
programs?
Local WDBs and programs must provide opportunities for parents,
participants, and other members of the community with experience
working with youth to be involved in the design and implementation of
youth programs. Parents, youth participants, and other members of the
community can get involved in a number of ways, including serving on
youth standing committees, if they exist and they are appointed by the
Local WDB. They also can get involved by serving as mentors, serving as
tutors, and providing input into the design and implementation of other
program design elements. Local WDBs also must make opportunities
available to successful participants to volunteer to help participants
as mentors, tutors, or in other activities.
Subpart D--One-Stop Services to Youth
Sec. 681.700 What is the connection between the youth program and the
one-stop delivery system?
(a) WIOA sec. 121(b)(1)(B)(i) requires that the youth program
function as a required one-stop partner and fulfill the roles and
responsibilities of a one-stop partner described in WIOA sec.
121(b)(1)(A).
(b) In addition to the provisions of part 678 of this chapter,
connections between the youth program and the one-stop delivery system
may include those that facilitate:
(1) The coordination and provision of youth activities;
(2) Linkages to the job market and employers;
(3) Access for eligible youth to the information and services
required in Sec. 681.460;
(4) Services for non-eligible youth such as basic labor exchange
services, other self-service activities such as job searches, career
exploration, use of one-
[[Page 56406]]
stop center resources, and referral as appropriate; and
(5) Other activities described in WIOA sec. 129(b)-(c).
(c) Local WDBs must either colocate WIOA youth program staff at
one-stop centers and/or ensure one-stop centers and staff are trained
to serve youth and equipped to advise youth to increase youth access to
services and connect youth to the program that best aligns with their
needs.
Sec. 681.710 Do Local Workforce Development Boards have the
flexibility to offer services to area youth who are not eligible under
the youth program through the one-stop centers?
Yes. However, Local WDBs must ensure one-stop centers fund services
for non-eligible youth through programs authorized to provide services
to such youth. For example, one-stop centers may provide basic labor
exchange services under the Wagner-Peyser Act to any youth.
0
15. Add part 682 to read as follows:
PART 682--STATEWIDE ACTIVITIES UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Subpart A--General Description
Sec.
682.100 What are the statewide employment and training activities
under title I of the Workforce Innovation and Opportunity Act?
682.110 How are statewide employment and training activities funded?
Subpart B--Required and Allowable Statewide Employment and Training
Activities
Sec.
682.200 What are required statewide employment and training
activities?
682.210 What are allowable statewide employment and training
activities?
682.220 What are States' responsibilities in regard to evaluations?
Subpart C--Rapid Response Activities
Sec.
682.300 What is rapid response, and what is its purpose?
682.302 Under what circumstances must rapid response services be
delivered?
682.305 How does the Department define the term ``mass layoff'' for
the purposes of rapid response?
682.310 Who is responsible for carrying out rapid response
activities?
682.320 What is layoff aversion, and what are appropriate layoff
aversion strategies and activities?
682.330 What rapid response activities are required?
682.340 May other activities be undertaken as part of rapid
response?
682.350 What is meant by ``provision of additional assistance'' in
the Workforce Innovation and Opportunity Act?
682.360 What rapid response, layoff aversion, or other information
will States be required to report to the Employment and Training
Administration?
682.370 What are the statewide activities for which rapid response
funds remaining unobligated after the first program year for which
the funds were allotted may be used by the State?
Authority: Secs. 129, 134, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart A--General Description
Sec. 682.100 What are the statewide employment and training
activities under title I of the Workforce Innovation and Opportunity
Act?
Statewide employment and training activities include those
activities for adults and dislocated workers, as described in WIOA sec.
134(a), and statewide youth activities, as described in the Workforce
Innovation and Opportunity Act (WIOA) sec. 129(b). They include both
required and allowable activities. In accordance with the requirements
of this subpart, the State may develop policies and strategies for use
of statewide employment and training funds. Descriptions of these
policies and strategies must be included in the State Plan.
Sec. 682.110 How are statewide employment and training activities
funded?
(a) Except for the statewide rapid response activities described in
paragraph (c) of this section, statewide employment and training
activities are supported by funds reserved by the Governor under WIOA
sec. 128(a).
(b) Funds reserved by the Governor for statewide workforce
investment activities may be combined and used for any of the
activities authorized in WIOA sec. 129(b), 134(a)(2)(B), or
134(a)(3)(A) (which are described in Sec. Sec. 682.200 and 682.210),
regardless of whether the funds were allotted through the youth, adult,
or dislocated worker funding streams.
(c) Funds for statewide rapid response activities are reserved
under WIOA sec.133(a)(2) and may be used to provide the activities
authorized at WIOA sec. 134(a)(2)(A) (which are described in Sec. Sec.
682.310 through 682.330).
Subpart B--Required and Allowable Statewide Employment and Training
Activities
Sec. 682.200 What are required statewide employment and training
activities?
Required statewide employment and training activities are:
(a) Required rapid response activities, as described in Sec.
682.310;
(b) Disseminating by various means, as provided by WIOA sec.
134(a)(2)(B):
(1) The State list of eligible training providers (including those
providing non-traditional training services), for adults and dislocated
workers and eligible training providers of registered apprenticeship
programs;
(2) Information identifying eligible providers of on-the-job
training (OJT), customized training, incumbent worker training (see
Sec. 680.790 of this chapter), internships, paid or unpaid work
experience opportunities (see Sec. 680.180 of this chapter) and
transitional jobs (see Sec. 680.190 of this chapter);
(3) Information on effective outreach and partnerships with
business;
(4) Information on effective service delivery strategies and
promising practices to serve workers and job seekers;
(5) Performance information and information on the cost of
attendance, including tuition and fees, consistent with the
requirements of Sec. Sec. 680.490 and 680.530 of this chapter;
(6) A list of eligible providers of youth activities as described
in WIOA sec. 123; and
(7) Information of physical and programmatic accessibility for
individuals with disabilities;
(c) States must assure that the information listed in paragraphs
(b)(1) through (7) of this section is widely available;
(d) Conducting evaluations under WIOA sec. 116(e), consistent with
the requirements found under Sec. 682.220;
(e) Providing technical assistance to State entities and agencies,
local areas, and one-stop partners in carrying out activities described
in the State Plan, including coordination and alignment of data systems
used to carry out the requirements of this Act;
(f) Assisting local areas, one-stop operators, one-stop partners,
and eligible providers, including development of staff, including staff
training to provide opportunities for individuals with barriers to
employment to enter in-demand industry sectors or occupations and
nontraditional occupations, and the development of exemplary program
activities;
(g) Assisting local areas for carrying out the regional planning
and service delivery efforts required under WIOA sec. 106(c);
(h) Assisting local areas by providing information on and support
for the effective development, convening, and implementation of
industry and sector partnerships;
(i) Providing technical assistance to local areas that fail to meet
the adjusted
[[Page 56407]]
levels of performance agreed to under Sec. 677.210 of this chapter;
(j) Carrying out monitoring and oversight of activities for
services to youth, adults, and dislocated workers under WIOA title I,
and which may include a review comparing the services provided to male
and female youth;
(k) Providing additional assistance to local areas that have a high
concentration of eligible youth; and
(l) Operating a fiscal and management accountability information
system, based on guidelines established by the Secretary.
Sec. 682.210 What are allowable statewide employment and training
activities?
Allowable statewide employment and training activities may include:
(a) State administration of the adult, dislocated worker and youth
workforce investment activities, consistent with the five percent
administrative cost limitation at WIOA sec. 134(a)(3)(B) and Sec.
683.205(a)(1) of this chapter;
(b) Developing and implementing innovative programs and strategies
designed to meet the needs of all employers (including small employers)
in the State, including the programs and strategies referenced in WIOA
sec. 134(a)(3)(A)(i);
(c) Developing strategies for serving individuals with barriers to
employment, and for coordinating programs and services among one-stop
partners;
(d) Development or identification of education and training
programs that have the characteristics referenced in WIOA sec.
134(a)(3)(A)(iii);
(e) Implementing programs to increase the number of individuals
training for and placed in non-traditional employment;
(f) Conducting research and demonstrations related to meeting the
employment and education needs of youth, adults and dislocated workers;
(g) Supporting the development of alternative, evidence-based
programs, and other activities that enhance the choices available to
eligible youth and which encourage youth to reenter and complete
secondary education, enroll in postsecondary education and advanced
training, progress through a career pathway, and enter into
unsubsidized employment that leads to economic self-sufficiency;
(h) Supporting the provision of career services in the one-stop
delivery system in the State as described in Sec. 678.430 of this
chapter and WIOA secs. 129(b)(2)(C) and 134(c)(2);
(i) Supporting financial literacy activities as described in Sec.
681.500 of this chapter and WIOA sec. 129(b)(2)(D);
(j) Providing incentive grants to local areas for performance by
the local areas on local performance accountability measures;
(k) Providing technical assistance to Local Workforce Development
Boards (WDBs), chief elected officials, one-stop operators, one-stop
partners, and eligible providers in local areas on the development of
exemplary program activities and on the provision of technology to
facilitate remote access to services provided through the one-stop
delivery system in the State;
(l) Providing technical assistance to local areas that are
implementing WIOA Pay-for-Performance contract strategies and
conducting evaluations of such strategies. Technical assistance may
include providing assistance with data collections, meeting data entry
requirements, and identifying level of performance;
(m) Carrying out activities to facilitate remote access to training
services provided through the one-stop delivery system;
(n) Activities that include:
(1) Activities to improve coordination of workforce investment
activities, with economic development activities; and
(2) Activities to improve coordination of employment and training
activities with child support services and activities, cooperative
extension programs carried out by the Department of Agriculture,
programs carried out by local areas for individuals with disabilities
(including the programs identified in WIOA sec.
134(a)(3)(A)(viii)(II)(cc)), adult education and literacy activities
including those provided by public libraries, activities in the
correction systems to assist ex-offenders in reentering the workforce
and financial literacy activities; and
(3) Developing and disseminating workforce and labor market
information;
(o) Implementation of promising practices for workers and
businesses as described in WIOA sec. 134(a)(3)(A)(x);
(p) Adopting, calculating, or commissioning for approval an
economic self-sufficiency standard for the State that specifies the
income needs of families, by family size, the number and ages of
children in the family, and sub-State geographical considerations;
(q) Developing and disseminating common intake procedures and
related items, including registration processes, across core and
partner programs; and
(r) Coordinating activities with the child welfare system to
facilitate provision of services for children and youth who are
eligible for assistance under sec. 477 of the Social Security Act.
Sec. 682.220 What are States' responsibilities in regard to
evaluations?
(a) As required by Sec. 682.200(d), States must use funds reserved
by the Governor for statewide activities to conduct evaluations of
activities under the WIOA title I core programs in order to promote
continuous improvement, research and test innovative services and
strategies, and achieve high levels of performance and outcomes.
(b) Evaluations conducted under paragraph (a) of this section must:
(1) Be coordinated with and designed in conjunction with State and
Local WDBs and with State agencies responsible for the administration
of all core programs;
(2) When appropriate, include analysis of customer feedback and
outcome and process measures in the statewide workforce development
system;
(3) Use designs that employ the most rigorous analytical and
statistical methods that are reasonably feasible, such as the use of
control groups; and
(4) To the extent feasible, be coordinated with the evaluations
provided for by the Secretary of Labor and the Secretary of Education
under WIOA sec. 169 (regarding title I programs and other employment-
related programs), WIOA sec. 242(c)(2)(D) (regarding adult education),
sec. 12(a)(5), 14, and 107 of the Rehabilitation Act of 1973 (29 U.S.C.
709(a)(5), 711, 727) (applied with respect to programs carried out
under title I of that Act (29 U.S.C. 720 et seq.)), and the
investigations provided by the Secretary of Labor under sec. 10(b) of
the Wagner-Peyser Act (29 U.S.C. 49i(b)).
(c) States must annually prepare, submit to the State WDB and Local
WDBs in the State, and make available to the public (including by
electronic means) reports containing the results, as available, of the
evaluations described in paragraph (a) of this section.
(d) States must cooperate, to the extent practicable, in
evaluations and related research projects conducted by the Secretaries
of Labor and Education under the laws cited in paragraph (b)(4) of this
section. Such cooperation must, at a minimum, meet the following
requirements:
(1) The timely provision of:
(i) Data, in accordance with appropriate privacy protections
established by the Secretary of Labor;
(ii) Responses to surveys;
(iii) Site visits; and
(iv) Data and survey responses from local subgrantees and State and
Local WDBs, and assuring that subgrantees and WDBs allow timely site
visits;
[[Page 56408]]
(2) Encouraging other one-stop partners at local level to cooperate
in timely provision of data, survey responses and site visits as listed
in paragraphs (d)(1)(i) through (iv) of this section; and
(3) If a State determines that timely cooperation in data provision
as described in paragraph (d)(1) of this section is not practicable,
the Governor must inform the Secretary in writing and explain the
reasons why it is not practicable. In such circumstances, the State
must cooperate with the Department in developing a plan or strategy to
mitigate or overcome the problems preventing timely provision of data,
survey responses, and site visits.
(e) In fulfilling the requirements under paragraphs (a) through (c)
of this section, States are permitted, but not required, to:
(1) Conduct evaluations that jointly examine title I core program
activities and activities under other core programs in WIOA titles II-
IV, as determined through the processes associated with paragraph
(b)(1) of this section;
(2) Conduct any type of evaluation similar to those authorized for,
or conducted by, the Department of Labor or the Department of Education
under the laws cited in paragraph (b)(4) of this section, including
process and outcome studies, pilot and demonstration projects that have
an evaluative component, analyses of administrative and programmatic
data, impact and benefit-cost analyses, and use of rigorous designs to
test the efficacy of various interventions; and
(3) Conduct evaluations over multiple program years, involving
multiple phases and such tasks and activities as necessary for an
evaluation, such as a literature or evidence review, feasibility study,
planning, research, coordination, design, data collection, analysis,
and report preparation, clearance, and dissemination.
(f) In funding evaluations conducted under paragraph (a) of this
section, States are permitted, but not required to:
(1) Use funds from any WIOA title I-IV core program to conduct
evaluations, as determined through the processes associated with
paragraph (b)(1) of this section; and
(2) Use or combine funds, consistent with Federal and State law,
regulation and guidance, from other public or private sources, to
conduct evaluations relating to activities under the WIOA title I-IV
core programs. Such projects may include those funded by the Department
of Labor and other Federal agencies, among other sources.
Subpart C--Rapid Response Activities
Sec. 682.300 What is rapid response, and what is its purpose?
(a) Rapid response is described in Sec. Sec. 682.300 through
682.370, and encompasses the strategies and activities necessary to:
(1) Plan for and respond to as quickly as possible following an
event described in Sec. 682.302; and
(2) Deliver services to enable dislocated workers to transition to
new employment as quickly as possible.
(b) The purpose of rapid response is to promote economic recovery
and vitality by developing an ongoing, comprehensive approach to
identifying, planning for, responding to layoffs and dislocations, and
preventing or minimizing their impacts on workers, businesses, and
communities. A successful rapid response system includes:
(1) Informational and direct reemployment services for workers,
including but not limited to information and support for filing
unemployment insurance claims, information on the impacts of layoff on
health coverage or other benefits, information on and referral to
career services, reemployment-focused workshops and services, and
training;
(2) Delivery of solutions to address the needs of businesses in
transition, provided across the business lifecycle (expansion and
contraction), including comprehensive business engagement and layoff
aversion strategies and activities designed to prevent or minimize the
duration of unemployment;
(3) Convening, brokering, and facilitating the connections,
networks and partners to ensure the ability to provide assistance to
dislocated workers and their families such as home heating assistance,
legal aid, and financial advice; and
(4) Strategic planning, data gathering and analysis designed to
anticipate, prepare for, and manage economic change.
Sec. 682.302 Under what circumstances must rapid response services be
delivered?
Rapid response must be delivered when one or more of the following
circumstances occur:
(a) Announcement or notification of a permanent closure, regardless
of the number of workers affected;
(b) Announcement or notification of a mass layoff as defined in
Sec. 682.305;
(c) A mass job dislocation resulting from a natural or other
disaster; or
(d) The filing of a Trade Adjustment Assistance (TAA) petition.
Sec. 682.305 How does the Department define the term ``mass layoff''
for the purposes of rapid response?
For the purposes of rapid response, the term ``mass layoff'' used
throughout this subpart will have occurred when at least one of the
following conditions have been met:
(a) A layoff meets the State's definition of mass layoff, as long
as the definition does not exceed a minimum threshold of 50 affected
workers;
(b) Where a State has not defined a minimum threshold for mass
layoff meeting the requirements of paragraph (a) of this section,
layoffs affecting 50 or more workers; or
(c) When a Worker Adjustment and Retraining Notification (WARN) Act
notice has been filed, regardless of the number of workers affected by
the layoff announced.
Sec. 682.310 Who is responsible for carrying out rapid response
activities?
(a) Rapid response activities must be carried out by the State or
an entity designated by the State, in conjunction with the Local WDBs,
chief elected officials, and other stakeholders, as provided by WIOA
secs. 133(a)(2) and 134(a)(2)(A).
(b) States must establish and maintain a rapid response unit to
carry out statewide rapid response activities and to oversee rapid
response activities undertaken by a designated State entity, Local WDB,
or the chief elected officials for affected local areas, as provided
under WIOA sec. 134(a)(2)(A)(i)(I).
Sec. 682.320 What is layoff aversion, and what are appropriate layoff
aversion strategies and activities?
(a) Layoff aversion consists of strategies and activities,
including those provided in paragraph (b) of this section and
Sec. Sec. 682.330 and 682.340, to prevent or minimize the duration of
unemployment resulting from layoffs.
(b) Layoff aversion activities may include:
(1) Providing assistance to employers in managing reductions in
force, which may include early identification of firms at risk of
layoffs, assessment of the needs of and options for at-risk firms, and
the delivery of services to address these needs, as provided by WIOA
sec. 134(d)(1)(A)(ix)(II)(cc);
(2) Ongoing engagement, partnership, and relationship-building
activities with businesses in the community, in order to create an
environment for successful layoff aversion efforts and to enable the
provision of assistance to dislocated workers in obtaining reemployment
as soon as possible;
(3) Funding feasibility studies to determine if a company's
operations
[[Page 56409]]
may be sustained through a buyout or other means to avoid or minimize
layoffs;
(4) Developing, funding, and managing incumbent worker training
programs or other worker upskilling approaches as part of a layoff
aversion strategy or activity;
(5) Connecting companies to:
(i) Short-time compensation or other programs designed to prevent
layoffs or to reemploy dislocated workers quickly, available under
Unemployment Insurance programs;
(ii) Employer loan programs for employee skill upgrading; and
(iii) Other Federal, State, and local resources as necessary to
address other business needs that cannot be funded with resources
provided under this title;
(6) Establishing linkages with economic development activities at
the Federal, State, and local levels, including Federal Department of
Commerce programs and available State and local business retention and
expansion activities;
(7) Partnering or contracting with business-focused organizations
to assess risks to companies, propose strategies to address those
risks, implement services, and measure impacts of services delivered;
(8) Conducting analyses of the suppliers of an affected company to
assess their risks and vulnerabilities from a potential closing or
shift in production of their major customer;
(9) Engaging in proactive measures to identify opportunities for
potential economic transition and training needs in growing industry
sectors or expanding businesses; and
(10) Connecting businesses and workers to short-term, on-the-job,
or customized training programs and registered apprenticeships before
or after layoff to help facilitate rapid reemployment.
Sec. 682.330 What rapid response activities are required?
Rapid response activities must include:
(a) Layoff aversion activities as described in Sec. 682.320, as
applicable.
(b) Immediate and on-site contact with the employer,
representatives of the affected workers, and the local community,
including an assessment of and plans to address the:
(1) Layoff plans and schedule of the employer;
(2) Background and probable assistance needs of the affected
workers;
(3) Reemployment prospects for workers; and
(4) Available resources to meet the short and long-term assistance
needs of the affected workers.
(c) The provision of information and access to unemployment
compensation benefits and programs, such as Short-Time Compensation,
comprehensive one-stop delivery system services, and employment and
training activities, including information on the TAA program (19
U.S.C. 2271 et seq.), Pell Grants, the GI Bill, and other resources.
(d) The delivery of other necessary services and resources
including workshops and classes, use of worker transition centers, and
job fairs, to support reemployment efforts for affected workers.
(e) Partnership with the Local WDB(s) and chief elected official(s)
to ensure a coordinated response to the dislocation event and, as
needed, obtain access to State or local economic development
assistance. Such coordinated response may include the development of an
application for a national dislocated worker grant as provided under
part 687 of this chapter.
(f) The provision of emergency assistance adapted to the particular
layoff or disaster.
(g) As appropriate, developing systems and processes for:
(1) Identifying and gathering information for early warning of
potential layoffs or opportunities for layoff aversion;
(2) Analyzing, and acting upon, data and information on
dislocations and other economic activity in the State, region, or local
area; and
(3) Tracking outcome and performance data and information related
to the activities of the rapid response program.
(h) Developing and maintaining partnerships with other appropriate
Federal, State and local agencies and officials, employer associations,
technical councils, other industry business councils, labor
organizations, and other public and private organizations, as
applicable, in order to:
(1) Conduct strategic planning activities to develop strategies for
addressing dislocation events and ensuring timely access to a broad
range of necessary assistance; and
(2) Develop mechanisms for gathering and exchanging information and
data relating to potential dislocations, resources available, and the
customization of layoff aversion or rapid response activities, to
ensure the ability to provide rapid response services as early as
possible.
(i) Delivery of services to worker groups for which a petition for
Trade Adjustment Assistance has been filed.
(j) The provision of additional assistance, as described in Sec.
682.350, to local areas that experience disasters, mass layoffs, or
other dislocation events when such events exceed the capacity of the
local area to respond with existing resources as provided under WIOA
sec. 134(a)(2)(A)(i)(II).
(k) Provision of guidance and financial assistance as appropriate,
in establishing a labor-management committee if voluntarily agreed to
by the employee's bargaining representative and management. The
committee may devise and oversee an implementation strategy that
responds to the reemployment needs of the workers. The assistance to
this committee may include:
(1) The provision of training and technical assistance to members
of the committee; and
(2) Funding the operating costs of a committee to enable it to
provide advice and assistance in carrying out rapid response activities
and in the design and delivery of WIOA-authorized services to affected
workers.
Sec. 682.340 May other activities be undertaken as part of rapid
response?
(a) Yes, in order to conduct layoff aversion activities, or to
prepare for and respond to dislocation events, in addition to the
activities required under Sec. 682.330, a State or designated entity
may devise rapid response strategies or conduct activities that are
intended to minimize the negative impacts of dislocation on workers,
businesses, and communities and ensure rapid reemployment for workers
affected by layoffs.
(b) When circumstances allow, rapid response may provide guidance
and/or financial assistance to establish community transition teams to
assist the impacted community in organizing support for dislocated
workers and in meeting the basic needs of their families, including
heat, shelter, food, clothing and other necessities and services that
are beyond the resources and ability of the one-stop delivery system to
provide.
Sec. 682.350 What is meant by ``provision of additional assistance''
in the Workforce Innovation and Opportunity Act?
As stated in WIOA sec. 133(a)(2), a State may reserve up to 25
percent of its allotted dislocated worker funds for rapid response
activities. Once the State has reserved adequate funds for rapid
response activities, such as those described in Sec. Sec. 682.310,
682.320, and 682.330, any of the remaining funds reserved may be
provided to local areas that experience increases of unemployment due
to natural disasters, mass layoffs or other events, for provision of
direct career services to
[[Page 56410]]
participants if there are not adequate local funds available to assist
the dislocated workers. States may wish to establish the policies or
procedures governing the provision of additional assistance as
described in Sec. 682.340.
Sec. 682.360 What rapid response, layoff aversion, or other
information will States be required to report to the Employment and
Training Administration?
(a) Where a WIOA individual record exists for an individual served
under programs reporting through the WIOA individual record, States
must report information regarding the receipt of services under this
subpart for such an individual. This information must be reported in
the WIOA individual record.
(b) States must comply with these requirements as explained in
guidance issued by the Department of Labor.
Sec. 682.370 What are the statewide activities for which rapid
response funds remaining unobligated after the first program year for
which the funds were allotted may be used by the State?
Funds reserved by the Governor for rapid response activities that
remain unobligated after the first program year for which such funds
were allotted may be used by the Governor to carry out statewide
activities under Sec. Sec. 682.200 and 682.210. Statewide activities
for which these funds may be used include prioritizing the planning for
and delivery of activities designed to prevent job loss, increasing the
rate of reemployment, building relationships with businesses and other
stakeholders, building and maintaining early warning networks and
systems, and otherwise supporting efforts to allow long-term unemployed
workers to return to work.
0
16. Add part 683 to read as follows:
PART 683--ADMINISTRATIVE PROVISIONS UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Subpart A--Funding and Closeout
Sec.
683.100 When do Workforce Innovation and Opportunity Act grant funds
become available for obligation?
683.105 What award document authorizes the expenditure of funds
under title I of the Workforce Innovation and Opportunity Act and
the Wagner-Peyser Act?
683.110 What is the period of performance of Workforce Innovation
and Opportunity Act title I and Wagner-Peyser Act funds?
683.115 What planning information must a State submit in order to
receive a formula grant?
683.120 How are Workforce Innovation and Opportunity Act title I
formula funds allocated to local areas?
683.125 What minimum funding provisions apply to Workforce
Innovation and Opportunity Act adult, dislocated worker, and youth
allocations?
683.130 Does a Local Workforce Development Board have the authority
to transfer funds between the adult employment and training
activities allocation and the dislocated worker employment and
training activities allocation?
683.135 What reallotment procedures does the Secretary use?
683.140 What reallocation procedures must the Governors use?
683.145 What merit review and risk assessment does the Department
conduct for Federal financial assistance awards made under the
Workforce Innovation and Opportunity Act title I, subtitle D?
683.150 What closeout requirements apply to grants funded with
Workforce Innovation and Opportunity Act title I and Wagner-Peyser
Act funds?
Subpart B--Administrative Rules, Costs, and Limitations
Sec.
683.200 What general fiscal and administrative rules apply to the
use of Workforce Innovation and Opportunity Act title I and Wagner-
Peyser Act funds?
683.205 What administrative cost limitations apply to Workforce
Innovation and Opportunity Act title I grants?
683.210 What audit requirements apply to the use of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser Act funds?
683.215 What Workforce Innovation and Opportunity Act title I
functions and activities constitute the costs of administration
subject to the administrative cost limitation?
683.220 What are the internal controls requirements for recipients
and subrecipients of Workforce Innovation and Opportunity Act title
I and Wagner-Peyser Act funds?
683.225 What requirements relate to the enforcement of the Military
Selective Service Act?
683.230 Are there special rules that apply to veterans when income
is a factor in eligibility determinations?
683.235 May Workforce Innovation and Opportunity Act title I funds
be spent for construction?
683.240 What are the instructions for using real property with
Federal equity?
683.245 Are employment generating activities, or similar activities,
allowable under title I of the Workforce Innovation and Opportunity
Act?
683.250 What other activities are prohibited under title I of the
Workforce Innovation and Opportunity Act?
683.255 What are the limitations related to religious activities of
title I of the Workforce Innovation and Opportunity Act?
683.260 What prohibitions apply to the use of Workforce Innovation
and Opportunity Act title I funds to encourage business relocation?
683.265 What procedures and sanctions apply to violations of this
part?
683.270 What safeguards are there to ensure that participants in
Workforce Innovation and Opportunity Act employment and training
activities do not displace other employees?
683.275 What wage and labor standards apply to participants in
activities under title I of the Workforce Innovation and Opportunity
Act?
683.280 What health and safety standards apply to the working
conditions of participants in activities under title I of the
Workforce Innovation and Opportunity Act?
683.285 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
683.290 Are there salary and bonus restrictions in place for the use
of title I and Wagner-Peyser Act funds?
683.295 Is earning of profit allowed under the Workforce Innovation
and Opportunity Act?
Subpart C--Reporting Requirements
Sec.
683.300 What are the reporting requirements for programs funded
under the Workforce Innovation and Opportunity Act?
Subpart D--Oversight and Resolution of Findings
Sec.
683.400 What are the Federal and State monitoring and oversight
responsibilities?
683.410 What are the oversight roles and responsibilities of
recipients and subrecipients of Federal financial assistance awarded
under title I of the Workforce Innovation and Opportunity Act and
the Wagner-Peyser Act?
683.420 What procedures apply to the resolution of findings arising
from audits, investigations, monitoring, and oversight reviews?
683.430 How does the Secretary resolve investigative and monitoring
findings?
683.440 What is the Grant Officer resolution process?
Subpart E--Pay-for-Performance Contract Strategies
Sec.
683.500 What is a Workforce Innovation and Opportunity Act Pay-for-
Performance contract strategy?
683.510 What is a Workforce Innovation and Opportunity Act Pay-for-
Performance contract?
683.520 What funds can be used to support Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies?
683.530 How long are funds used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies available?
683.540 What is the State's role in assisting local areas in using
Workforce Innovation and Opportunity Act Pay-for-Performance
contract strategies?
[[Page 56411]]
Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
Sec.
683.600 What local area, State, and direct recipient grievance
procedures must be established?
683.610 What processes does the Secretary use to review grievances
and complaints of Workforce Innovation and Opportunity Act title I
recipients?
683.620 How are complaints and reports of criminal fraud and abuse
addressed under the Workforce Innovation and Opportunity Act?
683.630 What additional appeal processes or systems must a State
have for the Workforce Innovation and Opportunity Act program?
683.640 What procedures apply to the appeals of non-designation of
local areas?
683.650 What procedures apply to the appeals of the Governor's
imposition of sanctions for substantial violations or performance
failures by a local area?
Subpart G--Sanctions, Corrective Actions, and Waiver of Liability
Sec.
683.700 When can the Secretary impose sanctions and corrective
actions on recipients and subrecipients of title I Workforce
Innovation and Opportunity Act funds?
683.710 Who is responsible for funds provided under title I of the
Workforce Innovation and Opportunity Act and the Wagner-Peyser Act?
683.720 What actions are required to address the failure of a local
area to comply with the applicable uniform administrative
provisions?
683.730 When can the Secretary waive the imposition of sanctions?
683.740 What is the procedure to handle a recipient of title I
Workforce Innovation and Opportunity Act funds' request for advance
approval of contemplated corrective actions?
683.750 What procedure must be used for administering the offset/
deduction provisions of the Workforce Innovation and Opportunity
Act?
Subpart H--Administrative Adjudication and Judicial Review
Sec.
683.800 What actions of the Department may be appealed to the Office
of Administrative Law Judges?
683.810 What rules of procedure apply to hearings conducted under
this subpart?
683.820 What authority does the Administrative Law Judge have in
ordering relief as an outcome of an administrative hearing?
683.830 When will the Administrative Law Judge issue a decision?
683.840 Is there an alternative dispute resolution process that may
be used in place of an Office of Administrative Law Judges hearing?
683.850 Is there judicial review of a final order of the Secretary
issued under WIOA?
Authority: Secs. 102, 116, 121, 127, 128, 132, 133, 147, 167,
169, 171, 181, 185, 189, 195, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart A--Funding and Closeout
Sec. 683.100 When do Workforce Innovation and Opportunity Act grant
funds become available for obligation?
(a) WIOA title I. Except as provided in paragraph (b) of this
section or in the applicable fiscal year appropriation, fiscal year
appropriations for programs and activities carried out under title I
are available for obligation on the basis of a program year. A program
year begins on July 1 in the fiscal year for which the appropriation is
made and ends on June 30 of the following year.
(b) Youth funds. Fiscal year appropriations for a program year's
youth activities, authorized under chapter 2, subtitle B, title I of
WIOA may be made available for obligation beginning on April 1 of the
fiscal year for which the appropriation is made.
(c) Wagner-Peyser Act employment service. Fiscal year
appropriations for activities authorized under sec. 6 of the Wagner-
Peyser Act, 29 U.S.C. 49e, are available for obligation on the basis of
a program year. A program year begins July 1 in the fiscal year for
which the appropriation is made and ends on June 30 of the following
year.
(d) Discretionary grants. Discretionary grant funds are available
for obligation in accordance with the fiscal year appropriation.
Sec. 683.105 What award document authorizes the expenditure of funds
under title I of the Workforce Innovation and Opportunity Act and the
Wagner-Peyser Act?
(a) Agreement. All WIOA title I and Wagner-Peyser Act funds are
awarded by grant or cooperative agreement, as defined in the Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards regulations at 2 CFR 200.51 and 200.24 respectively,
or contract, as defined in 2 CFR 200.22. All grant or cooperative
agreements are awarded by the Grant Officer through negotiation with
the recipient (the non-Federal entity). The agreement describes the
terms and conditions applicable to the award of WIOA title I and
Wagner-Peyser Act funds and will conform to the requirements of 2 CFR
200.210. Contracts are issued by the Contracting Officer in compliance
with the Federal Acquisition Regulations.
(b) Grant funds awarded to States and outlying areas. The Federal
funds allotted to the States and outlying areas each program year in
accordance with secs. 127(b) and 132(b) of WIOA will be obligated by
grant agreement.
(c) Native American programs. Awards of grants, contracts, or
cooperative agreements for the WIOA Native American program will be
made to eligible entities on a competitive basis every 4 program years
for a 4-year period, in accordance with the provisions of sec. 166 of
WIOA.
(d) Migrant and seasonal farmworker programs. Awards of grants or
contracts for the Migrant and Seasonal Farmworker Program will be made
to eligible entities on a competitive basis every 4 program years for a
4-year period, in accordance with the provisions of sec. 167 of WIOA.
(e) Awards for evaluation and research under sec. 169 of WIOA. (1)
Awards of grants, contracts, or cooperative agreements will be made to
eligible entities for programs or activities authorized under WIOA sec.
169. These funds are for:
(i) Evaluations;
(ii) Research;
(iii) Studies;
(iv) Multi-State projects; and
(v) Dislocated worker projects.
(2) Awards of grants, contracts, or cooperative agreements under
paragraphs (e)(1)(ii) through (iv) of this section in amounts that
exceed $100,000 will be awarded on a competitive basis, except that a
noncompetitive award may be made in the case of a project that is
funded jointly with other public or private sector entities that
provide a substantial portion of the assistance under the grant,
contract, or cooperative agreement for the project.
(3) Awards of grants, contracts, or cooperative agreements for
carrying out projects in paragraphs (e)(1)(ii) through (iv) of this
section may not be awarded to the same organization for more than 3
consecutive years unless:
(i) Such grant, contract, or cooperative agreement is competitively
reevaluated within such period;
(ii) The initial grant, contract, or cooperative agreement was
issued on a non-competitive basis because it was for less than
$100,000, and:
(A) The non-competitive continuation is for less than $100,000;
(B) The scope of work is essentially the same as the initial grant,
contract, or cooperative agreement;
(C) Progress in meeting performance objectives is satisfactory; and
(D) Other terms and conditions established by the Department have
been met; or
(iii) The initial grant, contract, or cooperative agreement was
issued on a non-competitive basis because the project was funded
jointly with other
[[Page 56412]]
public or private sector entities that provide a substantial portion of
the assistance, and:
(A) The non-competitive continuation maintains a substantial
portion of joint funding;
(B) The scope of work is essentially the same as the initial grant,
contract, or cooperative agreement;
(C) Progress in meeting performance objectives is satisfactory; and
(D) Other terms and conditions established by the Department have
been met.
(4) Entities with recognized expertise in the methods, techniques,
and knowledge of workforce investment activities will be provided
priority in awarding funds for the projects under paragraphs (e)(1)(ii)
through (iv) of this section. The duration of such projects will be
specified in the grant, contract, or cooperative agreement.
(5) A peer review process will be used to review and evaluate
projects under this paragraph (e) for grants, contracts, or cooperative
agreements that exceed $500,000, and to designate exemplary and
promising programs.
(f) Termination. Each grant, cooperative agreement, or contract
terminates as indicated in the terms of the agreement or when the
period of performance has expired. The grants and cooperative
agreements must be closed in accordance with the closeout provisions at
2 CFR 200.343 and 2 CFR part 2900 as applicable.
Sec. 683.110 What is the period of performance of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser Act funds?
(a) The statutory period of availability for expenditure for WIOA
title I grants will be established as the period of performance for
such grants unless otherwise provided in the grant agreement or
cooperative agreement. All funds must be fully expended by the
expiration of the period of performance or they risk losing their
availability. Unless otherwise authorized in a grant or cooperative
agreement or subsequent modification, recipients must expend funds with
the shortest period of availability first.
(b) Grant funds expended by States. Funds allotted to States under
WIOA secs. 127(b) and 132(b) for any program year are available for
expenditure by the State receiving the funds only during that program
year and the 2 succeeding program years as identified in Sec. 683.100.
(c) Grant funds expended by local areas as defined in WIOA sec.
106. (1)(i) Funds allocated by a State to a local area under WIOA secs.
128(b) and 133(b), for any program year are available for expenditure
only during that program year and the succeeding program year;
(ii) Pay-for-Performance exception. Funds used to carry out WIOA
Pay-for-Performance contract strategies will remain available until
expended in accordance with WIOA sec. 189(g)(2)(D).
(2) Funds which are not expended by a local area(s) in the 2-year
period described in paragraph (c)(1)(i) of this section, must be
returned to the State. Funds so returned are available for expenditure
by State and local recipients and subrecipients only during the third
program year of availability in accordance with WIOA secs. 128(c) and
132(c). These funds are available for only the following purposes:
(i) For statewide projects; or
(ii) For distribution to local areas which had fully expended their
allocation of funds for the same program year within the 2-year period.
(d) Native American programs. Funds awarded by the Department under
WIOA sec. 166(c) are available for expenditure for the period
identified in the grant or contract award document, which will not
exceed 4 years.
(e) Migrant and seasonal farmworker programs. Funds awarded by the
Department under WIOA sec. 167 are available for expenditure for the
period identified in the grant award document, which will not exceed 4
years.
(f) Evaluations and research. Funds awarded by the Department under
WIOA sec. 169 are available for expenditure for any program or activity
authorized under sec. 169 of WIOA and will remain available until
expended or as specified in the award document.
(g) Other programs under title I of WIOA, including secs. 170 and
171, and all other grants, contracts and cooperative agreements. Funds
are available for expenditure for a period of performance identified in
the grant or contract agreement.
(h) Wagner-Peyser Act. Funds allotted to States for grants under
secs. 3 and 15 of the Wagner-Peyser Act for any program year are
available for expenditure by the State receiving the funds only during
that program year and the 2 succeeding program years. The program year
begins on July 1 of the fiscal year for which the appropriation is
made.
Sec. 683.115 What planning information must a State submit in order
to receive a formula grant?
Each State seeking financial assistance under subtitle B, chapter 2
(youth) or chapter 3 (adults and dislocated workers), of title I of
WIOA, or under the Wagner-Peyser Act must submit a Unified State Plan
under sec. 102 of WIOA or a Combined State Plan under WIOA sec. 103.
The requirements for the plan content and the plan review process are
described in secs. 102 and 103 of WIOA, sec. 8 of Wagner-Peyser Act,
and Sec. Sec. 676.100 through 676.145 of this chapter and Sec. Sec.
652.211 through 652.214 of this chapter.
Sec. 683.120 How are Workforce Innovation and Opportunity Act title I
formula funds allocated to local areas?
(a) General. The Governor must allocate WIOA formula funds allotted
for services to youth, adults and dislocated workers in accordance with
secs. 128 and 133 of WIOA and this section.
(1) State WDBs must assist Governors in the development of any
youth or adult discretionary within-State allocation formulas.
(2) Within-State allocations must be made:
(i) In accordance with the allocation formulas contained in secs.
128(b) and 133(b) of WIOA and in the State Plan;
(ii) After consultation with chief elected officials and Local WDBs
in each of the local areas; and
(iii) In accordance with sec. 182(e) of WIOA, available to local
areas not later than 30 days after the date funds are made available to
the State or 7 days after the date the local plan for the area is
approved, whichever is later.
(b) State reserve. Of the WIOA formula funds allotted for services
to youth, adults and dislocated workers, the Governor must reserve not
more than 15 percent of the funds from each of these sources to carry
out statewide activities. Funds reserved under this paragraph may be
combined and spent on statewide activities under WIOA sec. 129(b) and
statewide employment and training activities under WIOA sec. 134(a),
for adults and dislocated workers, and youth activities, as described
in Sec. Sec. 682.200 and 682.210 of this chapter, without regard to
the funding source of the reserved funds.
(c) Youth allocation formula. (1) Unless the Governor elects to
distribute funds in accordance with the discretionary allocation
formula described in paragraph (c)(2) of this section, the remainder of
youth funds not reserved under paragraph (b) of this section must be
allocated:
(i) 33\1/3\ percent on the basis of the relative number of
unemployed individuals in areas of substantial unemployment in each
local area, compared to the total number of unemployed individuals in
all areas of substantial unemployment in the State;
[[Page 56413]]
(ii) 33\1/3\ percent on the basis of the relative excess number of
unemployed individuals in each local area, compared to the total excess
number of unemployed individuals in the State; and
(iii) 33\1/3\ percent on the basis of the relative number of
disadvantaged youth in each local area, compared to the total number of
disadvantaged youth in the State except for local areas as described in
sec. 107(c)(1)(C) of WIOA where the allotment must be based on the
greater of either the number of individuals aged 16 to 21 in families
with an income below the low-income level for the area or the number of
disadvantaged youth in the area.
(2) Discretionary youth allocation formula. In lieu of making the
formula allocation described in paragraph (c)(1) of this section, the
State may allocate youth funds under a discretionary formula. Under
this discretionary formula, the State must allocate a minimum of 70
percent of youth funds not reserved under paragraph (b) of this section
on the basis of the formula in paragraph (c)(1) of this section, and
may allocate up to 30 percent on the basis of a formula that:
(i) Incorporates additional factors (other than the factors
described in paragraph (c)(1) of this section) relating to:
(A) Excess youth poverty in urban, rural and suburban local areas;
and
(B) Excess unemployment above the State average in urban, rural and
suburban local areas; and
(ii) Was developed by the State WDB and approved by the Secretary
of Labor as part of the State Plan.
(d) Adult allocation formula. (1) Unless the Governor elects to
distribute funds in accordance with the discretionary allocation
formula described in paragraph (d)(2) of this section, the remainder of
adult funds not reserved under paragraph (b) of this section must be
allocated:
(i) 33\1/3\ percent on the basis of the relative number of
unemployed individuals in areas of substantial unemployment in each
local area, compared to the total number of unemployed individuals in
areas of substantial unemployment in the State;
(ii) 33\1/3\ percent on the basis of the relative excess number of
unemployed individuals in each local area, compared to the total excess
number of unemployed individuals in the State; and
(iii) 33\1/3\ percent on the basis of the relative number of
disadvantaged adults in each local area, compared to the total number
of disadvantaged adults in the State. Except for local areas as
described in sec. 107(c)(1)(C) of WIOA where the allotment must be
based on the higher of either the number of adults with an income below
the low-income level for the area or the number of disadvantaged adults
in the area.
(2) Discretionary adult allocation formula. In lieu of making the
formula allocation described in paragraph (d)(1) of this section, the
State may allocate adult funds under a discretionary formula, Under
this discretionary formula, the State must allocate a minimum of 70
percent of adult funds not reserved under paragraph (b) of this section
on the basis of the formula in paragraph (d)(1), and may allocate up to
30 percent on the basis of a formula that:
(i) Incorporates additional factors (other than the factors
described in paragraph (d)(1) of this section) relating to:
(A) Excess poverty in urban, rural and suburban local areas; and
(B) Excess unemployment above the State average in urban, rural and
suburban local areas; and
(ii) Was developed by the State WDB and approved by the Secretary
of Labor as part of the State Plan.
(e) Dislocated worker allocation formula. (1) The remainder of
dislocated worker funds not reserved under paragraph (b) of this
section must be allocated on the basis of a formula prescribed by the
Governor that distributes funds in a manner that addresses the State's
dislocated worker needs. Funds so distributed must not be less than 60
percent of the State's formula allotment.
(2) The Governor's dislocated worker formula must use the most
appropriate information available to the Governor, including
information on:
(i) Insured unemployment data;
(ii) Unemployment concentrations;
(iii) Plant closings and mass layoff data;
(iv) Declining industries data;
(v) Farmer-rancher economic hardship data; and
(vi) Long-term unemployment data.
(3) The Governor may not amend the dislocated worker formula more
than once for any program year.
(f) Rapid response. (1) Of the WIOA formula funds allotted for
services to dislocated workers in sec. 132(b)(2)(B) of WIOA, the
Governor must reserve not more than 25 percent of the funds for
statewide rapid response activities described in WIOA sec. 134(a)(2)(A)
and Sec. Sec. 682.300 through 682.370 of this chapter.
(2) Unobligated funds. Funds reserved by a Governor for rapid
response activities under sec. 133(a)(2) of WIOA, and sec. 133(a)(2) of
the Workforce Investment Act (as in effect on the day before the date
of enactment of WIOA), to carry out sec. 134(a)(2)(A) of WIOA that
remain unobligated after the first program year for which the funds
were allotted, may be used by the Governor to carry out statewide
activities authorized under paragraph (b) of this section and
Sec. Sec. 682.200 and 682.210 of this chapter.
(g) Special rule. For the purpose of the formula in paragraphs
(c)(1) and (d)(1) of this section, the State must, as appropriate and
to the extent practicable, exclude college students and members of the
Armed Forces from the determination of the number of disadvantaged
youth and disadvantaged adults.
Sec. 683.125 What minimum funding provisions apply to Workforce
Innovation and Opportunity Act adult, dislocated worker, and youth
allocations?
(a) For funding authorized by secs. 128(b)(2), 133(b)(2)(A), and
133(b)(2)(B) of WIOA, which are youth, adult, and dislocated worker
funds, a local area must not receive an allocation percentage for a
fiscal year that is less than 90 percent of the average allocation
percentage of the local area for the 2 preceding fiscal years.
(b) The Department's annual fiscal year appropriation provides
funding for programs and activities described in paragraph (a) of this
section under separate appropriations with various periods of
availability. These periods of availability are described in Sec.
683.100 as a program year. A program year for funds allocated under
secs. 133(b)(2)(A) and 133(b)(2)(B) of WIOA begins on July 1 in the
fiscal year for which the appropriation is made and ends on June 30 of
the following year. A program year for funds available under WIOA sec.
128(b)(2) is available from April 1 of the fiscal year in which the
appropriation is made and ends on June 30 of the following year.
Therefore, when grantees are calculating the minimum funding percentage
they must do so on a program year basis.
(c) When a new local area is designated under sec. 106 of WIOA the
State must develop a methodology to apply the minimum funding provision
specified in paragraph (a) of this section to local area allocations of
WIOA youth, adult, and dislocated worker funds.
(d) Amounts necessary to increase allocations to local areas to
comply with paragraph (a) of this section must be obtained by ratably
reducing the allocations to be made to other local areas.
[[Page 56414]]
(e) If the amounts of WIOA funds appropriated in a fiscal year are
not sufficient to provide the amount specified in paragraph (a) of this
section to all local areas, the amounts allocated to each local area
must be ratably reduced.
Sec. 683.130 Does a Local Workforce Development Board have the
authority to transfer funds between the adult employment and training
activities allocation and the dislocated worker employment and training
activities allocation?
(a) A Local WDB may transfer up to 100 percent of a program year
allocation for adult employment and training activities, and up to 100
percent of a program year allocation for dislocated worker employment
and training activities between the two programs.
(b) Local WDBs may not transfer funds to or from the youth program.
(c) Before making any transfer described in paragraph (a) of this
section, a Local WDB must obtain the Governor's written approval. The
Governor's written approval must be based on criteria or factors that
the Governor must establish in a written policy, such as the State
Unified or Combined Plan or other written policy.
Sec. 683.135 What reallotment procedures does the Secretary use?
(a) The Secretary determines, during the second quarter of each
program year, whether a State has obligated its required level of at
least 80 percent of the funds allotted under secs. 127 and 132 of WIOA
for programs serving youth, adults, and dislocated workers for the
prior program year, as separately determined for each of the three
funding streams. The amount to be recaptured from each State for
reallotment, if any, is based on State obligations of the funds
allotted to each State under secs. 127 and 132 of WIOA for programs
serving youth, adults, or dislocated workers, less any amount reserved
(up to five percent at the State level) for the costs of
administration. The recapture amount, if any, is separately determined
for each funding stream.
(b) The Secretary reallots youth, adult and dislocated worker funds
among eligible States in accordance with the provisions of secs. 127(c)
and 132(c) of WIOA, respectively. To be eligible to receive a
reallotment of youth, adult, or dislocated worker funds under the
reallotment procedures, a State must have obligated at least 80 percent
of the prior program year's allotment, less any amount reserved for the
costs of administration at the State level of youth, adult, or
dislocated worker funds. A State's eligibility to receive a reallotment
is separately determined for each funding stream.
(c) The term ``obligation'' is defined at 2 CFR 200.71.
(d) Obligations must be reported on the required Department of
Labor (the Department) financial form, such as the ETA-9130 form,
unless otherwise noted in guidance.
Sec. 683.140 What reallocation procedures must the Governors use?
(a) The Governor, after consultation with the State WDB, may
reallocate youth, adult, and dislocated worker funds among local areas
within the State in accordance with the provisions of secs. 128(c) and
133(c) of WIOA. If the Governor chooses to reallocate funds, the
provisions in paragraphs (b) and (c) of this section apply.
(b) For the youth, adult and dislocated worker programs, the amount
to be recaptured from each local area for purposes of reallocation, if
any, must be based on the amount by which the prior year's unobligated
balance of allocated funds exceeds 20 percent of that year's allocation
for the program, less any amount reserved (up to 10 percent) for the
costs of administration. Unobligated balances must be determined based
on allocations adjusted for any allowable transfer between funding
streams. The amount to be recaptured, if any, must be separately
determined for each funding stream. The term ``obligation'' is defined
at 2 CFR 200.71.
(c) To be eligible to receive youth, adult or dislocated worker
funds under the reallocation procedures, a local area must have
obligated at least 80 percent of the prior program year's allocation,
less any amount reserved (up to 10 percent) for the costs of
administration, for youth, adult, or dislocated worker activities, as
separately determined. A local area's eligibility to receive a
reallocation must be separately determined for each funding stream.
Sec. 683.145 What merit review and risk assessment does the
Department conduct for Federal financial assistance awards made under
Workforce Innovation and Opportunity Act title I, subtitle D?
(a) For competitive awards, the Department will design and execute
a merit review process for applications as prescribed under 2 CFR
200.204 when issuing Federal financial assistance awards made under
WIOA title I, subtitle D. This process will be described in the
applicable funding opportunity announcement.
(b) Prior to issuing a Federal financial assistance award under
WIOA title I, subtitle D, the Department will conduct a risk assessment
to assess the organization's overall ability to administer Federal
funds as required under 2 CFR 200.205. As part of this assessment, the
Department may consider any information that has come to its attention
and will consider the organization's history with regard to the
management of other grants, including Department of Labor grants.
(c) In evaluating risks posed by applicants, the Department will
consider the following:
(1) Financial stability;
(2) Quality of management systems and ability to meet the
management standards prescribed in this part;
(3) History of performance. The applicant's record in managing
Federal awards, if it is a prior recipient of Federal awards, including
timeliness of compliance with applicable reporting requirements,
conformance to the terms and conditions of previous Federal awards, and
if applicable, the extent to which any previously awarded amounts will
be expended prior to future awards;
(4) Reports and findings from audits; and
(5) The applicant's ability to implement effectively statutory,
regulatory, or other requirements imposed on non-Federal entities.
Sec. 683.150 What closeout requirements apply to grants funded with
Workforce Innovation and Opportunity Act title I and Wagner-Peyser Act
funds?
(a) After the expiration of the period of performance, the
Department will closeout the Federal award when it determines that all
applicable administrative actions and all required work of the Federal
award have been completed by the grant recipient. This section
specifies the actions the grant recipient and the Department must take
to complete this process.
(1) The grant recipient must submit, no later than 90 calendar days
after the end date of the period of performance, all financial,
performance, and other reports as required by the terms and conditions
of the Federal award.
(2) The Department may approve extensions when requested by the
grant recipient.
(b) Unless otherwise noted in the terms and conditions of the award
or an extension, grant recipients must comply with 2 CFR 200.343(b) and
2900.15 in regards to closeout.
(c) The Department must make prompt payments to the grant recipient
for allowable reimbursable costs under the Federal award being closed
out.
(d) The grant recipient must promptly refund any balances of
unobligated cash that the Department paid in advance or paid and that
is not authorized to be retained by the grant recipient. See
[[Page 56415]]
Office of Management and Budget Circular A-129, 2 CFR 200.345, and 2
CFR part 2900 for requirements regarding unreturned amounts that become
delinquent debts.
(e) Consistent with the terms and conditions of the Federal award,
the Department must make a settlement for any upward or downward
adjustments to the Federal share of costs after closeout reports are
received.
(f) The grant recipient must account for any real and personal
property acquired with Federal funds or received from the Federal
government in accordance with 2 CFR 200.310 through 200.316, and
200.329.
(g) The Department should complete all closeout actions for Federal
awards no later than 1 year after receipt and acceptance of all
required final reports.
(h) The closeout of an award does not affect any of the following:
(1) The right of the Department to disallow costs and recover funds
on the basis of a later audit or other review.
(2) The obligation of the grant recipient to return any funds due
as a result of later refunds, corrections, or other transactions.
(3) Audit requirements as described in 2 CFR part 200, subpart F.
(4) Property management requirements in 2 CFR 200.310 through
200.316.
(5) Records retention as required in 2 CFR 200.333 through 200.337.
(i) After closeout of an award, a relationship created under the
award may be modified or ended in whole or in part with the consent of
the Department and the grant recipient, provided the responsibilities
of the grant recipient referred to in 2 CFR 200.344(a) and 200.310
through 200.316 are considered, and provisions are made for continuing
responsibilities of the grant recipient, as appropriate.
(j) Grant recipients that award WIOA funds to subrecipients must
institute a timely closeout process after the end of performance to
ensure a timely closeout in accordance with 2 CFR 200.343 and 200.344.
Subpart B--Administrative Rules, Costs, and Limitations
Sec. 683.200 What general fiscal and administrative rules apply to
the use of Workforce Innovation and Opportunity Act title I and Wagner-
Peyser Act funds?
(a) Uniform Guidance. Recipients and subrecipients of a Federal
award under title I of WIOA and the Wagner-Peyser Act must follow the
Uniform Guidance at 2 CFR parts 200, 215, 225, 230, including any
exceptions identified by the Department at 2 CFR part 2900.
(1) Commercial organizations, for-profit entities, and foreign
entities that are recipients and subrecipients of a Federal award must
adhere to 2 CFR part 200, including any exceptions identified by the
Department under 2 CFR part 2900;
(2) Commercial organizations, for-profit entities, and foreign
entities that are contractors or subcontractors must adhere to the
Federal Acquisition Regulations (FAR), including 48 CFR part 31.
(b) Allowable costs and cost principles. (1) Recipients and
subrecipients of a Federal award under title I of WIOA and the Wagner-
Peyser Act must follow the cost principles at subpart E and appendices
III through IX of 2 CFR part 200, including any exceptions identified
by the Department at 2 CFR part 2900.
(2) Unless specified in the grant agreement, for those items
requiring prior approval in the Uniform Guidance (e.g., selected items
of cost, budget realignment), the authority to grant or deny approval
is delegated to the Governor for programs funded under sec. 127 or 132
of WIOA or under the Wagner-Peyser Act.
(3) Costs of workforce councils, advisory councils, Native American
Employment and Training Councils, and Local WDB committees established
under title I of WIOA are allowable.
(c) Uniform administrative requirements. (1) Except as provided in
paragraphs (c)(3) through (6) of this section, all recipients and
subrecipients of a Federal award under title I of WIOA and under the
Wagner-Peyser Act must follow 2 CFR part 200, including any exceptions
identified by the Department at 2 CFR part 2900.
(2) Unless otherwise specified in the grant agreement, expenditures
must be reported on accrual basis.
(3) In accordance with the requirements at 2 CFR 200.400(g),
subrecipients may not earn or keep any profit resulting from Federal
financial assistance, unless expressly authorized by the terms and
conditions of the Federal award.
(4) In addition to the requirements at 2 CFR 200.317 through
200.326 (as appropriate), all procurement contracts between Local WDBs
and units of State or local governments must be conducted only on a
cost reimbursement basis.
(5) In addition to the requirements at 2 CFR 200.318, which address
codes of conduct and conflict of interest the following applies:
(i) A State WDB member, Local WDB member, or WDB standing committee
member must neither cast a vote on, nor participate in any decision-
making capacity, on the provision of services by such member (or any
organization which that member directly represents), nor on any matter
which would provide any direct financial benefit to that member or that
member's immediate family.
(ii) Neither membership on the State WDB, the Local WDB, or a WDB
standing committee, nor the receipt of WIOA funds to provide training
and related services, by itself, violates these conflict of interest
provisions.
(iii) In accordance with the requirements at 2 CFR 200.112,
recipients of Federal awards must disclose in writing any potential
conflict of interest to the Department. Subrecipients must disclose in
writing any potential conflict of interest to the recipient of grant
funds.
(6) The addition method, described at 2 CFR 200.307, must be used
for all program income earned under title I of WIOA and Wagner-Peyser
Act grants. When the cost of generating program income has been charged
to the program, the gross amount earned must be added to the program in
which it was earned. However, the cost of generating program income
must be subtracted from the amount earned to establish the net amount
of program income available for use under the grants when these costs
have not been charged to the program.
(7) Any excess of revenue over costs incurred for services provided
by a governmental or non-profit entity must be included in program
income.
(8) Interest income earned on funds received under title I of WIOA
and the Wagner-Peyser Act must be included in program income.
(9) On a fee-for-service basis, employers may use local area
services, facilities, or equipment funded under title I of WIOA to
provide employment and training activities to incumbent workers:
(i) When the services, facilities, or equipment are not being used
by eligible participants;
(ii) If their use does not affect the ability of eligible
participants to use the services, facilities, or equipment; and
(iii) If the income generated from such fees is used to carry out
programs authorized under this title.
(d) Government-wide debarment and suspension, and government-wide
drug-free workplace requirements. All WIOA title I and Wagner-Peyser
Act grant recipients and subrecipients must comply with the government-
wide requirements for debarment and suspension, and the government-wide
requirements for a drug-free workplace in accordance with the Drug-Free
[[Page 56416]]
Workplace Act of 1988, 41 U.S.C. 8103 et seq., and 2 CFR part 182.
(e) Restrictions on lobbying. All WIOA title I and Wagner-Peyer
grant recipients and subrecipients must comply with the restrictions on
lobbying specified in WIOA sec. 195 and codified in the Department
regulations at 29 CFR part 93.
(f) Buy-American. As stated in sec. 502 of WIOA, all funds
authorized in title I of WIOA and the Wagner-Peyser Act must be
expended in compliance with secs. 8301 through 8303 of the Buy American
Act (41 U.S.C. 8301-8305).
(g) Nepotism. (1) No individual may be placed in a WIOA employment
activity if a member of that person's immediate family is directly
supervised by or directly supervises that individual.
(2) To the extent that an applicable State or local legal
requirement regarding nepotism is more restrictive than this provision,
such State or local requirement must be followed.
(h) Mandatory disclosures. All WIOA title I and Wagner-Peyser Act
recipients of Federal awards must disclose as required at 2 CFR
200.113, in a timely manner, in writing to the Federal awarding agency
or pass-through entity all violations of Federal criminal law involving
fraud, bribery, or gratuity violations potentially affecting the
Federal award. Failure to make required disclosures can result in any
of the remedies described in 2 CFR 200.338 (Remedies for
noncompliance), including suspension or debarment.
Sec. 683.205 What administrative cost limitations apply to Workforce
Innovation and Opportunity Act title I grants?
(a) State formula grants. (1) As part of the 15 percent that a
State may reserve for statewide activities, the State may spend up to 5
percent of the amount allotted under secs. 127(b)(1), 132(b)(1), and
132(b)(2) of WIOA for the administrative costs of statewide activities.
(2) Local area expenditures for administrative purposes under WIOA
formula grants are limited to no more than 10 percent of the amount
allocated to the local area under secs. 128(b) and 133(b) of WIOA.
(3) The 5 percent reserved for statewide administrative costs and
the 10 percent reserved for local administrative costs may be used for
administrative costs for any of the statewide youth workforce
investment activities or statewide employment and training activities
under secs. 127(b)(1), 128(b), 132(b), and 133(b) of WIOA.
(4) In a one-stop environment, administrative costs borne by other
sources of funds, such as the Wagner-Peyser Act, are not included in
the administrative cost limit calculation. Each program's
administrative activities are chargeable to its own grant and subject
to its own administrative cost limitations.
(5) Costs of negotiating a MOU or infrastructure funding agreement
under title I of WIOA are excluded from the administrative cost
limitations.
(b) Discretionary grants. Limits on administrative costs, if any,
for programs operated under subtitle D of title I of WIOA will be
identified in the grant or cooperative agreement.
Sec. 683.210 What audit requirements apply to the use of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser Act funds?
All recipients of WIOA title I and Wagner-Peyser Act funds that
expend more than the minimum amounts specified in 2 CFR part 200,
subpart F, in Federal awards during their fiscal year must have a
program specific or single audit conducted in accordance with 2 CFR
part 200, subpart F.
(a) Commercial or for-profit. Grant recipients and subrecipients of
title I and Wagner-Peyser Act funds that are commercial or for-profit
entities must adhere to the requirements contained in 2 CFR part 200,
subpart F.
(b) Subrecipients and contractors. An auditee may simultaneously be
a recipient, a subrecipient, and a contractor depending on the
substance of its agreements with Federal awarding agencies and pass-
through entities. Federal awards expended as a recipient or
subrecipient are subject to audit requirements under 2 CFR part 200,
subpart F.
(c) Contractors. The payments received for goods or services
provided as a contractor are not Federal awards. Subrecipient and
contractor determinations made under 2 CFR 200.330 must be considered
in determining whether payments constitute a Federal award or a payment
for goods and services provided as a contractor.
Sec. 683.215 What Workforce Innovation and Opportunity Act title I
functions and activities constitute the costs of administration subject
to the administrative cost limitation?
(a) The costs of administration are expenditures incurred by State
and Local WDBs, Regions, direct grant recipients, including State grant
recipients under subtitle B of title I of WIOA, and recipients of
awards under subtitle D of title I, as well as local grant recipients,
local grant subrecipients, local fiscal agents and one-stop operators
that are associated with those specific functions identified in
paragraph (b) of this section and which are not related to the direct
provision of workforce investment services, including services to
participants and employers. These costs can be both personnel and non-
personnel and both direct and indirect.
(b) The costs of administration are the costs associated with
performing the following functions:
(1) Performing the following overall general administrative
functions and coordination of those functions under title I of WIOA:
(i) Accounting, budgeting, financial and cash management functions;
(ii) Procurement and purchasing functions;
(iii) Property management functions;
(iv) Personnel management functions;
(v) Payroll functions;
(vi) Coordinating the resolution of findings arising from audits,
reviews, investigations and incident reports;
(vii) Audit functions;
(viii) General legal services functions;
(ix) Developing systems and procedures, including information
systems, required for these administrative functions; and
(x) Fiscal agent responsibilities;
(2) Performing oversight and monitoring responsibilities related to
WIOA administrative functions;
(3) Costs of goods and services required for administrative
functions of the program, including goods and services such as rental
or purchase of equipment, utilities, office supplies, postage, and
rental and maintenance of office space;
(4) Travel costs incurred for official business in carrying out
administrative activities; and
(5) Costs of information systems related to administrative
functions (for example, personnel, procurement, purchasing, property
management, accounting, and payroll systems) including the purchase,
systems development and operating costs of such systems.
(c)(1) Awards to subrecipients or contractors that are solely for
the performance of administrative functions are classified as
administrative costs.
(2) Personnel and related non-personnel costs of staff that perform
both administrative functions specified in paragraph (b) of this
section and programmatic services or activities must be allocated as
administrative or program costs to the benefitting cost objectives/
categories.
(3) Specific costs charged to an overhead or indirect cost pool
that can be identified directly as a program cost
[[Page 56417]]
are to be charged as a program cost. Documentation of such charges must
be maintained.
(4) Except as provided at paragraph (c)(1) of this section, all
costs incurred for functions and activities of subrecipients, other
than those subrecipients listed in paragraph (a) of this section, and
contractors are program costs.
(5) Continuous improvement activities are charged to administration
or program category based on the purpose or nature of the activity to
be improved. Documentation of such charges must be maintained.
(6) Costs of the following information systems including the
purchase, systems development, and operational costs (e.g., data entry)
are charged to the program category:
(i) Tracking or monitoring of participant and performance
information;
(ii) Employment statistics information, including job listing
information, job skills information, and demand occupation information;
(iii) Performance and program cost information on eligible training
providers, youth activities, and appropriate education activities;
(iv) Local area performance information; and
(v) Information relating to supportive services and unemployment
insurance claims for program participants.
(d) Where possible, entities identified in paragraph (a) of this
section must make efforts to streamline the services in paragraphs
(b)(1) through (5) of this section to reduce administrative costs by
minimizing duplication and effectively using information technology to
improve services.
Sec. 683.220 What are the internal controls requirements for
recipients and subrecipients of Workforce Innovation and Opportunity
Act title I and Wagner-Peyser Act funds?
(a) Recipients and subrecipients of WIOA title I and Wagner-Peyser
Act funds must have an internal control structure and written policies
in place that provide safeguards to protect personally identifiable
information, records, contracts, grant funds, equipment, sensitive
information, tangible items, and other information that is readily or
easily exchanged in the open market, or that the Department or the
recipient or subrecipient considers to be sensitive, consistent with
applicable Federal, State and local privacy and confidentiality laws.
Internal controls also must include reasonable assurance that the
entity is:
(1) Managing the award in compliance with Federal statutes,
regulations, and the terms and conditions of the Federal award;
(2) Complying with Federal statutes, regulations, and the terms and
conditions of the Federal awards;
(3) Evaluating and monitoring the recipient's and subrecipient's
compliance with WIOA, regulations and the terms and conditions of
Federal awards; and
(4) Taking prompt action when instances of noncompliance are
identified.
(b) Internal controls should be in compliance with the guidance in
``Standards for Internal Control in the Federal Government'' issued by
the Comptroller General of the United States and the ``Internal Control
Integrated Framework'', issued by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO). See 2 CFR 200.303.
Sec. 683.225 What requirements relate to the enforcement of the
Military Selective Service Act?
The requirements relating to the enforcement of the Military
Selective Service Act are found at WIOA sec. 189(h).
Sec. 683.230 Are there special rules that apply to veterans when
income is a factor in eligibility determinations?
Yes, under 38 U.S.C. 4213, when past income is an eligibility
determinant for Federal employment or training programs, any amounts
received as military pay or allowances by any person who served on
active duty, and certain other specified benefits must be disregarded
for the veteran and for other individuals for whom those amounts would
normally be applied in making an eligibility determination. This
applies when determining if a person is a ``low-income individual'' for
eligibility purposes (for example, in the WIOA youth, or NFJP
programs). Also, it applies when income is used as a factor when a
local area provides priority of service for ``low-income individuals''
with title I WIOA funds (see Sec. Sec. 680.600 and 680.650 of this
chapter). A veteran must still meet each program's eligibility criteria
to receive services under the respective employment and training
program.
Sec. 683.235 May Workforce Innovation and Opportunity Act title I
funds be spent for construction?
WIOA title I funds must not be spent on construction, purchase of
facilities or buildings, or other capital expenditures for improvements
to land or buildings, except with the prior written approval of the
Secretary.
Sec. 683.240 What are the instructions for using real property with
Federal equity?
(a) SESA properties. Federal equity acquired in real property
through grants to States awarded under title III of the Social Security
Act or the Wagner-Peyser Act, including State Employment Security
Agency (SESA) real property, is transferred to the States that used the
grant to acquire such equity.
(1) The portion of any real property that is attributable to the
Federal equity transferred under this section must be used to carry out
activities authorized under WIOA, title III of the Social Security Act
(Unemployment Compensation program), or the Wagner-Peyser Act.
(2) When such real property is no longer needed for the activities
described in paragraph (a)(1) of this section, the States must request
disposition instructions from the Grant Officer prior to disposition or
sale of the property. The portion of the proceeds from the disposition
of the real property that is attributable to the Federal equity
transferred under this section must be used to carry out activities
authorized under WIOA, title III of the Social Security Act, or the
Wagner-Peyser Act.
(3) States must not use funds awarded under WIOA, title III of the
Social Security Act, or the Wagner-Peyser Act to amortize the costs of
real property that is purchased by any State on or after February 15,
2007, the date of enactment of the Revised Continuing Appropriations
Resolution, 2007.
(4) Properties occupied by the Wagner-Peyser Act Employment Service
must be colocated with one-stop centers.
(b) Reed Act-funded properties. Properties with Reed Act equity may
be used for the one-stop service delivery system to the extent that the
proportionate share of Reed Act equity is less than or equal to the
proportionate share of occupancy by the Unemployment Compensation and
Wagner-Peyser Act programs in such properties. When such real property
is no longer needed for authorized purposes, the State must request
disposition instructions from the Grant Officer prior to disposition or
sale. The portion of the proceeds from the disposition or sale of the
real property that is attributable to the Reed Act equity must be
returned to the State's account in the Unemployment Trust Fund (UTF)
and used in accordance with Department-issued guidance.
(c) Job Training Partnership Act and Workforce Investment Act-
funded properties. Real property that was purchased with WIA funds or
that was transferred to WIA now is transferred to
[[Page 56418]]
the WIOA title I programs and must be used for WIOA purposes. When such
real property is no longer needed for the activities of WIOA, the
recipient or subrecipient must seek instructions from the Grant Officer
or State (in the case of a subrecipient) prior to disposition or sale.
Sec. 683.245 Are employment generating activities, or similar
activities, allowable under title I of the Workforce Innovation and
Opportunity Act?
(a) Under sec. 181(e) of WIOA, title I funds must not be spent on
employment generating activities, investment in revolving loan funds,
capitalization of businesses, investment in contract bidding resource
centers, economic development activities, or similar activities, unless
they are directly related to training for eligible individuals. For
purposes of this prohibition, employer outreach and job development
activities are directly related to training for eligible individuals.
(b) These employer outreach and job development activities may
include:
(1) Contacts with potential employers for the purpose of placement
of WIOA participants;
(2) Participation in business associations (such as chambers of
commerce); joint labor management committees, labor associations, and
resource centers;
(3) WIOA staff participation on economic development boards and
commissions, and work with economic development agencies to:
(i) Provide information about WIOA programs;
(ii) Coordinate activities in a region or local area to promote
entrepreneurial training and microenterprise services;
(iii) Assist in making informed decisions about community job
training needs; and
(iv) Promote the use of first source hiring agreements and
enterprise zone vouchering services;
(4) Active participation in local business resource centers
(incubators) to provide technical assistance to small businesses and
new businesses to reduce the rate of business failure;
(5) Subscriptions to relevant publications;
(6) General dissemination of information on WIOA programs and
activities;
(7) The conduct of labor market surveys;
(8) The development of on-the-job training opportunities; and
(9) Other allowable WIOA activities in the private sector.
Sec. 683.250 What other activities are prohibited under title I of
the Workforce Innovation and Opportunity Act?
(a) WIOA title I funds must not be spent on:
(1) The wages of incumbent employees during their participation in
economic development activities provided through a statewide workforce
development system.
(2) Public service employment, except as specifically authorized
under title I of WIOA.
(3) Expenses prohibited under any other Federal, State or local law
or regulation.
(4) Subawards or contracts with parties that are debarred,
suspended, or otherwise excluded from or ineligible for participation
in Federal programs or activities.
(5) Contracts with persons falsely labeling products made in
America.
(b) WIOA formula funds available to States and local areas under
title I, subtitle B must not be used for foreign travel.
Sec. 683.255 What are the limitations related to religious activities
of title I of the Workforce Innovation and Opportunity Act?
(a) Section 188(a)(3) of WIOA prohibits the use of funds to employ
participants to carry out the construction, operation, or maintenance
of any part of any facility used for sectarian instruction or as a
place for religious worship with the exception of maintenance of
facilities that are not primarily used for instruction or worship and
are operated by organizations providing services to WIOA participants.
(b) 29 CFR part 2, subpart D, governs the circumstances under which
Department support, including WIOA title I financial assistance, may be
used to employ or train participants in religious activities. Under
that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. That subpart also contains
requirements related to equal treatment in Department of Labor programs
for religious organizations, and to protecting the religious liberty of
Department of Labor social service providers and beneficiaries. (29 CFR
part 2, subpart D--Equal Treatment in Department of Labor Programs for
Religious Organizations, Protection of Religious Liberty of Department
of Labor Social Service Providers and Beneficiaries).
Sec. 683.260 What prohibitions apply to the use of Workforce
Innovation and Opportunity Act title I funds to encourage business
relocation?
(a) Prohibition. Section 181(d) of WIOA states that funds must not
be used or proposed to be used for:
(1) The encouragement or inducement of a business, or part of a
business, to relocate from any location in the United States, if the
relocation results in any employee losing his or her job at the
original location;
(2) Customized training, skill training, on-the-job training,
incumbent worker training, transitional employment, or company specific
assessments of job applicants for or employees of any business or part
of a business that has relocated from any location in the United
States, until the company has operated at that location for 120 days,
if the relocation has resulted in any employee losing his or her jobs
at the original location.
(b) Pre-award review. To verify that a business establishment which
is new or expanding is not, in fact, relocating employment from another
area, standardized pre-award review criteria developed by the State
must be completed and documented jointly by the local area and the
business establishment as a prerequisite to WIOA assistance.
(1) The review must include names under which the establishment
does business, including predecessors and successors in interest; the
name, title, and address of the company official certifying the
information, and whether WIOA assistance is sought in connection with
past or impending job losses at other facilities, including a review of
whether WARN notices relating to the employer have been filed.
(2) The review may include consultations with labor organizations
and others in the affected local area(s).
Sec. 683.265 What procedures and sanctions apply to violations of
this part?
(a) The Grant Officer will promptly review and take appropriate
action on alleged violations of the provisions relating to:
(1) Construction (Sec. 683.235);
(2) Employment generating activities (Sec. 683.245);
(3) Other prohibited activities (Sec. 683.250);
(4) The limitation related to religious activities (Sec. 683.255);
and
(5) The use of WIOA title I funds to encourage business relocation
(Sec. 683.260).
(b) Procedures for the investigation and resolution of the
violations are provided under the Grant Officer's resolution process at
Sec. 683.440.
[[Page 56419]]
(c) Sanctions and remedies are provided for under sec. 184(c) of
WIOA for violations of the provisions relating to:
(1) Construction (Sec. 683.235);
(2) Employment generating activities (Sec. 683.245);
(3) Other prohibited activities (Sec. 683.250); and
(4) The limitation related to religious activities (Sec.
683.255(b)).
(d) Sanctions and remedies are provided for in sec. 181(d)(3) of
WIOA for violations of Sec. 683.260, which addresses business
relocation.
(e) Violations of Sec. 683.255(a) will be handled in accordance
with the Department's nondiscrimination regulations implementing sec.
188 of WIOA, codified at 29 CFR part 38.
Sec. 683.270 What safeguards are there to ensure that participants in
Workforce Innovation and Opportunity Act employment and training
activities do not displace other employees?
(a) A participant in a program or activity authorized under title I
of WIOA must not displace (including a partial displacement, such as a
reduction in the hours of non-overtime work, wages, or employment
benefits) any currently employed employee (as of the date of the
participation).
(b) A program or activity authorized under title I of WIOA must not
impair existing contracts for services or collective bargaining
agreements. When a program or activity authorized under title I of WIOA
would be inconsistent with a collective bargaining agreement, the
appropriate labor organization and employer must provide written
concurrence before the program or activity begins.
(c) A participant in a program or activity under title I of WIOA
may not be employed in or assigned to a job if:
(1) Any other individual is on layoff from the same or any
substantially equivalent job;
(2) The employer has terminated the employment of any regular,
unsubsidized employee or otherwise caused an involuntary reduction in
its workforce with the intention of filling the vacancy so created with
the WIOA participant; or
(3) The job is created in a promotional line that infringes in any
way on the promotional opportunities of currently employed workers as
of the date of the participation.
(d) Regular employees and program participants alleging
displacement may file a complaint under the applicable grievance
procedures found at Sec. 683.600.
Sec. 683.275 What wage and labor standards apply to participants in
activities under title I of the Workforce Innovation and Opportunity
Act?
(a) Individuals in on-the-job training or individuals employed in
activities under title I of WIOA must be compensated at the same rates,
including periodic increases, as trainees or employees who are
similarly situated in similar occupations by the same employer and who
have similar training, experience, and skills. Such rates must be in
accordance with applicable law, but may not be less than the higher of
the rate specified in sec. 6(a)(1) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206(a)(1)) or the applicable State or local minimum
wage law.
(b) The reference in paragraph (a) of this section to sec. 6(a)(1)
of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) is not
applicable for individuals in territorial jurisdictions in which sec.
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))
does not apply.
(c) Individuals in on-the-job training or individuals employed in
programs and activities under title I of WIOA must be provided benefits
and working conditions at the same level and to the same extent as
other trainees or employees working a similar length of time and doing
the same type of work.
(d) Allowances, earnings, and payments to individuals participating
in programs under title I of WIOA are not considered as income for
purposes of determining eligibility for and the amount of income
transfer and in-kind aid furnished under any Federal or Federally-
assisted program based on need, other than as provided under the Social
Security Act (42 U.S.C. 301 et seq.).
Sec. 683.280 What health and safety standards apply to the working
conditions of participants in activities under title I of the Workforce
Innovation and Opportunity Act?
(a) Health and safety standards established under Federal and State
law otherwise applicable to working conditions of employees are equally
applicable to working conditions of participants engaged in programs
and activities under title I of WIOA.
(b)(1) To the extent that a State workers' compensation law
applies, workers' compensation must be provided to participants in
programs and activities under title I of WIOA on the same basis as the
compensation is provided to other individuals in the State in similar
employment.
(2) If a State workers' compensation law applies to a participant
in work experience, workers' compensation benefits must be available
for injuries suffered by the participant in such work experience. If a
State workers' compensation law does not apply to a participant in work
experience, insurance coverage must be secured for injuries suffered by
the participant in the course of such work experience.
Sec. 683.285 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
(a)(1) Recipients, as defined in 29 CFR 37.4, must comply with the
nondiscrimination and equal opportunity provisions of WIOA sec. 188 and
its implementing regulations, codified at 29 CFR part 38. Under that
definition, the term ``recipients'' includes State and Local WDBs, one-
stop operators, service providers, Job Corps contractors, and
subrecipients, as well as other types of individuals and entities.
(2) Nondiscrimination and equal opportunity requirements and
procedures, including complaint processing and compliance reviews, are
governed by the regulations implementing sec. 188 of WIOA, codified at
29 CFR part 38, and are administered and enforced by the Department of
Labor Civil Rights Center.
(3) Financial assistance provided under title I of WIOA may be used
to meet a recipient's obligation to provide physical and programmatic
accessibility and reasonable accommodation/modification in regard to
the WIOA program, as required by sec. 504 of the Rehabilitation Act of
1973, as amended; the Americans with Disabilities Act of 1990, as
amended; sec. 188 of WIOA; and the regulations implementing these
statutory provisions.
(4) No person may discriminate against an individual who is a
participant in a program or activity that receives funds under title I
of WIOA, with respect to the terms and conditions affecting, or rights
provided to, the individual, solely because of the status of the
individual as a participant.
(5) Participation in programs and activities or receiving funds
under title I of WIOA must be available to citizens and nationals of
the United States, lawfully admitted permanent resident aliens,
refugees, asylees, and parolees, and other immigrants authorized by the
Secretary of Homeland Security or the Secretary's designee to work in
the United States.
(b)(1) Title 29 CFR part 2, subpart D, governs the circumstances
under which recipients may use Department support,
[[Page 56420]]
including WIOA title I and Wagner-Peyser Act financial assistance, to
employ or train participants in religious activities. As explained in
that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. As explained in that subpart,
assistance provided through an Individual Training Account is generally
considered indirect, and other mechanisms also may be considered
indirect. See also Sec. 683.255 and 29 CFR 37.6(f)(1).
(2) Title 29 CFR part 2, subpart D, also contains requirements
related to equal treatment of religious organizations in Department of
Labor programs, and to protection of religious liberty for Department
of Labor social service providers and beneficiaries. Limitations on the
employment of participants under WIOA title I to carry out the
construction, operation, or maintenance of any part of any facility
used or to be used for religious instruction or as a place of religious
worship are described at 29 CFR 37.6(f)(2). See also WIOA sec.
188(a)(3).
Sec. 683.290 Are there salary and bonus restrictions in place for the
use of title I of Workforce Innovation and Opportunity Act and Wagner-
Peyser Act funds?
(a) No funds available under title I of WIOA or the Wagner-Peyser
Act may be used by a recipient or subrecipient of such funds to pay the
salary and bonuses of an individual, either as direct costs or indirect
costs, at a rate in excess of the annual rate of basic pay prescribed
for level II of the Executive Schedule under 5 U.S.C. 5313, which can
be found at https://www.opm.gov/.
(b) In instances where funds awarded under title I of WIOA or the
Wagner-Peyser Act pay only a portion of the salary or bonus, the WIOA
title I or Wagner-Peyser Act funds may only be charged for the share of
the employee's salary or bonus attributable to the work performed on
the WIOA title I or Wagner-Peyser Act grant. That portion cannot exceed
the proportional Executive level II rate. The restriction applies to
the sum of salaries and bonuses charged as either direct costs or
indirect costs under title I of WIOA and the Wagner-Peyser Act.
(c) The limitation described in paragraph (a) of this section will
not apply to contractors (as defined in 2 CFR 200.23) providing goods
and services. In accordance with 2 CFR 200.330, characteristics
indicative of contractor are the following:
(1) Provides the goods and services within normal business
operations;
(2) Provides similar goods or services to many different
purchasers;
(3) Normally operates in a competitive environment;
(4) Provides goods or services that are ancillary to the operation
of the Federal program; and
(5) Is not subject to compliance requirements of the Federal
program as a result of the agreement, though similar requirements may
apply for other reasons.
(d) If a State is a recipient of such funds, the State may
establish a lower limit than is provided in paragraph (a) of this
section for salaries and bonuses of those receiving salaries and
bonuses from a subrecipient of such funds, taking into account factors
including the relative cost of living in the State, the compensation
levels for comparable State or local government employees, and the size
of the organizations that administer the Federal programs involved.
(e) When an individual is working for the same recipient or
subrecipient in multiple offices that are funded by title I of WIOA or
the Wagner-Peyser Act, the recipient or subrecipient must ensure that
the sum of the individual's salary and bonus does not exceed the
prescribed limit in paragraph (a) of this section.
Sec. 683.295 Is earning of profit allowed under the Workforce
Innovation and Opportunity Act?
(a)(1) Under secs. 121(d), 122(a) and 134(b) of WIOA, for-profit
entities are eligible to be one-stop operators, service providers, and
eligible training providers.
(2) Where for-profit entities are one-stop operators, service
providers, and eligible training providers, and those entities are
recipients of Federal financial assistance, the recipient or
subrecipient and the for-profit entity must follow 2 CFR 200.323.
(b) For programs authorized by other sections of WIOA, 2 CFR
200.400(g) prohibits earning and keeping of profit in Federal financial
assistance unless expressly authorized by the terms and conditions of
the Federal award.
(c) Income earned by a public or private nonprofit entity may be
retained by such entity only if such income is used to continue to
carry out the program.
Subpart C--Reporting Requirements
Sec. 683.300 What are the reporting requirements for programs funded
under the Workforce Innovation and Opportunity Act?
(a) General. All States and other direct grant recipients must
report financial, participant, and other performance data in accordance
with instructions issued by the Secretary. Reports, records, plans, or
any other data required to be submitted or made available must, to the
extent practicable, be submitted or made available through electronic
means. Reports will not be required to be submitted more frequently
than quarterly within a time period specified in the reporting
instructions.
(b) Subrecipient reporting. (1) For the annual eligible training
provider performance reports described in Sec. 677.230 of this chapter
and local area performance reports described in Sec. 677.205 of this
chapter, the State must require the template developed under WIOA sec.
116(d)(1) to be used.
(2) For financial reports and performance reports other than those
described in paragraph (b)(1) of this section, a State or other grant
recipient may impose different forms or formats, shorter due dates, and
more frequent reporting requirements on subrecipients.
(3) If a State intends to impose different reporting requirements
on subrecipients, it must describe those reporting requirements in its
State WIOA Plan.
(c) Financial reports. (1) Each grant recipient must submit
financial reports on a quarterly basis.
(2) Local WDBs will submit quarterly financial reports to the
Governor.
(3) Each State will submit to the Secretary a summary of the
reports submitted to the Governor pursuant to paragraph (c)(2) of this
section.
(4) Reports must include cash on hand, obligations, expenditures,
any income or profits earned, including such income or profits earned
by subrecipients, indirect costs, recipient share of expenditures and
any expenditures incurred (such as stand-in costs) by the recipient
that are otherwise allowable except for funding limitations.
(5) Reported expenditures, matching funds, and program income,
including any profits earned, must be reported on the accrual basis of
accounting and cumulative by fiscal year of appropriation. If the
recipient's accounting records are not normally kept on the accrual
basis of accounting, the recipient must develop accrual
[[Page 56421]]
information through an analysis of the documentation on hand.
(d) Performance reports. (1) States must submit an annual
performance report for each of the core workforce programs administered
under WIOA as required by sec. 116(d) of WIOA and in accordance with
part 677, subpart A, of this chapter.
(2) For all programs authorized under subtitle D of WIOA, each
grant recipient must complete reports on performance indicators or
goals specified in its grant agreement.
(e) Due date. (1) For the core programs, performance reports are
due on the date set forth in guidance.
(2) Financial reports and all performance and data reports not
described in paragraph (e)(1) of this section are due no later than 45
days after the end of each quarter unless otherwise specified in
reporting instructions. Closeout financial reports are required no
later than 90 calendar days after the expiration of a period of
performance or period of fund availability (whichever comes first) and/
or termination of the grant. If required by the terms and conditions of
the grant, closeout performance reports are required no later than 90
calendar days after the expiration of a period of performance or period
of fund availability (whichever comes first) and/or termination of the
grant.
(f) Format. All reports whenever practicable should be collected,
transmitted, and stored in open and machine readable formats.
(g) Systems compatibility. States and grant recipients will develop
strategies for aligning data systems based upon guidelines issued by
the Secretary of Labor and the Secretary of Education.
(h) Additional reporting. At the Grant Officer's or Secretary's
discretion, reporting may be required more frequently of its grant
recipients. Such requirement is consistent with 2 CFR parts 200 and
2900.
Subpart D--Oversight and Resolution of Findings
Sec. 683.400 What are the Federal and State monitoring and oversight
responsibilities?
(a) The Secretary is authorized to monitor all recipients and
subrecipients of all Federal financial assistance awarded and funds
expended under title I of WIOA and the Wagner-Peyser Act to determine
compliance with these statutes and Department regulations, and may
investigate any matter deemed necessary to determine such compliance.
Federal oversight will be conducted primarily at the recipient level.
(b) As funds allow, in each fiscal year, the Secretary also will
conduct in-depth reviews in several States, including financial and
performance monitoring, to assure that funds are spent in accordance
with WIOA and the Wagner-Peyser Act.
(c)(1) Each recipient and subrecipient must monitor grant-supported
activities in accordance with 2 CFR part 200.
(2) In the case of grants under secs. 128 and 133 of WIOA, the
Governor must develop a State monitoring system that meets the
requirements of Sec. 683.410(b). The Governor must monitor Local WDBs
and regions annually for compliance with applicable laws and
regulations in accordance with the State monitoring system. Monitoring
must include an annual review of each local area's compliance with 2
CFR part 200.
(d) Documentation of monitoring, including monitoring reports and
audit work papers, conducted under paragraph (c) of this section, along
with corrective action plans, must be made available for review upon
request of the Secretary, Governor, or a representative of the Federal
government authorized to request the information.
Sec. 683.410 What are the oversight roles and responsibilities of
recipients and subrecipients of Federal financial assistance awarded
under title I of the Workforce Innovation and Opportunity Act and the
Wagner-Peyser Act?
(a) Each recipient and subrecipient of funds under title I of WIOA
and under the Wagner-Peyser Act must conduct regular oversight and
monitoring of its WIOA and Wagner-Peyser Act program(s) and those of
its subrecipients and contractors as required under title I of WIOA and
the Wagner-Peyser Act, as well as under 2 CFR part 200, including 2 CFR
200.327, 200.328, 200.330, 200.331, and Department exceptions at 2 CFR
part 2900, in order to:
(1) Determine that expenditures have been made against the proper
cost categories and within the cost limitations specified in WIOA and
the regulations in this part;
(2) Determine whether there is compliance with other provisions of
WIOA and the WIOA regulations and other applicable laws and
regulations;
(3) Assure compliance with 2 CFR part 200; and
(4) Determine compliance with the nondiscrimination, disability,
and equal opportunity requirements of sec. 188 of WIOA, including the
Assistive Technology Act of 1998 (29 U.S.C. 3003).
(b) State roles and responsibilities for grants under secs. 128 and
133 of WIOA:
(1) The Governor is responsible for the development of the State
monitoring system. The Governor must be able to demonstrate, through a
monitoring plan or otherwise, that the State monitoring system meets
the requirements of paragraph (b)(2) of this section.
(2) The State monitoring system must:
(i) Provide for annual on-site monitoring reviews of local areas'
compliance with 2 CFR part 200, as required by sec. 184(a)(3) of WIOA;
(ii) Ensure that established policies to achieve program
performance and outcomes meet the objectives of WIOA and the WIOA
regulations;
(iii) Enable the Governor to determine if subrecipients and
contractors have demonstrated substantial compliance with WIOA and
Wagner-Peyser Act requirements;
(iv) Enable the Governor to determine whether a local plan will be
disapproved for failure to make acceptable progress in addressing
deficiencies, as required in sec. 108(e) of WIOA; and
(v) Enable the Governor to ensure compliance with the
nondiscrimination, disability, and equal opportunity requirements of
sec. 188 of WIOA, including the Assistive Technology Act of 1998 (29
U.S.C. 3003).
(3) The State must conduct an annual on-site monitoring review of
each local area's compliance with 2 CFR part 200, as required by sec.
184(a)(4) of WIOA.
(4) The Governor must require that prompt corrective action be
taken if any substantial violation of standards identified in paragraph
(b)(2) or (3) of this section is found.
(5) The Governor must impose the sanctions provided in secs.
184(b)-(c) of WIOA in the event of a subrecipient's failure to take
required corrective action required under paragraph (b)(4) of this
section.
(6) The Governor may issue additional requirements and instructions
to subrecipients on monitoring activities.
(7) The Governor must certify to the Secretary every 2 years that:
(i) The State has implemented 2 CFR part 200;
(ii) The State has monitored local areas to ensure compliance with
2 CFR part 200, including annual certifications and disclosures as
outlined in 2 CFR 200.113, Mandatory Disclosures. Failure to do so may
result in remedies described under 2 CFR 200.338, including suspension
and debarment; and
[[Page 56422]]
(iii) The State has taken appropriate corrective action to secure
such compliance.
Sec. 683.420 What procedures apply to the resolution of findings
arising from audits, investigations, monitoring, and oversight reviews?
(a) Resolution of subrecipient-level findings. (1) The Governor or
direct grant recipient is responsible for resolving findings that arise
from the monitoring reviews, investigations, other Federal monitoring
reviews, and audits (including under 2 CFR part 200) of subrecipients
awarded funds through title I of WIOA or the Wagner-Peyser Act.
(i) A State or direct grant recipient must utilize the written
monitoring and audit resolution, debt collection and appeal procedures
that it uses for other Federal grant programs.
(ii) If a State or direct grant recipient does not have such
written procedures, it must prescribe standards and procedures to be
used for this grant program.
(2) For subrecipients awarded funds through a recipient of grant
funds under subtitle D of title I of WIOA, the direct recipient of the
grant funds must have written monitoring and resolution procedures in
place that are consistent with 2 CFR part 200.
(b) Resolution of State and other direct recipient-level findings.
(1) The Secretary is responsible for resolving findings that arise from
Federal audits, monitoring reviews, investigations, incident reports,
and audits under 2 CFR part 200 for direct recipients of Federal awards
under title I of WIOA and the Wagner-Peyser Act, as amended by WIOA
title III.
(2) The Secretary will use the Department audit resolution process,
consistent with 2 CFR part 200 (and Department modifications at 2 CFR
part 2900), and Grant Officer Resolution provisions of Sec. 683.440,
as appropriate.
(3) A final determination issued by a Grant Officer under this
process may be appealed to the Department of Labor Office of
Administrative Law Judges under the procedures at Sec. 683.800.
(c) Resolution of nondiscrimination findings. Findings arising from
investigations or reviews conducted under nondiscrimination laws will
be resolved in accordance with WIOA sec. 188 of WIOA and the Department
of Labor nondiscrimination regulations implementing sec. 188 of WIOA,
codified at 29 CFR part 38.
Sec. 683.430 How does the Secretary resolve investigative and
monitoring findings?
(a) As a result of an investigation, on-site visit, other
monitoring, or an audit (i.e., Single Audit, OIG Audit, GAO Audit, or
other audit), the Secretary will notify the direct recipient of the
Federal award of the findings of the investigation and give the direct
recipient a period of time (not more than 60 days) to comment and to
take appropriate corrective actions.
(1) Adequate resolution. The Grant Officer in conjunction with the
Federal project officer, reviews the complete file of the monitoring
review, monitoring report, or final audit report and the recipient's
response and actions under paragraph (a) of this section. The Grant
Officer's review takes into account the sanction provisions of secs.
184(b)-(c) of WIOA. If the Grant Officer agrees with the recipient's
handling of the situation, the Grant Officer so notifies the recipient.
This notification constitutes final agency action.
(2) Inadequate resolution. If the direct recipient's response and
actions to resolve the findings are found to be inadequate, the Grant
Officer will begin the Grant Officer resolution process under Sec.
683.440.
(b) Audits from 2 CFR part 200 will be resolved through the Grant
Officer resolution process, as discussed in Sec. 683.440.
Sec. 683.440 What is the Grant Officer resolution process?
(a) General. When the Grant Officer is dissatisfied with the a
recipient's disposition of an audit or other resolution of findings
(including those arising out of site visits, incident reports or
compliance reviews), or with the recipient's response to findings
resulting from investigations or monitoring reports, the initial and
final determination process as set forth in this section is used to
resolve the matter.
(b) Initial determination. The Grant Officer makes an initial
determination on the findings for both those matters where there is
agreement and those where there is disagreement with the recipient's
resolution, including the allowability of questioned costs or
activities. This initial determination is based upon the requirements
of WIOA, the Wagner-Peyser Act, and applicable regulations, and the
terms and conditions of the grants or other agreements under the award.
(c) Informal resolution. Except in an emergency situation, when the
Secretary invokes the authority described in sec. 184(e) of WIOA, the
Grant Officer may not revoke a recipient's grant in whole or in part,
nor institute corrective actions or sanctions, without first providing
the recipient with an opportunity to present documentation or arguments
to resolve informally those matters in dispute contained in the initial
determination. The initial determination must provide for an informal
resolution period of at least 60 days from issuance of the initial
determination. If the matters are resolved informally, the Grant
Officer must issue a final determination under paragraph (d) of this
section which notifies the parties in writing of the nature of the
resolution and may close the file.
(d) Final determination. (1) Upon completion of the informal
resolution process, the Grant Officer provides each party with a
written final determination by certified mail, return receipt
requested. For audits of recipient-level entities and other recipients
which receive WIOA funds directly from the Department, ordinarily, the
final determination is issued not later than 180 days from the date
that the Office of Inspector General (OIG) issues the final approved
audit report to the Employment and Training Administration. For audits
of subrecipients conducted by the OIG, ordinarily the final
determination is issued not later than 360 days from the date the OIG
issues the final approved audit report to ETA.
(2) A final determination under this paragraph (d) must:
(i) Indicate whether efforts to resolve informally matters
contained in the initial determination have been unsuccessful;
(ii) List those matters upon which the parties continue to
disagree;
(iii) List any modifications to the factual findings and
conclusions set forth in the initial determination and the rationale
for such modifications;
(iv) Establish a debt, if appropriate;
(v) Require corrective action, when needed;
(vi) Determine liability, method of restitution of funds, and
sanctions; and
(vii) Offer an opportunity for a hearing in accordance with Sec.
683.800.
(3) Unless a hearing is requested, a final determination under this
paragraph (d) is final agency action and is not subject to further
review.
Subpart E--Pay-for-Performance Contract Strategies
Sec. 683.500 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract strategy?
(a) A WIOA Pay-for-Performance contract strategy is a specific type
of performance-based contract strategy that has four distinct
characteristics:
(1) It is a strategy to use WIOA Pay-for-Performance contracts as
they are described in Sec. 683.510;
[[Page 56423]]
(2) It must include the identification of the workforce development
problem and target populations for which a local area will pursue a
WIOA Pay-for-Performance contract strategy; the outcomes the local area
would hope to achieve through a Pay-for-Performance contract relative
to baseline performance; and the acceptable cost to government
associated with achieving these outcomes;
(3) It must include a strategy for independently validating the
performance outcomes achieved under each contract within the strategy
prior to payment occurring; and
(4) It must include a description of how the State or local area
will reallocate funds to other activities under the contract strategy
in the event a service provider does not achieve performance benchmarks
under a WIOA Pay-for-Performance contract.
(b) Prior to the implementation of a WIOA Pay-for-Performance
contract strategy, a local area must conduct a feasibility study to
determine whether the intervention is suitable for a WIOA Pay-for-
Performance contract strategy.
(c) The WIOA Pay-for-Performance contract strategy must be
developed in accordance with guidance issued by the Secretary.
Sec. 683.510 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract?
(a) Pay-for-Performance contract. A WIOA Pay-for-Performance
contract is a type of Performance-Based contract.
(b) Applicability. WIOA Pay-for-Performance contracts may only be
entered into when they are a part of a WIOA Pay-for-Performance
contract strategy described in Sec. 683.500.
(c) Cost-plus a percentage of cost contracts. Use of cost plus a
percentage of cost contracts is prohibited. (2 CFR 200.323.)
(d) Services provided. WIOA Pay-for-Performance contracts must be
used to provide adult training services described in sec. 134(c)(3) of
WIOA or youth activities described in sec. 129(c)(2) of WIOA.
(e) Structure of payment. WIOA Pay-for-Performance contracts must
specify a fixed amount that will be paid to the service provider based
on the achievement of specified levels of performance on the
performance outcomes in sec. 116(b)(2)(A) of WIOA for target
populations within a defined timetable. Outcomes must be independently
validated, as described in paragraph (j) of this section and Sec.
683.500, prior to disbursement of funds.
(f) Eligible service providers. WIOA Pay-for-Performance contracts
may be entered into with eligible service providers, which may include
local or national community-based organizations or intermediaries,
community colleges, or other training providers that are eligible under
sec. 122 or 123 of WIOA (as appropriate).
(g) Target populations. WIOA Pay-for-Performance contracts must
identify target populations as specified by the Local WDB, which may
include individuals with barriers to employment.
(h) Bonus payments. WIOA Pay-for-Performance contracts may include
bonus payments for the contractor based on achievement of specified
levels of performance. Bonus payments for achieving outcomes above and
beyond those specified in the contract must be used by the service
provider to expand capacity to provide effective training.
(i) Performance reporting. Performance outcomes achieved under the
WIOA Pay-for-Performance contract, measured against the levels of
performance specified in the contract, must be tracked by the local
area and reported to the State pursuant to WIOA sec. 116(d)(2)(K) and
Sec. 677.160 of this chapter.
(j) Validation. WIOA Pay-for-Performance contracts must include
independent validation of the contractor's achievement of the
performance benchmarks specified in the contract. This validation must
be based on high-quality, reliable, and verified data.
(k) Guidance. The Secretary may issue additional guidance related
to use of WIOA Pay-for-Performance contracts.
Sec. 683.520 What funds can be used to support Workforce Innovation
and Opportunity Act Pay-for-Performance contract strategies?
(a) For WIOA Pay-for-Performance contract strategies providing
adult and dislocated worker training services, funds allocated under
secs. 133(b)(2)-(3) of WIOA can be used. For WIOA Pay-for-Performance
contract strategies providing youth activities, funds allocated under
WIOA sec. 128(b) can be used.
(b) No more than 10 percent of the total local adult and dislocated
worker allocations can be reserved and used on the implementation of
WIOA Pay-for-Performance contract strategies for adult training
services described in sec. 134(c)(3) of WIOA. No more than 10 percent
of the local youth allocation can be reserved and used on the
implementation of WIOA Pay-for-Performance contract strategies for
youth training services and other activities described in secs.
129(c)(2) of WIOA.
Sec. 683.530 How long are funds used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies available?
Section 189(g)(2)(D) of WIOA authorizes funds used for WIOA Pay-
for-Performance contract strategies to be available until expended.
Under WIOA sec. 3(47)(C), funds that are obligated but not expended due
to a contractor not achieving the levels of performance specified in a
WIOA Pay-for-Performance contract may be reallocated for further
activities related to WIOA Pay-for-Performance contract strategies
only. The Secretary will issue additional guidance related to the funds
availability and reallocation.
Sec. 683.540 What is the State's role in assisting local areas in
using Workforce Innovation and Opportunity Act Pay-for-Performance
contract strategies?
(a) Using funds from the Governor's Reserve the State may:
(1) Provide technical assistance to local areas including
assistance with structuring WIOA Pay-for-Performance contracting
strategies, performance data collection, meeting performance data entry
requirements, and identifying levels of performance.
(2) Conduct evaluations of local WIOA Pay-for-Performance
contracting strategies, if appropriate.
(3) Conduct other activities that comply with limitations on the
use of the Governor's Reserve.
(b) Using non-Federal funds, Governors may establish incentives for
Local WDBs to implement WIOA Pay-for-Performance contract strategies as
described in this subpart.
(c) In the case of a State in which local areas are implementing
WIOA Pay-for-Performance contract strategies, the State must:
(1) Collect and report to the Department data on the performance of
service providers entering into WIOA Pay-for-Performance contracts,
measured against the levels of performance benchmarks specified in the
contracts, pursuant to sec. 116(d)(2)(K) of WIOA and Sec. 677.160 of
this chapter and in accordance with any additional guidance issued by
the Secretary.
(2) Collect and report to the Department State and/or local
evaluations of the design and performance of the WIOA Pay-for-
Performance contract strategies, and, where possible, the level of
satisfaction with the strategies among employers and participants
benefitting from the
[[Page 56424]]
strategies, pursuant to sec. 116(d)(2)(K) of WIOA and Sec. 677.160 of
this chapter, and in accordance with any guidance issued by the
Secretary.
(3) Monitor local areas' use of WIOA Pay-for-Performance contract
strategies to ensure compliance with Sec. 683.500 and the contract
specifications in Sec. 683.510, and State procurement policies.
(4) Monitor local areas' expenditures to ensure that no more than
10 percent of a local area's adult and dislocated worker allotments and
no more than 10 percent of a local area's youth allotment is reserved
and used on WIOA Pay-for-Performance contract strategies.
(d) The Secretary will issue additional guidance on State roles in
WIOA Pay-for-Performance contract strategies.
Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
Sec. 683.600 What local area, State, and direct recipient grievance
procedures must be established?
(a) Each local area, State, outlying area, and direct recipient of
funds under title I of WIOA, except for Job Corps, must establish and
maintain a procedure for participants and other interested parties to
file grievances and complaints alleging violations of the requirements
of title I of WIOA, according to the requirements of this section. The
grievance procedure requirements applicable to Job Corps are set forth
at Sec. Sec. 686.960 and 686.965 of this chapter.
(b) Each local area, State, and direct recipient must:
(1) Provide information about the content of the grievance and
complaint procedures required by this section to participants and other
interested parties affected by the local workforce development system,
including one-stop partners and service providers;
(2) Require that every entity to which it awards title I funds
provide the information referred to in paragraph (b)(1) of this section
to participants receiving title I-funded services from such entities;
and
(3) Must make reasonable efforts to assure that the information
referred to in paragraph (b)(1) of this section will be understood by
affected participants and other individuals, including youth and those
who are limited-English speaking individuals. Such efforts must comply
with the language requirements of 29 CFR 37.35 regarding the provision
of services and information in languages other than English.
(c) Local area procedures must provide:
(1) A process for dealing with grievances and complaints from
participants and other interested parties affected by the local
workforce development system, including one-stop partners and service
providers;
(2) An opportunity for an informal resolution and a hearing to be
completed within 60 days of the filing of the grievance or complaint;
(3) A process which allows an individual alleging a labor standards
violation to submit the grievance to a binding arbitration procedure,
if a collective bargaining agreement covering the parties to the
grievance so provides; and
(4) An opportunity for a local level appeal to a State entity when:
(i) No decision is reached within 60 days; or
(ii) Either party is dissatisfied with the local hearing decision.
(d) State procedures must provide:
(1) A process for dealing with grievances and complaints from
participants and other interested parties affected by the statewide
Workforce Investment programs;
(2) A process for resolving appeals made under paragraph (c)(4) of
this section;
(3) A process for remanding grievances and complaints related to
the local Workforce Innovation and Opportunity Act programs to the
local area grievance process; and
(4) An opportunity for an informal resolution and a hearing to be
completed within 60 days of the filing of the grievance or complaint;
and
(5) An opportunity for appeal to the Secretary under the
circumstances described in Sec. 683.610(a).
(e) Procedures of direct recipients must provide:
(1) A process for dealing with grievance and complaints from
participants and other interested parties affected by the recipient's
Workforce Innovation and Opportunity Act programs; and
(2) An opportunity for an informal resolution and a hearing to be
completed within 60 days of the filing of the grievance or complaint.
(f) The remedies that may be imposed under local, State, and direct
recipient grievance procedures are enumerated at WIOA sec. 181(c)(3).
(g)(1) The provisions of this section on grievance procedures do
not apply to discrimination complaints brought under WIOA sec. 188 and/
or 29 CFR part 38. Such complaints must be handled in accordance with
the procedures set forth in that regulatory part.
(2) Questions about or complaints alleging a violation of the
nondiscrimination provisions of WIOA sec. 188 may be directed or mailed
to the Director, Civil Rights Center, U.S. Department of Labor, Room
N4123, 200 Constitution Avenue NW., Washington, DC 20210, for
processing.
(h) Nothing in this subpart precludes a grievant or complainant
from pursuing a remedy authorized under another Federal, State, or
local law.
Sec. 683.610 What processes does the Secretary use to review
grievances and complaints of Workforce Innovation and Opportunity Act
title I recipients?
(a) The Secretary investigates allegations arising through the
grievance procedures described in Sec. 683.600 when:
(1) A decision on a grievance or complaint under Sec. 683.600(d)
has not been reached within 60 days of receipt of the grievance or
complaint or within 60 days of receipt of the request for appeal of a
local level grievance and either party appeals to the Secretary; or
(2) A decision on a grievance or complaint under Sec. 683.600(d)
has been reached and the party to which such decision is adverse
appeals to the Secretary.
(b) The Secretary must make a final decision on an appeal under
paragraph (a) of this section no later than 120 days after receiving
the appeal.
(c) Appeals made under paragraph (a)(2) of this section must be
filed within 60 days of the receipt of the decision being appealed.
Appeals made under paragraph (a)(1) of this section must be filed
within 120 days of the filing of the grievance with the State, or the
filing of the appeal of a local grievance with the State. All appeals
must be submitted by certified mail, return receipt requested, to the
Secretary, U.S. Department of Labor, 200 Constitution Ave. NW.,
Washington, DC 20210, Attention: ASET. A copy of the appeal must be
simultaneously provided to the appropriate ETA Regional Administrator
and the opposing party.
(d) Except for complaints arising under WIOA sec. 184(f) or sec.
188, grievances or complaints made directly to the Secretary will be
referred to the appropriate State or local area for resolution in
accordance with this section, unless the Department notifies the
parties that the Department of Labor will investigate the grievance
under the procedures at Sec. 683.430. Discrimination complaints
brought under WIOA sec. 184(f) or sec. 188 or 29 CFR part 38 will be
referred to the Director of the Civil Rights Center.
(e) Complaints and grievances from participants receiving services
under the
[[Page 56425]]
Wagner-Peyser Act will follow the procedures outlined at part 658 of
this chapter.
Sec. 683.620 How are complaints and reports of criminal fraud and
abuse addressed under the Workforce Innovation and Opportunity Act?
(a) Information and complaints involving criminal fraud, waste,
abuse or other criminal activity must be reported immediately through
the Department's Incident Reporting System to the Department of Labor
Office of Inspector General, Office of Investigations, Room S5514, 200
Constitution Avenue NW., Washington, DC 20210, or to the corresponding
Regional Inspector General for Investigations, with a copy
simultaneously provided to the Employment and Training Administration.
The Hotline number is 1-800-347-3756. The Web site is http://www.oig.dol.gov/contact.htm.
(b) Complaints of a non-criminal nature may be handled under the
procedures set forth in Sec. 683.600 or through the Department's
Incident Reporting System.
Sec. 683.630 What additional appeal processes or systems must a State
have for the Workforce Innovation and Opportunity Act program?
(a) Non-designation of local areas:
(1) The State must establish, and include in its State Plan, due
process procedures which provide expeditious appeal to the State WDB
for a unit of general local government (including a combination of such
units) or grant recipient that requests, but is not granted, initial or
subsequent designation of an area as a local area under WIOA sec.
106(b)(2) or 106(b)(3) and Sec. 679.250 of this chapter.
(2) These procedures must provide an opportunity for a hearing and
prescribe appropriate time limits to ensure prompt resolution of the
appeal.
(3) If the appeal to the State WDB does not result in designation,
the appellant may request review by the Secretary under Sec. 683.640.
(b) Denial or termination of eligibility as a training provider:
(1) A State must establish procedures which allow providers of
training services the opportunity to appeal:
(i) Denial of eligibility by a Local WDB or the designated State
agency under WIOA sec. 122(b), 122(c), or 122(d).
(ii) Termination of eligibility or other action by a Local WDB or
State agency under WIOA sec. 122(f); or
(iii) Denial of eligibility as a provider of on-the-job training
(OJT) or customized training by a one-stop operator under WIOA sec.
122(h).
(2) Such procedures must provide an opportunity for a hearing and
prescribe appropriate time limits to ensure prompt resolution of the
appeal.
(3) A decision under this State appeal process may not be appealed
to the Secretary.
(c) Testing and sanctioning for use of controlled substances.
(1) A State must establish due process procedures, in accordance
with WIOA sec. 181(f), which provide expeditious appeal for:
(i) Participants in programs under title I, subtitle B of WIOA
subject to testing for use of controlled substances, imposed under a
State policy established under WIOA sec. 181(f)(1); and
(ii) Participants in programs under title I, subtitle B of WIOA who
are sanctioned, in accordance with WIOA sec. 181(f)(2), after testing
positive for the use of controlled substances, under the policy
described in paragraph (c)(1)(i) of this section.
(2) A decision under this State appeal process may not be appealed
to the Secretary.
Sec. 683.640 What procedures apply to the appeals of non-designation
of local areas?
(a) A unit of general local government (including a combination of
such units) or grant recipient whose appeal of the denial of a request
for initial or subsequent designation as a local area to the State WDB
has not resulted in such designation, may appeal the State WDB's denial
to the Secretary.
(b) Appeals made under paragraph (a) of this section must be filed
no later than 30 days after receipt of written notification of the
denial from the State WDB, and must be submitted by certified mail,
return receipt requested, to the Secretary, U.S. Department of Labor,
200 Constitution Ave. NW., Washington, DC 20210, Attention: ASET. A
copy of the appeal must be simultaneously provided to the State WDB.
(c) The appellant must establish that it was not accorded
procedural rights under the appeal process set forth in the State Plan,
or establish that it meets the requirements for designation in WIOA
sec. 106(b)(2) or 106(b)(3) and Sec. 679.250 of this chapter.
(d) If the Secretary determines that the appellant has met its
burden of establishing that it was not accorded procedural rights under
the appeal process set forth in the State Plan, or that it meets the
requirements for designation in WIOA sec. 106(b)(2) or 106(b)(3) and
Sec. 679.250 of this chapter, the Secretary may require that the area
be designated as a local area. In making this determination, the
Secretary may consider any comments submitted by the State WDB in
response to the appeal made under paragraph (a) of this section.
(e) The Secretary must issue a written decision to the Governor and
the appellant.
Sec. 683.650 What procedures apply to the appeals of the Governor's
imposition of sanctions for substantial violations or performance
failures by a local area?
(a) A local area which has been found in substantial violation of
WIOA title I, and has received notice from the Governor that either all
or part of the local plan will be revoked or that a reorganization will
occur, may appeal such sanctions to the Secretary under WIOA sec.
184(b). The appeal must be filed no later than 30 days after receipt of
written notification of the revoked plan or imposed reorganization.
(b) The sanctions described in paragraph (a) of this section do not
become effective until:
(1) The time for appeal has expired; or
(2) The Secretary has issued the decision described in paragraph
(e) of this section.
(c) A local area which has failed to meet local performance
indicators for 3 consecutive program years, and has received the
Governor's notice of intent to impose a reorganization plan, may appeal
to the Governor to rescind or revise such plan, in accordance with
Sec. 677.225 of this chapter.
(d) Appeals to the Secretary made under paragraph (a) of this
section must be submitted by certified mail, return receipt requested,
to the Secretary, U.S. Department of Labor, 200 Constitution Ave. NW.,
Washington, DC 20210, Attention: ASET. A copy of the appeal must be
simultaneously provided to the Governor.
(e) The Secretary will notify the Governor and the appellant in
writing of the Secretary's decision under paragraph (a) of this section
within 45 days after receipt of the appeal. In making this
determination, the Secretary may consider any comments submitted by the
Governor in response to the appeals.
[[Page 56426]]
Subpart G--Sanctions, Corrective Actions, and Waiver of Liability
Sec. 683.700 When can the Secretary impose sanctions and corrective
actions on recipients and subrecipients of title I Workforce Innovation
and Opportunity Act funds?
(a) Applicability. (1) Except for actions under WIOA secs. 116 and
188(a) or 29 CFR parts 31, 32, 35, and 38 and 49 CFR part 25, the Grant
Officer must use the procedures outlined in Sec. 683.440 before
imposing a sanction on, or requiring corrective action by, recipients
of funds under title I of WIOA.
(2) To impose a sanction or corrective action for a violation of
WIOA sec. 188(a) the Department will use the procedures set forth in 29
CFR part 38.
(3) To impose a sanction or corrective action for a violation of
WIOA sec. 116 the Department will use the procedures set forth in part
677 of this chapter.
(b) States. When a Grant Officer determines that the Governor has
not fulfilled its requirements under 2 CFR part 200, an audit, or a
monitoring compliance review set forth at sec. 184(a)(4) of WIOA and
Sec. 683.410, or has not taken corrective action to remedy a violation
as required by WIOA secs. 184(a)(5) and 184(b)(1), the Grant Officer
must require the Governor to impose the necessary corrective actions
set forth at WIOA secs. 184(a)(5) and 184(b)(1), or may require
repayment of funds under WIOA sec. 184(c). If the Secretary determines
it is necessary to protect the funds or ensure the proper operation of
a program or activity, the Secretary may immediately suspend or
terminate financial assistance in accordance with WIOA sec. 184(e).
(c) Local areas. If the Governor fails to promptly take the actions
specified in WIOA sec. 184(b)(1) when it determines that a local area
has failed to comply with the requirements described in Sec.
683.720(a), and that the local area has not taken the necessary
corrective action, the Grant Officer may impose such actions directly
against the local area.
(d) Direct grant recipients. When the Grant Officer determines that
a direct grant recipient of subtitle D of title I of WIOA has not taken
corrective action to remedy a substantial violation as the result of
noncompliance with 2 CFR part 200, the Grant Officer may impose
sanctions against the grant recipient.
(e) Subrecipients. The Grant Officer may impose a sanction directly
against a subrecipient, as authorized in WIOA sec. 184(d)(3) and 2 CFR
200.338. In such a case, the Grant Officer will inform the direct grant
recipient of the action.
Sec. 683.710 Who is responsible for funds provided under title I of
the Workforce Innovation and Opportunity Act and the Wagner-Peyser Act?
(a) The recipient of the funds is responsible for all funds under
its grant(s) awarded under WIOA title I and the Wagner-Peyser Act.
(b)(1) The local government's chief elected official(s) in a local
area is liable for any misuse of the WIOA grant funds allocated to the
local area under WIOA secs. 128 and 133, unless the chief elected
official(s) reaches an agreement with the Governor to bear such
liability.
(2) When a local workforce area or region is composed of more than
one unit of general local government, the liability of the individual
jurisdictions must be specified in a written agreement between the
chief elected officials.
(3) When there is a change in the chief elected official(s), the
Local WDB is required to inform the new chief elected official(s), in a
timely manner, of their responsibilities and liabilities as well as the
need to review and update any written agreements among the chief
elected official(s).
(4) The use of a fiscal agent does not relieve the chief elected
official, or Governor if designated under paragraph (b)(1) of this
section, of responsibility for any misuse of grant funds allocated to
the local area under WIOA secs. 128 and 133.
Sec. 683.720 What actions are required to address the failure of a
local area to comply with the applicable uniform administrative
provisions?
(a) If, as part of the annual on-site monitoring of local areas,
the Governor determines that a local area is not in compliance with 2
CFR part 200, including the failure to make the required disclosures in
accordance with 2 CFR 200.113 or the failure to disclose all violations
of Federal criminal law involving fraud, bribery or gratuity
violations, the Governor must:
(1) Require corrective action to secure prompt compliance; and
(2) Impose the sanctions provided for at WIOA sec. 184(b) if the
Governor finds that the local area has failed to take timely corrective
action.
(b) An action by the Governor to impose a sanction against a local
area, in accordance with this section, may be appealed to the Secretary
in accordance with Sec. 683.650.
(c)(1) If the Secretary finds that the Governor has failed to
monitor and certify compliance of local areas with the administrative
requirements under WIOA sec. 184(a), or that the Governor has failed to
take the actions promptly required upon a determination under paragraph
(a) of this section, the Secretary must take the action described in
Sec. 683.700(b).
(2) If the Governor fails to take the corrective actions required
by the Secretary under paragraph (c)(1) of this section, the Secretary
may immediately suspend or terminate financial assistance under WIOA
sec. 184(e).
Sec. 683.730 When can the Secretary waive the imposition of
sanctions?
(a)(1) A recipient of title I funds may request that the Secretary
waive the imposition of sanctions authorized under WIOA sec. 184.
(2) A Grant officer may approve the waiver described in paragraph
(a)(1) of this section if the grant officer finds that the recipient
has demonstrated substantial compliance with the requirements of WIOA
sec. 184(d)(2).
(b)(1) When the debt for which a waiver request was established in
a non-Federal resolution proceeding, the resolution report must
accompany the waiver request.
(2) When the waiver request is made during the ETA Grant Officer
resolution process, the request must be made during the informal
resolution period described in Sec. 683.440(c).
(c) A waiver of the recipient's liability must be considered by the
Grant Officer only when:
(1) The misexpenditure of WIOA funds occurred at a subrecipient's
level;
(2) The misexpenditure was not due to willful disregard of the
requirements of title I of WIOA, gross negligence, failure to observe
accepted standards of administration, and did not constitute fraud or
failure to make the required disclosures in accordance with 2 CFR
200.113 addressing all violations of Federal criminal law involving
fraud, bribery or gratuity violations (2 CFR part 180 and 31 U.S.C.
3321)
(3) If fraud did exist, was perpetrated against the recipient/
subrecipients, and:
(i) The recipient/subrecipients discovered, investigated, reported,
and cooperated in any prosecution of the perpetrator of the fraud; and
(ii) After aggressive debt collection action, it has been
documented that further attempts at debt collection from the
perpetrator of the fraud would be inappropriate or futile;
(4) The recipient has issued a final determination which disallows
the misexpenditure, the recipient's appeal process has been exhausted,
and a debt has been established; and
(5) The recipient provides documentation to demonstrate that it has
substantially complied with the
[[Page 56427]]
requirements of WIOA sec. 184(d)(2) and this section.
(d) The recipient will not be released from liability for misspent
funds under the determination required by WIOA sec. 184(d) unless the
Grant Officer determines that further collection action, either by the
recipient or subrecipient(s), would be inappropriate or would prove
futile.
Sec. 683.740 What is the procedure to handle a recipient of title I
Workforce Innovation and Opportunity Act funds' request for advance
approval of contemplated corrective actions?
(a) The recipient may request advance approval from the Grant
Officer for contemplated corrective actions, including debt collection
actions, which the recipient plans to initiate or to forego. The
recipient's request must include a description and an assessment of all
actions taken to collect the misspent funds.
(b) Based on the recipient's request, the Grant Officer may
determine that the recipient may forego certain debt collection actions
against a subrecipient when:
(1) The subrecipient meets the criteria set forth in WIOA sec.
184(d)(2);
(2) The misexpenditure of funds:
(i) Was not made by that subrecipient but by an entity that
received WIOA funds from that subrecipient;
(ii) Was not a violation of WIOA sec. 184(d)(1), did not constitute
fraud, or failure to disclose, in a timely manner, all violations of
Federal criminal law involving fraud, bribery, or gratuity violations
potentially affecting the Federal award; or
(iii) If fraud did exist:
(A) It was perpetrated against the subrecipient;
(B) The subrecipient discovered, investigated, reported, and
cooperated in any prosecution of the perpetrator of the fraud; and
(C) After aggressive debt collection action, it has been documented
that further attempts at debt collection from the perpetrator of the
fraud would be inappropriate or futile;
(3) A determination which disallows the misexpenditure and
establishes a debt has been issued at the appropriate level; and,
(4) Further debt collection action by that subrecipient or the
recipient would be either inappropriate or futile.
Sec. 683.750 What procedure must be used for administering the
offset/deduction provisions of the Workforce Innovation and Opportunity
Act?
(a)(1) For misexpenditures by direct recipients of title I and
Wagner-Peyser Act formula funds the Grant Officer may determine that a
debt, or a portion thereof, may be offset against amounts that are
allotted to the recipient. Recipients must submit a written request for
an offset to the Grant Officer. Generally, the Grant Officer will apply
the offset against amounts that are available at the recipient level
for administrative costs.
(2) The Grant Officer may approve an offset request, under
paragraph (a)(1) of this section, if the misexpenditures were not due
to willful disregard of the requirements of WIOA and regulations,
fraud, gross negligence, failure to observe accepted standards of
administration or a pattern of misexpenditure.
(b) For subrecipient misexpenditures that were not due to willful
disregard of the requirements of WIOA and regulations, fraud, gross
negligence, failure to observe accepted standards of administration or
a pattern of misexpenditure, if the Grant Officer has required the
State to repay or offset such amount, the State may deduct an amount
equal to the misexpenditure from the subrecipient's allocation of the
program year after the determination was made. Deductions are to be
made from funds reserved for the administrative costs of the local
programs involved, as appropriate.
(c) If offset is granted, the debt will not be fully satisfied
until the Grant Officer reduces amounts allotted to the recipient by
the amount of the misexpenditure.
(d) For recipients of funds under title I and Wagner-Peyser Act
funds, a direct recipient may not make a deduction under paragraph (b)
of this section until the State has taken appropriate corrective action
to ensure full compliance within the local area with regard to
appropriate expenditure of WIOA funds.
Subpart H--Administrative Adjudication and Judicial Review
Sec. 683.800 What actions of the Department may be appealed to the
Office of Administrative Law Judges?
(a) An applicant for financial assistance under title I of WIOA who
is dissatisfied by a determination not to award Federal financial
assistance, in whole or in part, to such applicant; or a recipient,
subrecipient, or a contractor against which the Grant Officer has
directly imposed a sanction or corrective action under sec. 184 of
WIOA, including a sanction against a State under part 677 of this
chapter, may appeal to the U.S. Department of Labor, Office of
Administrative Law Judges (OALJ) within 21 days of receipt of the final
determination.
(b) Failure to request a hearing within 21 days of receipt of the
final determination constitutes a waiver of the right to a hearing.
(c) A request for a hearing under this subpart must specifically
state those issues or findings in the final determination upon which
review is requested. Issues or findings in the final determination not
specified for review, or the entire final determination when no hearing
has been requested within the 21 days, are considered resolved and not
subject to further review. Only alleged violations of WIOA, its
regulations, the grant or other agreement under WIOA raised in the
final determination and the request for hearing are subject to review.
(d) A request for a hearing must be transmitted by certified mail,
return receipt requested, to the Chief Administrative Law Judge, U.S.
Department of Labor, Suite 400, 800 K Street NW., Washington, DC 20001,
with one copy to the Departmental official who issued the
determination.
(e) The procedures in this subpart apply in the case of a
complainant who has engaged in the alternative dispute resolution
process set forth in Sec. 683.840, if neither a settlement was reached
nor a decision issued within the 60 days, except that the request for
hearing before the OALJ must be filed within 15 days of the conclusion
of the 60-day period provided in Sec. 683.840. In addition to
including the final determination upon which review is requested, the
complainant must include a copy of any Stipulation of Facts and a brief
summary of proceedings.
Sec. 683.810 What rules of procedure apply to hearings conducted
under this subpart?
(a) Rules of practice and procedure. The rules of practice and
procedure promulgated by the OALJ at subpart A of 29 CFR part 18,
govern the conduct of hearings under this subpart. However, a request
for hearing under this subpart is not considered a complaint to which
the filing of an answer by the Department or a Department agency or
official is required. Technical rules of evidence will not apply to
hearings conducted pursuant to this part. However, rules or principles
designed to assure production of the most credible evidence available
and to subject testimony to cross-examination will apply.
(b) Prehearing procedures. In all cases, the Administrative Law
Judge (ALJ) should encourage the use of
[[Page 56428]]
prehearing procedures to simplify and clarify facts and issues.
(c) Subpoenas. Subpoenas necessary to secure the attendance of
witnesses and the production of documents or other items at hearings
must be obtained from the ALJ and must be issued under the authority
contained in WIOA sec. 183(c), incorporating 15 U.S.C. 49.
(d) Timely submission of evidence. The ALJ must not permit the
introduction at the hearing of any documentation if it has not been
made available for review by the other parties to the proceeding either
at the time ordered for any prehearing conference, or, in the absence
of such an order, at least 3 weeks prior to the hearing date.
(e) Burden of production. The Grant Officer has the burden of
production to support her or his decision. This burden is satisfied
once the Grant Officer prepares and files an administrative file in
support of the decision which must be made part of the record.
Thereafter, the party or parties seeking to overturn the Grant
Officer's decision has the burden of persuasion.
Sec. 683.820 What authority does the Administrative Law Judge have in
ordering relief as an outcome of an administrative hearing?
(a) In ordering relief the ALJ has the full authority of the
Secretary under WIOA, except as described in paragraph (b) of this
section.
(b) In grant selection appeals of awards funded under WIOA title I,
subtitle D:
(1) If the Administrative Law Judge rules, under Sec. 683.800,
that the appealing organization should have been selected for an award,
the matter must be remanded to the Grant Officer. The Grant Officer
must, within 10 working days, determine whether the organization
continues to meet the requirements of the applicable solicitation,
whether the funds which are the subject of the ALJ's decision will be
awarded to the organization, and the timing of the award. In making
this determination, the Grant Officer must take into account disruption
to participants, disruption to grantees, and the operational needs of
the program.
(2) If the Administrative Law Judge rules that additional
application review is required, the Grant Officer must implement that
review and, if a new organization is selected, follow the steps laid
out in paragraph (b)(1) of this section to determine whether the grant
funds will be awarded to that organization.
(3) In the event that the Grant Officer determines that the funds
will not be awarded to the appealing organization for the reasons
discussed in paragraph (b)(1) of this section, an organization which
does not have an approved Negotiated Indirect Cost Rate Agreement will
be awarded its reasonable application preparation costs.
(4) If funds are awarded to the appealing organization, the Grant
Officer will notify the current grantee within 10 days. In addition,
the appealing organization is not entitled to the full grant amount but
only will receive the funds remaining in the grant that have not been
obligated by the current grantee through its operation of the grant and
its subsequent closeout.
(5) In the event that an organization, other than the appealing
organization, is adversely effected by the Grant Officer's
determination upon completion of the additional application review
under paragraph (b)(2) of this section, that organization may appeal
that decision to the Office of Administrative Law Judges by following
the procedures set forth in Sec. 683.800.
(6) Any organization selected and/or funded under WIOA title I,
subtitle D, is subject to having its award removed if an ALJ decision
so orders. As part of this process, the Grant Officer will provide
instructions on transition and closeout to both the newly selected
grantee and to the grantee whose position is affected or which is being
removed. All awardees must agree to the provisions of this paragraph
(b) as a condition of accepting a grant award.
Sec. 683.830 When will the Administrative Law Judge issue a decision?
(a) The ALJ should render a written decision not later than 90 days
after the closing of the record.
(b) The decision of the ALJ constitutes final agency action unless,
within 20 days of the decision, a party dissatisfied with the ALJ's
decision has filed a petition for review with the Administrative Review
Board (ARB) (established under Secretary's Order No. 02-2012),
specifically identifying the procedure, fact, law or policy to which
exception is taken. Any exception not specifically raised in the
petition is deemed to have been waived. A copy of the petition for
review also must be sent to the opposing party and if an applicant or
recipient, to the Grant Officer and the Grant Officer's Counsel at the
time of filing. Unless the ARB, within 30 days of the filing of the
petition for review, notifies the parties that the case has been
accepted for review, the decision of the ALJ constitutes final agency
action. Any case accepted by the ARB must be decided within 180 days of
acceptance. If not so decided, the decision of the ALJ constitutes
final agency action.
Sec. 683.840 Is there an alternative dispute resolution process that
may be used in place of an Office of Administrative Law Judges hearing?
(a) The parties to a complaint which has been filed according to
the requirements of Sec. 683.800 may choose to waive their rights to
an administrative hearing before the OALJ. Instead, they may choose to
transfer the settlement of their dispute to an individual acceptable to
all parties who will conduct an informal review of the stipulated facts
and render a decision in accordance with applicable law. A written
decision must be issued within 60 days after submission of the matter
for informal review.
(b) The waiver of the right to request a hearing before the OALJ
described in paragraph (a) of this section will automatically be
revoked if a settlement has not been reached or a written decision has
not been issued within the 60 days provided in paragraph (a) of this
section.
(c) The decision rendered under this informal review process will
be treated as a final decision of an Administrative Law Judge under
WIOA sec. 186(b).
Sec. 683.850 Is there judicial review of a final order of the
Secretary issued under WIOA?
(a) Any party to a proceeding which resulted in a Secretary's final
order under WIOA sec. 186 in which the Secretary awards, declines to
award, or only conditionally awards financial assistance or with
respect to a corrective action or sanction imposed under WIOA sec. 184
may obtain a review in the United States Court of Appeals having
jurisdiction over the applicant or recipient of funds involved, by
filing a review petition within 30 days of the issuance of the
Secretary's final order in accordance with WIOA sec. 187.
(b) The court has jurisdiction to make and enter a decree
affirming, modifying, or setting aside the order of the Secretary, in
whole or in part.
(c) No objection to the Secretary's order may be considered by the
court unless the objection was specifically urged, in a timely manner,
before the Secretary. The review is limited to questions of law, and
the findings of fact of the Secretary are conclusive if supported by
substantial evidence.
(d) The judgment of the court is final, subject to certiorari
review by the United States Supreme Court.
0
17. Add part 684 to read as follows:
[[Page 56429]]
PART 684--INDIAN AND NATIVE AMERICAN PROGRAMS UNDER TITLE I OF THE
WORKFORCE INNOVATION AND OPPORTUNITY ACT
Subpart A--Purposes and Policies
Sec.
684.100 What is the purpose of the programs established to serve
Indians and Native Americans under of the Workforce Innovation and
Opportunity Act?
684.110 How must Indian and Native American programs be
administered?
684.120 What obligation does the Department have to consult with the
Indian and Native American program grantee community in developing
rules, regulations, and standards of accountability for Indian and
Native American programs?
684.130 What definitions apply to terms used in this part?
Subpart B--Service Delivery Systems Applicable to Section 166 Programs
Sec.
684.200 What are the requirements to apply for a Workforce
Innovation and Opportunity Act grant?
684.210 What priority for awarding grants is given to eligible
organizations?
684.220 What is the process for applying for a Workforce Innovation
and Opportunity Act grant?
684.230 What appeal rights are available to entities that are denied
a grant award?
684.240 Are there any other ways in which an entity may be awarded a
Workforce Innovation and Opportunity Act grant?
684.250 Can an Indian and Native American program grantee's grant
award be terminated?
684.260 Does the Department have to award a grant for every part of
the country?
684.270 How are Workforce Innovation and Opportunity Act funds
allocated to Indian and Native American program grantees?
Subpart C--Services to Customers
Sec.
684.300 Who is eligible to receive services under the Indian and
Native American program?
684.310 What are Indian and Native American program grantee
allowable activities?
684.320 Are there any restrictions on allowable activities?
684.330 What is the role of Indian and Native American program
grantees in the one-stop delivery system?
684.340 What policies govern payments to participants, including
wages, training allowances or stipends, or direct payments for
supportive services?
684.350 What will the Department do to strengthen the capacity of
Indian and Native American program grantees to deliver effective
services?
Subpart D--Supplemental Youth Services
Sec.
684.400 What is the purpose of the supplemental youth services
program?
684.410 What entities are eligible to receive supplemental youth
services funding?
684.420 What are the planning requirements for receiving
supplemental youth services funding?
684.430 What individuals are eligible to receive supplemental youth
services?
684.440 How is funding for supplemental youth services determined?
684.450 How will supplemental youth services be provided?
684.460 What performance indicators are applicable to the
supplemental youth services program?
Subpart E--Services to Communities
Sec.
684.500 What services may Indian and Native American program
grantees provide to or for employers under the Workforce Innovation
and Opportunity Act?
684.510 What services may Indian and Native American program
grantees provide to the community at large under the Workforce
Innovation and Opportunity Act?
684.520 Must Indian and Native American program grantees give
preference to Indian and Native American entities in the selection
of contractors or service providers?
684.530 What rules govern the issuance of contracts and/or
subgrants?
Subpart F--Accountability for Services and Expenditures
Sec.
684.600 To whom is the Indian and Native American program grantee
accountable for the provision of services and the expenditure of
Indian and Native American funds?
684.610 How is this accountability documented and fulfilled?
684.620 What performance indicators are in place for the Indian and
Native American program?
684.630 What are the requirements for preventing fraud and abuse
under the WIOA?
684.640 What grievance systems must an Indian and Native American
program grantee provide?
684.650 Can Indian and Native American program grantees exclude
segments of the eligible population?
Subpart G--Section 166 Planning/Funding Process
Sec.
684.700 What is the process for submitting a 4-year plan?
684.710 What information must be included in the 4-year plans as
part of the competitive application?
684.720 When must the 4-year plan be submitted?
684.730 How will the Department review and approve such plans?
684.740 Under what circumstances can the Department or the Indian
and Native American program grantee modify the terms of the
grantee's plan(s)?
Subpart H--Administrative Requirements
Sec.
684.800 What systems must an Indian and Native American program
grantee have in place to administer an Indian and Native American
program?
684.810 What types of costs are allowable expenditures under the
Indian and Native American program?
684.820 What rules apply to administrative costs under the Indian
and Native American program?
684.830 Does the Workforce Innovation and Opportunity Act
administrative cost limit for States and local areas apply to WIOA
grants?
684.840 How must Indian and Native American program grantees
classify costs?
684.850 What cost principles apply to Indian and Native American
funds?
684.860 What audit requirements apply to Indian and Native American
grants?
684.870 What is ``program income'' and how is it regulated in the
Indian and Native American program?
Subpart I--Miscellaneous Program Provisions
Sec.
684.900 Does the Workforce Innovation and Opportunity Act provide
regulatory and/or statutory waiver authority?
684.910 What information is required in a waiver request?
684.920 What provisions of law or regulations may not be waived?
684.930 May Indian and Native American program grantees combine or
consolidate their employment and training funds?
684.940 What is the role of the Native American Employment and
Training Council?
684.950 Does the Workforce Innovation and Opportunity Act provide
any additional assistance to unique populations in Alaska and
Hawaii?
Authority: Secs. 134, 166, 189, 503, Public Law 113-128, 128
Stat. 1425 (Jul. 22, 2014).
Subpart A--Purposes and Policies
Sec. 684.100 What is the purpose of the programs established to serve
Indians and Native Americans under the Workforce Innovation and
Opportunity Act?
(a) The purpose of WIOA Indian and Native American (INA) programs
in sec. 166 is to support employment and training activities for INAs
in order to:
(1) Develop more fully the academic, occupational, and literacy
skills of such individuals;
(2) Make such individuals more competitive in the workforce and to
equip them with entrepreneurial skills necessary for successful self-
employment; and
(3) Promote the economic and social development of INA communities
in accordance with the goals and values of such communities.
(b) The principal means of accomplishing these purposes is to
enable tribes and Native American organizations to provide employment
[[Page 56430]]
and training services to INAs and their communities. Services should be
provided in a culturally appropriate manner, consistent with the
principles of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.).
Sec. 684.110 How must Indian and Native American programs be
administered?
(a) INA programs will be administered to maximize the Federal
commitment to support the growth and development of INAs and their
communities as determined by representatives of such communities.
(b) In administering these programs, the Department will follow the
Congressional declaration of policy set forth in the Indian Self-
Determination and Education Assistance Act, at 25 U.S.C. 450a, as well
as the Department of Labor's ``American Indian and Alaska Native
Policies.''
(c) The regulations in this part are not intended to abrogate the
trust responsibilities of the Federal government to Federally
recognized tribes in any way.
(d) The Department will administer INA programs through a single
organizational unit and consistent with the requirements in sec. 166(i)
of WIOA. The Division of Indian and Native American Programs (DINAP)
within the Employment and Training Administration (ETA) is designated
as this single organizational unit as required by sec. 166(i)(1) of
WIOA.
(e) The Department will establish and maintain administrative
procedures for the selection, administration, monitoring, and
evaluation of INA employment and training programs authorized under
this Act.
Sec. 684.120 What obligation does the Department have to consult with
the Indian and Native American grantee community in developing rules,
regulations, and standards of accountability for Indian and Native
American programs?
The Department's primary consultation vehicle for INA programs is
the Native American Employment and Training Council. In addition, the
Department will consult with the INA program grantee community in
developing policies for the INA programs, actively seeking and
considering the views of INA program grantees prior to establishing INA
program policies and regulations. The Department will follow the
Department of Labor's tribal consultation policy and Executive Order
13175 of November 6, 2000.
Sec. 684.130 What definitions apply to terms used in this part?
In addition to the definitions found in secs. 3 and 166 of WIOA,
and Sec. 675.300 of this chapter, the following definitions apply:
Alaska Native-Controlled Organization means an organization whose
governing board is comprised of 51 percent or more of individuals who
are Alaska Native as defined in secs. 3(b) and 3(r) of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602(b), (r)).
Carry-in means the total amount of funds unobligated by a grantee
at the end of a program year. If the amount of funds unobligated by a
grantee at the end of a program year is more than 20 percent of the
grantee's ``total funds available'' for that program year, such excess
amount is considered ``excess carry-in.''
DINAP means the Division of Indian and Native American Programs
within the Employment and Training Administration of the U.S.
Department of Labor.
Governing body means a body of representatives who are duly
elected, appointed by duly elected officials, or selected according to
traditional tribal means. A governing body must have the authority to
provide services to and to enter into grants on behalf of the
organization that selected or designated it.
Grant Officer means a U.S. Department of Labor official authorized
to obligate Federal funds.
High-poverty area means a Census tract, a set of contiguous Census
tracts, an American Indian Reservation, Oklahoma Tribal Statistical
Area, Alaska Native Village Statistical Area, or Alaska Native Regional
Corporation Area, Native Hawaiian Homeland Area or county where the
poverty rate for the INA population is at least 25 percent of the total
INA population of such area using the most recent ACS 5-Year data.
Alternatively, high-poverty also can mean, a Census tract, a set of
contiguous Census tracts, an American Indian Reservation, Oklahoma
Tribal Statistical Area, Alaska Native Village Statistical Area, or
Alaska Native Regional Corporation Area, Native Hawaiian Homeland Area
or county where the poverty rate for the total population is at least
25 percent of such area using the most recent ACS 5-Year data. INA
program grantees may use either definition when determining if a Census
tract is a high-poverty area.
INA program grantee means an entity which is formally selected
under subpart B of this part to operate an INA program and which has a
grant agreement.
Incumbent grantee means an entity that is currently receiving a
grant under sec. 166 of WIOA.
Indian and Native American or INA means, for the purpose of this
part, an individual that is an American Indian, Native American, Native
Hawaiian, or Alaska Native.
Indian-Controlled Organization means an organization whose
governing board is comprised of 51 percent or more individuals who are
members of one or more Federally recognized tribes. Incumbent grantees
who were receiving INA funding as of October 18, 2016 and met the 51
percent threshold with the inclusion of members of ``State recognized
tribes'' continue to be eligible for WIOA sec. 166 funds as an Indian-
Controlled Organization, as long as they have been continuously funded
under WIOA as recipients of INA program grantees since October 18,
2016. Tribal Colleges and Universities meet the definition of Indian-
Controlled Organization for the purposes of this regulation.
Native Hawaiian-Controlled Organization means an organization whose
governing board is comprised of 51 percent or more individuals who are
Native Hawaiian as defined in sec. 7207 of the Native Hawaiian
Education Act (20 U.S.C. 7517).
Total funds available means all funds that a grantee had
``available'' at the beginning of a program year.
Underemployed means an individual who is working part-time but
desires full-time employment, or who is working in employment not
commensurate with the individual's demonstrated level of educational
and/or skill achievement.
Subpart B--Service Delivery Systems Applicable to Section 166
Programs
Sec. 684.200 What are the requirements to apply for a Workforce
Innovation and Opportunity Act grant?
(a) To be eligible to apply for a WIOA, sec. 166 grant, an entity
must have legal status as a government or as an agency of a government,
private non-profit corporation, or a consortium whose members all
qualify as one of these entities.
(b) A new entity (which is not an incumbent grantee) must have a
population within the designated geographic service area which would
receive at least $100,000 under the funding formula found at Sec.
684.270(b), including any amounts received for supplemental youth
services under the funding formula at Sec. 684.440(a).
(c) Incumbent grantees which do not meet this dollar threshold and
were
[[Page 56431]]
receiving INA funding of less than $100,000 as of October 18, 2016 will
be grandfathered into the program and are eligible to be awarded less
than $100,000 so long as the grantees have continuously received less
than $100,000 since October 18, 2016.
(d) The Department will make an exception to the $100,000 minimum
for applicants that apply for WIOA funding through Public Law 102-477,
the Indian, Employment, Training, and Related Services demonstration
program, if all resources to be consolidated under the Public Law 102-
477 plan total at least $100,000, with at least $20,000 derived from
sec. 166 funds. However, incumbent Public Law 102-477 grantees that
were receiving INA funding of less than $20,000 as of October 18, 2016
will be grandfathered into the program and are eligible to be awarded
less than $20,000 so long as the grantees have continuously received
less than $20,000 since October 18, 2016.
(e) To be eligible to apply as a consortium, each member of the
consortium must meet the requirements of paragraph (a) of this section
and must:
(1) Be in close proximity to one another, but may operate in more
than one State;
(2) Have an administrative unit legally authorized to run the
program and to commit the other members to contracts, grants, and other
legally-binding agreements; and
(3) Be jointly and individually responsible for the actions and
obligations of the consortium, including debts.
(f) Entities eligible under paragraph (a)(1) of this section are:
(1) Federally recognized Indian tribes;
(2) Tribal organizations, as defined in 25 U.S.C. 450b;
(3) Alaska Native-controlled organizations;
(4) Native Hawaiian-controlled organizations;
(5) Indian-controlled organizations serving INAs; and
(6) A consortium of eligible entities which meets the legal
requirements for a consortium described in paragraph (b) of this
section.
(g) State-recognized tribal organizations that meet the definition
of an Indian-controlled organization are eligible to apply for WIOA
sec. 166 grant funds. State-recognized tribes that do not meet this
definition but were grantees under WIA as of July 1, 2015 will be
grandfathered into WIOA as Indian-controlled organizations provided
they meet the definition of Indian-controlled organization in Sec.
684.130.
Sec. 684.210 What priority for awarding grants is given to eligible
organizations?
(a) Federally recognized Indian tribes, Alaska Native entities, or
a consortium of such entities will have priority to receive grants
under this part for those geographic service areas in which they have
legal jurisdiction, such as an Indian reservation, Oklahoma Tribal
Service Area (OTSA), or Alaska Native Village Service Area (ANVSA).
(b) If the Department decides not to make an award to an Indian
tribe or Alaska Native entity that has legal jurisdiction over a
service area, it will consult with such tribe or Alaska Native entity
that has jurisdiction before selecting another entity to provide
services for such areas.
(c) The priority described in paragraphs (a) and (b) of this
section does not apply to service areas outside the legal jurisdiction
of an Indian tribe or Alaska Native entity.
Sec. 684.220 What is the process for applying for a Workforce
Innovation and Opportunity Act grant?
(a) Entities seeking a WIOA sec. 166 grant, including incumbent
grantees, will be provided an opportunity to apply for a WIOA sec. 166
grant every 4 years through a competitive grant process.
(b) As part of the competitive application process, applicants will
be required to submit a 4-year plan as described at Sec. 684.710. The
requirement to submit a 4-year plan does not apply to entities that
have been granted approval to transfer their WIOA funds to the
Department of the Interior pursuant to Public Law 102-477.
Sec. 684.230 What appeal rights are available to entities that are
denied a grant award?
Any entity that is denied a grant award for which it applied in
whole or in part may appeal the denial to the Office of the
Administrative Law Judges using the procedures at Sec. 683.800 of this
chapter or the alternative dispute resolution procedures at Sec.
683.840 of this chapter. The Grant Officer will provide an entity whose
request for a grant award was denied, in whole or in part, with a copy
of the appeal procedures.
Sec. 684.240 Are there any other ways in which an entity may be
awarded a Workforce Innovation and Opportunity Act grant?
Yes. For areas that would otherwise go unserved, the Grant Officer
may designate an entity, which has not submitted a competitive
application, but which meets the qualifications for a grant award, to
serve the particular geographic area. Under such circumstances, DINAP
will seek the views of INA leaders in the community that would
otherwise go unserved before making the decision to designate the
entity that would serve the community. DINAP will inform the Grant
Officer of the INA leaders' views. The Grant Officer will accommodate
views of INA leaders in such areas to the extent possible.
Sec. 684.250 Can an Indian and Native American grantee's grant award
be terminated?
(a) Yes, the Grant Officer can terminate a grantee's award for
cause, or the Secretary or another Department of Labor official
confirmed by the Senate can terminate a grantee's award in emergency
circumstances where termination is necessary to protect the integrity
of Federal funds or ensure the proper operation of the program under
sec. 184(e) of WIOA.
(b) The Grant Officer may terminate a grantee's award for cause
only if there is a substantial or persistent violation of the
requirements in WIOA or the WIOA regulations. The grantee must be
provided with written notice 60 days before termination, stating the
specific reasons why termination is proposed. The appeal procedures at
Sec. 683.800 of this chapter apply.
Sec. 684.260 Does the Department have to award a grant for every part
of the country?
No, if there are no entities meeting the requirements for a grant
award in a particular area, or willing to serve that area, the
Department will not award funds for that service area. The funds that
otherwise would have been allocated to that area under Sec. 684.270
will be distributed to other INA program grantees, or used for other
program purposes such as technical assistance and training (TAT).
Unawarded funds used for TAT are in addition to, and not subject to the
limitations on, amounts reserved under Sec. 684.270(e). Areas which
are unserved by the INA program may be restored during a subsequent
grant award cycle, when and if a current grantee or other eligible
entity applies for a grant award to serve that area.
Sec. 684.270 How are Workforce Innovation and Opportunity Act funds
allocated to Indian and Native American program grantees?
(a) Except for reserved funds described in paragraph (e) of this
section and funds used for other program purposes under Sec. 684.260,
all funds available for WIOA sec. 166(d)(2)(A)(i) comprehensive
[[Page 56432]]
workforce investment services program at the beginning of a program
year will be allocated to INA program grantees for the geographic
service area(s) awarded to them through the grant competition.
(b) Each INA program grantee will receive the sum of the funds
calculated using the following formula:
(1) One-quarter of the funds available will be allocated on the
basis of the number of unemployed American Indian, Alaska Native, and
Native Hawaiian individuals in the grantee's geographic service area(s)
compared to all such unemployed persons in the United States.
(2) Three-quarters of the funds available will be allocated on the
basis of the number of American Indian, Alaska Native, and Native
Hawaiian individuals in poverty in the grantee's geographic service
area(s) as compared to all such persons in poverty in the United
States.
(3) The data and definitions used to implement these formulas are
provided by the U.S. Bureau of the Census.
(c) In years immediately following the use of new data in the
formula described in paragraph (b) of this section, based upon criteria
to be described in the Funding Opportunity Announcement (FOA), the
Department may utilize a hold harmless factor to reduce the disruption
in grantee services which would otherwise result from changes in
funding levels. This factor will be determined in consultation with the
grantee community and the Native American Employment and Training
Council.
(d) The Department may reallocate funds from one INA program
grantee to another if a grantee is unable to serve its area for any
reason, such as audit or debt problems, criminal activity, internal
(political) strife, failure to adhere to or meet grant terms and
conditions, or lack of ability or interest. If a grantee has excess
carry-in for a program year, the Department also may readjust the
awards granted under the funding formula so that an amount that equals
the previous program year's carry-in will be allocated to another INA
program grantee(s).
(e) The Department may reserve up to one percent of the funds
appropriated under WIOA sec. 166(d)(2)(A)(i) for any program year for
TAT purposes. It will consult with the Native American Employment and
Training Council in planning how the TAT funds will be used,
designating activities to meet the unique needs of the INA communities
served by the INA program. INA program grantees also will have access
to resources available to other Department programs to the extent
permitted under other law.
Subpart C--Services to Customers
Sec. 684.300 Who is eligible to receive services under the Indian and
Native American program?
(a) A person is eligible to receive services under the INA program
if that person is:
(1) An Indian, as determined by a policy of the INA program
grantee. The grantee's definition must at least include anyone who is a
member of a Federally-recognized tribe; or
(2) An Alaska Native, as defined in WIOA sec. 166(b)(1); or
(3) A Native Hawaiian, as defined in WIOA sec. 166(b)(3).
(b) The person also must be any one of the following:
(1) Unemployed; or
(2) Underemployed, as defined in Sec. 684.130; or
(3) A low-income individual, as defined in sec. 3(36) of WIOA; or
(4) The recipient of a bona fide lay-off notice which has taken
effect in the last 6 months or will take effect in the following 6-
month period, who is unlikely to return to a previous industry or
occupation, and who is in need of retraining for either employment with
another employer or for job retention with the current employer; or
(5) An individual who is employed, but is determined by the grantee
to be in need of employment and training services to obtain or retain
employment that allows for self-sufficiency.
(c) If applicable, male applicants also must register or be
registered for the Selective Service.
Sec. 684.310 What are Indian and Native American program grantee
allowable activities?
(a) Generally, INA program grantees must make efforts to provide
employment and training opportunities to eligible individuals (as
described in Sec. 684.300) who can benefit from, and who are most in
need of, such opportunities. In addition, INA program grantees must
make efforts to develop programs that contribute to occupational
development, upward mobility, development of new careers, and
opportunities for nontraditional employment.
(b) Allowable activities for INA program grantees are any services
consistent with the purposes of this part that are necessary to meet
the needs of INAs preparing to enter, reenter, or retain unsubsidized
employment leading to self-sufficiency.
(c) Examples of career services, which may be delivered in
partnership with the one-stop delivery system, are described in sec.
134(c)(2) of WIOA and Sec. 678.430 of this chapter.
(d) Follow-up services, including counseling and supportive
services for up to 12 months after the date of exit to assist
participants in obtaining and retaining employment.
(e) Training services include the activities described in WIOA sec.
134(c)(3)(D).
(f) Allowable activities specifically designed for youth, as listed
in sec. 129 of WIOA, include:
(1) Tutoring, study skills training, instruction, and evidence-
based dropout prevention and recovery strategies that lead to
completion of the requirements for a secondary school diploma or its
recognized equivalent (including a recognized certificate of attendance
or similar document for individuals with disabilities) or for a
recognized postsecondary credential;
(2) Alternative secondary school services, or dropout recovery
services, as appropriate;
(3) Paid and unpaid work experiences that have as a component
academic and occupational education, which may include:
(i) Summer employment opportunities and other employment
opportunities available throughout the school year;
(ii) Pre-apprenticeship programs;
(iii) Internships and job shadowing; and
(iv) On-the-job training opportunities;
(4) Occupational skill training, which must include priority
consideration for training programs that lead to recognized
postsecondary credentials that are aligned with in-demand industry
sectors or occupations in the local area involved;
(5) Education offered concurrently with and in the same context as
workforce preparation activities and training for a specific occupation
or occupational cluster;
(6) Leadership development opportunities, which may include
community service and peer-centered activities encouraging
responsibility and other positive social and civic behaviors, as
appropriate;
(7) Supportive services as defined in WIOA sec. 3(59);
(8) Adult mentoring for the period of participation and a
subsequent period, for a total of not less than 12 months;
(9) Follow-up services for not less than 12 months after the
completion of participation, as appropriate;
(10) Comprehensive guidance and counseling, which may include drug
and alcohol abuse counseling and referral, as appropriate;
[[Page 56433]]
(11) Financial literacy education;
(12) Entrepreneurial skills training;
(13) Services that provide labor market and employment information
about in-demand industry sectors or occupations available in the local
area, such as career awareness, career counseling, and career
exploration services; and
(14) Activities that help youth prepare for and transition to
postsecondary education and training.
(g) In addition, allowable activities include job development and
employment outreach, including:
(1) Support of the Tribal Employment Rights Office (TERO) program;
(2) Negotiation with employers to encourage them to train and hire
participants;
(3) Establishment of linkages with other service providers to aid
program participants;
(4) Establishment of management training programs to support tribal
administration or enterprises; and
(5) Establishment of linkages with remedial education, such as
adult basic education, basic literacy training, and training programs
for limited English proficient (LEP) individuals, as necessary.
(h) Participants may be enrolled in more than one activity at a
time and may be sequentially enrolled in multiple activities.
(i) Services may be provided to a participant in any sequence based
on the particular needs of the participant.
Sec. 684.320 Are there any restrictions on allowable activities?
(a) Training services must be directly linked to an in-demand
industry sector or occupation in the service area, or in another area
to which a participant receiving such services is willing to relocate.
(b) INA program grantees must provide on-the-job training (OJT)
services consistent with the definition provided in WIOA sec. 3(44) and
other limitations in WIOA. Individuals in OJT must:
(1) Be compensated at the same rates, including periodic increases,
as trainees or employees who are similarly situated in similar
occupations by the same employer and who have similar training,
experience, and skills; and
(2) Be provided benefits and working conditions at the same level
and to the same extent as other trainees or employees working a similar
length of time and doing the same type of work.
(c) In addition, OJT contracts under this title must not be entered
into with employers who have:
(1) Received payments under previous contracts under WIOA or the
Workforce Investment Act of 1998 and have exhibited a pattern of
failing to provide OJT participants with continued, long-term
employment as regular employees with wages and employment benefits
(including health benefits) and working conditions at the same level
and to the same extent as other employees working a similar length of
time and doing the same type of work; or
(2) Have exhibited a pattern of violating paragraphs (b)(1) and/or
(2) of this section.
(d) INA program grantees are prohibited from using funds to
encourage the relocation of a business, as described in WIOA sec.
181(d) and Sec. 683.260 of this chapter.
(e) INA program grantees must only use WIOA funds for activities
that are in addition to those that would otherwise be available to the
INA population in the area in the absence of such funds.
(f) INA program grantees must not spend funds on activities that
displace currently employed individuals, impair existing contracts for
services, or in any way affect union organizing.
(g) Under Sec. 683.255 of this chapter, sectarian activities
involving WIOA financial assistance or participants are limited in
accordance with the provisions of sec. 188(a)(3) of WIOA.
Sec. 684.330 What is the role of Indian and Native American program
grantees in the one-stop delivery system?
(a) In those local areas where an INA program grantee conducts
field operations or provides substantial services, the INA program
grantee is a required partner in the local one-stop delivery system and
is subject to the provisions relating to such partners described in
part 678 of this chapter. Consistent with those provisions, a
Memorandum of Understanding (MOU) between the INA program grantee and
the Local Workforce Development Board (WDB) over the operation of the
one-stop center(s) in the Local WDB's workforce development area also
must be executed. Where the Local WDB is an alternative entity under
Sec. 679.150 of this chapter, the INA program grantee must negotiate
with the alternative entity on the terms of its MOU and the scope of
its on-going role in the local workforce development system, as
specified in Sec. Sec. 678.420 and 678.500 through 678.510 of this
chapter. In local areas with a large concentration of potentially
eligible INA participants, which are in an INA program grantee's
service area but in which the grantee does not conduct operations or
provide substantial services, the INA program grantee should encourage
such individuals to participate in the one-stop delivery system in that
area in order to receive WIOA services.
(b) At a minimum, the MOU must contain the provisions listed in
WIOA sec. 121(c) and:
(1) The exchange of information on the services available and
accessible through the one-stop delivery system and the INA program;
(2) As necessary to provide referrals and case management services,
the exchange of information on INA participants in the one-stop
delivery system and the INA program; and
(3) Arrangements for the funding of services provided by the one-
stop(s), consistent with the requirements that no expenditures may be
made with INA program funds for individuals who are not eligible or for
services not authorized under this part.
(c) Where the INA program grantee has failed to enter into a MOU
with the Local WDB, the INA program grantee must describe in its 4-year
plan the good-faith efforts made in order to negotiate an MOU with the
Local WDB.
(d) Pursuant to WIOA sec. 121(h)(2)(D)(iv), INA program grantees
will not be subject to the funding of the one-stop infrastructure
unless otherwise agreed upon in the MOU under subpart C of part 678 of
this chapter.
Sec. 684.340 What policies govern payments to participants, including
wages, training allowances or stipends, or direct payments for
supportive services?
(a) INA program grantees may pay training allowances or stipends to
participants for their successful participation in and completion of
education or training services (except such allowance may not be
provided to participants in OJT). Allowances or stipends may not exceed
the Federal or State minimum wage, whichever is higher.
(b) INA program grantees may not pay a participant in a training
activity when the person fails to participate without good cause.
(c) If a participant in a WIOA-funded activity, including
participants in OJT, is involved in an employer-employee relationship,
that participant must be paid wages and fringe benefits at the same
rates as trainees or employees who have similar training, experience
and skills and which are not less than the higher of the applicable
Federal, State, or local minimum wage.
(d) In accordance with the policy described in the 4-year plan
submitted as part of the competitive process, INA program grantees may
pay incentive bonuses to participants who meet or exceed individual
employability or training goals established in writing in the
individual employment plan.
[[Page 56434]]
(e) INA program grantees must comply with other restrictions listed
in WIOA secs. 181 through 195, which apply to all programs funded under
title I of WIOA, including the provisions on labor standards in WIOA
sec. 181(b).
Sec. 684.350 What will the Department do to strengthen the capacity
of Indian and Native American program grantees to deliver effective
services?
The Department will provide appropriate TAT, as necessary, to INA
program grantees. This TAT will assist INA program grantees to improve
program performance and improve the quality of services to the target
population(s), as resources permit.
Subpart D--Supplemental Youth Services
Sec. 684.400 What is the purpose of the supplemental youth services
program?
The purpose of this program is to provide supplemental employment
and training and related services to low-income INA youth on or near
Indian reservations and in Oklahoma, Alaska, or Hawaii.
Sec. 684.410 What entities are eligible to receive supplemental youth
services funding?
Entities eligible to receive supplemental youth services funding
are limited to: Those tribal, Alaska Native, Native Hawaiian and
Oklahoma tribal grantees funded under WIOA sec. 166(d)(2)(A)(i) or
other grantees serving those areas, and entities serving the
populations specified in Sec. 684.400 that received funding under sec.
166(d)(2)(A)(ii) of the Workforce Investment Act.
Sec. 684.420 What are the planning requirements for receiving
supplemental youth services funding?
Applicants eligible to apply for supplemental youth funding must
describe the supplemental youth services they intend to provide in the
4-year plan that they will submit as part of the competitive
application process. The information on youth services will be
incorporated into the overall 4-year plan, which is more fully
described in Sec. Sec. 684.700 and 684.710, and is required for both
adult and youth funds. As indicated in Sec. 684.710(c), additional
planning information required for applicants requesting supplemental
youth funding will be provided in the FOA. The Department envisions
that the strategy for youth funds will not be extensive; however,
grantees will be required to provide the number of youth it plans to
serve and projected performance outcomes. The Department also supports
youth activities that preserve INA culture and will support strategies
that promote INA values.
Sec. 684.430 What individuals are eligible to receive supplemental
youth services?
(a) Participants in supplemental youth services activities must be:
(1) American Indian, Alaska Native or Native Hawaiian as determined
by the INA program grantee according to Sec. 684.300(a);
(2) Between the age of 14 and 24; and
(3) A low-income individual as defined at WIOA sec. 3(36) except up
to five percent of the participants during a program year in an INA
youth program may not be low-income individuals provided they meet the
eligibility requirements of paragraphs (a)(1) and (2) of this section.
(b) For the purpose of this section, the term ``low-income,'' used
with respect to an individual, also includes a youth living in a high-
poverty area.
Sec. 684.440 How is funding for supplemental youth services
determined?
(a) Supplemental youth funding will be allocated to eligible INA
program grantees on the basis of the relative number of INA youth
between the ages of 14 and 24 living in poverty in the grantee's
geographic service area compared to the number of INA youth between the
ages of 14 and 24 living in poverty in all eligible geographic service
areas. The Department reserves the right to redefine the supplemental
youth funding stream in future program years, in consultation with the
Native American Employment and Training Council, as program experience
warrants and as appropriate data become available.
(b) The data used to implement this formula are provided by the
U.S. Bureau of the Census.
(c) The hold harmless factor described in Sec. 684.270(c) also
applies to supplemental youth services funding. This factor also will
be determined in consultation with the grantee community and the Native
American Employment and Training Council.
(d) The reallocation provisions of Sec. 684.270(d) also apply to
supplemental youth services funding.
(e) Any supplemental youth services funds not allotted to a grantee
or refused by a grantee may be used for the purposes outlined in Sec.
684.270(e), as described in Sec. 684.260. Any such funds are in
addition to, and not subject to the limitations on, amounts reserved
under Sec. 684.270(e).
Sec. 684.450 How will supplemental youth services be provided?
(a) INA program grantees may offer supplemental services to youth
throughout the school year, during the summer vacation, and/or during
other breaks during the school year at their discretion.
(b) The Department encourages INA program grantees to work with
local educational agencies to provide academic credit for youth
activities whenever possible.
(c) INA program grantees may provide participating youth with the
activities referenced in Sec. 684.310(e).
Sec. 684.460 What performance indicators are applicable to the
supplemental youth services program?
(a) Pursuant to WIOA secs. 166(e)(5) and 166(h), the performance
indicators at WIOA sec. 116(b)(2)(A)(ii) apply to the INA youth
program, which must include:
(1) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the second
quarter after exit from the program;
(2) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the fourth
quarter after exit from the program;
(3) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(4) The percentage of program participants who obtain a recognized
postsecondary credential, or a secondary school diploma or its
recognized equivalent (subject to WIOA sec. 116(b)(2)(A)(iii)) during
participation in or within 1 year after exit from the program;
(5) The percentage of program participants who, during a program
year, are in an education or training program that leads to a
recognized postsecondary credential or employment and who are achieving
measurable skill gains toward such a credential or employment; and
(6) The indicators of effectiveness in serving employers
established under WIOA sec. 116(b)(2)(A)(iv).
(b) In addition to the performance indicators in paragraphs (a)(1)
through (6) of this section, the Secretary, in consultation with the
Native American Employment and Training Council, must develop a set of
performance indicators and standards that is in addition to the primary
indicators of performance that are applicable to the INA program under
this section.
[[Page 56435]]
Subpart E--Services to Communities
Sec. 684.500 What services may Indian and Native American grantees
provide to or for employers under the Workforce Innovation and
Opportunity Act?
(a) INA program grantees may provide a variety of services to
employers in their areas. These services may include:
(1) Workforce planning which involves the recruitment of current or
potential program participants, including job restructuring services;
(2) Recruitment and assessment of potential employees, with
priority given to potential employees who are or who might become
eligible for program services;
(3) Pre-employment training;
(4) Customized training;
(5) OJT;
(6) Post-employment services, including training and support
services to encourage job retention and upgrading;
(7) Work experience for public or private sector work sites; and
(8) Other innovative forms of worksite training.
(b) In addition to the services listed in paragraph (a) of this
section, other grantee-determined services (as described in the
grantee's 4-year plan), which are intended to assist eligible
participants to obtain or retain employment also may be provided to or
for employers.
Sec. 684.510 What services may Indian and Native American grantees
provide to the community at large under the Workforce Innovation and
Opportunity Act?
(a) INA program grantees may provide services to the INA
communities in their service areas by engaging in program development
and service delivery activities which:
(1) Strengthen the capacity of Indian-controlled institutions to
provide education and work-based learning services to INA youth and
adults, whether directly or through other INA institutions such as
tribal colleges;
(2) Increase the community's capacity to deliver supportive
services, such as child care, transportation, housing, health, and
similar services needed by clients to obtain and retain employment;
(3) Use program participants engaged in education, training, work
experience, or similar activities to further the economic and social
development of INA communities in accordance with the goals and values
of those communities; and
(4) Engage in other community-building activities described in the
INA program grantee's 4-year plan.
(b) INA program grantees should develop their 4-year plan in
conjunction with, and in support of, strategic tribal planning and
community development goals.
Sec. 684.520 Must Indian and Native American program grantees give
preference to Indian and Native American entities in the selection of
contractors or service providers?
Yes, INA program grantees must give as much preference as possible
to Indian organizations and to Indian-owned economic enterprises, as
defined in sec. 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452),
when awarding any contract or subgrant.
Sec. 684.530 What rules govern the issuance of contracts and/or
subgrants?
In general, INA program grantees must follow the rules of Uniform
Administrative Requirements, Cost Principles, & Audit Requirements for
Federal Awards when awarding contracts and/or subgrants under WIOA sec.
166. These requirements are codified at 2 CFR part 200, subpart E (and
Department modifications at 2 CFR part 2900), and covered in WIOA
regulations at Sec. 683.200 of this chapter. These rules do not apply
to OJT contract awards.
Subpart F--Accountability for Services and Expenditures
Sec. 684.600 To whom is the Indian and Native American program
grantee accountable for the provision of services and the expenditure
of Indian and Native American funds?
(a) The INA program grantee is responsible to the INA community to
be served by INA funds.
(b) The INA program grantee also is responsible to the Department
of Labor, which is charged by law with ensuring that all WIOA funds are
expended:
(1) According to applicable laws and regulations;
(2) For the benefit of the identified INA client group; and
(3) For the purposes approved in the grantee's plan and signed
grant document.
Sec. 684.610 How is this accountability documented and fulfilled?
(a) Each INA program grantee must establish its own internal
policies and procedures to ensure accountability to the INA program
grantee's governing body, as the representative of the INA
community(ies) served by the INA program. At a minimum, these policies
and procedures must provide a system for governing body review and
oversight of program plans and measures and standards for program
performance.
(b) Accountability to the Department is accomplished in part
through on-site program reviews (monitoring), which strengthen the INA
program grantee's capability to deliver effective services and protect
the integrity of Federal funds.
(c) In addition to audit information, as described at Sec. 684.860
and program reviews, accountability to the Department is documented and
fulfilled by the submission of quarterly financial and program reports,
and compliance with the terms and conditions of the grant award.
Sec. 684.620 What performance indicators are in place for the Indian
and Native American program?
(a) Pursuant to WIOA secs. 166(e)(5) and 166(h), the performance
indicators at WIOA sec. 116(b)(2)(A)(i) apply to the INA program which
must include:
(1) The percentage of program participants who are in unsubsidized
employment during the second quarter after exit from the program;
(2) The percentage of program participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(3) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(4) The percentage of program participants who obtain a recognized
postsecondary credential, or a secondary school diploma or its
recognized equivalent (subject to WIOA sec. 116(b)(2)(A)(iii)) during
participation in or within 1 year after exit from the program;
(5) The percentage of program participants who, during a program
year, are in an education or training program that leads to a
recognized postsecondary credential or employment and who are achieving
measurable skill gains toward such a credential or employment; and
(6) The indicators of effectiveness in serving employers
established under WIOA sec. 116(b)(2)(A)(iv).
(b) In addition to the performance indicators at WIOA sec.
116(b)(2)(A)(i), the Department, in consultation with the Native
American Employment and Training Council, must develop a set of
performance indicators and standards that are applicable to the INA
program.
Sec. 684.630 What are the requirements for preventing fraud and abuse
under the WIOA?
(a) INA program grantees must establish such fiscal control and
fund accounting procedures as may be necessary to assure the proper
disbursal of, and accounting for, Federal funds. Such procedures must
ensure that all
[[Page 56436]]
financial transactions are conducted and records maintained in
accordance with generally accepted accounting principles.
(b) Each INA program grantee must have rules to prevent conflict of
interest by its governing body. These conflict of interest rules must
include a rule prohibiting any member of any governing body or council
associated with the INA program grantee from voting on any matter which
would provide a direct financial benefit to that member, or to a member
of his or her immediate family, in accordance with Sec.
683.200(c)(5)(iii) of this chapter and 2 CFR parts 200 and 2900.
(c) Officers or agents of the INA program grantee must not solicit
or personally accept gratuities, favors, or anything of monetary value
from any actual or potential contractor, subgrantee, vendor, or
participant. This rule also must apply to officers or agents of the
grantee's contractors and/or subgrantees. This prohibition does not
apply to:
(1) Any rebate, discount, or similar incentive provided by a vendor
to its customers as a regular feature of its business; and
(2) Items of nominal monetary value distributed consistent with the
cultural practices of the INA community served by the grantee.
(d) No person who selects program participants or authorizes the
services provided to them may select or authorize services to any
participant who is such a person's spouse, parent, sibling, or child
unless:
(1)(i) The participant involved is a low-income individual; or
(ii) The community in which the participant resides has a
population of less than 1,000 INAs combined; and
(2) The INA program grantee has adopted and implemented the policy
described in the 4-year plan to prevent favoritism on behalf of such
relatives.
(e) INA program grantees are subject to the provisions of 41 U.S.C.
8702 relating to kickbacks.
(f) No assistance provided under WIOA may involve political
activities.
(g) INA program grantees must comply with the restrictions on
lobbying activities pursuant to sec. 195 of WIOA and the restrictions
on lobbying codified in the Department regulations at 29 CFR part 93.
(h) The provisions of 18 U.S.C. 665 and 666 prohibiting
embezzlement apply to programs under WIOA.
(i) Recipients of financial assistance under WIOA sec. 166 are
prohibited from discriminatory practices as outlined at WIOA sec. 188,
and the regulations implementing WIA sec. 188, at 29 CFR part 38.
However, this does not affect the legal requirement that all INA
participants be INAs. Also, INA program grantees are not obligated to
serve populations outside the geographic boundaries for which they
receive funds. However, INA program grantees are not precluded from
serving eligible individuals outside their geographic boundaries if the
INA program grantee chooses to do so.
Sec. 684.640 What grievance systems must an Indian and Native
American program grantee provide?
INA program grantees must establish grievance procedures consistent
with the requirements of WIOA sec. 181(c) and Sec. 683.600 of this
chapter.
Sec. 684.650 Can Indian and Native American grantees exclude segments
of the eligible population?
(a) No, INA program grantees cannot exclude segments of the
eligible population except as otherwise provided in this part. INA
program grantees must document in their 4-year plan that a system is in
place to afford all members of the eligible population within the
service area for which the grantee was designated an equitable
opportunity to receive WIOA services and activities.
(b) Nothing in this section restricts the ability of INA program
grantees to target subgroups of the eligible population (for example,
the disabled, substance abusers, TANF recipients, or similar
categories), as outlined in an approved 4-year plan. However, it is
unlawful to target services to subgroups on grounds prohibited by WIOA
sec. 188 and 29 CFR part 38, including tribal affiliation (which is
considered national origin). Outreach efforts, on the other hand, may
be targeted to any subgroups.
Subpart G--Section 166 Planning/Funding Process
Sec. 684.700 What is the process for submitting a 4-year plan?
Every 4 years, INA program grantees must submit a 4-year strategy
for meeting the needs of INAs in accordance with WIOA sec. 166(e). This
plan will be part of, and incorporated with, the 4-year competitive
process described in WIOA sec. 166(c) and Sec. 684.220. Accordingly,
specific requirements for the submission of a 4-year plan will be
provided in a FOA and will include the information described at Sec.
684.710.
Sec. 684.710 What information must be included in the 4-year plans as
part of the competitive application?
(a) The 4-year plan, which will be submitted as part of the
competitive process, must include the information required at WIOA
secs. 166(e)(2)-(5) which are:
(1) The population to be served;
(2) The education and employment needs of the population to be
served and the manner in which the activities to be provided will
strengthen the ability of the individuals served to obtain or retain
unsubsidized employment leading to self-sufficiency;
(3) A description of the activities to be provided and the manner
in which such activities are to be integrated with other appropriate
activities; and
(4) A description of the performance indicators and expected levels
of performance.
(b) The 4-year plan also must include any additional information
requested in the FOA.
(c) INA program grantees receiving supplemental youth funds will be
required to provide additional information (at a minimum the number of
youth it plans to serve and the projected performance outcomes) in the
4-year plan that describes a strategy for serving low-income, INA
youth. Additional information required for supplemental youth funding
will be identified in the FOA.
Sec. 684.720 When must the 4-year plan be submitted?
The 4-year plans will be submitted as part of the competitive FOA
process described at Sec. 684.220. Accordingly, the due date for the
submission of the 4-year plan will be specified in the FOA.
Sec. 684.730 How will the Department review and approve such plans?
(a) It is the Department's intent to approve a grantee's 4-year
strategic plan before the date on which funds for the program become
available unless:
(1) The planning documents do not contain the information specified
in the regulations in this part and/or the FOA; or
(2) The services which the INA program grantee proposes are not
permitted under WIOA or applicable regulations.
(b) After competitive grant selections have been made, the DINAP
office will assist INA program grantees in resolving any outstanding
issues with the 4-year plan. However, the Department may delay funding
to grantees until all issues have been resolved. If the issues with the
application of an incumbent grantee cannot be solved, the Department
will
[[Page 56437]]
reallocate funds from the grantee to other grantees that have an
approved 4-year plan. The Grant Officer may delay executing a grant
agreement and obligating funds to an entity selected through the
competitive process until all the required documents--including the 4-
year plan--are in place and satisfactory.
(c) The Department may approve a portion of the plan and disapprove
other portions.
(d) The grantee also has the right to appeal a nonselection
decision or a decision by the Department to deny or reallocate funds
based on unresolved issues with the applicant's application or 4-year
plan. Such an appeal would go to the Office of the Administrative Law
Judges under procedures at Sec. 683.800 or Sec. 683.840 of this
chapter in the case of a nonelection.
Sec. 684.740 Under what circumstances can the Department or the
Indian and Native American grantee modify the terms of the grantee's
plan(s)?
(a) The Department may unilaterally modify the INA program
grantee's plan to add funds or, if required by Congressional action, to
reduce the amount of funds available for expenditure.
(b) The INA program grantee may request approval to modify its plan
to add, expand, delete, or diminish any service allowable under the
regulations in this part. The INA program grantee may modify its plan
without our approval, unless the modification reduces the total number
of participants to be served annually under the grantee's program by a
number which exceeds 25 percent of the participants previously proposed
to be served, or by 25 participants, whichever is larger.
Subpart H--Administrative Requirements
Sec. 684.800 What systems must an Indian and Native American program
grantee have in place to administer an Indian and Native American
program?
(a) Each INA program grantee must have a written system describing
the procedures the grantee uses for:
(1) The hiring and management of personnel paid with program funds;
(2) The acquisition and management of property purchased with
program funds;
(3) Financial management practices;
(4) A participant grievance system which meets the requirements in
sec. 181(c) of WIOA and Sec. 683.600 of this chapter; and
(5) A participant records system.
(b) Participant records systems must include:
(1) A written or computerized record containing all the information
used to determine the person's eligibility to receive program services;
(2) The participant's signature certifying that all the eligibility
information he or she provided is true to the best of his/her
knowledge; and
(3) The information necessary to comply with all program reporting
requirements.
Sec. 684.810 What types of costs are allowable expenditures under the
Indian and Native American program?
Rules relating to allowable costs under WIOA are covered in
Sec. Sec. 683.200 through 683.215 of this chapter.
Sec. 684.820 What rules apply to administrative costs under the
Indian and Native American program?
The definition and treatment of administrative costs are covered in
Sec. Sec. 683.205(b) and 683.215 of this chapter.
Sec. 684.830 Does the Workforce Innovation and Opportunity Act
administrative cost limit for States and local areas apply to WIOA
grants?
No, under Sec. 683.205(b) of this chapter, limits on
administrative costs for sec. 166 grants will be negotiated with the
grantee and identified in the grant award document.
Sec. 684.840 How must Indian and Native American program grantees
classify costs?
Cost classification is covered in the WIOA regulations at
Sec. Sec. 683.200 through 683.215 of this chapter. For purposes of the
INA program, program costs also include costs associated with other
activities such as TERO, and supportive services, as defined in WIOA
sec. 3(59).
Sec. 684.850 What cost principles apply to Indian and Native American
funds?
The cost principles at 2 CFR part 200, subpart E, Uniform
Administrative Requirements, Cost Principles, & Audit Requirements for
Federal Awards, and the Department's modifications to 2 CFR part 200,
subpart E, at 2 CFR part 2900, apply to INA program grantees.
Sec. 684.860 What audit requirements apply to Indian and Native
American grants?
(a) WIOA sec. 166 grantees must follow the audit requirements at 2
CFR part 200, subpart F, Uniform Administrative Requirements, Cost
Principles, & Audit Requirements for Federal Awards, and the
Department's modifications to 2 CFR part 200 at 2 CFR part 2900.
(b) Grants made and contracts and cooperative agreements entered
into under sec. 166 of WIOA are subject to the requirements of chapter
75 of subtitle V of title 31, United States Code, and charging of costs
under this section are subject to appropriate circulars issued by the
Office of Management and Budget and to 2 CFR part 200 and the
Department's modifications to 2 CFR part 200 at 2 CFR part 2900.
Sec. 684.870 What is ``program income'' and how is it regulated in
the Indian and Native American program?
(a) Program income is regulated by WIOA sec. 194(7)(A), Sec. Sec.
683.200(c)(6) through (8) and 683.300(c)(5) of this chapter, and the
applicable rules in 2 CFR parts 200 and 2900.
(b) For grants made under this part, program income does not
include income generated by the work of a work experience participant
in an enterprise, including an enterprise owned by an INA entity,
whether in the public or private sector.
(c) Program income does not include income generated by the work of
an OJT participant in an establishment under paragraph (b) of this
section.
Subpart I--Miscellaneous Program Provisions
Sec. 684.900 Does the Workforce Innovation and Opportunity Act
provide regulatory and/or statutory waiver authority?
Yes, WIOA sec. 166(i)(3) permits waivers of any statutory or
regulatory requirement of title I of WIOA that are inconsistent with
the specific needs of the INA program grantee (except for the areas
cited in Sec. 684.920). Such waivers may include those necessary to
facilitate WIOA support of long-term community development goals.
Sec. 684.910 What information is required in a waiver request?
(a) To request a waiver, an INA program grantee must submit a
waiver request indicating how the waiver will improve the grantee's
WIOA program activities. The waiver process will be generally
consistent with, but not identical to, the waiver requirements under
sec. 189(i)(3)(B) of WIOA. INA program grantees may submit a waiver
request as part of the 4-year strategic plan.
(b) A waiver may be requested at the beginning of a 4-year grant
award cycle or anytime during a 4-year award cycle. However, all
waivers expire at the end of the 4-year award cycle. INA program
grantees seeking to continue an existing waiver in a new 4-year grant
cycle must submit a new waiver request in accordance with paragraph (a)
of this section.
[[Page 56438]]
Sec. 684.920 What provisions of law or regulations may not be waived?
Requirements relating to:
(a) Wage and labor standards;
(b) Worker rights;
(c) Participation and protection of workers and participants;
(d) Grievance procedures;
(e) Judicial review; and
(f) Non-discrimination may not be waived.
Sec. 684.930 May Indian and Native American program grantees combine
or consolidate their employment and training funds?
Yes. INA program grantees may consolidate their employment and
training funds under WIOA with assistance received from related
programs in accordance with the provisions of the Public Law 102-477,
the Indian Employment, Training, and Related Services Demonstration Act
of 1992, as amended by Public Law 106-568, the Omnibus Indian
Advancement Act of 2000 (25 U.S.C. 3401 et seq.). WIOA funds
consolidated under Public Law 102-477 are administered by Department of
the Interior (DOI). Accordingly, the administrative oversight for funds
transferred to DOI, including the reporting of financial expenditures
and program outcomes are the responsibility of DOI. However, the
Department must review the initial 477 plan and ensure that all
Departmental programmatic and financial obligations have been met
before WIOA funds are approved to be transferred to DOI and
consolidated with other related programs. The initial plan must meet
the statutory requirements of WIOA. After approval of the initial plan,
all subsequent plans that are renewed or updated from the initial plan
may be approved by DOI without further review by the Department.
Sec. 684.940 What is the role of the Native American Employment and
Training Council?
The Native American Employment and Training Council is a body
composed of representatives of the grantee community which advises the
Secretary on the operation and administration of the INA employment and
training program. WIOA sec. 166(i)(4) continues the Council essentially
as it is currently constituted. The Department continues to support the
Council.
Sec. 684.950 Does the Workforce Innovation and Opportunity Act
provide any additional assistance to unique populations in Alaska and
Hawaii?
Yes. Notwithstanding any other provision of law, the Secretary is
authorized to award grants, on a competitive basis, to entities with
demonstrated experience and expertise in developing and implementing
programs for the unique populations who reside in Alaska or Hawaii,
including public and private nonprofit organizations, tribal
organizations, American Indian tribal colleges or universities,
institutions of higher education, or consortia of such organizations or
institutions, to improve job training and workforce investment
activities for such unique populations.
0
18. Add part 685 to read as follows:
PART 685--NATIONAL FARMWORKER JOBS PROGRAM UNDER TITLE I OF THE
WORKFORCE INNOVATION AND OPPORTUNITY ACT
Subpart A--Purpose and Definitions
Sec.
685.100 What is the purpose of the National Farmworker Jobs Program
and the other services and activities established under the
Workforce Innovation and Opportunity Act?
685.110 What definitions apply to this program?
685.120 How does the Department administer the National Farmworker
Jobs Program?
685.130 How does the Department assist grantees to serve eligible
migrant and seasonal farmworkers?
685.140 What Workforce Innovation and Opportunity Act (WIOA)
regulations apply to the programs authorized under WIOA?
Subpart B--The Service Delivery System for the National Farmworker Jobs
Program
Sec.
685.200 Who is eligible to receive a National Farmworker Jobs
Program grant?
685.210 How does an eligible entity become a grantee?
685.220 What is the role of the grantee in the one-stop delivery
system?
685.230 Can a grantee's designation be terminated?
685.240 How does the Department use funds appropriated under the
Workforce Innovation and Opportunity Act for the National Farmworker
Jobs Program?
Subpart C--The National Farmworker Jobs Program Services to Eligible
Migrant and Seasonal Farmworkers
Sec.
685.300 What are the general responsibilities of grantees?
685.310 What are the basic components of a National Farmworker Jobs
Program service delivery strategy?
685.320 Who is eligible to receive services under the National
Farmworker Jobs Program?
685.330 How are services delivered to eligible migrant and seasonal
farmworkers?
685.340 What career services may grantees provide to eligible
migrant and seasonal farmworkers?
685.350 What training services may grantees provide to eligible
migrant and seasonal farmworkers?
685.360 What housing services may grantees provide to eligible
migrant and seasonal farmworkers?
685.370 What services may grantees provide to eligible migrant and
seasonal farmworkers youth participants aged 14-24?
685.380 What related assistance services may be provided to eligible
migrant and seasonal farmworkers?
685.390 When may eligible migrant and seasonal farmworkers receive
related assistance?
Subpart D--Performance Accountability, Planning, and Waiver Provisions
Sec.
685.400 What are the indicators of performance that apply to the
National Farmworker Jobs Program?
685.410 What planning documents must a grantee submit?
685.420 What information is required in the grantee program plan?
685.430 Under what circumstances are the terms of the grantee's
program plan modified by the grantee or the Department?
685.440 How are costs classified under the National Farmworker Jobs
Program?
685.450 What is the Workforce Innovation and Opportunity Act
administrative cost limit for National Farmworker Jobs Program
grants?
685.460 Are there regulatory and/or statutory waiver provisions that
apply to the Workforce Innovation and Opportunity Act?
685.470 How can grantees request a waiver?
Subpart E--Supplemental Youth Workforce Investment Activity Funding
Under the Workforce Innovation and Opportunity Act
Sec.
685.500 What is supplemental youth workforce investment activity
funding?
685.510 What requirements apply to grants funded by the Workforce
Innovation and Opportunity Act?
685.520 What is the application process for obtaining a grant funded
by the Workforce Innovation and Opportunity Act?
685.530 What planning documents are required for grants funded by
the Workforce Innovation and Opportunity Act?
685.540 How are funds allocated to grants funded by the Workforce
Innovation and Opportunity Act?
685.550 Who is eligible to receive services through grants funded by
the Workforce Innovation and Opportunity Act?
Authority: Secs. 167, 189, 503, Public Law 113-128, 128 Stat.
1425 (Jul. 22, 2014).
[[Page 56439]]
Subpart A--Purpose and Definitions
Sec. 685.100 What is the purpose of the National Farmworker Jobs
Program and the other services and activities established under the
Workforce Innovation and Opportunity Act?
The purpose of the NFJP and the other services and activities
established under WIOA sec. 167 is to strengthen the ability of
eligible migrant and seasonal farmworkers (MSFWs) and their dependents
to obtain or retain unsubsidized employment, stabilize their
unsubsidized employment and achieve economic self-sufficiency,
including upgraded employment in agriculture. This part provides the
regulatory requirements applicable to the expenditure of WIOA secs. 167
and 127(a)(1) funds for such programs, services, and activities.
Sec. 685.110 What definitions apply to this program?
In addition to the definitions found in Sec. 675.300 of this
chapter, the following definitions apply to programs under this part:
Allowances means direct payments made to participants during their
enrollment to enable them to participate in the career services
described in WIOA sec. 134(c)(2)(A)(xii) or training services as
appropriate.
Dependent means an individual who:
(1) Was claimed as a dependent on the eligible MSFW's Federal
income tax return for the previous year; or
(2) Is the spouse of the eligible MSFW; or
(3) If not claimed as a dependent for Federal income tax purposes,
is able to establish:
(i) A relationship as the eligible MSFW's;
(A) Child, grandchild, great grandchild, including legally adopted
children;
(B) Stepchild;
(C) Brother, sister, half-brother, half-sister, stepbrother, or
stepsister;
(D) Parent, grandparent, or other direct ancestor but not foster
parent;
(E) Foster child;
(F) Stepfather or stepmother;
(G) Uncle or aunt;
(H) Niece or nephew;
(I) Father-in-law, mother-in-law, son-in-law; or
(J) Daughter-in-law, brother-in-law, or sister-in-law; and
(ii) The receipt of over half of his/her total support from the
eligible MSFW's family during the eligibility determination period.
Eligibility determination period means any consecutive 12-month
period within the 24-month period immediately preceding the date of
application for the MSFW program by the applicant MSFW.
Eligible migrant farmworker means an eligible seasonal farmworker
as defined in WIOA sec. 167(i)(3) whose agricultural labor requires
travel to a job site such that the farmworker is unable to return to a
permanent place of residence within the same day; and dependents of the
migrant farmworker, as described in WIOA sec. 167(i)(2).
Eligible migrant and seasonal farmworker means an eligible migrant
farmworker or an eligible seasonal farmworker, also referred to in this
regulation as an ``eligible MSFW,'' as defined in WIOA sec. 167(i).
Eligible MSFW youth means an eligible MSFW aged 14-24 who is
individually eligible or is a dependent of an eligible MSFW. The term
eligible MSFW youth is a subset of the term eligible MSFW defined in
this section.
Eligible seasonal farmworker means a low-income individual who for
12 consecutive months out of the 24 months prior to application for the
program involved, has been primarily employed in agricultural or fish
farming labor that is characterized by chronic unemployment or
underemployment; and faces multiple barriers to economic self-
sufficiency; and dependents of the seasonal farmworker as described in
WIOA sec. 167(i)(3).
Emergency assistance is a form of ``related assistance'' and means
assistance provided by grantees that addresses immediate needs of
eligible MSFWs and their dependents. An applicant's self-certification
is accepted as sufficient documentation of eligibility for emergency
assistance.
Family, for the purpose of reporting housing assistance grantee
indicators of performance as described in in Sec. 685.400, means the
eligible MSFW(s) and all the individuals identified under the
definition of dependent in this section who are living together in one
physical residence.
Farmwork means work while employed in the occupations described in
Sec. 651.10 of this chapter.
Grantee means an entity to which the Department directly awards a
WIOA grant to carry out programs to serve eligible MSFWs in a service
area, with funds made available under WIOA sec. 167 or 127(a)(1).
Housing assistance means housing services which contribute to safe
and sanitary temporary and permanent housing constructed, supplied, or
maintained with NFJP funding.
Lower living standard income level means the income level as
defined in WIOA sec. 3(36)(B).
Low-income individual means an individual as defined in WIOA sec.
3(36)(A).
MOU means Memorandum of Understanding.
National Farmworker Jobs Program (NFJP) is the Department of Labor-
administered workforce investment program for eligible MSFWs
established by WIOA sec. 167 as a required partner of the one-stop
delivery system and includes both career services and training grants,
and housing grants.
Recognized postsecondary credential means a credential as defined
in WIOA sec. 3(52).
Related assistance means short-term forms of direct assistance
designed to assist eligible MSFWs retain or stabilize their
agricultural employment. Examples of related assistance may include,
but are not limited to, services such as transportation assistance or
providing work clothing.
Self-certification means an eligible MSFW's signed attestation that
the information he/she submits to demonstrate eligibility for the NFJP
is true and accurate.
Service area means the geographical jurisdiction, which may be
comprised of one or more designated State or sub-State areas, in which
a WIOA sec. 167 grantee is designated to operate.
Supportive services means the services defined in WIOA sec. 3(59).
Technical assistance means the guidance provided to grantees and
grantee staff by the Department to improve the quality of the program
and the delivery of program services to eligible MSFWs.
Sec. 685.120 How does the Department administer the National
Farmworker Jobs Program?
The Department's Employment and Training Administration (ETA)
administers NFJP activities required under WIOA sec. 167 for eligible
MSFWs. As described in Sec. 685.210, the Department designates
grantees using procedures consistent with standard Federal government
competitive procedures.
Sec. 685.130 How does the Department assist grantees to serve
eligible migrant and seasonal farmworkers?
The Department provides guidance, administrative support, technical
assistance, and training to grantees for the purposes of program
implementation, and program performance management to enhance services
and promote continuous improvement in the employment outcomes of
eligible MSFWs.
[[Page 56440]]
Sec. 685.140 What Workforce Innovation and Opportunity Act (WIOA)
regulations apply to the programs authorized under WIOA?
The regulations that apply to programs authorized under WIOA sec.
167 include but are not limited to:
(a) The regulations found in this part;
(b) The general administrative requirements found in part 683 of
this chapter, including the regulations concerning Complaints,
Investigations and Hearings found at part 683, subparts D through H, of
this chapter, which cover programs under WIOA sec. 167;
(c) Uniform Guidance at 2 CFR part 200 and the Department's
exceptions at 2 CFR part 2900 pursuant to the effective dates in 2 CFR
parts 200 and 2900;
(d) The regulations on partnership responsibilities contained in
parts 679 (Statewide and Local Governance) and 678 (the One-Stop
System) of this chapter; and
(e) The Department's regulations at 29 CFR part 38, which implement
the nondiscrimination provisions of WIOA sec. 188.
Subpart B--The Service Delivery System for the National Farmworker
Jobs Program
Sec. 685.200 Who is eligible to receive a National Farmworker Jobs
Program grant?
To be eligible to receive a grant under this section, an entity
must have:
(a) An understanding of the problems of eligible MSFWs;
(b) A familiarity with the agricultural industries and the labor
market needs of the proposed service area; and
(c) The ability to demonstrate a capacity to administer and deliver
effectively a diversified program of workforce investment activities,
including youth workforce investment activities, and related assistance
for eligible MSFWs.
Sec. 685.210 How does an eligible entity become a grantee?
To become a grantee and receive a grant under this subpart, an
applicant must respond to a Funding Opportunity Announcement (FOA).
Under the FOA, grantees will be selected using standard Federal
government competitive procedures. The entity's proposal must include a
program plan, which is a 4-year strategy for meeting the needs of
eligible MSFWs in the proposed service area, and a description of the
entities experience working with the broader workforce delivery system.
Unless specified otherwise in the FOA, grantees may serve eligible
MSFWs, including eligible MSFW youth, under the grant. An applicant
whose application for funding as a grantee under this section is denied
in whole or in part may request an administrative review under Sec.
683.800 of this chapter.
Sec. 685.220 What is the role of the grantee in the one-stop delivery
system?
In those local areas where the grantee operates its NFJP as
described in its grant agreement, the grantee is a required one-stop
partner, and is subject to the provisions relating to such partners
described in part 678 of this chapter. Consistent with those
provisions, the grantee and Local Workforce Development Board (WDB)
must develop and enter into an MOU which meets the requirements of
Sec. 678.500 of this chapter, and which sets forth their respective
responsibilities for providing access to the full range of NFJP
services through the one-stop delivery system to eligible MSFWs.
Sec. 685.230 Can a grantee's designation be terminated?
Yes, a grantee's designation may be terminated by the Department
for cause:
(a) In emergency circumstances when such action is necessary to
protect the integrity of Federal funds or to ensure the proper
operation of the program. Any grantee so terminated will be provided
with written notice and an opportunity for a hearing within 30 days
after the termination; or
(b) By the Department's Grant Officer, if the recipient materially
fails to comply with the terms and conditions of the award. In such a
case, the Grant Officer will follow the administrative regulations at
Sec. 683.440 of this chapter.
Sec. 685.240 How does the Department use funds appropriated under the
Workforce Innovation and Opportunity Act for the National Farmworker
Jobs Program?
At least 99 percent of the funds appropriated each year for WIOA
sec. 167 activities must be allocated to service areas, based on the
distribution of the eligible MSFW population determined under a formula
established by the Secretary. The Department will award grants pursuant
to Sec. 685.210 for the provision of services to eligible MSFWs within
each service area. The Department will use a percentage of the funds
allocated for State service areas for housing grants, specified in a
FOA issued by the Department. The Department will use up to one percent
of the appropriated funds for discretionary purposes, such as technical
assistance to eligible entities and other activities prescribed by the
Secretary.
Subpart C--The National Farmworker Jobs Program Services to
Eligible Migrant and Seasonal Farmworkers
Sec. 685.300 What are the general responsibilities of grantees?
(a) The Department awards career services and training grants and
housing grants through the FOA process described in Sec. 685.210.
Career services and training grantees are responsible for providing
appropriate career services, training, and related assistance to
eligible MSFWs. Housing grantees are responsible for providing housing
assistance to eligible MSFWs.
(b) Grantees will provide these services in accordance with the
service delivery strategy meeting the requirements of Sec. 685.310 and
as described in their approved program plan described in Sec. 685.420.
These services must reflect the needs of the MSFW population in the
service area and include the services that are necessary to achieve
each participant's employment goals or housing needs.
(c) Grantees are responsible for coordinating services,
particularly outreach to MSFWs, with the State Workforce Agency as
defined in Sec. 651.10 of this chapter and the State's Monitor
Advocate.
(d) Grantees are responsible for fulfilling the responsibilities of
one-stop partners described in Sec. 678.420 of this chapter.
Sec. 685.310 What are the basic components of a National Farmworker
Jobs Program service delivery strategy?
The NFJP service delivery strategy must include:
(a) A customer-focused case management approach;
(b) The provision of workforce investment activities to eligible
MSFWs which include career services and training, as described in WIOA
secs. 167(d) and 134, and part 680 of this chapter;
(c) The provision of youth workforce investment activities
described in WIOA sec. 129 and part 681 of this chapter may be provided
to eligible MSFW youth;
(d) The arrangements under the MOUs with the applicable Local WDBs
for the delivery of the services available through the one-stop
delivery system to MSFWs; and
(e) Related assistance services.
Sec. 685.320 Who is eligible to receive services under the National
Farmworker Jobs Program?
Eligible migrant farmworkers (including eligible MSFW youth) and
eligible seasonal farmworkers (including eligible MSFW youth) as
defined in
[[Page 56441]]
Sec. 685.110 are eligible for services funded by the NFJP.
Sec. 685.330 How are services delivered to eligible migrant and
seasonal farmworkers?
To ensure that all services are focused on the customer's needs,
services are provided through a case-management approach emphasizing
customer choice and may include: Appropriate career services and
training; related assistance, which includes emergency assistance; and
supportive services, which includes allowance payments. The basic
services and delivery of case-management activities are further
described in Sec. Sec. 685.340 through 685.390.
Sec. 685.340 What career services may grantees provide to eligible
migrant and seasonal farmworkers?
(a) Grantees may provide the career services described in WIOA
secs. 167(d) and 134(c)(2), and part 680 of this chapter to eligible
MSFWs.
(b) Grantees may provide other services identified in the approved
program plan.
(c) The delivery of career services to eligible MSFWs by the
grantee and through the one-stop delivery system must be discussed in
the required MOU between the Local WDB and the grantee.
Sec. 685.350 What training services may grantees provide to eligible
migrant and seasonal farmworkers?
(a) Grantees may provide the training activities described in WIOA
secs. 167(d) and 134(c)(3)(D), and part 680 of this chapter to eligible
MSFWs. These activities include, but are not limited to, occupational-
skills training and on-the-job training (OJT). Eligible MSFWs are not
required to receive career services prior to receiving training
services.
(1) When providing OJT services NFJP grantees may reimburse
employers for the extraordinary costs of training by up to 50 percent
of the wage rate of the participant for OJT.
(2) Grantees also may increase the OJT reimbursement rate up to 75
percent of the wage rate of a participant under certain conditions,
provided that such reimbursement is being provided consistent with the
reimbursement rates used under WIOA sec. 134(c)(3)(H)(i) for the local
area(s) in which the grantee operates its program.
(b) Training services must be directly linked to an in-demand
industry sector or occupation in the service area, or in another area
to which an eligible MSFW receiving such services is willing to
relocate.
(c) Training activities must encourage the attainment of recognized
postsecondary credentials as defined in Sec. 685.110 when appropriate
for an eligible MSFW.
Sec. 685.360 What housing services may grantees provide to eligible
migrant and seasonal farmworkers?
(a) Housing grantees must provide housing services to eligible
MSFWs.
(b) Career services and training grantees may provide housing
services to eligible MSFWs as described in their program plan.
(c) Housing services may include the following:
(1) Permanent housing that is owner-occupied, or occupied on a
permanent, year-round basis (notwithstanding ownership) as the eligible
MSFW's primary residence to which he/she returns at the end of the work
or training day.
(i) Types of permanent housing may include rental units, single
family homes, duplexes, and other multi-family structures, dormitories,
group homes, and other housing types that provide short-term, seasonal,
or year-round housing opportunities in permanent structures. Modular
structures, manufactured housing, or mobile units placed on permanent
foundations and supplied with appropriate utilities, and other
infrastructure also are considered permanent housing.
(ii) Permanent housing services include but are not limited to:
Investments in development services, project management, and resource
development to secure acquisition, construction/renovation and
operating funds, property management services, and program management.
New construction, purchase of existing structures, and rehabilitation
of existing structures, as well as the infrastructure, utilities, and
other improvements necessary to complete or maintain those structures
also may be considered part of managing permanent housing.
(2) Temporary housing that is not owner-occupied and is used by
MSFWs whose employment requires occasional travel outside their normal
commuting area.
(i) Types of temporary housing may include: Housing units intended
for temporary occupancy located in permanent structures, such as rental
units in an apartment complex or in mobile structures that provide
short-term, seasonal housing opportunities; temporary structures that
may be moved from site to site, dismantled and re-erected when needed
for farmworker occupancy, closed during the off-season, or handled
through other similar arrangements; off-farm housing operated
independently of employer interest in, or control of, the housing; or
on-farm housing located on property owned by an agricultural employer
and operated by an entity such as an agricultural employer or a
nonprofit organization; and other housing types that provide short-
term, seasonal, or temporary housing opportunities in temporary
structures.
(ii) Temporary housing services include but are not limited to:
Managing temporary housing which may involve property management of
temporary housing facilities, case management, and referral services,
and emergency housing payments, including vouchers and cash payments
for rent/lease and utilities.
(d) Permanent housing developed with NFJP funds must be promoted
and made widely available to eligible MSFWs, but occupancy is not
restricted to eligible MSFWs. Temporary housing services must only be
provided to eligible MSFWs.
(e) Except as provided in paragraph (f) of this section, NFJP funds
used for housing assistance must ensure the provision of safe and
sanitary temporary and permanent housing that meets the Federal housing
standards at part 654 of this chapter (ETA housing for farmworkers) or
29 CFR 1910.10 (OSHA housing standards).
(f) When NFJP grantees provide temporary housing assistance that
allows the participant to select the housing, including vouchers and
cash payments for rent, lease, and utilities, NFJP grantees are not
required to ensure that such housing meets the Federal housing
standards at part 654 of this chapter or 29 CFR 1910.10.
Sec. 685.370 What services may grantees provide to eligible migrant
and seasonal farmworkers youth participants aged 14-24?
(a) Based on an evaluation and assessment of the needs of eligible
MSFW youth, grantees may provide activities and services that include
but are not limited to:
(1) Career services and training as described in Sec. Sec. 685.340
and 685.350;
(2) Youth workforce investment activities specified in WIOA sec.
129;
(3) Life skills activities which may include self- and
interpersonal skills development;
(4) Community service projects; and
(5) Other activities and services that conform to the use of funds
for youth activities described in part 681 of this chapter.
(b) Grantees may provide these services to any eligible MSFW youth,
regardless of the participant's eligibility for WIOA title I youth
activities as described in WIOA sec. 129(a).
[[Page 56442]]
Sec. 685.380 What related assistance services may be provided to
eligible migrant and seasonal farmworkers?
Related assistance may include short-term direct services and
activities. Examples include emergency assistance, as defined in Sec.
685.110, and those activities identified in WIOA sec. 167(d), such as:
English language and literacy instruction; pesticide and worker safety
training; housing (including permanent housing), as described in Sec.
685.360 and as provided in the approved program plan; and school
dropout prevention and recovery activities. Related assistance may be
provided to eligible MSFWs not enrolled in career services, youth
services, or training services.
Sec. 685.390 When may eligible migrant and seasonal farmworkers
receive related assistance?
Eligible MSFWs may receive related assistance services when the
grantee identifies and documents the need for the related assistance,
which may include a statement by the eligible MSFW.
Subpart D--Performance Accountability, Planning, and Waiver
Provisions
Sec. 685.400 What are the indicators of performance that apply to the
National Farmworker Jobs Program?
(a) For grantees providing career services and training, the
Department will use the indicators of performance common to the adult
and youth programs, described in WIOA sec. 116(b)(2)(A).
(b) For grantees providing career services and training, the
Department will reach agreement with individual grantees on the levels
of performance for each of the primary indicators of performance,
taking into account economic conditions, characteristics of the
individuals served, and other appropriate factors, and using, to the
extent practicable, the statistical adjustment model under WIOA sec.
116(b)(3)(A)(viii). Once agreement on the levels of performance for
each of the primary indicators of performance is reached with
individual grantees, the Department will incorporate the adjusted
levels of performance in the grant plan. For the purposes of
performance reporting, eligible MSFWs who receive any career services,
youth services, training, or certain related assistance are considered
participants as defined in Sec. 677.150 of this chapter and must be
included in performance calculations for the indicators of performance.
Eligible MSFWs who receive only those services identified in Sec.
677.150(a)(3)(ii) or (iii) of this chapter are not included in
performance calculations for the indicators of performance described in
WIOA sec. 116(b)(2)(A).
(c) For grantees providing housing services only, grantees will use
the total number of eligible MSFWs served and the total number of
eligible MSFW families served as indicators of performance.
Additionally, grantees providing permanent housing development
activities will use the total number of individuals served and the
total number of families served as indicators of performance.
(d) The Department may develop additional performance indicators
with appropriate levels of performance for evaluating programs that
serve eligible MSFWs and which reflect the State service area economy,
local demographics of eligible MSFWs, and other appropriate factors. If
additional performance indicators are developed, the levels of
performance for these additional indicators must be negotiated with the
grantee and included in the approved program plan.
(e) Grantees may develop additional performance indicators and
include them in the program plan or in periodic performance reports.
Sec. 685.410 What planning documents must a grantee submit?
Each grantee receiving WIOA sec. 167 program funds must submit to
the Department a comprehensive program plan and a projection of
participant services and expenditures in accordance with instructions
issued by the Secretary.
Sec. 685.420 What information is required in the grantee program
plan?
A grantee's 4-year program plan must describe:
(a) The service area that the applicant proposes to serve;
(b) The population to be served and the education and employment
needs of the MSFW population to be served;
(c) The manner in which proposed services to eligible MSFWs will
strengthen their ability to obtain or retain unsubsidized employment or
stabilize their unsubsidized employment, including upgraded employment
in agriculture;
(d) The related assistance and supportive services to be provided
and the manner in which such assistance and services are to be
integrated and coordinated with other appropriate services;
(e) The performance accountability measures that will be used to
assess the performance of the entity in carrying out the NFJP program
activities, including the expected levels of performance for the
primary indicators of performance described in Sec. 685.400;
(f) The availability and accessibility of local resources, such as
supportive services, services provided through one-stop delivery
systems, and education and training activities, and how the resources
can be made available to the population to be served;
(g) The plan for providing services including strategies and
systems for outreach, career planning, assessment, and delivery through
one-stop delivery systems;
(h) The methods the grantee will use to target its services on
specific segments of the eligible population, as appropriate; and
(i) Such other information as required by the Secretary in
instructions issued under Sec. 685.410.
Sec. 685.430 Under what circumstances are the terms of the grantee's
program plan modified by the grantee or the Department?
(a) Plans must be modified to reflect the funding level for each
year of the grant. The Department will provide instructions annually on
when to submit modifications for each year of funding, which will
generally be no later than June 1 prior to the start of the subsequent
year of the grant cycle.
(b) The grantee must submit a request to the Department for any
proposed modifications to its plan to add, delete, expand, or reduce
any part of the program plan or allowable activities. The Department
will consider the cost principles, uniform administrative requirements,
and terms and conditions of award when reviewing modifications to
program plans.
(c) If the grantee is approved for a regulatory waiver under
Sec. Sec. 685.460 and 685.470, the grantee must submit a modification
of its grant plan to reflect the effect of the waiver.
Sec. 685.440 How are costs classified under the National Farmworker
Jobs Program?
(a) Costs are classified as follows:
(1) Administrative costs, as defined in Sec. 683.215 of this
chapter; and
(2) Program costs, which are all other costs not defined as
administrative.
(b) Program costs must be classified and reported in the following
categories:
(1) Related assistance (including emergency assistance);
(2) Supportive services; and
(3) All other program services.
Sec. 685.450 What is the Workforce Innovation and Opportunity Act
administrative cost limit for National Farmworker Jobs Program grants?
Under Sec. 683.205(b) of this chapter, limits on administrative
costs for
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programs operated under subtitle D of WIOA title I will be identified
in the grant or contract award document. Administrative costs will not
exceed 15 percent of total grantee funding.
Sec. 685.460 Are there regulatory and/or statutory waiver provisions
that apply to the National Farmworker Jobs Program?
(a) The statutory waiver provision at WIOA sec. 189(i) and
discussed in Sec. 679.600 of this chapter does not apply to any NFJP
grant under WIOA sec. 167.
(b) Grantees may request waiver of any regulatory provisions only
when such regulatory provisions are:
(1) Not required by WIOA;
(2) Not related to wage and labor standards, non-displacement
protection, worker rights, participation and protection of workers and
participants, and eligibility of participants, grievance procedures,
judicial review, nondiscrimination, allocation of funds, procedures for
review and approval of plans; and
(3) Not related to the basic purposes of WIOA, described in Sec.
675.100 of this chapter.
Sec. 685.470 How can grantees request a waiver?
To request a waiver, a grantee must submit to the Department a
waiver plan that:
(a) Describes the goals of the waiver, the expected programmatic
outcomes, and how the waiver will improve the provision of program
activities;
(b) Is consistent with any guidelines the Department establishes;
(c) Describes the data that will be collected to track the impact
of the waiver; and
(d) Includes a modified program plan reflecting the effect of the
requested waiver.
Subpart E--Supplemental Youth Workforce Investment Activity Funding
Under the Workforce Innovation and Opportunity Act
Sec. 685.500 What is supplemental youth workforce investment activity
funding?
Pursuant to WIOA sec. 127(a)(1), if Congress appropriates more than
$925 million for WIOA youth workforce investment activities in a fiscal
year, 4 percent of the excess amount must be used by the Department to
provide workforce investment activities for eligible MSFW youth under
WIOA sec. 167.
Sec. 685.510 What requirements apply to grants funded by the
Workforce Innovation and Opportunity Act?
The requirements in subparts A through D of this part apply to
grants funded by WIOA sec. 127(a)(1), except that grants described in
this subpart must be used only for workforce investment activities for
eligible MSFW youth, as described in Sec. 685.370 and WIOA sec. 167(d)
(including related assistance and supportive services).
Sec. 685.520 What is the application process for obtaining a grant
funded by the Workforce Innovation and Opportunity Act?
The Department will issue a separate FOA for grants funded by WIOA
sec. 127(a)(1). The selection will be made in accordance with the
procedures described in Sec. 685.210, except that the Department
reserves the right to provide priority to applicants that are WIOA sec.
167 grantees.
Sec. 685.530 What planning documents are required for grants funded
by the Workforce Innovation and Opportunity Act?
The required planning documents will be described in the FOA.
Sec. 685.540 How are funds allocated to grants funded by the
Workforce Innovation and Opportunity Act?
The allocation of funds will be based on the comparative merits of
the applications, in accordance with criteria set forth in the FOA.
Sec. 685.550 Who is eligible to receive services through grants
funded by the Workforce Innovation and Opportunity Act?
Eligible MSFW youth as defined in Sec. 685.110 are eligible to
receive services through grants funded by WIOA sec. 127(a)(1).
0
19. Add part 686 to read as follows:
PART 686--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INNOVATION
AND OPPORTUNITY ACT
Subpart A--Scope and Purpose
Sec.
686.100 What is the scope of this part?
686.110 What is the Job Corps program?
686.120 What definitions apply to this part?
Subpart B--Site Selection and Protection and Maintenance of Facilities
Sec.
686.200 How are Job Corps center locations and sizes determined?
686.210 How are center facility improvements and new construction
handled?
686.220 Who is responsible for the protection and maintenance of
center facilities?
Subpart C--Funding and Selection of Center Operators and Service
Providers
Sec.
686.300 What entities are eligible to receive funds to operate
centers and provide training and operational support services?
686.310 How are entities selected to receive funding to operate
centers?
686.320 What if a current center operator is deemed to be an
operator of a high-performing center?
686.330 What is the length of an agreement entered into by the
Secretary for operation of a Job Corps center and what are the
conditions for renewal of such an agreement?
686.340 How are entities selected to receive funding to provide
outreach and admission, career transition and other operations
support services?
686.350 What conditions apply to the operation of a Civilian
Conservation Center?
686.360 What are the requirements for award of contracts and
payments to Federal agencies?
Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, and Enrollment
Sec.
686.400 Who is eligible to participate in the Job Corps program?
686.410 Are there additional factors which are considered in
selecting an eligible applicant for enrollment?
686.420 Are there any special requirements for enrollment related to
the Military Selective Service Act?
686.430 What entities conduct outreach and admissions activities for
the Job Corps program?
686.440 What are the responsibilities of outreach and admissions
providers?
686.450 How are applicants who meet eligibility and selection
criteria assigned to centers?
686.460 What restrictions are there on the assignment of eligible
applicants for nonresidential enrollment in Job Corps?
686.470 May an individual who is determined to be ineligible or an
individual who is denied enrollment appeal that decision?
686.480 At what point is an applicant considered to be enrolled in
Job Corps?
686.490 How long may a student be enrolled in Job Corps?
Subpart E--Program Activities and Center Operations
Sec.
686.500 What services must Job Corps centers provide?
686.505 What types of training must Job Corps centers provide?
686.510 Are entities other than Job Corps center operators permitted
to provide academic and career technical training?
686.515 What are advanced career training programs?
686.520 What responsibilities do the center operators have in
managing work-based learning?
686.525 Are students permitted to hold jobs other than work-based
learning opportunities?
686.530 What residential support services must Job Corps center
operators provide?
686.535 Are Job Corps centers required to maintain a student
accountability system?
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686.540 Are Job Corps centers required to establish behavior
management systems?
686.545 What is Job Corps' zero tolerance policy?
686.550 How does Job Corps ensure that students receive due process
in disciplinary actions?
686.555 What responsibilities do Job Corps centers have in assisting
students with child care needs?
686.560 What are the center's responsibilities in ensuring that
students' religious rights are respected?
686.565 Is Job Corps authorized to conduct pilot and demonstration
projects?
Subpart F--Student Support
Sec.
686.600 Are students provided with government-paid transportation to
and from Job Corps centers?
686.610 When are students authorized to take leaves of absence from
their Job Corps centers?
686.620 Are Job Corps students eligible to receive cash allowances
and performance bonuses?
686.630 Are student allowances subject to Federal payroll taxes?
686.640 Are students provided with clothing?
Subpart G--Career Transition and Graduate Services
Sec.
686.700 What are a Job Corps center's responsibilities in preparing
students for career transition services?
686.710 What career transition services are provided for Job Corps
enrollees?
686.720 Who provides career transition services?
686.730 What are the responsibilities of career transition service
providers?
686.740 What services are provided for program graduates?
686.750 Are graduates provided with transition allowances?
686.760 What services are provided to former enrollees?
Subpart H--Community Connections
Sec.
686.800 How do Job Corps centers and service providers become
involved in their local communities?
686.810 What is the makeup of a workforce council and what are its
responsibilities?
686.820 How will Job Corps coordinate with other agencies?
Subpart I--Administrative and Management Provisions
Sec.
686.900 Are damages caused by the acts or omissions of students
eligible for payment under the Federal Tort Claims Act?
686.905 Are loss and damages that occur to persons or personal
property of students at Job Corps centers eligible for
reimbursement?
686.910 If a student is injured in the performance of duty as a Job
Corps student, what benefits may the student receive?
686.915 When is a Job Corps student considered to be in the
performance of duty?
686.920 How are students protected from unsafe or unhealthy
situations?
686.925 What are the requirements for criminal law enforcement
jurisdiction on center property?
686.930 Are Job Corps operators and service providers authorized to
pay State or local taxes on gross receipts?
686.935 What are the financial management responsibilities of Job
Corps center operators and other service providers?
686.940 Are center operators and service providers subject to
Federal audits?
686.945 What are the procedures for management of student records?
686.950 What procedures apply to disclosure of information about Job
Corps students and program activities?
686.955 What are the reporting requirements for center operators and
operational support service providers?
686.960 What procedures are available to resolve complaints and
disputes?
686.965 How does Job Corps ensure that complaints or disputes are
resolved in a timely fashion?
686.970 How does Job Corps ensure that centers or other service
providers comply with the Workforce Innovation and Opportunity Act
and the WIOA regulations?
686.975 How does Job Corps ensure that contract disputes will be
resolved?
686.980 How does Job Corps resolve disputes between the U.S.
Department of Labor and the U.S. Department of Agriculture regarding
the operation of Job Corps centers?
686.985 What Department of Labor equal opportunity and
nondiscrimination regulations apply to Job Corps?
Subpart J--Performance
Sec.
686.1000 How is the performance of the Job Corps program assessed?
686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
686.1020 What are the indicators of performance for Job Corps
outreach and admissions providers?
686.1030 What are the indicators of performance for Job Corps career
transition service providers?
686.1040 What information will be collected for use in the Annual
Report?
686.1050 How are the expected levels of performance for Job Corps
centers, outreach and admissions providers and career transition
service providers established?
686.1060 How are center rankings established?
686.1070 How and when will the Secretary use performance improvement
plans?
Authority: Secs. 142, 144, 146, 147, 159, 189, 503, Pub. L.
113-128, 128 Stat. 1425 (Jul. 22, 2014).
Subpart A--Scope and Purpose
Sec. 686.100 What is the scope of this part?
The regulations in this part outline the requirements that apply to
the Job Corps program. More detailed policies and procedures are
contained in a Policy and Requirements Handbook issued by the
Secretary. Throughout this part, ``instructions (procedures) issued by
the Secretary'' and similar references refer to the Policy and
Requirements Handbook and other Job Corps directives.
Sec. 686.110 What is the Job Corps program?
Job Corps is a national program that operates in partnership with
States and communities, Local Workforce Development Boards (WDBs),
Youth Standing Committees where established, one-stop centers and
partners, and other youth programs to provide academic, career and
technical education, service-learning, and social opportunities
primarily in a residential setting, for low-income young people. The
objective of Job Corps is to support responsible citizenship and
provide young people with the skills they need to lead to successful
careers that will result in economic self-sufficiency and opportunities
for advancement in in-demand industry sectors or occupations or the
Armed Forces, or to enrollment in postsecondary education.
Sec. 686.120 What definitions apply to this part?
The following definitions apply to this part:
Absent Without Official Leave (AWOL) means an adverse enrollment
status to which a student is assigned based on extended, unapproved
absence from his/her assigned center or off-center place of duty.
Students do not earn Job Corps allowances while in AWOL status.
Applicable Local WDB means a Local WDB that:
(1) Works with a Job Corps center and provides information on local
employment opportunities and the job skills and credentials needed to
obtain the opportunities; and
(2) Serves communities in which the graduates of the Job Corps seek
employment.
Applicable one-stop center means a one-stop center that provides
career transition services, such as referral, assessment, recruitment,
and placement, to support the purposes of the Job Corps.
Capital improvement means any modification, addition, restoration
or other improvement:
(1) Which increases the usefulness, productivity, or serviceable
life of an
[[Page 56445]]
existing site, facility, building, structure, or major item of
equipment;
(2) Which is classified for accounting purposes as a ``fixed
asset;'' and
(3) The cost of which increases the recorded value of the existing
building, site, facility, structure, or major item of equipment and is
subject to depreciation.
Career technical training means career and technical education and
training.
Career transition service provider means an organization acting
under a contract or other agreement with Job Corps to provide career
transition services for graduates and, to the extent possible, for
former students.
Civilian Conservation Center (CCC) means a center operated on
public land under an agreement between the Department of Labor (the
Department) and the Department of Agriculture, which provides, in
addition to other training and assistance, programs of work-based
learning to conserve, develop, or manage public natural resources or
public recreational areas or to develop community projects in the
public interest.
Contract center means a Job Corps center operated under a contract
with the Department.
Contracting officer means an official authorized to enter into
contracts or agreements on behalf of the Department.
Enrollee means an individual who has voluntarily applied for, been
selected for, and enrolled in the Job Corps program, and remains with
the program, but has not yet become a graduate. Enrollees also are
referred to as ``students'' in this part.
Enrollment means the process by which an individual formally
becomes a student in the Job Corps program.
Former enrollee means an individual who has voluntarily applied
for, been selected for, and enrolled in the Job Corps program, but left
the program prior to becoming a graduate.
Graduate means an individual who has voluntarily applied for, been
selected for, and enrolled in the Job Corps program and who, as a
result of participation in the program, has received a secondary school
diploma or recognized equivalent, or has completed the requirements of
a career technical training program that prepares individuals for
employment leading to economic self-sufficiency or entrance into
postsecondary education or training.
Individual with a disability means an individual with a disability
as defined in sec. 3 of the Americans with Disabilities Act of 1990 (42
U.S.C. 12102).
Interagency agreement means a formal agreement between the
Department and another Federal agency administering and operating
centers. The agreement establishes procedures for the funding,
administration, operation, and review of those centers as well as the
resolution of any disputes.
Job Corps means the Job Corps program established within the
Department of Labor and described in sec. 143 of the Workforce
Innovation and Opportunity Act (WIOA).
Job Corps center means a facility and an organizational entity,
including all of its parts, providing Job Corps training and designated
as a Job Corps center, as described in sec. 147 of WIOA.
Job Corps Director means the chief official of the Job Corps or a
person authorized to act for the Job Corps Director.
Low-income individual means an individual who meets the definition
in WIOA sec. 3(36).
National Office means the national office of Job Corps.
National training contractor means a labor union, union-affiliated
organization, business organization, association, or a combination of
such organizations, which has a contract with the national office to
provide career technical training, career transition services, or other
services.
Operational support services means activities or services required
to support the operation of Job Corps, including:
(1) Outreach and admissions services;
(2) Contracted career technical training and off-center training;
(3) Career transition services;
(4) Continued services for graduates;
(5) Certain health services; and
(6) Miscellaneous logistical and technical support.
Operator means a Federal, State or local agency, or a contractor
selected under this subtitle to operate a Job Corps center under an
agreement or contract with the Department.
Outreach and admissions provider means an organization that
performs recruitment services, including outreach activities, and
screens and enrolls youth under a contract or other agreement with Job
Corps.
Participant, as used in this part, includes both graduates and
enrollees and former enrollees that have completed their career
preparation period. It also includes all enrollees and former enrollees
who have remained in the program for at least 60 days.
Placement means student employment, entry into the Armed Forces, or
enrollment in other training or education programs following separation
from Job Corps.
Regional appeal board means the board designated by the Regional
Director to consider student appeals of disciplinary discharges.
Regional Director means the chief Job Corps official of a regional
office or a person authorized to act for the Regional Director.
Regional office means a regional office of Job Corps.
Regional Solicitor means the chief official of a regional office of
the Department of Labor Office of the Solicitor, or a person authorized
to act for the Regional Solicitor.
Separation means the action by which an individual ceases to be a
student in the Job Corps program, either voluntarily or involuntarily.
Service provider means an entity selected under this subtitle to
provide operational support services described in this subtitle to a
Job Corps center.
Student means an individual enrolled in the Job Corps.
Unauthorized goods means:
(1) Firearms and ammunition;
(2) Explosives and incendiaries;
(3) Knives;
(4) Homemade weapons;
(5) All other weapons and instruments used primarily to inflict
personal injury;
(6) Stolen property;
(7) Drugs, including alcohol, marijuana, depressants, stimulants,
hallucinogens, tranquilizers, and drug paraphernalia except for drugs
and/or paraphernalia that are prescribed for medical reasons; and
(8) Any other goods prohibited by the Secretary, center director,
or center operator in a student handbook.
Subpart B--Site Selection and Protection and Maintenance of
Facilities
Sec. 686.200 How are Job Corps center locations and sizes determined?
(a) The Secretary must approve the location and size of all Job
Corps centers based on established criteria and procedures.
(b) The Secretary establishes procedures for making decisions
concerning the establishment, relocation, expansion, or closing of
contract centers.
Sec. 686.210 How are center facility improvements and new
construction handled?
The Secretary establishes procedures for requesting, approving, and
initiating capital improvements and new construction on Job Corps
centers.
[[Page 56446]]
Sec. 686.220 Who is responsible for the protection and maintenance of
center facilities?
(a) The Secretary establishes procedures for the protection and
maintenance of contract center facilities owned or leased by the
Department of Labor, that are consistent with the current Federal
Property Management Regulations.
(b) The U.S. Department of Agriculture, when operating Civilian
Conservation Centers (CCC) on public land, is responsible for the
protection and maintenance of CCC facilities.
(c) The Secretary issues procedures for conducting periodic
facility surveys of centers to determine their condition and to
identify needs such as correction of safety and health deficiencies,
rehabilitation, and/or new construction.
Subpart C--Funding and Selection of Center Operators and Service
Providers
Sec. 686.300 What entities are eligible to receive funds to operate
centers and provide training and operational support services?
(a) Center operators. Entities eligible to receive funds under this
subpart to operate centers include:
(1) Federal, State, and local agencies;
(2) Private organizations, including for-profit and non-profit
corporations;
(3) Indian tribes and organizations; and
(4) Area career and technical education or residential career and
technical schools.
(b) Service providers. Entities eligible to receive funds to
provide outreach and admissions, career transition services and other
operational support services are local or other entities with the
necessary capacity to provide activities described in this part to a
Job Corps center, including:
(1) Applicable one-stop centers and partners;
(2) Organizations that have a demonstrated record of effectiveness
in serving at-risk youth and placing them into employment, including
community action agencies; business organizations, including private
for-profit and non-profit corporations; and labor organizations; and
(3) Child welfare agencies that are responsible for children and
youth eligible for benefits and services under sec. 477 of the Social
Security Act (42 U.S.C. 677).
Sec. 686.310 How are entities selected to receive funding to operate
centers?
(a) The Secretary selects eligible entities to operate contract
centers on a competitive basis in accordance with applicable statutes
and regulations. In selecting an entity, ETA issues requests for
proposals (RFPs) for the operation of all contract centers according to
the Federal Acquisition Regulation (48 CFR chapter 1) and Department of
Labor Acquisition Regulation (48 CFR chapter 29). ETA develops RFPs for
center operators in consultation with the Governor, the center
workforce council (if established), and the Local WDB for the workforce
development area in which the center is located.
(b) The RFP for each contract center describes uniform
specifications and standards, as well as specifications and
requirements that are unique to the operation of the specific center.
(c) The contracting officer selects and funds Job Corps contract
center operators on the basis of an evaluation of the proposals
received using criteria established by the Secretary, and set forth in
the RFP. The criteria include the following:
(1) The offeror's ability to coordinate the activities carried out
through the Job Corps center with activities carried out under the
appropriate State and local workforce investment plans;
(2) The offeror's ability to offer career technical training that
has been proposed by the workforce council and the degree to which the
training reflects employment opportunities in the local areas in which
most of the enrollees intend to seek employment;
(3) The degree to which the offeror demonstrates relationships with
the surrounding communities, including employers, labor organizations,
State WDBs, Local WDBs, applicable one-stop centers, and the State and
region in which the center is located;
(4) The offeror's past performance, if any, relating to operating
or providing activities to a Job Corps center, including information
regarding the offeror in any reports developed by the Office of the
Inspector General of the Department of Labor and the offeror's
demonstrated effectiveness in assisting individuals in achieving the
indicators of performance for eligible youth described in sec.
116(b)(2)(A)(ii) of WIOA, listed in Sec. 686.1010; and
(5) The offeror's ability to demonstrate a record of successfully
assisting at-risk youth to connect to the workforce, including
providing them with intensive academics and career technical training.
(d) In order to be eligible to operate a Job Corps center, the
offeror also must submit the following information at such time and in
such manner as required by the Secretary:
(1) A description of the program activities that will be offered at
the center and how the academics and career technical training reflect
State and local employment opportunities, including opportunities in
in-demand industry sectors and occupations recommended by the workforce
council;
(2) A description of the counseling, career transition, and support
activities that will be offered at the center, including a description
of the strategies and procedures the offeror will use to place
graduates into unsubsidized employment or education leading to a
recognized postsecondary credential upon completion of the program;
(3) A description of the offeror's demonstrated record of
effectiveness in placing at-risk youth into employment and
postsecondary education, including past performance of operating a Job
Corps center and as appropriate, the entity's demonstrated
effectiveness in assisting individuals in achieving the indicators of
performance for eligible youth described in sec. 116(b)(2)(A)(ii) of
WIOA, listed in Sec. 686.1010;
(4) A description of the relationships that the offeror has
developed with State WDBs, Local WDBs, applicable one-stop centers,
employers, labor organizations, State and local educational agencies,
and the surrounding communities in which the center is located;
(5) A description of the offeror's ability to coordinate the
activities carried out through the Job Corps center with activities
carried out under the appropriate State Plan and local plans;
(6) A description of the strong fiscal controls the offeror has in
place to ensure proper accounting of Federal funds and compliance with
the Financial Management Information System established by the
Secretary under sec. 159(a) of WIOA;
(7) A description of the steps to be taken to control costs in
accordance with the Financial Management Information System established
by the Secretary;
(8) A detailed budget of the activities that will be supported
using Federal funds provided under this part and non-Federal resources;
(9) An assurance the offeror is licensed to operate in the State in
which the center is located;
(10) An assurance that the offeror will comply with basic health
and safety codes, including required disciplinary measures and Job
Corps' Zero Tolerance Policy; and
(11) Any other information on additional selection factors required
by the Secretary.
[[Page 56447]]
Sec. 686.320 What if a current center operator is deemed to be an
operator of a high-performing center?
(a) If an offeror meets the requirements as an operator of a high-
performing center as applied to a particular Job Corps center, that
operator will be allowed to compete in any competitive selection
process carried out for an award to operate that center.
(b) An offeror is considered to be an operator of a high-performing
center if the Job Corps center operated by the offeror:
(1) Is ranked among the top 20 percent of Job Corps centers for the
most recent preceding program year according to the rankings calculated
under Sec. 686.1060; and
(2) Meets the expected levels of performance established under
Sec. 686.1050 with respect to each of the primary indicators of
performance for Job Corps centers:
(i) For the period of the most recent preceding 3 program years for
which information is available at the time the determination is made,
achieved an average of 100 percent, or higher, of the expected level of
performance for the indicator; and
(ii) For the most recent preceding program year for which
information is available at the time the determination is made,
achieved 100 percent, or higher, of the expected level of performance
established for the indicator.
(c) If any of the program years described in paragraphs (b)(2)(i)
and (ii) of this section precedes the implementation of the
establishment of the expected levels of performance under Sec.
686.1050 and the application of the primary indicators of performance
for Job Corps centers identified in Sec. 686.1010, an entity is
considered an operator of a high-performing center during that period
if the Job Corps center operated by the entity:
(1) Meets the requirements of paragraph (b)(2) of this section with
respect to such preceding program years using the performance of the
Job Corps center regarding the national goals or targets established by
the Office of the Job Corps under the previous performance
accountability system for--
(i) The 6-month follow-up placement rate of graduates in
employment, the military, education, or training;
(ii) The 12-month follow-up placement rate of graduates in
employment, the military, education, or training;
(iii) The 6-month follow-up average weekly earnings of graduates;
(iv) The rate of attainment of secondary school diplomas or their
recognized equivalent;
(v) The rate of attainment of completion certificates for career
technical training;
(vi) Average literacy gains; and
(vii) Average numeracy gains; or
(2) Is ranked among the top five percent of Job Corps centers for
the most recent preceding program year according to the rankings
calculated under Sec. 686.1060.
Sec. 686.330 What is the length of an agreement entered into by the
Secretary for operation of a Job Corps center and what are the
conditions for renewal of such an agreement?
(a) Agreements are for not more than a 2-year period. The Secretary
may exercise any contractual option to renew the agreement in 1-year
increments for not more than 3 additional years.
(b) The Secretary will establish procedures for evaluating the
option to renew an agreement that includes: An assessment of the
factors described in paragraph (c) of this section; a review of
contract performance and financial reporting compliance; a review of
the program management and performance data described in Sec. Sec.
686.1000 and 686.1010; an assessment of whether the center is on a
performance improvement plan as described Sec. 686.1070 and if so,
whether the center is making measureable progress in completing the
actions described in the plan; and an evaluation of the factors
described in paragraph (d) of this section.
(c) The Secretary only will renew the agreement of an entity to
operate a Job Corps center if the entity:
(1) Has a satisfactory record of integrity and business ethics;
(2) Has adequate financial resources to perform the agreement;
(3) Has the necessary organization, experience, accounting and
operational controls, and technical skills; and
(4) Is otherwise qualified and eligible under applicable laws and
regulations, including that the contractor is not under suspension or
debarred from eligibility for Federal contractors.
(d) The Secretary will not renew an agreement for an entity to
operate a Job Corps center for any additional 1-year period if, for
both of the 2 most recent preceding program years for which information
is available at the time the determination is made, or if a second
program year is not available, the preceding year for which information
is available, such center:
(1) Has been ranked in the lowest 10 percent of Job Corps centers
according to the rankings calculated under Sec. 686.1060; and
(2) Failed to achieve an average of 50 percent or higher of the
expected level of performance established under Sec. 686.1050 with
respect to each of the primary indicators of performance for eligible
youth described in sec. 116(b)(2)(A)(ii) of WIOA, listed in Sec.
686.1010.
(e)(1) Information will be considered to be available for a program
year for purposes of paragraph (d) of this section if for each of the
primary indicators of performance, all of the students included in the
cohort being measured either began their participation under the
current center operator or, if they began their participation under the
previous center operator, were on center for at least 6 months under
the current operator. If an operator assumes operation of a center that
meets the criteria under paragraphs (d)(1) and (2) of this section, the
first contractual option year will not be denied based on the
application of paragraph (d) of this section provided that the operator
otherwise meets the requirements for renewal described in paragraphs
(a) through (c) of this section.
(2) If complete information for any of the indicators of
performance described in paragraph (d)(2) of this section is not
available for either of the 2 program years described in paragraph (d)
of this section, the Secretary will review partial program year data
from the most recent program year for those indicators, if at least two
quarters of data are available, when making the determination required
under paragraph (d)(2) of this section.
(f) If any of the program years described in paragraph (d) of this
section precede the implementation of the establishment of the expected
levels of performance under Sec. 686.1050 and the application of the
primary indicators of performance for Job Corps centers described in
Sec. 686.1010, the evaluation described in paragraph (d) of this
section will be based on whether in its operation of the center the
entity:
(1) Is ranked among the lowest 10 percent of Job Corps centers for
the most recent preceding program year according to the ranking
calculated under Sec. 686.1060; and
(2) Meets the requirement of paragraph (d)(2) of this section with
respect to such preceding program years using the performance of the
Job Corps center regarding the national goals or targets established by
the Office of the Job Corps under the previous performance
accountability system for--
(i) The 6-month follow-up placement rate of graduates in
employment, the military, education, or training;
[[Page 56448]]
(ii) The 12-month follow-up placement rate of graduates in
employment, the military, education, or training;
(iii) The 6-month follow-up average weekly earnings of graduates;
(iv) The rate of attainment of secondary school diplomas or their
recognized equivalent;
(v) The rate of attainment of completion certificates for career
technical training;
(vi) Average literacy gains; and
(vii) Average numeracy gains.
(g) The Secretary can exercise an option to renew the agreement
with an entity notwithstanding the requirements in paragraph (d) of
this section for no more than 2 additional years if the Secretary
determines that a renewal would be in the best interest of the Job
Corps program, taking into account factors including:
(1) Significant improvements in program performance in carrying out
a performance improvement plan;
(2) That the performance is due to circumstances beyond the control
of the entity, such as an emergency or disaster;
(3) A significant disruption in the operations of the center,
including in the ability to continue to provide services to students,
or significant increase in the cost of such operations; or
(4) A significant disruption in the procurement process with
respect to carrying out a competition for the selection of a center
operator.
(h) If the Secretary does make an exception and exercises the
option to renew per paragraph (g) of this section, the Secretary will
provide a detailed explanation of the rationale for exercising the
option to the Committee on Education and the Workforce of the House of
Representatives and the Committee on Health, Education, Labor, and
Pensions of the Senate.
Sec. 686.340 How are entities selected to receive funding to provide
outreach and admission, career transition and other operations support
services?
(a) The Secretary selects eligible entities to provide outreach and
admission, career transition, and operational services on a competitive
basis in accordance with applicable statutes and regulations. In
selecting an entity, ETA issues requests for proposals (RFP) for
operational support services according to the Federal Acquisition
Regulation (48 CFR chapter 1) and Department of Labor Acquisition
Regulation (48 CFR chapter 29). ETA develops RFPs for operational
support services in consultation with the Governor, the center
workforce council (if established), and the Local WDB for the workforce
development area in which the center is located.
(b) The RFP for each support service contract describes uniform
specifications and standards, as well as specifications and
requirements that are unique to the specific required operational
support services.
(c) The contracting officer selects and funds operational support
service contracts on the basis of an evaluation of the proposals
received using criteria established by the Secretary and set forth in
the RFP. The criteria may include the following, as applicable:
(1) The ability of the offeror to coordinate the activities carried
out in relation to the Job Corps center with related activities carried
out under the appropriate State Plan and local plans;
(2) The ability of the entity to offer career technical training
that has been proposed by the workforce council and the degree to which
the training reflects employment opportunities in the local areas in
which most of the students intend to seek employment;
(3) The degree to which the offeror demonstrates relationships with
the surrounding communities, including employers, labor organizations,
State WDBs, Local WDBs, applicable one-stop centers, and the State and
region in which the services are provided;
(4) The offeror's past performance, if any, relating to providing
services to a Job Corps center, including information regarding the
offeror in any reports developed by the Office of the Inspector General
of the Department of Labor and the offeror's demonstrated effectiveness
in assisting individuals in achieving the indicators of performance for
eligible youth described in sec. 116(b)(2)(A)(ii) of WIOA, listed in
Sec. 686.1010;
(5) The offeror's ability to demonstrate a record of successfully
assisting at-risk youth to connect to the workforce; and
(6) Any other information on additional selection factors required
by the Secretary.
Sec. 686.350 What conditions apply to the operation of a Civilian
Conservation Center?
(a) The Secretary of Labor may enter into an agreement with the
Secretary of Agriculture to operate Job Corps centers located on public
land, which are called Civilian Conservation Centers (CCCs). Located
primarily in rural areas, in addition to academics, career technical
training, and workforce preparation skills training, CCCs provide
programs of work experience to conserve, develop, or manage public
natural resources or public recreational areas or to develop community
projects in the public interest.
(b) When the Secretary of Labor enters into an agreement with the
Secretary of Agriculture for the funding, establishment, and operation
of CCCs, provisions are included to ensure that the Department of
Agriculture complies with the regulations under this part.
(c) Enrollees in CCCs may provide assistance in addressing
national, State, and local disasters, consistent with current child
labor laws. The Secretary of Agriculture must ensure that enrollees are
properly trained, equipped, supervised, and dispatched consistent with
the standards for the conservation and rehabilitation of wildlife
established under the Fish and Wildlife Coordination Act (16 U.S.C. 661
et seq.).
(d) The Secretary of Agriculture must designate a Job Corps
National Liaison to support the agreement between the Departments of
Labor and Agriculture to operate CCCs.
(e) The Secretary of Labor, in consultation with the Secretary of
Agriculture, may select an entity to operate a CCC in accordance with
the requirements of Sec. 686.310 if the Secretary of Labor determines
appropriate.
(f) The Secretary of Labor has the discretion to close CCCs if the
Secretary determines appropriate.
Sec. 686.360 What are the requirements for award of contracts and
payments to Federal agencies?
(a) The requirements of the Federal Property and Administrative
Services Act of 1949, as amended; the Federal Grant and Cooperative
Agreement Act of 1977; the Federal Acquisition Regulation (48 CFR
chapter 1); and the Department of Labor Acquisition Regulation (48 CFR
chapter 29) apply to the award of contracts and to payments to Federal
agencies.
(b) Job Corps funding of Federal agencies that operate CCCs are
made by a transfer of obligational authority from the Department to the
respective operating agency.
Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, and Enrollment
Sec. 686.400 Who is eligible to participate in the Job Corps program?
(a) To be eligible to participate in the Job Corps, an individual
must be:
(1) At least 16 and not more than 24 years of age at the time of
enrollment, except that:
(i) The Job Corps Director may waive the maximum age limitation
described in paragraph (a)(1) of this section, and
[[Page 56449]]
the requirement in paragraph (a)(1)(ii) of this section for an
individual with a disability if he or she is otherwise eligible
according to the requirements listed in this section and Sec. 686.410;
and
(ii) Not more than 20 percent of individuals enrolled nationwide
may be individuals who are aged 22 to 24 years old;
(2) A low-income individual;
(3) An individual who is facing one or more of the following
barriers to education and employment:
(i) Is basic skills deficient, as defined in WIOA sec. 3;
(ii) Is a school dropout;
(iii) Is homeless as defined in sec. 41403(6) of the Violence
Against Women Act of 1994 (42 U.S.C. 14043e-2(6)); is a homeless child
or youth, as defined in sec. 725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)); or is a runaway, an individual in
foster care; or an individual who was in foster care and has aged out
of the foster care system.
(iv) Is a parent; or
(v) Requires additional education, career technical training, or
workforce preparation skills in order to obtain and retain employment
that leads to economic self-sufficiency; and
(4) Meets the requirements of Sec. 686.420, if applicable.
(b) Notwithstanding paragraph (a)(2) of this section, a veteran is
eligible to become an enrollee if the individual:
(1) Meets the requirements of paragraphs (a)(1) and (3) of this
section; and
(2) Does not meet the requirement of paragraph (a)(2) of this
section because the military income earned by the individual within the
6-month period prior to the individual's application for Job Corps
prevents the individual from meeting that requirement.
Sec. 686.410 Are there additional factors which are considered in
selecting an eligible applicant for enrollment?
Yes, in accordance with procedures issued by the Secretary, an
eligible applicant may be selected for enrollment only if:
(a) A determination is made, based on information relating to the
background, needs, and interests of the applicant, that the applicant's
educational and career and technical needs can best be met through the
Job Corps program;
(b) A determination is made that there is a reasonable expectation
the applicant can participate successfully in group situations and
activities, and is not likely to engage in actions that would
potentially:
(1) Prevent other students from receiving the benefit of the
program;
(2) Be incompatible with the maintenance of sound discipline; or
(3) Impede satisfactory relationships between the center to which
the student is assigned and surrounding local communities;
(c) The applicant is made aware of the center's rules, what the
consequences are for failure to observe the rules, and agrees to comply
with such rules, as described in procedures issued by the Secretary;
(d) The applicant has not been convicted of a felony consisting of
murder, child abuse, or a crime involving rape or sexual assault. Other
than these felony convictions, no one will be denied enrollment in Job
Corps solely on the basis of contact with the criminal justice system.
All applicants must submit to a background check conducted according to
procedures established by the Secretary and in accordance with
applicable State and local laws. If the background check finds that the
applicant is on probation, parole, under a suspended sentence, or under
the supervision of any agency as a result of court action or
institutionalization, the court or appropriate supervising agency may
certify in writing that it will approve of the applicant's
participation in Job Corps, and provide full release from its
supervision, and that the applicant's participation and release does
not violate applicable laws and regulations; and
(e) Suitable arrangements are made for the care of any dependent
children for the proposed period of enrollment.
Sec. 686.420 Are there any special requirements for enrollment
related to the Military Selective Service Act?
(a) Yes, each male applicant 18 years of age or older must present
evidence that he has complied with sec. 3 of the Military Selective
Service Act (50 U.S.C. App. 451 et seq.) if required; and
(b) When a male student turns 18 years of age, he must submit
evidence to the center that he has complied with the requirements of
the Military Selective Service Act (50 U.S.C. App. 451 et seq.).
Sec. 686.430 What entities conduct outreach and admissions activities
for the Job Corps program?
The Secretary makes arrangements with outreach and admissions
providers to perform Job Corps recruitment, screening and admissions
functions according to standards and procedures issued by the
Secretary. Entities eligible to receive funds to provide outreach and
admissions services are identified in Sec. 686.300.
Sec. 686.440 What are the responsibilities of outreach and admissions
providers?
(a) Outreach and admissions agencies are responsible for:
(1) Developing outreach and referral sources;
(2) Actively seeking out potential applicants;
(3) Conducting personal interviews with all applicants to identify
their needs and eligibility status; and
(4) Identifying youth who are interested and likely Job Corps
participants.
(b) Outreach and admissions providers are responsible for
completing all Job Corps application forms and determining whether
applicants meet the eligibility and selection criteria for
participation in Job Corps as provided in Sec. Sec. 686.400 and
686.410.
(c) The Secretary may decide that determinations with regard to one
or more of the eligibility criteria will be made by the National
Director or his or her designee.
Sec. 686.450 How are applicants who meet eligibility and selection
criteria assigned to centers?
(a) Each applicant who meets the application and selection
requirements of Sec. Sec. 686.400 and 686.410 is assigned to a center
based on an assignment plan developed by the Secretary in consultation
with the operators of Job Corps centers. The assignment plan identifies
a target for the maximum percentage of students at each center who come
from the State or region nearest the center, and the regions
surrounding the center. The assignment plan is based on an analysis of
the following non-exclusive list of factors that will be analyzed in
consultation with center operators:
(1) The number of eligible individuals in the State and region
where the center is located and the regions surrounding where the
center is located;
(2) The demand for enrollment in Job Corps in the State and region
where the center is located and in surrounding regions;
(3) The size and enrollment level of the center, including the
education, training, and supportive services provided through the
center; and
(4) The performance of the Job Corps center relating to the
expected levels of performance for indicators described in WIOA sec.
159(c)(1), and whether any actions have been taken with respect to the
center under secs. 159(f)(2) and 159(f)(3) of WIOA.
(b) Eligible applicants are assigned to the center that offers the
type of career technical training selected by the individual, and among
the centers that
[[Page 56450]]
offer such career technical training, is closest to the home of the
individual. The Secretary may waive this requirement if:
(1) The enrollee would be unduly delayed in participating in the
Job Corps program because the closest center is operating at full
capacity; or
(2) The parent or guardian of the enrollee requests assignment of
the enrollee to another Job Corps center due to circumstances in the
community that would impair prospects for successful completion by the
enrollee.
(c) If a parent or guardian objects to the assignment of a student
under the age of 18 to a center other than the center closest to home
that offers the desired career technical training, the Secretary must
not make such an assignment.
Sec. 686.460 What restrictions are there on the assignment of
eligible applicants for nonresidential enrollment in Job Corps?
No more than 20 percent of students enrolled in Job Corps
nationwide may be nonresidential students.
Sec. 686.470 May an individual who is determined to be ineligible or
an individual who is denied enrollment appeal that decision?
(a) A person who is determined to be ineligible to participate in
Job Corps under Sec. 686.400 or a person who is not selected for
enrollment under Sec. 686.410 may appeal the determination to the
outreach and admissions agency within 60 days of the determination. The
appeal will be resolved according to the procedures in Sec. Sec.
686.960 and 686.965. If the appeal is denied by the outreach/admissions
contractor or the center, the person may appeal the decision in writing
to the Regional Director within 60 days of the date of the denial. The
Regional Director will decide within 60 days whether to reverse or
approve the appealed decision. The decision by the Regional Director is
the Department's final decision.
(b) If an applicant believes that he or she has been determined
ineligible or not selected for enrollment based upon a factor
prohibited by sec. 188 of WIOA, the individual may proceed under the
applicable Department nondiscrimination regulations implementing WIOA
sec. 188 at 29 CFR part 38.
(c) An applicant who is determined to be ineligible or a person who
is denied enrollment must be referred to the appropriate one-stop
center or other local service provider.
Sec. 686.480 At what point is an applicant considered to be enrolled
in Job Corps?
(a) To be considered enrolled as a Job Corps student, an applicant
selected for enrollment must physically arrive at the assigned Job
Corps center on the appointed date. However, applicants selected for
enrollment who arrive at their assigned centers by government furnished
transportation are considered to be enrolled on their dates of
departure by such transportation.
(b) Center operators must document the enrollment of new students
according to procedures issued by the Secretary.
Sec. 686.490 How long may a student be enrolled in Job Corps?
(a) Except as provided in paragraph (b) of this section, a student
may remain enrolled in Job Corps for no more than 2 years.
(b)(1) An extension of a student's enrollment may be authorized in
special cases according to procedures issued by the Secretary;
(2) A student's enrollment in an advanced career training program
may be extended in order to complete the program for a period not to
exceed 1 year;
(3) An extension of a student's enrollment may be authorized in the
case of a student with a disability who would reasonably be expected to
meet the standards for a Job Corps graduate if allowed to participate
in the Job Corps for not more than 1 additional year; and
(4) An enrollment extension may be granted to a student who
participates in national service, as authorized by a Civilian
Conservation Center, for the amount of time equal to the period of
national service.
Subpart E--Program Activities and Center Operations
Sec. 686.500 What services must Job Corps centers provide?
(a) Job Corps centers must provide an intensive, well-organized,
and fully supervised program including:
(1) Educational activities, including:
(i) Career technical training;
(ii) Academic instruction;
(iii) Employability and skills training; and
(iv) Independent learning and living skills development.
(2) Work-based learning and experience;
(3) Residential support services; and
(4) Other services as required by the Secretary.
(b) In addition, centers must provide students with access to the
career services described in secs. 134(c)(2)(A)(i)-(xi) of WIOA.
Sec. 686.505 What types of training must Job Corps centers provide?
(a) Job Corps centers must provide students with a career technical
training program that is:
(1) Aligned with industry-recognized standards and credentials and
with program guidance; and
(2) Linked to employment opportunities in in-demand industry
sectors and occupations both in the area in which the center is located
and, if practicable, in the area the student plans to reside after
graduation.
(b) Each center must provide education programs, including: An
English language acquisition program, high school diploma or high
school equivalency certification program, and academic skills training
necessary for students to master skills in their chosen career
technical training programs.
(c) Each center must provide programs for students to learn and
practice employability and independent learning and living skills
including: job search and career development, interpersonal relations,
driver's education, study and critical thinking skills, financial
literacy and other skills specified in program guidance.
(d) All Job Corps training programs must be based on industry and
academic skills standards leading to recognized industry and academic
credentials, applying evidence-based instructional approaches, and
resulting in:
(1) Students' employment in unsubsidized, in-demand jobs with the
potential for advancement opportunities;
(2) Enrollment in advanced education and training programs or
apprenticeships, including registered apprenticeship; or
(3) Enlistment in the Armed Services.
(e) Specific career technical training programs offered by
individual centers must be approved by the Regional Director according
to policies issued by the Secretary.
(f) Center workforce councils described in Sec. 686.810 must
review appropriate labor market information, identify in-demand
industry sectors and employment opportunities in local areas where
students will look for employment, determine the skills and education
necessary for those jobs, and as appropriate, recommend changes in the
center's career technical training program to the Secretary.
(g) Each center must implement a system to evaluate and track the
progress and achievements of each student at regular intervals.
(h) Each center must develop a training plan that must be available
for
[[Page 56451]]
review and approval by the appropriate Regional Director.
Sec. 686.510 Are entities other than Job Corps center operators
permitted to provide academic and career technical training?
(a) The Secretary may arrange for the career technical and academic
education of Job Corps students through local public or private
educational agencies, career and technical educational institutions or
technical institutes, or other providers such as business, union or
union-affiliated organizations with demonstrated effectiveness, as long
as the entity can provide education and training substantially
equivalent in cost and quality to that which the Secretary could
provide through other means.
(b) Entities providing these services will be selected in
accordance with the requirements of Sec. 686.310.
Sec. 686.515 What are advanced career training programs?
(a) The Secretary may arrange for programs of advanced career
training (ACT) for selected students, which may be provided through the
eligible training providers identified in WIOA sec. 122 in which the
students continue to participate in the Job Corps program for a period
not to exceed 1 year in addition to the period of participation to
which these students would otherwise be limited.
(b) Students participating in an ACT program are eligible to
receive:
(1) All of the benefits provided to a residential Job Corps
student; or
(2) A monthly stipend equal to the average value of the benefits
described in paragraph (b)(1) of this section.
(c) Any operator may enroll more students than otherwise authorized
by the Secretary in an ACT program if, in accordance with standards
developed by the Secretary, the operator demonstrates:
(1) Participants in such a program have achieved a satisfactory
rate of completion and placement in training-related jobs; and
(2) For the most recently preceding 2 program years, the operator
has, on average, met or exceeded the expected levels of performance
under WIOA sec. 159(c)(1) for each of the primary indicators described
in WIOA sec. 116(b)(2)(A)(ii), listed in Sec. 686.1010.
Sec. 686.520 What responsibilities do the center operators have in
managing work-based learning?
(a) The center operator must emphasize and implement work-based
learning programs for students through center program activities,
including career and technical skills training, and through
arrangements with employers. Work-based learning must be under actual
working conditions and must be designed to enhance the employability,
responsibility, and confidence of the students. Work-based learning
usually occurs in tandem with students' career technical training.
(b) The center operator must ensure that students are assigned only
to workplaces that meet the safety standards described in Sec.
686.920.
Sec. 686.525 Are students permitted to hold jobs other than work-
based learning opportunities?
Yes, a center operator may authorize a student to participate in
gainful leisure time employment, as long as the employment does not
interfere with required scheduled activities.
Sec. 686.530 What residential support services must Job Corps center
operators provide?
Job Corps center operators must provide the following services
according to procedures issued by the Secretary:
(a) A center-wide quality living and learning environment that
supports the overall training program and includes a safe, secure,
clean and attractive physical and social environment, 7 days a week, 24
hours a day;
(b) An ongoing, structured personal counseling program for students
provided by qualified staff;
(c) A quality, safe and clean food service, to provide nutritious
meals for students;
(d) Medical services, through provision or coordination of a
wellness program which includes access to basic medical, dental and
mental health services, as described in the Policy and Requirements
Handbook, for all students from the date of enrollment until separation
from the Job Corps program;
(e) A recreation/avocational program that meets the needs of all
students;
(f) A student leadership program and an elected student government;
and
(g) A student welfare association for the benefit of all students
that is funded by non-appropriated funds that come from sources such as
snack bars, vending machines, disciplinary fines, donations, and other
fundraising activities, and is run by an elected student government,
with the help of a staff advisor.
Sec. 686.535 Are Job Corps centers required to maintain a student
accountability system?
Yes, each Job Corps center must establish and implement an
effective system to account for and document the daily whereabouts,
participation, and status of students during their Job Corps
enrollment. The system must enable center staff to detect and respond
to instances of unauthorized or unexplained student absence. Each
center must operate its student accountability system according to
requirements and procedures issued by the Secretary.
Sec. 686.540 Are Job Corps centers required to establish behavior
management systems?
(a) Yes, each Job Corps center must establish and maintain its own
student incentives system to encourage and reward students'
accomplishments.
(b) The Job Corps center must establish and maintain a behavior
management system, based on a behavior management plan, according to
standards of conduct and procedures established by the Secretary. The
behavior management plan must be approved by the Job Corps regional
office and reviewed annually. The behavior management system must
include a zero tolerance policy for violence and drugs as described in
Sec. 686.545. All criminal incidents will be promptly reported to
local law enforcement.
Sec. 686.545 What is Job Corps' zero tolerance policy?
(a) All center operators must comply with Job Corps' zero tolerance
policy as established by the Secretary. Job Corps has a zero tolerance
policy for infractions including but not limited to:
(1) Acts of violence, as defined by the Secretary;
(2) Use, sale, or possession of a controlled substance, as defined
at 21 U.S.C. 802;
(3) Abuse of alcohol;
(4) Possession of unauthorized goods; or
(5) Other illegal or disruptive activity.
(b) As part of this policy, all students must be tested for drugs
as a condition of participation.
(c) The zero tolerance policy specifies the offenses that result in
the separation of students from the Job Corps. The center director is
expressly responsible for determining when there is a violation of this
policy.
Sec. 686.550 How does Job Corps ensure that students receive due
process in disciplinary actions?
The center operator must ensure that all students receive due
process in disciplinary proceedings according to procedures developed
by the Secretary. These procedures must include center fact-finding and
behavior review boards, a code of sanctions under which the penalty of
separation from Job Corps
[[Page 56452]]
might be imposed, and procedures for students to submit an appeal to a
Job Corps regional appeal board following a center's decision to
discharge involuntarily the student from Job Corps.
Sec. 686.555 What responsibilities do Job Corps centers have in
assisting students with child care needs?
(a) Job Corps centers are responsible for coordinating with
outreach and admissions agencies to assist applicants, whenever
feasible, with making arrangements for child care. Prior to enrollment,
a program applicant with dependent children who provides primary or
custodial care must certify that suitable arrangements for child care
have been established for the proposed period of enrollment.
(b) Child development programs may be located at Job Corps centers
with the approval of the Secretary.
Sec. 686.560 What are the center's responsibilities in ensuring that
students' religious rights are respected?
(a) Centers must ensure that a student has the right to worship or
not worship as he or she chooses.
(b) Students who believe their religious rights have been violated
may file complaints under the procedures set forth in 29 CFR part 38.
(c) Requirements related to equal treatment of religious
organizations in Department of Labor programs, and to protection of
religious liberty of Department of Labor social service providers and
beneficiaries, are found at subpart D of 29 CFR part 2. See also
Sec. Sec. 683.255 and 683.285 of this chapter; 29 CFR part 38.
Sec. 686.565 Is Job Corps authorized to conduct pilot and
demonstration projects?
Yes, the Secretary may undertake experimental, research and
demonstration projects related to the Job Corps program according to
WIOA sec. 156(a), provided that such projects are developed, approved,
and conducted in accordance with policies and procedures developed by
the Secretary.
Subpart F--Student Support
Sec. 686.600 Are students provided with government-paid
transportation to and from Job Corps centers?
Yes, Job Corps provides for the transportation of students between
their homes and centers as described in policies and procedures issued
by the Secretary.
Sec. 686.610 When are students authorized to take leaves of absence
from their Job Corps centers?
(a) Job Corps students are eligible for annual leaves, emergency
leaves and other types of leaves of absence from their assigned centers
according to criteria and requirements issued by the Secretary.
Additionally, enrollees in Civilian Conservation Centers may take leave
to provide assistance in addressing national, State, and local
disasters, consistent with current laws and regulations, including
child labor laws and regulations.
(b) Center operators and other service providers must account for
student leave according to procedures issued by the Secretary.
Sec. 686.620 Are Job Corps students eligible to receive cash
allowances and performance bonuses?
(a) Yes, according to criteria and rates established by the
Secretary, Job Corps students receive cash living allowances,
performance bonuses, and allotments for care of dependents. Graduates
receive post-separation transition allowances according to Sec.
686.750.
(b) In the event of a student's death, any amount due under this
section is paid according to the provisions of 5 U.S.C. 5582 governing
issues such as designation of beneficiary, order of precedence, and
related matters.
Sec. 686.630 Are student allowances subject to Federal payroll taxes?
Yes, Job Corps student allowances are subject to Federal payroll
tax withholding and social security taxes. Job Corps students are
considered to be Federal employees for purposes of Federal payroll
taxes.
Sec. 686.640 Are students provided with clothing?
Yes, Job Corps students are provided cash clothing allowances and/
or articles of clothing, including safety clothing, when needed for
their participation in Job Corps and their successful entry into the
work force. Center operators and other service providers must issue
clothing and clothing assistance to students according to rates,
criteria, and procedures issued by the Secretary.
Subpart G--Career Transition and Graduate Services
Sec. 686.700 What are a Job Corps center's responsibilities in
preparing students for career transition services?
Job Corps centers must assess and counsel students to determine
their competencies, capabilities, and readiness for career transition
services.
Sec. 686.710 What career transition services are provided for Job
Corps enrollees?
Job Corps career transition services focus on placing program
graduates in:
(a) Full-time jobs that are related to their career technical
training and career pathway that lead to economic self-sufficiency;
(b) Postsecondary education;
(c) Advanced training programs, including registered apprenticeship
programs; or
(d) The Armed Forces.
Sec. 686.720 Who provides career transition services?
The one-stop delivery system must be used to the maximum extent
practicable in placing graduates and former enrollees in jobs. Multiple
other resources also may provide post-program services, including but
not limited to Job Corps career transition service providers under a
contract or other agreement with the Department of Labor, and State
vocational rehabilitation agencies for individuals with disabilities.
Sec. 686.730 What are the responsibilities of career transition
service providers?
(a) Career transition service providers are responsible for:
(1) Contacting graduates;
(2) Assisting them in improving skills in resume preparation,
interviewing techniques and job search strategies;
(3) Identifying job leads or educational and training opportunities
through coordination with Local WDBs, one-stop operators and partners,
employers, unions and industry organizations;
(4) Placing graduates in jobs, registered apprenticeship, the Armed
Forces, or postsecondary education or training, or referring former
students for additional services in their local communities as
appropriate; and
(5) Providing placement services for former enrollees according to
procedures issued by the Secretary.
(b) Career transition service providers must record and submit all
Job Corps placement information according to procedures established by
the Secretary.
Sec. 686.740 What services are provided for program graduates?
According to procedures issued by the Secretary, career transition
and support services must be provided to program graduates for up to 12
months after graduation.
Sec. 686.750 Are graduates provided with transition allowances?
Yes, graduates receive post-separation transition allowances
according to policies and procedures established by
[[Page 56453]]
the Secretary. Transition allowances are incentive-based to reflect a
graduate's attainment of academic credentials and those associated with
career technical training such as industry-recognized credentials.
Sec. 686.760 What services are provided to former enrollees?
(a) Up to 3 months of employment services, including career
services offered through a one-stop center, may be provided to former
enrollees.
(b) According to procedures issued by the Secretary, other career
transition services as determined appropriate may be provided to former
enrollees.
Subpart H--Community Connections
Sec. 686.800 How do Job Corps centers and service providers become
involved in their local communities?
(a) The director of each Job Corps center must ensure the
establishment and development of mutually beneficial business and
community relationships and networks. Establishing and developing
networks includes relationships with:
(1) Local and distant employers;
(2) Applicable one-stop centers and Local WDBs:
(3) Entities offering apprenticeship opportunities, including
registered apprenticeships, and youth programs;
(4) Labor-management organizations and local labor organizations;
(5) Employers and contractors that support national training
programs and initiatives; and
(6) Community-based organizations, non-profit organizations, and
intermediaries providing workforce development-related services.
(b) Each Job Corps center also must establish and develop
relationships with members of the community in which it is located.
Members of the community must be informed of the projects of the Job
Corps center and changes in the rules, procedures, or activities of the
center that may affect the community. Events of mutual interest to the
community and the Job Corps center must be planned to create and
maintain community relations and community support.
Sec. 686.810 What is the makeup of a workforce council and what are
its responsibilities?
(a) Each Job Corps center must establish a workforce council,
according to procedures established by the Secretary. The workforce
council must include:
(1) Non-governmental and private sector employers;
(2) Representatives of labor organizations (where present) and of
employees;
(3) Job Corps enrollees and graduates; and
(4) In the case of a single-State local area, the workforce council
must include a representative of the State WDB constituted under Sec.
679.110 of this chapter.
(b) A majority of the council members must be business owners,
chief executives or chief operating officers of nongovernmental
employers or other private sector employers, or their designees, who
have substantial management, hiring or policy responsibility and who
represent businesses with employment opportunities in the local area
and the areas in which students will seek employment.
(c) The workforce council may include, or otherwise provide for
consultation with, employers from outside the local area who are likely
to hire a significant number of enrollees from the Job Corps center.
(d) The workforce council must:
(1) Work with all applicable Local WDBs and review labor market
information to determine and provide recommendations to the Secretary
regarding the center's career technical training offerings, including
identification of emerging occupations suitable for training;
(2) Review all relevant labor market information, including related
information in the State Plan or the local plan, to:
(i) Recommend in-demand industry sectors or occupations in the area
in which the center operates;
(ii) Determine employment opportunities in the areas in which
enrollees intend to seek employment;
(iii) Determine the skills and education necessary to obtain the
identified employment; and
(iv) Recommend to the Secretary the type of career technical
training that must be implemented at the center to enable enrollees to
obtain the employment opportunities identified; and
(3) Meet at least once every 6 months to reevaluate the labor
market information, and other relevant information, to determine and
recommend to the Secretary any necessary changes in the career
technical training provided at the center.
Sec. 686.820 How will Job Corps coordinate with other agencies?
(a) The Secretary issues guidelines for the national office,
regional offices, Job Corps centers and operational support providers
to use in developing and maintaining cooperative relationships with
other agencies and institutions, including law enforcement, educational
institutions, communities, and other employment and training programs
and agencies.
(b) The Secretary develops polices and requirements to ensure
linkages with the one-stop delivery system to the greatest extent
practicable, as well as with other Federal, State, and local programs,
and youth programs funded under title I of WIOA. These linkages enhance
services to youth who face multiple barriers to employment and must
include, where appropriate:
(1) Referrals of applicants and students;
(2) Participant assessment;
(3) Pre-employment and work maturity skills training;
(4) Work-based learning;
(5) Job search, occupational, and basic skills training; and
(6) Provision of continued services for graduates.
(c) Job Corps is identified as a required one-stop partner.
Wherever practicable, Job Corps centers and operational support
contractors must establish cooperative relationships and partnerships
with one-stop centers and other one-stop partners, Local WDBs, and
other programs for youth.
Subpart I--Administrative and Management Provisions
Sec. 686.900 Are damages caused by the acts or omissions of students
eligible for payment under the Federal Tort Claims Act?
Yes, students are considered Federal employees for purposes of the
FTCA. (28 U.S.C. 2671 et seq.) Claims for such damage must be filed
pursuant to the procedures found in 29 CFR part 15, subpart D.
Sec. 686.905 Are loss and damages that occur to persons or personal
property of students at Job Corps centers eligible for reimbursement?
Yes, the Job Corps may pay students for valid claims under the
procedures found in 29 CFR part 15, subpart D.
Sec. 686.910 If a student is injured in the performance of duty as a
Job Corps student, what benefits may the student receive?
(a) Job Corps students are considered Federal employees for
purposes of the Federal Employees' Compensation Act (FECA) as specified
in sec. 157(a)(3) of WIOA. (29 U.S.C. 2897(a)(3))
(b) Job Corps students may be entitled to benefits under FECA as
provided by
[[Page 56454]]
5 U.S.C. 8143 for injuries occurring in the performance of duty.
(c) Job Corps students must meet the same eligibility tests for
FECA benefits that apply to all other Federal employees. The
requirements for FECA benefits may be found at 5 U.S.C. 8101, et seq.
and part 10 of this title. The Department of Labor's Office of Workers'
Compensation Programs (OWCP) administers the FECA program; all FECA
determinations are within the exclusive authority of the OWCP, subject
to appeal to the Employees' Compensation Appeals Board.
(d) Whenever a student is injured, develops an occupationally
related illness, or dies while in the performance of duty, the
procedures of the OWCP, at part 10 of this title, must be followed. To
assist OWCP in determining FECA eligibility, a thorough investigation
of the circumstances and a medical evaluation must be completed and
required forms must be timely filed by the center operator with the
Department's OWCP. Additional information regarding Job Corps FECA
claims may be found in OWCP's regulations and procedures available on
the Department's Web site located at https://www.dol.gov/.
Sec. 686.915 When is a Job Corps student considered to be in the
performance of duty?
(a) Performance of duty is a determination that must be made by the
OWCP under FECA, and is based on the individual circumstances in each
claim.
(b) In general, residential students may be considered to be in the
``performance of duty'' when:
(1) They are on center under the supervision and control of Job
Corps officials;
(2) They are engaged in any authorized Job Corps activity;
(3) They are in authorized travel status; or
(4) They are engaged in any authorized offsite activity.
(c) Non-resident students are generally considered to be ``in
performance of duty'' as Federal employees when they are engaged in any
authorized Job Corps activity, from the time they arrive at any
scheduled center activity until they leave the activity. The standard
rules governing coverage of Federal employees during travel to and from
work apply. These rules are described in guidance issued by the
Secretary.
(d) Students are generally considered to be not in the performance
of duty when:
(1) They are Absent Without Leave (AWOL);
(2) They are at home, whether on pass or on leave;
(3) They are engaged in an unauthorized offsite activity; or
(4) They are injured or ill due to their own willful misconduct,
intent to cause injury or death to oneself or another, or through
intoxication or illegal use of drugs.
Sec. 686.920 How are students protected from unsafe or unhealthy
situations?
(a) The Secretary establishes procedures to ensure that students
are not required or permitted to work, be trained, reside in, or
receive services in buildings or surroundings or under conditions that
are unsanitary or hazardous. Whenever students are employed or in
training for jobs, they must be assigned only to jobs or training which
observe applicable Federal, State and local health and safety
standards.
(b) The Secretary develops procedures to ensure compliance with
applicable Department of Labor Occupational Safety and Health
Administration regulations and Wage and Hour Division regulations.
Sec. 686.925 What are the requirements for criminal law enforcement
jurisdiction on center property?
(a) All Job Corps property which would otherwise be under exclusive
Federal legislative jurisdiction is considered under concurrent
jurisdiction with the appropriate State and locality with respect to
criminal law enforcement. Concurrent jurisdiction extends to all
portions of the property, including housing and recreational
facilities, in addition to the portions of the property used for
education and training activities.
(b) Centers located on property under concurrent Federal-State
jurisdiction must establish agreements with Federal, State and local
law enforcement agencies to enforce criminal laws.
(c) The Secretary develops procedures to ensure that any searches
of a student's person, personal area, or belongings for unauthorized
goods follow applicable right-to-privacy laws.
Sec. 686.930 Are Job Corps operators and service providers authorized
to pay State or local taxes on gross receipts?
(a) A private for-profit or a non-profit Job Corps service provider
is not liable, directly or indirectly, to any State or subdivision for
any gross receipts taxes, business privilege taxes measured by gross
receipts, or any similar taxes in connection with any payments made to
or by such service provider for operating a center or other Job Corps
program or activity. The service provider is not liable to any State or
subdivision to collect or pay any sales, excise, use, or similar tax
imposed upon the sale to or use by such deliverer of any property,
service, or other item in connection with the operation of a center or
other Job Corps program or activity.
(b) If a State or local authority compels a center operator or
other service provider to pay such taxes, the center operator or
service provider may pay the taxes with Federal funds, but must
document and report the State or local requirement according to
procedures issued by the Secretary.
Sec. 686.935 What are the financial management responsibilities of
Job Corps center operators and other service providers?
(a) Center operators and other service providers must manage Job
Corps funds using financial management information systems that meet
the specifications and requirements of the Secretary.
(b) These financial management systems must:
(1) Provide accurate, complete, and current disclosures of the
costs of their Job Corps activities;
(2) Ensure that expenditures of funds are necessary, reasonable,
allocable, and allowable in accordance with applicable cost principles;
(3) Use account structures specified by the Secretary;
(4) Ensure the ability to comply with cost reporting requirements
and procedures issued by the Secretary; and
(5) Maintain sufficient cost data for effective planning,
monitoring, and evaluation of program activities and for determining
the allowability of reported costs.
Sec. 686.940 Are center operators and service providers subject to
Federal audits?
(a) Yes, Center operators and service providers are subject to
Federal audits.
(b) The Secretary arranges for the survey, audit, or evaluation of
each Job Corps center and service provider at least once every 3 years,
by Federal auditors or independent public accountants. The Secretary
may arrange for more frequent audits.
(c) Center operators and other service providers are responsible
for giving full cooperation and access to books, documents, papers and
records to duly appointed Federal auditors and evaluators.
Sec. 686.945 What are the procedures for management of student
records?
The Secretary issues guidelines for a system for maintaining
records for each student during enrollment and for disposition of such
records after separation.
[[Page 56455]]
Sec. 686.950 What procedures apply to disclosure of information about
Job Corps students and program activities?
(a) The Secretary develops procedures to respond to requests for
information or records or other necessary disclosures pertaining to
students.
(b) Department disclosure of Job Corps information must be handled
according to the Freedom of Information Act and according to Department
regulations at 29 CFR part 70.
(c) Job Corps contractors are not ``agencies'' for Freedom of
Information Act purposes. Therefore, their records are not subject to
disclosure under the Freedom of Information Act or 29 CFR part 70.
(d) The regulations at 29 CFR part 71 apply to a system of records
covered by the Privacy Act of 1974 maintained by the Department or to a
similar system maintained by a contractor, such as a screening agency,
contract center operator, or career transition service provider on
behalf of the Job Corps.
Sec. 686.955 What are the reporting requirements for center operators
and operational support service providers?
The Secretary establishes procedures to ensure the timely and
complete reporting of necessary financial and program information to
maintain accountability. Center operators and operational support
service providers are responsible for the accuracy and integrity of all
reports and data they provide.
Sec. 686.960 What procedures are available to resolve complaints and
disputes?
(a) Each Job Corps center operator and service provider must
establish and maintain a grievance procedure for filing complaints and
resolving disputes from applicants, students and/or other interested
parties about its programs and activities. A hearing on each complaint
or dispute must be conducted within 30 days of the filing of the
complaint or dispute. A decision on the complaint must be made by the
center operator or service provider, as appropriate, within 60 days
after the filing of the complaint, and a copy of the decision must be
immediately served, by first-class mail, on the complainant and any
other party to the complaint. Except for complaints under Sec. 686.470
or complaints alleging fraud or other criminal activity, complaints may
be filed within 1 year of the occurrence that led to the complaint.
(b) The procedure established under paragraph (a) of this section
must include procedures to process complaints alleging violations of
sec. 188 of WIOA, consistent with Department nondiscrimination
regulations implementing sec. 188 of WIOA at 29 CFR part 38 and Sec.
686.985.
Sec. 686.965 How does Job Corps ensure that complaints or disputes
are resolved in a timely fashion?
(a) If a complaint is not resolved by the center operator or
service provider in the time frames described in Sec. 686.960, the
person making the complaint may request that the Regional Director
determine whether reasonable cause exists to believe that WIOA or
regulations for this part of WIOA have been violated. The request must
be filed with the Regional Director within 60 days from the date that
the center operator or service provider should have issued the
decision.
(b) Following the receipt of a request for review under paragraph
(a) of this section, the Regional Director must determine within 60
days whether there has been a violation of WIOA or the WIOA
regulations. If the Regional Director determines that there has been a
violation of WIOA or WIOA regulations, (s)he may direct the operator or
service provider to remedy the violation or direct the service provider
to issue a decision to resolve the dispute according to the service
provider's grievance procedures. If the service provider does not
comply with the Regional Director's decision within 30 days, the
Regional Director may impose a sanction on the center operator or
service provider for violating WIOA or WIOA regulations, and/or for
failing to issue a decision. Decisions imposing sanctions upon a center
operator or service provider may be appealed to the Department of Labor
Office of Administrative Law Judges under Sec. 683.800 or Sec.
683.840 of this chapter.
Sec. 686.970 How does Job Corps ensure that centers or other service
providers comply with the Workforce Innovation and Opportunity Act and
the WIOA regulations?
(a) If the Department receives a complaint or has reason to believe
that a center or other service provider is failing to comply with the
requirements of WIOA or WIOA regulations, the Regional Director must
investigate the allegation and determine within 90 days after receiving
the complaint or otherwise learning of the alleged violation, whether
such allegation or complaint is true.
(b) As a result of such a determination, the Regional Director may:
(1) Direct the center operator or service provider to handle a
complaint through the grievance procedures established under Sec.
686.960; or
(2) Investigate and determine whether the center operator or
service provider is in compliance with WIOA and WIOA regulations. If
the Regional Director determines that the center or service provider is
not in compliance with WIOA or WIOA regulations, the Regional Director
may take action to resolve the complaint under Sec. 686.965(b), or
will report the incident to the Department of Labor Office of the
Inspector General, as described in Sec. 683.620 of this chapter.
Sec. 686.975 How does Job Corps ensure that contract disputes will be
resolved?
A dispute between the Department and a Job Corps contractor will be
handled according to the Contract Disputes Act and applicable
regulations.
Sec. 686.980 How does Job Corps resolve disputes between the U.S.
Department of Labor and the U.S. Department of Agriculture regarding
the operation of Job Corps centers?
Disputes between the U.S. Department of Labor and the U.S.
Department of Agriculture regarding operating a center will be handled
according to the interagency agreement between the two agencies.
Sec. 686.985 What Department of Labor equal opportunity and
nondiscrimination regulations apply to Job Corps?
Nondiscrimination requirements, procedures, complaint processing,
and compliance reviews are governed by, as applicable, provisions of
the following Department of Labor regulations:
(a) Regulations implementing sec. 188 of WIOA for programs
receiving Federal financial assistance under WIOA found at 29 CFR part
38;
(b) Title 29 CFR part 33 for programs conducted by the Department
of Labor; and
(c) Title 41 CFR chapter 60 for entities that have a Federal
government contract.
Subpart J--Performance
Sec. 686.1000 How is the performance of the Job Corps program
assessed?
(a) The performance of the Job Corps program as a whole, and the
performance of individual centers, outreach and admissions providers,
and career transition service providers, is assessed in accordance with
the regulations in this part and procedures and standards issued by the
Secretary, through a national performance management system, including
the Outcome Measurement System (OMS).
(b) The national performance management system will include
measures that reflect the primary
[[Page 56456]]
indicators of performance described in Sec. 686.1010, the information
needed to complete the Annual Report described in Sec. 686.1040, and
any other information the Secretary determines is necessary to manage
and evaluate the effectiveness of the Job Corps program. The Secretary
will issue annual guidance describing the performance management system
and outcome measurement system.
(c) Annual performance assessments based on the measures described
in paragraph (b) of this section are done for each center operator and
other service providers, including outreach and admissions providers
and career transition providers.
Sec. 686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
The primary indicators of performance for eligible youth are
described in sec. 116(b)(2)(A)(ii) of WIOA. They are:
(a) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the second
quarter after exit from the program;
(b) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the fourth
quarter after exit from the program;
(c) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(d) The percentage of program participants who obtain a recognized
postsecondary credential, or a secondary school diploma or its
recognized equivalent during participation in or within 1 year after
exit from the program. Program participants who obtain a secondary
school diploma or its recognized equivalent will be included in the
percentage only if they also have obtained or retained employment, or
are in an education or training program leading to a recognized
postsecondary credential, within 1 year after exit from the program;
(e) The percentage of program participants who, during a program
year, are in an education or training program that leads to a
recognized postsecondary credential or employment and who are achieving
measurable skill gains toward such a credential or employment; and
(f) The indicators of effectiveness in serving employers
established by the Secretaries of Education and Labor, pursuant to sec.
116(b)(2)(A)(iv) of WIOA.
Sec. 686.1020 What are the indicators of performance for Job Corps
outreach and admissions providers?
The Secretary establishes performance indicators for outreach and
admission service providers serving the Job Corps program. They
include, but are not limited to:
(a) The number of enrollees recruited, compared to the established
goals for such recruitment, and the number of enrollees who remain
committed to the program for 90 days after enrollment;
(b) The percentage and number of former enrollees, including the
number dismissed under the zero tolerance policy described in sec.
152(b) of WIOA and Sec. 686.545;
(c) The maximum attainable percent of enrollees at the Job Corps
center that reside in the State in which the center is located, and the
maximum attainable percentage of enrollees at the Job Corps center that
reside in the State in which the center is located and in surrounding
regions, as compared to the percentage targets established by the
Secretary for the center for each of those measures;
(d) The cost per enrollee, calculated by comparing the number of
enrollees at the center in a program year to the total budget for such
center in the same program year; and
(e) Additional indicators of performance, as necessary.
Sec. 686.1030 What are the indicators of performance for Job Corps
career transition service providers?
The Secretary establishes performance indicators for career
transition service providers serving the Job Corps program. These
include, but are not limited to, the following:
(a) The primary indicators of performance for eligible youth in
WIOA sec. 116(b)(2)(A)(ii), as listed in Sec. 686.1010;
(b) The number of graduates who entered the Armed Forces;
(c) The number of graduates who entered registered apprenticeship
programs;
(d) The number of graduates who entered unsubsidized employment
related to the career technical training received through the Job Corps
program;
(e) The number of graduates who entered unsubsidized employment not
related to the education and training received through the Job Corps
program;
(f) The percentage and number of graduates who enter postsecondary
education;
(g) The average wage of graduates who entered unsubsidized
employment:
(1) On the first day of such employment; and
(2) On the day that is 6 months after such first day; and
(h) Additional indicators of performance, as necessary.
Sec. 686.1040 What information will be collected for use in the
Annual Report?
The Secretary will collect and submit in the Annual Report
described in sec. 159(c)(4) of WIOA, which will include the following
information on each Job Corps center, and the Job Corps program as a
whole:
(a) Information on the performance, based on the performance
indicators described Sec. 686.1010, as compared to the expected level
of performance established under Sec. 686.1050 for each performance
indicator;
(b) Information on the performance of outreach service providers
and career transition service providers on the performance indicators
established under Sec. Sec. 686.1020 and 686.1030, as compared to the
expected levels of performance established under Sec. 686.1050 for
each of those indicators;
(c) The number of enrollees served;
(d) Demographic information on the enrollees served, including age,
race, gender, and education and income level;
(e) The number of graduates of a Job Corps center;
(f) The number of graduates who entered the Armed Forces;
(g) The number of graduates who entered registered apprenticeship
programs;
(h) The number of graduates who received a regular secondary school
diploma;
(i) The number of graduates who received a State recognized
equivalent of a secondary school diploma;
(j) The number of graduates who entered unsubsidized employment
related to the career technical training received through the Job Corps
program and the number who entered unsubsidized employment not related
to the education and training received;
(k) The percentage and number of former enrollees, including the
number dismissed under the zero tolerance policy described in Sec.
686.545;
(l) The percentage and number of graduates who enter postsecondary
education;
(m) The average wage of graduates who enter unsubsidized
employment:
(1) On the first day of such employment; and
(2) On the day that is 6 months after such first day;
(n) The maximum attainable percent of enrollees at a Job Corps
center that reside in the State in which the center is located, and the
maximum attainable percentage of enrollees at a Job Corps center that
reside in the State in which the center is located and in surrounding
[[Page 56457]]
regions, as compared to the percentage targets established by the
Secretary for the center for each of those measures;
(o) The cost per enrollee, which is calculated by comparing the
number of enrollees at the center in a program year to the total budget
for such center in the same program year;
(p) The cost per graduate, which is calculated by comparing the
number of graduates of the center in a program year compared to the
total budget for such center in the same program year;
(q) Information regarding the state of Job Corps buildings and
facilities, including a review of requested construction,
rehabilitation, and acquisition projects, by each Job Corps center, and
a review of new facilities under construction;
(r) Available information regarding the national and community
service activities of enrollees, particularly those enrollees at
Civilian Conservation Centers; and
(s) Any additional information required by the Secretary.
Sec. 686.1050 How are the expected levels of performance for Job
Corps centers, outreach and admissions providers and career transition
service providers established?
(a) The Secretary establishes expected levels of performance for
Job Corps centers, outreach and admissions providers and career
transition service providers and the Job Corps program relating to each
of the primary indicators of performance described in Sec. Sec.
686.1010, 686.1020, and 686.1030.
(b) As described in Sec. 686.1000, the Secretary will issue annual
guidance describing the national performance management system and
outcomes measurement system, which will communicate the expected levels
of performance for each primary indicator of performance for each
center, and each indicator of performance for each outreach and
admission provider, and for each career transition service provider.
Such guidance also will describe how the expected levels of performance
were calculated.
Sec. 686.1060 How are center rankings established?
(a) The Secretary calculates annual rankings of center performance
based on the performance management system described in Sec. 686.1000
as part of the annual performance assessment described in Sec.
686.1000(c).
(b) The Secretary will issue annual guidance that communicates the
methodology for calculating the performance rankings for the year.
Sec. 686.1070 How and when will the Secretary use performance
improvement plans?
(a) The Secretary establishes standards and procedures for
developing and implementing performance improvement plans.
(1) The Secretary will develop and implement a performance
improvement plan for a center when that center fails to meet the
expected levels of performance described in Sec. 686.1050.
(i) The Secretary will consider a center to have failed to meet the
expected level of performance if the center:
(A) Is ranked among the lowest 10 percent of Job Corps centers for
the most recent preceding program year according to the rankings
calculated under Sec. 686.1060; and
(B) The center fails to achieve an average of 90 percent of the
expected level of performance for all of the primary indicators.
(ii) For any program year that precedes the implementation of the
establishment of the expected levels of performance under Sec.
686.1050 and the application of the primary indicators of performance
for Job Corps centers identified in Sec. 686.1010, the Secretary will
consider a center to have failed to meet the expected levels of
performance if the center:
(A) Is ranked among the lowest 10 percent of Job Corps centers for
the most recent preceding program year according to the rankings
calculated under Sec. 686.1060; and
(B) The center's composite OMS score for the program year is 88
percent or less of the year's OMS national average.
(2) The Secretary also may develop and implement additional
performance improvement plans, which will require improvements for a
Job Corps center that fails to meet criteria established by the
Secretary other than the expected levels of performance.
(b) A performance improvement plan will require action be taken to
correct identified performance issues within 1 year of the
implementation of the plan, and it will identify criteria that must be
met for the center to complete the performance improvement plan.
(1) The center operator must implement the actions outlined in the
performance improvement plan.
(2) If the center fails to take the steps outlined in the
performance improvement plan or fails to meet the criteria established
to complete the performance improvement plan after 1 year, the center
will be considered to have failed to improve performance under a
performance improvement plan detailed in paragraph (a) of this section.
(i) Such a center will remain on a performance improvement plan and
the Secretary will take action as described in paragraph (c) of this
section.
(ii) If a Civilian Conservation Center fails to meet expected
levels of performance relating to the primary indicators of performance
specified in Sec. 686.1010, or fails to improve performance under a
performance improvement plan detailed in paragraph (a) of this section
after 3 program years, the Secretary, in consultation with the
Secretary of Agriculture, must select an entity to operate the Civilian
Conservation Center on a competitive basis, in accordance with the
requirements of Sec. 686.310.
(c) Under a performance improvement plan, the Secretary may take
the following actions, as necessary:
(1) Providing technical assistance to the center;
(2) Changing the management staff of a center;
(3) Changing the career technical training offered at the center;
(4) Replacing the operator of the center;
(5) Reducing the capacity of the center;
(6) Relocating the center; or
(7) Closing the center in accordance with the criteria established
under Sec. 686.200(b).
0
20. Add part 687 to read as follows:
PART 687--NATIONAL DISLOCATED WORKER GRANTS
Sec.
687.100 What are the types and purposes of National Dislocated
Worker Grants under the Workforce Innovation and Opportunity Act?
687.110 What are major economic dislocations or other events which
may qualify for a National Dislocated Worker Grant?
687.120 Who is eligible to apply for National Dislocated Worker
Grants?
687.130 When must applications for National Dislocated Worker Grants
be submitted to the Department?
687.140 What activities are applicants expected to conduct before a
National Dislocated Worker Grant application is submitted?
687.150 What are the requirements for submitting applications for
National Dislocated Worker Grants?
687.160 What is the timeframe for the Department to issue decisions
on National Dislocated Worker Grant applications?
687.170 Who is eligible to be served under National Dislocated
Worker Grants?
687.180 What are the allowable activities under National Dislocated
Worker Grants?
687.190 How do statutory and regulatory waivers apply to National
Dislocated Worker Grants?
[[Page 56458]]
687.200 What are the program and administrative requirements that
apply to National Dislocated Worker Grants?
Authority: Secs. 170, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
Sec. 687.100 What are the types and purposes of National Dislocated
Worker Grants under the Workforce Innovation and Opportunity Act?
There are two types and purposes of National Dislocated Worker
Grants (DWGs) under sec. 170 of WIOA: Employment Recovery DWGs and
Disaster Recovery DWGs.
(a) Employment Recovery DWGs provide employment and training
activities for dislocated workers and other eligible populations. They
are intended to expand service capacity temporarily at the State and
local levels, by providing time-limited funding assistance in response
to major economic dislocations or other events that affect the U.S.
workforce that cannot be accommodated with WIOA formula funds or other
relevant existing resources.
(b) Disaster Recovery DWGs allow for the creation of disaster
relief employment to assist with clean-up and recovery efforts from
emergencies or major disasters and the provision of employment and
training activities, in accordance with Sec. 687.180(b).
Sec. 687.110 What are major economic dislocations or other events
which may qualify for a National Dislocated Worker Grant?
(a) Qualifying events for Employment Recovery DWGs include:
(1) Plant closures or mass layoffs affecting 50 or more workers
from one employer in the same area;
(2) Closures and realignments of military installations;
(3) Plant closures or layoffs that have significantly increased the
total number of unemployed individuals in a community;
(4) Situations where higher-than-average demand for employment and
training activities for dislocated members of the Armed Forces,
dislocated spouses of members of the Armed Forces on active duty (as
defined in 10 U.S.C. 101(d)(1)), or members of the Armed Forces
described in Sec. 687.170(a)(1)(iii), exceeds State and local
resources for providing such activities; and
(5) Other events, as determined by the Secretary.
(b) Qualifying events for Disaster Recovery DWGs include:
(1) Emergencies or major disasters, as defined in paragraphs (1)
and (2), respectively, of sec. 102 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5122(1) and (2)) which
have been declared eligible for public assistance by the Federal
Emergency Management Agency (FEMA);
(2) An emergency or disaster situation of national significance,
natural or man-made, that could result in a potentially large loss of
employment, as declared or otherwise recognized and issued in writing
by the chief official of a Federal Agency with jurisdiction over the
Federal response to the emergency or disaster situation; and
(3) Situations where a substantial number of workers from a State,
tribal area, or outlying area in which an emergency or disaster has
occurred relocate to another State, tribal area, or outlying area.
Sec. 687.120 Who is eligible to apply for National Dislocated Worker
Grants?
(a) For Employment Recovery DWGs, the following entities are
eligible to apply:
(1) States or outlying areas, or a consortium of States;
(2) Local Workforce Development Boards (WDBs), or a consortium of
WDBs;
(3) An entity described in sec. 166(c) of WIOA (relating to Indian
and Native American programs);
(4) Other entities determined to be appropriate by the Governor of
the State or outlying area involved; and
(5) Other entities that demonstrate to the Secretary the capability
to respond effectively to circumstances relating to particular
dislocations.
(b) For Disaster Recovery DWGs, the following entities are eligible
to apply:
(1) States;
(2) Outlying areas; and
(3) Indian tribal governments as defined by the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(6)).
Sec. 687.130 When must applications for National Dislocated Worker
Grants be submitted to the Department?
(a) Applications for Employment Recovery DWGs may be submitted at
any time during the year and must be submitted to respond to eligible
events as soon as possible when:
(1) The applicant receives a notification of a mass layoff or a
closure as a result of a Worker Adjustment and Retraining Notification
(WARN) Act notice, a general announcement, or some other means, or in
the case of applications to address situations described in Sec.
687.110(a)(4), when higher-than-average demand for employment and
training activities for those members of the Armed Forces and military
spouses exceeds State and local resources for providing such
activities;
(2) Worker need and interest in services has been determined
through Rapid Response, or other means, and is sufficient to justify
the need for a DWG; and
(3) A determination has been made, in collaboration with the
applicable local area, that State and local formula funds are
inadequate to provide the level of services needed by the affected
workers.
(b) Applications for Disaster Recovery DWGs to respond to an
emergency or major disaster must be submitted as soon as possible when:
(1) As described in Sec. 687.110(b)(1), FEMA has declared that the
affected area is eligible for public assistance;
(2) A situation as described in Sec. 687.110(b)(2) occurs. The
applications must indicate the applicable Federal agency declaration,
describe the impact on the local and/or State economy, and describe the
proposed activities; or
(3) A situation as described in Sec. 687.110(b)(3) occurs, and
interest in services has been determined and is sufficient to justify
the need for a DWG.
Sec. 687.140 What activities are applicants expected to conduct
before a National Dislocated Worker Grant Application is submitted?
Prior to submitting an application for DWG funds, applicants must:
(a) For Employment Recovery DWGs:
(1) Collect information to identify the needs and interests of the
affected workers through rapid response activities (described in Sec.
682.330 of this chapter), or other means;
(2) Provide appropriate services to eligible workers including
other rapid response activities, based on information gathered as
described in paragraph (a)(1) of this section; and
(3) Coordinate with the Local WDB and chief elected official(s) of
the local area(s) in which the proposed DWG project is to operate.
(b) For Disaster DWGs:
(1) Conduct a preliminary assessment of the clean-up and
humanitarian needs of the affected areas;
(2) Reasonably ascertain that there is a sufficient population of
eligible individuals to conduct the planned work; and
(3) Coordinate with the Local WDB and chief elected official(s) of
the local area(s) in which the proposed project is to operate.
Sec. 687.150 What are the requirements for submitting applications
for National Dislocated Worker Grants?
The Department will publish guidance on the requirements for
submitting applications for DWGs.
[[Page 56459]]
Requirements may vary depending on the DWG. A project implementation
plan must be submitted after receiving the DWG award, unless otherwise
specified.
Sec. 687.160 What is the timeframe for the Department to issue
decisions on National Dislocated Worker Grant applications?
The Department will issue a final decision on a DWG application
within 45 calendar days of receipt of an application that meets the
requirements of this part. Applicants are encouraged to review their
DWG application submissions carefully and consult with the appropriate
Employment and Training Administration Regional Office to ensure their
applications meet the requirements established in this part and those
that may be set forth in guidance.
Sec. 687.170 Who is eligible to be served under National Dislocated
Worker Grants?
(a) For Employment Recovery DWGs:
(1) In order to receive employment and training activities, an
individual must be:
(i) A dislocated worker within the meaning of sec. 3(15) of WIOA;
(ii) A person who is either:
(A) A civilian employee of the Department of Defense or the
Department of Energy employed at a military installation that is being
closed or will undergo realignment within 24 months after the date of
determination of eligibility; or
(B) An individual employed in a non-managerial position with a
Department of Defense contractor determined by the Secretary of Defense
to be at risk of termination from employment as a result of reductions
in defense expenditures and whose employer is converting from defense
to non-defense applications in order to prevent worker layoffs; or
(iii) A member of the Armed Forces who:
(A) Was on active duty or full-time National Guard duty;
(B) Is involuntarily separated from active duty or full-time
National Guard duty (as defined in 10 U.S.C. 1141), or is separated
from active duty or full-time National Guard duty pursuant to a special
separation benefits program under 10 U.S.C. 1174a, or the voluntary
separation incentive program under 10 U.S.C. 1175;
(C) Is not entitled to retired or retained pay incident to the
separation described in paragraph (a)(1)(iii)(B) of this section; and
(D) Applies for employment and training assistance under this part
before the end of the 180-day period beginning on the date of the
separation described in paragraph (a)(1)(iii)(B) of this section.
(iv) For Employment Recovery DWGs awarded for situations described
in Sec. 687.110(a)(4), a person who is:
(A) A dislocated member of the Armed Forces or member of the Armed
Forces described in paragraph (a)(1)(iii) of this section; or
(B) The dislocated spouse of a member of the Armed Forces on active
duty (as defined in 10 U.S.C. 101(d)(1)).
(2) [Reserved]
(b) For Disaster Recovery DWGs:
(1) In order to be eligible to receive disaster relief employment
under sec. 170(b)(1)(B)(i) of WIOA, an individual must be:
(i) A dislocated worker;
(ii) A long-term unemployed individual;
(iii) An individual who is temporarily or permanently laid off as a
consequence of the emergency or disaster; or
(iv) An individual who is self-employed and becomes unemployed or
significantly underemployed as a result of the emergency or disaster.
(2) In order to be eligible to receive employment and training
activities and in rare instances, disaster relief employment under sec.
170(b)(1)(B)(ii) of WIOA, an individual must have relocated or
evacuated from an area as a result of a disaster that has been declared
or otherwise recognized, and be:
(i) A dislocated worker;
(ii) A long-term unemployed individual;
(iii) An individual who is temporarily or permanently laid off as a
consequence of the emergency or disaster; or
(iv) An individual who is self-employed and becomes unemployed or
significantly underemployed as a result of the emergency or disaster.
(c) For Disaster Recovery DWG funds, individuals described in
paragraph (b)(2) of this section are eligible to receive services
provided with DWG funds in the State, tribal area, or outlying area in
which the disaster occurred or the State, tribal area, or outlying area
to which they have relocated. In certain cases determined by the
Secretary, individuals described in paragraph (b)(2) of this section
are eligible to receive services in both the State, tribal area, or
outlying area in which the disaster occurred and the State, tribal
area, or outlying area to which they have relocated.
Sec. 687.180 What are the allowable activities under National
Dislocated Worker Grants?
(a) For Employment Recovery DWGs:
(1) Employment and training assistance, including those activities
authorized at secs. 134(c) through (d) and 170(b)(1) of WIOA. The
services to be provided in a particular project are negotiated between
the Department and the grantee, taking into account the needs of the
target population covered by the grant, and may be changed through
grant modifications, if necessary.
(2) DWGs may provide for supportive services, including needs-
related payments (subject to the restrictions in sec. 134(d)(3) of
WIOA, where applicable, and the terms and conditions of the grant) to
help workers who require such assistance to participate in the
activities provided for in the grant. Generally, the terms of a grant
must be consistent with local policies governing such financial
assistance under its formula funds (including the payment levels and
duration of payments). The terms of the grant agreement may diverge
from established local policies, in the following instances:
(i) If unemployed dislocated workers served by the project are not
able to meet the 13 or 8 weeks enrollment in training requirement
established by sec. 134(d)(3)(B) of WIOA because of the lack of formula
or DWG funds in the State or local area at the time of the dislocation,
such individuals may be eligible for needs-related payments if they are
enrolled in training by the end of the 6th week following the date of
the DWG award; or
(ii) Under other circumstances as specified in guidance governing
DWG application requirements.
(b) For Disaster DWGs: Funds provided under sec. 170(b)(1)(B) of
WIOA can support a different array of activities, depending on the
circumstances surrounding the situation for which the grant was
awarded:
(1) For DWGs serving individuals in an emergency or disaster area
declared eligible for public assistance by FEMA, disaster relief
employment is authorized to support projects that provide food,
clothing, shelter, and other humanitarian assistance for emergency and
disaster victims, and projects regarding demolition, cleaning, repair,
renovation, and reconstruction of damaged and destroyed structures,
facilities, and lands located within the disaster area and in offshore
areas related to the emergency or disaster in coordination with the
Administrator of FEMA. Employment and training activities also may be
provided, as appropriate. An individual's disaster relief employment is
limited to 12 months or less for work related to
[[Page 56460]]
recovery from a single emergency or disaster. The Secretary may extend
an individual's disaster relief employment for up to an additional 12
months, if it is requested and sufficiently justified by an entity
described in Sec. 687.120(b).
(2) For DWGs serving individuals who have relocated from an
emergency or disaster area, only employment and training activities
will be authorized, except where disaster relief employment is
appropriate.
(3) For DWGs awarded to States for events that have designations
from Federal agencies (other than FEMA) that recognize an emergency or
disaster situation as one of national significance that could result in
a potentially large loss of employment, disaster relief employment and/
or employment and training activities may be authorized, depending on
the circumstances associated with the specific event.
(c) Disaster Recovery DWG funds may be expended through public and
private agencies and organizations engaged in the activities described
in this paragraph (b) of this section.
Sec. 687.190 How do statutory and regulatory waivers apply to
National Dislocated Worker Grants?
(a) For DWGs, utilization of statutory or regulatory waivers is
limited to waivers already approved by the Department under sec. 189(i)
of WIOA, separate from the DWG process. WIOA sec. 189(i) gives the
Department the authority to waive provisions under subtitles A, B, and/
or E of WIOA; requirements of DWGs in WIOA subtitle D cannot and will
not be waived.
(b) A grant application must include a description of the approved
waiver and request that the waiver be applied to the DWG. The
Department will consider such requests as part of the overall DWG
application review and decision process; however, applicants may not
use this process to request new waivers.
(c) If during the operation of a DWG, the grantee wishes to utilize
a statutory or regulatory waiver that the Department has already
approved under sec. 189(i), but it was not included in the grantee's
original DWG application, the grantee must submit a grant modification
that describes the waiver and requests application of the waiver to the
DWG. Grantees may not use this process to request new waivers.
Sec. 687.200 What are the program and administrative requirements
that apply to National Dislocated Worker Grants?
(a) Unless otherwise authorized in a DWG agreement, the financial
and administrative rules contained in part 683 of this chapter apply to
awards under this part.
(b) Exceptions include:
(1) Funds provided in response to a disaster may be used for
temporary job creation in areas declared eligible for public assistance
by FEMA, and, in some instances, areas impacted by an emergency or
disaster situation of national significance, as provided in Sec.
687.110(b)(2), and subject to the limitations of sec. 170(d) of WIOA,
this part, and any guidance issued by the Department;
(2) Per sec. 170(d)(4) of WIOA, in extremely limited instances, as
determined by the Secretary or the Secretary's designee, any Disaster
Recovery DWG funds that are available for expenditure under any grant
awarded under this part may be used for additional disasters or
situations of national significance experienced by an entity described
in Sec. 687.120(b) in the same program year the funds were awarded;
(3) DWG funds may be used to pay an appropriate level of
administrative costs based on the design and complexity of the project.
The Department will negotiate administrative costs with the applicant
as part of the application review and grant award and modification
processes. Administrative cost limits will be calculated against the
amount of the grant awarded;
(4) The period of availability for expenditure of funds under a DWG
is specified in the grant agreement;
(5) The Department may establish supplemental reporting,
monitoring, and oversight requirements for DWGs. The requirements will
be identified in the grant application instructions or the grant
document; and
(6) The Department may negotiate and fund projects under terms
other than those specified in this part where it can be clearly
demonstrated that such adjustments will achieve a greater positive
benefit for the workers and/or communities being assisted.
0
21. Add part 688 to read as follows:
PART 688--PROVISIONS GOVERNING THE YOUTHBUILD PROGRAM
Subpart A--Purpose and Definitions
Sec.
688.100 What is YouthBuild?
688.110 What are the purposes of the YouthBuild program?
688.120 What definitions apply to this part?
Subpart B--Funding and Grant Applications
Sec.
688.200 How are YouthBuild grants funded and administered?
688.210 How does an eligible entity apply for grant funds to operate
a YouthBuild program?
688.220 How are eligible entities selected to receive grant funds?
688.230 What are the minimum requirements to apply for YouthBuild
funds?
688.240 How are eligible entities notified of approval for grant
funds?
Subpart C--Program Requirements
Sec.
688.300 Who is an eligible participant?
688.310 Are there special rules that apply to veterans?
688.320 What eligible activities may be funded under the YouthBuild
program?
688.330 What level of training qualifies a construction project as a
qualifying work site under the YouthBuild program?
688.340 What timeframes apply to participation?
688.350 What timeframes must be devoted to education and workforce
investment or other activities?
688.360 What timeframes apply to follow-up services?
688.370 What are the requirements for exit from the YouthBuild
program?
688.380 What is the role of the YouthBuild grantee in the one-stop
delivery system?
Subpart D--Performance Indicators
Sec.
688.400 What are the performance indicators for YouthBuild grants?
688.410 What are the required levels of performance for the
performance indicators?
688.420 What are the reporting requirements for YouthBuild grantees?
688.430 What are the due dates for quarterly reporting?
Subpart E--Administrative Rules, Costs, and Limitations
Sec.
688.500 What administrative regulations apply to the YouthBuild
program?
688.510 How may grantees provide services under the YouthBuild
program?
688.520 What cost limits apply to the use of YouthBuild program
funds?
688.530 What are the cost-sharing or matching requirements of the
YouthBuild program?
688.540 What are considered to be leveraged funds?
688.550 How are the costs associated with real property treated in
the YouthBuild program?
688.560 What participant costs are allowable under the YouthBuild
program?
688.570 Does the Department allow incentive payments in the
YouthBuild program?
688.580 What effect do payments to YouthBuild participants have on
eligibility for other Federal needs-based benefits?
688.590 What program income requirements apply under the YouthBuild
program?
688.600 Are YouthBuild programs subject to the Davis-Bacon Act labor
standards?
688.610 What are the recordkeeping requirements for YouthBuild
programs?
[[Page 56461]]
Subpart F--Additional Requirements
Sec.
688.700 What are the safety requirements for the YouthBuild program?
688.710 What are the reporting requirements for youth safety?
688.720 What environmental protection laws apply to the YouthBuild
program?
688.730 What requirements apply to YouthBuild housing?
Authority: Secs. 171, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
Subpart A--Purpose and Definitions
Sec. 688.100 What is YouthBuild?
(a) YouthBuild is a workforce development program that provides
employment, education, leadership development, and training
opportunities to disadvantaged and low-income youth between the ages of
16 and 24, most of whom are secondary school drop outs and are either a
member of a low-income family, a foster care youth, a youth who is
homeless, an offender, a youth with a disability, a child of an
incarcerated parent, or a migrant youth.
(b) Program participants receive education services that may lead
to either a high school diploma or its State-recognized equivalent.
Further, they receive occupational skills training and are encouraged
to pursue postsecondary education or additional training, including
registered apprenticeship and pre-apprenticeship programs. The program
is designed to create a skilled workforce either in the construction
industry, through the rehabilitation and construction of housing for
homeless and low-income individuals and families, as well as public
facilities, or in other in-demand industries or occupations. The
program also benefits the larger community because it provides
increased access to affordable housing.
Sec. 688.110 What are the purposes of the YouthBuild program?
The overarching goal of the YouthBuild program is to provide
disadvantaged and low-income youth the opportunity to obtain education
and employment skills in local in-demand jobs to achieve economic self-
sufficiency. Additionally, the YouthBuild program has as goals to:
(a) Enable disadvantaged youth to obtain the education and
employment skills necessary to achieve economic self-sufficiency
through employment in in-demand occupations and pursuit of
postsecondary education and training opportunities;
(b) Provide disadvantaged youth with opportunities for meaningful
work and service to their communities;
(c) Foster the development of employment and leadership skills and
commitment to community development among youth in low-income
communities;
(d) Expand the supply of permanent affordable housing for homeless
individuals and families, homeless youth, and low-income families by
utilizing the talents of disadvantaged youth. The program seeks to
increase the number of affordable and transitional housing units
available to decrease the rate of homelessness in communities with
YouthBuild programs; and
(e) Improve the quality and energy efficiency of community and
other non-profit and public facilities, including those that are used
to serve homeless and low-income families.
Sec. 688.120 What definitions apply to this part?
In addition to the definitions at sec. 3 of the Workforce
Innovation and Opportunity Act (WIOA) and Sec. 675.300 of this
chapter, the following definitions apply:
Adjusted income means, with respect to a family, the amount (as
determined by the Housing Development Agency) of the income of the
members of the family residing in a dwelling unit or the persons on a
lease, after any income exclusions as follows:
(1) Mandatory exclusions. In determining adjusted income, a Housing
Development Agency must exclude from the annual income of a family the
following amounts:
(i) Elderly and disabled families. $400 for any elderly or disabled
family.
(ii) Medical expenses. The amount by which three percent of the
annual family income is exceeded by the sum of:
(A) Unreimbursed medical expenses of any elderly family or disabled
family;
(B) Unreimbursed medical expenses of any family that is not covered
under paragraph (1)(ii)(A) of this definition, except that this
paragraph (1)(ii)(B) only applies to the extent approved in
appropriation Acts; and
(C) Unreimbursed reasonable attendant care and auxiliary apparatus
expenses for each handicapped member of the family, to the extent
necessary to enable any member of such family (including such
handicapped member) to be employed.
(iii) Child care expenses. Any reasonable child care expenses
necessary to enable a member of the family to be employed or to further
his or her education.
(iv) Minors, students, and persons with disabilities. $480 for each
member of the family residing in the household (other than the head of
the household or his or her spouse) who is less than 18 years of age or
is attending school or vocational training on a full-time basis, or who
is 18 years of age or older and is a person with disabilities.
(v) Child support payments. Any payment made by a member of the
family for the support and maintenance of any child who does not reside
in the household, except that the amount excluded under this clause may
not exceed $480 for each child for whom such payment is made; except
that this clause only applies to the extent approved in appropriations
Acts.
(vi) Spousal support expenses. Any payment made by a member of the
family for the support and maintenance of any spouse or former spouse
who does not reside in the household, except that the amount excluded
under this clause must not exceed the lesser of the amount that such
family member has a legal obligation to pay, or $550 for each
individual for whom such payment is made; except that this clause only
applies to the extent approved in appropriations Acts.
(vii) Earned income of minors. The amount of any earned income of a
member of the family who is not:
(A) 18 years of age or older; and
(B) The head of the household (or the spouse of the head of the
household).
(2) Permissive exclusions for public housing. In determining
adjusted income, a Housing Development Agency may, at the discretion of
the agency, establish exclusions from the annual income of a family
residing in a public housing dwelling unit. Such exclusions may include
the following amounts:
(i) Excessive travel expenses. Excessive travel expenses in an
amount not to exceed $25 per family per week, for employment or
education-related travel.
(ii) Earned income. An amount of any earned income of the family,
established at the discretion of the Housing Development Agency, which
may be based on:
(A) All earned income of the family,
(B) The amount earned by particular members of the family;
(C) The amount earned by families having certain characteristics;
or
(D) The amount earned by families or members during certain periods
or from certain sources.
(iii) Others. Such other amounts for other purposes, as the Housing
Development Agency may establish.
Applicant means an eligible entity that has submitted an
application under Sec. 688.210.
[[Page 56462]]
Basic skills deficient means an individual:
(1) Who is a youth, and who has English reading, writing, or
computing skills at or below the eighth grade level on a generally
accepted standardized test; or
(2) Who is a youth or adult, and who is unable to compute or solve
problems, or read, write, or speak English, at a level necessary to
function on the job, in the individual's family, or in society.
Community or other public facility means those facilities which are
either privately owned by non-profit organizations, including faith-
based and community-based organizations, and publicly used for the
benefit of the community, or publicly owned and publicly used for the
benefit of the community.
Construction Plus means the inclusion of occupational skills
training for YouthBuild participants in in-demand occupations other
than construction.
Eligible entity means a public or private non-profit agency or
organization (including a consortium of such agencies or
organizations), including:
(1) A community-based organization;
(2) A faith-based organization;
(3) An entity carrying out activities under this title, such as a
Local Workforce Development Board (WDB);
(4) A community action agency;
(5) A State or local Housing Development Agency;
(6) An Indian tribe or other agency primarily serving Indians;
(7) A community development corporation;
(8) A State or local youth service or conservation corps; and
(9) Any other entity eligible to provide education or employment
training under a Federal program (other than the program carried out
under this section).
English language learner, when used with respect to a participant,
means an eligible individual who has limited ability in reading,
writing, speaking, or comprehending the English language, and:
(1) Whose native language is a language other than English; or
(2) Who lives in a family or community environment where a language
other than English is the dominant language.
Exit, as used in Sec. 688.400, has the same meaning as in Sec.
677.150(c) of this chapter.
Follow-up services include:
(1) The leadership development and supportive service activities
listed in Sec. Sec. 681.520 and 681.570 of this chapter;
(2) Regular contact with a youth participant's employer, including
assistance in addressing work-related problems that arise;
(3) Assistance in securing better paying jobs, career development,
and further education;
(4) Work-related peer support groups;
(5) Adult mentoring; and
(6) Services necessary to ensure the success of youth participants
in employment and/or postsecondary education.
Homeless child or youth means an individual who lacks a fixed,
regular, and adequate nighttime residence and includes a child or youth
who:
(1) Is sharing the housing of other persons due to loss of housing,
economic hardship, or a similar reason;
(2) Is living in a motel, hotel, trailer park, or campground due to
the lack of alternative adequate accommodations;
(3) Is living in an emergency or transitional shelter, is abandoned
in a hospital, or is awaiting foster care placement;
(4) Has a primary nighttime residence that is a public or private
place not designed for or ordinarily used as a regular sleeping
accommodation for human beings;
(5) Is living in cars, parks, public spaces, abandoned buildings,
substandard housing, bus or train stations, or similar settings; or
(6) Is a migratory child living in circumstances described in this
definition.
Homeless individual means an individual who lacks a fixed, regular,
and adequate nighttime residence and includes an individual who:
(1) Is sharing the housing of other persons due to loss of housing,
economic hardship, or similar reason;
(2) Is living in a motel, hotel, trailer park, or campground due to
the lack of alternative adequate accommodations;
(3) Is living in an emergency or transitional shelter;
(4) Is abandoned in a hospital, or is awaiting foster care
placement;
(5) Has a primary nighttime residence that is a public or private
place not designed for or ordinarily used as regular sleeping
accommodation for human beings; or
(6) Is a migratory child living in circumstances described in this
definition.
Housing Development Agency means any agency of a Federal, State or
local government, or any private non-profit organization, that is
engaged in providing housing for homeless individuals or low-income
families.
Income, as defined in the United States Housing Act of 1937 (42
U.S.C. 1437a(b)(2)), means income is from all sources of each member of
the household, as determined in accordance with the criteria prescribed
by the Secretary of Labor, in consultation with the Secretary of
Agriculture, except that any amounts not actually received by the
family and any amounts which would be eligible for exclusion under sec.
1382b(a)(7) of the United States Housing Act of 1937, may not be
considered as income under this definition.
In-Demand Industry Sector or Occupation means:
(1) An industry sector that has a substantial current or potential
impact (including through jobs that lead to economic self-sufficiency
and opportunities for advancement) on the State, regional, or local
economy, as appropriate, and that contributes to the growth or
stability of other supporting business, or the growth of other industry
sectors; or
(2) An occupation that currently has or is projected to have a
number of positions (including positions that lead to economic self-
sufficiency and opportunities for advancement) in an industry sector so
as to have a significant impact on the State, regional, or local
economy, as appropriate.
Indian, as defined in the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b), means a person who is a member of an
Indian tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C.
1601 et seq.), which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
Individual with a disability means an individual with a disability
as defined in sec. 3 of the Americans with Disabilities Act of 1990 (42
U.S.C. 12102).
Low-income family means a family whose income does not exceed 80
percent of the median income for the area unless the Secretary
determines that a higher or lower ceiling is warranted. This definition
includes families consisting of one person as defined by 42 U.S.C.
1437a(b)(3).
Migrant youth means a youth, or a youth who is the dependent of
someone who, during the previous 12 months, has:
(1) Worked at least 25 days in agricultural labor that is
characterized
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by chronic unemployment or underemployment;
(2) Made at least $800 from agricultural labor that is
characterized by chronic unemployment or underemployment, if at least
50 percent of his or her income came from such agricultural labor;
(3) Was employed at least 50 percent of his or her total employment
in agricultural labor that is characterized by chronic unemployment or
underemployment; or
(4) Was employed in agricultural labor that requires travel to a
jobsite such that the farmworker is unable to return to a permanent
place of residence within the same day.
Needs-based payments means additional payments beyond regular
stipends for program participation that are based on defined needs that
enable a youth to participate in the program.
Occupational skills training means an organized program of study
that provides specific vocational skills that lead to proficiency in
performing actual tasks and technical functions required by certain
occupational fields at entry, intermediate, or advanced levels.
Occupational skills training includes training programs that lead to
recognized postsecondary credentials that align with in-demand industry
sectors or occupations in the local area. Such training must:
(1) Be outcome-oriented and focused on an occupational goal
specified in the individual service strategy;
(2) Be of sufficient duration to impart the skills needed to meet
the occupational goal; and
(3) Result in attainment of a recognized postsecondary credential.
Offender means an adult or juvenile who:
(1) Is or has been subject to any stage of the criminal justice
process, and who may benefit from WIOA services; or
(2) Requires assistance in overcoming artificial barriers to
employment resulting from a record of arrest or conviction.
Participant means an individual who has been determined eligible to
participate in the YouthBuild program, and who enrolls in the program
and receives services or training described in Sec. 688.320.
Pre-apprenticeship, as defined in Sec. 681.480 of this chapter,
means a program designed to prepare individuals to enter and succeed in
an apprenticeship program registered under the Act of August 16, 1937
(commonly known as the ``National Apprenticeship Act''; 50 Stat. 664,
chapter 663; 29 U.S.C. 50 et seq.) (referred to in this part as a
``registered apprenticeship'' or ``registered apprenticeship program'')
and includes the following elements:
(1) Training and curriculum that aligns with the skill needs of
employers in the economy of the State or region involved;
(2) Access to educational and career counseling and other
supportive services, directly or indirectly;
(3) Hands-on, meaningful learning activities that are connected to
education and training activities, such as exploring career options,
and understanding how the skills acquired through coursework can be
applied toward a future career;
(4) Opportunities to attain at least one industry-recognized
credential; and
(5) A partnership with one or more registered apprenticeship
programs that assists in placing individuals who complete the pre-
apprenticeship program in a registered apprenticeship program.
(6) YouthBuild programs that receive funding under this part are
considered pre-apprenticeship programs under this definition.
Recognized postsecondary credential means a credential consisting
of an industry-recognized certificate or certification, a certificate
of completion of a registered apprenticeship, a license recognized by
the State involved or Federal government, or an associate or
baccalaureate degree.
Registered apprenticeship program means an apprenticeship program
that:
(1) Is registered under the Act of August 16, 1937 (commonly known
as the ``National Apprenticeship Act'' (50 Stat. 664; 20 U.S.C. 50 et
seq.)); and
(2) Meets such other criteria as the Secretary may establish.
School dropout means an individual who no longer attends any school
and who has not received a secondary school diploma or its State-
recognized equivalent.
Secondary school means a nonprofit institutional day or residential
school, including a public secondary charter school, that provides
secondary education, as determined under State law, except that the
term does not include any education beyond grade 12.
Section 3 means a program described in sec. 3 of the Housing and
Urban Development Act of 1968, as amended by the Housing and Community
Development Act of 1992.
Supportive services for youth, as defined in Sec. 681.570 of this
chapter, are services that enable an individual to participate in WIOA
activities. These services include, but are not limited to, the
following:
(1) Linkages to community services;
(2) Assistance with transportation;
(3) Assistance with child care and dependent care;
(4) Referrals to child support;
(5) Assistance with housing;
(6) Needs-related payments;
(7) Assistance with educational testing;
(8) Reasonable accommodations for youth with disabilities;
(9) Referrals to health care;
(10) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eyeglasses and protective
eye gear;
(11) Assistance with books, fees, school supplies, and other
necessary items for students enrolled in postsecondary education
classes; and
(12) Payments and fees for employment and training-related
applications, tests, and certifications.
Transitional housing means housing provided to ease the movement of
individuals and families experiencing homelessness to permanent housing
within 24 months or such longer period.
YouthBuild program means any program that receives assistance under
this part and provides disadvantaged youth with opportunities for
employment, education, leadership development, service to the
community, and training through the rehabilitation (which, for purposes
of this part, includes energy efficiency enhancements) or construction
of housing for homeless individuals and low-income families, and public
facilities.
Youth in foster care, as defined in Sec. 681.210 of this chapter,
means an individual in foster care or who has aged out of the foster
care system or who has attained 16 years of age and left foster care
for kinship, guardianship, or adoption; or a child eligible for
assistance under sec. 477 of the Social Security Act (42 U.S.C. 677),
or in an out-of-home placement.
Subpart B--Funding and Grant Applications
Sec. 688.200 How are YouthBuild grants funded and administered?
The Secretary uses funds authorized for appropriation under WIOA
sec. 171(i) to administer YouthBuild as a national program under title
I, subtitle D of WIOA. YouthBuild grants are awarded to eligible
entities, as defined in Sec. 688.120, through the competitive
selection process described in Sec. 688.210.
Sec. 688.210 How does an eligible entity apply for grant funds to
operate a YouthBuild program?
The Secretary announces the availability of grant funds through a
[[Page 56464]]
Funding Opportunity Announcement (FOA). The FOA contains instructions
for what the Department requires in the grant application, describes
eligibility requirements, the rating criteria that the Department will
use in reviewing grant applications, and special reporting requirements
to operate a YouthBuild project. The FOA, along with the requisite
forms needed to apply for grant funds, can be found at http://www.doleta.gov/grants/find_grants.cfm.
Sec. 688.220 How are eligible entities selected to receive grant
funds?
In order to receive funds under the YouthBuild program, an eligible
entity must meet selection criteria established by the Secretary which
include:
(a) The qualifications or potential capabilities of an applicant;
(b) An applicant's potential to develop a successful YouthBuild
program;
(c) The need for an applicant's proposed program, as determined by
the degree of economic distress of the community from which
participants would be recruited (measured by indicators such as
poverty, youth unemployment, and the number of individuals who have
dropped out of secondary school) and of the community in which the
housing and community and public facilities proposed to be
rehabilitated or constructed are located (measured by indicators such
as incidence of homelessness, shortage of affordable housing, and
poverty);
(d) The commitment of an applicant to provide skills training,
leadership development, counseling and case management, and education
to participants;
(e) The focus of a proposed program on preparing youth for local
in-demand sectors or occupations, or postsecondary education and
training opportunities;
(f) The extent of an applicant's coordination of activities to be
carried out through the proposed program with:
(1) Local WDBs, one-stop center operators, and one-stop partners
participating in the operation of the one-stop delivery system
involved, or the extent of the applicant's good faith efforts, as
determined by the Secretary, in achieving such coordination;
(2) Public education, criminal justice, housing and community
development, national service, or postsecondary education or other
systems that relate to the goals of the proposed program; and
(3) Employers in the local area;
(g) The extent to which a proposed program provides for inclusion
of tenants who were previously homeless individuals or families in the
rental of housing provided through the program;
(h) The commitment of additional resources to the proposed program
(in addition to the funds made available through the grant) by:
(1) An applicant;
(2) Recipients of other Federal, State, or local housing and
community development assistance who will sponsor any part of the
rehabilitation, construction, operation and maintenance, or other
housing and community development activities undertaken as part of the
proposed program; or
(3) Entities carrying out other Federal, State, or local activities
or activities conducted by Indian tribes, including vocational
education programs, adult and language instruction educational
programs, and job training using funds provided under WIOA;
(i) An applicant's ability to enter partnerships with:
(1) Education and training providers including:
(i) The kindergarten through twelfth grade educational system;
(ii) Adult education programs;
(iii) Community and technical colleges;
(iv) Four-year colleges and universities;
(v) Registered apprenticeship programs; and
(vi) Other training entities;
(2) Employers, including professional organizations and
associations. An applicant will be evaluated on the extent to which
employers participate in:
(i) Defining the program strategy and goals;
(ii) Identifying needed skills and competencies;
(iii) Designing training approaches and curricula;
(iv) Contributing financial support; and
(v) Hiring qualified YouthBuild graduates;
(3) The workforce development system which may include:
(i) State and Local WDBs;
(ii) State workforce agencies; and
(iii) One-stop centers and their partner programs;
(4) The juvenile and adult justice systems, and the extent to which
they provide:
(i) Support and guidance for YouthBuild participants with court
involvement;
(ii) Assistance in the reporting of recidivism rates among
YouthBuild participants; and
(iii) Referrals of eligible participants through diversion or
reentry from incarceration;
(5) Faith-based and community organizations, and the extent to
which they provide a variety of grant services such as:
(i) Case management;
(ii) Mentoring;
(iii) English as a Second Language courses; and
(iv) Other comprehensive supportive services, when appropriate;
(j) The applicant's potential to serve different regions, including
rural areas and States that may not have previously received grants for
YouthBuild programs; and
(k) Such other factors as the Secretary determines to be
appropriate for purposes of evaluating an applicant's potential to
carry out the proposed program in an effective and efficient manner.
(l) The weight to be given to these factors will be described in a
FOA issued under Sec. 688.210.
Sec. 688.230 What are the minimum requirements to apply for
YouthBuild funds?
At minimum, applications for YouthBuild funds must include the
following elements:
(a) Labor market information for the relevant labor market area,
including both current data (as of the date of submission of the
application) and projections on career opportunities in construction
and in-demand industry sectors or occupations;
(b) A request for the grant, specifying the amount of the grant
requested and its proposed uses;
(c) A description of the applicant and a statement of its
qualifications, including a description of the applicant's relationship
with Local WDBs, one-stop operators, employers, local unions, entities
carrying out registered apprenticeship programs, other community
groups, and the applicant's past experience with rehabilitation or
construction of housing or public facilities (including experience with
programs through the U.S. Department of Housing and Urban Development
(HUD) under sec. 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701u)), and with youth education and employment training
programs);
(d) A description of the proposed site for the proposed program;
(e) A description of the educational and job training activities,
work opportunities, postsecondary education and training opportunities,
and other services that will be provided to participants, and how those
activities, opportunities, and services will prepare youth for
employment in in-demand
[[Page 56465]]
industry sectors or occupations in the labor market area described in
paragraph (a) of this section;
(1) A description of the proposed activities to be undertaken under
the grant related to rehabilitation or construction, and, in the case
of an applicant requesting approval from the Secretary to carry out
additional activities related to in-demand industry sectors or
occupations, a description of such additional activities.
(2) The anticipated schedule for carrying out all activities
proposed under paragraph (f) of this section;
(f) A description of the manner in which eligible youth will be
recruited and selected as participants, including a description of
arrangements that will be made with Local WDBs, one-stop operators,
faith and community-based organizations, State education agencies or
local education agencies (including agencies of Indian tribes), public
assistance agencies, the courts of jurisdictions, agencies that serve
youth who are homeless individuals (including those that operate
shelters), foster care agencies, and other appropriate public and
private agencies;
(g) A description of the special outreach efforts that will be
undertaken to recruit eligible young women (including young women with
dependent children) as participants;
(h) A description of the specific role of employers in the proposed
program, such as their role in developing the proposed program and
assisting in service provision and placement activities;
(i) A description of how the proposed program will be coordinated
with other Federal, State, and local activities conducted by Indian
tribes, such as workforce investment activities, career and technical
education and training programs, adult and language instruction
educational programs, activities conducted by public schools,
activities conducted by community colleges, national service programs,
and other job training provided with funds available under WIOA, in
particular how programs will coordinate with local Workforce
Development funds outlined in WIOA sec. 129(c)(2);
(j) Assurances that there will be a sufficient number of adequately
trained supervisory personnel in the proposed program;
(k) A description of the level of performance to be achieved with
respect to primary indicators of performance for eligible youth as
described in Sec. 688.410;
(l) The organization's past performance under a grant issued by the
Secretary to operate a YouthBuild program;
(m) A description of the applicant's relationship with local
building trade unions regarding their involvement in training to be
provided through the proposed program, the relationship of the proposed
program to established registered apprenticeship programs and
employers, the ability of the applicant to grant an industry-recognized
certificate or certification through the program, and the quality of
the program leading to the certificate or certification;
(n) A description of activities that will be undertaken to develop
leadership skills of participants;
(o) A detailed budget and description of the system of fiscal
controls, and auditing and accounting procedures, that will be used to
ensure fiscal soundness for the proposed program;
(p) A description of the commitments for any additional resources
(in addition to funds made available through the grant) to be made
available to the proposed program from:
(1) The applicant;
(2) Recipients of other Federal, State, or local housing and
community development assistance that will sponsor any part of the
rehabilitation or construction, operation or maintenance, or other
housing and community development activities undertaken as part of the
proposed program; or
(3) Entities carrying out other Federal, State or local activities
conducted by Indian tribes, including career and technical education
and training programs, and job training provided with funds under WIOA;
(q) Information identifying and describing of, the financing
proposed for any:
(1) Rehabilitation of the property involved;
(2) Acquisition of the property; or
(3) Construction of the property;
(r) Information identifying and describing of, the entity that will
manage and operate the property;
(s) Information identifying and describing of, the data collection
systems to be used;
(t) A certification, by a public official responsible for the
housing strategy for the State or unit of general local government
within which the proposed program is located, that the proposed program
is consistent with the housing strategy;
(u) A certification that the applicant will comply with
requirements of the Fair Housing Act (42 U.S.C. 3601 et seq.) and will
affirmatively further fair housing; and
(v) Any additional requirements that the Secretary determines are
appropriate.
Sec. 688.240 How are eligible entities notified of approval for grant
funds?
The Secretary will, to the extent practicable, notify each eligible
entity applying for funds no later than 5 months from the date the
application is received, whether the application is approved or
disapproved. In the event additional funds become available, the
Employment and Training Administration (ETA) reserves the right to use
such funds to select additional grantees from applications submitted in
response to a FOA.
Subpart C--Program Requirements
Sec. 688.300 Who is an eligible participant?
(a) Eligibility criteria. Except as provided in paragraph (b) of
this section, an individual is eligible to participate in a YouthBuild
program if the individual is:
(1) Not less than age 16 and not more than age 24 on the date of
enrollment;
(2) A school dropout or an individual who has dropped out of school
and has subsequently reenrolled; and
(3) Is one or more of the following:
(i) A member of a low-income family;
(ii) A youth in foster care;
(iii) An offender;
(iv) A youth who is an individual with a disability;
(v) The child of a current or formerly incarcerated parent; or
(vi) A migrant youth.
(b) Exceptions. Not more than 25 percent of the participants in a
program, under this section, may be individuals who do not meet the
requirements of paragraph (a)(2) or (3) of this section, if such
individuals:
(1) Are basic skills deficient, as defined in Sec. 688.120,
despite attainment of a secondary school diploma or its recognized
State equivalent (including recognized certificates of attendance or
similar documents for individuals with disabilities); or
(2) Have been referred by a local secondary school for
participation in a YouthBuild program leading to the attainment of a
secondary school diploma if such referral is to a YouthBuild program
offering a secondary school diploma.
Sec. 688.310 Are there special rules that apply to veterans?
Special rules for determining income for veterans are found in
Sec. 683.230 of this chapter and for the priority of service
provisions for qualified persons are found in 20 CFR part 1010. Those
special rules apply to covered persons who are eligible to participate
in the YouthBuild program.
[[Page 56466]]
Sec. 688.320 What eligible activities may be funded under the
YouthBuild program?
Grantees may provide one or more of the following education and
workforce investment and other activities to YouthBuild participants:
(a) Eligible education and workforce activities including:
(1) Work experience and skills training (coordinated, to the
maximum extent feasible, with registered apprenticeship programs),
including:
(i) Supervision and training for participants in the rehabilitation
or construction of housing, including residential housing for homeless
individuals or low-income families, or transitional housing for
homeless individuals and in additional in-demand industry sectors or
occupations in the region in which the program operates (as approved by
the Secretary);
(ii) Supervision and training for participants in the
rehabilitation or construction of community and other public
facilities, except that not more than 15 percent of grant funds-
appropriated to carry out this section may be used for this activity;
and
(iii) Supervision and training for participants in in-demand
industry sectors or occupations in the region in which the program
operates, if such activity is approved by the Secretary;
(2) Occupational skills training;
(3) Other paid and unpaid work experiences, including internships
and job shadowing;
(4) Services and activities designed to meet the educational needs
of participants, including:
(i) Basic skills instruction and remedial education;
(ii) Language instruction educational programs for participants who
are English language learners;
(iii) Secondary education services and activities, including
tutoring, study skills training, and school dropout prevention and
recovery activities, designed to lead to the attainment of a secondary
school diploma or its recognized equivalent (including recognized
certificates of attendance or similar documents for individuals with
disabilities);
(iv) Counseling and assistance in obtaining postsecondary education
and required financial aid; and
(v) Alternative secondary school services;
(5) Counseling services and related activities, such as
comprehensive guidance and counseling on drug and alcohol abuse,
referrals to mental health services, and referrals to victim services;
(6) Activities designed to develop employment and leadership
skills, which may include community service and peer-centered
activities encouraging responsibility, interpersonal skills, and other
positive social behaviors, and activities related to youth policy
committees that participate in decision-making related to the program;
(7)(i) Supportive services and needs-based payments necessary to
enable individuals to participate in the program and to assist
individuals, for a period of time not to exceed 12 months after the
completion of training, in obtaining or retaining employment or
applying for and transitioning to postsecondary education or training;
(ii) To provide needs-based payments, a grantee must have a written
policy which:
(A) Establishes participant eligibility for such payments;
(B) Establishes the amounts to be provided;
(C) Describes the required documentation and criteria for payments;
and
(D) Applies consistently to all program participants; and
(8) Job search and assistance;
(b) Payment of the administrative costs of the applicant, including
recruitment and selection of participants, except that not more than 10
percent of the amount awarded under Sec. 688.210 may be used for such
costs;
(c) Adult mentoring;
(d) Provision of wages, stipends, or benefits to participants in
the program;
(e) Ongoing training and technical assistance that is related to
developing and carrying out the program; and
(f) Follow-up services.
Sec. 688.330 What level of training qualifies a construction project
as a qualifying work site under the YouthBuild program?
At a minimum, in order to qualify as a work site for the purposes
of the YouthBuild program, a work site must:
(a) Provide participants with the opportunity to have hands-on
training and experience in two or more modules, each within a different
skill area, in a construction skills training program that offers an
industry-recognized credential;
(b) Be built or renovated for low-income individuals or families;
(c) Have a restrictive covenant in place that only allows for
rental or resale to low-income participants as required by Sec.
688.730; and
(d) Adhere to the allowable construction and other capital asset
costs applicable to the YouthBuild program.
Sec. 688.340 What timeframes apply to participation?
An eligible individual selected for participation in the program
must be offered full-time participation in the program for not less
than 6 months and not more than 24 months.
Sec. 688.350 What timeframes must be devoted to education and
workforce investment or other activities?
YouthBuild grantees must structure programs so that participants in
the program are offered:
(a) Education and related services and activities designed to meet
educational needs, such as those specified in Sec. 688.320(a)(4)
through (7), during at least 50 percent of the time during which they
participate in the program; and
(b) Workforce and skills development activities, such as those
specified in Sec. 688.320(a)(1) through (3), during at least 40
percent of the time during which they participate in the program.
(c) The remaining 10 percent of the time of participation may be
used for the activities described in paragraphs (a) and (b) of this
section and/or for leadership development and community service
activities.
Sec. 688.360 What timeframes apply to follow-up services?
Grantees must provide follow-up services to all YouthBuild
participants for a period of 12 months after a participant successfully
exits a YouthBuild program.
Sec. 688.370 What are the requirements for exit from the YouthBuild
program?
At a minimum, to be a successful exit, the Department of Labor
requires that:
(a) Participants receive hands-on construction training or hands-on
training in another industry or occupation, in the case of Construction
Plus grantees; and
(b) Participants meet the exit policies established by the grantee.
(1) Such policies must describe the program outcomes and/or
individual goals that must be met by each participant in order to
successfully complete the program; and
(2) Grantees must apply the policies consistently to determine when
a successful exit has occurred.
Sec. 688.380 What is the role of the YouthBuild grantee in the one-
stop delivery system?
In those local areas where the grantee operates its YouthBuild
program, the grantee is a required partner of the local one-stop
delivery system and is subject to the provisions relating to such
partners described in part 678 of this chapter.
[[Page 56467]]
Subpart D--Performance Indicators
Sec. 688.400 What are the performance indicators for YouthBuild
grants?
The performance indicators for YouthBuild grants include:
(a) The percentage of program participants who are in education and
training activities, or in unsubsidized employment, during the second
quarter after exit from the program;
(b) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the fourth
quarter after exit from the program;
(c) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(d) The percentage of program participants who obtain a recognized
postsecondary credential or secondary school diploma or its recognized
equivalent (and for those achieving the secondary diploma or its
recognized equivalent, such participants also have obtained or retained
employment or are in an education or training program leading to a
recognized postsecondary credential within 1 year after exit from the
program);
(e) The percentage of program participants who, during a program
year, are in an education and training program that leads to a
recognized postsecondary credential or employment and who are achieving
measurable skill gains toward such a credential or employment;
(f) The indicator of effectiveness in serving employers described
at Sec. 677.155(c)(6) of this chapter; and
(g) Other indicators of performance as may be required by the
Secretary.
Sec. 688.410 What are the required levels of performance for the
performance indicators?
(a) The Secretary must annually establish expected levels of
performance for YouthBuild programs relating to each of the primary
indicators of performance. The expected levels of performance for each
of the performance indicators are national standards that are provided
in separately issued guidance. Short-term or other performance
indicators will be provided in separately issued guidance or as part of
the FOA or grant agreement. Performance level expectations will be
based on available YouthBuild data and data from similar WIOA youth
programs and may change from one grant competition to another. The
expected national levels of performance will take into account the
extent to which the levels promote continuous improvement in
performance.
(b) The levels of performance established will at a minimum:
(1) Be expressed in an objective, quantifiable, and measurable
form; and
(2) Indicate continuous improvement in performance.
Sec. 688.420 What are the reporting requirements for YouthBuild
grantees?
Each grantee must provide such reports as are required by the
Secretary in separately issued guidance, including:
(a) The quarterly performance report;
(b) The quarterly narrative progress report;
(c) The financial report; and
(d) Such other reports as may be required by the grant agreement.
Sec. 688.430 What are the due dates for quarterly reporting?
(a) Quarterly reports are due no later than 45 days after the end
of the reporting quarter, unless otherwise specified in the reporting
guidance issued under Sec. 688.420; and
(b) A final financial report is required 90 days after the
expiration of a funding period or the termination of grant support.
Subpart E--Administrative Rules, Costs, and Limitations
Sec. 688.500 What administrative regulations apply to the YouthBuild
program?
Each YouthBuild grantee must comply with the following:
(a) The regulations found in this part;
(b) The general administrative requirements found in part 683 of
this chapter, except those that apply only to the WIOA title I,
subtitle B program and those that have been modified by this section;
(c) The Department's regulations on government-wide requirements,
which include:
(1) The regulations codifying the Office of Management and Budget's
(OMB) government-wide grants requirements at 2 CFR parts 200 and 2900,
as applicable;
(2) The Department's regulations at 29 CFR part 38, which implement
the nondiscrimination provisions of WIOA sec. 188;
(3) The Department's regulations at 29 CFR parts 93, 94, and 98
relating to restrictions on lobbying, drug free workplace, and
debarment and suspension; and
(4) The audit requirements of the Office of Management and Budget
at 2 CFR parts 200 and 2900, as applicable; and
(d) Relevant State and local educational standards.
Sec. 688.510 How may grantees provide services under the YouthBuild
program?
Each recipient of a grant under the YouthBuild program may provide
the services and activities described in these regulations either
directly or through subgrants, contracts, or other arrangements with
local educational agencies, postsecondary educational institutions,
State or local housing development agencies, other public agencies,
including agencies of Indian tribes, or private organizations.
Sec. 688.520 What cost limits apply to the use of YouthBuild program
funds?
(a) Administrative costs for programs operated under YouthBuild are
limited to 10 percent of the grant award. The definition of
administrative costs can be found in Sec. 683.215 of this chapter.
(b) The cost of supervision and training for participants involved
in the rehabilitation or construction of community and other public
facilities is limited to no more than 15 percent of the grant award.
Sec. 688.530 What are the cost-sharing or matching requirements of
the YouthBuild program?
(a) In addition to the rules described in paragraphs (b) through
(f) of this section, the cost-sharing or matching requirements
applicable to a YouthBuild grant will be addressed in the grant
agreement.
(b) The value of construction materials used in the YouthBuild
program is an allowable cost for the purposes of the required non-
Federal share or match.
(c) The value of land acquired for the YouthBuild program is not an
allowable cost-sharing or match.
(d) Federal funds may not be used as cost-sharing or match
resources except as provided by Federal law.
(e) The value of buildings acquired for the YouthBuild program is
an allowable match, provided that the following conditions apply:
(1) The purchase cost of buildings used solely for training
purposes is allowable; and
(2) For buildings used for training and other purposes, the
allowable amount is determined based on the proportionate share of the
purchase price related to direct training activities.
(f) Grantees must follow the requirements of Uniform Guidance at 2
CFR parts 200 and 2900 in the accounting, valuation, and reporting of
the required non-Federal share.
Sec. 688.540 What are considered to be leveraged funds?
(a) Leveraged funds may be used to support allowable YouthBuild
program
[[Page 56468]]
activities and consist of payments made for allowable costs funded by
both non-YouthBuild Federal, and non-Federal, resources which include:
(1) Costs which meet the criteria for cost-sharing or match in
Sec. 688.530 and are in excess of the amount of cost-sharing or match
resources required;
(2) Costs which would meet the criteria in Sec. 688.530 except
that they are paid for with other Federal resources; and
(3) Costs which benefit the grant program and are otherwise
allowable under the cost principles but are not allowable under the
grant because of some statutory, regulatory, or grant provision,
whether paid for with Federal or non-Federal resources.
(b) The use of leveraged funds must be reported in accordance with
Departmental instructions.
Sec. 688.550 How are the costs associated with real property treated
in the YouthBuild program?
(a) As provided in paragraphs (b) and (c) of this section, the
costs of the following activities associated with real property are
allowable solely for the purpose of training YouthBuild participants:
(1) Rehabilitation of existing structures for use by homeless
individuals and families or low-income families or for use as
transitional housing;
(2) Construction of buildings for use by homeless individuals and
families or low-income families or for use as transitional housing; and
(3) Construction or rehabilitation of community or other public
facilities, except, as provided in Sec. 688.520(b), only 15 percent of
the grant award is allowable for such construction and rehabilitation.
(b) The costs for acquisition of buildings that are used for
activities described in paragraph (a) of this section are allowable
with prior grant officer approval and only under the following
conditions:
(1) The purchase cost of buildings used solely for training
purposes is allowable; and
(2) For buildings used for training and other purposes, the
allowable amount is determined based on the proportionate share of the
purchase cost related to direct training.
(c) The following costs are allowable to the extent allocable to
training YouthBuild participants in the construction and rehabilitation
activities specified in paragraph (a) of this section:
(1) Trainees' tools and clothing including personal protective
equipment (PPE);
(2) On-site trainee supervisors;
(3) Construction management;
(4) Relocation of buildings; and
(5) Clearance and demolition.
(d) Architectural fees, or a proportionate share thereof, are
allowable when such fees can be related to items such as architectural
plans or blueprints on which participants will be trained.
(e) The following costs are unallowable:
(1) The costs of acquisition of land; and
(2) Brokerage fees.
Sec. 688.560 What participant costs are allowable under the
YouthBuild program?
Allowable participant costs include:
(a) The costs of payments to participants engaged in eligible work-
related YouthBuild activities;
(b) The costs of payments provided to participants engaged in non-
work-related YouthBuild activities;
(c) The costs of needs-based payments;
(d) The costs of supportive services; and
(e) The costs of providing additional benefits to participants or
individuals who have exited the program and are receiving follow-up
services, which may include:
(1) Tuition assistance for obtaining college education credits;
(2) Scholarships to a registered apprenticeship or technical
education program; and
(3) Employer- or Government-sponsored health programs.
Sec. 688.570 Does the Department allow incentive payments in the
YouthBuild program?
(a) Grantees are permitted to provide incentive payments to youth
participants for recognition and achievement directly tied to training
activities and work experiences. Grantees must tie the incentive
payments to the goals of the specific grant program and outline such
goals in writing prior to starting the program that makes incentive
payments.
(b) Prior to providing incentive payments, the organization must
have written policies and procedures in place governing the awarding of
incentives, and the incentives provided under the grant must align with
these organizational policies.
(c) All incentive payments must comply with the requirements in
Uniform Guidance at 2 CFR part 200.
Sec. 688.580 What effect do payments to YouthBuild participants have
on eligibility for other Federal needs-based benefits?
Under Sec. 683.275(d) of this chapter, the Department does not
consider allowances, earnings, and payments to individuals
participating in programs under title I of WIOA as income for purposes
of determining eligibility for and the amount of income transfer and
in-kind aid furnished under any Federal or Federally-assisted program
based on need other than as provided under the Social Security Act (42
U.S.C. 301).
Sec. 688.590 What program income requirements apply under the
YouthBuild program?
(a) Except as provided in paragraph (b) of this section, program
income requirements, as specified in the applicable Uniform
Administrative Requirements at 2 CFR parts 200 and 2900, apply to
YouthBuild grants.
(b) Revenue from the sale of buildings rehabilitated or constructed
under the YouthBuild program to homeless individuals and families and
low-income families is not considered program income. Grantees are
encouraged to use that revenue for the long-term sustainability of the
YouthBuild program.
Sec. 688.600 Are YouthBuild programs subject to the Davis-Bacon Act
labor standards?
(a) YouthBuild programs and grantees are subject to Davis-Bacon
labor standards requirements under the circumstances set forth in
paragraph (b) of this section. In those instances where a grantee is
subject to Davis-Bacon requirements, the grantee must follow applicable
requirements in the Department's regulations at 29 CFR parts 1, 3, and
5, including the requirements contained in the Davis-Bacon contract
provisions set forth in 29 CFR 5.5.
(b) YouthBuild participants are subject to Davis-Bacon Act labor
standards when they perform Davis-Bacon-covered laborer or mechanic
work, defined at 29 CFR 5.2(m), on Federal or Federally-assisted
projects that are subject to the Davis-Bacon Act labor standards. The
Davis-Bacon prevailing wage requirements apply to hours worked on the
site of the work.
(c) YouthBuild participants who are not registered and
participating in a training program approved by the ETA must be paid
not less than the applicable wage rate on the wage determination for
the classification of work actually performed.
Sec. 688.610 What are the recordkeeping requirements for YouthBuild
programs?
(a) Grantees must follow the recordkeeping requirements specified
in the Uniform Administrative Requirements, at 29 CFR 95.53 and 97.42,
as appropriate.
[[Page 56469]]
(b) Grantees must maintain such additional records related to the
use of buildings constructed or rehabilitated with YouthBuild funds as
specified in the grant agreement or in the Department's guidance.
Subpart F--Additional Requirements
Sec. 688.700 What are the safety requirements for the YouthBuild
program?
(a) YouthBuild Grantees must comply with Sec. 683.280 of this
chapter, which applies Federal and State health and safety standards to
the working conditions under WIOA-funded projects and programs. These
health and safety standards include ``hazardous orders'' governing
child labor at 29 CFR part 570.
(b) YouthBuild grantees are required to:
(1) Provide comprehensive safety training for youth working on
YouthBuild construction projects;
(2) Have written, jobsite-specific safety plans overseen by an on-
site supervisor with authority to enforce safety procedures;
(3) Provide necessary personal protective equipment to youth
working on YouthBuild projects; and
(4) Submit required injury incident reports.
Sec. 688.710 What are the reporting requirements for youth safety?
YouthBuild grantees must ensure that YouthBuild program sites
comply with the Occupational Safety and Health Administration's (OSHA)
reporting requirements in 29 CFR part 1904. A YouthBuild grantee is
responsible for sending a copy of OSHA's injury incident report form to
the ETA within 7 days of any reportable injury suffered by a YouthBuild
participant. The injury incident report form is available from OSHA and
can be downloaded at http://www.osha.gov/recordkeeping/RKforms.html.
Reportable injuries include those that result in death, days away from
work, restricted work or transfer to another job, medical treatment
beyond first aid, or loss of consciousness.
Sec. 688.720 What environmental protection laws apply to the
YouthBuild program?
YouthBuild program grantees are required, where applicable, to
comply with all environmental protection statutes and regulations.
Sec. 688.730 What requirements apply to YouthBuild housing?
(a) YouthBuild grantees must ensure that all residential housing
units which are constructed or rehabilitated using YouthBuild funds
must be available solely for:
(1) Sale to homeless individuals and families or low-income
families;
(2) Rental by homeless individuals and families or low-income
families;
(3) Use as transitional or permanent housing for the purpose of
assisting in the movement of homeless individuals and families to
independent living. In the case of transitional housing, the unit(s)
must be occupied no more than 24 months by the same individual(s); or
(4) Rehabilitation of homes for low-income homeowners.
(b) For rentals of residential units located on the property which
are constructed or rehabilitated using YouthBuild funds:
(1) The property must maintain at least a 90 percent level of
occupancy for low-income families. The income test will be conducted
only at the time of entry for each available unit or rehabilitation of
occupant-owned home. If the grantee cannot find a qualifying tenant to
lease the unit, the unit may be leased to a family whose income is
above the income threshold to qualify as a low-income family but below
the median income for the area. Leases for tenants with higher incomes
will be limited to not more than 2 years. The leases provided to
tenants with higher incomes are not subject to the termination clause
that is described in paragraph (b)(2) of this section.
(2) The property owner must not terminate the tenancy or refuse to
renew the lease of a tenant occupying a residential rental housing unit
constructed or rehabilitated using YouthBuild funds except for serious
or repeated violations of the terms and conditions of the lease, for
violation of applicable Federal, State, or local laws, or for good
cause. Any termination or refusal to renew the lease must be preceded
by not less than a 30-day written notice to the tenant specifying the
grounds for the action. The property owner may waive the written notice
requirement for termination in dangerous or egregious situations
involving the tenant.
(c) All transitional or permanent housing for homeless individuals
or families or low-income families must be safe and sanitary. The
housing must meet all applicable State and local housing codes and
licensing requirements in the jurisdiction in which the housing is
located.
(d) For sales or rentals of residential housing units constructed
or rehabilitated using YouthBuild funds, YouthBuild grantees must
ensure that owners of the property record a restrictive covenant at the
time that an occupancy permit is issued against such property which
includes the use restrictions set forth in paragraphs (a), (b), and (c)
of this section and incorporates the following definitions at Sec.
688.120: Homeless individual, Low-income family, and Transitional
housing. The term of the restrictive covenant must be at least 5 years
from the time of the issuance of the occupancy permit, unless a time
period of more than 5 years has been established by the grantee. The
Department advises that any additional stipulations imposed by a
grantee or property owner be clearly stated in the covenant.
(e) Any conveyance document prepared in the 5-year period of the
restrictive covenant must inform the buyer of the property that all
residential housing units constructed or rehabilitated using YouthBuild
funds are subject to the restrictions set forth in paragraphs (a)
through (d) of this section.
Signed at Washington, DC, this 29th day of June 2016.
Thomas E. Perez,
Secretary of Labor.
[FR Doc. 2016-15975 Filed 8-8-16; 11:15 am]
BILLING CODE 4510-FR-P; 4510-FT-P