[Federal Register Volume 81, Number 161 (Friday, August 19, 2016)]
[Rules and Regulations]
[Pages 55792-56070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15977]
[[Page 55791]]
Vol. 81
Friday,
No. 161
August 19, 2016
Part V
Book 2 of 2 Books
Pages 55791-56470
Department of Labor
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Employment and Training Administration
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20 CFR Parts 676, 677, and 678
Department of Education
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34 CFR Parts 361 and 463
Workforce Innovation and Opportunity Act; Joint Rule for Unified and
Combined State Plans, Performance Accountability, and the One-Stop
System Joint Provisions; Final Rule
Federal Register / Vol. 81 , No. 161 / Friday, August 19, 2016 /
Rules and Regulations
[[Page 55792]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 676, 677, and 678
[Docket No. ETA-2015-0002]
RIN 1205-AB74
DEPARTMENT OF EDUCATION
34 CFR Parts 361 and 463
RIN 1830-AA21
Workforce Innovation and Opportunity Act; Joint Rule for Unified
and Combined State Plans, Performance Accountability, and the One-Stop
System Joint Provisions; Final Rule
AGENCY: Office of Career, Technical, and Adult Education (OCTAE),
Rehabilitation Services Administration (RSA), Education; Employment and
Training Administration (ETA), Labor.
ACTION: Final rule.
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SUMMARY: The Departments of Education (ED) and Labor (DOL) (or,
collectively, Departments) issue this Joint Final Rule to implement
jointly administered activities authorized by title I of the Workforce
Innovation and Opportunity Act (WIOA) signed into law on July 22, 2014
(hereafter ``Joint WIOA Final Rule''). Through these regulations, the
Departments implement workforce education and employment system reforms
and strengthen the nation's public workforce development system to
provide increased economic opportunity and make the United States more
competitive in the 21st century evolving labor market. This Joint WIOA
Final Rule provides guidance for State and local workforce development
systems that increase the skill and credential attainment, employment,
retention, and earnings of participants, especially those with
significant barriers to employment, thereby improving the quality of
the workforce, reducing dependency on public benefits, increasing
economic opportunity, and enhancing the productivity and
competitiveness of the nation.
DATES: This final rule is effective October 18, 2016.
FOR FURTHER INFORMATION CONTACT:
DOL: Adele Gagliardi, Administrator, Office of Policy Development
and Research, 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) or 1-800-326-2577 (TDD--Telecommunications device for the
deaf).
ED: Lekesha Campbell, U.S. Department of Education, OCTAE, 400
Maryland Avenue SW., Room 11-145, PCP, Washington, DC 20202-7240,
Telephone: (202) 245-7808; Edward Anthony, U.S. Department of
Education, RSA, 400 Maryland Avenue SW., Room 5085 PCP, Washington, DC
20202-2800, Telephone: (202) 245-7256.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION: This Joint WIOA Final Rule reflects changes
made as a result of public comments received to the joint Notice of
Proposed Rulemaking that was published on April 16, 2015, at 80 FR
20574.
WIOA strengthens the alignment of the public workforce development
system's six core programs by compelling unified strategic planning
requirements, common performance accountability measures, and
requirements governing the one-stop delivery system. In so doing, WIOA
placed heightened emphasis on coordination and collaboration at the
Federal, State, local, and tribal levels to ensure a streamlined and
coordinated service delivery system for job seekers, including those
with disabilities, and employers. These regulations lay the foundation,
through coordination and collaboration at the Federal level, for
implementing the Departments' vision and goals of WIOA.
In addition to this Joint WIOA Final Rule, the Departments are
issuing separate final rules to implement program-specific requirements
of WIOA that fall under each Department's purview. The DOL is issuing a
Final Rule governing program-specific requirements under titles I and
III of WIOA (hereinafter ``DOL WIOA Final Rule''). The 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 Department-specific final
rules are published elsewhere in this issue of the Federal Register.
Developing and issuing all five WIOA final rules collaboratively
reinforces WIOA's heightened emphasis on coordination and collaboration
to ensure an integrated and seamless service delivery system for job
seekers and employers.
Preamble Table of Contents
I. Executive Summary
II. Acronyms and Abbreviations
III. Public Comments Received on the Notice of Proposed Rulemaking
IV. Section-by-Section Discussion of Public Comments and Final
Regulations
A. Unified and Combined State Plans Under Title I of the
Workforce Innovation and Opportunity Act (20 CFR Part 676; 34 CFR
Part 361, Subpart D; 34 CFR Part 463, Subpart H)
B. Performance Accountability Under Title I of the Workforce
Innovation and Opportunity Act (20 CFR Part 677; 34 CFR Part 361,
Subpart E; 34 CFR Part 463, Subpart I)
C. Description of the One-Stop System Under Title I of the
Workforce Innovation and Opportunity Act (20 CFR Part 678; 34 CFR
Part 361, Subpart F; 34 CFR Part 463, Subpart J)
V. 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
Purpose of This Regulatory Action: President Barack Obama signed
WIOA into law on July 22, 2014. WIOA is the first legislative reform of
the public workforce system in more than 15 years, which passed
Congress by a wide bipartisan majority. WIOA supersedes the Workforce
Investment Act of 1998 (WIA) and amends the Wagner-Peyser Act and the
Rehabilitation Act of 1973. WIOA strengthens and improves our nation's
public workforce system and increases economic opportunities for
individuals in the United States, especially youth and individuals with
significant barriers to employment, to secure and advance in
employment. 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.
[[Page 55793]]
WIOA supports innovative strategies to improve coordination among
the six core programs and other Federal programs that support
employment services, workforce development, adult education and
literacy, and vocational rehabilitation (VR) activities.
In WIOA, Congress directed the Departments to issue regulations
implementing statutory requirements to ensure that the public workforce
system operates as a comprehensive, integrated, and streamlined system
to provide pathways to prosperity and continuously improve the quality
and performance of its services to job seekers and to employers.
Therefore, the Departments are issuing this Joint WIOA Final Rule to
implement jointly administered activities authorized under WIOA,
specifically those related to the Unified and Combined State Plans,
performance accountability, and the one-stop delivery system. In an
effort to promote collaboration and coordination at the State and local
levels among the core programs and other Federal partner programs, the
Departments have collaborated extensively with the Department of Health
and Human Services (HHS) and other Federal agencies in developing this
Final Rule.
The Departments are publishing this Joint WIOA Final Rule to
implement those provisions of WIOA that affect all of the six core
programs, specifically the: Adult, dislocated worker, and youth
programs authorized under title I and administered by DOL; AEFLA
program authorized under title II and administered by ED; Employment
Service program authorized under the Wagner-Peyser Act, as amended by
title III, and administered by DOL (Wagner-Peyser Act Employment
Service program); and VR program, authorized under title I of the
Rehabilitation Act of 1973, as amended by title IV, and administered by
ED. The requirements in these joint final regulations will be jointly
administered by both Departments. The regulations contained in this
Final Rule also impact other Federal programs that participate in the
one-stop system and/or are identified as partner programs in a State's
Combined State Plan if a State elects to submit such Plan rather than a
Unified State Plan.
A critical part of the implementation of WIOA is the collection and
reporting of accurate, timely information about individuals who receive
services through the programs authorized under the law. Such
information is critical to inform public policy and support analysis of
effective strategies. In keeping with the Paperwork Reduction Act
(PRA), the methods for collecting such information are provided to the
public for comment through information collection requests (ICRs). The
Joint WIOA Final Rule had two accompanying requests to support the
performance and planning aspects of these rules. Soon after publication
of the Notice of Proposed Rulemaking (NPRM) (80 FR 20574, April 16,
2015), the Departments 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, Wagner-Peyser Act Employment Service, National Farmworker Jobs
Programs (NFJP), Trade Adjustment Assistance, YouthBuild, Indian and
Native American (INA) grantees, 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''). The Departments 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).
On August 6, 2015, the Departments, together with the Departments
of Health and Human Services, Agriculture, and Housing and Urban
Development (HUD), proposed a new information collection regarding
required elements for submission of the Unified or Combined State Plan
and Plan modifications under WIOA (hereinafter ``State Plan ICR'') (80
FR 47003) (see https://www.regulations.gov/#!docketDetail;D=ETA-2015-
0006). The State Plan ICR received a total of 16 public comments. These
public comment submissions informed the development of the final State
Plan ICR, which the Office of Management and Budget (OMB) approved on
February 19, 2016. Most provisions in titles I through III of WIOA took
effect on July 1, 2015, the first full program year after enactment;
however, the new State Plans and performance accountability system
requirements in the statute will take effect on July 1, 2016. Title IV
took effect upon enactment unless otherwise indicated.
Section V. Rulemaking Analysis and Notices, D. Paperwork Reduction
Act provides summary information about the public comments on the Joint
Performance ICR and the State Plan ICR.
In addition to this Joint WIOA Final Rule, the Departments are
publishing, in separate regulatory actions published in the Federal
Register, four agency-specific final rules that implement the
provisions of WIOA that are administered separately by the
Departments--one published by DOL implementing the agency-specific
provisions of title I, and three published by ED implementing the
agency-specific provisions of titles II and IV. Readers should note
that there are a number of cross-references in this Joint WIOA Final
Rule to the agency-specific final rules. Finally, the Departments
structured this Joint WIOA Final Rule so that the Code of Federal
Regulations (CFR) parts will align with the CFR parts in the agency-
specific final rules.
To implement those provisions of WIOA that affect the WIOA programs
and which will be jointly administered by both Departments, these
regulations implement a number of improvements that WIOA makes to the
public workforce system. These include improvements to:
Ensure that workforce education and employment services
are coordinated and complementary by requiring a single, 4-year
strategic State Plan for achieving the workforce goals of the State.
Additionally, States may conduct, along with the core programs,
collaborative planning with other Federal education and training
programs specified in WIOA;
Ensure that Federal investments in education, employment,
and training are evidence-based, data-driven, and accountable to
participants and taxpayers by establishing a common performance
accountability system for the core programs, requiring other authorized
programs to report on the common performance indicators, and providing
easy-to-understand information to consumers and the public about
training providers and
[[Page 55794]]
program performance to help inform their decision-making; and
Enhance services provided to all job seekers and employers
through the one-stop delivery system, also known as the American Job
Center system, by: Requiring the colocation of the Wagner-Peyser Act
Employment Service program; adding the Temporary Assistance for Needy
Families (TANF) program as a required partner; providing for State-
established certification to ensure high-quality American Job Centers;
requiring partners to dedicate funding for allowable infrastructure and
other shared costs that are commensurate to the partner's proportionate
use and relative benefit received by the program; and promoting the
development of integrated intake, case management, and reporting
systems.
Changes From the Notice of Proposed Rulemaking
The Departments published a Joint WIOA NPRM on April 16, 2015 at 80
FR 20574. The Final Rule supports the tenets expressed in the NPRM. In
response to comments received and to strengthen the intent of the law,
the Departments have made numerous revisions, including but not limited
to changes to the following areas:
State Plans: The Joint WIOA Final Rule text, among other
things: (1) Clarifies the expected involvement of stakeholders, core
programs, and the State Workforce Development Boards (WDBs) in the
State Plan development; (2) ensures consistency by requiring a
description of joint planning and coordination across core programs,
required one-stop partners, and other programs and activities included
in the Unified and Combined State Plans; (3) requires States to provide
an opportunity for public comment on and input into the development of
Unified and Combined State Plans prior to their submission, and (4)
clarifies requirements for Unified and Combined State Plan
modifications. The preamble responds to suggestions regarding certain
Unified and Combined State Plan requirements, as well as provides
further guidance and clarifications with regard to certain regulatory
requirements governing the Unified and Combined State Plans.
Performance Accountability: The Joint WIOA Final Rule
clarifies certain definitions, primary indicators of performance, and
sanctions. Changes in the Final Rule text include, among others: (1)
Revising the definitions of ``participant,'' ``exit,'' and ``State;''
(2) clarifying the credential attainment rate indicator; (3) adding the
types of gain that are included in the measurable skill gains
indicator; (4) clarifying the difference between the ``adjusted level
of performance'' that is agreed upon at the time the Unified or
Combined State Plan is approved and the ``adjusted level of
performance'' that is determined at the end of the program year; and
(5) adding a phased-in approach for sanctions due to failure to achieve
adjusted levels of performance and a transition period for complete
WIOA data to be available. The preamble explains intent to phase in
implementation of the ``effectiveness in serving employers'' indicator
and to implement a uniform, national customer satisfaction survey that
is not tied to accountability provisions or the determination of
sanctions. The preamble also provides further guidance and
clarification regarding changes made to the Final Rule text, including
the inclusion of outlying areas (American Samoa, Guam, Commonwealth of
the Northern Mariana Islands, the U.S. Virgin Islands, and, as
applicable, the Republic of Palau) for purposes of the performance
accountability system.
One-Stop Governance and Operations: The Joint WIOA Final
Rule includes changes to the operational aspects of one-stop operations
including, among others: (1) Revising coverage of multiple program
services and staff coverage in one-stop affiliate sites; (2) revising
infrastructure funding regulations, and emphasizing partners'
responsibilities towards infrastructure costs; (3) providing detailed
information about career services; (4) clarifying the involvement of
the TANF programs as one-stop partners; (5) simplifying provisions
governing Memoranda of Understanding (MOU) negotiations; (6)
emphasizing the need to conduct an open competition for one-stop
operator selection; (7); changing the requirements related to hours of
operation outside normal business hours; (8) emphasizing both physical
and programmatic accessibility; (9) clarifying when the State funding
mechanism is triggered for the funding of the one-stop system,
including the funding limits applicable to the State funding mechanism;
and (10) establishing a deadline to conform to the new common one-stop
identifier.
As noted throughout this Final Rule, the Departments 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 Departments will also be
issuing guidance to provide information on current priorities and
initiatives, suggested best practices, and in response to stakeholder
questions.
The Departments also 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.
II. Acronyms and Abbreviations
AEFLA Adult Education and Family Literacy Act
ABAWD Able-Bodied Adults Without Dependents
ABS Adult Basic Skills
APA Administrative Procedure Act
BFET Basic Food Employment and Training
BLS Bureau of Labor Statistics
CBO Community-based organization
CEO Chief elected official
CFR Code of Federal Regulations
CHIP Children's Health Insurance Program
CMS Case Management System
CRIS Common Reporting Information System
CRO Community Rehabilitation Organization
CSBG Community Services Block Grant
CTE Career and Technical Education
DOL U.S. Department of Labor
DSA Designated State Agency
DSU Designated State Unit
ED U.S. Department of Education
EEOC Equal Employment Opportunity Commission
EFL Educational Functioning Level
E.O. Executive Order
ESEA Elementary and Secondary Education Act of 1965
ESL English-as-a-second-language
ETA Employment and Training Administration
ETP Eligible training provider
FEDES Federal Employment Data Exchange System
FEIN Federal employer identification number
FERPA Family Educational Rights and Privacy Act
FY Fiscal Year
GED General Education Diploma
GPA Grade Point Average
GS General Schedule
HHS Department of Health and Human Services
HSE High School Equivalency
HUD Department of Housing and Urban Development
ICR Information Collection Request
INA Indian and Native American
INAP Indian and Native American Programs
IPE Individualized Plan for Employment
IT Information technology
ITA Individual Training Account
JVSG Jobs for Veterans State Grants
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LMI Labor market information
LSAL The Longitudinal Study of Adult Learning
MOU Memorandum of Understanding
NAICS North American Industry Classification System
NASWA National Association of State Workforce Agencies
NFJP National Farmworker Jobs Program
NIST National Institute of Standards and Technology
NPRM Notice of Proposed Rulemaking
MIS Management Information System
OCTAE Office of Career, Technical, and Adult Education
OJT On-the-job training
OMB Office of Management and Budget
ORR Office of Refugee Resettlement
PII Personally identifiable information
PIRL Participant Individual Record Layout
POP Period of Participation
PRA Paperwork Reduction Act of 1995
PY Program Year
RFA Regulatory Flexibility Act
RFP Request for Proposals
RHY Runaway and Homeless Youth
RIA Regulatory Impact Analysis
RSA Rehabilitation Services Administration
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SCSEP Senior Community Service Employment Program
sec. Section of a Public Law or the United States Code
SLDS Statewide Longitudinal Data System
SNAP Supplemental Nutrition Assistance Program
SRC State Rehabilitation Council
SSA Social Security Administration
SSN Social Security Number
SWA State Workforce Agencies
TAA Trade Adjustment Assistance
TAG Technical Assistance Guide
TANF Temporary Assistance for Needy Families
TDD Telecommunications Device for the Deaf
TEGL Training and Employment Guidance Letter
UI Unemployment insurance
U.S.C. United States Code
VETS Veterans' Employment and Training Service
VEVRAA Vietnam Era Veterans' Readjustment Assistance Act
VR Vocational rehabilitation
WDB Workforce Development Board
WIA Workforce Investment Act of 1998
WIOA Workforce Innovation and Opportunity Act
WISPR Workforce Investment Streamlined Performance Reporting
WRIS Wage Record Interchange System
III. Public Comments Received on the Notice of Proposed Rulemaking
The Departments published five NPRMs related to WIOA on April 16,
2015. The first NPRM is the Joint Rule for Unified and Combined State
Plans, Performance Accountability, and the One-Stop System Joint
Provisions (80 FR 20574) (hereinafter ``the Joint WIOA NPRM''); the
second NPRM is the Workforce Innovation and Opportunity Act (80 FR
20690); the third NPRM is the Programs and Activities Authorized by the
Adult Education and Family Literacy Act (Title II of the Workforce
Innovation and Opportunity Act) (80 FR 20668); the fourth is the State
Vocational Rehabilitation Services program; State Supported Employment
Services program; Limitations on Use of Subminimum Wage (80 FR 21059);
and the fifth is the Workforce Innovation and Opportunity Act,
Miscellaneous Program Changes (80 FR 20688).
During the 60-day public comment period, the Departments received a
total of 546 public comments on the Joint WIOA NPRM. In addition to
these comments, the Departments also considered relevant public
comments on the DOL and ED program-specific NPRMs.
General Comments
Comments: The Departments received many comments supporting these
regulations. For example, the Departments received comments supporting
cross-program data and performance measurement, the increased focus on
adult education and services to immigrants, improved alignment between
Federal initiatives and State and local needs, increased matching of
apprenticeships with employers, as well as support for other provisions
discussed in the section-by-section analysis below. Additionally, the
Departments received comments commending the collaboration on joint
regulations and encouraging additional coordinated guidance. Also,
several commenters expressed support for the enactment of WIOA, noting
the law will decrease unemployment, make the United States more
competitive, lead to higher wages, and facilitate entry into the middle
class.
A few commenters generally opposed the rulemaking, in part because
they disagreed with the role WIOA assigns to the Federal government
concerning covered programs. Others suggested that the NPRM itself was
excessive, overly cumbersome, and not understandable to the layperson,
needed clarification, and was inconsistent with the plain and simple
language of WIOA.
Departments' Response: The Departments acknowledge these comments,
but do not address them further in the Final Rule since they do not
request specific changes to the regulatory text. However, the
Departments note that the section-by-section analysis is drafted to
provide additional clarity on complicated provisions, such as those
related to the definitions used in the performance accountability
regulations, requirements for the State funding mechanism for the one-
stop system, and requirements for Unified and Combined State Plan
modifications. Furthermore, revisions were made to various sections in
the regulatory text to improve readability. Additionally, the
Departments will continue to provide guidance and technical assistance,
as needed, to assist States in implementing WIOA.
Accessibility of the Public Workforce System to Individuals With
Disabilities
Comments: The Departments received many comments related to
increased access to workforce services for individuals with
disabilities, both in support of legislative changes and expressing
concern that the regulations need to hold the public workforce system
fully accountable to implement such changes. Several commenters noted
that, under WIOA, individuals with disabilities will have greater
access to workforce training programs and be able to take advantage of
the benefits resulting from their training. However, one commenter
asserted that the rule must do more to consider the unique needs of
individuals with disabilities, who may take longer than others to
achieve employment. Another commenter expressed concern that her
organization would not have enough resources to provide pre-employment
transition services to potentially eligible students with disabilities.
A commenter encouraged efforts to improve the ability of the one-stop
system to serve customers with disabilities through existing services
and programs, and another urged the Departments to include specific
requirements for training and access to text-to-speech and speech-to-
text technologies for people with dyslexia and print disabilities.
Departments' Response: WIOA includes numerous provisions intended
to increase employment opportunities for individuals with disabilities,
and these regulations reinforce those statutory provisions. There are
numerous discussions throughout part 678 reiterating the Departments'
intent to ensure access to needed employment and training services to
all individuals.
The Department has published a Final Rule to implement sec. 188 of
WIOA, which prohibits discrimination against WIOA participants, by
making technical changes only to its existing regulation implementing
WIA (i.e., (1) replicating at part 38 the rule from part 37, and (2)
replacing references to the ``Workforce Investment Act of 1998'' or
``WIA'' with ``Workforce Innovation and Opportunity Act'' or ``WIOA''
to reflect the proper
[[Page 55796]]
statutory authority). See 80 FR 43,871 (July 23, 2015).
In addition, on January 26, 2016, DOL proposed updating these
regulations to better align with the Americans with Disabilities Act
Amendments Act of 2008, Public Law 110-325, sec. 2(b)(1), 122 Stat.
3553 (2008) and the relevant implementing regulations and guidance
issued by the Department of Justice (28 CFR parts 35 and 36), as well
as the final regulations and guidance issued by the Equal Employment
Opportunity Commission (29 CFR part 1630, 76 FR 16978 (Mar. 25, 2011)
(Equal Employment Opportunity Commission regulations implementing
Americans with Disabilities Act title I)). See 81 FR 4493 (January 26,
2016). The proposed WIOA sec. 188 rule would ensure that the definition
of ``disability'' is consistent with the Americans with Disabilities
Act Amendments Act and current case law, which will enable more
individuals with disabilities to be effectively served within the
public workforce system. That NPRM also addresses accessibility
requirements (such as those for information and electronic
technologies) and service animals. The Departments encourage commenters
to review carefully the provisions of part 678 in this Joint WIOA Final
Rule, as well as the proposed WIOA sec. 188 rule.
With respect to the commenter's concerns about pre-employment
transition services, the Departments acknowledge that the provision of
these services is a new requirement imposed on the VR program under
sec. 113 of the Rehabilitation Act of 1973, as amended by title IV of
WIOA. States must reserve at least 15 percent of their VR allotment to
provide these services to students with disabilities. The ED provides
detailed discussions regarding this requirement in the VR program-
specific final regulations published elsewhere in this issue of the
Federal Register.
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.
Departments' Response: While the Departments recognize that the
issues addressed in the NPRM are complex and important, the Departments
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.
Conclusion
These final regulations provide the critical framework for the
implementation of WIOA. However, achieving the goals of WIOA will take
visionary leadership and coordination at the State, regional, and local
levels, and partnerships across many programs. It will require
investment and innovation to develop new information technology that
supports this important work, and make the most of this investment of
public funds. The Departments will support these activities through
program funding, on-going technical assistance and the provision of
guidance to all levels of the American Job Center system.
IV. Section-by-Section Discussion of Public Comments and the Final
Joint Regulations
A. Unified and Combined State Plans Under Title I of the Workforce
Innovation and Opportunity Act (20 CFR Part 676; 34 CFR Part 361,
Subpart D; 34 CFR Part 463, Subpart H)
WIOA requires the Governor of each State to submit a Unified or
Combined State Plan to the Secretary of Labor that outlines a 4-year
strategy for the State's workforce development system. States must have
approved State Plans in place to receive funding for the six core
programs under WIOA--the adult, dislocated worker, and youth programs
(WIOA title I); the AEFLA program (WIOA title II); the Employment
Service program authorized under the Wagner-Peyser Act, as amended by
WIOA title III (Wagner-Peyser Act Employment Service); and the VR
program authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV (VR program). States must submit, at a
minimum, a Unified State Plan, which encompasses the six core programs
under WIOA. However, States are encouraged to submit a Combined State
Plan, which must include the six core programs of the Unified State
Plan, plus one or more Combined State Plan partner programs, as
described at Sec. 676.140(d): (1) Career and Technical Education (CTE)
programs authorized under the Carl D. Perkins Career and Technical
Education Act of 2006 (20 U.S.C. 2301 et seq.); (2) TANF, authorized
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.); (3) Employment and training programs authorized under sec.
6(d)(4) of the Food and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
(4) Work programs authorized under sec. 6(o) of the Food and Nutrition
Act of 2008 (7 U.S.C. 2015(o)); (5) Trade adjustment assistance
activities under chapter 2 of title II of the Trade Act of 1974 (19
U.S.C. 2271 et seq.); (6) Services for veterans authorized under
chapter 41 of title 38 United States Code; (7) Programs authorized
under State unemployment compensation laws (in accordance with
applicable Federal law); (8) Senior Community Service Employment
Programs under title V of the Older Americans Act of 1965 (42 U.S.C.
3056 et seq.); (9) Employment and training activities carried out by
HUD; (10) Employment and training activities carried out under the
Community Services Block Grant Act (CSBG) (42 U.S.C. 9901 et seq.); and
(11) Reintegration of offenders programs authorized under sec. 212 of
the Second Chance Act of 2007 (42 U.S.C. 17532). When a State elects
this option, the Combined State Plan will take the place of the Unified
State Plan for that State. Coordination across multiple Federal
programs provides a wider range of coordinated and streamlined services
to the customer.
This part describes the submission process and content requirements
for the Unified and Combined State Plans under WIOA. The major content
areas of the Unified or Combined State Plan include strategic and
operational planning elements. Strategic planning elements include
State analyses of economic and workforce factors, an assessment of
workforce development activities, formulation of the State's vision and
goals for preparing an educated and skilled workforce that meets the
needs of employers, and a strategy to achieve the vision and goals.
Operational planning elements include State strategy implementation,
State operating systems and policies, program-specific requirements,
assurances, and additional requirements imposed by the Secretaries of
Labor and Education, or other Secretaries, as appropriate.
State WDBs are responsible for the development, implementation, and
modification of the plan, and for convening all relevant programs,
partners, and stakeholders. The Governor must ensure that the Unified
or Combined State Plan is developed in a transparent manner and in
consultation with representatives of Local WDBs and chief elected
officials (CEOs), businesses, representatives of labor organizations,
community-based
[[Page 55797]]
organizations (CBOs), adult education providers, institutions of higher
education, other stakeholders with an interest in the services provided
by the six core programs, and any Combined plan partner program
included in a Combined Plan, as well as the general public, including
individuals with disabilities. Other stakeholders include, but are not
limited to, youth education and workforce development providers,
disability advocates and service entities, youth-serving programs, and
other advocacy organizations relevant to the programs covered by the
Unified or Combined State Plan.
As noted in the NPRM, the Departments have chosen not to include
all of the specific planning elements in the regulation. Instead,
comprehensive State Plan requirements for both Unified and Combined
State Plans are detailed in the WIOA Unified and Combined State Plan
and Plan Modifications ICR, entitled ``Required Elements for Submission
of the Unified or Combined State Plan and Plan Modifications under the
Workforce Innovation and Opportunity Act,'' under the OMB Collection
Number 1205-0522 (hereafter ``WIOA State Plan ICR''). ICRs must be
renewed every 3 years. In future years, the WIOA State Plan ICR may
undergo revisions. Throughout this preamble, ``WIOA State Plan ICR''
refers to the WIOA State Plan ICR as published on February 19, 2016.
The WIOA State Plan ICR went through two rounds of public comment
before being finalized and future revisions will be subject to public
comment as well, as required under the PRA. In addition, the
Departments jointly have issued guidance explaining the mechanics of
how a State must submit its State Plan, through TEGL No. 14-15, Policy
Directive RSA-PD-16-03, and Program Memorandum 16-1, all entitled
Workforce Innovation and Opportunity Act (WIOA) Requirements for
Unified and Combined State Plans, which were issued in March 2016.
States must use the WIOA State Plan ICR to develop and submit the WIOA
Unified or Combined State Plan and in accordance with instructions
described in the jointly issued State Plan guidance.
In the section-by-section discussions of each Unified and Combined
State Plan provision below, the heading references the DOL CFR part and
section number. However, ED has identical provisions at 34 CFR part
361, subpart D (under its State VR program regulations) and at 34 CFR
part 463, subpart H (under a new CFR part for AEFLA regulations). For
purposes of brevity, the section-by-section discussions for each
Department's provisions appear only once--in conjunction with the DOL
section number--and constitute the Departments' collective explanation
and rationale for each provision. When the regulations are published in
the CFR, these joint performance regulations will appear in each of the
CFR parts identified above.
Section 676.100 What are the purposes of the Unified and Combined State
Plans?
Section 676.100 describes the principal purposes of the Unified and
Combined State Plans, which communicate the State's vision for the
State public workforce system and serve as vehicles for developing,
aligning, and integrating the State public workforce system across
Federal programs. Section 676.100(b) explains how the strategies
articulated in the plan support the State's vision and overarching
goals. The goals of the 4-year Unified and Combined State Plans are to
align and integrate Federal education, employment, and training
programs; direct investments to ensure that training and services are
meeting the needs of employers and job seekers; apply consistent job-
driven training strategies across all relevant Federal programs; and
engage economic, education, and workforce partners in improving the
workforce development system. The Departments received a few comments
on this section, none of which necessitated substantive changes to the
regulatory text. Section 676.100, as discussed below, remains unchanged
from the NPRM except for minor technical edits.
Comments: Several commenters supported the Departments' stated
purpose of the Unified and Combined State Plans. A commenter said the
regulation should require that State WDBs be provided with regular
(e.g., quarterly) program information and data, and at least annual
analysis of the State's progress toward State Plan goals.
Departments' Response: The Departments considered these comments
and concur that regular receipt and review of program information,
data, and analysis will better enable effective decision-making by the
State WDB. Section 677.160 of the joint performance regulations
requires States to report data annually for all six core programs;
however, some programs will report data quarterly, specifically the
WIOA title I programs, the Wagner-Peyser Act Employment Service
program, and the VR program, in accordance with part 677 of this Joint
WIOA Final Rule. The State's quarterly and annual reports are publicly
available, and State and Local WDBs are encouraged to review this
information regularly. Therefore, the Departments have concluded that
it is unnecessary to amend the final regulations to require that data
be provided to the WDBs regularly as the commenter recommended.
Comments: A commenter requested confirmation that the references to
``relevant'' and ``job-driven'' education and training, in proposed
Sec. 676.100(b)(2) and (3), refer to ``evidence-based'' strategies
identified in the Job-Driven Checklist (from Vice President Biden's
report ``Ready to Work: Job-Driven Training and American Opportunity''
and the study of ``What Works in Job Training: A Synthesis of
Evidence''). The commenter urged the Departments to provide
clarification on how to, and encourage States to, use the joint State
planning process to ensure that these evidence-based strategies are
incorporated into their newly energized workforce development systems.
Departments' Response: The Departments agree that evidence- based
strategies are important for the strategic planning required by this
section. Paragraph (b)(2) of Sec. 676.100 requires, as part of the
description of the purpose of the Unified and Combined State Plans,
that the plans direct investments to economic, education, and workforce
training programs that focus on providing relevant education and
training. Section 676.100(b)(3) further requires that plans apply
strategies for job-driven training consistently across Federal
programs. The references to ``relevant'' and ``job-driven'' education
and training, in Sec. 676.100(b)(2) and (3), include the ``evidence-
based'' strategies identified in the Job-Driven Checklist from Vice
President Biden's report ``Ready to Work: Job-Driven Training and
American Opportunity'' and the study of ``What Works in Job Training: A
Synthesis of Evidence.'' Through the issuance of joint Departmental
guidance and instructions, the Departments offered further
clarification and encouragement to States regarding how the joint
planning process can ensure that evidence-based strategies are
incorporated throughout the workforce development system, including the
priorities of the job-driven checklist. No change to the regulatory
text was made in response to this comment.
Section 676.105 What are the general requirements for the Unified State
Plan?
Section 676.105 describes the general requirements for the Unified
State Plan that apply to all six core programs. These requirements set
the foundation
[[Page 55798]]
for WIOA implementation by fostering strategic alignment, improving
service integration, and ensuring that the public workforce system is
industry-relevant, responds to the economic needs of the State, and
matches employers with skilled workers. The Departments envision a plan
that describes how the State will develop and implement a unified,
integrated workforce development system rather than a plan that
discusses the State's approach to operating each core program
individually.
Section 676.105(a) explains that Unified State Plans must be
submitted in accordance with Sec. 676.130 and sec. 102(c) of WIOA as
explained in joint planning guidelines issued by the Secretaries of
Labor and Education, with instructions to States on how to submit
Unified State Plans.
Section 676.105(b) implements WIOA's statutory requirements in sec.
102(a), and requires that the State submit the Unified State Plan to
the Secretary of Labor to receive funding for the workforce development
system's six core programs. The Departments made an editorial change
under Sec. 676.105(b) to clarify that at a minimum States must satisfy
the requirements of a Unified State Plan to be eligible to receive
funding for the workforce development system's six core programs.
However, if a State submits a Combined State Plan then it will, by
including all the requirements of a Unified State Plan as mandated by
the regulation, also satisfy the requirements of a Unified State Plan.
WIOA sec. 103(b)(1) and Sec. 676.140(e)(1) of this regulation state
that a Combined State Plan must include all of the requirements of a
Unified State Plan. Therefore, if a State submits a complete Combined
State Plan, it also will satisfy all the requirements of a Unified
State Plan.
Section 676.105(c) requires, in accordance with sec. 102(a) of
WIOA, that the State outline its 4-year strategy for WIOA's core
programs and meet the requirements of WIOA sec. 102(b). Paragraph (c)
of Sec. 676.105 remains unchanged from that proposed in the NPRM.
Section 676.105(d), which implements sec. 102(b) of WIOA, describes
the strategic and operational planning elements that must be included
in the Unified State Plan. The final regulation, consistent with that
proposed in the NPRM, concerns major structural elements rather than
enumerating all the statutory State planning requirements. States still
must comply with each of the statutory requirements, regardless of
whether they are repeated in regulation. In addition to minor technical
edits throughout, the Departments made two substantive changes to Sec.
676.105(d)(3). First, in Sec. 676.105(d)(3)(iv), the Departments
specifically mention the assurance that the lead State agencies
responsible for administering the core programs reviewed and commented
on the appropriate operational planning of the Unified State Plan and
approved those elements as serving the needs of the individuals served
by the programs. Second, the Departments added a new paragraph
(d)(3)(v) that requires the Unified State Plan to include a description
of the joint planning and coordination across the core programs and
other required one-stop partners and other programs in the workforce
development system. While these provisions are new in these final
regulations, they do not represent new requirements on the States
because each of these requirements are contained in sec. 102(b) of WIOA
and were applicable to the States regardless of whether they were
mentioned in the NPRM.
In these final regulations, the Departments have added Sec.
676.105(e) to make clear that all of the requirements of part 676
(which implements the Unified or Combined State Plan requirements of
secs. 102 and 103 of WIOA) apply to the outlying areas. As a result,
the outlying areas must submit a Unified or Combined State Plan to
receive funding for all of the core programs. This regulatory change is
discussed at greater length below.
Outlying Areas
Comments: The Departments received several comments related to the
applicability of Unified or Combined State Plan requirements to
outlying areas. In the NPRM, the Departments sought comments
specifically related to this issue and provided two options: Either (1)
require outlying areas to submit Unified or Combined State Plans or (2)
exempt outlying areas from the Unified or Combined State Plan
requirement as a prerequisite for receiving funds for core programs.
The commenters were unanimous in their support of explicitly requiring
outlying areas to submit Unified or Combined State Plans as a
prerequisite for receiving funding for all core programs. In so doing,
these commenters said this approach would ensure consistency and a
unified planning process, increase the relevance and validity of
national program comparisons, and contribute to a fair and equitable
distribution of funds. These commenters also noted that this approach
would avoid the concern that outlying areas would submit Unified or
Combined State Plans that include only the adult education and VR
programs, since titles II and IV of WIOA require the submission of such
plans as a prerequisite to receive funding.
While supporting the approach that would require outlying areas to
submit a Unified or Combined State Plan as a prerequisite to receive
funding for all core programs, one commenter expressed concern that ED
permits outlying areas to receive adult education program funds under
title II through the Consolidated Grant to Insular Areas application
process (Consolidated Grant process). The commenter recommended that if
ED continues to permit the award of adult education funds through the
Consolidated Grant process, the Departments should require that
outlying areas choosing to go through the Consolidated Grant process
include title II activities as part of the planning process for the
Unified or Combined State Plan, even though their funding is awarded
through the Consolidated Grant.
Another commenter expressed concern that, if the outlying areas
were not required to submit Unified or Combined State Plans for all
core programs, a situation could exist in which the VR program would be
the only component of such a plan if any of the outlying areas opted to
include adult education program funds in its Consolidated Grant
application process. The commenter suggested that, in such a situation,
the Departments should ensure that outlying areas are not penalized and
denied funding for the VR program, which is one of the six core
programs under WIOA.
Other commenters expressed general support for requiring outlying
areas to submit Unified or Combined State Plans, and one commenter
noted that the inconsistency in the definitions of ``State'' and
``outlying areas'' in WIOA raised questions as to congressional intent
on the issue of whether the Unified or Combined State Plan requirements
should be applicable to the outlying areas. A commenter suggested, if
the intent of differing definitions was to treat outlying areas
differently than States, a more comprehensive delineation should be
provided. In particular, the delineation should specify more than just
a ``competitive process'' for the title I programs since outlying areas
have historically received funding for these programs on a formula
basis. The commenter suggested that the requirement for competitions is
inconsistent with the need for a Unified or Combined State Plan
because, under
[[Page 55799]]
a competition, funds would come into question every year. The commenter
further suggested that if outlying areas are not going to be treated
differently for purposes of the State planning requirements, a
reconciliation of terms should be provided by Congress, thereby
eliminating all ambiguity and restoring formula funding for the
outlying areas through submission of a Unified or Combined State Plan.
Departments' Response: The Departments agree that applying the
Unified or Combined State Plan requirements to the outlying areas is
most consistent with the vision under WIOA for all six core programs to
provide an integrated and coordinated workforce development system.
The Departments want to make clear that the State Plan requirements
in WIOA secs. 102 and 103 apply to outlying areas, not just to States.
To that end, the Departments have added clarifying language in Sec.
676.105(e) of these final regulations. The Departments have concluded
that requiring the outlying areas to submit Unified or Combined State
Plans that incorporate all of the core programs as a prerequisite to
receive funding under any of the core programs is most consistent with
the plain meaning of WIOA's planning and allocation of funds
requirements when both are read together. Further, it is the only
interpretation that gives full meaning to the unified strategic
planning required across all core programs.
In resolving the apparent inconsistency and potential for confusion
regarding the definitions of ``State'' and ``outlying area,'' as it was
explained in the NPRM preamble, the Final Rule relies on the Secretary
of Labor's general authority to regulate at sec. 189 of WIOA, and
applicable provisions of titles II and IV of WIOA. In so doing, the
Departments ensure that all core programs--and all grantees under each
of those programs--are treated similarly, thereby achieving the vision
of WIOA as an integrated and coordinated one-stop delivery system and a
unified, strategic planning process encompassing all core programs.
The Departments also agree with the commenter that the option,
which has existed for ED, for outlying areas to include the adult
education program as part of a Consolidated Grant application, raises
some unique concerns with regard to the Unified or Combined State Plan
requirements of WIOA. When an outlying area submits a Consolidated
Grant application, pursuant to 48 U.S.C. 1469a, the application is
submitted in lieu of any other State Plan required by any of the
programs included in the Consolidated Grant application. The
Departments have considered the suggestion made by the commenter;
however, resolution of this particular concern goes beyond the scope of
these joint regulations. The ED will take the recommendation under
advisement and will address this issue more fully in its administration
of the Consolidated Grant to Insular Areas.
The Departments recognize that this interpretation raises
additional questions with regard to the competition provisions that
apply to the title I core programs in WIOA sec. 127(b)(1)(B). The DOL
will address this issue in guidance.
Joint Planning Guidelines
Comments: Proposed Sec. 676.105(a) is, in the NPRM, the first
mention of joint planning guidelines to be issued by the Secretaries of
Labor and Education. A number of commenters questioned whether the
joint guidelines would be subject to public comment, and a few
commenters challenged whether, in issuing the joint guidelines, the
Departments would be in compliance with the Administrative Procedures
Act (APA).
Departments' Response: The Departments' joint planning guidelines,
issued March 2016, complied with the APA. The APA does not require
notice and comment for interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice. See 5
U.S.C. 553(b)(A). The planning guidance falls under these exceptions,
and thus, was not subject to notice and comment rulemaking.
Specifically, the guidance includes procedural rules explaining the
mechanics of how a State must submit its State Plan, as well as
interpretive rules as needed to explain the applicable statutory and
regulatory requirement.
Comments: One commenter supported the inclusion of adult education
as a core program in the Unified State Plan in Sec. 676.105(b)(2), as
well as the requirement that those who administer adult education
programs be represented on State and Local WDBs. Multiple commenters
asserted that any grant programs under the jurisdiction of DOL ETA and
operated through the State Workforce Agency (SWA) or the one-stop
delivery system should be required to be part of the State's Unified or
Combined plan. As an example, the commenters said there should not be a
separate planning process for the Jobs for Veterans' State Grant (JVSG)
or Foreign Labor Certification. Another commenter said non-WIOA core
program partners should be allowed to participate in the strategic
portion of the planning process, even if they cannot fully align their
program budgets and operational plans with a 2- or 4-year operational
plan.
Departments' Response: The Departments acknowledge the commenter's
support for inclusion of those who administer adult education programs
on the State and Local WDBs in the regulation as proposed. State and
Local WDB requirements, and related comments, are discussed in sections
of the DOL WIOA Final Rule preamble, which is published elsewhere in
this issue of the Federal Register (see 20 CFR 679.110(b)(3)(iii)(A)
and 679.320(d)).
Regarding comments in support of including additional programs in
the Unified State Plan, sec. 102(a) of WIOA and Sec. 676.105(b) make
clear that only the core programs (as defined in sec. 3(12) and (13) of
WIOA) are to be included in such plan. Paragraph (b) of Sec. 676.105
is consistent with the six core programs identified throughout WIOA.
States may submit a Combined State Plan that could include the programs
mentioned by commenters. If a State chooses to submit a Combined State
Plan, the plan must include the six core programs and one or more of
the Combined State Plan partner programs and activities described in
sec. 103(a)(2) of WIOA, and Sec. 676.140(d). The JVSG is a Combined
State Plan partner program which States may include in a Combined State
Plan as described under WIOA sec. 103 and Sec. 676.140(d). Foreign
Labor Certification is not a Combined Plan partner program under WIOA
sec. 103; however, a State may include a description of Foreign Labor
Certification in its State Plan among its description of other programs
and activities.
Regarding the inclusion of non-WIOA core program partners in the
strategic portion of the planning process, WIOA sec. 102(b)(2) requires
State Plans to discuss alignment among core programs and the employment
and training services within education and human services programs
which operate in partnership with the one-stop delivery system,
including those not authorized by WIOA. Although not described in the
regulation for State Plans, this requirement is reflected in the WIOA
State Plan ICR. The Departments agree that coordination with program
partners and stakeholders to the fullest extent possible is vital for
successful joint planning. In addition to the changes made to Sec.
676.105(d)(3) as described above and relevant to these comments, the
Departments revised Sec. 676.140 regarding Combined State Plans, which
[[Page 55800]]
will be discussed in more detail below in connection with that section.
Further comments regarding the importance of public comment, review,
input and coordination in development of the plan are discussed in this
preamble in Sec. 676.130(c) and (d)(1) for Unified State Plans and
under Sec. Sec. 676.140(e)(4) and 676.143(b) and (c) for Combined
State Plans.
Comments: A couple of commenters responded to the authority granted
to the Secretaries by WIOA sec. 102(b)(2) to create additional
operational planning requirements beyond those already detailed in
statutory language. These commenters requested that the Secretaries, in
their discretion, keep to a minimum any additional planning
requirements to reduce the burden placed on States and to provide
States with ample opportunity to comply with statutorily established
planning elements.
Departments' Response: The Departments have considered these
comments and agree. WIOA contains a detailed description of planning
requirements, and the Departments have chosen not to include all of the
specific planning elements in the regulation. However, as made clear in
the NPRM and this preamble, States must comply with all State planning
requirements set forth in WIOA regardless of whether the requirements
are repeated in these regulations. Comprehensive State Plan
requirements for both Unified and Combined State Plans are detailed
through the WIOA State Plan ICR. The Departments have endeavored to
keep additional planning requirements to a minimum, while also
attempting to ensure that the WIOA reform principles of program
integration and alignment, job-driven training, accountability and
transparency are reflected in the State Plans.
Comments: The Departments received a number of comments that
requested plan requirements be added. In response to these suggestions,
described in more detail below, the Departments have made no change to
the regulatory text but have indicated whether the particular suggested
requirements are indeed already included in the applicable WIOA State
Plan ICR, published on February 19, 2016. In future years, the WIOA
State Plan ICR may undergo revisions. The level of detail of the plan
requirements suggested by the following comments is more appropriately
addressed in the WIOA State Plan ICR than in the regulatory text. The
Departments have declined to incorporate the following suggested
changes in the regulatory text, but the discussion of the following
comments points to various provisions of the WIOA State Plan ICR and
other places in the regulation that are pertinent to the commenters'
concerns.
Some commenters asserted that the regulation should require that
States address priority of service for covered veterans, and for those
veterans with service connected and non-service-connected (condition
not as a result of military service) disabilities.
Departments' Response: The Departments have reviewed these
comments. The WIOA State Plan ICR requires that States describe in
their Unified or Combined State Plans how they will implement and
monitor the priority of service provisions for all veterans in
accordance with the requirements of 38 U.S.C. 4215. This provision
applies to all employment and training programs funded in whole or in
part by DOL. In addition, the WIOA State Plan ICR requires States to
explain the referral process for veterans determined to have a
significant barrier to employment, including certain disabled veterans,
to receive services from the JVSG program.
Comments: One commenter said the Departments should unify the
definition of ``supportive services'' across programs, thereby aligning
adult education and literacy activities with other core programs and
with one-stop partners. The commenter noted the disparity between the
definition of ``supportive services'' under sec. 3(59) of WIOA and the
definition of ``other services'' under career pathways programs. The
commenter concluded that the quality and type of wraparound services
offered should not be dependent on the program in which individuals
participate, and the Departments should encourage States to develop
comprehensive wraparound services that are available to adults, youth,
dislocated workers, and adult education students whenever possible.
Departments' Response: WIOA sec. 3(59) provides a definition of
``supportive services;'' this definition applies to, and remains
consistent across, all core programs. The WIOA State Plan ICR, which
implements the statutory and regulatory requirements for Unified and
Combined State Plans, requires States to describe how the entities
carrying out the programs involved in the Unified or Combined State
Plan including the core programs, any applicable Combined State Plan
partner programs, and any mandatory and optional one-stop partner
programs, will coordinate activities and resources to provide
comprehensive, high-quality, customer-centered services. This
requirement includes the provision of supportive services. However, the
determination of need for, and the extent to which there is a need for,
supportive services is within the State WDB's discretion, consistent
with each of the individual program's authorizing statutes.
Comments: One commenter, in response to Sec. 676.105(d)(1), said
the Departments should ensure that consistent data definitions and
comparable data are used to assess respective labor market areas.
Departments' Response: The WIOA State Plan ICR emphasizes the use
of economic analysis and labor market information throughout and also
addresses alignment of labor market information systems. The
Departments encourage States to use a variety of accurate, reliable,
and timely labor market information on which to base analyses in the
State Plan. However, consistent with WIOA, the Departments will not
require States to use a particular dataset and will leave the choice of
data sources to the States' discretion, thereby allowing each State to
meet its own unique needs and circumstances.
Addressing the Needs of Individuals With Barriers to Employment
Comments: A commenter suggested that the Departments require States
to provide additional information regarding how they will address the
needs of people with disabilities. Another commenter stated that WIOA
requires that State and local planning efforts be informed by an
analysis of various data, including data that include the education and
skill levels of individuals with barriers to employment. A commenter
said it would be helpful if the Departments explicitly required that
States determine the number of individuals employed under 14(c) special
wage certificates as part of the ``analysis of the current workforce,
employment and unemployment data, labor market trends, and the
educational and skill levels of the workforce, including individuals
with barriers to employment (including individuals with disabilities),
in the State'' pursuant to WIOA sec. 102(b)(1)(B). This commenter also
stated that the strategic planning elements obligate the State to
examine the specific employment related characteristics in their State
and that this would be a valuable opportunity to gather information on
employment statistics for individuals with disabilities.
Departments' Response: Consistent with WIOA and these final
regulations, multiple sections of the WIOA State
[[Page 55801]]
Plan ICR require the State to address the needs of individuals with
barriers to employment. The term ``individual with a barrier to
employment,'' as defined in sec. 3(24) of WIOA, encompasses the
following groups of people: Individuals with disabilities, including
youth with disabilities; displaced homemakers; low-income individuals;
Indians, Alaska Natives, and Native Hawaiians; older individuals; ex-
offenders; homeless individuals, or homeless children and youths; youth
who are in or have aged out of the foster care system; individuals who
are English language learners, individuals who have low levels of
literacy, and individuals facing substantial cultural barriers;
farmworkers (as defined at sec. 167(i) of WIOA and Training and
Employment Guidance Letter No. 35-14); individuals within 2 years of
exhausting lifetime eligibility under the TANF program; single parents
(including single pregnant women); and long-term unemployed
individuals. Therefore, States are required to address the needs of
individuals with disabilities in the Unified or Combined State Plan.
Consistent with sec. 102(b)(1)(B) of WIOA and these final
regulations, the WIOA State Plan ICR requires that State analysis
related to individuals with barriers to employment include employment
and unemployment, labor market trends, education, and skill levels of
the workforce and any apparent gaps between the skills in demand by
employers and the skill levels of the workforce. State and local
planning efforts are informed by this analysis. Based on this analysis
of workforce and labor market information required under sec.
102(b)(1)(B) of WIOA, Sec. 676.105(d) and the WIOA State Plan ICR
require State Plans to describe State's strategic vision and goals for
developing its workforce and meeting employer needs in order to support
economic growth and economic self-sufficiency. To that end, the State
must describe its goals for preparing an educated and skilled
workforce, including preparing youth and individuals with barriers to
employment and other populations. Further, the WIOA State Plan ICR
requires the State to assure that the State obtained input into the
development of the Unified or Combined State Plan and provided an
opportunity for comment on the plan by primary stakeholders, including
organizations that provide services to individuals with barriers to
employment and that the Unified or Combined State Plan is available and
accessible to the general public.
Additionally, the Departments agree that the number of individuals
employed under 14(c) special wage certificates may be helpful as part
of the analysis by the State of workforce needs. However, the benefit
of requiring the collection of sufficient data elements to satisfy the
needs of every program must be balanced with the burden such a
requirement would impose on State program operators and participants.
For this reason, the Departments are not regulating such a requirement.
While the collection of this data element will not be required of
States, comparable data is publicly available. When an employer applies
for a sec. 14(c) certificate from the Department of Labor's Wage and
Hour Division, the employer is required to report on their application
the number of workers with disabilities they employed at subminimum
wages during their most recently completed fiscal year. The Department
of Labor's Wage and Hour Division posts on its Web site (http://www.dol.gov/whd/workerswithdisabilities/) lists of all employers who
hold sec. 14(c) certificates and certain data elements reported on
their applications, including the number of workers with disabilities
who were paid subminimum wages.
Finally, the Departments agree that the strategic planning elements
requirements present a valuable opportunity to gather information on
employment statistics for individuals with disabilities, so long as
States are mindful of Federal and State law protecting personally
identifiable information (PII).
Comments: A couple of commenters said States should be required to
include the following information in their State Plans: (1) Explicit
activities focused on how they will work to ensure ``low-level
learners'' and hard-to-serve populations are served by the State Plan,
and (2) a report on the diversity of programs funded and the actions
taken to ensure broad participation at the local level. A commenter
urged the Departments to encourage States and localities to build
activities into their State Plans specifically directed at raising
awareness about older workers and dispelling stereotypes. This same
commenter also urged the Departments to encourage States to create
plans that ensure engagement of all players to help employers connect
with older workers.
Departments' Response: The Departments have reviewed these
comments. As noted above, States must address in their Unified or
Combined State Plans the needs of ``individuals with barriers to
employment,'' as defined in sec. 3(24) of WIOA, in the State's
workforce analysis, goals for the public workforce system and in the
State's stakeholder input and public comment assurances. As described
above, the term ``individual with a barrier to employment'' includes
individuals who have low levels of literacy and older workers. However,
the Governors and State WDBs will determine the explicit activities
appropriate for their individual States. For this reason, the
Departments are not requiring in these regulations specific activities
to satisfy these requirements, though we acknowledge that some states
may elect to do so. In developing their Unified or Combined State
Plans, States must conduct a thorough analysis of labor market
statistics, which will address the needs of specific populations. The
Departments do not have authority under WIOA to require a report on the
diversity of programs funded and the actions taken to ensure broad
participation at the local level, as recommended by commenters.
Comments: A few commenters recommended that the Departments
encourage WDBs to establish effective operational partnerships with
Continuum of Care bodies and State councils focused on homelessness. A
couple of commenters also suggested that the Departments encourage
State Plans to include specific strategies for using employment to
prevent and end homelessness. One commenter provided examples of
specific strategies for using employment to prevent and end
homelessness, including HUD support for public housing residents,
individuals with housing vouchers, and housing and community
development projects. Lastly, this same commenter urged the Departments
to work with HUD and other national experts and initiatives to identify
and promote promising examples of where and how homeless services
systems and workforce systems are working together for the benefit of
increasing employment and economic opportunity for job seekers.
Departments' Response: The Departments have reviewed these
comments. The Departments encourage State and Local WDBs to partner
with appropriate entities to address the needs and concerns of
individuals who are homeless or at risk of homelessness, including
Continuum of Care bodies, State councils focused on homelessness, and
programs administered by HUD. These are appropriate strategies for a
State Plan in States with significant issues related to individuals who
are homeless or at-risk of homelessness. As noted above, in developing
its Unified or Combined State Plan, the State must
[[Page 55802]]
address the needs of individuals with barriers to employment in the
State's workforce analysis, goals for the public workforce system and
in the State's stakeholder input and public comment assurances. An
``individual with a barrier to employment'' in WIOA sec. 3(24) includes
homeless individuals. Because each State's needs and circumstances are
unique, the Departments have not imposed the additional planning
requirements suggested by commenters in these final regulations. The
Departments agree with the commenter about the need for increased
collaboration at the Federal level and, to that end, the Departments
have collaborated with other Federal agencies, including HUD, in
developing the WIOA State Plan ICR and will continue to do so to ensure
full implementation of WIOA.
Comments: A few commenters stated that WIOA represents a
substantial shift from the WIA because it increases the amount of title
I youth funding dedicated to out-of-school youth to 75 percent (up from
the prior 30 percent under WIA) and expands the age range to include
those between 16 and 24 years old. The commenters said immigrants
represent more than 1 in 10 youth in this age range nationwide. The
commenters urged the Departments to explore ways to encourage States
and Local WDBs to review their program design and recruitment
strategies to ensure that they are reaching and effectively serving
eligible immigrants and youth in their communities who are English
language learners.
Departments' Response: Some guidance has already been released by
DOL related to the change in the percentage of youth program (title I)
formula dollars that must be spent on out-of-school youth, (see TEGL
No. 23-14), and DOL plans to issue further guidance and technical
assistance focused on strategies for complying with this requirement.
The Departments agree that States should address their strategies for
serving out-of-school youth in State Plans. The WIOA State Plan ICR
requires States to describe the strategies the State will use to
achieve improved outcomes for out-of-school youth as they are defined
in WIOA sec. 129(a)(1)(B), including how it will leverage and align the
core programs, any Combined State Plan partner programs included in
this plan, required and optional one-stop partner programs, and any
other resources available. In developing their Unified or Combined
State Plans, States must address the needs of individuals with barriers
to employment in their workforce analysis, goals for the public
workforce system and in stakeholder input and public comment
assurances. Under WIOA sec. 3(24), individuals with barriers to
employment include youth with disabilities, homeless children and
youths, youth who are in or have aged out of the foster care system,
individuals who are English language learners, individuals who have low
levels of literacy, and individuals facing substantial cultural
barriers. In their Unified or Combined State Plan, States also must
describe how the one-stop delivery system will ensure that each one-
stop center is able to meet the needs of English language learners. The
Departments encourage States with eligible immigrants and youth in
their communities to revisit their program design and strategies to
ensure that they are reaching and effectively serving these
populations.
Comments: A couple of commenters recommended that the Departments
require that State Plans provide for access for English language
learners to all title I-funded services. If any title I-funded programs
in a State or locality are not explicitly expected to provide access to
English language learners, the commenters continued, the Departments
should require that the State or locality demonstrate how it is
complying with Federal anti-discrimination provisions and providing
equitable access to title I services for English language learners.
Departments' Response: The Departments have reviewed these comments
and agree that providing for the needs of English language learners
through title I services, as well as other services, should be a
component of all Unified and Combined State Plans. Sec.
102(b)(2)(C)(vii) of WIOA requires States to describe how the one-stop
delivery system (including one-stop center operators and the one-stop
delivery system partners) will comply with sec. 188 of WIOA. In
addition, the WIOA State Plan ICR requires States to describe how the
one-stop delivery system (including one-stop center operators and the
one-stop delivery system partners) will ensure that each one-stop
center is able to meet the needs of English language learners, such as
through established procedures, staff training, resources, and other
materials.
The Departments agree with the importance of ensuring that States
address the needs of the specific populations mentioned by the
commenters. As noted above, States must address, in developing their
Unified or Combined State Plans, the needs of individuals with barriers
to employment in their workforce analysis, goals for the public
workforce system, and in stakeholder input and public comment
assurances. It also should be noted that WIOA grant recipients are
subject to all of the requirements of the sec. 188 WIOA
Nondiscrimination and Equal Opportunity Regulations (29 CFR part 38).
Suggestions for State Plan Requirements
Section 676.105(d)(3)(i) through (v) lists the operational planning
elements that must be included in a Unified or Combined State Plan.
Section 676.105(d)(3)(ii) states that operational planning elements
must include State operating systems, including data systems, and
policies that will support the implementation of the State's strategy.
Comments: In response to these requirements, a commenter requested
guidance on where to focus State efforts in technology planning.
Specifically the commenter asked whether the State strategic plan can
describe a schedule for developing a comprehensive technology plan and
how States should prioritize investments in technology as funds become
available. Another commenter requested guidance on the Departments'
expectations regarding the States' development of a common intake
system among one-stop partners.
Departments' Response: The Departments have considered these
comments and agree that additional guidance regarding the operational
planning elements contained in a State Plan is appropriate. The
Departments plan to issue joint planning and operational guidance
regarding the technology planning and data systems to be used for
reporting and intake systems. Further, States are encouraged to utilize
the Departments' available technical assistance.
Comments: A commenter recommended that the Departments require
States to include and address the following five topics in their
Unified State Plan: (1) Priority of Service, (2) Career Pathways, (3)
Criteria for Selecting Employers for Work-based Training, (4) Youth
Committees, and (5) Measurable Skill Gains. The commenter went on to
detail how States should address each of the enumerated topics in the
State Plans. Specifically, with regard to Priority of Service, the
commenter recommended requiring that Unified State Plans include a
description of how the Governor will ensure priority of service for
title I adult career and training services for recipients of public
assistance, individuals who are basic skills deficient, and other low-
income individuals. Regarding career pathways, the commenter said
Unified State Plans should be required to explain: How the
[[Page 55803]]
WIOA definition of a career pathway will be applied to the programs in
their State that align with industries in the regional economy; how the
State will make accessible secondary and postsecondary education; how
the State will include individual education and career counseling
services; how the State will include integrated education and training;
how the State is organized for acceleration; how the State will make
available high school equivalency and at least one postsecondary
credential; and how the State will promote career advancement. The
commenter also recommended that Unified State Plans be required to
demonstrate how they will track career pathway participants whose
service happens not within one particular Federal program and funding
stream, but across these programs through co-enrollment. In addition,
this same commenter urged the Departments to require States to list the
criteria they will use for selecting employers as an operational
element of the Unified State Plan, and to ensure that local plans in
their State similarly describe the criteria they will use for selecting
employers. Regarding youth committees, the commenter recommended that
the Departments require States to explain in their State Plans the
State-directed format for local areas youth committee elections.
Lastly, to ensure the effective implementation of the measurable skill
gains indicator, the commenter recommended that Unified State Plans be
required to ensure that local plans include: (1) A process describing
how they will use the measurable skill gains indicator based on their
service delivery strategies across programs, and (2) a list of the
measurable skill gains that they will be utilizing in the coming year.
Departments' Response: The Departments considered this comment but
did not revise the regulatory text. Many of the concerns are already
addressed by sec. 102 of WIOA, these regulations, and the WIOA State
Plan ICR. The WIOA State Plan ICR, consistent with sec. 134(c)(3)(E) of
WIOA, requires States to address, in developing their Unified or
Combined State Plans, priority in the delivery of career and training
services to individuals who are low income, public assistance
recipients, or basic skills deficient. With regard to the commenter's
concern about career pathways, the WIOA State Plan ICR, consistent with
secs. 101(d)(3)(B) and 102(b)(2)(B)(ii) of WIOA, includes requirements
for the State to describe both its sector and career pathways strategy.
Further comments regarding career pathways are discussed in detail
below. With regard to the commenter's concerns about work-based
training, the WIOA State Plan ICR requires States to address work-based
learning approaches as a part of adult, dislocated worker, and youth
activities under title I-B of WIOA. However, the Departments decline to
require a specific policy on employer criteria because the description
of the State's approach will provide sufficient information to the
Departments and stakeholders. Regarding youth committees, WIOA
eliminates the requirement for Local WDBs to establish a youth council;
however, the Local WDB may choose to establish a standing youth
committee, as described at 20 CFR 681.110 (see DOL WIOA Final Rule).
States with Local WDBs that have chosen to form standing youth
committees may describe this as a part of the State's operational
planning elements, which are required in the WIOA State Plan ICR.
However, the Departments have declined to require that States address
standing youth committees because the creation of standing youth
committees is determined by Local WDBs and the appropriateness of
including such committees in the State Plan will vary from State to
State. The DOL has issued guidance on standing youth committees, in
TEGL No. 23-14 and in TEGL No. 8-15. Lastly, measurable skill gains is
a required performance indicator under WIOA and it is defined in part
677 of this Joint WIOA Final Rule. That part further defines the
specific allowable skill gains. The Departments addressed the data
collection necessary to sufficiently measure skill gains and identify
other indicators in the WIOA Joint Performance ICR. The Departments
also provided further guidance on this particular issue. Therefore, the
Departments decline to revise the regulatory text in response to the
concerns discussed above.
Comments: Some commenters said the Departments should require the
States to include in their Unified or Combined State Plans a
demonstration of how they will ensure that eligible providers have
direct and equitable access to apply and compete for grants or
contracts.
Departments' Response: In response to this concern, the Departments
direct the commenters to the WIOA State Plan ICR, which requires States
to describe, with regard to the distribution of funds for title II
programs in particular, how the eligible agency will ensure direct and
equitable access to all eligible providers to apply and compete for
funds. This provision in the WIOA State Plan ICR is consistent with
sec. 231(c) of WIOA requiring direct and equitable access for all
eligible providers under title II. Further, the WIOA State Plan ICR
requires States to describe how the eligible agency will ensure that it
is using the same grant or contract announcement and application
procedure for all eligible providers. The guidance sufficiently
addresses the commenters' concerns; no changes to the regulatory text
were made in response to these comments.
Comments: One commenter remarked that throughout the ``Career
Services'' section of the law, there are references to the
``assistance'' provided by the one-stop center or its contractor as it
relates to financial aid eligibility and filing for unemployment
compensation. Due to the significant decline in resources, the
commenter requested that State Plans address how statewide resources
will be utilized to ensure local areas have enough staff to meet this
demand, including how the State will allocate funding and merit staff.
Departments' Response: The Departments have considered this comment
and concluded that adopting a requirement such as that would result in
substantial burden to the States. The purpose of WIOA is best served if
the States retain flexibility to determine the best use of staff
resources to deliver workforce services in the State.
Industry and Sector Partnerships
Comments: Several commenters recommended that the Departments
require States to describe in the Unified State Plan how they will
carry out the requirements under WIOA sec. 101(d)(3)(D) relating to the
development of industry or sector partnerships. One of these commenters
made several recommendations with regard to industry or sector
partnerships. First, require regional plans to clarify the relationship
between regional sector initiatives and any industry or sector
partnerships in the regional planning area. Second, establish a new
subpart H covering Industry or Sector Partnerships that, at a minimum,
(a) describes the purposes of industry or sector partnerships, (b)
reiterates the required partners for an industry or sector partnership
as set forth in WIOA, (c) clarifies the role of Local WDBs in industry
and sector partnerships, (d) identifies the ways in which States and
local areas can evaluate the effectiveness of industry or sector
partnerships, and (e) eliminates the current references to industry or
sector partnerships in proposed Sec. 678.435, which generally
describes the business services that must be provided through the one-
stop delivery system.
[[Page 55804]]
Additionally, as noted in the portion of the DOL WIOA NPRM preamble
addressing 20 CFR 675.300, commenters recommended that the Departments
define the terms ``Industry and Sector Partnership'' and ``Sector
Strategy'' and suggested specific components to include in such
definitions.
Departments' Response: The WIOA State Plan ICR requires States to
describe the strategies they will implement, including industry or
sector partnerships related to in-demand industry sectors and
occupations and career pathways, as required by WIOA sec. 101(d)(3)(B)
and (D). It also requires States to address industry sectors and
occupations throughout the analyses required in the State Plan.
Additionally, WIOA sec. 3(26) defines ``industry or sector
partnership.'' Due to the changing needs of the workforce and
employers, and in order to maximize States' flexibility to develop
strategies to address these changing needs, the Departments decline to
change the regulation to be more prescriptive through changing the
definition of ``industry or sector partnership,'' defining the term
``sector strategy,'' or adding a new subpart H on industry or sector
partnerships. The Departments have provided technical assistance on
sector strategies and plan to continue to do so while also issuing
further guidance on industry and sector partnerships. Lastly, regional
planning requirements are addressed in 20 CFR 679.510 (see DOL WIOA
Final Rule published elsewhere in this issue of the Federal Register).
Comments: One commenter recommended that special emphasis be placed
upon highlighting the importance of credentialing within industry and
sector partnerships, especially for new high-growth industries.
Specifically, the commenter recommended the following: (1) Funds be
specifically allocated and used for State and local credentialing
efforts within industry or sector partnerships, (2) DOL link
credentialing to industry or sector partnerships and amend the proposed
State Plan requirements to require States to use explicit language to
clarify how they will integrate credentialing into the development of
new industry or sector partnerships, where applicable, and (3) States
should be required to explain their efforts to find industry-driven
credentials as part of their Unified State Plans while providing a list
of those credentials to DOL.
Departments' Response: The Departments agree that credentialing as
a part of industry or sector partnerships is important. The WIOA State
Plan ICR supports the inclusion of credentialing and its role in sector
and career pathways strategies. Specifically, the WIOA State Plan ICR,
consistent with sec. 102(b)(2)(B)(vi) of WIOA, requires States to
describe how their strategies will improve access to activities leading
to recognized postsecondary credentials, including registered
apprenticeship certificates. The requirement in the WIOA State Plan ICR
further includes credentials that are industry-recognized certificates,
licenses, or certifications, and that are portable and stackable. The
WIOA State Plan ICR also requires States to describe the strategies the
State will implement, including industry or sector partnerships related
to in-demand industry sectors and occupations and career pathways, as
required by WIOA sec. 101(d)(3)(B) and (D). Such strategies may include
the use of credentials or industry-recognized certificates. The
Departments have concluded that these requirements adequately address
the States' use of credentials within industry or sector partnerships.
The Departments have declined to require States to use explicit
language regarding how they will integrate credentialing and the
State's efforts to fund industry-driven credentials, or to require that
States provide a list of those credentials to the Departments to reduce
planning burdens on States. Lastly, funding allocations for State
credentialing efforts are outside the authority of this rule.
Career Pathways
Comments: Several commenters were pleased that WIOA sec. 3(7)
codifies a definition of ``career pathways'' in Federal law, but they
expressed concern that the rule includes little guidance on how career
pathways are to be implemented. These commenters recommended that the
Departments require States to describe how they will carry out the
requirements under WIOA relating to the development of career pathways.
Departments' Response: The Departments considered the commenters'
support for the WIOA definition of career pathways and the
recommendation that States be required to describe how they will carry
out the development of career pathways in the State Plan. Career
pathways are designed to serve a diverse group of learners, including
youth, dislocated workers, veterans, individuals with disabilities,
individuals who have low levels of literacy or English proficiency, new
immigrants, women, and minorities. Career pathways programs provide
opportunities for more flexible education and training, allow people to
earn industry-recognized credentials, and support the attainment of
marketable skills that transfer into work for all. The Departments are
choosing not to regulate further regarding the implementation of career
pathways in order to promote maximum flexibility at the State and local
level, and the Departments will continue to support career pathways
programs locally and regionally through comprehensive technical
assistance.
Comments: A number of commenters recommended that the rule clarify
the minimum requirements that a Local WDB must satisfy in order to
demonstrate successful implementation of career pathways.
A few commenters encouraged the Departments to use a forthcoming
Career Pathways and Credentials Toolkit to amplify and build awareness
of States' and localities' requirements for career pathways under WIOA.
Another commenter encouraged the Departments to expand the use of
career pathways, especially for racial minorities and women, and to
provide support to States and localities as they implement plans to
improve career pathways available locally and regionally.
One commenter said the Departments should offer more specific
guidance for operationalizing career pathways, such as acceptable
strategies for braiding funding streams from titles I and II of WIOA
and ways to identify and improve career pathways programs, with a
particular focus on how to integrate wraparound services successfully
into career pathways programs.
One commenter provided the following recommendations:
Unified State Plans should be required to demonstrate how
to track career pathway participants whose service happens across
Federal program and funding streams through co-enrollment.
The required elements for the Unified State Plan should
specify the need to identify co-enrolled participants across the WIOA
titles and in the CTE and human service partner systems.
Unified State Plans should illustrate roles for CTE
partners in development and implementation of career pathways,
including strategies for co-enrollment.
The Joint WIOA Final Rule should provide guidance to title
I and title II providers on working with CTE in the design and
implementation of career pathways, and should promote shared decision-
making.
Unified State Plans should be required to address
strategies for serving TANF recipients through career pathway
programming, as part of the plan's description of how career
[[Page 55805]]
pathway services will be provided to adults, youth, and individuals
with barriers to employment.
Departments' Response: Consistent with sec. 101(d)(3)(D) of WIOA,
the WIOA State Plan ICR includes requirements for the State to describe
the career pathways strategies. The WIOA State Plan ICR, consistent
with secs. 101(d) and 102(b)(2) of WIOA, also requires States to
describe how such activities will be aligned across the core programs
and Combined State Plan partner programs included in the State Plan and
among the entities administering the programs, including using co-
enrollment and other strategies, as appropriate. States have the option
of including strategies that address TANF recipients as well as the
option of including TANF as a Combined State Plan partner program in a
Combined State Plan. Because career pathways, co-enrollment, and TANF
recipients already are reflected in guidance, the Departments decline
to regulate planning requirements regarding career pathways further.
Regarding commenters' suggestions for specific strategies around
implementation and requests for guidance, the Departments agree that
additional guidance is necessary to describe WIOA requirements for
incorporating career pathways into the State's strategies, although the
Departments have concluded that additional regulatory text on career
pathways is not necessary. The Departments are working in partnership
with other Federal agencies to provide additional guidance on the
implementation of career pathways in WIOA, and the Departments continue
to take steps to incorporate career pathways approaches into a wide
range of program investments, evaluation and research activities, and
technical assistance efforts.
Combined State Plan Partner Programs
Paragraph (d)(2) of Sec. 676.105 specifically requires that
Unified State Plans include strategies for aligning the core programs
with Combined State Plan partner programs and other resources to
support the State's vision and goals (WIOA sec. 102(b)(1)).
Comments: A few commenters noted that the term ``optional
programs'' is not used in WIOA sec. 102(b)(1), but the commenters also
acknowledged that from the context it is apparent that the Departments
intended to refer to the programs described at sec. 103(a)(2) and
proposed Sec. 676.140(d). The commenters supported this language, but
they encouraged the Departments to clarify this intent explicitly by
amending proposed Sec. 676.105(d)(2) to include ``as described in
Sec. 676.140(d)'' after the words ``optional programs.'' One commenter
stated that while the use of the term ``optional programs'' for other
workforce development programs is understood to be in reference to the
fact that they are not required to be part of Unified Plans, there is
the danger that the term could inadvertently send a message about the
value of these programs. The commenter recommended that guidance should
clarify that ``optional'' only refers to the planning requirements and
does not imply that other programs beyond the WIOA ``core'' programs
are any less essential to workforce development.
Departments' Response: The Departments have reviewed these comments
and agree that the term ``optional program'' was unclear. The term
``optional,'' as used in the NPRM, referred to the State's option of
including these partner programs in a Combined State Plan. The
Departments also agree that Combined State Plan partner programs are a
valuable part of the workforce development system and the Departments
encourage States to maximize the involvement of these programs in
developing the State's strategies, goals, and vision for the one-stop
delivery system in each State. The Departments revised Sec.
676.105(d)(2), by replacing the term ``optional programs'' with
``Combined State Plan partner programs'' and also applied the suggested
edit cross-referencing the term to Sec. 676.140. The sentence now
reads as ``Strategies for aligning the core programs and Combined State
Plan partner programs as described in Sec. 676.140(d), as well as
other resources available to the State, to achieve the strategic vision
and goals in accordance with sec. 102(b)(1)(E) of WIOA.'' Throughout
this preamble to the Joint WIOA Final Rule, the Departments have
generally used the term ``Combined State Plan partner program'' to
refer to what were called ``optional programs'' in the NPRM.
Coordination in Plan Development
Comments: A number of commenters expressed concern about having an
adequate voice and input into the State Plan development process. One
commenter requested that the Departments issue a stronger or clearer
regulation addressing which entities must be involved in the process.
Departments' Response: The Departments reviewed these comments and
agree that the regulation would benefit from a more explicit statement
regarding the role of core programs in the planning process. In
response to these comments, the Departments have added a new paragraph
(d)(3)(v) to Sec. 676.105 to clarify that operational planning
elements must include a description of joint planning methods across
core programs and required one-stop partner programs and other programs
and activities in the Unified Plan. Due to this addition, proposed
Sec. 676.105(d)(3)(v) has been redesignated as Sec. 676.105(d)(3)(vi)
in this Joint WIOA Final Rule. The Departments also have added a new
paragraph (c) to Sec. 676.130 to explain how stakeholder and core
program providers should be involved in plan development, as well as
the role of the State WDB in plan development. The Departments have
made parallel revisions to Sec. Sec. 676.140 and 676.143 for Combined
State Plans, all of which will be discussed in connection with each of
these provisions.
Comments: Several commenters supported the unified planning process
in general but expressed concern about the lack of oversight and
enforcement mechanisms regarding the requirement that the development
of the plan is collaborative. The commenters urged the Departments to
remind all the core programs that they must truly collaborate if WIOA
is to succeed.
Similarly, a commenter said the rule's strategic approach will
require constant collaboration between Federal, State, and local
governments, as well as other community partners, but the willingness
to collaborate among these actors must be present. This commenter said
other challenges include resistance to change within the workforce
system, procurement requirements in a single State area, and
conflicting performance requirements from different funding streams.
Another commenter said research has shown that bundling multiple
services leads to more successful outcomes in the workforce development
field, and the workforce system provides an ideal platform to integrate
financial capability services because they both are focused on ensuring
individuals have the tools to participate in, contribute to, and
benefit from the mainstream economy.
Departments' Response: The Departments issued this Final Rule
jointly to lay the foundation, through coordination and collaboration
at the Federal level, for implementing the vision and goals of WIOA.
One of WIOA's principal areas of reform is to require States to plan
across programs and include this planning process in the Unified or
Combined State Plans, which promotes a shared understanding of the
workforce needs of a State and a comprehensive strategy for addressing
those needs. Unified or combined
[[Page 55806]]
planning can support better alignment of resources, increased
coordination among programs, and improved efficiency in service
delivery. The Departments considered these comments and recognize the
challenges mentioned by the commenters. WIOA placed heightened emphasis
on coordination and collaboration at the Federal, State, and local
levels to ensure a streamlined and coordinated service delivery system
for job seekers. The WIOA State Plan ICR, consistent with the statutory
and regulatory requirements, reinforces the importance of collaboration
in the development of State Plans. However, to further address these
comments and others relating to the issue of collaboration and
stakeholder involvement, the Departments have added new paragraph
(d)(3)(v) to Sec. 676.105 to clarify that operational planning
elements must include a description of joint planning methods across
core programs and required one-stop partner programs in the Unified
Plan. The WIOA statute and the WIOA State Plan ICR require the State to
assure that core programs have ``reviewed and commented on the
appropriate operational planning elements of the Unified State Plan,
and approved the elements as serving the needs of the populations
served by such programs.'' The Departments have amended Sec.
676.105(d)(3)(iv) to emphasize this statutorily required assurance.
Lastly, the Departments note that some of the stated challenges,
such as procurement requirements, are not relevant to the regulation of
State Plans. Regarding the challenges cited by commenters regarding
differing reporting requirements, WIOA has addressed this challenge by
requiring the six core programs to report performance outcomes against
the primary indicators of performance. The core programs will all use
the same definitions and data elements. The Departments agree that
aligning performance outcomes is a significant step toward aligning
programs. WIOA sec. 116's performance requirements are addressed in the
WIOA State Plan ICR Appendix 1, as well as the WIOA Joint Performance
ICR and part 677 of this Joint WIOA Final Rule.
The Role of State Workforce Development Boards in Plan Development
Comments: Several commenters requested clarification about the role
of the State WDB in approval of State Plans. One commenter said the
Departments should require the State WDB to review and approve the
State Plan before submission. This same commenter asked if core
programs were required to sign off on the plan, or if their
representation on the State WDB would serve that purpose. A commenter
asked about the authority of a State WDB over specific programs' plans,
specifically requesting clarification on whether the Board can, in
effect, veto a portion of the plan.
Departments' Response: The Departments reviewed these comments and
agree that the Joint WIOA Final Rule should provide additional
clarification about the role of the State WDB in approval of State
Plans. Accordingly, the Departments revised Sec. Sec. 676.130(c) and
676.143(b) to clarify expected roles during plan development. More
detail will be provided in the discussions related to these particular
sections below. The Departments expect the States to recognize the
importance of an inclusive and collaborative process in developing the
State Plan. The Departments also have revised Sec. 676.105(d)(3)(iv),
which implements an assurance required by sec. 102(b)(2)(E) of WIOA.
Under Sec. 676.105(d)(3)(iv), States are required to assure that the
lead State agencies responsible for the administration of the core
programs review and comment on the appropriate operational planning
sections of the Unified State Plan and approve that each element serves
the needs of the population served by such programs.
Comments: A commenter requested clarification on the processes of
State, regional, and local planning. Specifically, this commenter
wondered how much direct influence local workforce boards will have in
their State's respective State Plans. The commenter requested greater
assurances that Local WDBs be systematically included in the State
planning process. Similarly, a commenter recommended that Governors
must have Local WDB and CEO consent before taking actions impacting
Local WDBs, stating that most of the best innovations are developed
based on local relationships. Another commenter recommended regulatory
language that enables local areas to meet the needs of the State WDB in
meeting their responsibilities under WIOA for statewide planning, but
encourages and allows local areas to provide their own input, feedback,
and strategies within the local plan.
Departments' Response: The Departments agree with the commenters
that it is important for the Governor to include Local WDBs and CEOs in
the State planning process. Section 679.110 of 20 CFR requires that
State WDB membership include two or more CEOs (see DOL WIOA Final Rule
published elsewhere in this issue of the Federal Register). The
Governor has the flexibility to appoint more local elected officials to
the State WDB as he/she sees fit. The Departments encourage 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 and also to ensure
the involvement of these local representatives in the State planning
process. WIOA does not require that Governors must have Local WDB and
CEO consent before taking actions impacting Local WDBs. However, the
Departments do expect engagement of Local WDBs in the development of
the State Plan through public comment and input. This is further
discussed below at Sec. 676.130(d). The requirements for local plan
development and input are discussed in 20 CFR 679.550 (see DOL WIOA
Final Rule published elsewhere in this issue of the Federal Register).
Section 676.110 What are the program-specific requirements in the
Unified State Plan for the adult, dislocated worker, and youth programs
authorized under Workforce Innovation and Opportunity Act title I?
Section 676.110 indicates that program-specific requirements for
the adult, dislocated worker, and youth workforce investment activities
in the Unified State Plan are described in sec. 102(b)(2)(D)(i) of
WIOA. Additional planning requirements may be explained in joint
planning guidelines issued by the Secretaries of Labor and Education.
Proposed Additional Title I Program-Specific Requirements to State
Plans
Comments: One commenter agreed with the proposed program-specific
requirements in Sec. Sec. 676.110 through 676.125. Another commenter
stated that this section provides insufficient direction and
accountability to ensure that the needs of individuals with a barrier
to employment or who have priority of service are adequately included
and addressed in a Unified or Combined State Plan. The commenter
recommended that the Departments 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. The
commenter said these data should be utilized in Federal reviews of
State Plans to ensure that system designs and projected investments are
[[Page 55807]]
equitably targeted to service-priority populations. The commenter
further stated that the data also should be used to benchmark system
performance in actual implementation of the priority of service from
year to year.
Departments' Response: The Departments have considered these
comments. The WIOA State Plan ICR, consistent with WIOA requirements
for title I-B programs, requires States to address priority in the
delivery of career and training services to individuals who are low
income, public assistance recipients, or basic skills deficient. WIOA
sec. 134(c)(3)(E) prioritizes these groups for the receipt of
individualized career services and training services. The Departments
encourage States to use a variety of accurate, reliable, and timely
labor market information on which to base analysis and priority of
service. Indeed, priority for use of adult funds can be made using a
variety of available data, in addition to the use of Census data.
However, to minimize the burden for each individual State, the
Departments will not require States to use a particular dataset,
leaving it to the discretion of the States to choose the appropriate
data sources.
Section 676.115 What are the program-specific requirements in the
Unified State Plan for the Adult Education and Family Literacy Act
program authorized under Workforce Innovation and Opportunity Act title
II?
Section 676.115 explains the additional planning requirements to
which the AEFLA program is subject. Section 676.115 contains three
specific program requirements. First, Sec. 676.115(a) restates the
statutory requirement that the eligible agency must explain in its
Unified or Combined State Plan how it will align its adult education
content standards with its State-adopted challenging academic content
standards under the Elementary and Secondary Education Act by July 1,
2016. Second, Sec. 676.115(b)(1) addresses the requirement that States
describe the methods and factors the State will use to award multi-year
grants on a competitive basis to eligible providers. Third, Sec.
676.115(b)(2) requires that States describe the methods and factors
used to provide direct and equitable access to funds using the same
grant or contract announcement or application procedure. Based on
comments, and as discussed further below, the Departments have deleted
proposed regulatory text at Sec. 676.115(c) concerning a requirement
to describe the interoperability of data systems. Deletion of paragraph
(c) is the only substantive change made to this regulatory provision
from that proposed in the NPRM.
Timing of Plan Acceptance and Open Competitions
Comments: Many commenters expressed concern that States may have to
issue requests for proposals (RFPs) for funds before the plans have
been approved. Several commenters said that this would result in an RFP
process that does not address the objectives of the State Plan. Some
commenters asked that the Departments provide an additional transition
year in order to allow for the time necessary for States to receive
State and local plan approval and begin the implementation of the
approved plans, after which the States could run their competitions in
alignment with the approved plans.
Departments' Response: The Departments agree with the commenters'
concerns and recognize the time that is required for State procurement
processes. The ED understands that it would create difficulties to
require States to issue RFPs prior to the State Plan being approved
when the RFPs are intended to be based on the approved State Plan.
Additionally local plans must be in place before the RFP can be issued
so applications for subgrants can be aligned with local plans. The ED
has issued guidance regarding the process for awarding subgrants to
eligible providers authorized under title II, which provides
information regarding the timing of competitions and their alignment
with State and local plans. It is not necessary to address this concern
in the regulation and the regulation is not revised in response to
these comments.
Alignment With State Elementary and Secondary Education Act Standards
Comments: Numerous commenters stated that most States have adopted
the College and Career Readiness Standards for adult education and will
demonstrate in their State Plans how the College and Career Readiness
Standards for adult education align with the standards that State
established under the Elementary and Secondary Education Act of 1965,
as amended (ESEA). These commenters also expressed concern regarding
the unavailability of standards for adult education that focus on
English Language Acquisition. Additionally, commenters raised concerns
about the absence of assessments that measure performance on the
College and Career Readiness Standards for adult education and
recommended that the Departments provide a 3-year transition period
during which States are held accountable based on the available
assessments instruments. A commenter also recommended that the
Departments integrate the English language descriptors into the current
adult education National Reporting System Educational Functioning
Levels descriptors. Finally, another commenter recommended that the
Departments adjust accountability measurements to reflect separate
English Language Acquisition tables in the National Reporting System
from the standard adult basic education (ABE) standards.
Departments' Response: The Departments have reviewed the
commenters' concerns related to having adequate time to establish
English Language Acquisition content standards, as well as the lack of
assessment mechanism to measure adult education content standards. The
ED recognizes that English Language Acquisition content standards do
not yet exist. The ED acknowledges that there are currently no National
Reporting System-approved assessment instruments by which to measure
student progress and achievement in relation to College and Career
Readiness standards. However, based on our review of the comments, it
appears that some commenters might have misunderstood the proposed
requirement pertaining to content standards. The final regulations
require the eligible agency to describe in the Unified State Plan how,
by July 1, 2016, it will align its content standards for adult
education with State-adopted challenging academic standards under the
ESEA. The regulations do not require that the State implement those
standards by July 1, 2016, or that the State implement assessments
aligned to the standards by July 1, 2016. The ED intends to issue
guidance pertaining to the alignment and implementation of standards;
the standards for English language acquisition; and the aligned
assessments for accountability in adult education. Finally, although
the Departments reviewed the comments about the integration of the
English Language Acquisition descriptors into the National Reporting
System and the separation of the accountability measures in the English
Language Acquisition table from the ABE tables, the Departments
concluded that they do not have the statutory authority to address
these in the final regulations. No changes to the regulatory text were
made in response to these comments.
Interoperability of Data Systems
Comments: Numerous commenters sought clarification on the
definition of
[[Page 55808]]
``interoperability.'' Several commenters stated that there is a
national data integration workgroup at the Federal level; and
recommended that, rather than each State expending time and funds to
create an interoperable system, the Departments give the States the
option to await the results of the national data integration workgroup
before creating their State interoperable system.
Commenters stated that, due to the variety in State data systems,
regulations that attempt to implement a ``one size fits all'' approach
are impractical. These commenters recommended that the Departments
convey expectations for interoperability via non-regulatory guidance
(including guidance highlighting existing solutions and offering States
options for reporting this data). A commenter recommended that DOL work
with other Federal agencies to establish minimum national standards for
how integrated data systems should be designed and interface with
existing public systems to support the employment needs of adults and
youth facing barriers to employment. The commenter also urged DOL to
work with other Federal agencies to ensure that integrated data systems
align with existing data being collected on employment, education, and
training services across Federal programs.
A commenter said the requirement for a description of how the State
will ensure interoperability of data systems in the reporting on core
indicators of performance and performance reports is listed only under
the AEFLA title II specific section (Sec. 676.115); however, in the
law, the requirement for such information is listed under sec.
102(b)(2)(C) State Operating Systems and Policies of WIOA. Therefore,
the commenter suggested Sec. 676.115(c) should be moved to Sec.
676.105, General Requirements. Another commenter said the regulations
place the responsibility of ensuring interoperability of data systems
on the title II adult education programs, which is not feasible because
the various data systems are governed under different programs and
frequently by different agencies. The commenter also said the rule
seems to place the burden of supporting the cost of interoperability on
title II adult education programs, which is not equitable because there
will likely be a significant cost to creating such interoperability.
The commenter recommended that the Departments restate this in
regulation as a joint requirement of core programs and any programs
included in a Combined State Plan.
Departments' Response: The Departments agree with commenters'
concerns regarding the complexity of integration, including the amount
of time, planning, and resources necessary to achieve such integration.
The Departments agree with the commenters that the integration and
interoperability of data systems is not limited to title II of WIOA.
The Departments understand that performance and accountability data
collection and systems integration is a long-term process that will
involve additional costs and resources for all programs. The
Departments will review reports from the national data integration
workgroup, as well as information from the planning descriptions
provided by States in the initial State Plan, to inform possible policy
decisions and the development of guidance on this topic. The
Departments also will look into similar data collection and system
integration across Federal agencies that provide employment, education,
and training services.
As a result of these concerns, the Departments have removed the
language proposed in Sec. 676.115(c), and instead have included in the
WIOA State Plan ICR, consistent with sec. 102(b)(2)(C) of WIOA, a
general requirement that States address fiscal and management
accountability information system planning across all of the programs
included in a Unified or Combined State Plan, as required by sec.
116(i)(1) of WIOA.
Direct and Equitable
Comments: Regarding Sec. 676.115(b)(2), which specifies that all
eligible agencies ``will provide direct and equitable access to
funds,'' several commenters said that there is no specific mention of
this requirement in Sec. 676.140, which governs the Combined State
Plan. One commenter sought clarification on whether this was
intentional or an oversight.
Departments' Response: The Departments have reviewed these comments
and agree that the omission of the requirement related to direct and
equitable access of funds in the Combined State Plan was an error. The
Departments have revised Sec. 676.140(e)(1) to include this
requirement in the regulations that address the Combined State Plan.
Request for Guidance
Comments: Several commenters said States should be required to
identify the guidance they will provide to eligible providers for
nominating an adult education representative to the Local WDB that
would represent all eligible providers in the region as well as
communicate board activities.
Departments' Response: The Departments have reviewed the comments
supporting a requirement that States issue guidance for adult education
representation on the Local WDB. States have the authority to issue
such guidance and it is not necessary to revise the regulations to
address this specific need.
Section 676.120 What are the program-specific requirements in the
Unified State Plan for the Employment Service program authorized under
the Wagner-Peyser Act, as amended by Workforce Innovation and
Opportunity Act title III?
Section 676.120 states that Wagner-Peyser Act Employment Service
programs are subject to the requirements in sec. 102(b) of WIOA,
including any additional requirements imposed by the Secretary of Labor
under secs. 102(b)(2)(C)(viii) and 102(b)(2)(D)(iv) of WIOA. This
section requires States to include any information the Secretary of
Labor determines is necessary to administer the Wagner-Peyser Act
Employment Services programs. The Departments have provided additional
information through jointly issued planning guidance and the WIOA State
Plan ICR. Except for the addition of a reference to WIOA sec.
102(b)(2)(D)(iv) and other minor technical edits, this provision
remains substantively the same as that proposed in the NPRM. WIOA sec.
102(b)(2)(D)(iv) refers to Wagner-Peyser Act program-specific
requirements.
Proposed Additional Wagner-Peyser Act Program-Specific Requirements for
State Plans
Comments: A commenter agreed with the proposed requirements
specific to Wagner-Peyser Act Employment Services programs. One
commenter stated that homeless persons should be a prioritized group
for employment services, including those with no income or work
history, and those with a criminal background. Also, this commenter
recommended that serving higher barrier persons be incentivized.
Departments' Response: The Departments agree with the importance of
ensuring that States address the needs of very low income and homeless
populations in the State Plan. As discussed under Sec. 676.105, the
WIOA State Plan ICR, consistent with WIOA, requires that Unified and
Combined State Plans address the needs of individuals with barriers to
employment. As defined in sec. 3(24)(G) of WIOA, an ``individual with a
barrier
[[Page 55809]]
to employment'' includes homeless individuals or homeless children and
youths. However, employment services under the Wagner-Peyser Act are
universal and available to all; the Departments do not have the
authority to prioritize use of Wagner-Peyser Act funds for specific
populations.
Comments: Several commenters said the regulation should require
State workforce agencies to include a clearly defined management
reporting structure for State merit-based employees as part of the
State Plan for each one-stop center to minimize confusion and protect
the systemic integrity of Wagner-Peyser Act services.
Departments' Response: While the Departments recognize the
importance of adhering to merit staffing requirements for Wagner-Peyser
Act services, the Departments decline to require a reporting structure
for merit staff in the regulation or in the WIOA State Plan ICR because
it imposes an unnecessary burden on States. However, a State may elect
to develop such a policy and include it in its State Plan.
Section 676.125 What are the program-specific requirements in the
Unified State Plan for the State Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by Workforce Innovation and Opportunity Act title IV?
Section 676.125 requires States to submit a VR services portion as
part of the Unified State Plan that complies with all State Plan
requirements set forth in sec. 101(a) of the Rehabilitation Act of
1973, as amended by title IV of WIOA. All submission requirements of
the VR Services portion of the Unified State Plan are in addition to
the jointly developed strategic and operational content requirements
prescribed by sec. 102(b) of WIOA. Except for minor technical edits,
this provision remains substantively the same as that proposed in the
NPRM.
Individuals With Disabilities in the VR Program
Comments: A commenter agreed with the requirements specific to the
VR program.
Some commenters stated that there should be greater emphasis on the
VR program in the State Plans. The commenters encouraged Governor-
mandated appointment of disability service providers on State WDBs to
ensure proper representation for the development of this section of the
plan. Similarly, other commenters urged the Departments to encourage
greater inclusion of stakeholders within the disability community in
the development, review, and implementation of the plans. One commenter
further encouraged the Departments to issue guidance that will ensure
that State executives will not ignore or under-represent the workforce
development needs of people with disabilities in the strategic and
operational planning outline in either the Unified or Combined State
Plan.
Departments' Response: In response to the first concern, the
Departments refer commenters to the WIOA State Plan ICR where the VR
program is addressed at length in Section VI Program-Specific
Requirements for Core State Plan Programs. This section overviews the
descriptions and estimates that must be included in the VR Services
Portion of a State Plan, as required by sec. 101(a) of the
Rehabilitation act of 1973, as amended by WIOA, and sec.
102(b)(2)(D)(iii) of WIOA. State WDB membership requirements are
addressed in 20 CFR 679.110 (see DOL WIOA Final Rule published
elsewhere in this issue of the Federal Register). The Departments also
note that beyond these requirements, the constitution of State WDBs and
their membership has been left to the States. Although State Plans must
include a State WDB Membership Roster and a list of Board activities as
described in sec. III(b)(3)(B) of the WIOA State Plan ICR, the
Departments have concluded that it is unnecessary to include additional
regulatory text. With regard to greater stakeholder involvement in the
review and implementation of State Plans, Sec. Sec. 676.130(d) and
676.143(c), already require that States provide an opportunity for
comment on and input into the development of a State Plan from
representatives of Local WDBs and CEOs, businesses, labor
organizations, institutions of higher education, other stakeholders
with an interest in the services provided by the six core programs, and
the general public, including individuals with disabilities. Thus,
stakeholders with disabilities are required to have opportunity to
engage in the development of State Plans. Finally, sec. 102(b) of WIOA
and the WIOA State Plan ICR require the State to address the needs of
individuals with barriers to employment within the State Plan's
Strategic Vision and Goals and Operational Planning Elements. According
to WIOA sec. 3(24), the term ``individual with a barrier to
employment'' includes individuals with disabilities, including youth
who are individuals with disabilities.
Interagency Cooperation
Comments: A commenter said the Departments should make explicit the
importance of including State developmental disabilities agencies in
cooperative agreements regarding individuals eligible for home and
community-based waiver programs. Another commenter stated that, in
addition to the cooperative agreement between VR and the State
developmental disabilities agency, State Plans should be required to
contain a cooperative agreement between Medicaid and the State mental
health agency in order to promote effective collaboration between State
agencies.
Departments' Response: While not stated in the regulation itself,
the WIOA State Plan ICR describes how a State will incorporate
interagency cooperation between VR and other State agencies providing
assistance to or serving individuals with disabilities. In the WIOA
State Plan ICR, consistent with sec. 101(a)(11) of the Rehabilitation
Act, as amended by title IV of WIOA, the VR agency must describe the
collaboration between the responsible State agency administering the
State Medicaid plan, the State agency serving individuals with
developmental disabilities, and the State agency responsible for
providing mental health services. Nothing in this requirement restricts
collaboration between agencies, as the goal is to develop opportunities
for competitive integrated employment to the greatest extent possible.
A more detailed discussion of the collaboration between the VR agency
and other agencies serving individuals with disabilities is provided in
ED's Final Rule related to the VR program published elsewhere in this
issue of the Federal Register.
VR Program's Order of Selection
Comments: One commenter referenced a proposal to give State VR
agencies operating under an Order of Selection the option to indicate
that they will serve eligible individuals with disabilities outside the
Order of Selection who have an immediate need for equipment or services
to maintain employment. The commenter requested clarification in
determining what services or equipment is allowed to be provided if
identified as an immediate need if the individual is in jeopardy of
losing his or her job.
Departments' Response: Section 101(a)(5)(D) of the Rehabilitation
Act of 1973, as amended, indicates that State Plans shall, under an
Order of Selection, permit the State, in its discretion, to elect to
serve eligible individuals who
[[Page 55810]]
require specific services or equipment to maintain employment. The WIOA
State Plan ICR allows for the VR program to identify whether it will
serve eligible individuals with disabilities outside the Order of
Selection who has an immediate need for equipment or services to
maintain employment. Services or equipment provided to eligible
individuals under these circumstances must be determined on an
individual basis according to the employee's need required to maintain
employment, consistent with the Individualized Plan for Employment. A
much more detailed discussion of this issue is provided in ED's Final
Rule covering the VR program published elsewhere in this issue of the
Federal Register.
Records and Data Collection
Comments: A commenter said the Departments should identify ways to
allow State VR agencies to gain ready access to Federal employment
data, such as the data that are available through the Federal
Employment Data Exchange System funded by DOL.
Departments' Response: The Departments addressed this issue through
the WIOA State Plan ICR process. Section III(b)(6)(A) of the WIOA State
Plan ICR states that State agencies responsible for the administration
of core programs (such as the VR program) shall describe plans to align
and integrate available workforce and educational data systems for the
core programs, unemployment insurance (UI) programs, and education
through postsecondary education. This directive provides sufficient
identification of the opportunities available to States to incorporate
both State and Federal data into their State programs. For this reason,
no changes to the regulatory text were made in response to this
comment.
Independent Living for Older Individuals Who Are Blind Program
Comments: A couple of commenters opposed eliminating a requirement
in the State Plan for the Independent Living for Older Individuals who
are Blind program, stating that this elimination constitutes a great
disservice to older persons with vision loss. The commenters
recommended that an Independent Living for Older Individuals who are
Blind section be added to the VR section of the Unified or Combined
State Plans.
Departments' Response: The Independent Living for Older Individuals
who are Blind program is covered under title VII of the Rehabilitation
Act of 1973, as amended by WIOA, and is not among the six core programs
that must submit a Unified State Plan pursuant to sec. 102 of WIOA. The
VR services portion of the Unified or Combined State Plan is similar in
content to the standalone VR State Plans that were submitted prior to
the passage of WIOA and covers only the VR program requirements of
title I of the Rehabilitation Act, as amended by WIOA. The Independent
Living for Older Individuals who are Blind program requires submission
of an application with assurances every 3 years that complies with the
requirements for that program as set forth in title VII of the
Rehabilitation Act, as amended by WIOA. A detailed discussion of the
Independent Living Services for Older Individuals Who are Blind program
(34 CFR part 367) is provided in ED's Final Rule of WIOA Miscellaneous
Programs published elsewhere in this issue of the Federal Register.
Section 676.130 What is the development, submission, and approval
process of the Unified State Plan?
In order to facilitate the State strategic planning process, and
concurrent review by the relevant Federal program offices, this section
requires the Unified State Plan to be submitted to the Secretary of
Labor, according to the procedures established in sec. 102(c) of WIOA,
which are clarified and explained through joint planning guidelines.
Likewise, the Departments, upon receipt of a Unified State Plan, follow
procedures established by this section. Section 676.130 also explains
requirements for transparency, public comment, and submission, as well
as the terms for approval of plans by the Secretaries of Labor and
Education.
Section 676.130(a) requires that the Unified State Plan be
submitted in accordance with the procedures set out in the joint
planning guidelines, issued by the Secretaries of Labor and Education,
which explains the submission and approval process described in sec.
102(c) of WIOA.
Sections 676.130(b)(1) and (2) reiterate the requirement at sec.
102(c)(1) of WIOA regarding the deadlines for submitting the initial
and subsequent Unified State Plans to the Departments. The Departments
developed a process for submission of Unified State Plans to ensure
that ED receives the entire Unified State Plan submission concurrently.
WIOA secs. 102(c)(1)(A) and 103(b)(1) require States to submit the
initial Unified or Combined State Plan no later than 120 days prior to
the commencement of the second full program year after the date of
enactment (i.e., July 1, 2016), making the statutory submission date
for the initial Unified or Combined State Plan March 3, 2016. However,
pursuant to the orderly transition authority in sec. 503 of WIOA, the
Departments considered the initial Unified or Combined State Plans
timely if submitted by April 1, 2016.
Section 102(c)(1)(B) of WIOA requires subsequent Unified State
Plans to be submitted not later than 120 days prior to the end of the
4-year period covered by the preceding Unified State Plan. In other
words, WIOA Unified State Plans cover 4-year periods, and the
subsequent plan must be submitted no later than 120 days before
existing plan's 4-year period ends. The Departments have made
clarifying edits to the regulatory text in Sec. 676.130(b)(2) to more
clearly align it with these statutory requirements. The Departments
anticipate that the second Unified State Plans will need to be
submitted in the spring of 2020. The official submission dates for the
plans will be announced in the joint planning guidelines.
Section 676.130(b)(3) clarifies that, consistent with current
practice for many of the core programs, a program year runs from July 1
through June 30 of any year. This clarification is particularly
important, in this context, for the VR program since that program
operates on a Federal fiscal year basis and will continue to do so, in
accordance with title I of the Rehabilitation Act of 1973, despite the
fact that the VR services portion of the Unified State Plan will align,
for submission and performance purposes, with the other partners on a
program year basis.
In order to more accurately reflect the content of Sec. 676.130,
the Departments have made a change to the title to include the word
``development.'' Additionally, in response to comments, described
below, requesting clarity regarding the role of the State WDB, core
program administrators and required one-stop partners, the Departments
have added Sec. 676.130(c). This additional paragraph explains the
statutory requirement that the Unified State Plan must be developed
with the assistance of the State WDB and must be developed in
coordination with administrators with optimum policy-making authority
for the core programs and required one-stop partners. The term
``optimum policy-making authority'' is defined in 20 CFR 679.120 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.'' See DOL WIOA Final
[[Page 55811]]
Rule published elsewhere in this issue of the Federal Register.
Accordingly, Sec. 676.130(c) through (h) have been renumbered at Sec.
676.130(d) through (i). Other than these changes to paragraph (b)(2),
the addition of paragraph (c), and the edit to paragraph (h) discussed
below, no changes to the regulatory text have been made.
Deadlines
Comments: The Departments received a comment that supported the
timeline for developing initial Unified State Plans. Several commenters
requested clarification about the definition of program year, specified
in Sec. 676.130(b)(3), as it applies to VR, noting that the VR program
operates on a Federal fiscal year. A couple commenters said the
specified program year may put additional administrative burden and
costs, especially in the startup, on State VR agencies. A commenter
said the VR agencies should continue to report as they currently do.
Due to the difference in fiscal year versus program year, one commenter
recommended that the VR program be transferred to DOL to ensure
seamless coordination of workforce activity at the Federal and State
level and to ensure that the States operate unified, integrated
programs. However, other commenters said it is unclear whether the
change in program will be a burden for State VR agencies. In fact, one
commenter anticipated a benefit for aligning State match, fiscal
planning, and managing funds. One of these commenters said that ED
should survey State VR agencies to see if this will prove to be a
burden or an issue for administration of the State Plan.
A commenter remarked that performance data and plans will be on the
program year basis and that Federal awards and reporting will remain on
the fiscal year basis. The commenter sought clarification as to how
reporting and performance timeframes will be integrated.
Departments' Response: The Departments acknowledge the concerns
expressed by commenters. The VR program will utilize a program year,
according to the Sec. 676.130(b)(3) definition, for the purposes of
reporting performance and identifying its goals and priorities as part
of the VR portion of the Unified or Combined State Plan. Since data
will be collected quarterly, RSA will have the flexibility to report
performance data for each of the VR agencies for both the program year
and the fiscal year. The Departments have not concluded that this will
cause any additional burden to the VR agencies for the development of
the VR portion of the State Plan, in particular, to establish and
evaluate the State's performance measures. Further guidance about
performance reporting for VR agencies will be provided in the final ICR
for the RSA-911 report. Fiscally, the VR agencies will continue to
operate on a Federal fiscal year basis as required statutorily pursuant
to secs. 110 and 111 of the Rehabilitation Act of 1973, as amended. The
WIOA State Plan ICR Appendix 1 clarifies what performance information
States must include in the State Plan. The Departments provided further
instructions through the WIOA Joint Performance ICR, the WIOA State
Plan ICR, and related joint guidance. Finally, WIOA does not authorize
the VR program to move to DOL.
Stakeholder Involvement
Comments: Numerous commenters expressed concern about having
adequate voice and input into the State Plan development process, and a
number of commenters requested stronger or clearer regulation on who
must be involved in the State Plan development process. Commenters said
the Departments should require a role in the planning process for core
programs, one-stop partners, State and Local WDBs, and CEOs, among
other entities.
Departments' Response: Although WIOA requires an inclusive planning
process, and there are many references to inclusiveness in planning and
program implementation throughout the Joint WIOA Final Rule, the
Departments considered these comments and agree. The Joint WIOA Final
Rule will continue to emphasize inclusiveness in planning and program
implementation and will further benefit from a more explicit statement
of the entities required to participate in the development of Unified
State Plans. In response to the comments, the Departments have added
regulatory text in a new paragraph (c) to Sec. 676.130 to clarify that
Unified State Plans must be developed with the assistance of the State
WDB and in coordination with administrators with optimum policy-making
authority for the core programs and required one-stop partners. In
addition, to ensure consistency, the Departments have added regulatory
text in a new paragraph (d)(3)(v) of Sec. 676.105, discussed above,
requiring that the Unified Plans include a ``description of joint
planning and coordination across core programs, required one-stop
partner programs and other programs and activities included in the
Unified Plan.'' The Departments also have revised the title of Sec.
676.130 to include the word ``development'' to clarify that this
section describes the development of the Unified State Plan, as well as
submission and approval. These changes are reflected in the WIOA State
Plan ICR.
Collaboration and Input Into the Plan Process
Comments: A couple of commenters recommended that States should
include title II adult education partners, as well as other immigrant-
serving organizations, in their WIOA planning. A few commenters
suggested that refugee programs and service providers be included in
planning at the State and Local level and that the Departments should
emphasize in the regulation's discussion of local governance the
importance of providing expertise in serving linguistically and
culturally diverse populations. Some commenters noted several
organizations should have input into the development of State Plans,
including: quality credentialing organizations, immigrant-serving
organizations, State and local human service agencies, community and
technical colleges, nonprofit community-based and nontraditional
service providers, and State Departments of Education.
Departments' Response: The Departments considered these comments
and note that collaboration in the planning process for Unified and
Combined Plans is required of title II adult education program partners
as they are among the core programs included in all plans. The WIOA
State Plan ICR enables States to include human services, faith- and
community-based organizations, and educational institutions in the
State Plan, as well as other Federal programs, particularly as part of
a discussion of innovative partnerships with the one-stop delivery
system. These types of organizations may include immigrant-serving
organizations and refugee programs. No change to the regulatory text
was made in response to these comments.
Public Comment and Availability of Information
Comments: One commenter said the rule should reaffirm that, as one
of its responsibilities, the State WDB must provide an environment for
State Plan development that is conducive to participation and receptive
to input. Further, this commenter stated that States should be required
to describe how they will make this process accessible to individuals
with disabilities.
Departments' Response: The State must provide an opportunity for
comment and input into the State Plan. Furthermore, the Departments
agree that
[[Page 55812]]
the public comment process must be accessible to all concerned
organizations and individuals, including individuals with disabilities.
As described in Sec. 676.130(d)(1), the State must provide an
opportunity for public comment on and input into the development of the
Unified State Plan prior to its submission which includes an
opportunity for comment by representatives of Local WDBs and CEOs,
businesses, representatives of labor organizations, community-based
organizations, adult education providers, institutions of higher
education, other stakeholders with an interest in the services provided
by the six core programs, and the general public, including individuals
with disabilities. Further, as discussed earlier, the WIOA State Plan
ICR, consistent with WIOA, requires the State to address the needs of
individuals with barriers to employment including the needs of English
language learners.
Comments: Several commenters stated that the consultation
requirement should accommodate Single States that have only a volunteer
State WDB and no Local WDB to consult.
Departments' Response: Although single-area States have no Local
WDB to consult, they still have stakeholders, including CEOs. In
accordance with Sec. 676.130(d)(1), single-area States must provide an
opportunity for comment by CEOs and other stakeholders as a part of the
opportunity for public comment on State Plans, which includes local
officials and local stakeholders.
Comments: A couple commenters recommended a minimum notice period
of 90 days for the opportunity for public comment on the development of
the Unified State Plan. A commenter urged the Departments to require
that States publicly post the plan electronically and that the
Departments themselves create an electronic database where States,
policy makers, advocates, and the general public can access all of the
plans.
Departments' Response: The Departments have reviewed these comments
and decline to set a number of days for public comment of Unified State
Plans, leaving the decision of schedules for public comment and posting
plans electronically to the discretion of the States. Many States' laws
require a minimum number of days for public comment, and many States
use online posting as a way of making the plans available for public
comment. While the Departments are not adding a regulation regarding an
electronic database, the Departments provide a centralized online
access point for completed State Plans.
Review and Approval of Unified State Plans
Comments: A commenter stated that WIOA indicates that approval of
the Unified State Plan will occur within 90 days after submission, but
the NPRM stated that it will occur within 90 days of receipt. The
commenter recommended a revision to the language making the terminology
for establishing the timeframe for review and approval of plans be
consistent and that a definition be provided for determining that start
date.
Departments' Response: The Departments decline to change the
regulatory text and retain the use of the word ``receipt'' in the
renumbered Sec. 676.130(h) in order to allow the Departments to have a
full 90 days to review the plan in the event of any delay in
transmission of the plan from the State to the Departments. However,
the Departments have replaced the words ``by the appropriate
Secretary'' in paragraph (h) with ``the Secretary of Labor,'' to
clarify that the 90-day review period begins upon receipt of the plan
by the Secretary of Labor. This wording is more closely aligned with
the statute, at WIOA sec. 102(c)(1). As stated in paragraph (e) of this
section, immediately upon receipt of a Unified State Plan from a State,
the Secretary of Labor will ensure that the entire Unified State Plan
is submitted to the Secretary of Education pursuant to a process
developed by the Secretaries. At that point, the Secretaries will begin
their review.
Comments: Several commenters said States whose Unified State Plans
are rejected should be given detailed reasons why in writing so those
States can focus on areas that need improvement.
Departments' Response: As a part of the approval process, the
Departments intend to provide States with detailed reasons in writing
if a plan is not approvable.
Comments: A few commenters asserted that there was lack of clarity
in the NPRM regarding whether the Unified Plan submission process will
change. These commenters recommended that DOL issue a TEGL on the
submission process of the Unified Plan. Similarly, a commenter said
more guidance is needed to understand how this process will work and
differ from previous Unified Plan submissions.
Departments' Response: The Departments considered these comments
and agree that additional guidance will assist States in understanding
the submission and approval process for Unified State Plans. The
Departments issued joint guidance, which describes the submission
process in greater detail. This joint guidance included TEGL No. 14-15,
``Workforce Innovation and Opportunity Act (WIOA) Requirements for
Unified and Combined State Plans,'' issued to DOL grantees, a Program
Memorandum issued to AEFLA grantees, and a Policy Directive issued to
VR program grantees, all of which contained identical content.
Rehabilitation Services Administration Approval of Plan
The renumbered Sec. 676.130(g) states that before the Secretary of
Labor and the Secretary of Education approve the Unified State Plan,
the VR portion of the Unified State Plan must be approved by the
Commissioner of the Rehabilitation Services Administration (RSA).
Comments: Several commenters requested clarification on whether the
90-day approval timeframe for the entire plan starts when the VR
portion of the Unified State Plan is approved by the RSA Commissioner
or when it is subsequently forwarded to the ED and DOL Secretaries for
approval. A commenter suggested that the regulation require a timeline
for the Commissioner of RSA to approve or disapprove the VR portion of
the Unified State Plan.
Departments' Response: The 90-day review timeframe, which begins
upon receipt of the State Plan by DOL, includes RSA Commissioner review
and approval. The VR program is an ED program, and ED's and DOL's
reviews of plan submissions are concurrent. However, the approval of
the VR services portion of the plan by the RSA Commissioner must occur
first, after which the plan, if it complies with all of the other
requirements, will be officially approved by the Secretaries of Labor
and Education. The Secretaries of Labor and Education have developed a
process to ensure that both Departments receive the entire Unified
State Plan submission concurrently to ensure timely review. The
Departments have concluded that the existing regulatory text and
preamble place adequate emphasis on the timely concurrent reviews of
the plans by the Departments and no changes to the regulatory text were
made in response to these comments.
Comments: Some commenters asked whether it is the responsibility of
the State VR agencies or the Secretaries of Labor and Education to
obtain approval from the RSA Commissioner. One of these commenters
stated that placing the responsibility on VR agencies to ensure that
this review is done
[[Page 55813]]
(especially before submission of the plan to the Secretaries by the
States) would be an unfair burden to place on VR agencies and States.
This commenter further asked when the deadline is for the submittal of
the VR portion of the State Plan to the RSA Commissioner, if it is the
responsibility of State VR agencies to submit and obtain approval of
the VR portion of the plan by the RSA Commissioner prior to submission
to the Secretary of Labor.
Departments' Response: It is not the State VR agencies'
responsibility to submit and obtain approval of the VR portion of the
State Plan prior to submitting the Unified Plan to the Departments.
Rather, the entire Unified State Plan, including the VR services
portion of that Plan, should be submitted to the Departments, and the
review and approval by the RSA commissioner will take place following
that submission as a part of the 90-day Federal review of the plan. The
ED, including RSA, and DOL will work together to ensure the timely
review and approval of all portions of the State Plans, including the
VR services portion. The Departments have developed a process for
submission of Unified State Plans to ensure that the Departments of
Labor and Education, including the RSA Commissioner, receive the entire
Unified State Plan submission concurrently. The Departments have
concluded that the existing regulatory text and preamble place adequate
emphasis on the timely concurrent reviews of the plans by the
Departments.
Comments: Some commenters requested clarification on what happens
to the full Unified State Plan if the RSA Commissioner does not approve
the VR portion of the State Plan.
Departments' Response: Approval of the Unified State Plan requires
that the requirements of all core programs are met, including the
requirements for the VR portion of the State Plan. No change to the
regulatory text was made in response to these comments.
Guidance on Submission and Approval Process
Comments: Several commenters provided suggestions for potential
joint guidance from the Departments and how the guidance should
influence the submission and approval process for Unified State Plans.
Some commenters recommended that the Departments issue guidance that
provides recommendations for how States can develop appropriate
outreach and engagement strategies for stakeholders. One commenter said
the Departments should issue guidance that addresses whether the VR
agency should hold separate public meetings on their portion of the
State Plan or schedule a unified public meeting for the entire State
Plan. One commenter welcomed guidance from the Departments that advises
State and local areas on whether to submit workforce plans that cover
additional workforce related programs besides the six core programs.
Numerous commenters requested that any guidance from the
Departments that provides further details on the submission of the
State Plans be released as early as possible. A few commenters said
States may be waiting for guidance from the agencies before beginning
their planning processes in earnest, which may cause some States to
bypass key opportunities for stakeholder engagement or forgo pursuing a
Combined State Plan in an effort to meet the statutory deadlines for
plan submission.
A commenter said it would be useful if the Departments provided a
template for the Unified and Combined State Plans, ideally several
months before the plan is due. The commenter also said ensuring that
the templates are available at least several months ahead of the
submission deadline would make the process of completing the plan much
more efficient for States.
Departments' Response: The Departments issued joint planning
guidelines that address these and other topics regarding State Plan
development, submission, and approval and the requirements of the WIOA
State Plan ICR. For example TEGL No. 14-15, ``Workforce Innovation and
Opportunity Act (WIOA) Requirements for Unified and Combined State
Plans,'' was issued on March 4, 2016. The ED issued identical guidance
to its grantees via Program Memorandum OCTAE 16-1 (http://www2.ed.gov/about/offices/list/ovae/wioa-16-1.pdf) and RSA-PD-16-03 (http://www2.ed.gov/policy/speced/guid/rsa/pd/2016/pd-16-03.pdf) on March 9,
2016. VR agencies must still meet the requirements for public
participation prior to the submission or amendment of a State Plan in
accordance with 34 CFR 361.20. Although not commonly referred to as a
template, the WIOA State Plan ICR is a detailed and comprehensive set
of requirements for developing and submitting State Plans. In addition
to the written joint guidance, the Departments also have presented
multiple webinars on the development and submission of the State Plans.
No change to the regulatory text was made in response to these
comments.
Section 676.135 What are the requirements for modification of the
Unified State Plan?
Given the multi-year life of the Unified State Plan, States must
revisit regularly State Plan strategies and recalibrate these
strategies to respond to the changing economic conditions and workforce
needs of the State. At a minimum, a State is required to submit
modifications to its Unified State Plan at the end of the first 2-year
period of any 4-year plan and also under other specific circumstances,
examples of which have been included in this section. States may choose
to submit a State Plan modification at any time during the life of the
plan. Section 676.135 further describes the requirements for submission
and approval of Unified State Plan modifications, which are subject to
the same public review and comment requirements and approval process as
the full Unified State Plan submissions.
Except for minor technical edits, such as corrections to cross-
references to other sections that have been renumbered and edits to
conform with changes to part 677 on the performance accountability
system, this section remains substantively the same as that proposed in
the NPRM.
Timeframe for Unified Plan Modifications
Comments: One commenter supported the 2-year timeline for modifying
initial Unified State Plans specified in Sec. 676.135(a). Another
commenter said Federal agencies should use the State Unified Plan
timeframe for submitting mandatory modifications to review the
regulatory framework and other guidance under which WIOA is initially
implemented. The Departments, this commenter continued, should use this
time to review how the challenges and opportunities involved in WIOA's
implementation have evolved.
Departments' Response: The Departments considered this comment and
agree. The Departments intend to update existing and future
regulations, ICRs, and guidance as appropriate and as needed for the
continued effective implementation of WIOA.
Unified State Plan Modification Requirements
Comments: Regarding proposed Sec. 676.135(b), several commenters
stated that modifications to State Plans only should be necessary in
the event of significant or substantial changes in labor market and
economic conditions or other factors significantly affecting
implementation of the plan.
[[Page 55814]]
Departments' Response: The Departments recognize the balance
between the benefit of periodic modifications of State Plans and the
potential burden of submitting State Plan modifications beyond those
required at the end of the first 2-year period. The Departments agree
that periodic review of State Plans aids in the continual update and
improvement of State policies and that State Plan modifications other
than those required at the end of the first 2-year period should be
required only in the event of substantial changes impacting the plan.
Paragraph (b) of Sec. 676.135, which is consistent with WIOA, requires
States to submit modifications at the end of the first 2-year period,
and these modifications must reflect changes in labor market and
economic conditions. Other than this 2-year modification, States are
required to submit modifications only when changes in Federal or State
law or policy substantially affect the strategies, goals, and
priorities upon which the Unified State Plan is based, or when there
are changes in the statewide vision, strategies, policies, State
negotiated levels of performance (see Sec. 677.170(b) of this Joint
WIOA Final Rule), the methodology used to determine local allocation of
funds, reorganizations which change the working relationship with
system employees, changes in organizational responsibilities, changes
to the membership structure of the State WDB or alternative entity, and
similar substantial changes to the State's workforce investment system.
Public Comment on Unified State Plan Modifications
Comments: Several commenters stated that the VR regulations in 34
CFR part 361 already address when public comments are needed in the
State Plan modification process. Specifically, any change to the VR
portion of the State Plan that directly affects the provision of
services, such as Order of Selection or the imposition of a financial
needs test, would require public review and input before such a change
is made. These commenters recommended that the Joint WIOA Final Rule
here reflect the same high threshold for public comments on State Plan
modifications for the other five core programs.
Departments' Response: Paragraph (c) of Sec. 676.135 contains the
same public review and comment requirements for all modifications to
Unified State Plans as those for the development of initial Unified
State Plans specified in Sec. 676.130(d). In addition, States must
adhere to any program-specific requirements for the core programs
included in the State Plan, such as sec.101(a) of the Rehabilitation
Act of 1973, as amended, and its implementing regulations under 34 CFR
361.10 and 361.20. The Departments do not require that the entire plan
be subject to the program-specific public comment requirements of the
VR rules in 34 CFR part 361. However, the Departments plan to issue
further guidance regarding State Plan modifications.
Comments: Some commenters said States should have the flexibility
to define what constitutes a major change, as plan modifications
necessitated by minor changes are burdensome and expend valuable
resources. One commenter stated that there was no definition of
``substantial change'' provided in the NPRM and suggested that the
threshold for ``substantive change'' in proposed 34 CFR 361.20(a)(2) be
used in the Joint WIOA Final Rule. Another commenter said ``substantial
change'' should be defined as a change that involves a substantive
change to service delivery or participating partners or substantial
fiscal impact.
Departments' Response: The Departments agree that State Plan
modifications other than those required after the first 2-year period
for State Plans should be limited in order to avoid undue burden.
However, the Departments also want to ensure State Plans are up to date
and that States periodically review State Plans. Sections 676.135(b)(2)
and (3) describe the circumstances where a Unified State Plan
modification is required (other than at the first 2-year period).
States are required to modify State Plans when changes in Federal or
State law or policy substantially affect the strategies, goals, and
priorities upon which the Unified State Plan is based; or when there
are changes in the statewide vision, strategies, policies, State
negotiated levels of performance, the methodology used to determine
local allocation of funds, reorganizations which change the working
relationship with system employees, changes in organizational
responsibilities, changes to the membership structure of the State WDB
or alternative entity, and similar substantial changes to the State's
workforce development system. The Departments have not defined the term
``substantial change'' in this regulation and have instead outlined in
the regulation the specific situations where modifications of Unified
State Plans are required.
Section 676.140 What are the general requirements for submitting a
Combined State Plan?
States have the option to submit a Combined State Plan that goes
beyond the core programs of a Unified State Plan to include at least
one additional Federal workforce, educational, or social service
program from the programs identified in sec. 103(a)(2) of WIOA.
Generally, the requirements for a Combined State Plan include the
requirements for the Unified State Plan as well as the program-specific
requirements for any Combined State Plan partner programs that are
included in the Combined State Plan. To expand the benefits of cross-
program strategic planning, increase alignment among State programs,
and improve service integration, the Departments strongly encourage
States to submit Combined State Plans.
Section 676.140 specifies the general requirements for submitting a
Combined State Plan. Paragraph (a) of Sec. 676.140 states that a State
may choose to develop and submit a 4-year Combined State Plan in lieu
of the Unified State Plan. The Departments have edited Sec.
676.140(a), as well as Sec. 676.140(e)(1), to correctly cite
references to Unified State Plan requirements that must be included in
a Combined State Plan. Paragraph (e) of Sec. 676.140 specifies the
information that a Combined Plan must contain. Paragraph (e)(2) of
Sec. 676.140 has been edited to include the words ``and activities,''
to clarify that the Combined Plan must provide the required information
for any programs and activities included in the State Plan. Section
676.140(e)(3), consistent with WIOA, has been revised to expand the
required description of joint planning and coordination to include core
programs, required one-stop partner programs and other programs and
activities included in the State Plan. Section 676.140(i) is a new
paragraph that requires States that submit employment and training
activities carried out by HUD under a Combined State Plan to submit any
other required planning documents for HUD programs directly to HUD,
according to the requirements of Federal law and regulations. Except
for the changes described here, this section remains unchanged from
that proposed in the NPRM.
Comments: One commenter said planning and implementation must be a
thoughtful process, and system transformation cannot be rushed. This
same commenter also said there should be increased interagency
collaboration between the Departments. Specifically,
[[Page 55815]]
the commenter stated that there should be more incentives for programs
within the two Departments to be included in a Combined State Plan.
Departments' Response: The Departments considered these comments
but did not make changes to the regulatory text based on them. The
Departments agree that planning and implementation must be thoughtful
processes and that system transformation is an ongoing process. WIOA
does not authorize incentives for States submitting a Combined State
Plan. However, the Departments encourage States to be as inclusive as
possible in their State Plans because joint planning across programs,
including between those in the two Departments, fosters greater
alignment and coordination of services.
Planning Cycles
Section 676.140(a) allows States to choose to develop and submit a
4-year Combined State Plan in lieu of the Unified State Plan. In the
NPRM, the Departments note that the Combined Plan's 4-year plan
development and implementation cycle, with a 2-year modification
deadline, is inconsistent with the planning cycles governing many
Combined State Plan partner programs. The Departments sought comment on
how to reconcile differing planning cycles across Combined State Plan
partner programs that do not align with the 4-year planning required by
WIOA. In response, commenters provided various recommendations.
Comments: A few commenters said an approved Combined State Plan
should suffice to meet the planning requirements of Combined State Plan
partner programs and that Federal agencies should address the issues of
differing planning cycles at the Federal level through executive
actions. Another commenter said the Departments should require Combined
State Plan partner programs to describe their planning cycles for the
upcoming 4 years, and to include when during the next 4 years they may
need to submit modifications to their part of the Combined State Plan.
Similarly, two commenters suggested that the Combined State Plan report
on the progress of the mid-cycle plan submitted by the Combined State
Plan partner program(s) and include language on how the Combined State
Plan partner program's submitted plan includes integration with WIOA
programs.
Departments' Response: WIOA does not authorize the Departments to
change the planning requirements, including submission deadlines that
are under other authorizing legislation. However, WIOA gives the States
the ability to apply the 2-year WIOA modification provisions to the
Combined State Plan partner programs included in the plan in addition
to any modification timeline or interval required by the statute
governing the Combined State Plan partner program as long as they do
not overwrite those programs' required timelines. The Departments have
concluded that for any Combined State Plan partner program included in
the plan with a different planning cycle from WIOA, States should
submit program-specific modifications that align with the natural
planning cycles for that specific program, unless the 2-year WIOA
modification cycle can accommodate that program's planning and
modification cycle. For example, if a State chooses to include CTE
programs under the Carl D. Perkins Career and Technical Education Act
of 2006 (Perkins Act), as a part of its Combined State Plan, the State
would submit plan modifications annually to align with Perkins' annual
State Plan cycle. As another example, the TANF authorizing statute
requires a State to have submitted a plan within 27 months of the end
of the first fiscal quarter in order to receive TANF funds for that
fiscal year. Accordingly, adopting the more frequent 2-year WIOA cycle
for modifications should accommodate TANF's cycle, allowing a State to
make all changes to each portion of the Combined State Plan
concurrently. The State must submit such modifications to the relevant
Secretary for that program, as well as to the Departments of Labor and
Education. Special instructions apply to UI State Quality Service Plan
and to JVSG as described below. The Departments have developed a
process for submission of Combined State Plans that ensures that all
relevant Secretaries receive the plan concurrently and, as part of this
system, the Departments anticipate that State Plan modifications will
be housed in an accessible format with that State's original State
Plan. The State may choose to describe the planning cycles of the
Combined State Plan partner programs that are included in the State
Plan, and the State also may describe intentions to submit future
modifications to comply with those planning cycles; however, in order
to minimize burden, the Departments have chosen not to require these
descriptions through regulation or through the WIOA State Plan ICR.
States that include, in their Combined State Plan, UI programs (UI
Federal-State programs administered under State unemployment
compensation laws in accordance with applicable Federal law) carried
out under title III, sec. 302, of the Social Security Act including
secs. 303(a)(8) and (9) which govern the expenditure of funds, should
submit their UI State Quality Service Plan following the cycle,
according to UI State Quality Service Plan Planning and Reporting
Guidelines.
The JVSG programs, carried out under chapter 41 of title 38 of the
U.S. Code, require both a JVSG State Plan and a separate annual
application for funding. States that include the JVSG programs in their
Combined State Plan must submit the JVSG State Plan information in
their Combined State Plan, and submit their funding applications
annually as required by current Veterans' Employment and Training
Service guidance.
Comments: One commenter said the bifurcated nature of the WIOA
State Plans could be adapted to allow non-WIOA programs to participate
in the strategic portion of the planning process, even if they cannot
fully align their budgets and operational plans with a 2- or 4-year
operational plan. A commenter suggested that the Departments issue
guidance on how States can incorporate existing and aligned planned
activity with WIOA funded programs, as well as other related programs.
The commenter concluded that several agencies that administer the
Combined State Plan partner programs permitted have plans that align
with partners outside of the six core programs, and States and local
areas need a method of aligning existing effective plans. A commenter
recommended adding Social Security Administration's Ticket to Work as a
workforce program in the Combined State Plan. A commenter urged DOL to
work closely with the Department of Justice to outline additional
recommendations and considerations within guidance for working
specifically with the Second Chance Act partners and State Departments
of Corrections.
Departments' Response: The Departments received similar comments,
in response to Sec. 676.130, regarding the inclusion of program
partners beyond the core programs and required one-stop partners in the
development of the Unified Plan. As already discussed in the context of
Unified Plans in the preamble section that discusses Sec. 676.130, the
WIOA State Plan ICR, consistent with secs. 102 and 103 of WIOA, allows
States to include programs beyond the core programs, required one-stop
partners, and Combined State Plan partner programs in a Combined State
Plan. This is particularly true in the context of a discussion of
innovative partnerships with the one-stop delivery
[[Page 55816]]
system. These partners and programs could include human services,
faith- and community-based organizations, educational institutions, and
Federal programs not listed among the Combined Plan programs. These
programs may be incorporated into the strategic portion of the planning
process. As mentioned in the introduction, the Departments issued joint
guidance to facilitate the inclusion of innovative partnerships and to
foster alignment across partner programs outside of WIOA's core
programs. States also are encouraged to utilize technical assistance,
as the specific dynamics across program partners within States will
vary. Because sec. 103 of WIOA provides an exclusive list of Combined
State Plan partner programs, the Departments do not have the authority
to expand the statutory list of Combined State Plan partner programs
for inclusion in Combined State Plans.
Comments: One commenter said the Departments should keep the
approval of the core programs separate from the approval of Combined
State Plan partner programs, such that the implementation of what would
otherwise be an approved Unified State Plan is not impacted or held up
by decisions on Combined State Plan partner program cycles.
Departments' Response: The Departments agree with this comment and
have added text to Sec. 676.143(h) to clarify that approval or
disapproval of Combined State Plan portions covering Combined State
Plan partner programs does not impact approval of the common sections
of the plan which cover the core programs. This change will be
discussed in more detail in the preamble related to that section. The
portions of the Combined State Plan related to the core programs are
subject to the same approval requirements applicable to the Unified
State Plan (WIOA sec. 102(c)). The Secretaries of Labor and Education's
written determination of approval or disapproval of the portion of the
plan for the six core programs may be separate from the written
determination of approval, disapproval, or completeness of the program-
specific requirements of Combined State Plan partner programs and
activities described in Sec. 676.140(d) and included the Combined
State Plan. For example, if all the common planning elements and
program-specific requirements for the core programs are met, approval
and funding may proceed regardless of specific issues that may be
identified in the program-specific sections for any Combined State Plan
partner programs.
Temporary Assistance for Needy Families
Section 676.140(d)(2) specifies that TANF, authorized under part A
of title IV of the Social Security Act, is a Combined State Plan
partner program that may be included in the Combined State Plan.
Comments: One commenter said it appears that as a Combined State
Plan partner program in a Combined State Plan TANF would be subject
both to its own current statutory participation rate requirements and
to the six performance measures specified in WIOA. The commenter stated
that the performance accountability sections in both WIOA and the NPRM
consistently refer to the six performance measures in relation to the
core programs only and it is the core programs' funding alone that is
tied to performance on these measures. The commenter requested that an
exception be made such that when a State includes TANF as part of its
Combined State Plan, TANF training and employment activities not be
subject to WIOA required performance measures. The commenter requested
that TANF training and employment activities only be subject to the
performance measures under TANF, the same way that performance measures
for CSBG employment and training activities are only those under CSBG.
Departments' Response: The Departments have reviewed this comment
but did not make a change to the regulatory text. WIOA sec. 103 does
not require the Combined State Plan partner programs to report on the
WIOA sec. 116 primary indicators of performance. WIOA sec. 103(b)(1)
only requires the Combined State Plan partner programs, which include
TANF, to include the requirements, if any, applicable to that program
or activity under the Federal law authorizing the program or activity.
This means those portions of the plans related to training and
employment. An explicit exemption for TANF is not required in these
regulations. In referring to CSBG and to HUD employment and training
activities, WIOA sec. 103(a)(2) does not refer to a specific program
within those agencies but to employment and training activities in
general. In contrast, WIOA sec. 103(a)(2) refers to TANF as a whole and
does not limit this to the employment and training activities under
TANF.
Comments: A commenter asked whether a separate TANF State Plan
would be required even if the State opts to submit a Combined State
Plan. If a separate TANF State Plan is required, the commenter asked
what the advantage would be for a TANF entity in combining their State
Plan with the WIOA Unified Plan. A commenter said the Departments
should explicitly state that the Governor's option to determine that
TANF will not be a required one-stop partner in a State is a separate
and distinct decision from the option of including TANF in a Combined
State Plan.
Departments' Response: If the State opts to submit a Combined State
Plan under this rule that includes a TANF State Plan, the State would
not be required to submit a separate TANF State Plan to HHS. Instead,
HHS will receive the Combined State Plan under this rule. If a State
submits a Combined State Plan that is approved, the State is not
required to submit any other plan in order to receive the funds to
operate the programs covered by that Plan. The Combined State Plan
takes the place of the individual State Plans for the Combined State
Plan partner programs that are covered by the plan and replaces the
Unified State Plan. In this way, the Combined State Plan is meant to
promote integrated planning across State programs in addition to the
integration among the core programs that would occur under a Unified
State Plan. While no additional plan is required, Sec. 676.140(f)
stipulates that each Combined State Plan partner program included in
the Combined State Plan remains subject to the applicable program-
specific requirements of the Federal law and regulations, and any other
applicable legal or program requirements, governing the implementation
and operation of that program. Finally, a Governor's option to
determine that TANF will not be a required one-stop partner in a State
is a separate and distinct decision from the option of including TANF
in a Combined State Plan.
Perkins/Career and Technical Education Programs
Comments: Several commenters did not support the use of a Combined
State Plan because, according to these commenters, the current Federal
funding is essential for local CTE programs; the current Unified Plan
model is working well by allowing local control of Perkins funds; the
workforce board should not dictate course offerings or the curriculum
provided; and the reporting/performance requirements for both WIOA and
Perkins would conflict.
Another commenter stated that schools should have the ability to
develop programs that align with each other and the resources to
support
[[Page 55817]]
program development. The commenter said Office of Superintendent of
Public Instruction should be given the control to direct funds to
support CTE program development and oversee the implementation of the
Programs of Study.
Departments' Response: The Departments considered these comments.
States have the option of including postsecondary programs, including
programs of study described in sec. 122 (c) under the Perkins Act, as a
part of their Combined State Plan. However, even if Perkins
postsecondary programs are included as a part of a State's Combined
State Plan, there will be no impact on the amount of Perkins
postsecondary funds that are distributed at the local level, unless the
State formally amends its Perkins Act State Plan to change its
secondary and postsecondary split of funds pursuant to sec. 112(a)(1)
of the Perkins Act. In the case where there is a change in the split,
the formula established in sec. 132 of the Perkins Act, or the
alternative formula established in sec. 133 of the Perkins Act, still
applies.
In addition, under WIOA, Local WDBs cannot dictate course offerings
or curricula. Local recipients retain the ability to develop programs
and align resources to meet students' needs. Finally, as discussed
above, WIOA sec. 103 does not require the Combined Plan partner
programs to report on the WIOA sec. 116 primary indicators of
performance. WIOA sec. 103(b)(1) only requires the Combined State Plan
partner programs to include the requirements, if any, applicable to
that program or activity under the Federal law authorizing the program
or activity.
Comments: One commenter stated that the regulation should account
for WIOA's statutory requirement that Combined State Plan partner
programs remain subject to their original authorizing statutes. This is
particularly important, according to the commenter, in instances where
the Perkins eligible agency does not fall under the direct line of
authority or control of the Governor. It is imperative to assure the
Perkins eligible agency that it has full authority to carry out the
responsibilities under sec. 121 of the Perkins Act when part of a WIOA
Combined State Plan. The Perkins eligible agency is ultimately subject
to the Federal government fiscal and accountability reporting
requirements under Perkins regardless of whether the Perkins State Plan
is separate or part of a WIOA Combined Plan.
Departments' Response: Reference to the original authorizing
statutes and their requirements are made throughout the Joint Rule with
respect to Combined State Plan partner programs included in Combined
State Plans. There is no intention of removing or minimizing the
authority of the Perkins eligible agency to carry out its Perkins'
responsibilities under WIOA.
Comments: A commenter made the following remarks about the
submission of a Perkins State Plan as part of the Combined State Plan:
The NPRMs do not address a reconciliation of the two
separate and distinct submission requirements (2-year versus annual).
If a State submits the annual Perkins Plan separate from
the Combined State Plan, the rules are not clear if the Perkins Plan
must be approved by the State WDB.
The rules require two agencies to negotiate the level of
performance on the core indicators of WIOA but do not indicate if the
two agencies must negotiate the level of performance on the Perkins
indicators.
The Perkins State levels of performance are dependent on
local negotiations and levels of performance but the NPRMs do not
indicate how the integrity, validity, and reliability of the local
Perkins negotiations can be retained.
Departments' Response: As discussed previously, WIOA gives the
States the ability to apply the 2-year WIOA modification provisions to
the Combined State Plan partner programs included in the plan in
addition to any modification timeline or interval required by the
statute governing the Combined State Plan partner program as long as
they do not overwrite those programs' required timelines. The
Departments have concluded that for any Combined State Plan partner
program included in the plan with a different planning cycle from WIOA,
States should submit program-specific modifications that align with the
natural planning cycles for that specific program. Section 676.140(f)
stipulates that each Combined Plan partner program included in the
Combined State Plan remains subject to the applicable program-specific
requirements of the Federal law and regulations, and any other
applicable legal or program requirements, governing the implementation
and operation of that program.
If a State chooses to include Perkins as part of its Combined State
Plan, the State will submit Perkins State Plan modifications annually,
consistent with the Perkins annual State Plan cycle. If the Perkins
State Plan modifications affect only the administration of Perkins and
have no impact on the Combined State Plan as a whole or the integration
and administration of the core and Combined State Plan partner
programs, then such modifications may be submitted only to the
Secretary of Education consistent with Sec. 676.145(c)(2).
Modifications to a Perkins State plan that impact the Combined State
Plan as a whole or the integration and administration of the core and
Combined State Plan partner programs are subject to the same public
review and comment requirements that apply to the development of the
original Combined State Plan. Under the Perkins-specific procedures,
hearings may or may not be required depending on the specific facts
presented.
In response to the commenters who raised concerns regarding
performance negotiations, the Departments are clarifying that sec. 103
of WIOA does not require Combined State Plan partner programs to report
on the primary indicators of performance in sec. 116 of WIOA. Section
103(b)(1) of WIOA only requires the Combined State Plan partner
programs, which include Perkins, to include the requirements, if any,
applicable to that program or activity under the Federal law
authorizing the program or activity. Perkins program inclusion in a
State's Combined State Plan will not impact the annual Perkins
performance indicator negotiation process. See sec. 676.143(i). The
WIOA State Plan ICR Appendix 1 clarifies what performance information
States must include in the State Plan. The Departments provided further
instructions through the WIOA Joint Performance ICR, the WIOA State
Plan ICR, and related joint guidance. The Departments issued
operational guidance on both performance and State Plan submission
guidelines following the finalized Performance and WIOA State Plan
ICRs.
Inclusion of Combined State Plan Programs Not Under Governor's
Authority
Section 676.140(e)(4) requires States to provide assurance that all
of the entities responsible for planning or administering an eligible
program described in a Combined State Plan have a ``meaningful
opportunity to review and comment'' on all portions of the plan.
Comments: Several commenters recommended strengthening the language
in the regulation to ensure that States give assurances that all of the
entities responsible for planning or administering a program described
in a Combined State Plan have approved the inclusion of the programs in
a Combined Plan, especially where such
[[Page 55818]]
programs do not fall under the direct control of a Governor. According
to these commenters, as the language currently stands, it could be
interpreted as leaving this decision of whether to include a Combined
State Plan partner program in the Combined State Plan up to the sole
discretion of the Governor.
One commenter stated that, based on sec. 121 of the Perkins Act,
the Perkins eligible agency should have the authority to determine
whether CTE programs authorized under the Perkins Act are included in a
State's Combined Plan. Section 121 of the Perkins Act states, in
relevant part, that each ``eligible agency . . . shall prepare and
submit to the Secretary a State plan . . .'' As mentioned above, the
Perkins eligible agency maintains authority to carry out the
responsibilities under sec. 121 of the Perkins Act under a Combined
State Plan.
A few commenters said the Joint WIOA Final Rule should state the
intent that the TANF program should have a meaningful influence in all
stages of plan development and be a voting member of the State WDB.
Departments' Response: The Departments have concluded that no
change to the regulatory text at Sec. 676.140(e)(4) is necessary in
response to these comments. The Departments have modified Sec.
676.140(e)(3) to require States to describe joint planning methods in
the Combined State Plan among the core programs, and with the required
one-stop partner programs and other programs and activities included in
the State Plan. The Departments acknowledge that not all programs
identified in WIOA for potential inclusion in the Combined State Plan
fall under the purview of the Governor. For some, the Federal funds go
directly to local entities, such as several HUD programs administered
by Public Housing Authorities. Others, such as the Reintegration of Ex-
Offenders, are competitive grants that may be awarded to community-
based organizations. Perkins funds flow directly to a State eligible
agency by formula. In some States the Perkins State eligible agency is
an independent agency not under the authority of the Governor. The
Departments expect the Governor to work in collaboration with any
Combined State Plan partner programs included in the plan and with the
agencies that administer those programs consistent with these
regulations and sec. 103(b)(3) of WIOA. The Departments expect that the
State's joint planning methods across these programs ensure that the
State has full cooperation from any such programs and agencies included
in the Combined State Plan. Finally, in response to the comment that
the TANF program should be a voting member of the State WDB, State WDB
membership requirements are addressed in 20 CFR 679.110 (see DOL WIOA
Final Rule).
Other Comments
Comments: Two commenters sought clarification on the primary
indicators of performance relative to the inclusion of those partners
beyond the core programs. If a State should choose the Combined State
Plan option, one commenter asked whether all partners would be held to
the standards of performance accountability identified in WIOA.
Departments' Response: WIOA sec. 103 does not require the Combined
Plan partner programs to report on the WIOA sec. 116 primary indicators
of performance. WIOA sec. 103(b)(1) only requires the Combined State
Plan partner programs to include the requirements, if any, applicable
to that program or activity under the Federal law authorizing the
program or activity. The WIOA State Plan ICR Appendix 1 clarifies what
performance information States must include in the State Plan. The
Departments provided further instructions through the WIOA Joint
Performance ICR, the WIOA State Plan ICR, and related joint guidance.
Comments: A commenter requested that the Departments ensure that
partner programs will not have to submit additional or separate
standalone plans.
Departments' Response: Partner programs, except for those carrying
out employment and training activities carried out under CSBG, HUD
programs, and the Food and Nutrition Act of 2008, will not be required
to submit additional or separate standalone plans. Paragraph (h) and
new paragraph (i) of Sec. 676.140 explain the additional submission
requirements for CSBG and HUD programs. Under paragraphs (h) and (i),
the regulation explicitly limits the Combined Plan requirements for
CSBG and HUD programs to ``employment and training activities.''
However, these activities are only a subset of a broad range of
antipoverty activities provided under these two programs. In the case
of CSBG programs, under Sec. 676.140(h), the State would submit the
remainder of the State Plan for CSBG (e.g., those parts that apply to
the other antipoverty activities provided by CSBG that are not
``employment and training activities'') to the Federal agency that
administers the program. New paragraph (i) clarifies that, like the
requirements under paragraph (h) for CSBG programs, only the components
of the individual plans for HUD programs that pertain to employment and
training should be submitted with the Combined State Plan. The State
must submit any other required planning documents for HUD to the
Federal agency that administers the respective program. The language in
this new paragraph creates a consistent approach for the Combined State
Plan partner programs that WIOA sec. 103(a) identifies by activities
rather than by a specific program name. This change also makes the
regulatory text relating to HUD consistent with instructions in the
WIOA State Plan ICR for submission requirements for Combined State
Plans.
For employment and training programs and work programs authorized
under the Food and Nutrition Act of 2008, including those under secs.
6(d)(4) and 6(o), the State would similarly submit to the Departments
of Labor and Education only the Supplemental Nutrition Assistance
Program Employment and Training programs (SNAP E&T). The Departments
declined to regulate an exception for SNAP E&T because State Plans for
SNAP E&T, as described under 7 CFR 273.7(c)(8), are generally not
comingled with the State Plans for the remaining activities under SNAP.
Comments: A commenter expressed concern that proposed Sec. 676.140
does not require States to identify populations for Priorities of
Service, though this is required at the local level. The commenter
recommended that the regulation be revised to require that States
identify populations for priority of service, and provide explanation
of why those populations are named.
Departments' Response: As discussed earlier under Sec. 676.105, in
the title I-specific requirements, the WIOA State Plan ICR requires the
State to address its policy for ensuring adult program funds provide a
priority in the delivery of career and training services to individuals
who are low income, public assistance recipients, or basic skills
deficient. Otherwise, as with the Unified Plan Requirements, the
Departments have chosen not to regulate the specifics of State Plan
requirements, as these are explained in comprehensive detail in the
WIOA State Plan ICR.
Section 676.143 What is the development, submission, and approval
process for the Combined State Plan?
Section 676.143 implements WIOA's statutory requirements for
submitting a Combined State Plan. These are similar to the requirements
for submitting a Unified State Plan at Sec. 676.130, with added
considerations for review and approval by the Federal agencies that
oversee the Combined State Plan partner
[[Page 55819]]
programs. The heading for Sec. 676.143 has been modified to include
the word ``development,'' to more accurately reflect the content of
this section. In response to comments, discussed earlier, regarding the
role of State WDB, core programs, required one-stop partners, and other
stakeholders in the development of the State Plan, the Departments have
made several revisions to Sec. 676.143 to mirror the requirements for
Unified Plans related to coordination, public comment and input. A new
paragraph (b) has been added to include information similar to the
newly added Sec. 676.130(c), clarifying that the Combined State Plan,
just as the Unified State Plan, must be developed with the assistance
of the State WDB and must be developed in coordination with
administrators with optimum policy-making authority for the core
programs and required one-stop partners. New Sec. 676.143(c)(1) and
(2) have been added to include information similar to Sec.
676.130(d)(1) and (2) requiring that the State must provide an
opportunity for public comment and input on the development of the
Combined State Plan prior to its submission, and that these
requirements apply to the portions of the plan that cover the core
programs. Finally, Sec. 676.143(c)(3) has been added to further
clarify that the portions of the Combined State Plan that cover the
Combined State Plan partner programs are subject to any applicable
public comment requirements for those programs. Proposed Sec.
676.143(b) has been renumbered to Sec. 676.143(d), and remaining
sections have been renumbered accordingly. Renumbered Sec.
676.143(e)(1) has been revised to clarify that, before the Secretaries
of Labor and Education approve the Combined State Plan, the VR services
portion of the Combined State Plan must be approved by the RSA
Commissioner. In response to comments requesting clarity around
Combined State Plan approval, new Sec. 676.143(h) states that the
Secretaries of Labor and Education's written determination of approval
or disapproval of the portion of the plan for the six core programs may
be separate from the written determination of approval, disapproval, or
completeness for program-specific requirements of Combined State Plan
partner programs at Sec. 676.140(d). Except for the changes described
here, this section remains unchanged from that proposed in the NPRM.
Submission of Combined State Plan
Section 676.143(d) requires a State to submit to the Secretaries of
Labor and Education and, if applicable, to the Secretary of the agency
with responsibility for approving the program's plan or for deeming it
complete under the law governing the program, as part of its Combined
State Plan, any plan, application, form, or any other similar document
that is required as a condition for the approval of Federal funding
under the applicable program or activity.
Comments: A couple of commenters stated that, to reduce the burden
on States, the Secretaries of Labor and Education should be responsible
for distributing the plans to other appropriate Federal entities. One
of these commenters said the Secretaries of Labor and Education may
want to consider taking all of the Combined State Plans and submitting
them as a batch to the other appropriate Federal entities.
Departments' Response: The submission process set forth in WIOA
sec. 103(a)(1) for Combined State Plans requires that they be submitted
to the ``appropriate Secretaries,'' which differs from the submission
process for the Unified State Plan set forth in WIOA sec. 102(a).
However, similar to what is required by Sec. 676.130(e) for the
submission of Unified State Plans, the Departments developed a process
for the single electronic submission of Combined State Plans that
allows for concurrent review of, and immediate access to, the plans by
all the relevant Federal entities. As discussed in the introduction,
the Departments issued guidance that explains the submission process
for Combined State Plans, which is intended to streamline State
submission of plans. No change to the regulatory text was made in
response to these comments, but the Departments have issued further
guidance regarding State Plan submission.
Timelines for Review and Approval
Section 676.143(e) stipulates the timelines for review and approval
by the Secretary of Labor or Secretary of Education, or another
appropriate Secretary.
Comments: A couple of commenters requested clarification on the
different timelines for the review and approval of the Combined State
Plan (90 days for core programs and 120 days for Combined State Plan
partner programs).
Departments' Response: The Departments considered these comments
and are implementing the regulation to reflect the statutory
requirements. As required by WIOA sec. 103(c)(3), Combined State Plan
partner programs that fall under an authority other than the Secretary
of Labor or Secretary of Education have an approval timeline of 120
days, rather than 90 days. This additional time allows for review and
approval of Combined State Plan partner programs that are administered
outside the Departments of Education and Labor, such as programs
administered by U.S. Department of Agriculture, HHS, and HUD. These are
statutory requirements not subject to regulatory change.
Rehabilitation Services Administration Approval of Combined State Plans
Comments: Several commenters requested clarification on whether the
VR portion of a Combined State Plan must be approved by the RSA
Commissioner prior to the full Combined State Plan being approved by
the Secretaries of Labor and Education, as the Unified State Plan
process description explicitly states in Sec. 676.130(g).
Departments' Response: The Departments considered these comments
and agree that the rule needed to provide additional clarification
regarding this requirement. Just as required for Unified State Plans,
the RSA Commissioner must approve the VR services portion of the
Combined State Plan prior to approval of the full Combined State Plan
by the Secretaries of Labor and Education. The Departments have added
regulatory text to clarify this requirement at Sec. 676.143(e)(1).
Comments: One commenter said ensuring review by the RSA
Commissioner should be the responsibility of the Secretaries, not VR
agencies, and asked if this review would be part of the 90-day review
timeframe.
Departments' Response: The Departments worked together to ensure
the timely review of all State Plans, including the VR services portion
of each plan. As discussed under Sec. 676.130 for Unified Plans, it is
not the State VR agencies' responsibilities to submit and obtain
approval of the VR services portion of the State Plan prior to
submitting the Combined State Plan to the Departments. Rather, the
entire plan should be submitted to the Departments and review by the
RSA commissioner will take place following that submission as a part of
the 90-day Federal review of the plan. The Departments developed a
process for submission of State Plans to ensure that all Departments,
as appropriate, receive the entire submission concurrently. The
Departments have concluded that the existing regulatory text and
preamble place adequate emphasis on the timely concurrent reviews of
the plans by the Departments.
[[Page 55820]]
Review, Approval, and Disapproval of Combined State Plans
Section 676.143(f) provides specifics on the approval process for
Combined State Plans.
Comments: A few commenters stated that there appears to be little
incentive for States to pursue a Combined State Plan. One commenter
said States need assurances that the Departments will handle the
Combined State Plan review in a manner different from how the
Departments handled the Unified State Plan review under WIA, which was
largely superficial in nature. The commenter recommended that the
review process not only enforce statutory requirements but also
consider the plan in a coordinated, cross-agency approach. The
commenter said States need additional clarity on how the Federal
agencies will manage the review process and make approval
determinations, particularly when the statutes provide mixed or
conflicting direction.
Departments' Response: Although States only are required, at a
minimum, to submit a Unified State Plan that encompasses the six core
programs under WIOA, the Departments encourage States to submit a
Combined State Plan that includes additional Combined State Plan
partner programs as described at Sec. 676.140. Development of a
Combined State Plan allows for coordination across multiple Federal
programs, cross-program strategic planning, increased alignment among
State programs, and improved service integration, which provides a
wider range of coordinated and streamlined services to the customer.
WIOA offers an expanded opportunity for States to create and implement
a shared vision and strategy for the public workforce system within the
State. The Departments have added language to Sec. 676.143 in
paragraphs (e)(1) and (h) to further clarify the review process for
Combined State Plans. Review of Combined State Plans will take into
consideration the strategic coordination, program alignment,
integration, and cross-agency joint planning that is reflected in the
Combined Plan. The Departments worked together to create a robust
review process across all partner agencies and consider this review
process to be integral to effective joint planning and implementation.
The Departments have added regulatory text at Sec. 676.143(h) to
clarify that the Secretaries of Labor and Education's written
determination of approval or disapproval of the portion of the plan for
the six core programs may be separate from the written determination of
approval, disapproval, or completeness of the program-specific
requirements of Combined State Plan partner programs and activities
included in the Combined State Plan.
Comments: One commenter requested guidance (1) that allows States
to develop a Combined State Plan without the threat of a loss of funds
if elements of the individual programs are not specifically identified,
and (2) on how accountability metrics and reporting requirements for
those programs included in the plan will not be a disincentive for
inclusion. A commenter said it is not clear what benefit exists for the
State or local Perkins recipients to attempt to address indicators that
are not pertinent to their purpose of operation as outlined in State
regulation as well as the ``Federal Perkins regulation.'' The commenter
said if the Combined State Plan partner programs are not required to
report on the WIOA indicators of performance, the benefit of a Combined
State Plan is not clear.
Departments' Response: Regarding concerns about funding, the joint
submission, or joint review process of the Combined State Plans will
not impact funding because the Departments developed a process to
ensure Combined State Plans are reviewed in a coordinated and timely
manner across agencies. The Combined State Plan review process is
further explained at Sec. 676.143. Combined State Plan partner
programs are not subject to the six common indicators for performance
under WIOA, although they may be subject to the same or similar
indicators under their own authorizing statute or under State law.
Regardless of whether required indicators are identical, States will
find that public workforce development system customers can benefit
from the results of developing a Combined State Plan that fosters
program integration and alignment and optimal use of resources. The
Departments' worked together to implement a robust review process
across all partner agencies and consider this review process to be
integral to effective joint planning and implementation. Performance
issues have been addressed through the WIOA State Plan ICR, the WIOA
Joint Performance ICR, and related joint guidance.
Comments: One commenter said it is unclear how the rejection of one
part of a Combined State Plan would affect funding for the other
programs. A commenter stated that the regulation implies that
disapproval by any Secretary of their respective program will result in
disapproval of the Combined State Plan as a whole, which provides
incentive to submit a Unified State Plan (instead of a Combined State
Plan). Similarly, another commenter said disapproval of a section of
the plan pertaining to a program not considered to be a core program
should not result in the disapproval of the entire plan. Another
commenter requested additional guidance on the process to follow if the
RSA Commissioner does not approve the VR portion of the State Plan.
Departments' Response: Per Sec. 676.143(h), disapproval of a
section of a Combined State Plan pertaining to a Combined State Plan
partner program does not impact the approval for the portions of the
Combined State Plan that apply to the core programs. In the process
mentioned above, the common planning elements and program-specific
elements of Combined State Plans are reviewed concurrently across the
Departments of Labor and Education and other relevant agencies, with
the approval determination by RSA occurring first, and with additional
time allowed for specific Combined State Plan sections that fall within
the purview of U.S. Department of Agriculture, HUD, or HHS. A
determination regarding approval or disapproval for the common elements
and the core programs may be issued separately from the approval
determination for program-specific requirements for Combined State Plan
partner programs, including those that allow 120 days for review. The
Departments have added a new Sec. 676.143(h) to clarify that the
Secretaries of Labor and Education's written determination of approval
or disapproval of the portion of the plan for the six core programs may
be separate from the written determination of approval, disapproval, or
completeness for program-specific requirements of Combined State Plan
partner programs specified in Sec. 676.140(d) in the Combined State
Plan. However, the portions of the Combined State Plans that cover the
core programs must be approved by all core program agencies.
Special Rule for Perkins Act Programs
Comments: Several commenters referred to Sec. 676.143(f) in the
NPRM, which has been renumbered to Sec. 676.143(i) in the Joint WIOA
Final Rule, the special regulation for programs authorized by the
Perkins Act, which directs the State to come to an agreement with the
Secretary of Education regarding State performance measures. One
commenter requested further clarification as to what accountability
measures would take
[[Page 55821]]
precedence under an agreement between the Secretary of Education and a
State. The commenter stated that the Departments should specify that
when a State chooses to include Perkins in a Combined State Plan, the
State is required to include the totality of the Perkins State Plan in
the Combined State Plan and cannot break off the parts relevant only to
postsecondary CTE.
Departments' Response: WIOA sec. 103 does not subject the Combined
State Plan partner programs to the WIOA sec. 116 primary indicators of
performance. WIOA sec. 103(b)(1) only requires the Combined State Plan
partner programs, which include Perkins programs, to include the
requirements, if any, applicable to that program or activity under the
Federal law authorizing the program or activity. The WIOA State Plan
ICR Appendix 1 further clarifies what performance information States
must include in the State Plan. As discussed in Sec. 676.140 above, if
a State chooses to include postsecondary CTE programs under the Perkins
Act as a part of its Combined State Plan, the State would submit the
entirety of the State Plan, including any annual revisions, pertaining
to the CTE programs authorized under the Perkins Act. In addition, the
State would submit plan modifications annually to align with Perkins'
annual State Plan cycle, consistent with Sec. 676.145.
Section 676.145 What are the requirements for modifications of the
Combined State Plan?
Section 676.145 specifies requirements for modifying a Combined
State Plan. Sections 676.145(a)(1) through (3) have been added to
mirror the core program modification requirements specified for Unified
State Plans in Sec. 676.135(b). Section 676.145(a)(1) through (3)
outline three instances in which a modification for the core programs
is required. These instances include: (1) At the conclusion of the
first 2-year period of a 4-year State Plan, (2) when changes in Federal
or State law substantially affect the plan's implementation, and (3)
when there are substantial changes to the State's workforce investment
system. The Departments revised Sec. 676.145(a)(3) to clarify that
modifications to the Combined State Plans are required when States
modify their negotiated levels of performance. This clarification was
made for consistency with the changes to part 677 on the performance
accountability system. The Departments have added a clarifying edit to
Sec. 676.145(c)(1) to explain that States have discretion to apply the
plan modification requirements for core programs to Combined State Plan
partner programs so long as it is consistent with any other
modification requirements for that program. The Departments have
incorporated proposed Sec. 676.145(f) into Sec. 676.145(c)(2) to
clarify these provisions to address commenters' confusion in this area,
and deleted paragraph (f). The Departments also have made technical
edits at Sec. 676.145(d). Except for the changes described here, this
section remains substantively the same as that proposed in the NPRM.
Timeframe for Combined State Plan Modifications
Comments: A couple of commenters said the Departments should
consider emphasizing the opportunity for States to submit Combined Plan
modifications following submission of the initial plan to ensure that
Combined Plan partner programs continue to be engaged in the planning
and implementation process. Some commenters said the Federal agencies
responsible for the Combined Plan partner programs should accept the
Combined State Plan on the timeline outlined in WIOA and not prescribe
more frequent updates or different timeframes for modifications and
renewals. In addition, the commenters said the submission deadlines
must align. These commenters also said the Departments should issue
final guidance early enough that there is sufficient time to negotiate
the levels of performance for State performance accountability measures
before submission deadline.
Departments' Response: The Departments agree that modifications
following submission of the initial plan are useful to ensure that
Combined State Plan partner programs continue to be engaged in the
planning and implementation process. Sections 676.135 and 676.145
enable States to continue to modify and improve the planning process of
both core and Combined State Plan partner programs through Unified and
Combined State Plans. The Departments are not prescribing more frequent
updates beyond what is required under WIOA timeframes. However, the
Departments have revised Sec. 676.145(a) to clarify the circumstances
under which a Combined State Plan must be modified for core programs,
which are the same modification requirements that apply under Unified
State Plans. The States have the discretion to apply these modification
requirements to Combined State Plan partner programs or activities. The
Departments have added regulatory text at Sec. 676.145(c)(1) to
clarify that a State may apply these modification requirements to
Combined State Plan partner programs, as long as this is consistent
with any other modification requirements for those specific programs.
As discussed under Sec. 676.140, the Departments do not have the
authority to change the planning requirements, including submission
deadlines, that are not under WIOA's jurisdiction. The Departments have
provided additional clarity on the review and approval process through
joint planning guidelines.
Combined State Plan Modification Requirements
Unlike Sec. 676.135, which addresses modifications of Unified
State Plans, proposed Sec. 676.145, which addressed modifications for
Combined State Plans, did not require modification of a plan when there
are ``substantial changes'' to a State's workforce investment system.
Comments: The Departments received comments requesting that
language similar to that in Sec. 676.135(b)(2) and (3), requiring
States to submit modifications when there are ``substantial changes,''
be added to the section pertaining to Combined State Plan
modifications.
Departments' Response: The Departments considered these comments
and agree. The Departments have revised proposed Sec. 676.145(a) by
adding new paragraphs (a)(2) and (a)(3) that are essentially identical
to Sec. 676.135(b)(2) and (3) to clarify that the same modification
requirements that apply to the Unified Plan also apply to the portions
of the Combined Plan covering the core programs. States are required to
submit a modification for the portions of the Combined Plan covering
the core programs when (1) changes in Federal or State law or policy
substantially affect the strategies, goals, and priorities upon which
the Combined State Plan is based, and (2) when there are changes in the
statewide vision, strategies, policies, State negotiated levels of
performance, the methodology used to determine local allocation of
funds, reorganizations which change the working relationship with
system employees, changes in organizational responsibilities, changes
to the membership structure of the State WDB or alternative entity, and
similar substantial changes to the State's workforce investment system.
Under WIOA sec. 103(b)(1), it is at the discretion of the State to
decide whether to apply these modification requirements to Combined
State Plan partner programs or activities, as long as this is
consistent with any other modification requirements for those specific
programs. The Departments
[[Page 55822]]
have added language at Sec. 676.145(c)(1) to clarify this distinction.
Public Comment on Combined Plan Modifications
In the NPRM, the Departments sought comments on how to streamline
the public review and comment process for Combined State Plan
modifications. The Departments further sought comments in the NPRM on
whether it is advisable to limit the requirement for public comment on
plan modifications to significant or substantial modifications to the
common planning elements and, if so, how the Departments might define
``significant'' or ``substantial changes.''
Comments: One commenter indicated that historically, in-person
meetings are poorly attended, so comments in relation to Sec. 676.145
should be allowed via other methods, such as surveys, webinars, video
conferences, and phone conferences. Another commenter said public
review should not exceed 30 days.
Some commenters said the Departments should limit the comment
process under Sec. 676.145 to significant or substantial
modifications, such as substantive change to service delivery or
participating partners, adding or removing a Combined State Plan
partner program, or discretionary changes within a program that would
directly affect the provision of services and its collaboration with
other programs (excluding programmatic changes required due to audit
findings or sanctions). One commenter said the Departments should allow
public comment on the shared planning elements to streamline this
process significantly, particularly for States in which core program
agencies have different governance and review processes.
Departments' Response: In the Joint WIOA Final Rule, the
Departments have not included requirements related to the timing,
method, or other specifics related to public review and comment. The
Departments leave much of the process related to public review and
comment to the discretion of the State so long as regulatory
requirements for public comment are met. If, based on the regulatory
categories described in Sec. 676.145, a Combined State Plan
modification is required, such a plan modification is subject to the
requirements for comment as described in Sec. 676.145(d). As described
in Sec. 676.145(d), modifications to the Combined State Plan are
subject to the same public review and comment requirements that apply
to the development of the original Combined State Plan as described in
Sec. 676.143(c) except that, if the modification, amendment, or
revision affects the administration of a particular Combined State Plan
partner program and has no impact on the Combined State Plan as a whole
or the integration and administration of the core and other Combined
State Plan partner programs at the State level, a State may comply
instead with the procedures and requirements applicable to the
particular Combined State Plan partner program. The Departments have
made a technical edit to Sec. 676.145(c)(2)(ii) for clarity by adding
the word ``other'' before Combined State Plan partner programs in the
phrase ``has no impact on the Combined State Plan as a whole or the
integration and administration of the core and Combined State Plan
partner programs at the State level.'' The Combined State Plan partner
programs being referred to here are those other than the program that
is the focus of the modification. States may determine, at their
discretion, if these same plan modification requirements apply to
Combined State Plan partner programs included in the Combined State
Plan. States can further use their own discretion to provide a
reasonable period of time for public comment. Many State laws also
require a minimum number of days for public comment. Likewise, States
may determine the best way to streamline the public comment process
while ensuring that regulatory requirements for public comment are met.
In addition to the regulatory text changes discussed above, various
non-substantive changes have been made for purposes of correcting
typographical errors and improving clarity that have not been necessary
to note elsewhere.
B. Performance Accountability Under Title I of the Workforce Innovation
and Opportunity Act (20 CFR Part 677; 34 CFR Part 361, Subpart E; 34
CFR Part 463, Subpart I)
1. Introduction
Section 116 of WIOA establishes performance accountability
indicators and performance reporting requirements to assess the
effectiveness of States and local areas in achieving positive outcomes
for individuals served by the workforce development system's six core
programs described in sec. 116(b)(3)(A)(ii) of WIOA. These six core
programs are the adult, dislocated worker, and youth programs under
title I of WIOA; AEFLA program under WIOA title II; Employment Service
program authorized under the Wagner-Peyser Act, as amended by WIOA
title III (Wagner-Peyser Act Employment Service program); and VR
program authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV.
The performance accountability system established in WIOA subtitle
A (``System Alignment'') in sec. 116 requires that the performance
accountability requirements apply across all six core programs with few
exceptions. As such, the six core programs have an historic opportunity
to align performance-related definitions, streamline performance
indicators, integrate reporting, and ensure comparable data collection
and reporting across all the core programs, while also implementing
program-specific requirements.
Through this Joint WIOA Final Rule, the Departments are laying the
foundation for a performance accountability system that serves all core
programs and their targeted populations in a manner that is customer-
focused and that supports an integrated service design and delivery
model. In addition, WIOA requires additional DOL-administered title I
programs, specifically Job Corps, Native American programs, the Migrant
and Seasonal Farmworker programs, and the YouthBuild program, to comply
with the same primary indicators as the core programs (see 20 CFR part
686 and 20 CFR part 684 of the DOL WIOA Final Rule published elsewhere
in this issue of the Federal Register). The inclusion of these
additional DOL-administered programs into the common performance
accountability system will better align both the core programs and
other education and training programs across the public workforce
system. Further, DOL is including other workforce programs under its
purview in this performance-related streamlining effort, including the
JVSG program as authorized by the Jobs for Veterans Act and other
appropriate formula and competitive grant programs.
In the section-by-section discussions of each performance
accountability regulatory provision below, the heading references the
DOL CFR section number. The ED is establishing in this Joint WIOA Final
Rule identical provisions at 34 CFR part 361, subpart E (under its
State VR program regulations) and at 34 CFR part 463, subpart I (under
a new CFR part for AEFLA regulations). Although for purposes of
brevity, the section-by-section discussions for each provision appear
only once--in conjunction with the DOL section number--the discussions
nevertheless constitute the Departments' collective explanation and
rationale for each regulatory provision. When the
[[Page 55823]]
regulations are published in the CFR, these joint performance
regulations will appear in each of the CFR parts identified above.
2. Definitions (20 CFR 677.150; 34 CFR 361.150; 34 CFR 463.150)
Section 677.150 What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?
Section 677.150 defines ``participant,'' ``reportable individual,''
``exit,'' and ``State,'' which are key performance-related terms
applicable to all six core programs for implementation of the
performance accountability system under sec. 116 of WIOA and part 677
of these joint regulations. The definition of ``participant'' has been
revised, as explained below, to distinguish clearly between
participants and reportable individuals. The definitions of
``reportable individual'' and ``exit'' have been revised as explained
below. The Departments also have added a definition of ``State,'' which
includes the outlying areas for purposes of part 677, other than in
regard to sanctions or the statistical adjustment model. These
definitions establish the foundation of an integrated performance
accountability system and support clarity and alignment of performance
metrics and comparability among the programs, States, and outlying
areas.
Definition of ``Participant'' (Sec. 677.150(a))
Comments: Numerous commenters responded to the Departments'
solicitations for input on the joint NPRM regarding the proposed
definitions of ``participant,'' ``reportable individual,'' and
``exit.'' While several commenters supported the definition of
``participant'' generally, many commenters raised multiple concerns
regarding the distinction between self-service and staff-assisted
service. A common concern was that the proposed definition of
``participant'' excludes self-service only individuals, which conflicts
with WIOA's goal of leveraging technology to improve service delivery.
Some commenters expressed concerns about the term ``staff-assisted
service,'' stating that the term should either be defined or removed
because it is critical to understanding the precise distinction between
a ``participant'' and a ``reportable individual.'' Several commenters
asserted that the Departments should remove ``staff-assisted service''
from the definition of ``participant'' because it is not defined in
WIOA or regulations and can be misleading when providing upfront
assessment services to youth. Other commenters encouraged the
Departments to define ``staff-assisted service'' in order to provide
clarification. One commenter indicated that the regulatory definition
of ``participant,'' for purposes of the title I youth program, should
reflect policy positions articulated by the Departments in the Joint
WIOA NPRM's preamble.
Commenters also suggested additional terms and concepts that could
be defined, including providing definitions for ``qualifying
services,'' ``facilitated self-service,'' and ``career and training
services.'' One commenter asserted that the Departments should issue
timely guidance with additional definitions and clarifications or allow
States to continue using definitions contained in WIA.
Departments' Response: The Departments agree that it is critical
that these definitions be clear in order to ensure compliant data
collection and reporting. Section 677.150(a) provides a definition of
``participant'' that applies to all six core programs because the
primary performance indicators set forth in sec. 116(b)(2)(A)(i) of
WIOA specifically base performance calculations on the participants in
each of the core programs. The definition of ``participant''
establishes a common point at which an individual is meaningfully
engaged in a core program and thus, it is appropriate for the person to
be included in the primary indicators of performance. In the NPRM, the
Departments attempted to distinguish ``staff-assisted services,'' which
required more meaningful interaction with a core program, from ``self-
services'' and information-only services and activities, where
individuals engaged in these activities that require minimal
interaction with the programs, by which the Departments mean minimal
resources are spent on their behalf in most cases. While individuals
who receive only self-service or information-only services and
activities do not satisfy the definition of ``participant,'' these
individuals are considered ``reportable individuals'' as defined in
Sec. 677.150(b) and discussed in more detail below.
The Departments considered each of the suggested revisions to the
proposed definition of ``participant'' and have modified Sec. 677.150
to clarify the application of this definition to requirements under
WIOA. The Departments made the following changes to the definition of
``participant'' in Sec. 677.150(a).
In Sec. 677.150(a), the Departments replaced the phrase ``staff-
assisted services'' with ``services other than those described in Sec.
677.150(a)(3).'' In so doing, the Departments eliminate the confusion
of what is meant by ``staff-assisted services'' and make clear that
individuals who receive the services described in Sec. 677.150(a)(3)
will not be deemed to be ``participants'' for purposes of the
performance accountability system requirements under part 677, but
rather will constitute a ``reportable individual'' under Sec.
677.150(b).
The Departments provided additional clarification in renumbered
Sec. 677.150(a)(3) to describe what does and does not constitute self-
service and information-only services and activities. In so doing, the
Departments have eliminated the confusion noted by commenters.
Specifically, the revisions contained in Sec. 677.150(a)(3) clarify
that the difference between reportable individual and participant is
the point when a reportable individual uses services other than those
identified in renumbered Sec. 677.150(a)(3). The Departments clarify
what is meant by self-service and information-only services and
activities, thereby avoiding use of the term ``staff-assisted
services'' in this regulation, which raised concerns among commenters.
Because the Departments appreciate the concerns raised by
commenters and recognize the changing landscape and advances in service
delivery and design, the Departments added Sec. 677.150(a)(3)(ii)(A)
to describe self-service. The Departments recognize that not all
electronic technologies are self-service and that individuals engaged
in this type of service could potentially meet the definition of
``participant.'' For example, there may be some services that provide
robust levels of assistance in assessing a person's skills and matching
that person to a job that are provided using electronic technologies
that involve one-on-one interaction with a one-stop center staff
member, such as an Internet chat room, or interactive technology, such
as video conferencing, that would result in the individual becoming a
participant. Additionally, the Departments acknowledge how fast
technology evolves and new technology emerges that could be used by
States and local areas to maximize available resources and better serve
job seekers, workers, and employers. The Departments will continue to
assess the field and emerging innovative technologies that may provide
more cost-effective services and inform the workforce system of such
developments, and their allowable uses, through program guidance.
The Departments are continuing to examine staff-assisted virtual
service
[[Page 55824]]
delivery in order to determine its potential. Paragraph (a)(3)(ii)(B)
of Sec. 677.150 clarifies that virtual services providing support
above an individual's independent job- or information-seeking efforts
would not qualify as self-service, thus resulting in the individual
becoming a ``participant.''.
The Departments have concluded that the following revisions to
Sec. 677.150(a)(3), described in more detail below, add the clarity
requested by commenters:
Self-service occurs when individuals independently access the
workforce development system information and activities with very
little to no staff assistance. This can be done in either a physical
location, such as a one-stop center resource room or partner agency, or
remotely via the use of electronic technologies, with very little to no
staff assistance.
Importantly, if a service is virtual service it is not
automatically a self-service. As many commenters pointed out, there
have been great strides made in the area of virtual service design and
delivery allowing for staff to provide support and services through a
variety of in-person and virtual platforms. For example, there may be
some services that are provided using electronic technologies that
involve one-on-one interaction with a one-stop center staff member or
interactive technology, such as video conferencing, that would trigger
participation. Furthermore, individuals who receive self-service or
information-only services and activities can still be participants if
they receive services other than self-service or information-only
activities.
Information-only services or activities are activities or services
that provide readily available information that does not require an
assessment by a staff member of the individual's skills, education, or
career objectives. In a public workforce development setting,
information activities or services may include both self-service basic
career services and staff-assisted basic career services. Both are
designed to inform and educate an individual about the labor market and
to enable an individual to identify his or her employment strengths,
weaknesses, and range of appropriate services. However, basic career
services that require significant staff involvement are not considered
information-only services or activities.
Applying the above guidance to determining when a reportable
individual satisfies the definition of a ``participant,'' an individual
is a reportable individual, but not a participant, when a staff member
provides the individual with readily available information that does
not require an assessment of the individual's skills, education, or
career objectives, because the individual is a recipient of
information-only services or activities. Such information could include
labor market trends, the unemployment rate, businesses that are hiring
or reducing their workforce, information on high growth industries,
occupations that are in demand, and referrals other than referrals to
employment. Information-only services or activities also occur when a
staff member provides the individual with information and instructions
on how to access the variety of other services available in the one-
stop center, including tools in the resource room.
Significant staff involvement that would result in an individual
qualifying as a participant includes a staff member's assessment of an
individual's skills, education, or career objectives in order to
achieve any of the following:
Assist individuals in deciding on appropriate next steps
in the search for employment, training, and related services, including
job referral;
Assist individuals in assessing their personal barriers to
employment; or
Assist individuals in accessing other related services
necessary to enhance their employability and individual employment
related needs.
The Departments also added a new Sec. 677.150(a)(2) to align the
regulatory text definition of ``participant,'' for purposes of the
title I youth program, with the intent expressed in the NPRM. New Sec.
677.150(a)(2) clarifies the definition of a ``participant'' for
purposes of the WIOA title I youth program.
The Departments did not add a definition of ``staff-assisted
service,'' as suggested by commenters, because the revisions to Sec.
677.150(a) described above resulted in the removal of the term from the
regulatory text. In addition, the Departments declined to add the
recommended definitions of ``qualifying services'' or ``facilitated
self-services,'' because the modifications made to the definition of
``participant''--particularly at Sec. 677.150(a)(3) regarding
clarifications of self-service and information-only services or
activities--will address the needs of commenters. In addition, the
Departments consider additional recommended definitions to fall within
the scope of either the WIOA Joint Performance ICR (which identify
performance calculations, definitions, and reporting parameters) or
operating and programmatic guidance.
The Departments did not add definitions of ``career services'' and
``training services'' because WIOA sec. 134(c)(2) and (3) define
``career services'' and ``training services,'' respectively, and these
terms are further defined at Sec. 678.430 (``What are career
services?'') in the Joint WIOA Final Rule and 20 CFR 680.200 (``What
are training services for adult and dislocated workers?''), in the DOL
WIOA Final Rule, both of which are published in this issue of the
Federal Register. The WIOA Joint Performance ICR contains further
specifications regarding the collection and reporting of career and
training services under this section. The Departments intend to issue
further clarifying programmatic guidance regarding these and other
performance-related definitions in order to assist States and outlying
areas in implementing them.
Comments: A commenter acknowledged the problems associated with
outcome evaluations of participants who do not go through an intake
process but stated that the performance metrics should give credit for
the investment of resources and staff required to maintain effective
self-service systems. Another commenter asserted that self-service
individuals should be included in the definition of ``participant'' to
allow States to fully convey the impact and return on investment for
this large customer group.
Departments' Response: The Departments recognize commenters'
concerns about the resources required to maintain effective self-
service systems. Although performance calculations on the primary
indicators of performance are limited to individuals who meet the
definition of participant and do not include individuals who only use
the self-service system, other information that captures resources and
costs associated with those individuals served by the public workforce
system at the self-service or information-only levels is collected and
reported in the State annual performance reports under Sec. 677.160,
and additional elements are required through associated ICRs published
by the Departments.
The Departments expect that because information about reportable
individuals, including those who access self-service and information-
only services or activities, will be included in the State annual
performance reports and associated WIOA Joint Performance ICR or
Department-specific ICRs, such investments by States and local areas
will be recognized. The Departments note that the changes in the
regulatory text maintain the policy expressed by
[[Page 55825]]
the Departments in the NPRM. Individuals who only use the self-service
system or who receive information-only services or activities are not
defined as ``participants.'' No change to the regulatory text was made
in response to these comments.
Comments: A commenter opposed the exclusion of self-service
individuals in the definition of ``participant,'' asserting that it
creates a bias against rural areas where one-stop centers are less
accessible.
Conversely, a number of other commenters stated that individuals
receiving self-service and information-only services should not be
considered participants for performance purposes, stating that
participation should not begin until an individual receives a staff-
assisted service. A commenter agreed that self-service individuals
should be excluded from the definition of ``participant,'' but
suggested that a performance analysis be conducted to assess the impact
of exclusion of self-service results on performance.
Departments' Response: The Departments recognize commenters'
concerns about the delivery of services in rural areas and recognize
the importance of leveraging virtual services technology to improve the
delivery of services in such areas. As discussed above, the Departments
do not consider all services provided virtually to be ``self-service''
and reiterate that such activities, even when delivered virtually, can
trigger participation and subsequent inclusion in performance
calculations. The Departments developed the proposed definitions in
order to maintain a level of rigor and accountability that is
consistently applied across programs, while also providing a platform
that is flexible enough to accommodate changes in service delivery
design and advancements in technology. As stated above, no changes to
the regulatory text regarding individuals who only use the self-service
system were made in response to comments, as these individuals are not
considered ``participants'' for purposes of the performance
accountability system.
With regard to the recommendation that a performance analysis be
conducted to assess the impact of exclusion of self-service and
information-only services or activities, the Departments analyzed a
number of factors before proposing the definition of participant,
including the relative impact of self-service exclusion and inclusion,
and concluded that exclusion of such services had little to no impact
on performance outcomes. Therefore, as stated above, the Departments
decline to change the regulation's definition of participants based on
these comments.
With regard to the recommendation that participation begin only
when an individual receives a staff-assisted service, the Departments
have concluded that to define such a precise attachment point in
regulation would prevent the performance accountability system from
being able to adapt and account for all the services that the programs
are providing. For example, an individual could receive staff-assisted
services in the form of an assessment in the WIOA youth program, or in
the form of fewer than 12 contact hours of AEFLA services, yet still
appropriately be excluded from the definition of a participant.
Comments: A few commenters suggested that self-service participants
should be included in Wagner-Peyser Act employment indicators or
measured separately.
Departments' Response: The Departments considered collection and
reporting burdens of doing so and did not revise the regulatory text to
require additional collection and reporting on reportable individuals
beyond the associated counts and information already required under the
WIOA Joint Performance ICR. However, States should feel free to conduct
additional analysis beyond what is required to be submitted to the
Departments, such as an analysis on outcome of Wagner-Peyser Act self-
service individuals. No change to the regulatory text was made in
response to these comments.
Comments: Several commenters remarked that, under the NPRM, a youth
receiving an assessment could be considered as receiving a staff-
assisted service and therefore be considered a ``participant.'' These
commenters further stated that this proposed regulation would conflict
with the discussion in the NPRM, which had proposed that a
``participant'' for performance calculation purposes of the WIOA youth
program, would be a ``reportable individual'' who was determined
eligible, received an assessment, and received a program element. These
commenters asserted that an assessment alone should not be considered a
staff-assisted service, and that the regulation should be revised to
conform to the language in the preamble of the NPRM. Another commenter
expressed similar concerns, stating that an assessment alone for any
individual in any program should not trigger participation.
Departments' Response: The Departments agree with the numerous
commenters who asserted the NPRM text regarding the definition of
``participant,'' as applied to the WIOA title I youth programs, could
potentially conflict with the stated intent in the preamble. The
Departments, therefore, revised the regulatory text by adding a new
Sec. 677.150(a)(2), which reflects the intent stated in the NPRM
preamble. In so doing, the Departments have made clear that a WIOA
program youth is not considered a ``participant,'' and subsequently
included in performance calculations, until the youth has been
determined eligible, received an objective assessment, developed an
individual service strategy, and received 1 of the 14 youth program
elements (as outlined in WIOA sec. 129(c)(2)). The Departments have
concluded that this change is consistent with the general definition of
a ``participant'' in Sec. 677.150(a), as well as the application of
the definition to all core programs. This differs from the NPRM only by
additionally requiring the youth participant to have satisfied the
applicable program requirement for provision of services, including
eligibility determination, objective assessment, and the development of
an individual service strategy, as required under WIOA sec.
129(c)(1)(B).
Comments: A few commenters suggested that co-enrollees be counted
as participants in all of the core programs from which they are
receiving services. A few commenters discussed the benefits of co-
enrollment, particularly for youth populations, and supported the idea
that eligible individuals may be co-enrolled in title I youth services
and title II adult education programs. One commenter requested
clarification regarding how to account for individuals enrolled in
multiple core programs. Another commenter remarked that differences
among programs and uncertainty about reporting co-enrollees create a
disincentive for co-enrollment.
Departments' Response: The Departments recognize the value of co-
enrollment across the core programs and greatly encourage efforts by
the core programs in States to establish the data infrastructure and
partnerships necessary to facilitate seamless enrollment in one or more
core programs under WIOA. The Departments encourage co-enrollment
between those programs that are required partners under WIOA, such as
the Jobs for Veterans State Grant Programs, the Trade Adjustment
Assistance (TAA) programs, and others as outlined in sec. 121(b)(1)(B)
of WIOA.
However, the Departments have concluded there is no need for
revision to the regulations to address these comments since WIOA sec.
116(d)(2)(I)
[[Page 55826]]
and Sec. 677.160(a)(1) require core programs to report the number of
participants who are enrolled in more than one of the programs
described in WIOA sec. 116(b)(3)(A)(ii), disaggregated by each
subpopulation of such individuals. Therefore, individuals who are co-
enrolled in more than one core program and who meet the definition of
participant under each respective program must be included in each
respective program's performance calculations.
These calculations, as proposed under the WIOA Joint Performance
ICR, would be done independent of the participant's participation in
another core program unless a State opted to implement such policies
for co-enrollment that allows for a common participation or exit date
based on entering any of the core programs. Under WIA title I, some
States maintained similar policies. For example, under WIA title I, in
those cases where an individual was initially enrolled in the Wagner-
Peyser Act program and subsequently received services under another
DOL-administered program, the participation date for each program was
the same and the receipt of a program's service was recorded as the
date of receipt for first service as named. Such practices are allowed
to continue under WIOA. Irrespective of the dates for participation and
exit, each program would account for the participants in its program,
and would be accountable for the outcomes of such participants in their
reporting. For example, a title I youth participant who is co-enrolled
in a title II AEFLA program and who also meets the definition of
participant under title II, would be included in the State performance
report for both title I youth and the AEFLA program under title II. No
change to the regulatory text was made in response to these comments.
Comments: Several commenters addressed the applicability of the
``participant'' definition to the VR program. A few of these commenters
noted that the proposed definition of ``participant'' would inflate the
number of individuals exiting the VR program without achieving an
employment outcome. Of these, one commenter stated it is not clear how
the definitions of ``participant,'' ``exit,'' and the calculation of
the performance indicators that rely on quarterly wage data are being
operationalized in the proposed VR ICR for the RSA-911, particularly as
it relates to calculating the denominator, and numerator. Specifically,
this commenter said that it appeared that quarterly earnings and
Federal Employer Identification Numbers (FEINs) only should be supplied
for those participants who achieve competitive integrated employment.
As a result, this commenter stated this would mean a significant number
of VR participants would be included in the denominator but would be
automatically excluded from the numerator for performance calculations
if they did not achieve a competitive integrated employment outcome,
even though they received significant VR services before exiting the VR
program. This commenter was concerned that this approach would not
provide a consistent and equitable comparison across all core programs
since the definition of ``participant'' means an individual who
received staff-assisted services. For example, this commenter asserted
that WIOA title I and title III (Wagner-Peyser Act Employment Service)
staff-assisted services may be quite limited compared to the intensive
and sustained services provided to VR customers under an individualized
plan for employment (IPE), the development of which requires
substantial VR counselor investment and is in itself a service that may
improve employment prospects. Therefore, this commenter recommended
that the denominator be likewise limited to those participants who
achieved competitive integrated employment or, in the alternative,
require quarterly earnings and FEINs for all participants, not just
those who achieved competitive integrated employment. This commenter
recommended that RSA provide the specific formula for calculating
performance indicators and provide a comment period. A few commenters
stated that the proposed definition of ``participant'' would exclude a
potentially large number of students with disabilities who receive pre-
employment transition services under the VR program. Another commenter
urged the Departments to provide guidance regarding the application of
the ``participant'' definition to the VR program.
Departments' Response: The Departments agree that the definition of
``participant,'' for purposes of the VR program, will include both
those individuals who exit the VR program after achieving an employment
outcome as well as those individuals who exit without achieving an
employment outcome. While the Departments understand that this
calculation is a departure from what was done by VR agencies under
prior 34 CFR 361.84(c), Sec. 677.150(a)(1) of the Joint WIOA Final
Rule is consistent with the use of the term ``participant'' throughout
sec. 116 of WIOA and its application to the primary performance
indicators set forth in sec. 116(b)(2)(A)(i) of WIOA. Moreover, the
definition of ``participant,'' for purposes of the VR program, at Sec.
677.150(a)(1) is consistent with the definition as applied to all core
programs in Sec. 677.150(a). Specifically, the definition of
``participant'' is broad enough to account for programmatic differences
but narrow enough to capture the same type of individual with respect
to each of the core programs. As the commenter noted, Wagner-Peyser Act
services are often characterized as self-services and information-only
activities. In accordance with Sec. 677.150(a)(3), individuals
receiving those kinds of services would not meet the definition of
``participant'' and, thus, there would be no comparison in the
performance calculations between these individuals and participants of
the VR program. However, individuals receiving Wagner-Peyser Act
services that go beyond self-services or information-only activities
would meet the definition of ``participant'' in Sec. 677.150(a). As
such, there would be comparability between this participant and a
participant of the VR program. The Departments recognize that VR
services are provided in a much more intensive manner and for a more
extended period of time than those provided by the Wagner-Peyser Act
program. Such differences will be reflected in the performance levels
established for each of the core programs.
With respect to performance calculations, the three employment-
related indicators measure the percentage of participants who are
employed in the second and fourth quarters after exit, as well as their
median earnings in the second quarter after exit. The Departments
provide further guidance regarding the performance calculations in the
WIOA Joint Performance ICR.
The Departments also agree that students with disabilities who
receive pre-employment transition services without having applied, or
been determined eligible, for the VR program would not satisfy the
definition of ``participant'' as set forth in Sec. 677.150(a)(1), but
rather would be tracked and reported as ``reportable individuals,'' as
defined in Sec. 677.150(b). However, if a student with a disability
applies and is determined eligible for the VR program and develops an
IPE that includes the provision of pre-employment transition services
or any other VR service, such student would satisfy the definition of
``participant'' as
[[Page 55827]]
set forth in Sec. 677.150(a)(1) and would be included in the
performance calculations as such. The Departments have provided
additional guidance regarding the reporting of ``participants'' in the
WIOA Joint Performance ICR. No change was made to the regulation at
Sec. 677.150(a)(1) in response to the comments.
Comments: Several commenters urged the Departments to adopt
consistent definitions regarding point of enrollment across titles
triggered by engagement in program activity, not just initial
assessment. They expressed particular concern for the youth program.
Departments' Response: The definition of ``participant'' takes into
consideration the unique purposes and characteristics of each program
and the ways in which an individual may access, and ultimately engage
in, services in each of the core programs, thereby focusing on the
established common point in service design and delivery that an
individual reaches regardless of the program. The Departments concluded
that it was sufficient to revise the definition of ``participant'' for
purposes of the WIOA youth program.
Comments: Several commenters sought clarification concerning the
distinction between the data collected for reportable individuals and
participants, particularly with regard to whether they are included in
performance calculations for the primary indicators of performance.
Departments' Response: While the Departments will collect and track
information on reportable individuals as well as participants, the
Departments currently do not intend to require reporting of outcomes of
reportable individuals. The Departments will notify States via the ICR
process of any collection and reporting requirements for reportable
individuals. No change to the regulatory text was made in response to
these comments.
Comments: A commenter asserted that older individuals with barriers
to employment may require priority in receiving staff-assisted
services, since these individuals are not as likely to use self-service
tools.
Departments' Response: The Departments recognize the unique
challenges faced by the different populations with barriers to
employment that affect both their access to and utilization of services
within the public workforce system. WIOA provides for meaningful access
to individuals seeking services, including individuals with multiple
barriers to employment. The regulation no longer refers to staff-
assisted services.
Comments: Several commenters stated that while the definition of
``participant'' is well suited for WIOA performance accountability
purposes, it is not suitable for many education programs and
postsecondary students. These commenters stated that postsecondary
students may participate in the workforce system in ways that are not
captured in the definition. For instance, students may take courses and
determine a degree pathway but never officially enroll in a program of
study.
Departments' Response: The definition of ``participant''
establishes a common point at which an individual is meaningfully
engaged in a core program. This takes into consideration the unique
purposes and characteristics of each program and the ways in which an
individual may access, and ultimately engage in, services in each of
these programs. For example, an individual who accesses postsecondary
education through the VR program, as set forth in title IV of WIOA,
would meet the definition of participant at the point at which the
eligible individual has an approved and signed IPE. Likewise, an
individual accessing a career pathway program funded through title II
would meet the definition of participant once the individual has
completed at least 12 contact hours. Therefore, because programmatic
differences are already accounted for, including differences regarding
educational programs, the Departments have made no change to this Joint
WIOA Final Rule regarding the definition of ``participant'' as applied
to an educational program. The Departments note that further clarity is
provided through the WIOA Joint Performance ICR. No change to the
regulatory text was made in response to these comments.
Comments: A few commenters stated that the definition of
``participant'' is problematic when applied to all individuals in a
program of study for the purpose of the eligible training provider
performance report.
Departments' Response: The Departments recognize the need for
clarity on terms as they apply to the eligible training provider (ETP)
performance reports applicable to the adult and dislocated worker
programs. There is further discussion on this and associated issues in
the preamble of Sec. 677.230 below. The Departments do not consider
all individuals in a program of study through an ETP as falling within
the definition of participants as defined under Sec. 677.150. No
change to the regulatory text was made in response to these comments.
Comments: Although the Departments received no comments
specifically on proposed Sec. 677.150(a)(4), which requires that
programs must include participants in their performance calculations,
the Departments received comments with respect to other areas of
performance accountability that highlighted the intersection between
WIOA core programs and their partner programs. Some commenters
addressed the general applicability of these provisions to the national
programs authorized under title I, particularly with regard to those
programs identified in WIOA sec. 121(b)(1)(B).
Departments' Response: The Departments reiterate that sec. 116
applies to other programs, including the national programs and the
partner programs identified in WIOA sec. 121(b)(1)(B), to the extent
provided for by provisions of WIOA pertaining to those programs and
their authorizing statutes and implementing regulations. In some
instances, these statutes or regulations invoke the performance
accountability provisions of WIOA sec. 116. In other instances, a
program has its own statutory or regulatory performance provisions that
apply to the program. In the case of ETP programs authorized at 20 CFR
part 680 and reported through Sec. 677.230 of these joint regulations,
the definitions under Sec. 677.150 only apply to those individuals who
are WIOA program participants who received training from an ETP. Where
Sec. 677.230 outlines required reporting for all individuals in a
program of study, these definitions under Sec. 677.150 do not apply.
Further direction regarding the terms, calculations, and reporting is
provided and discussed in the WIOA Joint Performance ICR. No change to
the regulatory text was made in response to these comments.
Because of WIOA sec. 134's unique eligibility requirements, the
Departments do not consider individuals who receive incumbent worker
training to be participants required for inclusion in the WIOA
performance indicator calculations. WIOA sec. 134(d)(4) requires the
Local WDB to determine if an employer is eligible to have its employees
receive incumbent worker training; there is no separate determination
of the eligibility of any particular employee to receive incumbent
worker training.
Definition of ``Reportable Individual'' (Sec. 677.150(b))
Section 677.150(b) defines ``reportable individual'' as an
individual who has
[[Page 55828]]
taken action that demonstrates an intent to use program services and
who meets specific program criteria for reporting, which may include
the provision of identifying information, the use of a self-service
system, or receipt of information-only services or activities. This
approach requires counting as a ``reportable individual'' those who use
the self-service system, or who receive only information-only services
or activities, as well as those who receive other services that may
occur prior to an individual meeting the definition of ``participant''
in Sec. 677.150(a).
A key difference between ``reportable individuals'' and
``participants'' is that reportable individuals are not included in
performance calculations for primary indicators of performance.
Furthermore, there currently is no requirement for the collection and
reporting of outcome data for reportable individuals, but the
Departments may propose an amended ICR through an additional PRA notice
and comment period, to require such collections and reporting in the
future if determined to be appropriate. The Departments intend to issue
more detailed guidance on the tracking and reporting of reportable
individuals under WIOA through the WIOA Joint Performance ICR,
Department-specific ICRs, guidance, and technical assistance.
The Departments revised Sec. 677.150(b) by deleting the word
``core'' to clarify that the definition of a ``reportable individual''
is not limited to core programs, as had appeared in proposed Sec.
677.150(b). With this change, a ``reportable individual'' is one who
has taken action that demonstrates intent to use program services and
who meets specific reporting criteria of the program. The Departments
also revised Sec. 677.150(b) to emphasize that the listed examples of
actions taken by a reporting individual (i.e., providing identifying
information, using the self-service system, or receiving information-
only services or activities) are neither exhaustive nor required. An
individual may be properly treated as a reportable individual without
having taken all of the actions identified at Sec. 677.150(b).
Similarly, an individual may take action demonstrating an intent to use
program services by meeting specific program reporting criteria other
than those identified at Sec. 677.150(b).
Comments: Of the commenters who remarked on the proposed definition
of ``reportable individual,'' most expressed support. Multiple
commenters applauded the Departments for establishing a definition that
is broad enough to cover students with disabilities who access pre-
employment transition services under the VR program but do not
subsequently apply for VR services.
Departments' Response: The Departments will continue to consider
further clarification that can be provided in program guidance, the
WIOA Joint Performance ICR, and Department-specific ICRs that support
alignment and consistency of performance definitions across all
programs and States. The final regulations for the VR program, which
are published elsewhere in this issue of the Federal Register, contain
specific provisions regarding the application of this definition as
applied to students with disabilities receiving pre-employment
transition services under the VR program.
Comments: A few commenters asserted that receipt of staff-assisted
services should align with the type of activity, not the level of
engagement of one-stop center staff.
Departments' Response: As discussed above with regard to the
definition of a ``participant,'' the Departments modified Sec.
677.150(a), particularly by adding Sec. 677.150(a)(3), to explain that
the point at which a person is a participant is when the person moves
beyond self-service or information-only services or activities. In the
NPRM, the Departments considered receipt of ``staff-assisted services''
to be the most common point across the core programs to define the
transition to being a participant. However, in response to comments,
the Departments modified the definition of participant to eliminate the
use of the term ``staff-assisted services'' thereby aligning the
definitions of ``participant'' and ``reportable individual'' and
clarifying the progression from ``reportable individual'' to
``participant.''
Comments: One commenter proposed that the appropriate point of
receipt of staff-assisted services should be when initial assessment
and eligibility documentation is complete.
Departments' Response: As noted above, the definition of
``participant'' no longer incorporates a reference to ``staff-
assisted'' services, but the definition continues to require that the
individual has received certain services after having satisfied all
programmatic requirements for the provision of services, such as
eligibility determination. The Departments note that the definition
does not explicitly require completion of an initial assessment, but it
does require satisfaction of all applicable programmatic requirements--
which may include an initial assessment or an eligibility
determination. No change to the regulatory text was made in response to
these comments.
Comments: One commenter suggested that ``reportable individuals,''
should be those individuals who have a signed and approved IEP.
Departments' Response: The Departments decline to adopt the
recommendation because to do so would be inconsistent with the
distinctions between the definitions of ``participant'' and
``reportable individual.'' The Departments plan to provide more
detailed guidance on the tracking and reporting of reportable
individuals under WIOA through the WIOA Joint Performance ICR,
Department-specific ICRs, guidance, and technical assistance.
Comments: Several commenters sought clarification concerning the
proposed definition of ``reportable individual.'' Of these, a few
commenters requested that the Departments clarify whether a pretest is
required for individuals in the AEFLA program in order to be considered
reportable.
Departments' Response: A reportable individual is an individual who
has taken action that demonstrates an intent to use program services
and meets the specific criteria of the program. Further explanation of
this definition is available through the WIOA Joint Performance ICR. A
pretest has no bearing on the status of an individual being a
participant or a reportable individual.
Comments: A few commenters stated that a clearer description of the
point at which an individual becomes ``reportable'' would enhance
comparability among States. Multiple commenters suggested that
individuals become ``reportable'' when an individual provides
identifying information. A commenter remarked that it is unclear how
agencies should track reportable individuals. This commenter stated
that an individual should not be considered reportable without
providing identifying information to enable tracking.
Departments' Response: The Departments note that the regulations
simply require the reporting of reportable individuals. Someone can be
considered a reportable individual without providing identifying
information. The Departments intend to issue further program guidance
to aid States in implementing the requirement to report on ``reportable
individuals.'' No change to the regulatory text was made in response to
these comments.
Comments: A commenter thought that the term ``reportable
individual'' may not be easily understood by the general
[[Page 55829]]
public and suggested ``customer'' as an alternative.
Departments' Response: The Departments have concluded that
``customer'' would not be an appropriate term for these purposes as all
individuals who are served through a program would be considered
customers. The terms in Sec. 677.150 are consistent with the purposes
outlined in this section and with the requirements of sec. 116 of WIOA.
No change to the regulatory text was made in response to these
comments.
Comments: A commenter inquired as to whether an individual could
first be tracked as a participant and then tracked as a reportable
individual if the person exited the program after receiving services
and was subsequently determined to be ineligible.
Departments' Response: To do as the commenter suggests would be
inconsistent with the definitions of ``participant'' and ``reportable
individual'' at Sec. 677.150(a) and (b). To be clear, an individual is
a ``participant'' if he or she is a ``reportable individual'' who has
satisfied programmatic requirements for the receipt of services, such
as eligibility determination, and has received services that go beyond
self-service or information-only services or activities. Therefore,
once an individual crosses the threshold from ``reportable individual''
to ``participant'' by receiving such services, this does not change by
virtue of the fact that the individual eventually exits the program
because he or she is later determined ineligible. Neither the
definition of ``participant'' nor ``reportable individual'' contain
requirements related to the individual's exit from the program. Those
requirements are set forth in the definition of ``exit'' at Sec.
677.150(c), discussed in more detail below. The Departments will
provide further guidance regarding the reporting of participants and
reportable individuals in the WIOA Joint Performance ICR and
Department-specific ICRs, as well as guidance and technical assistance.
No change to the regulatory text was made in response to these
comments.
Definition of ``Exit'' (Sec. 677.150(c))
Section 677.150(c) defines the term ``exit'' for purposes of the
performance accountability system for the core programs under WIOA, as
well as applicable non-core programs as described through regulation or
guidance. Several of the primary indicators of performance require
measuring participants' progress after they have exited from the
program.
Generally for core programs, except for the VR program, ``exit'' is
the last date of service. The last date of service means the individual
has not received any services for 90 days and no future services are
planned. For the purpose of this definition, ``services'' do not
include self-service, information-only services or activities, or
follow-up services. Therefore, as set forth in Sec. 677.150(c)(1)(i),
in order to determine whether an individual has exited, States will
retroactively determine if 90 days have passed with no further services
provided and no further services scheduled.
The definition of ``exit'' at Sec. 677.150(c)(2) for the VR
program is similar to that in Sec. 677.150(c)(1) in that it marks the
point at which the individual is no longer engaged with the program and
there is no ongoing relationship between the individual and the
program. However, because of specific programmatic requirements between
the VR program and other core programs, it was essential that the
definition of ``exit'' clarify when the individual's relationship with
the VR program ends. Under the VR program, an individual is determined
to have exited the program on the date the individual's case is closed
in accordance with VR program requirements.
Even with this programmatic distinction, the calculations are
essentially the same as with the other core programs because in all
instances the ``exit'' count captures all persons who are no longer
active participants in any of the core programs. In addition, for
purposes of the VR program, the Departments exclude from the definition
of ``exit'' those individuals who have achieved supported employment
outcomes at subminimum wages. This provision is necessary to implement
WIOA's heightened emphasis on competitive integrated employment. There
are no substantive changes to Sec. 677.150(c)(2).
Comments: The Departments received numerous comments, in response
to both the NPRM and the proposed WIOA Joint Performance ICR, regarding
whether an individual would be counted more than once in a program year
if he or she met the definitions of ``participant'' and ``exit'' more
than once in that same program year. The majority of these commenters
opposed the Departments' position, set forth in the proposed WIOA Joint
Performance ICR, which was that an individual only would count once in
a program year.
Departments' Response: The Departments note that under WIA, DOL
counted as an ``exit'' from its programs for performance accountability
purposes each time in a program year a participant exited from a
program, regardless of whether the participant exited more than once in
that program year. This was referred to as calculating on a ``period of
participation'' basis. Thus, the same individual could be counted as
more than one ``participant'' and as having more than one ``exit'' in
that same program year for the performance accountability calculations.
Although States reported individuals similarly for the VR program,
States reported an individual only once in a program year under the
AEFLA program, regardless of whether the individual would meet the
definitions of ``participant'' and ``exit,'' more than once in a
program year.
The NPRM was silent as to whether ``participants'' and ``exits''
should count more than once in the same program year. However, the
Departments proposed a different approach in the proposed WIOA Joint
Performance ICR published on July 22, 2015 at 80 FR 43474. In the
proposed WIOA Joint Performance ICR, the Departments proposed counting
each individual once per program year regardless of how many times an
individual met the definitions of ``participant'' and ``exit'' in Sec.
677.150 within that same program year.
After consideration, the Departments agree with the concerns raised
by commenters. In response to those comments, the Departments will
include in the performance calculations each time a participant exits
from a program during a program year, even though this could result in
such a person being counted as more than one participant. This
calculation method for performance accountability purposes maintains
the reporting approach historically used by some programs, as discussed
above, and by linking a set of services or interventions to outcomes
for each exit during a program year, strengthens accountability.
However, the Departments will require States to provide unique
identifiers for each individual ``participant'' so that the Departments
will be able to calculate the number of unique participants in each
core program during a program year. The Departments will provide
technical assistance and guidance to States, including the WIOA Joint
Performance ICR, as they take the necessary steps to modify their
systems and processes to comply with these instructions.
Comments: Many commenters provided input regarding the proposed
definition of ``exit'' and responded to the Departments' request for
comments
[[Page 55830]]
on the costs and benefits of taking either a program exit approach or a
common exit approach. A number of commenters expressed support for
utilizing a common exit in order to support career pathways and cross-
program participation that would benefit participants. One commenter
supported the use of a common exit, specifically phased in over a 4-
year period. Conversely, other commenters opposed the use of a common
exit and stated that the Departments should maintain program exits.
Commenters cited numerous reasons for maintaining program exits
including that: (1) Program exits are preferable to comply with sec.
504 of WIOA, which requires States to simplify and reduce reporting
burdens; (2) States should be permitted to choose whether to use a
program exit or a common exit, and indicate their selection in the
Unified or Combined State Plan; (3) States should have the option to
use integrated periods of participation with common program exit dates
for some or all core programs; and (4) a common exit would be
problematic if the services provided by multiple programs are
sequential.
Departments' Response: Common Measures policies that included the
use of common exit as a reporting structure were developed by ETA in
2005 for use in title I programs under WIA as an acknowledgment that
integrated reporting was key to integrated case management. The efforts
to promote the use of a common exit across WIOA title I and Wagner-
Peyser Act Employment Service programs have significantly increased the
use of common exit policies across States.
The Departments have concluded that continuing common exit policies
would emphasize the importance of an individual receiving and
completing all program services necessary to ensure a successful
attachment to the labor market. The Departments also recognize that the
use of a common exit is dependent on the ability of States to exchange
data effectively and efficiently across core programs in order to
determine outcomes for each of the programs. The Departments considered
each of the commenters' concerns and suggestions with regard to the
proposed definition of exit and have revised the definition by adding
Sec. 677.150(c)(3) to allow WIOA title I and Wagner-Peyser Act
Employment Service (title III) programs to utilize a common exit
policy. The decision to allow a common exit date for WIOA title I and
Wagner-Peyser Act Employment Service programs--and not for the AEFLA
and VR programs under WIOA titles II and IV, respectively--was based on
a number of factors. In particular, under WIA and continuing under
WIOA, DOL encouraged co-enrollment between the title I and Wagner-
Peyser Act Employment Service programs resulting in many states
developing a common exit policy or co-enrollment strategies which DOL
does not seek to disrupt. The ED will explore the feasibility of the
use of a common exit policy for its title II and VR programs.
The concept of integrated case management and common exit has
extended beyond WIOA title I core programs and Wagner-Peyser Act
Employment Service programs to their DOL partner programs, such as the
TAA program and the JVSG program. Paragraph (c)(3)(i) of Sec. 677.150
provides that where a State has implemented a common exit policy, the
policy may extend to those required partner programs administered by
DOL. As such, DOL encourages States to implement common exit policies
consistent with these joint regulations.
Since 2009, co-enrolling TAA participants with WIOA title I and
Wagner-Peyser Act Employment Service programs has continued to provide
participants supportive services, such as childcare and local
transportation costs, that are not available under TAA. Further, due to
the variable geography of TAA certified worker groups, WIOA title I
program services and Wagner-Peyser Act Employment Service are often
essential in providing prompt assessments and follow up services that
complement the more substantial training and other services funded
under TAA.
Similarly, the Veterans Employment and Training Service worked to
align its programs with WIOA as a key partner program. Currently, JVSG
and Wagner-Peyser Act Employment Service have a common exit in multiple
States. This ensures that program participants who may be co-enrolled
exit all programs at the same point, and are measured and tracked for
employment outcomes based on the same point. This approach is aligned
with the idea that DOL's one-stop center programs offer seamless
services to participants and that, despite referral to or from partner
programs, employment outcomes are not measured until services are
complete. The modifications to the definition of exit in this Joint
WIOA Final Rule allow for these practices to continue and also allow
States the flexibility to implement and move forward with existing
common exit policies for programs administered by DOL.
Comments: A few commenters cited the challenge of matching and
exchanging data across agencies. Multiple commenters recommended
implementing a research study to examine the use of the common exit,
rather than codifying this requirement in regulation. One commenter
stated that a common exit would make it very difficult to track and
conduct follow up services. A commenter stated that the cost of
reporting a common exit is prohibitive for that State. A commenter
remarked that a common exit would be the costliest option.
Departments' Response: The Departments recognize the challenges
raised by commenters with regard to infrastructure and integration of
data systems that would be required under a common exit policy. Under
the current regulation, the States have the discretion to choose to
adopt a common exit policy for DOL-administered programs. The
Departments acknowledge that certain States are at different stages and
may vary in their approaches and ability to adopt a common exit across
multiple programs. The Departments also note, however, that common exit
supports a customer-centric design that allows programs to leverage co-
enrollment for individuals who are eligible for, and need, multiple
services that cross program lines without penalizing programs that may
have to delay outcomes for those individuals referred to or co-enrolled
in a partner program. Further, common exit policies have allowed
smaller pilot, discretionary, or partner programs to access data and
outcomes at a level that would not be available through their grant or
program alone.
With WIOA's focus on integration, common exit is a natural
progression where appropriate infrastructure, and integrated data
systems exist across programs. The DOL envisions full implementation of
a common exit across the States for the DOL core programs. The DOL
understands this is a long-term goal and intends to support States from
where they are at in terms of capacity and structure towards achieving
this goal. With this in mind, the Departments will require the States
to develop a plan for implementing a common exit policy and will
require States to share that plan with the Departments. The Departments
anticipate modifying the requirements for State Plans through the
information collection request process and will require the States to
share their plans for implementing a common exit policy through the
State Plan and will also require the States to conduct an examination
and analysis of their capacity and structures that would support a
common exit policy for the DOL core programs under title I and the
[[Page 55831]]
Wagner-Peyser Act Employment Service program. This will allow DOL to
support the States as they move towards implementing a common exit
policy.
The Departments will continue to work with State and Local WDBs,
one-stop center operators, and partners to achieve an integrated data
system for the core programs and other programs to ensure
interoperability and standardized collection of program and participant
information, particularly for those States that have a common exit
policy. Paragraph (c)(3) of Sec. 677.150 allows for the use and
implementation of common exit policies for DOL administered-programs.
The Departments encourage the use of common exit for DOL-administered
programs, but do not currently require its immediate implementation,
due partially to the commenters' concerns about potential difficulties
and costs in implementing common exit. The Departments have concluded
that this approach is responsive to both commenters who supported
common exit as well as to commenters who supported program exits and
appropriately allows States flexibility to choose to continue their use
of common exit or to plan for the full implementation of common exit as
a policy for WIOA title I and Wagner-Peyser Act Employment Service
programs. Additionally the Departments will seek to collect information
through the appropriate information collection vehicles on existing
common exit policies, the programs included in those common exit
policies, and their impacts on program design and outcomes.
Comments: Many commenters supported the use of common exit in
theory, but expressed reservations about the implementation of a common
exit to title I youth programs, asserting that the use of a common exit
would delay reporting of multiple performance indicators, harming the
performance of the youth programs. These commenters suggested that the
Departments encourage co-enrollment without a common exit, provide
instruction for the identification in the participant record of
individuals who are co-enrolled, and afford local programs the
flexibility to use a program-specific exit or a common exit.
Departments' Response: In response to the concerns raised about
common exit and its effect on the performance of WIOA youth programs,
predominately concerning the short-term or self-service nature of some
programs as opposed to other programs providing longer-term or more
intensive services, the Departments have clarified that the definition
of ``participant'' at Sec. 677.150(a)(3)(ii) and (iii) excludes
individuals who receive only ``self-service'' or ``information-only
services or activities.'' As noted above, States--not individual
programs within a State--are afforded the flexibility to use program-
specific exit or common exit. It does not appear feasible or preferable
for individual programs within a State to choose the type of exit to
implement.
Comments: A number of commenters made additional suggestions
specific to youth programs. One commenter stated that title I youth
programs should have a defined end date, at which point participants
should be considered to have exited, rather than waiting 90 days.
Another commenter stated that local programs currently believe that no
title I youth funds may be spent on youth once they exit, and requested
clarification concerning follow-up services for youth conducted after
an individual has exited. In addition, several commenters suggested
that a hold status be maintained for youth who are not receiving
services due to documented hardships. These commenters stated that a
hold status would avoid counting these individuals as having exited if
they reengage after the 90-day window.
Departments' Response: While the Departments understand the
concerns raised by commenters, the Departments decline to modify the
definition of ``exit'' at Sec. 677.150(c) with regard to the 90-day
period of no services. This definition maintains consistency with the
definition of exit applied across other programs. Paragraph (c)(1)(i)
of Sec. 677.150 requires that 90 days of no services (except for self-
service, information-only services or activities, and follow-up
services) must have elapsed, and no future services, other than follow-
up services, may be planned in order for a participant to satisfy the
definition of ``exit.''
Conversely, Sec. 677.150(c)(3) adds flexibility for States that
have or are pursuing common exit policies and strategies for their
programs under WIOA titles I and III (Wagner-Peyser Act Employment
Service) as well as other required partner programs that are
administered by DOL. The clarification in this Final Rule that self-
service and follow-up services do not delay exit should allay the
commenters' concerns regarding delayed reporting. By definition,
follow-up services are provided to youth following exit and as a
result, title I youth funds may be spent on participants once they exit
in order to provide such follow-up services.
For the sake of clarification, such expenditures of title I youth
funds on participants for follow up services after exit do not result
in delaying an individual's exit from the program. Section 681.580 (see
DOL WIOA Final Rule published elsewhere in this issue of the Federal
Register) clarifies which youth formula program elements may be
provided during follow-up. Additionally, DOL will issue guidance on
providing effective follow-up services for the programs it administers.
Although the Departments are not implementing a ``hold status'' as
suggested by the commenters, DOL will clarify through guidance the
circumstances under which a ``gap in service'' may be appropriate in
order to delay exit for those States that implement a common exit
strategy for DOL-administered programs.
Comments: Numerous commenters responded to the Departments'
solicitation for comments regarding the effect of self-service
activities on a participant's exit date. Most of the commenters
asserted that self-service should not be used to delay the date of exit
or count as re-enrollment in a program. However, other commenters
asserted that individuals who access self-service activities should
continue to qualify as participants because the use of these services
indicates that participants have not completed their search for
employment. One commenter suggested that self-service participants
should continue to be tracked as reportable individuals.
Departments' Response: The Departments acknowledge commenters'
recommendation that self-service not be used to delay the exit date or
qualify as re-enrollment. With regard to individuals who continue to
use self-service, the Departments note that individuals access self-
service tools for a variety of reasons, but the decision to retain an
exclusion of self-service from the definition of ``participant'' at
Sec. 677.150(a)(3)(ii) is consistent with the decision in the NPRM to
establish a uniform program attachment point in service delivery and
design from which to compare programs. See the extensive discussion
regarding the definition of ``participant'' and Sec. 677.150(a),
above.
Comments: Commenters raised a number of questions regarding various
aspects of the proposed definition of ``exit,'' including requests for
clarification regarding whether exit means exiting a core program or
exiting all WIOA services.
Departments' Response: Whether ``exit'' means from a specific
program or a common exit from multiple programs depends on whether a
State has implemented a common exit policy for DOL-administered
programs. As discussed in more detail above, the
[[Page 55832]]
Departments have modified the definition of exit at Sec. 677.150(c)(3)
to allow WIOA title I and Wagner-Peyser Act Employment Service programs
to apply a common exit policy. States that lack a common exit policy
across title I and Wagner-Peyser Act Employment Service programs will
be required to conduct an assessment and develop a plan towards
implementing a common exit policy. Additionally, States that retain or
develop a common exit policy across title I and Wagner-Peyser Act
Employment Service programs may extend such a policy to DOL-
administered required partner programs identified in WIOA sec.
121(b)(1)(B). Further, States with common exit policies that include
WIOA title I core programs and Wagner-Peyser Act Employment Service
programs should ensure those policies align with the criteria in Sec.
677.150(c).
Comments: Several commenters expressed concerns regarding the
definition of ``exit'' for purposes of the VR program since individuals
served by VR typically require lengthier service delivery and follow-up
activities than the other core programs. A few commenters also stated
that a common exit would better protect individuals in the VR program
from exiting the program before receiving the services they need.
Departments' Response: As other commenters have noted, the VR
program typically requires lengthier period of service delivery than
the other core programs. While not common, it is possible for a single
VR participant to receive services for 10 years, and service durations
of 3 to 5 years are not unusual. If there were a single exit, it would
mean that other programs would not be able to exit these co-enrollees
until the VR case was closed. The VR program is not included under the
common exit provision at this time, because if they were incorporated
into the common exit provision, programs under other WIOA titles would
not be able to report exit achievements until the time of the VR
closure, no matter how much time had elapsed since participation in
those programs. With the VR program having a separate closure process,
individuals are shielded from the entreaties of other programs that may
wish to close the case. The ED will explore the feasibility of the use
of a common exit policy for its title II and VR programs. No change to
the regulatory text was made in response to these comments.
Comments: Some commenters expressed support for expanding the
proposed definition of ``exit'' to reference the termination of staff-
assisted services.
Departments' Response: The definition of ``participant'' at Sec.
677.150(a) no longer references the term ``staff-assisted'' services
due to concerns raised by many commenters about the confusion such term
raises. Section 677.150(a) now describes the services as being those
other than self-service and information-only services or activities,
which are described further in Sec. 677.150(a)(3). See the response to
comments related to the definition of ``participant'' above regarding
the Departments' elimination of the term ``staff-assisted'' services
from the definition; therefore, it is not necessary to expand the use
of that term with regard to the definition of ``exit'' as the
commenters suggest.
Comments: Several commenters remarked on the application of the
definition of ``exit'' to education programs, noting that the
definition does not account for a transfer between institutions or
participants not taking a class during the summer term that could
exceed the 90-day timeframe.
Departments' Response: Section 677.150(c)(1)(i) makes clear that a
participant ``exits'' a program only if 90 days of no services have
elapsed and there are no future services planned. Please see the
analysis of comments regarding Sec. 677.230, below, for further
discussion of these and other terms as they apply to eligible training
providers.
Comments: Some commenters suggested the Departments revise the
definition of ``exit'' at Sec. 677.150(c) to lengthen the proposed 90-
day period of no services to 120 days, citing the challenges of
sporadic engagement in services in which youth cycle in and out of
services. In such cases, service delays can extend an exit beyond the
90 days. One commenter suggested doubling the 90-day window to 180
days. Other commenters suggested shortening the 90-day period.
Departments' Response: Although the Departments recognize that out-
of-school youth, among other examples, may be a population that is
difficult to engage in continuous services, the Departments have
concluded that it is important to maintain consistency across all core
programs regarding the definition of exit. The 90-day period has a
basis in historical application. Under WIA, the DOL-administered
programs and the AEFLA program under title II used 90 days of no
service as a benchmark for determining when services had ended.
Similarly, prior to WIOA the VR program closed an individual's service
record after services had ended and the individual had maintained
employment for 90 days.
The Departments have not revised the definition of ``exit'' at
Sec. 677.150(c) since lengthening the timeframe would delay outcomes
for indicators that are already lagged behind the actual time period of
exit, such as employment-related primary indicators that measure a
participant's employment at the second and fourth quarters after exit
and the median earnings of a participant in the second quarter after
exit. The Departments have concluded that the 90-day period of no
service strikes the appropriate balance for knowing how the programs
are performing while providing enough time to account for sporadic
participation. No change to the regulatory text was made in response to
these comments.
Comments: Some commenters expressed support for retaining the
current ``neutral'' exits. Other commenters urged the Departments to
adopt a more flexible exit policy that would allow participants who
were ``negative'' exits due to loss of contact with the program, to
reengage and positively exit if performance outcomes are achieved.
Departments' Response: There are a number of reasons why
individuals exit from the programs in which they are enrolled. The
current definition of ``exit'' allows for performance accountability
that can uniformly translate across programs, while also retaining
critical programmatic differences and the policy-based flexibility for
States in their program engagement and design. The Departments have
concluded that the definitions in Sec. 677.150, including that for
``exit'' at Sec. 677.150(c), are consistent with their applicability
to the performance accountability system set forth in sec. 116 of WIOA.
A ``neutral'' exit, as it relates to the performance accountability
provisions, allows the State to exclude certain participants from the
calculation of the primary indicators. The Departments have concluded
that there is sufficient statutory authority to permit certain
exclusions, as appropriate, from the performance calculations for the
primary indicators of performance. The Departments have implemented
these exclusions through the WIOA Joint Performance ICR. The
Departments have concluded that it is important to account for
premature exits from the program and that modifying the definition of
``exit'' to allow neutral exits would undermine program accountability
intended by WIOA. The Departments intend to provide guidance on how to
calculate the primary
[[Page 55833]]
indicators of performance and provide guidance on other performance-
related requirements through the WIOA Joint Performance ICR,
programmatic guidance, and technical assistance. No change to the
regulatory text was made in response to these comments.
Comments: A commenter emphasized the need for guidance regarding
the transition from active programming to follow-up services,
particularly as it relates to the definition of ``exit.''
Departments' Response: The Departments will provide further
guidance regarding the transition from active programming to follow-up
services as it relates to the definition of ``exit.''
Definition of ``State'' (Sec. 677.150(d))
The Departments have added a definition of ``State'' as Sec.
677.150(d) to specify that the outlying areas are subject to the
performance accountability provisions of part 677. This provides that,
for purposes of part 677 other than in regard to sanctions or the
statistical adjustment model, ``State'' includes the outlying areas of
American Samoa, Guam, Commonwealth of the Northern Mariana Islands, the
U.S. Virgin Islands, and, as applicable, the Republic of Palau. In so
doing, as discussed in detail immediately below regarding outlying
areas, the Departments ensure that the performance accountability
requirements apply to the outlying areas as well. This regulatory
change is essential to ensuring consistency with the Departments'
decision to require outlying areas to submit Unified or Combined State
Plans which, pursuant to sec. 102 of WIOA must include expected levels
of performance, thereby making the performance accountability system
applicable to the outlying areas.
In the NPRM, the Departments specifically requested comments about
the applicability of WIOA sec. 116 performance accountability system
requirements to the core programs administered by the outlying areas,
namely American Samoa, Guam, Commonwealth of the Northern Mariana
Islands, the U.S. Virgin Islands, and, as applicable, the Republic of
Palau (80 FR 20574, 20583-20584 (April 16, 2015)). The Departments
explained the ambiguity that was created by differing terms and
definitions for outlying areas and States, for purposes of the title I
core programs, but made clear that titles II and IV specifically
subject adult education and VR grantees, including outlying areas, to
the common performance accountability system set forth in sec. 116 of
WIOA.
Sections 189(a) and (c) of WIOA provide the authority to impose
planning and performance reporting requirements on outlying areas,
which is being accomplished through this definition. The decision to
treat outlying areas as States for purposes of the common performance
accountability system dovetails, and is consistent with, the
Departments' decision to treat outlying areas the same as States for
purposes of the Unified and Combined State Plan requirements, as
discussed elsewhere in this preamble with respect to part 676 of this
Joint WIOA Final Rule.
Although the Departments will hold the outlying areas accountable
for complying with the performance accountability system requirements
of sec. 116 of WIOA and part 677, the Departments will not impose
monetary sanctions against the outlying areas pursuant to sec.
116(f)(1)(B) of WIOA for two reasons. First, the sanctions are imposed
against the Governor's Reserve under sec. 128(a) of WIOA, which the
outlying areas do not receive. Second, the sanctions are imposed when a
State fails to satisfy the adjusted levels of performance or fails to
report. The adjusted performance level is based on several required
factors set forth in sec. 116(b)(3)(A)(v) of WIOA, including, among
other things, the use of a statistical adjustment model. The
performance output data provided by the core programs in the outlying
areas yield too small a sample size; thus, applying an adjustment model
to the outlying areas will not yield a valid result. In addition, there
are cases in the outlying areas where required data are not available
to run the statistical adjustment model. Despite the fact that the
Departments will not impose monetary sanctions against the outlying
areas in accordance with sec. 116(f)(1)(B) of WIOA, the Departments
want to make clear that the Departments will hold outlying areas
accountable for poor performance or failure to report through technical
assistance and the development of performance improvement plans in
accordance with sec. 116(f)(1)(A) of WIOA.
3. State Indicators of Performance for Core Programs (20 CFR Part 677,
Subpart A; 34 CFR 361.155 Through 361.175; 34 CFR 463.155 Through
463.175)
Section 677.155 What are the primary indicators of performance under
the Workforce Innovation and Opportunity Act?
Section 677.155 implements the primary indicators of performance as
set forth in WIOA sec. 116(b)(2)(A)(i). These primary performance
indicators apply to the core programs described in sec.
116(b)(3)(A)(ii) of WIOA, and administered by ED's OCTAE and RSA, and
DOL's ETA. These primary indicators of performance create a common
language shared across the programs' performance metrics, which the
Departments anticipate will support system alignment, enhance
programmatic decision-making, and facilitate consumer choice. The
Departments implement the requirements of sec. 116 of WIOA through this
Joint WIOA Final Rule, as revised and described in this preamble.
Comments: A commenter expressed concern about the cost and time it
would take to establish and operate a fiscal and management
accountability information system.
Departments' Response: The Departments recognize the concerns
raised with regard to the infrastructure, and resulting cost, required
to implement the performance, fiscal, and management accountability
information systems. No changes to the regulatory text were made in
response to this comment because the performance accountability
provisions outlined within sec. 116 of WIOA clearly mandate States and
local areas to collect and report on the information contained in part
677. The Departments want to make clear that all core programs were
required, even prior to the enactment of WIOA, to operate fiscal and
management systems pursuant to WIA, former OMB Circular A-87, OMB's
Uniform Guidance (2 CFR part 200), and programmatic requirements. It is
important to note that WIOA's requirements for States to operate such
systems are very similar to those required under WIA, which is why the
Departments do not consider these to be new requirements. However, the
Departments acknowledge an integration of such systems would be a
departure from that required under WIA and recognize that time and
resources combined with guidance and technical assistance will be
necessary before an integration of fiscal and management systems could
occur.
The Departments have concluded that system integration will, in the
long-term, reduce administrative and reporting burden while supporting
alignment and comprehensive accountability across all of the core
programs. The Departments will work with State and Local WDBs, one-stop
center operators, and partners to achieve an integrated data system for
the programs covered by WIOA to ensure interoperability and the
accurate and
[[Page 55834]]
standardized collection of program and participant information.
Integrated data systems will allow for unified and streamlined intake,
case management and service delivery, minimize the duplication of data,
ensure consistently defined and applied data elements, facilitate
compliance with performance reporting and evaluation requirements, and
provide meaningful information about core program participation to
inform operations. Data integration may be accomplished through a
variety of methodologies including data sharing, linking systems, or
use of data warehouses.
Comments: A commenter urged State and local planning efforts to use
the most current Census and administrative data available to develop
estimates of each priority service population.
Departments' Response: The Departments note that the WIOA State
Plan ICR provides guidance as to what information should be included in
the analysis and the State Plan requirements. No change to the
regulatory text is being made in response to this comment.
Comments: A commenter recommended creating data systems to separate
participants by program and local area and allowing the progress
measures to be skills based using goal setting rather than time
intervals. A commenter recommended adding self-sufficiency as an
indicator of performance. Commenters supported workforce system
performance that addresses the needs of veterans with disabilities.
Departments' Response: Changing the primary indicators of
performance to a skills-based measurement system, rather than one based
on time intervals, would not be consistent with the primary indicators
of performance set forth in sec. 116(b)(2)(A)(i) of WIOA, which require
the measurement of employment in the second and fourth quarters after
exit, the attainment of a credential during participation in the
program and up to 1 year post exit, and the attainment of measurable
skill gains during the program year. WIOA clearly establishes
timeframes for each of these primary indicators of performance.
However, sec. 116(b)(1)(A)(ii) of WIOA and Sec. 677.165 permit
States to develop additional indicators of performance. If a State were
to do so, the State could implement skills-based indicators or
indicators that measure self-sufficiency or services to veterans with
disabilities as suggested by commenters. The Departments encourage
State and Local WDBs to work in collaboration to identify and implement
additional indicators of performance that aid in the management of
workforce programs in their State. No change to the regulatory text is
being made in response to this comment.
Comments: In the preamble to the NPRM, the Departments requested
comments on using the performance indicators identified in Sec.
677.155 for additional programs beyond the core programs. The
Departments postulated that this broader use of the six primary
indicators of performance could streamline reporting on other DOL-
administered programs, such as the JVSG program and other discretionary
grant programs. Commenters supported the use of common metrics across
education and workforce programs wherever appropriate. Commenters also
raised questions about alignment with various specific programs, such
as Migrant and Seasonal Farmworkers, Job Corps, Indian and Native
American, Family Literacy, Integrated English Literacy and Civics
Education, Wagner-Peyser Act Employment Service, Adult Education, and
JVSG.
Departments' Response: The Departments acknowledge that WIOA has
introduced unprecedented opportunities for alignment and as such,
envision integration across workforce programs to the maximum extent
feasible. The core programs, described in sec. 116(b)(3)(A)(ii) of
WIOA, are covered under this Joint WIOA Final Rule and the WIOA Joint
Performance ICR. National programs such as Job Corps, the National
Farmworker Jobs Program, and the Indian and Native American adult and
youth programs that are authorized under title I of WIOA are also
aligned under this regulation, as well as their respective program
regulations at 20 CFR parts 686 (Job Corps), 685 (National Farmworker
Jobs Program), and 684 (Indian and Native American Program).
Additionally, the Departments intend that DOL-administered partner
programs authorized by statutes other than WIOA and not covered under
these joint regulations, such as the JVSG programs and the TAA
programs, will be aligned with the performance accountability system
under WIOA through both legislative and policy guidance. The
Departments recognize the variety of interactions among programs under
WIOA and programs authorized by other statutes. The Departments
understand the need for further guidance and clarification, which will
be issued throughout the workforce development system and which will
include information on how and where to report.
Comments: A commenter noted that many programs for out-of-school
youth, including Job Corps, often use accredited online high school
programs to provide education to youth participants. The commenter
requested that any measure intended to capture progress on achieving or
attaining a high school diploma or recognized equivalency degree should
reflect any State-accredited standard.
Departments' Response: Details regarding accreditation are beyond
the scope of this Joint WIOA Final Rule and will be addressed in
guidance or in the WIOA Joint Performance ICR or DOL Performance ICR.
No change to the regulatory text is being made in response to this
comment.
Comments: Commenters requested guidance and examples on several
subjects, such as: Measuring and reporting registered apprenticeship
performance; how wages for successful and unsuccessful closures are
used and measured; performance data for industry-driven credentials;
students with degrees from another country; areas where net income can
apply as a performance indicator; incorporating self-employment as a
successful outcome; performance metrics; when enrollment occurs;
operational definitions; determination of competitive wage; cross
program impacts; individualized measurements of the six primary
indicators as relates to VR consumers; and individual skills
measurement. A few commenters asked that States be allowed flexibility
in developing data sharing agreements and additional performance
measures.
Departments' Response: The Departments acknowledge the need for
clarification and examples to illustrate the methods that each of the
core programs will use to determine performance on the primary
indicators, including details regarding data collection for self-
employment outcomes, as well as educational attainment and measurable
skill gains. The Departments will address these issues in guidance and
in the instructions for program-specific reporting requirements
contained in the WIOA Joint Performance ICR.
With regard to requests for State flexibility in developing data
sharing agreements and additional performance measures, sec.
116(b)(1)(A)(ii) of WIOA and Sec. 677.165 permit States to implement,
through their State Plans, additional indicators of performance and
encourage States to also leverage their program collection and
reporting to analyze and manage performance of their programs. With
regard to data sharing agreements States have the flexibility to enter
into data sharing agreements, ensuring that such
[[Page 55835]]
agreements meet all applicable Federal and State statutory and
regulatory confidentiality requirements. No change to the regulatory
text is being made in response to this comment.
Section 677.155(a)(1) identifies the six primary indicators of
performance that will be applied to the core programs identified in
sec. 116(b)(3)(A)(ii) of WIOA. Where practicable, DOL intends to
leverage these indicators to streamline reporting for other DOL-
administered programs, such as the JVSG program, TAA and other
discretionary grant programs.
Section 677.155(a)(1)(i) implements the first primary indicator as
described in sec. 116(b)(2)(A)(i)(I) of WIOA. This primary indicator is
a measure of the percentage of program participants who are in
unsubsidized employment during the second quarter after exit from the
program. There are no changes to Sec. 677.155(a)(1)(i) from that
proposed in the NPRM, which mirrors the statutory requirement of WIOA
sec. 116(b)(2)(A)(i)(I).
Comments: A commenter recommended that calculated employment
percentages should not include individuals who never received core
program services.
Departments' Response: The issue raised by the commenter is more
closely related to the definitions of ``participant'' and ``reportable
individual,'' as set forth in Sec. 677.150 and which are discussed in
detail above. The Departments have concluded that these definitions are
clear in setting the standards under which participants are included in
performance calculations for purposes of the primary indicators of
performance. Specifically, the definition of ``participant'' at Sec.
677.150(a) ensures that an individual is receiving services of a
substantive nature from any of the core programs before the individual
is considered a ``participant'' and, thus, included in performance
calculations. Because Sec. 677.155(a)(1)(i) is consistent with sec.
116(b)(2)(A)(i)(I) of WIOA, no change to the regulatory text is being
made in response to this comment.
Comments: A number of commenters expressed support for the WIOA
requirements as proposed in Sec. 677.155(a)(1)(i) and (ii). However,
many commenters recommended that this section of the regulation and the
section related to calculating performance should include the option
for excluding participants who report that they are not working and not
looking for work. These commenters cited data showing that 29 percent
of AEFLA participants were ``not in the labor force.'' A commenter
suggested adding the words ``who are in the labor force at enrollment''
after the word ``participants'' in Sec. 677.155(a)(1)(i) through
(iii). Another commenter stated that it would seem practical to include
participants who are not looking for employment in the calculation of
the employment performance outcome.
Departments' Response: The Departments acknowledge the concerns
raised by commenters about being held accountable for those
participants who enter the program and are not seeking employment, and
about how participants not in the labor force might affect performance
outcomes. However, WIOA secs. 116(b)(2)(A)(i)(I) through
(b)(2)(A)(i)(III) measure the percentage of program participants in
employment during the second and fourth quarters after exit and the
median earnings of participants in the second quarter after exit.
Therefore, the Departments disagree with commenters who believe that
individuals who are not looking for work should not be included in the
performance calculation. Having said this, the Departments recognize
that there are very limited circumstances where certain individuals,
such as those who are incarcerated and receiving services under sec.
225 of WIOA, should not be included in the performance calculations for
this indicator. The Departments have decided to exclude incarcerated
individuals served under sec. 225 of WIOA because they do not have the
opportunity to obtain employment or participate in education or
training programs in the same manner as other participants who are in
the general population. The Departments consider additional
determinations regarding the need for exclusions from performance
calculations to be more appropriately made through the ICR process and,
therefore, have added Sec. 677.155(a)(2) to the regulatory text. This
matter will be discussed in more detail with respect to that provision
below.
Comments: Another commenter asked whether the State can use AEFLA
funds to serve individuals who are not looking for employment.
Departments' Response: Section 203(4) of WIOA defines an eligible
individual for the purposes of AEFLA. Eligibility does not include
employment status. Whether or not an individual is seeking employment
does not affect that person's eligibility status under title II.
Further matters concerning AEFLA program implementation are in the
program-specific final regulations published elsewhere in this issue of
the Federal Register.
Comments: Several commenters opposed the suggestion in the preamble
to the NPRM that the Departments plan to calculate an ``entered
employment rate'' for participants who were not employed at the time of
program entry, in addition to an employment rate for all program
participants regardless of employment status at entry.
Departments' Response: Upon consideration of the various issues,
the Departments have not made changes to these joint regulations to
require the collection and reporting of an entered employment rate.
Instead, the Departments intend to utilize the individual records
available for the WIOA title I, Wagner-Peyser Act Employment Service,
and VR programs (i.e., the disaggregated data submitted by the States)
to calculate such a measure for comparative purposes. The Departments
can calculate this entered employment rate from the information that is
required to be collected under sec. 116 of WIOA. Therefore, no
additional reporting burden will be imposed on the States for these
programs for this additional calculation at the Federal level.
However, such entered employment rate calculations will not be
possible at the Federal level for the AEFLA program under title II,
because States report AEFLA program data only in an aggregate manner.
Therefore, for the Departments to receive the data necessary to perform
the entered employment rate calculation for the AEFLA program--and to
produce such outcome data--would place an undue burden on title II
programs.
Comments: Most commenters opposed including the entered employment
rate as a performance indicator. A number of commenters recommended
that only the employment rate should be counted for those employed
during the second quarter after exit because less document retrieval
would be required, and there are other indicators that can show whether
program participants are better off after enrollment. Other commenters
suggested that the employment rate should include job seekers who were
both employed and not employed at the time of participation because
this will help determine how effective the system is at helping both
the unemployed and those looking for career progression. A commenter
added that it is difficult to capture information about employees in
part-time or multiple-employer jobs.
Several other commenters, however, supported calculation of an
entered employment rate, particularly for youth programs.
The Departments also received numerous comments in reference to
calculating the second quarter after exit employment indicator as an
``entered
[[Page 55836]]
employment measure,'' as defined in WIA. A commenter only would support
an entered employment calculation if the Departments modified the
regulation to require submission of individual records under title II.
Departments' Response: The Departments have concluded that that the
entered employment rate will provide a useful comparison of the public
workforce system as it exists under WIA and WIOA. As stated above, the
Departments will calculate an entered employment rate for the WIOA
title I, Wagner-Peyser Act Employment Service, and VR programs using
information collected through the WIOA Joint Performance ICR. This
entered employment rate will not be a primary indicator of performance
and, thus, it will not be a basis for sanctions. It is nonetheless
useful information in evaluating the impact and efficacy of programs
under WIOA. No change to the regulatory text is being made in response
to this comment.
Comments: A commenter opposed measuring the employment rate in the
second quarter after exit instead of the first quarter, as done under
WIA, because the commenter suggested that 2 quarters after exit is too
late to determine unsubsidized employment. Another commenter agreed
that it is simpler to locate and re-engage a customer after the first
quarter performance measure rather than waiting an additional 3 months.
A commenter added that the time frame of 6 months for an individual
working in an integrated setting to achieve a competitive integrated
employment outcome is too fixed and arbitrary, and the time period
should be increased to 18 months if needed by the individual. Another
commenter warned that using the second and fourth quarters after exit
for performance measures will negatively impact States with a highly
seasonal workforce.
Departments' Response: The Departments acknowledge the concerns
raised, but sec. 116(b)(2)(A)(i)(I) and (II) of WIOA specifically
require that employment be measured at the 6- and 12-month mark (second
and fourth quarters respectively). Given the specificity of the
quarters to be measured for purposes of the performance accountability
system, the Departments do not have the authority to implement a
regulation inconsistent with the statutory requirement. No change to
the regulatory text is being made in response to this comment.
Comments: A commenter opposed the provisions in Sec. Sec.
677.155(a)(1)(i) and 677.175(a) because of a concern that these
provisions would ask educators to store personal data, such as social
security numbers (SSNs), that the students may be unwilling or unable
to share.
Departments' Response: The Departments acknowledge the concerns
about the retention of SSNs. The Departments concluded that, where
available and possible, the use of wage records to fulfill reporting
requirements is required in accordance with sec. 116(i)(2) of WIOA.
Matching participant SSNs against quarterly wage record information is
the most effective means by which timely and accurate data can be made
available to the system. However, consistent with the Privacy Act,
program services cannot be withheld if an individual is unwilling or
unable to disclose a SSN. More specifically, program eligibility is not
contingent on the provision of a SSN for any of the core programs.
Nevertheless, the use of quarterly wage records is essential to
achieve full accountability under the WIOA performance accountability
system to identify high performing States and localities, and, if
necessary, to provide technical assistance to help improve performance
or sanction low performing States and localities. Matching participant
SSNs against quarterly wage record information is the most cost-
effective means by which timely and accurate data can be made available
to the system.
In consideration of the circumstances articulated by commenters in
responses to both the Joint WIOA NPRM and the proposed WIOA Joint
Performance ICR, the Departments will allow the collection and
verification of non-UI wage data in the absence of available UI wage
data obtained through wage record matching, as discussed more fully in
the preamble to Sec. 677.175 below. The Departments also intend to
issue guidance and technical assistance regarding the collection and
reporting of both quarterly wage record data and supplemental
information. No change to the regulatory text is being made in response
to this comment.
Comments: A commenter remarked that the indicators in Sec.
677.155(a)(1)(i) through (iii) would require an unprecedented degree of
interdependency between VR and other State and Federal repositories of
employment data. Another commenter recommended that, given that several
of the primary performance indicators for the core programs, including
VR, require reporting on the percent of exiters who are in
``unsubsidized employment,'' the Departments should clearly define
``unsubsidized employment.'' In particular, the commenter requested
clarity regarding whether individuals in competitive integrated
employment who receive supported employment services following VR case
closure are considered to be in ``unsubsidized employment.''
Departments' Response: The Departments acknowledge that the use of
wage record data for the employment and median earnings indicators will
require a greater level of cooperation between the State VR and UI
agencies. The Departments are developing guidance to facilitate this
process and also are developing a new State wage record interchange
system data sharing agreement to aid in the exchange of wage record
data to enable all core programs to meet the performance reporting
requirements outlined in these regulations and sec. 116 of WIOA.
The Departments have considered the comments regarding the VR
program and ``unsubsidized employment.'' Section 116 of WIOA describes
the primary performance indicators for all core programs, including the
VR program. Three of the performance indicators pertain to the
employment status or median earnings of participants who exit a program
in unsubsidized employment. In response to the commenter regarding
supported employment and unsubsidized employment, the Departments want
to clarify that supported employment means, in general for purposes of
the VR program, employment in competitive integrated employment or in
an integrated setting in which the individual is working towards
competitive integrated employment on a short-term basis. Once an
individual achieves supported employment as an employment outcome under
the VR program and exits that program (in other words, his or her VR
record of service is closed), the individual typically receives
extended services from another provider. Receipt of extended services
after the VR record of service is closed does not affect the nature of
the employment. Supported employment is considered unsubsidized
employment because the wages are not subsidized by another entity.
Individuals in supported employment at subminimum wage who are working
on a short-term basis toward competitive integrated employment would
not satisfy the definition of ``exit'' for performance accountability
purposes.
Comments: A commenter recommended that adult education providers
receive student-level disaggregated wage or UI data for compliance and
input into the Student Information System tracking and
[[Page 55837]]
monitoring application and that MOUs and guidance from the Departments
must authorize access. Commenters concluded that States may need to use
alternative methods for tracking employment outcomes for participants
and need to be provided with options for databases and data sharing.
Departments' Response: As mentioned above, the Departments are
aware of the necessity for pathways to match wage record data to exit
data in order to have complete outcome information on a program. The
Departments reiterate their intent to issue guidance and facilitate a
new data sharing agreement in order to facilitate wage record data
matching required for all core programs in meeting their performance
reporting requirements under WIOA. These agreements will be executed
under the authority of WIOA sec. 116(i)(2) and consistent with all
applicable Federal and State privacy and confidentiality laws and
regulations. The Departments cannot require the sharing of individual
level PII from wage records with entities that do not meet the
requirements of 20 CFR part 603. It should be noted that the
Departments are aware of and recognize that a variety of structures
exist within States affecting levels of access to certain types of
information required to comply with WIOA and efforts are underway to
issue joint guidance on data access and how to obtain what is necessary
to comply with WIOA reporting requirements.
Comments: An individual expressed concern that the performance
indicators in Sec. 677.155(a)(1)(i) and (ii) may act as a disincentive
to making progress in further education and training after exit. A
commenter asked for clarification about the calculations for employment
in the second and fourth quarters after exit, inquiring as to the time
period for measurement and the individuals to be included in the
measure.
Departments' Response: The Departments have considered commenters'
concerns regarding the disincentive the employment performance
indicators may create for furthering education and training after exit.
However, sec. 116(b)(2)(A)(i)(I) of WIOA establishes a statutory
requirement for a performance indicator measuring the percentage of
program participants who are in unsubsidized employment during the
second quarter after exit from the program. Subsequent guidance
providing the time periods for measurement and other operational
parameters pertaining to calculations will be issued by the
Departments.
Comments: In the preamble to the Joint WIOA NPRM, the Departments
asked for public comment on whether and how to collect information on
the quality of employment. A commenter suggested that while the
Departments are proposing some metrics that attempt to assess the
quality of employment, specifically mentioning median wage, retention,
and training-related outcomes, the Departments should consider looking
at quality of employment once the current performance indicators are
implemented. Other commenters asserted that information on the quality
of employment should not be collected because it is redundant, costly,
and too subjective. Another commenter described several factors
contributing to the quality of employment: Fair, attractive, and
competitive compensation and benefits; opportunities for development,
learning, and advancement; wellness, health, and safety protections;
availability of flexible work options; opportunities for meaningful
work; promotion of constructive relationships in the workplace; culture
of respect, inclusion, and equity; and provisions for employment
security and predictabilities. Other commenters added the importance of
wages sufficient to sustain the worker and dependents, work-based
training, changes in net income, worker input into schedules, and
employment outcomes consistent with the consumer's education and
employment goal. One of the commenters discouraged making inappropriate
comparisons across programs.
Departments' Response: The majority of commenters did not support
collecting information on the quality of employment because it would be
too subjective to collect consistently, overly burdensome, and costly.
At this time, the Departments have decided not to include such a
measure because it would be too burdensome to implement a measure that
would have to be developed in the absence of an existing metric. The
Departments will consider in the future whether there is a suitable
mechanism to measure the quality of employment. No change to the
regulatory text is being made in response to this comment.
Section 677.155(a)(1)(ii) implements the second statutory indicator
as described in sec. 116(b)(2)(A)(i)(II) of WIOA. This indicator is a
measure of the percentage of program participants who are in
unsubsidized employment during the fourth quarter after exit from the
program. This section, which mirrors WIOA sec. 116(b)(2)(A)(i)(II),
remains unchanged from what was proposed in the NPRM.
Under WIA, the common measures included a retention measure based
on individuals who were employed in the first quarter after exiting
from WIA services, and who were also employed in the second and third
quarters. WIOA does not have an equivalent to the WIA retention
measure. Instead, WIOA requires a second--separate and distinct--
employment indicator for the fourth quarter after exit, which measures
the employment rate in that quarter, regardless of whether those
participants also were employed in the second quarter after exit from
the program. In other words, a participant would be counted as a
positive outcome for this indicator if he or she was employed in the
fourth quarter after exit regardless of whether he or she was also
employed in the second quarter after exit.
Comments: In the preamble to the NPRM, the Departments sought
comment on the advantages and disadvantages of collecting or reporting
the employment retention rate. A commenter expressed support for a
retention rate because it would be an important measure to know, for
example, when comparing Job Corps to other youth programs. A few
commenters reasoned that a retention rate would represent the quality
of the initial job placement. Many commenters supported using a
retention rate as long as programs would not be held accountable to
negotiated goals for employment retention and States would not be
required to capture, report, or calculate additional values. Some
commenters opposed highlighting measures of employment retention
because they would be confusing for the system and impede the
transition from the measures in WIA to the indicators in WIOA. A
commenter stated that there was no benefit to calculating this measure
for WIOA title I programs; however, another commenter supported the
proposed provision to calculate a retained employment rate in the
fourth quarter after exit. An individual commented that if fourth
quarter employment is not used as a retention measure, then the growth
or reduction of the employment rate of the cohort can be used to
evaluate occupational skills training, particularly for those who are
underemployed.
There were a few commenters who articulated a preference for the
requirement under WIA. Commenters stated that employee retention is
based on market conditions and dependent on factors such as company
working conditions. Commenters also asserted that a retention measure
should take into account a change or advancement
[[Page 55838]]
in occupation and quality or levels of work. A commenter remarked that
by collecting or reporting the retention rate, the Departments could
compare performance under WIOA with performance under WIA, but the
commenter also suggested this was not necessary. A few commenters asked
whether the individual had to be working with the same employer or at
the same job between the second and fourth quarters. Other commenters
recommended that employment retention should be measured regardless of
whether the employer or job title has changed.
Departments' Response: As stated above, retained employment rate
would not be counted for the purpose of performance calculations and,
thus, would not form the basis for sanctions because it is not among
the primary performance indicators set forth in sec. 116(b)(2)(A)(i) of
WIOA. The Departments have concluded that calculating a retained
employment rate would provide useful information about the
effectiveness of services that lead to sustained attachment to
employment. The Departments will calculate a retained employment rate
for participants who were employed at the second quarter after exit for
informational purposes at the Federal level for those programs for
which the Federal offices collect individual (i.e., disaggregated data)
records (i.e., for the WIOA title I, Wagner-Peyser Act Employment
Service, and VR programs). For the AEFLA program, for which ED does not
collect individual (i.e., disaggregated) records, the Departments will
not require States to calculate and report a retained employment rate
in addition to an employment rate at the fourth quarter after exit.
Comments: With regard to this indicator and partner program
metrics, one commenter remarked that in States where TANF is a required
one-stop partner, a performance metric that is limited to 1 year after
exit from the program may not align with outcomes that are significant
for TANF customers, resulting in positive outcomes of TANF employment
services that will not be captured. Another commenter suggested that
the fourth quarter employment information could be obtained more easily
by the local DOL office rather than the State VR administration and as
such, State VR agencies should not be required to report this data.
Departments' Response: The Departments acknowledge the commenters'
concerns regarding the capture of outcomes for TANF employment services
and the difficulty some programs will face in the collection of the
data necessary to calculate this indicator. However, if an individual
is a participant in a WIOA core program as described in sec.
116(b)(3)(A)(ii) of WIOA, sec. 116(b)(2)(A)(i)(II) of WIOA explicitly
requires the Departments to measure the employment rate for that
participant in the fourth quarter after exit, regardless of whether
that individual is also a participant in TANF or any other required
partner program. With regard to comments that maintain that VR agencies
should not have to report data on the fourth quarter after exit due to
issues of data access and availability, the Departments reiterate the
intent to renegotiate the wage record data sharing agreements and issue
joint guidance on accessing such data in order to meet the requirements
laid out in WIOA sec. 116. The Departments strongly encourage the
development, enrichment, and enhancement of partnerships at the State
and local levels to leverage such connections in obtaining relevant
performance information. No change to the regulatory text is being made
in response to this comment.
Section 677.155(a)(1)(iii) implements the third statutory indicator
as described in sec. 116(b)(2)(A)(i)(III) of WIOA. This indicator is a
measure of the median earnings of those program participants who are in
unsubsidized employment in the second quarter after exit. This section
remains unchanged from that proposed in the NPRM.
Comments: Several commenters requested guidance on how to match
wage records or collect employment-related data without the use of
SSNs, because some States cannot collect SSNs and some students do not
have them. A commenter suggested that the regulation should provide
States with the authority to require SSNs as a condition of program
participation. Another commenter asserted that WIOA only should require
SSNs when customers are directly receiving some form of financial
assistance. A commenter discussed the challenge of tracking the
progress of individuals without SSNs. A commenter urged the Departments
to provide ways for agencies to share long-term wage and employment
information to enable the commenter to report on the indicators.
Departments' Response: The Departments considered the concerns
raised by commenters in light of the statutory provisions at WIOA sec.
116(b)(2)(a)(1)(iii) and concluded that, where available and possible,
the use of wage records to fulfill reporting requirements is required
in accordance with sec. 116(i)(2) of WIOA. Matching participant SSNs
against quarterly wage record information is the most effective means
by which timely and accurate data can be made available to the system.
Nevertheless, the Departments want to make clear that neither WIOA
nor this Joint WIOA Final Rule allows or requires States to request or
require SSNs as a condition of program participation or for receipt of
any form of financial assistance. As such, program eligibility under
WIOA is not contingent on the provision of a SSN. Additionally,
depriving such an individual of service would be in violation of the
Privacy Act of 1974, which establishes a code of fair information
practices that govern the collection, use, dissemination, and
maintenance of information about individuals contained in systems of
Federal records. Specifically, sec. 7(a)(1) of the Privacy Act (5
U.S.C. 552a Note, Disclosure of Social Security Number) provides that
unless the disclosure is required by Federal statute, ``It shall be
unlawful for any Federal, State, or Local government agency to deny to
any individual any right, benefit, or privilege provided by law because
of such individual's refusal to disclose his social security account
number.'' In consideration of the circumstances articulated by the
commenters in public comments received on both the Joint WIOA NPRM and
the WIOA Joint Performance ICR, the Departments are allowing the use of
supplemental information to augment the performance information
obtained through wage record matching when necessary because critical
information (such as a SSN) is not available. More information can be
found in the preamble to Sec. 677.175 discussed in more detail below.
The WIOA Joint Performance ICR also will provide for the collection of
such supplemental wage information in those circumstances where
quarterly wage records are not available or may not apply. The
Departments also intend to issue guidance and technical assistance
regarding the collection and reporting of both quarterly wage record
data and supplemental information on employment-based outcomes.
Comments: Some commenters supported the use of median earnings
rather than average (mean) earnings, used under WIA, noting that
averages can be skewed by a few numbers. One commenter stated that the
indicator data should be collected at both the second and fourth
quarters. Commenters suggested that the median earnings indicator
should be based on all earnings and not just earnings related to the
employment goals on the IPE for customers of VR services. With the
[[Page 55839]]
change from an average earnings calculation under WIA to a median
earnings calculation under WIOA, one commenter asked how to arrive at a
baseline for determining performance numbers. A few commenters said
they would prefer reporting both average and median wages and highlight
the high-income employment outcomes they have historically achieved.
The commenters also asked how to best verify and include incomes for
self-employment outcomes in this indicator.
Departments' Response: WIOA sec. 116(b)(2)(A)(i)(III), which forms
the basis for Sec. 677.155(a)(1)(iii), requires States to collect data
regarding median earnings of participants who are in unsubsidized
employment during the second quarter after exit from a core program.
The Departments have the authority to collect additional information
that provides context for the primary indicators of performance. Such
information is important to understand and manage public workforce
programs. The Departments note that the primary indicators identified
in Sec. 677.155 are the only indicators subject to the performance
accountability sanctions. Additionally, pursuant to sec.
116(b)(1)(A)(ii) of WIOA and Sec. 677.165, States may develop
additional performance indicators which could include median earnings
in the fourth quarter, as the commenter suggests.
With regard to inclusion of all earnings and not just those
earnings related to employment goals on the IPE for customers of VR
services, the individual records collected under the RSA-911 can be
used to determine median wages at exit. The Departments acknowledge
that wages may vary over time and that median earnings at exit may not
reflect median wages in the second and fourth quarters after exit. With
regard to baseline data for median earnings, the Departments recognize
that some programs may not have the historical data necessary to
establish a baseline for median earnings while other programs can
review the data collected under WIA to establish an approximate
baseline for this indicator. The Departments acknowledge the concerns
raised regarding such employment outcomes that would not be captured
through a pure match against State UI wage records, such as self-
employment. The Departments will promulgate guidance regarding the
collection and verification of supplemental employment information, as
noted in the preamble to Sec. 677.155(a)(1)(iii) and more fully
discussed in the preamble to Sec. 677.175. The Departments recognize
there is a need to further clarify and provide guidance regarding
transitioning to the WIOA performance indicators and intend to provide
further clarification and guidance on the establishment of baseline
data. No change to the regulatory text is being made in response to
these comments.
Comments: A few commenters recommended that the value of benefits
received should be included in the participants' median earnings
indicator. Commenters urged reporting of wages expressed as dollars per
hour to reflect outcomes for part-time workers accurately.
Departments' Response: Since the value of benefits clearly does not
constitute earnings, adopting this recommendation would be inconsistent
with the statutory provision calling for measuring earnings. Further
information and clarification regarding the operational parameters of
each indicator will be provided through both the WIOA Joint Performance
ICR and program guidance. No change to the regulatory text is being
made in response to these comments.
Comments: A few commenters stated that individuals participating in
an education or training program should be excluded from the
calculation of this indicator. Commenters especially expressed support
for not including youth who were enrolled in postsecondary education in
the median earnings indicator because such youth would not necessarily
have an income. Some commenters warned that as many individuals are
simultaneously enrolled and employed part time, they tend to work fewer
hours at lower hourly wage rates. In these instances, the earnings
measure serves as a disincentive for programs to provide further
education and training. One of the commenters added that exiting
applicants with entrepreneurship training may not reflect well on the
earnings measures because a new business often takes time to become
profitable.
Departments' Response: In response to the comments regarding
exclusions from the median earnings indicator, sec.
116(b)(2)(A)(i)(III) of WIOA requires the collection of data regarding
the median earnings for all participants who exit the program and are
employed during the second quarter after exit, regardless of whether
the participants are simultaneously enrolled in an educational or
training program. The Departments understand the commenters' concerns
regarding the decreased likelihood of full-time employment while
enrolled in an education or training programs, but the Departments
expect the levels of performance for different programs will vary based
on the results of the statistical adjustment of the performance levels
for those programs. Furthermore, States will have the ability to
disaggregate performance data in order to gain an understanding of the
effect of including youth in performance outcomes. No change to the
regulatory text is being made in response to these comments.
Comments: Other individuals requested guidance on how to treat
missing earnings information for particular participants and whether
the participant may be excluded from the dataset used to determine the
median earnings.
Departments' Response: In State wage record systems, a missing wage
means that no wages for an individual were reported by any firm
residing in that State. The missing wage only indicates that the
individual is not in employment covered by the quarterly wage records
for performance accountability purposes. The Departments have
determined that collection and verification of supplemental employment
data is allowed for the performance indicators where a wage is not
present in quarterly wage data. Supplemental information that is used
to establish employment must include earnings information and be
counted in the employment indicators and the median earnings indicator.
This calculation is meant to represent the median quarterly wage of all
individuals who are employed in the second quarter after exit,
therefore, ``missing earnings information'' will not be included in the
median earnings calculation. Further, the Departments have elected to
permit non-wage record matches (supplemental information) in the
performance calculations. More information about this is in the
preamble to Sec. 677.175 discussed in more detail below. The
Departments note that the use of supplemental information must be
uniform across performance indicators. In other words, if a participant
is included in the employment in second quarter after exit indicator
based on information obtained through supplemental information, wage
information must be collected and that data must also be used for the
median earnings indicator. Likewise, if the collection and verification
of employment and wages cannot be obtained for such a participant
through either wage record matching or through supplemental wage
information, then the participant cannot be included as being in
unsubsidized employment during the second quarter and fourth quarters
after exit, as measured by the
[[Page 55840]]
first and second performance indicators. The Departments will issue
guidance regarding the collection and verification of supplemental
employment information, as noted in the preamble to Sec. Sec.
677.155(a)(1)(iii) and 677.175.
Section 677.155(a)(1)(iv) implements the fourth statutory indicator
as described in sec. 116(b)(2)(A)(i)(IV) of WIOA, subject to sec.
116(b)(2)(A)(iii). This indicator is 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. The
Departments are implementing Sec. 677.155(a)(1)(iv) as revised and
described here. The regulation, consistent with the statutory
requirements, limits inclusion of participants who obtain a secondary
school diploma or its equivalent in the percentage counted as meeting
the criterion by only including those participants who are employed or
are enrolled in an education or training program leading to a
recognized credential within 1 year after exit from the program. The
Departments specifically sought comment on clarifications necessary to
implement this indicator.
Comments: Many commenters expressed concerns about including all
program participants in the indicator and asked whether the indicator
is limited to those in an education or training program.
Departments' Response: The Departments revised Sec.
677.155(a)(1)(iv) to clarify that this indicator only applies to those
participants who are or were enrolled in an education or training
program. The purpose of the indicator is to measure performance related
to attainment of a recognized postsecondary credential or a secondary
school diploma or its recognized equivalent. As such, it would not
fulfill the purpose of this indicator to measure a State's performance
on the credential attainment indicator against a universe of
participants that includes individuals who are not in an education or
training program through which they can obtain one of these
credentials. The Departments decided that it is appropriate to include,
for purposes of this indicator, only those participants enrolled in an
education or training program. The Departments have excluded
participants enrolled in work-based on-the-job training or customized
training from this indicator because such training does not typically
lead to a credential. This exclusion avoids creating a disincentive to
enroll in work-based training. This section has been revised to clarify
that only those participants in an education or training program are
included in the performance calculations for this performance
indicator, with the exception of those in on-the-job or customized
training. The WIOA Joint Performance ICR also will explain that
participants, for purposes of the credential rate performance
indicator, are only those who are in an education or training program
(excluding those in on-the-job training or customized training).
During the review period leading to this Joint WIOA Final Rule, the
Departments noted an error in the NPRM related to the statutory
requirement that participants receiving a secondary school diploma or
its equivalent be included in the percentage of participants meeting
the performance indicator only if the participant is employed or
enrolled in an education or training program leading to a recognized
postsecondary credential within 1 year of exit from the program. The
NPRM incorrectly stated that a participant who has obtained a high
school diploma or its equivalent only is included in the indicator if
the participant is employed or is enrolled in an education or training
program leading to a recognized credential within 1 year of exit from
the program. The Departments have corrected Sec. 677.155(a)(1)(iv) to
make it consistent with WIOA's requirement so that a participant who
obtains a secondary school diploma or its recognized equivalent only
counts as having met the performance indicator if the participant is
also employed or is enrolled in an education or training program
leading to a recognized postsecondary credential within 1 year after
exit from the program.
Comments: A few commenters stated that they fully supported the
proposed provision. Some commenters remarked that WIOA presents a great
opportunity to learn more about the credentials being earned by
participants in the workforce system. The commenters suggested that
regulations on the reporting of credential attainment should strike a
balance between incentivizing the collection of better data and
unfairly penalizing States that do not have the ability to measure
attainment of all types of credentials, and that the Departments should
consider a phased approach for making licenses and certifications part
of performance levels.
Departments' Response: The Departments are not planning a phased
implementation of the credential attainment indicator because such data
generally were collected and reported under WIA. With regard to the
full performance accountability provisions under WIOA sec. 116, which
include the application of an objective statistical adjustment model
and the implementation of sanctions, the Departments did modify Sec.
677.190 to allow for a phased-in approach for assessing performance
success or failure for the purposes of sanctions in order to provide
programs time to collect and report at least 2 full years of data
required to develop and run a statistical adjustment model on those
indicators. More information can be found on this in the preamble to
Sec. 677.190 below.
Comments: In the preamble to the NPRM, the Departments sought
comments on clarifications that would be necessary to implement the
credential attainment indicator. Many commenters requested
clarification about accepted credentials; how to collect and track
credentials; the definitions of enrollment and postsecondary
credential; the determination of ``within 1 year after exit'' from the
program; the achievement of a secondary degree or General Education
Diploma (GED); and whether the indicator applies to the VR program. A
commenter recommended consideration of apprenticeships as postsecondary
credentials, but other commenters suggested that employer-based work
activities generally do not result in industry-recognized credentials
but often result in permanent employment.
Departments' Response: The definition of ``recognized postsecondary
credential'' is found in sec. 3(52) of WIOA, stating ``a credential
consisting of an industry-recognized certificate or certification, a
certificate of completion of an apprenticeship, a license recognized by
the State involved or Federal Government, or an associate or
baccalaureate degree.''
With respect to one comment, the Departments note that this
definition includes completion of an apprenticeship. In addition, the
statutory language of the credential attainment indicator in WIOA sec.
116(b)(2)(A)(i)(IV) includes participants' attainment of a secondary
school diploma or its recognized equivalent in performance
calculations, subject to the requirement that those participants also
are employed or in an education or training program leading to a
recognized postsecondary credential within 1 year after exit from the
program. The credential attainment indicator applies to all core
programs, including the VR program, except for the Wagner-Peyser Act
Employment Service program, as
[[Page 55841]]
specified in sec. 116(b)(2)(A)(i) of WIOA. To be counted as having met
the indicator, a participant must have obtained a credential at any
point during participation in the program or up to 1 year after exit
from the program.
The Departments will issue joint guidance that further illustrates
what constitutes a recognized postsecondary credential for the
credential rate indicator, including definitions for each type of
credential. The Departments recognize burden concerns for tracking
credential attainment. However, as noted, WIOA requires the collection
of data for purposes of reporting on the credential attainment
indicator for all core programs, except for the Wagner-Peyser Act
Employment Service program. The Departments also will provide joint
guidance and technical assistance for tracking and reporting with
respect to this performance indicator.
Comments: A few commenters expressed concern that the value of a
secondary diploma would be reduced. One commenter suggested the
regulations should clarify that employment is at any time during the
year after exit. Commenters recommended including alternative,
standards-based certificates of high school completion for students
with disabilities among the credentials recognized for achievement of
the credential attainment indicator. Commenters cautioned that this
indicator may not be appropriate for students in English language
acquisition programs, and one of these commenters requested that
postsecondary credentials include completion of Career and Technical
Education programs. A commenter encouraged the reporting of credential
type in addition to the attainment of a credential.
Departments' Response: The Departments do not agree that a
secondary school diploma would be devalued because a participant's
attainment of a secondary school diploma can be included in performance
calculations for purposes of the credential attainment indicator. For
those who obtain a secondary school diploma or its recognized
equivalent, such participants must also be employed or in an education
or training program leading to a postsecondary credential within 1 year
after exit from the program. Such employment or enrollment in an
education or training program only needs to be for some period during
the 4 quarters after exit, not for the entire 1-year period after exit.
The types of secondary school diplomas and alternate diplomas that
would satisfy this performance indicator are those recognized by a
State and that are included for accountability purposes under the ESEA,
as amended by the Every Student Succeeds Act. The types of recognized
equivalents, for those not covered under ESEA, that would satisfy this
performance indicator are those recognized by a State. No change to the
regulatory text is being made in response to these comments.
Comments: Several commenters also expressed concern that State VR
and other programs do not track whether a participant is enrolled in
postsecondary education after program exit and that to do so would
represent a significant burden. One of the commenters recommended that
educational attainment data could be reported as it occurs by the
appropriate State educational authorities and matched to participant
data. A commenter suggested that sharing information should be
mandatory between workforce agencies and secondary and postsecondary
educational and other training institutions. One commenter stated that
national access to postsecondary records and earnings not covered by UI
wage records are needed for implementation of the provision.
Departments' Response: The Departments recognize that, in cases
where information was not previously collected or reported on, there is
an initial burden associated with establishing such collections for
reporting. However, the Departments have concluded that WIOA sec.
116(b)(2)(A)(i)(IV), read in conjunction with sec. 116(b)(2)(A)(iii),
requires that the indicator applies to all core programs and
necessitates tracking enrollment and employment up to 1 year after
exit. With regard to the comments raised concerning real-time tracking
and matching of educational attainment, the Departments note that
tracking and reporting on participants is an obligation of the program.
A State educational authority would not necessarily have information on
all participants enrolled in education programs, public or private,
non-profit or for-profit. The Departments do not currently have the
authority to mandate sharing of information between workforce agencies
and secondary and postsecondary educational and other training
institutions in the manner proposed. In regards to the comment about
national access to postsecondary records and earnings, the Departments
do not think that implementation requires national access because
States have the authority to implement appropriate mechanisms,
including data sharing agreements, at the State level to fulfill these
reporting requirements. The Departments are developing guidance to help
the States meet their obligations. No change to the regulatory text is
being made in response to this comment.
Comments: One commenter stated that participants who were in
occupational training designed to lead to employment in a specific
occupation and who do not achieve the credential because they have
become employed in the occupation should be removed from the indicator.
Some commenters suggested that the credential attainment indicator
should not be calculated as the percentage of all participants who earn
a credential, but the indicator only should calculate the percentage of
participants receiving education or training services who earn a
credential. A commenter recommended that the indicator only should
apply to participants who were enrolled in a program leading to a
postsecondary credential or secondary diploma. One commenter cautioned
that many students are currently unavailable to the job market. Another
commenter reasoned that cross-enrollment may lead to participants
furthering their training in one program after leaving another, and
this may not be completed within 1 year.
Departments' Response: With respect to the comment that the
credential attainment indicator should calculate only the percentage of
participants receiving education or training services who earn a
credential, the Departments reiterate, as noted above, that Sec.
677.155(a)(1)(iv) has been revised, as contained in these final
regulations, to address this concern. With respect to the comment that
those who do not earn a credential because they become employed should
not be included in the calculation for the credential attainment
indicator, the Departments note that the reason that a participant
fails to attain a credential, including participating in further
training, is not a basis for excluding that participant from the
performance calculations for the credential attainment indicator. No
change to the regulatory text is being made in response to these
comments.
Comments: Commenters also suggested that the indicator would result
in a strong disincentive to enroll participants in title I programs
that would not result in an industry-recognized credential. An
individual mentioned that the indicator may discourage participation in
training programs that take several years to complete. Commenters also
suggested that prospective workers enrolled in TANF and other hard-to-
serve populations may require more than 1
[[Page 55842]]
year to achieve positive outcomes and that States have varying
requirements for attaining credentials.
Departments' Response: The Departments note that because the
credential attainment indicator is an exit-based indicator, there is no
requirement for a participant to attain a credential within 1 year of
enrollment in the program. There is no time limit on how long
participants are in the program, and the measurement point for
credential attainment is not until 1 year following exit from the
program. If participants are in a program multiple years before
attaining a credential they are still counted as a success in the
indicator if the credential is attained during participation in the
program or within 1 year of program exit. Thus, the Departments do not
think that this indicator will discourage participation in training
programs that take several years to complete. It should be noted that
in instances where participants are enrolled in an education or
training program that is not intended to result in a credential, the
measurable skill gains indicator can capture progress made by
participants.
Section 677.155(a)(1)(v) implements the fifth statutory indicator
as described in sec. 116(b)(2)(A)(i)(V) of WIOA. This indicator is a
measure of the percentage of participants who, during a program year,
are in education or training programs that lead to a recognized
postsecondary credential or employment, and who are achieving
measureable skill gains toward such a credential or employment. The
Departments are defining measurable skill gains as documented academic,
technical, occupational, or other forms of progress toward the
credential or employment. After seeking and considering all comments on
the measurable skill gains indicator proposed at Sec.
677.155(a)(1)(v), the Departments added five measures of documented
progress that specify how to show a measurable skill gain.
Comments: The preamble of the NPRM identified six examples of
standardized ways States could measure documented progress during
participation in an education or training program, and sought public
comment on these and other ways progress may be measured. Some
commenters generally supported the examples as well as the preamble
language that stated, ``Documented progress could include such measures
as . . .'' because it provided the State with flexibility. Another
commenter recommended a menu system similar to the proposed but
recommended the progress measure be attached to participant
characteristics rather than a funding stream. Other commenters asserted
that it would be difficult to standardize measures and documentation
across all core programs as proposed by the Departments, and there
would be little benefit for the VR program where individuals often seek
to maintain their current occupation. Another commenter recommended
that Local WDBs should be required to write into their local plans an
exhaustive list of the documented progress measures they will use.
Departments' Response: The Departments noted the suggested ways in
which the States could measure documented progress. The Departments
disagree with commenters that recommend against standardized methods,
across States and core programs, to measure documented progress for
purposes of the measurable skill gains indicator. Section 116(b)(4)(A)
of WIOA requires the Secretaries to issue definitions of the primary
performance indicators in order to ensure national comparability of
performance data. Defining the measurable skill gains indicator to
include standardized methods to measure documented progress across
programs helps to ensure this comparability. With regard to the VR
program, although a State VR agency may provide services to individuals
with disabilities that enable them to maintain their current
occupation, the Departments note that the majority of individuals
served by the VR program receive assistance in obtaining or advancing
in employment. With regard to local plan content and the recommendation
that it include ``an exhaustive'' list of the documented progress
measures, the Departments encourage States and local areas to consider
the service provisions and applicable progress measures in the
development of their plans but have determined that it is beyond the
scope of part 677 to regulate concerning such requirements. State and
local plans are discussed more fully in 20 CFR part 679 (see DOL WIOA
Final Rule, published elsewhere in this issue of the Federal Register).
The Departments reiterate that States will be required to report on the
measurable skill gains indicator as set forth in Sec.
677.155(a)(1)(v), consistent with program guidance. No change to the
regulatory text is being made in response to these comments.
Comments: Many commenters strongly supported the fact that the
proposed regulations recognize the intent of Congress to ``encourage
local adult education programs to serve all low-skilled adults,'' and
stated that the measurable skill gains indicator will help to achieve
that goal. One commenter suggested that measurable skill gains should
be the only indicator of performance required for students functioning
below the ninth grade level.
Departments' Response: The Departments do not agree with the
suggestion that the measurable skill gains indicator be the only
indicator of performance for students functioning below the ninth grade
level since WIOA requires that the indicators of performance apply
across all core programs in order to assess the effectiveness of States
and local areas in achieving positive outcomes for participants served
by those programs.
There is no basis for a blanket exclusion from all performance
indicators except the measurable skill gains indicator for participants
functioning below the ninth grade level. Such participants have the
potential to receive services under a program, be included in
performance calculations, and be counted as having met one of the other
indicators. Therefore, unless a student functioning below the ninth
grade level is otherwise appropriately excluded from participants
included in the performance calculations for a particular indicator
under Sec. 677.155(a)(2), the Departments will not categorically
exclude such students functioning below the ninth grade level from the
other five indicators of performance. No change to the regulatory text
is being made in response to these comments.
Comments: The majority of commenters endorsed continued use of
educational functioning levels (EFLs) and encouraged eventual
refinement of EFLs or the development of other potential measures that
can document participants' progress toward educational goals. Other
commenters expressed concern because in high intensity programs,
students may advance two or more EFLs; therefore, the proposed language
would not capture the full impact of adult education instruction. The
commenters recommended that the requirement should be ``the achievement
of the EFLs of the participant.''
Departments' Response: As set forth in the preamble of the NPRM,
the first standardized way States could measure and document
participants' measurable skill gains is the documented achievement of
at least one EFL of a participant in an education program that provides
instruction below the postsecondary level. The Departments agree with
comments that supported the continued use of EFLs to measure progress
towards the measurable skill gains indicator. The Departments also
[[Page 55843]]
recognize that in some cases, students may advance more than one EFL
during a program year. However, for purposes of the performance
calculations, programs will be permitted to report only one EFL
measureable skill gain per a participant's exit from the program
through the WIOA Joint Performance ICR. This means that if a
participant exits a program more than once in a program year and
attains an EFL measureable skill gain prior to exiting each time, then
the program will be able to report, for performance calculation
purposes, more than one EFL measureable skill gain for the participant
in a program year. In so doing, participants, for purposes of
performance calculation purposes with respect to the measureable skill
gains indicator, will be treated the same as for any other performance
indicator. Having said this, through the WIOA Joint Performance ICR,
the Departments will require States to provide unique identifiers for
participants. Thus, there will be a unique count of participants under
the core programs regardless of how many times the participant exits
the program (see discussion in this preamble regarding the definition
of ``exit'' in Sec. 677.150(c) above). The Departments have added
Sec. 677.155(a)(1)(v)(A) to include ``documented achievement of at
least one educational functioning level of a participant receiving
instruction below the postsecondary education level,'' as one way of
measuring documented progress under the measurable skill gains
indicator. Options for measuring educational functioning level gain are
described in the WIOA Joint Performance ICR.
Comments: A commenter recommended that attainment of a high school
diploma not be included as one of the measures of documented progress
for purposes of the measurable skill gains indicator.
Departments' Response: The Departments disagree with the assertion
and consider attainment of a secondary school diploma a valuable
measure of progress and have therefore revised Sec.
677.155(a)(1)(v)(B) to include ``documented attainment of a secondary
school diploma or its recognized equivalent.''
Comments: Commenters stated that a lower requirement of six credit
hours per semester better reflects the capability of adults who must
work to provide for their families. Another commenter suggested that
the measure should be expanded to include a demonstration of semester-
to-semester retention, which is a key indicator of academic success.
Departments' Response: As proposed in the preamble of the NPRM, the
third standardized way States could measure and document participants'
measurable skill gains is through a transcript or report card for
either secondary or postsecondary education. The Departments had
proposed a measure requiring a transcript or report card for 1 academic
year or for 24 credit hours. The Departments agree with the concern
that a transcript for 1 academic year or 24 credit hours is too onerous
for part-time students and have changed this measure to require that
the transcript or report card reflect a sufficient number of credit
hours to show a participant is achieving the State's academic
standards. The Departments' current standard for a sufficient number of
credit hours is at least 12 hours per semester or, for part-time
students, a total of at least 12 hours over the course of 2 completed
consecutive semesters during the program year that shows a participant
is achieving the State unit's academic standards. The Departments have
added Sec. 677.155(a)(1)(v)(C) to read ``secondary or postsecondary
transcript or report card for a sufficient number of credit hours that
shows a participant is meeting the State unit's academic standards.''
Clarification regarding the progress measures and the specific
requirements for collection and reporting will be provided through the
Departments' WIOA Joint Performance ICR, Department-specific ICRs, and
programmatic guidance.
Comments: A commenter suggested that the Joint WIOA Final Rule
identify progress reports from training providers as an acceptable
measure of documented progress for purposes of the measurable skill
gains indicator.
Departments' Response: As proposed in the NPRM, the fourth
standardized way States could measure and document participants'
measurable skill gains is through a satisfactory or better progress
report towards established milestones from an employer who is providing
training. Such milestones to be achieved could include completion of
on-the-job training (OJT) or completion of 1 year of an apprenticeship
program. The Departments agree with the commenter that progress reports
from training providers as to achievement of established milestones
also could be acceptable and note that when participants are enrolled
in training programs, the training providers are in the best position
to report on participants' progress toward established milestones. The
Departments emphasize that rigor is expected in determining whether a
progress report is satisfactory, whether from an employer or a training
provider. The Departments have added Sec. 677.155(a)(1)(v)(D) to
include ``satisfactory or better progress report, towards established
milestones, such as completion of OJT or completion of 1 year of an
apprenticeship program or similar milestones, from an employer or
training provider who is providing training.''
Comments: Several commenters requested information on how progress
shall be measured under the VR program.
Departments' Response: With regard to the VR program, there may be
several methods for obtaining documentation related to measuring
progress. For example, documentation such as standardized reports of
progress from training providers, provided to the State VR agency, may
be used to substantiate progress. To adequately document progress,
programs should identify appropriate methodologies based upon the
nature of the service being provided. For example, VR agencies
frequently use grade reports from postsecondary educational
institutions to document a student's progress toward achieving a
degree. For OJT, where the individual is being trained on site by
either the employer or by a vendor, VR Counselors receive regular
training reports that include the OJT milestones completed as the
individual masters the job skills required. More broadly, for
apprenticeship programs, the milestones are already incorporated into
the process. The steps required to complete the apprenticeship and the
increases in pay that occur can be used to document progress.
Comments: Some commenters recommended that successful completion of
an exam, as recommended in the preamble of the NPRM as a way of
measuring documented progress, be understood as achieving a passing
score on the exam.
Departments' Response: As proposed in the preamble of the NPRM, the
fifth standardized way States could measure and document participants'
measurable skill gains is through successful completion of an exam that
is required for a particular occupation, or through progress in
attaining technical or occupational skills as evidenced by trade-
related benchmarks such as knowledge-based exams. The Departments agree
with the commenters that this measure documenting a measurable skill
gain should require that a participant achieve a passing score on an
exam and thus have added Sec. 677.155(a)(1)(v)(E), which requires
``successful passage of an exam that is
[[Page 55844]]
required for a particular occupation, or progress in attaining
technical or occupational skills as evidenced by trade-related
benchmarks such as knowledge-based exams.'' Joint guidance will be
issued about what qualifies as a trade-related benchmark to show
documented progress for purposes of the measurable skill gain
indicator.
Comments: Commenters expressed concern about another measure of
documented progress proposed in the preamble to the NPRM--measurable
observable performance based on industry standards. Commenters
indicated that it would be very challenging to identify a way to
document this type of gain.
Departments' Response: The Departments agree with the commenters'
concerns that it would be difficult to articulate a method for
documenting progress using measurable, observable performance based on
industry standards. The Departments did not include this measure in
Sec. 677.155(a)(1)(v).
Comments: Commenters recommended using other measures of progress
including achievement of passing grades, completion of high school
equivalency (HSE) subtests, receipt of postsecondary education or
training, completing some adult diploma requirements, and obtaining
U.S. citizenship to document measurable skill gains. A commenter
suggested that employment-related indicators of skill gains, such as
employment in the participant's program of study, advancement in job
titles, and performance-based wage increases, recognize that skills
attainment correlates with career progression. One commenter
recommended that a high school credential from another country should
be treated as sufficient in meeting the requirement. Some commenters
suggested that the metric should measure completion of something easily
definable such as a degree, certification, or entrance into a program.
A commenter asked the Departments to measure interim progress,
including documented gains in achieving ``soft skills,'' such as
program attendance, timely arrival, gains in proper behavior, and
creating an IPE. Another commenter asked whether proceeding through a
prescribed program toward a secondary degree would be considered
``achieving measurable skill gains.'' One commenter cautioned about
subjectivity in deciding positive gains. One commenter stated that the
measurement should be simply ``making progress--yes or no.''
Departments' Response: The Departments reviewed all of the
additional suggestions for measurement of documented progress under the
measurable skill gains indicator and concluded that none of the
additional suggestions would be included in the Joint WIOA Final Rule
or WIOA Joint Performance ICR. The Departments concluded that
subjectivity should not be a part of determining skill gains and have
included five objective progress measures that States may use in
implementing the measurable skill gains indicator of performance. These
indicators are sufficiently broad as to provide flexibility that
addresses some of the commenters' concerns, while maintaining rigor.
Several of the measures suggested by commenters (e.g., achieving soft
skills) do not share the same level of rigor or objectivity. The
Departments will provide further clarification, definition, and
specification in the WIOA Joint Performance ICR.
Comments: Another commenter suggested the Departments empanel
expert working groups to assist in developing measures of skill gains.
A commenter suggested that regional or local workforce boards be
allowed to assign the WIOA defined skill gains indicator to particular
education or training programs based on program curriculum and goals.
One commenter recommended allowing the Local WDB to define industry-
related credentials or eliminating work-based learning from the
measurable skill gains indicator. Another commenter agreed that work-
based training activities, such as on-the-job training, should be
exempt from this indicator.
Departments' Response: The Departments acknowledge the various
points raised with regard to objective measures that are implemented in
a rigorous manner. The Departments have, through the WIOA Joint
Performance ICR, jointly coordinated the development of the underlying
calculations, specifications, and operational definitions of the
documented progress measures under this indicator. This will ensure
measures uniformly are implemented in a rigorous and objective way. In
addition to the WIOA Joint Performance ICR, each core program will
define through guidance, the types of skill gains that are appropriate
for the services provided and whether the program is an education or
training program that leads to a recognized postsecondary credential or
employment. For example, work experience in the WIOA title I youth
program may not be considered an education or training program and,
therefore, the measurable skill gains indicator may not apply to those
participants engaged only in work experience under the WIOA title I
youth program. More guidance regarding education and training programs
is provided in 20 CFR part 680 (see DOL WIOA Final Rule published
elsewhere in this issue of the Federal Register). No change to the
regulatory text is being made in response to these comments.
Comments: Commenters asked for specificity and guidance about the
``comparator group/cohort;'' how to most efficiently collect
documentation (such as confirmation by phone or email); industry-
specific recognized credentials; how time intervals would be used for
skill gains; how the measure applies to shorter-term training programs
that are completed within 1 year; how different measures could be used
for different trainings; whether Indian and Native American youth are
included in this indicator; and definitions and timing regarding when a
measurable skill gain must have occurred in order to be counted.
Departments' Response: The Departments recognize that the
regulation poses broad parameters for these indicators. Many concerns
and requests for clarity by commenters were identified and will be
explained within the WIOA Joint Performance ICR or Department-specific
ICRs, which are designed to operationalize such aspects of collection
and reporting as time periods, specific calculations, details regarding
who is included, and where to record positive outcomes. In addition to
the WIOA Joint Performance ICR, the Departments will provide further
guidance on acceptable source documentation, and the definitions
recommended by commenters. In addition, the Departments will provide
program-specific guidance for programs, such as the Indian and Native
American youth program, on the application of performance indicators in
their respective regulations and in guidance.
Comments: In the preamble to the NPRM, the Departments sought
comments on whether time intervals should be required when implementing
the measurable skill gains indicator and if so, what time intervals
might be. One commenter suggested that specific time intervals should
not be required because of variation in services across and within core
programs and because individuals at different levels take different
amounts of time to show gain. Other commenters agreed that a time
requirement should not be used for determining measurable skill gains.
Certain commenters, however, recommended that time intervals be
established in a manner that is flexible
[[Page 55845]]
enough to meet the varying durations of service across core programs,
from 1 month to an academic year, but those time intervals should not
adversely affect the provision of services based on the particular
needs of a customer. One commenter stated that, for youth under WIA,
the skill gains and literacy/numeracy gains are effective for a
participation year. However, if a customer enrolls in education or
training toward the end of a program year, it will result in a negative
outcome due to the customer not having enough time to obtain the skill
gain before June 30. This commenter recommended that any participants,
adult or youth, who were enrolled less than 90 days prior to the
program year end, and are continuing services into the next program
year be allowed to continue as an active participant, and considered
enrolled in Year 1, and in progress in Year 2, with expected completion
in Year 2. Another commenter supported a minimum program duration
threshold, and suggested that measurable skill gains generally should
not be available to programs that are shorter than sixteen weeks.
Another commenter suggested a time period of measurement set at the
first anniversary of enrollment and each year thereafter.
Departments' Response: The Departments considered whether a minimum
time threshold should be incorporated into the measurable skill gains
indicator. The Departments have concluded that, given the diversity of
participant needs and program services, imposing a time period by which
progress is to be documented would be somewhat arbitrary and difficult.
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 Departments recognize that participants enrolling late in
the program year may not have enough time to achieve a measurable skill
gain prior to the end of the first program year, and the Departments
recognize this could be perceived as negatively impacting performance.
However, the negotiation process can and should take into account
enrollment patterns and lower baseline data when setting targets for
the measurable skill gains indicator. The Departments are concerned
about incentivizing behavior that discourages service providers from
enrolling disconnected youth in particular when they first approach
programs, or that purposefully attempts to focus service on individuals
who are more likely to obtain a positive outcome. The Departments
emphasize that programs must not delay enrollment 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. No change to the
regulatory text was made in response to these comments.
The Departments will define, through program guidance, the types of
services and trainings that constitute ``an education or training
program that leads to a recognized postsecondary credential or
employment,'' applicable for each of the core programs. All
participants who enrolled during a program year in an education or
training program that leads to a recognized postsecondary credential or
employment are counted each time the participant exits the program
during a program year.
Comments: In the preamble of the NPRM, the Departments also asked
for comments on whether the negotiated levels of performance for this
indicator should be set at the indicator level or the discrete
documented progress measure (e.g., attainment of high school diploma)
level. Setting the negotiated levels of performance at the indicator
level would aggregate results for all documented progress measures
(i.e., achieving any or several of measurable skill gains would be
recorded as a success). Setting the negotiated levels of performance
based on discrete documented progress measures would separately set
targets for each indicator and each measurable skill gains. The vast
majority of these commenters preferred that the performance targets for
this indicator be set at the indicator level rather than at the
documented progress level. Other commenters, however, suggested that
standardization is more easily achieved by linking the target to a
documented progress measure level, stating that targets based on
documented progress, versus an indicator, may be easier to collect.
Another commenter suggested that performance targets should include
both indicator and documented progress measures.
Departments' Response: After considering the comments received, the
Departments agree with the majority of commenters that supported
setting the target (or the adjusted level of performance) at the
indicator level. The Departments have concluded this will provide a
more streamlined and user-friendly approach to using progress measures
and will result in a more uniform application of the measurable skill
gains indicator. Guidance on negotiating adjusted levels of performance
that contains specific information about setting targets for Measurable
Skill Gains will be issued by the Departments. No change to the
regulatory text is being made in response to these comments.
Section 677.155(a)(1)(vi) implements the sixth statutory indicator
as described in sec. 116(b)(2)(A)(i)(VI) of WIOA, subject to sec.
116(b)(2)(A)(iv). This indicator measures program effectiveness in
serving employers. Under WIOA, the Departments must consult with
stakeholders and receive public comment on proposed approaches to
defining the indicator. As part of this requirement, in addition to
seeking public comment through the NPRM and the WIOA Joint Performance
ICR, the Departments previously sought public input on performance
indicators generally and on the business indicators specifically
through several avenues, including a town-hall meeting that addressed
all of the primary indicators, a town-hall meeting convened with
employers, and additional town-halls and webinars on WIOA across the
country as well as consultations with State Administrators for AEFLA
programs and VR stakeholders. As described more fully below, the
Departments received many comments regarding the three proposed
definitions of this indicator. After considering the responses received
through all venues, the Departments are initially implementing this
indicator in the form of a pilot program to test the rigor and
feasibility of the three proposed approaches, and to develop a
standardized indicator. The performance indicator for effectiveness in
serving employers will not be included in sanctions determinations
until the standardized indicator is developed.
Proposed Approaches to Measuring Employer Satisfaction
Comments: The preamble to the NPRM described three approaches to
measure employer satisfaction (i.e., effectiveness in serving
employers). In the first approach, States would use wage records to
identify whether or not a participant matched the same FEIN in the
second and fourth quarters. Many commenters opposed this approach
because participants may have relocated, joined the military, or found
a better job, although these circumstances do not mean the employer was
not satisfied. They also opposed this approach because the mere fact
that an individual is employed with the same employer does not mean
that
[[Page 55846]]
the employer is satisfied. Many other commenters, however, favored the
approach because it would be the least disruptive to employers. A
commenter agreed that employee retention can be measured, but that
measure does not take into account the quality of the placement.
Commenters suggested piloting a limited demonstration using existing
data to determine if the variability in the types of occupations in a
particular local area has a more profound impact on retention than the
value added by the services provided under a WIOA program, and to
determine whether there is a correlation between retention and
effectiveness.
The second approach to define this indicator would measure the
repeated use rate for employers' use of the core programs. Many
commenters did not support this approach because some employers may not
have many hiring needs during a program year, or an employer may have a
need but the program has no students who are ready to graduate and go
to work. Also, this approach would encourage programs to protect their
individual employer relationships rather than working collaboratively
through sector partnerships. Several commenters recommended use of this
measure along with the number of workers employed by businesses
participating in sector partnerships. Other commenters supported the
approach because it represents increased use, retention, or growth of
business engagement, although some commenters would use the number of
workers employed, not the number of businesses served. The preamble to
the NPRM specifically sought comments on how States could capture this
data, the feasibility of capturing and reporting this data, and queried
whether this indicator would measure the efficacy of services provided
to employers. The Departments received both positive and negative
comments regarding this approach.
The third approach would use the number or percent of employers
that are using the core program services out of all employers
represented in an area or State served by the system (i.e., employers
served). A large proportion of commenters opposed this approach and
warned that this saturation method only would work if all participants
come from the local market area; for a number of programs, it is
usually not the case that most of the participants come from the local
market area. Also, the commenters asserted that this option would focus
too much on the breadth of employer involvement, rather than the depth
or quality. Some commenters supported this approach when used with
another approach. The preamble to the NPRM specifically sought comments
on how States could capture this data, the feasibility of capturing and
reporting this data, and queried whether this indicator would measure
the efficacy of services provided to employers. The Departments
received both positive and negative comments regarding this approach.
Departments' Response: After further review, analysis, and
consideration of public response, the Departments have concluded that
too little is known with regard to the validity and reliability of each
of the proposed approaches. In concurrence with multiple commenters,
the Departments have concluded that the retention method, using wage
record FEIN matches to be the least burdensome method to employers for
measuring the quality of service provided to employers given that the
outcome is concluded solely by the use of wage-match data, which
prevents outside factors from influencing the way success is measured
within the reporting system. The Departments concluded, however, that
there was not enough evidence that this point of measurement would
encompass the intent of this indicator. Therefore, the Departments have
proposed a pilot allowing all three approaches, and any additional
measure that the Governor may establish relating to services for
employers, with the intent of assessing each approach for its efficacy
in measuring the effectiveness in serving employers.
The Departments have included these approaches in the WIOA Joint
Performance ICR and will require each State to choose two of the three
approaches set out in the NPRM as well as any additional measure that
the Governor may establish related to services to employers, with
results to be included in the first WIOA annual report due in October
2017. This approach provides States flexibility in selecting the
measures that best suit their needs, while providing partner Agencies
the opportunity to evaluate States' experiences in using these measures
during PY 2016 and PY 2017, and additionally allows the Departments to
obtain employer feedback regarding the extent to which these indicators
measure effectiveness in serving employers. The Departments will
evaluate State experiences with the various indicator approaches and
plan to use the results of that evaluation to identify a standardized
indicator that we anticipate will be implemented no later than the
beginning of PY 2019. In this process, the Departments intend to engage
the National Association of State Workforce Agencies (NASWA) and the
States to inform the evaluation design; communicate how States fare in
operationalizing the measures; and contribute to the development of
technical assistance activities and tools.
The Departments acknowledge the dissatisfaction expressed by
commenters with using each of the NPRM proposed measures as a sole
indicator of successful service to employers and agree with comments
discussing the utility of piloting multiple alternative measures to
ensure that States are being required to report on employer
satisfaction in the most effective manner. As such, the Departments
will work to implement a pilot program, the details of which will be
further delineated in joint Departmental guidance. The Departments have
opted to implement a pilot program using all of the approaches in order
to assess the States' experiences with these and evaluate the efficacy
of such approaches in measuring this construct. Further guidance
regarding the pilot program will be provided.
Effectiveness in Serving Employers across Programs
Comments: The NPRM also sought comment on using effectiveness in
serving employers as a shared indicator across programs, as many
employers are served by multiple programs. Many commenters supported
using effectiveness in serving employers as a shared indicator across
programs because it would foster collaboration rather than competition
among the core programs. One commenter stated that using effectiveness
in serving employers as a shared indicator would mitigate concerns
regarding measuring effectiveness in serving employers for the Wagner-
Peyser Act program. Commenters stated that there are too many
indicators already and a single metric should suffice. Commenters also
suggested that the Departments should engage the employer community,
such as using a short survey or task force, to discover methods of
measuring effectiveness. One commenter, however, opposed employer
surveys and burdensome employer contacts. A group of commenters
recommended that agency directors conduct a study on how effectively
workforce development aligns with business needs. Others favored having
States create and submit for approval an indicator that meets the
State's current needs, including targeted sectors and partner
collaboration. A commenter suggested that the workforce system offer
one point of contact or
[[Page 55847]]
``account executive'' to each employer. However, one commenter opposed
the use of a shared indicator, and recommended measuring at an
individual program level in order to measure the impact on each core
program.
One commenter developed a novel approach for measuring
effectiveness and provided details in a concept paper, which was
expressly supported by some commenters. The approach includes a
customizable point-menu system that would award varying levels of
points to WDBs based on the degree of intensity and the value of
services provided. Services earning high points would clearly reflect
deeper relationships with employers and activities that are the result
of longer-term relationships. The Departments will consider this
approach in the course of the pilot program. A separate commenter
suggested using tiers to measure employer engagement with concrete
examples. The Departments also will further consider this suggestion of
a tiered approach.
The preamble to the NPRM also requested feedback regarding whether
a single metric for this indicator would sufficiently capture
effectiveness in serving employers or if this indicator should
encompass a combination of metrics, as well as how these metrics could
most effectively be combined. A number of commenters expressed concern
or disinterest with using a single metric to measure effectiveness in
serving employers.
A few other commenters who expressed support for using multiple
metrics for this indicator recommended a list of core functions to
indicate the effectiveness in serving employers, with the list of core
functions including strategic planning with business to identify
business needs; outreach and recruitment; hiring; retention; training,
consultation services, and other customized services; and business
customer satisfaction with services provided. One commenter added
preparing workers for in-demand industries and occupations and the
percentage of participants who earn an industry credential. Some
commenters also mentioned fill rate--the number of job seekers placed
against the number of open job orders in the system--and employer
referrals. A few commenters stated that there is insufficient clarity
on the employer satisfaction indicator and the meaning of
effectiveness.
Departments' Response: The Departments have concluded that
implementing the effectiveness in serving employers indicator as a
shared indicator across all core programs to be the most useful
approach based on the collaborative nature of this method and the
overwhelming majority of commenters who were in favor of this option.
In doing so, States and local areas are better positioned to provide a
single point of contact to each employer, making it easier for the
differences between specific core programs to become invisible and
enable the programs to serve together as a unified front. Measurement
at the program level would be contrary to WIOA's efforts to streamline
reporting across programs, reduce burden on employers, and decrease the
likelihood of duplicated employer counts. In keeping with such efforts,
the Departments have opted not to require employers to fill out any
additional surveys. The Departments had, however, prior to the
publication of the NPRM, engaged in multiple meaningful exchanges with
the employer community to receive feedback on the most appropriate ways
to assess the utility of the public workforce system for businesses.
In addition, through the implementation of the previously mentioned
pilot program, the Departments will seek to discover the best methods
for assessing how well workforce development aligns with business
needs. There were a number of noteworthy measures suggested by State
workforce agencies and nonprofit organizations, some of which will be
included in the pilot, giving the Departments an opportunity to review
some of the alternative methods that would help States to improve
current relationships and establish strong future relationships with
local employers, such as using the fill rate, employer referrals, the
level of employer engagement, allowing any additional measure that the
Governor may establish relating to services for employers,
participation in targeted sector partnerships, the inclusion of
recruitment, training, and other pre-hire services as part of the
performance metric, using tiers to measure employer engagement, and the
use of already existing electronic, or wage record data along with a
myriad of other valuable recommendations. The Departments acknowledge
the value of using a combination of metrics as pointed out by a number
of commenters and will seek to delve further into the benefits of such
an option through the use of the upcoming pilot program. No change to
the regulatory text is being made in response to these comments.
Comments: One commenter stated that the provision is not applicable
to the INA program because it is not a core program. Another commenter
requested that the measurement of effectiveness of serving employers be
eliminated as a measure for Adult Education and Literacy because the
program already works closely with Career and Technical Education, the
workforce system, and industry to ensure that it is providing programs
and services to meet the needs of employers. A commenter recommended
that any finalized measure not allow a program to be penalized because
of factors beyond its control. Another commenter requested information
about feedback obtained at the stakeholder meetings that involved
employer partners.
Departments' Response: The Departments recognize that the INA
program is not a core program. However, WIOA sec. 116(e)(5) requires
that the performance accountability indicators (which include
effectiveness in serving employers) be used to assess performance, and
WIOA sec. 116(h)(2) requires agreement on the adjusted levels of
performance for all of the primary indicators be reached between the
Secretary of Labor and the entity carrying out activities under this
section.
In response to the comment requesting that the measurement of
effectiveness of serving employers be eliminated as an indicator for
the AEFLA program, the Departments have no authority to exempt AEFLA
programs from the indicator regarding effectiveness in serving
employers. WIOA sec. 116(b)(2)(A) explicitly requires that the State
primary indicators of performance for the AEFLA activities authorized
under title II, as well as for other specified programs and activities,
shall include indicators of effectiveness in serving employers. In
response to concerns about programs being required to account for
factors beyond their control, the Departments refer to Sec. 677.170
and the associated discussions regarding factors to be considered when
coming to agreement on negotiated levels of performance, including the
objective statistical model. The Departments have provided a summary of
comments raised at stakeholder meetings and during the regulatory
process above. No change to the regulatory text is being made in
response to these comments.
Comments: Commenters expressed a great deal of concern regarding
the implementation of an indicator that would likely cause undue
penalty.
Departments' Response: The Departments note that this concern
weighed heavily in the decision to allow employee retention to serve as
a means of measuring employer satisfaction. The Departments also note
that concerns regarding penalties are an issue that will
[[Page 55848]]
be greatly ameliorated with the use of benchmark target setting via the
statistical adjustment model. The statistical adjustment model also
will address issues such as size discrepancies across States and local
areas, labor shortages, and other external factors and provide
objective, realistic goals for improvement. Application of the
statistical model to both set targets and apply sanctions is most
effective when assessing quantitative metrics, with the use of
qualitative metrics making both efforts exponentially more complex. It
is for this reason that, although the Departments understand the
significance of using such methods to evaluate quality service to
employers, more qualitative metrics were not included as part of the
effectiveness in serving employers indicator.
As previously stated, a great deal of discussion regarding these
and other proposed methods for measuring this indicator took place
during previous webinars and town halls with State workforce agencies,
members of the employer community, and other stakeholders. The outcome
of these discussions was the three options listed within the NPRM.
Understanding the importance of receiving extensive feedback on this
issue, the Departments requested further input via the NPRM and the
proposed WIOA Joint Performance ICR, the responses for which can be
found on regulations.gov. No change to the regulatory text is being
made in response to these comments.
Section 677.155(a)(2). The Departments added a new paragraph Sec.
677.155(a)(2) after considering public comments received in response to
the proposed WIOA Joint Performance ICR, particularly with regard to
discrete populations that would be excluded from performance
calculations. As noted in both the preamble to the NPRM and the
supporting statement to the proposed WIOA Joint Performance ICR,
because of the close relationship between the two documents, the
Departments informed the public that comments on either the NPRM or the
proposed WIOA Joint Performance ICR would be used to form the basis for
necessary changes in both the Joint WIOA Final Rule and the finalized
WIOA Joint Performance ICR. After reviewing WIOA sec. 116, the
Departments have concluded that the purpose of the performance
accountability system is to measure a program's performance with
respect to the populations served and the services provided. A
program's performance should be measured in terms of populations it is
designed to serve or services it is designed to provide. In so doing,
the performance accountability system will measure a program's
performance more precisely. Given that sec. 116(f) of WIOA imposes
sanctions for poor performance, it is critical that the Departments
receive data that accurately reflect a program's performance.
Explicitly defining which participants will be included in performance
indicator calculations will allow a program's performance to be
assessed appropriately. It is for this reason that the Departments
proposed certain ``exclusions'' in the proposed WIOA Joint Performance
ICR.
The Departments have added language in the Joint WIOA Final Rule at
Sec. 677.150(a)(2)(i) to exclude individuals receiving services under
sec. 225 of WIOA from all primary performance indicators for purposes
of performance accountability, except the measurable skill gains
indicator (Sec. 677.155(a)(1)(v)). This is because the measurable
skill gains indicator is the only performance indicator applicable to
this population. In so doing, the Departments ensure programs serving
these individuals will not be inadvertently subject to low performance
levels with regard to those indicators not applicable to sec. 225
participants.
Section 677.150(a)(2)(ii) allows the Secretaries of Labor and
Education to make further decisions as to the participants to be
included in calculating program performance levels for other purposes
that are necessary with regard to any of the primary performance
indicators. Further information about those exclusions is provided
through the WIOA Joint Performance ICR and related guidance.
Section 677.155(b)--Indicators for the Employment Service Programs
Paragraph (b) of Sec. 677.155 remains unchanged from that proposed
in the NPRM. The Departments did not receive any comments regarding
this provision.
Section 677.155(c)--Indicators for the Youth Program
Paragraph (c) of Sec. 677.155 implements the primary indicators
for the WIOA title I youth program, as described in sec.
116(b)(2)(A)(ii) of WIOA. No change to the regulatory text is being
made in response to public comments.
Comments: A few commenters supported the fact that the common
performance indicators for youth programs apply only to WIOA title I
youth programs. Some commenters remarked that employment rate measures
are different for youth and adults because the youth measure allows
enrollment in education and training to be included in the indicator,
that this difference is likely to work against co-enrollment. These
commenters suggested that 18 to 24 year old individuals co-enrolled in
the WIOA title I youth program and other WIOA programs only be included
in the youth indicators.
Departments' Response: Although the Departments recognize that
subjecting such youth to adult and youth employment rate indicators
could serve as a barrier to co-enrollment, WIOA only authorizes the
youth indicators for the WIOA title I youth program and does not
authorize these indicators for any other WIOA core program.
Comments: One commenter suggested that the following outcomes count
toward the first two youth statutory indicators as successful outcomes:
(1) Unsubsidized employment, (2) military employment, (3) education
(secondary or postsecondary), (4) advanced training (long-term licensed
or credentialed, for example, registered nurse training), and (5)
occupational skills training.
Departments' Response: The Departments agree that these suggested
outcomes, and additionally registered apprenticeships, are among the
successful outcomes for the first two statutory indicators, but do not
think that any change to the regulatory text is necessary to
accommodate such outcomes as successful. Specific references to
particular successful outcomes will be included in the WIOA Joint
Performance ICR.
Comments: One commenter suggested that supplemental data be allowed
to measure employment in the second and fourth quarters after exit
because UI wage record data alone do not capture the full spectrum of
employment options.
Departments' Response: The Departments agree and have chosen to
permit the States to use non-wage record matches (supplemental
information) in calculating the performance indicators, subject to use
consistent with the Departments' guidance on this issue. More
information can be read about this in the preamble to Sec. 677.175
below. That guidance regarding the use of supplemental wage data will
be relevant to the use of supplemental data to determine employment
status.
Comments: One commenter recommended consideration of planned short-
term employment by youth as a positive outcome, such as internships.
Another commenter requested that service programs such as AmeriCorps,
NCCC, and Public Allies be counted as ``unsubsidized employment.'' A
[[Page 55849]]
commenter recommended that placement in unsubsidized employment or
postsecondary education count as a success regardless of the quarter in
which it occurs, rather than focusing only on the second and fourth
quarters after exit. Similarly, one commenter asked that attainment of
initial employment count as a successful outcome (i.e., a placement
rate).
Departments' Response: As required by sec. 116(b)(2)(A)(ii)(I) and
(II) of WIOA, only unsubsidized employment will count as a positive
outcome for employment in the first and second indicators. Internships
that are subsidized would not count as a positive employment outcome,
but they are an important service in preparing youth for unsubsidized
employment. However, service programs, such as AmeriCorps, would count
as a positive outcome in the first and second primary youth indicators
because these service programs are considered training for the purposes
of those youth indicators. The Departments will clarify the
categorization of service programs in the WIOA Joint Performance ICR.
The first and second primary youth indicators measure the percentage of
participants in unsubsidized employment, or in education or training
activities, during the second and fourth quarters after exit. The
Departments do not have the authority to deviate from the WIOA statute
by counting participants' status in the first and third quarters after
exit, or by counting participants as successful simply upon attainment
of initial employment.
Comments: A few commenters expressed concern that the requirement
to track educational attainment up to a year after exit may prove
infeasible. One commenter favored alignment of reporting that is
required on post-school outcomes.
Departments' Response: Although the Departments recognize that
tracking attainment up to a year after exit is difficult for an often-
transient youth population, the WIOA title I youth program includes a
follow-up services program element that is required to last not less
than 12 months after completion of participation. The requirement to
capture program outcomes 1 year after exit is consistent with the
follow-up services program element. In addition, follow-up services
help ensure youth receive the support they need as they transition to
the world of work or postsecondary education. Regarding alignment of
reporting on post-school outcomes, WIOA requires the specific
indicators for youth programs identified in WIOA sec. 116(b)(2)(A)(ii).
No change to the regulatory text is being made in response to these
comments.
Comments: A number of commenters stated that the Departments only
should measure status of employment or education in the second quarter
after exit, rather than an entered employment or education rate that
includes only those not employed or not in education prior to program
enrollment. This commenter also asked for a clarification of the
definition of education and training activities related to the two
youth indicators that measure the percentage of participants in
unsubsidized employment or in education or training activities. One
commenter suggested that any type of education should count in the two
youth indicators related to employment or education or training.
Departments' Response: The Departments agree that the first two
indicators only should measure status of employment or education in the
second and fourth quarter after exit, respectively, regardless of
employment or education status at enrollment. The definition of
education and training activities related to the two youth indicators
will be included in the WIOA Joint Performance ICR. Both secondary and
postsecondary education will count as successful outcomes for the two
youth indicators related to employment or education or training. No
change to the regulatory text is being made in response to these
comments.
Comments: Many commenters addressed the third primary performance
indicator, which measures median earnings in the second quarter after
exit. The commenters reasoned that areas that are highly successful in
exiting youth to postsecondary education and training should not be
penalized; therefore, youth who are working part-time and are also in
education or training activities should be excluded from the
calculation of median earnings. In addition, a commenter suggested that
the focus of services to youth is education and training and,
therefore, a measure of median earnings does not seem appropriate.
Departments' Response: WIOA requires all participants with earnings
in the second quarter after exit to be included in the earnings
indicator, including participants engaged in education or training
programs. Therefore, youth who are working part time while in education
or training activities will be included in the calculation of median
earnings. Those engaged in both employment and education and training
will be taken into account in both the statistical adjustment model and
through target setting. No change to the regulatory text is being made
in response to these comments.
The fourth primary indicator for youth measures attainment of a
recognized postsecondary credential, or secondary school diploma or its
recognized equivalent, by participants who are enrolled in an education
or training program (excluding those in on-the-job training or
incumbent worker training), subject to the caveat that such
participants only are measured as successes if the participant is also
employed or enrolled in an education or training program leading to a
recognized postsecondary credential within 1 year from program exit.
The language of this indicator is the same as the indicator in Sec.
677.155(a)(1)(iv). The Departments have provided an in-depth
explanation of this in the preamble for Sec. 677.155(a)(1)(iv) above
and refer readers to this section for more information on this
indicator. No particular comments were received regarding the
implementation of the fourth primary youth indicator, other than
discussed above. The Departments are implementing Sec. 677.155(c)(4)
as revised.
The fifth primary indicator documents measurable skill gains. The
language of this indicator is the same as the indicator in Sec.
677.155(a)(1)(v). The Departments have provided an in-depth explanation
of these changes in the preamble for Sec. 677.155(a)(1)(v) above. No
particular comments were received regarding the implementation of the
fifth primary youth indicator, other than discussed above. The
Departments are implementing Sec. 677.155(c)(5) as revised and
discussed in more detail above with respect to Sec. 677.155(a)(1)(v).
The sixth primary indicator measures effectiveness in serving
employers. The Departments' approach for measuring this indicator and
the resulting changes to the regulatory text are discussed in
significant detail in the preamble discussion for Sec.
677.155(a)(1)(vi) above and that approach is applicable for this
indicator for purposes of calculating performance under the title I
youth program.
Comments: A commenter suggested that the proposed youth indicators
in Sec. 677.155(d)(1) and (2) sufficiently measure employer
satisfaction and that, to the extent that those measures do not
sufficiently measure employer satisfaction, a brief survey could be
developed and administered to measure employer satisfaction.
Departments' Response: The Departments have concluded that the
effectiveness in serving employers
[[Page 55850]]
indicator is statutorily required as a separate indicator from
percentage of participants in education or training activities, or in
unsubsidized employment, during the second and fourth quarters after
exit from the program. The Departments will be implementing a pilot
program, as discussed above, to assess measures of effectiveness in
serving employers.
Comments: One commenter stated that the introductory description
provided under this proposed section is confusing regarding the primary
indicators, particularly when distinguishing between the adult and
youth indicators. The commenter suggested that the indicators of
performance for adults and youth be separately described so there is no
confusion in the field as to which indicators apply to each population
group.
Departments' Response: As suggested, the Joint WIOA Final Rule
separates adult and youth indicators to avoid confusion.
Comments: One commenter suggested that the VR program report youth
performance separately just as title I youth programs.
Departments' Response: Section Sec. 677.155(d) of the NPRM
contained the performance indicators set forth in sec. 116(b)(2)(A)(ii)
of WIOA, which applies only to the title I youth program. These youth
performance indicators are now found in the final regulatory text at
Sec. 677.155(c). WIOA sec. 116(b)(2)(A)(i) requires all other core
programs, including the VR program, to comply with the primary
performance indicators set forth in sec. 116(b)(2)(A)(i) of WIOA and
Sec. 677.155(a)(1). Therefore, there is no statutory authority for the
Departments to do as the commenter suggests.
The Departments understand that the VR program pays for training
and education needed for individuals, including youth, to obtain
employment. Because the youth indicators in Sec. 677.155(c) are not
applicable to the VR program, State VR programs are not required to
report outcomes under the youth indicators. Adult and youth performance
outcomes can be differentiated in the RSA-911 data, as has always been
the case, with no need for additional reporting burden.
Section 677.160 What information is required for State performance
reports?
Section 677.160, which implements sec. 116(d)(2) of WIOA,
identifies the information States are statutorily required to report in
the State performance report, including levels achieved for the primary
indicators of performance. No substantive changes have been made to
this section.
Comments: Some commenters expressed concern that in many States and
tribal nations it will be time-consuming and costly to collect the data
and produce a report for all core programs.
Departments' Response: The Departments understand the concerns
expressed by some of the commenters regarding the collection of data
needed to produce the annual reports and have made every effort to
minimize the burden and cost to States by incorporating only necessary
data elements in the Departments' data collection instrument provided
through the WIOA Joint Performance ICR. Prior to amending each
Department's data collection instrument, considerable time was taken to
ensure the required data elements collected would be consistent across
all core programs and that the only elements added would be necessary
to meet the requirements under sec. 116 of WIOA, thereby minimizing the
burden as much as possible. Each core program will be responsible for
submitting performance reports to their respective Federal agency, just
as has been done prior to WIOA. Further, the Departments clarify in
this response that there is no requirement in WIOA or the Joint WIOA
Final Rule that data reporting be integrated among all core programs.
As discussed in more detail with respect to the issue of ``common
exit'' in the preamble for Sec. 677.150(c) above, DOL intends to work
towards developing an integrated reporting mechanism for the core
programs it administers. The Departments are open to States wishing to
submit integrated performance reports, but a single report submission
across core programs is not required. If a State were to do this, it
must ensure that it reports on all required reporting elements--both
for the common performance accountability system under sec. 116 of WIOA
and for each of the program-specific reporting elements.
Comments: Commenters recommended that the Departments develop
guidance, technical assistance, or an integrated set of reporting
specifications that will allow States to submit customer data in the
same format for each of the six core programs.
Departments' Response: The Departments recognize the need for, and
will develop and disseminate, guidance and associated technical
assistance related to the preparation and submission of joint and WIOA
title-specific performance reporting, and the WIOA Joint Performance
ICR.
Comments: One commenter suggested that the Departments, working
with State and local systems, should consider how core programs can
collect and provide information on the amount of training provided to
program participants.
Departments' Response: The Departments acknowledge the comment and
have concluded that data that will be collected through the WIOA Joint
Performance ICR associated with this Joint WIOA Final Rule are
sufficient to meet the requirements of sec. 116(d)(2) of WIOA. Prior to
imposing additional information collection requirements, the
Departments must consider them in the context of associated burden and
cost. The Departments have concluded that the final information
collections meet the statutory requirement while minimizing reporting
burden to the extent possible.
Comments: Commenters urged the Departments to allow the State and
local agencies that administer the core programs to have access to the
data they need, such as UI wage record data. A commenter added that in
some States, a release of information form must be signed by the
participant. Another commenter recommended that States should be given
the option to await the results of the national data integration
workgroup before creating their State interoperable system.
Departments' Response: With regard to the commenters' concerns
about the availability of quarterly wage record information and the
need for, in some cases, informed consent for the disclosures required
under applicable privacy and confidentiality laws and regulations for
all programs, the Departments did not modify this regulation. The
Departments are developing, and will disseminate, guidance that covers
the allowable disclosures and processes through which disclosures can
be made under 20 CFR part 603, 20 U.S.C. 1232g and 34 CFR part 99 and
34 CFR 361.38. Additionally, work is underway to re-negotiate the Wage
Record Interchange System Data Sharing Agreements to establish pathways
to the wage record matching required for all core programs to meet
their performance reporting requirements.
Paragraph (a)(1) of Sec. 677.160 requires the total number of
participants served and total number of participants exited,
disaggregated by the number of individuals with barriers to employment
and by numbers of participants co-enrolled in core programs. No change
to the regulatory text is being made in response to these comments.
[[Page 55851]]
Comments: Commenters supported the provision in Sec.
677.160(a)(1)(i) that would require reporting to be disaggregated by
categories for individuals with barriers to employment. Commenters also
urged that the requirement apply to ``reportable individuals'' as well
as ``participants.'' Those commenters generally suggested that the
information in the reporting requirements should be disaggregated based
on each disability subset and not the entire group.
Departments' Response: The Departments acknowledge the identified
potential benefits for State reporting of disaggregated data for
``reportable individuals'' in addition to ``participants.'' For the
purpose of Sec. 677.160, the Departments are addressing only the
requirements for States' annual performance report as required under
sec. 116(d)(2) of WIOA, which requires reports on only participants. It
should be noted that the different core programs already collect and
report information pertaining to ``reportable individuals'' through
their separate individual reporting vehicles.
With regard to the discrete disability categories, RSA currently
collects a number of data elements, including the primary and secondary
disability type, for individuals who have been determined eligible for
VR services and would be considered a ``reportable individual.'' The
data can be disaggregated in different categories, including by
disability type. The final RSA-911, which is published concurrently
with this Joint WIOA Final Rule, has been revised to align with the
additional WIOA requirements. No change to the regulatory text is being
made in response to these comments.
Comments: A commenter recommended that the requirement to collect
information on barriers to employment be tied to the point at which the
initial IPE is signed.
Departments' Response: The Departments recognize that different
State programs have a number of questions regarding how each of the
core programs will collect the required data elements, including at
what point required demographic information will be collected to
produce the most reliable information and how the current consumer
information will be updated to meet the new WIOA requirements. These
issues will be addressed through guidance related to the WIOA Joint
Performance ICR or the Department-specific ICRs. The Departments also
note that Sec. 677.150(a)(1) defines participants for the VR program
as an individual who has an approved and signed IPE, and who has begun
to receive services. Therefore, data elements required on
``participants'' must comply with the definition applicable to that
term for the VR program. No change to the regulatory text is being made
in response to these comments.
Comments: Commenters inquired about implementing a count of total
participants and total exiters, disaggregated by co-enrollment in any
of the core programs. A commenter expressed concern about being able to
obtain the information. For disaggregated counts for those who
participated by co-enrollment as required by Sec. 677.160(a)(1)(ii),
commenters warned that integrated case management and reporting systems
would need to be in place, and the commenters requested technical
assistance regarding how core programs housed in different agencies can
share and compare participant data to meet reporting requirements. One
commenter, however, supported the requirement to report data
disaggregated for co-enrollment in any of the core programs.
Departments' Response: The Departments acknowledge that the absence
of integrated case management or integrated reporting systems poses
challenges to ensuring uniform and easy access to data across programs.
The Departments have concluded that integrated data systems would allow
for unified and streamlined intake, and case management and service
delivery, and would overcome many such challenges. The Departments also
note that such systems are not widely used or in place currently at the
State level, and encourage States to examine ways in which this may be
developed or implemented across core programs. The Departments note
that data system integration ranges from data sharing between existing
systems to employing consolidated systems. However, in the absence of
such systems, the Departments encourage all programs to ensure strong
partnerships and collaborative workspaces in which to ensure all
programs can meet their reporting requirements. In addition to planning
and conducting training and technical assistance on data sharing, the
Departments will issue joint guidance for matching education and wage
records in order to assist States in providing performance information
required under WIOA. Additionally, the Departments will work with State
and Local WDBs, one-stop center operators, and partners to achieve an
integrated data system for the core programs and other programs to
ensure interoperability and the accurate and standardized collection of
program and participant information. No change to the regulatory text
is being made in response to these comments.
Paragraph (a)(2) of Sec. 677.160 requires disaggregated
performance levels based on barriers to employment, age, sex, race, and
ethnicity. Certain commenters favored this provision. No substantive
change was made to this section.
Paragraphs (a)(3) through (a)(7) of Sec. 677.160 require
information on participants who received career services and training
services. The Departments have revised Sec. 677.160(a)(3), (4), (6)
and (7) to specify that career services and training services are two
different services, not one type of service. No change was made to
Sec. 677.160(a)(5).
Comments: Several commenters stated that tracking these detailed
costs would be overly burdensome and exceed the value of the
information gained.
Departments' Response: The Departments recognize the concerns
identified by the commenters about the States' ability to collect data
pertaining to career services and training services, including
expenditures. However, the data elements contained in the State
performance report, including the data elements on career services and
training services, are required by statute. No change to the regulatory
text is being made in response to these comments.
Comments: A few commenters recommended that reporting begin with a
1 year period and work up to 3 years.
Departments' Response: The Departments have concluded that these
provisions are prospective provisions that do not require retroactive
collection of information. Reporting begins in PY 2016, and by PY 2018
States will have reported 3 years of data. No change to the regulatory
text is being made in response to this comment.
Comments: Commenters asked for a definition of ``career and
training service'' and the relationship to ``vocational and training
services'' in the VR program regulations.
Departments' Response: WIOA defines both career services and
training services in sec. 134(c)(2) and (c)(3)(D), respectively.
Additionally, further information is provided in Sec. 678.430 of this
Joint WIOA Final Rule about career services in the one-stop delivery
system. Although the definitions are contained in statutory provisions
relevant only to the title I core programs, sec. 121 of WIOA (which
applies to all core programs) requires each of the core programs to
provide career services and training services, as applicable to the
program, thereby making those
[[Page 55852]]
definitions relevant to all core programs, including the VR program.
Furthermore, these services are consistent with the types of services
provided by the VR program and with the data collected through the VR
program's RSA-911 collection instrument.
With respect to Sec. 677.160(a)(3) (4), (6), and (7), the
Departments have revised the regulatory text to address commenter
requests for clarity. The previous language at Sec. 677.160(a)(3)
referred to ``the total number of participants and exiters who received
career and training services for the most recent program year and the 3
preceding program years, as applicable to the program.'' This has been
revised to refer to ``the total number of participants who received
career services and the total number of participants who exited from
career services for the most recent program year and the 3 preceding
program years, and the total number of participants who received
training services and the total number of participants who exited from
training services for the most recent program year and the 3 preceding
program years as applicable to the program.'' In so doing, the
Departments make clear that career services and training services are
two different types of services, not one type of service. The revised
language is also more consistent with the statutory provision by
referring to ``participants who exited'' rather than ``exiters'' since
these final regulations define ``exit,'' not ``exiter.'' A similar
revision was made to Sec. 677.160(a)(4). Likewise, proposed Sec.
677.160(a)(6) previously referred to ``the amount of funds spent on
each type of career and training service for the most recent program
year and the 3 preceding program years.'' This language has been
revised to refer to ``the amount of funds spent on career services and
the amount of funds spent on training services for the most recent
program year and the 3 preceding program years, as applicable to the
program.'' A similar revision was made to Sec. 677.160(a)(7). These
changes clarify that the Departments interpret sec. 116(d)(2)(D) to
require the collection and reporting on participants who receive career
services and participants who receive training services, as well as
participants who exited from career services and training services, as
a single point of collection and thus does not require an itemized
collection and reporting on each of the various career services or each
of the various training services that a program provides. Instead, the
amount to be reported is the total amount spent on career services and
the total amount spent on training services.
Comments: Paragraph (a)(3) of Sec. 677.160 requires reporting on
the number of participants and exiters who received career services and
training services. A number of comments were received regarding the
difficulty of tracking costs associated with expenditures of funds on
such services, as required in paragraph (a)(6).
Departments' Response: The Departments will provide technical
assistance or guidance in regard to tracking costs associated with
expenditures of funds on career and training services.
No particular comments were received in regard to Sec.
677.160(a)(4).
Paragraph (a)(5) of Sec. 677.160 requires reporting on the
percentage of participants who obtained training-related employment
through WIOA title I, subtitle B programs.
Comments: Some commenters warned that determining what constitutes
training-related employment under paragraph (a)(5) is highly subjective
and requires clarification.
Departments' Response: The Departments will provide more
information regarding what constitutes training-related employment
services through the WIOA Joint Performance ICR and through guidance.
No change to the regulatory text is being made in response to these
comments.
Paragraphs (a)(6) and (a)(7) of Sec. 677.160 require reporting on
the amount of funds spent on career services and training services, and
the average cost per participant for participants receiving career
services and training services.
Comments: Commenters requested guidance on whether the average cost
per participant for career and training services refers to the cost to
serve the individual or the costs of the career and training services,
and whether administrative costs are included. Separately, one of these
commenters also asked for the meaning of ``type'' of service needed for
disaggregation in reporting under paragraph (a)(6).
Departments' Response: The Departments will provide guidance
regarding calculations of costs in the WIOA Joint Performance ICR. The
Departments have revised Sec. 677.160(a)(6) to reflect the statutory
language, as WIOA did not require reports on the amount of funds spent
on career services and training services to be disaggregated by the
type of career service or training service. The language of the
regulation no longer refers to the ``type'' of service.
Paragraph (a)(8) of Sec. 677.160 requires that States report on
the percent of the State's annual WIOA allotment expended on
administrative costs.
Comments: A commenter sought clarification on whether this means
the percentage of each core program's annual allotment spent on
administrative cost, or the State as a whole.
Departments' Response: The Departments want to clarify that Sec.
677.160(a)(8) applies only with respect to the allotment under WIOA
sec. 132(b) and not with respect to allotments under other core
programs. No change to the regulatory text is being made in response to
this comment.
Paragraph (a)(9) of Sec. 677.160 requires information that
facilitates comparisons with programs in other States.
Comments: Some commenters opposed a requirement for additional data
collection and preferred, for example, development of shared tools/
surveys for measuring the quality of services to one-stop center
customers.
Departments' Response: The Departments note that WIOA allows
consideration of information that is necessary to facilitate comparison
of programs across States, which could potentially include the
development of shared tools or surveys. No change to the regulatory
text is being made in response to these comments. Further, the
Departments note that implementation of this provision would be
accomplished through the information collection request process.
Comments: The Departments also sought comments on the potential
inclusion of a supplemental customer service measure, including
suggestions on how to structure such a measure and whether the
inclusion of such a measure would be valuable. Commenters did not favor
developing a universal access point for customer feedback to be
provided with regard to the one-stop centers, though other commenters
expressed support for State or local measures of customer satisfaction.
One commenter asserted that such information would serve as a
foundation for substantive strategic planning, continuous improvement,
program research and evaluation, and the dissemination of best
practices nationwide.
Departments' Response: The Departments are considering various
mechanisms available to produce a national measure of customer
satisfaction, with particular interest in a measure akin to the net
promoter score used commonly in business and industry. Additionally,
the Departments intend to collect information on
[[Page 55853]]
customer satisfaction efforts used by the State and local areas through
the WIOA Joint Performance ICR as well as information on what States
are doing to leverage such information in the management of their
programs. The Departments continue to welcome input and participation
from States and local areas on how to capture customer satisfaction as
it pertains to usage of the public workforce system.
Comments: Other commenters also supported the provision and
suggested customer service measures to assess the quality of services,
but warned that guidance is needed. A few commenters reasoned that a
customer service measure is valuable only if the local area receives
the information and has a mechanism to reach out to the customer and
make the experience better.
A few commenters warned that obtaining the data would be difficult
and suggested that the measure should be left to the discretion of the
State or local government. Commenters recommended that the provision
should be part of the continuous improvement process at the local
level. In addition to the approach described above, the Departments
also are interested in the work that has been developed and used at the
State and local levels with regard to customer satisfaction, as well as
what actions States and Local areas have and will take in response to
such feedback.
Departments' Response: At this time, the Departments are not
modifying the regulatory text to regulate such activities. As discussed
above, the Departments recognize that, a national, State or local
customer satisfaction measure would require guidance and technical
assistance that will be provided through the mechanisms available such
as the information collection request process, which allows for notice
and public comment, program guidance, and technical assistance. The
Departments reiterate their intent to implement a uniform, national
customer satisfaction survey, applicable to both participants and
reportable individuals. While this customer satisfaction survey will
not be tied to accountability provisions, and the survey results will
not be factored into determinations of sanctions, customer satisfaction
will be a factor considered in the certification of one-stop centers.
The Departments anticipate the survey will encompass two elements: A
national net-promoter score-type indicator will be issued through the
amended WIOA Joint Performance ICR with a standard methodology; and a
State-based methodology that States will develop and States and Local
WDBs will use for one-stop center accountability and customer service
improvement. A focus from the Federal level will be on understanding
what States and local WDBs did with the results, which is critical to
using the data and information gathered towards the betterment of
service delivery and design. When the Departments collect information
on these activities, such actions and instructions will be conveyed
through the information collection process that is also subject to
notice and public comment.
Comments: Paragraph (a)(10) of Sec. 677.160 requires a State
narrative report regarding pay-for-performance contracting. A local
government recommended that the Departments provide a clear definition
of pay-for-performance contracts.
Departments' Response: The Departments did not introduce a
definition of pay-for-performance contracts under this section of the
regulation. The Departments refer to 20 CFR part 683, subpart E, where
the allowance and guidelines for pay-for-performance activities is more
fully described (see DOL WIOA Final Rule, published in this issue of
the Federal Register). Paragraph (a)(10) of Sec. 677.160 remains
unchanged from that proposed in the NPRM.
Paragraph (b) of Sec. 677.160 prohibits the disaggregation of data
for a category in the State performance report if the number of
participants in that category is insufficient to yield statistically
reliable information.
Comments: Commenters suggested that States are likely to have
several ``cell sizes'' that do not meet the standard of statistical
reliability; therefore, reporting requirements should include
alternative methods for summarizing data into larger aggregates. A
commenter requested guidance on an acceptable level of disaggregation
of data.
Departments' Response: The Departments recognize that
disaggregation can produce certain cell sizes that fall below the
aggregation levels that are allowed in order to protect the data from
yielding PII.
The Departments did not impose a minimum disaggregation level in
this section of the NPRM or this Joint WIOA Final Rule and will provide
additional clarity through guidance regarding aggregation that is
statistically significant and reliable yet protects the identity of
individuals served through the programs. In developing such guidelines
and guidance, the Departments have considered industry standards such
as those established by the National Institute of Standards and
Technology (NIST), the Family Educational Rights and Privacy Act
(FERPA), the confidentiality regulations for the VR program at 34 CFR
361.38, the UC confidentiality regulations found at 20 CFR part 603,
the Social Security Act sec. 1137(a)(5) as well as State laws that
govern aggregation levels and factors that can be used to affect the
level of suppression required to maintain the privacy and
confidentiality of participant data. No change to the regulatory text
is being made in response to these comments. Furthermore, the
Departments reiterate their interpretation of this statutory provision
of WIOA, as noted in the NPRM at 80 FR 20474, 20589 (April. 16, 2015).
As written, WIOA sec. 116(d)(2) requires the performance report to be
subject to WIOA sec. 116(d)(5)(C). However, this section refers to Data
Validation, and the Departments interpret this reference to requires
States to comply with sec. 116(d)(6)(C), which ensures the Departments
receive statistically reliable information and protects participants'
privacy. The Departments are implementing this regulation as proposed.
Paragraph (c) of Sec. 677.160 requires that the State performance
report include a mechanism of electronic access to the State's local
area and ETP performance reports. This provision does not require a
State to submit the actual local area and ETP performance reports with
its State report. Failure to provide a mechanism of electronic access
to the State's local area and ETP performance reports will constitute
an incomplete State performance report submission, and thus trigger
sanctions. No comments were received regarding this electronic access
reporting requirement. This section remains unchanged from that
proposed in the NPRM.
Paragraph (d) of Sec. 677.160 states that States and local areas
must comply with the requirements in sec. 116 of WIOA as explained
through joint guidance that the Departments will promulgate. This
section remains unchanged from that proposed in the NPRM.
Section 677.165 May a State establish additional indicators of
performance?
Section 677.165 reflects the WIOA provisions in sec. 116(b)(2)(B)
that a State may identify in the Unified or Combined State Plan
additional performance accountability indicators. For example, a State
could add an indicator for attaining U.S. citizenship, work readiness,
completion of work-based learning, or any other indicator of State
significance. This provision of additional performance indicators
proposed by the State remains
[[Page 55854]]
unchanged from WIA. There were no comments on proposed Sec. 677.165.
There were no substantive changes made to this section.
Section 677.170 How are State levels of performance for primary
indicators established?
Section 677.170 outlines the process that will be followed and the
factors that will be considered in determining adjusted levels of
performance. WIOA uses the term ``adjusted levels'' to refer to both
the levels agreed to prior to the start of a program year, as well as
the adjustment done using the objective statistical model at the close
of the program year. In order to distinguish between the two adjustment
processes described in statute, this section was revised to use two
different terms for each process, specifically ``negotiated levels of
performance'' and ``adjusted levels of performance.'' Section 677.170
was revised to provide specific distinctions among expected levels,
negotiated levels, and adjusted levels of performance. The section
explains the process under which levels of performance are negotiated,
adjusted, and then calculated.
Section 677.170(a)(1) implements the requirement in sec.
116(b)(3)(A)(iii) that States provide expected levels of performance in
the initial submission of the Unified or Combined State Plan for the
first 2 years of the plan. In addition, the Departments are requiring
in Sec. 677.170(a)(2) that the States submit expected levels of
performance for the third and fourth years before the start of the
third program year covered by the Unified or Combined State Plan
consistent with Sec. Sec. 676.135 and 676.145, as part of the State
Plan modifications under sec. 102(c)(3)(A) of WIOA.
Comments: One commenter questioned whether performance levels
required in the State Plans are the proposed standards or the
negotiated standards since the term ``expected'' is used. The commenter
also recommended that the State WDB coordinate and participate in
performance negotiations for each partner and that the negotiations be
completed with States at least 45 days before the statutory deadlines
for submission of the 4-year plans and the 2-year plan modifications.
Departments' Response: Section 116(b)(3)(A)(iii) of WIOA requires
that each State identify expected levels of performance for each of the
corresponding primary indicators of performance for each of the core
programs for the first 2 program years covered by the Unified or
Combined State Plan. The expected levels of performance are those
submitted by the State in the initial submission of the State Plan
prior to negotiation. The expected levels of performance will be used
to reach agreement with the Departments on State negotiated levels of
performance. Therefore, the expected performance levels are similar to
proposed goals, reflecting the State's expectations for its
performance. These expected levels, however, will be adjusted through
negotiations between the State and the Departments in accordance with
sec. 116(b)(3)(A)(iv) of WIOA. Once the negotiated levels of
performance are agreed upon, these levels will be incorporated into the
approved Unified or Combined State Plan. Section 677.170(a) reflects
this statutory requirement. The Departments did not modify the
regulation to require coordination across core programs with regard to
the negotiations process, as recommended by the commenter. The
Departments agree that the commenter's suggestions are important for
the purposes and priorities of WIOA and strongly encourage coordination
across the core programs and other partner programs with respect to
negotiating performance levels for all programs operating in a State.
This section is consistent with the statutory requirements; the timing
of the negotiation is connected to the approval of the State Plan. The
Departments will provide guidance about the negotiation process.
Section 677.170(b) requires that the State reach agreement with the
Secretaries on negotiated levels of performance based on the factors in
WIOA sec. 116(b)(3)(A)(v). The Departments reiterate that WIOA uses the
term ``adjusted levels'' to refer to both the levels agreed to prior to
the start of a program year, as well as the adjustment done using the
objective statistical model at the close of the program year. This
paragraph was revised to use the term ``negotiated levels'' as
appropriate, to distinguish between the two processes.
The Departments sought comments on whether any additional factors,
beyond those identified in the proposed regulation, should be
considered in developing the statistical adjustment model, and the best
approach to updating the model as necessary.
Comments: Several commenters requested clarification of the
requirement for promoting continuous improvement, as set forth in
paragraph (b)(3) of Sec. 677.170. One commenter recommended that the
Departments consider embracing the full concept of continuous
improvement or eliminate the term from the regulations because a true
continuous improvement measure may have nothing to do with increasing a
performance measure and may seek to improve a process. Another
commented that continuous improvement can be defined in a variety of
ways, including as improvements in efficiency. Commenters also
requested that continuous improvement be defined in the regulation.
Departments' Response: The Departments want to make clear that sec.
116(b)(3)(A)(v) of WIOA requires the negotiated levels of performance
take into account four factors, including, among other things, how the
levels of performance promote continuous improvement. The Departments
recognize the complexities involved in using a continuous improvement
factor in performance negotiations. However, the Departments are unable
to remove the continuous improvement factor from the regulation because
it is a statutory requirement. The Departments will issue guidance on
the performance negotiations process that will provide additional
information regarding how the factor will be applied. No change to the
regulatory text is being made in response to these comments.
Section 677.170(c) provides that the Secretaries will disseminate
an objective statistical adjustment model that will be used both to
reach agreement on the State negotiated levels of performance and to
revise the negotiated levels at the end of a program year, to establish
the adjusted levels of performance. The objective statistical
adjustment model will account for actual economic conditions and
characteristics of participants, including the factors required by WIOA
sec. 116(b)(3)(A)(v)(II). The Departments will consider identified
statutory factors and other factors, which through empirical support
are established to have an effect on employment or skill outcomes and
are consistent with the factors identified in WIOA. The Departments
also will publish guidance that includes how the model was developed,
what factors were considered, and how the results are interpreted.
The regulation reflects the statutory requirement that the
objective statistical model consider certain factors. The differences
among States in actual economic conditions, as set forth in Sec.
677.170(c)(1) for required inclusion in the statistical adjustment
model, include the same economic conditions identified in WIOA sec.
116(b)(3)(A)(v)(II)(aa). The characteristics of participants, as set
forth in Sec. 677.170(c)(2) for required inclusion in the statistical
adjustment
[[Page 55855]]
model, include the factors identified in WIOA sec.
116(b)(3)(A)(v)(II)(bb).
Comments: One commenter expressed concern that including
participants' disability status as a factor in the objective
statistical model could unintentionally undermine the goal of
increasing the number of participants with disabilities in integrated
and competitive employment settings.
Departments' Response: The Departments note that disability status
is a statutorily required factor for the objective statistical model.
The Departments also note that continuous improvement is a factor in
establishing the negotiated levels of performance.
Comments: In the preamble to the NPRM, the Departments requested
comments specifically concerning additional factors to consider in
developing the statistical adjustment model. Many commenters supported
the commitment to use a statistical model and offered additional
factors, including race, Hispanic ethnicity, age, gender, veterans in
the area, severity of disability (e.g., receiving Social Security
disability benefits), seasonal employment, self-employment, minimum
wage and other economic data applicable to the local area, nature of
predominant employers in the area, quality of educational and training
facilities in the area, crime rate in the area, public transportation
and geographic barriers in the area, unemployment rate applicable to
young people, lack of a high school diploma, individuals not in the
workforce, and ratio of earnings at program entry to child support
arrearages.
Departments' Response: Upon consideration of comments regarding
additional factors to be included in the model, the Departments
concluded additional regulation is not required to include additional
factors. The Departments intend, in accordance with the statutory
requirements for the use of an objective statistical model, to consider
those identified statutory factors along with any other factors either
established within WIOA or through empirical support (and which are
consistent with the factors in the statute) to have an effect on
employment or skill outcomes as measured by the primary indicators of
performance established in Sec. 677.155. Factors that are included in
the model will be based on the application of empirically supported
statistical analyses used to determine the effect of a particular
factor on participant outcomes. The statistical adjustment model will
be reviewed periodically and may be revised with appropriate
consultation to ensure its accuracy and utility.
Comments: A commenter asserted that adjusted performance levels
should include a factor for small States, single-area States, and areas
of generally lower population.
Departments' Response: The Departments are considering all
potential factors in an effort to establish a model that is evidence-
based and supported by the literature. Having conducted a review of the
existing literature, the Departments have concluded that small States
and single-area State structures would be accounted for by those
variables that capture industrial structures, unemployment rates, and
shares of the population represented by race and educational levels. No
change to the regulatory text is being made in response to these
comments.
Comments: One commenter suggested that the Departments be mindful
of the potential burden that requiring additional data collection would
create and urged reducing reporting burdens and simplifying reporting
requirements.
Departments' Response: The Departments are mindful of the reporting
burden that would result from requiring additional information on
participants. In this case, the Departments aim to work with States as
well as other agencies that may have administrative data that could be
used to populate the model based on established, empirical evidence
that such information is shown to have an effect on the outcomes being
measured.
Comments: A few of the commenters suggested that the Secretaries
may need to establish separate statistical models for different
programs, such as those for youth and for adults, and suggested that
the models should be tested over a trial period and re-examined.
Commenters also recommended regular updates to the models.
Departments' Response: Section 116(b)(3)(A)(v)(II) of WIOA requires
that adjustments be made using ``the objective statistical model,''
which the Departments will build on a common framework for all core
programs to allow for programmatic differences between programs. The
model will be examined and revised as necessary. No change to the
regulatory text is being made in response to these comments.
Comments: One commenter raised concerns about the title II program
not collecting individual records at the Federal level and stated that
such records are absolutely necessary to develop and operate
statistical models. The commenter urged the Departments to develop a
common reporting mechanism. Other commenters noted that title II
programs lack experience using adjustment models and requested
additional guidance and technical assistance.
Departments' Response: The Departments acknowledge that the use of
aggregate data for the title II AEFLA program creates shortcomings for
developing an adjustment model because, among other things, the results
only can be used to adjust performance at the aggregate level (i.e.,
State) and results from these models cannot be applied to any sub-level
(e.g., city, county). However, the Departments disagree that individual
data are absolutely necessary to develop a statistical adjustment model
for State-level adjustments. Aggregate data may be used in statistical
adjustment models when individual records are not available. The
Departments have already developed statistical models for other program
purposes that produce accurate results using aggregated data and show
that results are comparable for State level adjustments, regardless of
whether individual data (i.e., disaggregated data) or aggregate data
are used. The Departments note that for the AEFLA program under title
II, ED will provide technical assistance to States in applying the
statistical adjustment model. The Departments will develop procedures
to minimize burden to States when using the model to generate adjusted
levels of performance. No change to the regulatory text is being made
in response to these comments.
Comments: A few commenters warned that there is limited or no
statistical tribal data available that captures economic circumstances
for the various Indian and Native American geographic service areas.
One of these commenters added that a regression model that factors in
local economic conditions will need to be developed for the INA
program.
Departments' Response: In response to the commenter's concern about
developing an accurate regression model to establish levels of
performance for INA program grantees, the Departments recognize that
labor market information (LMI) for American Indian geographic service
areas may not be as reliable as that for other areas. However, the
regression model also factors in the characteristics of participants
served by the grantee and is, therefore, not totally dependent on LMI.
Despite the potential for inaccurate LMI data for American Indian
geographic service areas, the Departments are confident a regression
model can be developed that establishes fair and attainable levels of
performance for each INA program grantee's service area. The
Departments envision developing further guidance regarding
[[Page 55856]]
INA adult performance indicators. No change to the regulatory text is
being made in response to these comments.
Comments: Some commenters did not support the use of an adjustment
model, or express concerns about the design of the State performance
accountability systems, because of the temptation to serve those
individuals who are more likely to achieve positive outcomes. This
commenter also noted that the fact that the State has sufficient tools
to evaluate current and projected performance to identify intervening
occurrences that would trigger re-evaluation of performance.
Departments' Response: While the Departments understand the
concerns expressed, sec. 116(b)(3)(A)(v)(II) of WIOA requires the use
of an objective statistical model to adjust the State levels of
performance based on actual economic conditions and characteristics of
participants. The Departments caution that any service provider tempted
to utilize the tactics described by the commenter should consider the
impact on future performance levels, which may be affected because of
relatively lower numbers or percentages of hard-to-serve populations
and other populations with barriers to employment. No change to the
regulatory text is being made in response to this comment.
Comments: Commenters added that the model will need to account for
varying levels of impact of a particular demographic or local economic
condition in different parts of the country, in particular race and
ethnicity, offender status, dependence on public assistance, local
minimum wage, and the local unemployment rates for young adults. Some
commenters recommended these factors be explicitly mentioned in the
regulation. One such commenter suggested that select CEOs participate
in the selection of factors in different parts of the country.
Departments' Response: The Departments are considering a State
fixed effect variable. Such a variable would account, in essence, for
the quality of the programs and their services. The Departments, after
consulting with various stakeholders and particularly in consultation
with expert reviewers, identified that the most important piece of
information that is not directly included within the statistical
adjustment model for the purposes of the performance accountability
system, is the quality of the programs and services. The model is being
developed with consideration of all participant and student variables
required by WIOA and the potential State specific factors that could be
accounted for through a State fixed effect variable. This variable
ultimately could serve the same purpose statistically as including
additional individual characteristics and any other State
characteristic not included in the model. With regard to participation
of select CEOs in the selection of factors to be included within the
statistical adjustment model, the Departments note that the
methodology, including the factors in the model, will be available for
public comment and review. Moreover, WIOA sec. 116(b)(3)(A)(viii)
requires the Departments to develop an objective statistical model in
consultation with a variety of stakeholders identified in sec.
116(b)(4)(B), who would include CEOs. No change to the regulatory text
is being made in response to these comments.
Comments: Some commenters also suggested that States should be
allowed to provide additional information specific to the State that
may not be fully accounted for in the national statistical models when
setting performance targets. Some commenters suggested that State and
local areas should be able to document this information and use it in
performance negotiations. Others stated that additional State
information is critical because it is not feasible to develop a single
statistical model with one set of demographic and economic variables
that is equally accurate for all States and all boards.
Departments' Response: The Departments note that States are
permitted to provide additional information concerning factors listed
in sec. 116(b)(3)(A)(v) of WIOA during the negotiations process. The
States may provide relevant documentation and research concerning these
factors during the negotiation process. The Departments will ensure
that each programs' data, its availability, and its specificity will be
considered in developing the methodology and framework for the
application of the model to each program. The Departments intend to
continue to assess the quality and robustness of the statistical
adjustment model since it plays such a key part in the adjusted levels
of performance under this section. No change to the regulatory text is
being made in response to these comments.
Section 677.170(d) requires the statistical adjustment model to be
used before the beginning of a program year as a consideration in
establishing levels of performance, and then used to adjust levels of
performance at the end of a program year. The Departments reiterate
that WIOA uses the term ``adjusted levels'' to refer to both the levels
agreed to prior to the start of a program year, as well as the
adjustment done using the objective statistical model at the close of
the program year. This paragraph was revised to use the term
``negotiated levels'' as appropriate to the process.
Comments: Several commenters opposed having the goals adjusted
twice a year, because it would make building strategic plans difficult,
add additional burden, and create a moving target. Another commenter
requested that the margin of error be published with the statistical
models. A few commenters asserted that applying the formula at the end
of the year creates the possibility of targets higher than planned
outcomes, which could lead to local areas failing performance. The
commenters stated that this approach does not lend itself to a
strategic planning process. An individual suggested that the year-end
adjustment process needs to allow room for additional factors that were
not anticipated to be significant at the start of the year, and another
commenter asked whether States will be able or required to negotiate
the final targets or if the results of the model will be applied
without discussion.
Departments' Response: Section 677.170(d) implements sec.
116(b)(3)(A)(iv) and (vii) of WIOA and requires the objective
statistical model to be applied before the beginning of the program
year as a consideration in establishing State levels of performance for
the upcoming program year and be used again at the end of the program
year based on actual circumstances. Therefore, there is no statutory
authority to delete the requirement to use the objective statistical
model at the end of the program year. The concern about margin of error
is important in evaluating the results from the model. Consequently,
the Departments will provide confidence intervals along with the
adjusted performance measures for each State. The Departments also
recognize that the effects of variables used in the adjustment model
may change over time. No change to the regulatory text is being made in
response to these comments.
Comments: Commenters requested that the model be made available for
the States to install within their own information systems so that it
can be made available to the local areas.
Departments' Response: The Departments acknowledge the commenters'
interest in incorporating the model within their own systems. As
required by WIOA, the Departments intend to make the statistical
adjustment model available to States, local areas, and the public. No
change to the
[[Page 55857]]
regulatory text is being made in response to these comments.
Comments: Commenters sought guidance and technical assistance,
including guidance on how to ensure that disadvantaged populations
receive comparable services throughout the program with expectations
that they will achieve outcomes leading to successful exits similar to
all participants in the program. A commenter favored development of a
common reporting mechanism, so that model development would not be
delayed by claims that the necessary data are not available.
Departments' Response: The Departments intend to publish guidance
that includes how the model was developed, what factors were
considered, and how the results are interpreted. The Departments also
share the commenters' concerns regarding comparable service for
disadvantaged participants and commit to providing technical assistance
and guidance on how to ensure an equal distribution of services. No
change to the regulatory text is being made in response to these
comments.
Comments: Many commenters suggested that, because data are lacking
to set benchmarks for the new outcome measures, FY2017 should be a
benchmarking year, or implementation should be lagged for 2 to 4 years
to establish accurate levels of performance. A commenter expressed
concern about the comparability of data across core programs and across
States. Another commenter asked for clarification on whether there will
be sanctions for low performance prior to the establishment of
benchmarks and baselines.
Departments' Response: The Departments have revised Sec.
677.190(c) in response to these comments; more information about the
Departments' approach is set out below in the preamble to that section.
Section 677.170(e). The Departments added a new paragraph (e) to
Sec. 677.170, and renumbered the previous paragraph (e) as Sec.
677.170(f). The new paragraph (e) specifies that the previously
discussed negotiated levels, after being revised at the end of the
program year based on the statistical adjustment model, are the
adjusted levels of performance.
Section 677.170(f) requires States to comply with the requirements
in sec. 116 of WIOA. The Departments intend to issue guidance, which
may include information on reportable individuals as established by the
Secretaries. No comments were received regarding this reporting
requirement and no changes have been made to this section.
Section 677.175 What responsibility do States have to use quarterly
wage record information for performance accountability?
Section 677.175 implements the requirement that States must,
consistent with State laws, use quarterly wage record information to
measure progress on State and local performance accountability
measures, as required by sec. 116(i)(2) of WIOA. Such information
includes the intrastate and interstate wages paid to an individual, the
individual's SSN, and information about the employer paying the wages
to the individual.
After further review of this provision, the Departments recognize
that some participants may not be included in quarterly wage records
held by the State, such as those participants who refuse to provide a
SSN to the program or who may be self-employed. In light of this fact,
the Departments have revised Sec. 677.175(a) to make clear that States
must use quarterly wage records to the extent they are available;
however, States may use other information when such records are not
available. In so doing, the Departments ensure that programs may track
the participants for performance accountability purposes even if their
information is not contained in the State's quarterly wage record
system.
The Departments have revised Sec. 677.175(c) to provide that the
State agency or appropriate State entity designated to assist in
carrying out the performance requirements is responsible for preventing
disaggregation that would violate applicable privacy standards. The
Departments added the words ``applicable'' and ``standards'' to Sec.
677.175(c)(3) to require that the States must consider the privacy
standards that apply to them.
Comments: A significant number of commenters raised concerns about
the difficulty in matching wage records, citing concerns over FERPA
privacy rules, that students often refuse to provide SSNs (for reasons
such as concern about consumer fraud and uncertain residency status),
some students do not have SSNs, and several States do not allow
programs to collect SSNs. Some of these commenters asserted that there
are other data matching mechanisms by which to track employee outcomes.
Other commenters suggested not including participants without SSNs in
the measure for computing the percentage for the performance target.
Many commenters also urged the Departments to provide guidance on how
to collect employment-related data without use of SSNs, acceptable
forms of SSN validation, and on alternatives to using wage records.
Many commenters added that data from the UI wage record system often do
not present a complete picture of employment because it excludes the
self-employed, those outside of an individual State, and risks over-
representing Limited English Proficient individuals in the non-matching
group. Some of these commenters recommended that States be given
supplemental options such as follow-up calls or emails to verify
employment status.
Departments' Response: The Departments considered the commenters'
concerns about the obstacles to using wage record information and agree
there are limited circumstances in which such information may not be
available. The Departments want to make clear that sec. 116(i)(2) of
WIOA requires that States use quarterly wage records when determining
performance under the primary performance indicators that measure
employment status and median earnings. Using its authority under sec.
189 of WIOA, the Secretaries are allowing States to use other
information to verify performance of those individuals for whom
quarterly wage records are not available, such as those who are self-
employed. This flexibility is necessary to carry out the requirements
of WIOA and its performance accountability system. To do otherwise
would potentially result in programs not able to report on participants
as required under WIOA. Therefore, where available and possible, States
must use wage records to fulfill reporting requirements. Furthermore,
the Departments understand that wage record information may not provide
a complete representation of the employment outcomes. For all the
reasons discussed here, the Departments will allow the collection and
verification of supplemental wage information to demonstrate employment
outcomes in the second and fourth quarters after exit in those
instances where wage records are not available. However, if a State
uses supplemental information to report on the employment rate
indicators, the State also must use supplemental information to report
on the median earnings indicators. The Departments will provide
guidance on acceptable supplemental information to verify performance
outcomes. Section 677.175(a) has been revised to reflect the changes
described here.
With regard to acceptable forms of SSN validation, the Departments
note
[[Page 55858]]
that WIOA sec. 116(d)(5) requires the Departments to issue data
validation guidelines, which the States must use to ensure that the
information in the reports is valid and reliable. See the preamble to
Sec. 677.240 below for further discussion on this requirement.
In the NPRM, the Departments expressed the intent to engage in a
renegotiation of the WRIS data sharing agreements with States, which
will allow States to conduct interstate wage matches for all WIOA core
programs. Like WIA, WIOA similarly provides authority for the
Departments to facilitate data matching between the States.
Comments: Several commenters approved of this commitment and
encouraged the Departments to clarify that all the core programs may
use the Federal Employment Data Exchange System (FEDES) for WIOA
performance reporting.
Departments' Response: Under WIA, DOL's Employment and Training
Administration aided in the establishment and management of a system
through which participating, signed States could access Federal
employment records from the participating government agencies. The
Departments have concluded that the authorities established in WIOA
allow for the continuation of such an agreement to facilitate wage
matching for Federal employment for States that become signatories to
the established data sharing agreement. The Departments have concluded
that such agreements should be entered into and conducted at the State
level based on the language of WIOA sec. 116(i)(2), which requires that
the use of wage records must be consistent with State law. Moreover,
WIOA sec. 116(i)(2) requires the Secretary of Labor to facilitate such
arrangements between States. Therefore, the Departments continue in
their commitment to review and renegotiate the appropriate agreements
with State government entities that provide the necessary wage data for
complete and robust performance reporting across all core programs
under WIOA.
Comments: One commenter recommended that, for private training
providers who cannot access wage record information, regulations should
provide that the data these entities submitted for training
participants not found in the UI wage records be returned to the
provider, indicating that the records do not match UI records.
Departments' Response: ETP access to wage records is governed by
the UC Confidentiality and Disclosure regulations at 20 CFR part 603.
Therefore, training providers seeking access to wage records must
comply with these provisions. Because ETP access is governed by 20 CFR
part 603, the Departments have not changed Sec. 677.175 in response to
this comment. However, the Departments will issue guidance regarding
the process of matching wage records. No change to the regulatory text
is being made in response to this comment.
Comments: Another commenter favored allowing performance to be
reported disaggregated by industry.
Departments' Response: The Departments consider additional
disaggregation, when it is not required by statute, to pose an
additional and unnecessary burden on the States. Moreover, many States
do not require the inclusion of the North American Industry
Classification System codes within wage records. Therefore, its
inconsistent availability makes requiring this kind of reporting
infeasible. No change to the regulatory text is being made in response
to this comment.
Comments: One commenter suggested that WDBs and AEFLA providers are
entitled to know whether a participant they served was employed in a
given quarter.
Departments' Response: The Departments reiterate that an entity's
ability to obtain this information depends on their compliance with the
confidentiality requirements of 20 CFR part 603 (covering UC records),
34 CFR part 99 (covering educational records protected by FERPA), and
34 CFR 361.38 (covering VR records), as well as any applicable State
laws. However, the Departments want to make clear that States are
responsible for ensuring the appropriate entities have access to the
information required for reporting purposes under WIOA sec. 116 and
these regulations.
Comments: The Departments received several comments related to the
use of wage record information and the VR program. Another commenter
asked whether the wage record provision will be tracked in the VR
program differently than in the other core programs. A commenter
requested that additional guidance on VR access to WRIS be issued so
that States may plan any necessary changes to their IT systems.
Departments' Response: The Departments recognize the unique
disclosure requirements that have to be navigated by various entities.
Because of the importance of protecting PII while also obtaining the
necessary information needed for States to comply with the performance
accountability system requirements, the Departments will issue guidance
to assist States in regard to accessing wage record information.
The Departments also refer these commenters to the UC
Confidentiality and Disclosure regulations at 20 CFR part 603, which
govern the confidentiality and disclosure of, wage record information.
It should be noted that the confidentiality provisions apply to PII
contained within a wage record and this extends to the absence of data
for an individual level as well. The tracking of employment outcomes
through wage record matching is subject to 20 CFR part 603 and any
applicable Federal and State laws; therefore, there may be some
variation in the mechanisms for matching wage record data via the State
UC agencies and the process through which any core program enters into
and engages under those agreements. Furthermore, regulating access to
wage record information is beyond the scope of this part. No change to
the regulatory text is being made in response to these comments.
Comments: A commenter asserted that if the VR program is to track
progress on wages, then it would need ready access to longer-range
employment data.
Departments' Response: The VR program is subject to the same
outcome reporting requirements as the other core programs under WIOA.
Thus the Departments have concluded that access to a different duration
of employment data is not necessary. No change to the regulatory text
is being made in response to this comment.
Comments: Another commenter requested clarification on how
participants who are seeking to better themselves without entering the
workforce or postsecondary education should be treated in the
performance accountability system. This population includes retirees,
the non-working disabled, and English language learners who are seeking
to improve their language skills but are not in the labor force.
Departments' Response: The Departments interpret WIOA sec.
116(b)(2)(A)(i) to require all participants to be included in the
primary performance indicators, with very limited exceptions,
regardless of their employment status at program entry. No change to
the regulatory text is being made in response to this comment.
Comments: A commenter requested clarification about whether the
wage record information refers to wages paid or wages earned.
[[Page 55859]]
Departments' Response: The Departments clarify that the wage record
information held by State UC agencies, from which wage record
information is drawn, only contain the wages paid to an individual. See
20 CFR 603.2(k)(1). Moreover, sec. 1137(a)(3) of the Social Security
Act, which creates the requirement that States provide quarterly wage
reports, only requires that employers report wage information.
Similarly, sec. 3306(b) of the Federal Unemployment Tax Act defines
wages as all remuneration for employment. Because the records only
include wages paid, the Departments interpret WIOA sec. 116(i)(2)'s
requirement to use State UI wage records to mean that the States only
are required to report on wages paid. No change to the regulatory text
is being made in response to this comment.
Comments: Some commenters favored data sharing and record matching
across departments and programs. Another commenter said that the Indian
and Native American programs (INAP) do not have a mechanism to match
participant SSNs with UI wage records. One commenter recommended that
the Departments, in renegotiating the Wage Record Interchange System
(WRIS) agreements, make it possible for States to access readily both
intra- and interstate UI data beyond the fourth quarter after exit for
longer-term program impact evaluations.
Departments' Response: The Departments recognize the variety of
structures that exist for programs under WIOA; some programs are run
through the States and others are run through sub-State level grantees.
The Departments recognize the challenges faced by the INA programs in
complying with WIOA performance reporting requirements and will be
issuing guidance for and providing technical assistance to those
programs. Under WIA the Secretary of Labor, working with States,
established the WRIS to facilitate access to interstate wage data for
State workforce agencies to fulfill their performance reporting
requirements. In addition, DOL established the Common Reporting
Information System (CRIS) in order to provide access to the aggregate
wage data necessary for performance reporting, to those workforce
programs that were not operated by State workforce agencies. These
programs included the WIA national programs, such as INAP and NFJP, as
well as competitive and discretionary grant programs operated under the
jurisdiction of DOL.
Under WIOA, the WRIS, WRIS2, and CRIS are being reviewed and
renegotiated to establish the mechanisms for programs, including those
under the jurisdiction of ED, where applicable, to access the quarterly
wage data necessary for grantees to fulfill their WIOA performance
reporting requirements.
The Departments considered these comments and made no changes to
the regulatory text. First, WIOA sec. 116(i)(2) already requires that
the wage records of any State receiving program funds are available to
any other State to the extent that such wage records are required by
the other State in carrying out performance accountability for its
State Plan. While the Departments are working to facilitate applicable
programs' access to intra- and interstate UI data, the Departments have
determined that the conditions and availability of the records outlined
within these agreements are not appropriately included in this
regulation.
Comments: A commenter suggested that DOL look at wage record pilots
to research gaps in wage record use.
Departments' Response: The Departments will continue to give
consideration to activities that identify gaps and improve on the usage
of wage record information for the purposes of performance reporting.
No change to the regulatory text is being made in response to this
comment.
Comments: Several commenters suggested that Local WDBs have access
to data that is timely and pertinent, citing surveys in which
participants say that their job is unrelated to the training received.
Departments' Response: The Departments recognize the need for local
areas to gain access to timely and accurate data and the Departments
strongly urge States to provide the sub-State level local area
reporting outcomes to their local areas along with the reporting that
they submit to the Departments. No change to the regulatory has been
made in response to these comments.
Comments: Commenters suggested that the wages should include all
program participant wages, pre- and post-exit.
Departments' Response: The Departments have concluded that it is
not necessary to include this level of specificity in the regulatory
text. Such information and its required collection are handled through
the WIOA Joint Performance ICR. No change to the regulatory text is
being made in response to these comments.
4. Sanctions for State Performance and the Provision of Technical
Assistance (20 CFR part 677, subpart B; 34 CFR 361.180 through 361.200;
34 CFR 463.180 through 463.200)
Section 677.180 When is a State subject to a financial sanction under
the Workforce Innovation and Opportunity Act?
Section 677.180 outlines performance and reporting requirements
that are subject to sanctions under sec. 116(f) of WIOA. Section
677.180 provides that the failure to submit the State annual
performance report required under sec. 116(d)(2) of WIOA is
sanctionable, and that sanctions for performance failure are based on
the primary indicators of performance. The Departments have revised
Sec. 677.180 to correct a statutory citation error in the introductory
paragraph (to change WIOA sec. 116(d) to sec. 116(f)). WIOA sec. 116(d)
outlines the requirements for performance reports. The correct
reference should be to sec. 116(f), which governs sanctions for State
failure to meet State performance accountability indicators. No other
substantive changes were made to this section.
Comments: Commenters expressed support for the imposition of
sanctions for failure to report as well as for failure to meet a
performance standard.
A few commenters stated that funding and sanctions should be tied
to individual programs to ensure that a core program's poor performance
does not negatively impact the funding of other core programs.
Departments' Response: The Departments recognize the commenters'
concerns regarding funding and sanctions being tied to individual
programs; however, WIOA sec. 116(f)(1)(B) makes clear that the
sanctions are imposed against the Governor's Reserve for statewide
activities under the title I adult, dislocated worker, and youth
formula programs regardless of which of the six core program's
performance constitutes a failure giving rise to the sanction.
Therefore, given the explicit statutory requirement, the Departments do
not have the authority to do as these commenters suggested. No change
to the regulatory text was made in response to these comments.
Comments: Another commenter requested clarification regarding how
individual core programs will be held accountable if they reside in
different agencies.
Departments' Response: The Departments note that accountability for
the State's performance rests with the Governor and State WDB, through
[[Page 55860]]
which all core programs are represented. Therefore, even if the core
programs are located in different agencies, there is no difference in
how the States and core programs are treated. The Departments encourage
and expect the core programs to work closely together regardless of the
State agency in which they are located. No change to the regulatory
text was made in response to this comment.
Comments: A commenter sought clarification concerning the process
for submitting the State annual performance report and the manner in
which sanctions will be enforced.
Departments' Response: The Departments consider the process of
submitting State annual performance reports to fall under the purview
of sub-regulatory guidance as it is implementation of the regulatory
requirements. Therefore, the Departments will issue guidance clearly
explaining how to carry out the annual reporting process. The
Departments will impose financial sanctions consistent with WIOA sec.
116(f)(1)(B), which provides for a five percent reduction of the State
Governor's Reserve for Statewide Activities from the amount allocated
in the immediately succeeding program year. The Departments consider
the logistics of how the financial sanction will work to fall under the
purview of sub-regulatory guidance as it is implementation of the
statutory and regulatory requirement. Moreover, the financial sanctions
will be carried out consistent with financial management and rules
already in place. Therefore, the Departments will issue further
guidance on how this process will be conducted. No change to the
regulatory text is being made in response to this comment.
Comments: One commenter requested clarification about whether WIOA
or Perkins indicators of performance would take precedence in a
Combined State Plan.
Departments' Response: The Departments clarify here that the
Perkins program is subject to its authorizing statute's requirements on
performance measurement. Should a grantee receive both Perkins and WIOA
funds, it must report on both programs accordingly.
Section 677.185 When are sanctions applied for a State's failure to
submit an annual performance report?
Section 677.185 outlines the circumstances under which a State may
be sanctioned for failure to report under sec. 116(f)(1)(B) of WIOA. No
substantive changes were made to this section.
Comments: A commenter stated that the 30-day deadline to request an
extension should be removed as it does not allow for exceptional
circumstances, such as a natural disaster, that may occur closer to the
deadline.
Departments' Response: The Departments refer the commenter to Sec.
677.185(c)(2) which allows for unexpected events within the 30-day
period and provides a process by which exceptional circumstances may be
addressed in less than 30 days. No change to the regulatory text was
made in response to this comment.
Comments: A few commenters supported the enforcement of sanctions
for failure to report.
A few other commenters requested clarification regarding what the
Departments consider exceptional circumstances under which a State
would be exempt from sanctions for failure to report.
Departments' Response: In response to the comments on enforcement
of sanctions for failure to report, the Departments note that a State
annual performance report is considered complete only when it provides
a mechanism of electronic access to local area and ETP performance
reports. Thus, the submission of a State annual performance report that
does not provide a mechanism of electronic access to local area and ETP
performance reports is a sanctionable offense. Section 677.185(b)
provides a non-exhaustive list of examples that may qualify as an
exceptional circumstance. The listed exceptional circumstances include
natural disasters, unexpected personnel transitions, and unexpected
technology related impacts. These are not the only circumstances that
may be justified, but rather are examples of the types of circumstances
the Departments would consider exceptional. The Departments expect that
any request for delay or any failure to report timely information would
not be based on a routine or predictable situation. The Departments
interpret Sec. 677.185(c) to require these exceptional circumstances
to be fully documented by the States, supported by clear rationale, and
include an estimation of when the performance reports will be made
available. The Departments will determine the merits of each request
based on exceptional circumstances in consultations with the States,
and their respective regional offices. The Departments plan to issue
guidance to provide further clarity with regard to exceptional
circumstances. No change to the regulatory text is being made in
response to these comments.
Comments: A commenter expressed concern that the guidance regarding
exceptional circumstances is to be issued without public comment and at
a point at which States may already incur sanctions.
Departments' Response: Any guidance issued by the Departments
regarding exceptional circumstances would be interpretive and thus, is
exempt from the notice and comment rulemaking requirements under the
Administrative Procedure Act. See 5 U.S.C. 553(b)(A). The Departments
intend to issue guidance prior to applying sanctions. No change to the
regulatory text has been made in response to this comment.
Comments: A commenter requested the Departments focus on
incentivizing timely submission of State annual performance reports
rather than sanctions.
Departments' Response: WIOA sec. 116(f) requires that financial
sanctions apply with regard to the timely submission of performance
reports and does not provide for incentives within this context. No
change to the regulatory text was made in response to this comment.
Section 677.190 When are sanctions applied for failure to achieve
adjusted levels of performance?
Section 677.190 governs how States will be assessed for performance
failure and when such failure will result in a financial sanction.
Although the Departments have referenced other non-core programs in
previous sections of this preamble for part 677, consistent with WIOA
sec. 116(b)(2) and 116(f)(1)(B), performance success or failure will be
based solely on the performance of the six core programs of WIOA--not
other partner programs in the public workforce development system. The
Departments have added two new provisions to Sec. 677.190(c) to
reflect a phased-in approach for applying sanctions for failure to
achieve adjusted levels of performance. In addition, the Departments
reiterate that WIOA uses the term ``adjusted levels'' to refer to both
the levels agreed to prior to the start of a program year, as well as
the adjustment done using the objective statistical model at the close
of the program year. Paragraph (c) was revised to make clear that
performance accountability will be based on a comparison of the State's
performance with that determined to be the ``adjusted levels of
performance,'' as appropriate. These revisions resulted in renumbering
the subsequent paragraphs. Section 677.190(c)(2) provides that, until
at least 2 years of complete data are available
[[Page 55861]]
for each of the indicators, the Departments will assess the State's
performance on the overall program score based on the indicators for
which there are at least 2 years of data available. Section
677.190(c)(4) similarly provides that until at least 2 years of
complete data are available for each of the indicators, the Departments
will assess the States' performance on the overall indicator score,
based on the indicators for which there are at least 2 years of data
available. The Departments consider complete data to consist of, at a
minimum, 2 full program years of performance data.
Comments: Many commenters discussed the timeline for implementing
the full accountability system, with the majority of commenters
supporting a 2-year benchmarking period to allow for the collection of
baseline data to be used to assess performance moving forward. Other
suggestions included a 1-year baseline period, a 3-year baseline
period, and a 4-year baseline period. Still, other commenters supported
a baseline period, but did not provide a specific timeline for
implementing the full performance accountability system. Commenters
supported using the PY 2016, PY 2017, and PY 2018 annual report as the
first years to report on State adjusted levels of performance. A
commenter suggested the PY 2016 annual report be the first used for all
of the performance indicators except credential attainment and
measurable skill gains. Some commenters asserted that a 2-year delay in
the implementation of sanctions would allow for further calibration of
the statistical adjustment model. Some commenters requested a 2-year
transition period that would allow States to adapt to the new
performance standards before sanctions are implemented.
Departments' Response: Section 677.190(c)(1) and (3) govern how
performance on the overall State indicator score and the overall State
program score will be assessed. As explained above, the Departments
have revised the regulatory text in Sec. 677.190(c) to reflect a
phased-in approach for applying sanctions for failure to achieve
adjusted levels of performance. Paragraphs (c)(2) and (4) of Sec.
677.190 govern how performance on the overall State indicator score and
the overall State program score will be assessed. Section 677.190(c)(2)
provides that, until at least 2 years of complete data are available
for each of the indicators, the Departments will assess the State's
performance on the overall program score based on the indicators for
which there are at least 2 years of data available. Section
677.190(c)(4) similarly provides that until at least 2 years of
complete data are available for each of the indicators, the Departments
will assess the States' performance on the overall indicator score,
based on the indicators for which there are at least 2 years of data
available. Pursuant to these provisions, the Departments consider
complete data to consist of, at a minimum, 2 full program years of
performance data.
The Departments acknowledge that, given the lag in reporting data
and the amount of time needed for each indicator to be measured, 2
program years' worth of data for each of the indicators will occur at
different times. However, the Departments consider it vital that
performance accountability take effect as soon as possible to align
with the vision and requirements of WIOA. These revisions provide for
an assessment of the overall State program and indicator score when the
States have reported at least 2 years of complete data for the
indicators. For performance accountability determinations, including
the determination of failure to achieve adjusted levels of performance,
the Departments will not use data reported prior to July 1, 2016. The
Departments note that where historical data that were reported under
WIA provide a proxy for the new indicators (at least 2 years of data),
it is possible to establish a statistical adjustment model for
negotiation of those indicators. Such indicators will be included in
the overall State program or overall State indicator score for
performance assessment when States have reported 2 years of outcomes
under WIOA. The States are still subject to a performance risk plan
under Sec. 677.200(b).
Comments: Several commenters urged the Departments to delay
implementation of the full performance accountability system for
reasons other than the collection of baseline data, including that the
first annual State report should be coordinated with the development of
data systems.
Departments' Response: The Departments recognize the challenges in
unified reporting across the core programs. For this reason the
Departments are exercising the transition authority in sec. 503 of WIOA
to implement the requirements in a manner that allows for an orderly
transition from the requirements of WIA to the requirements of WIOA. To
the extent that data are available, States must comply by submitting
the requisite data. Moreover, the Departments recognize that some
States have the capability to currently report all of the data in one
system and upload reports to the Departments, whereas other States may
not have that capability. The Departments plan to provide guidance on
the submission process for WIOA State annual reports through the WIOA
Joint Performance ICR.
Comments: Several commenters stated that sanctions should not be
implemented until the third consecutive year of performance failure,
rather than the second, in order to allow improvement measures to be
effective.
Departments' Response: Section 116(f)(1)(B) of WIOA provides that
performance is assessed and sanctions are applied in the second
consecutive year of failure. Therefore, the Departments cannot
implement the commenters' suggestion.
Comments: Several commenters remarked that a definition of second
year failure should be added to the regulatory text in order to prevent
a State from incurring sanctions without adequate time to improve
performance. Another commenter stated that sanctions should not be
applied until a State has demonstrated that it is able to implement
their performance improvement plan. While acknowledging the existing
statutory constraints, a commenter expressed concern about the lack of
time to intervene and allow program adjustments to demonstrate
improvement.
Departments' Response: Section 116(f)(1)(B) of WIOA is clear that
sanctions apply after 2 program years of consecutive performance
failure; the statutory language does not permit the Departments to
delay sanctions because the State has not been able to implement its
performance improvement plan. The Departments encourage States to use
their quarterly data to monitor progress on their performance
improvement plan benchmarks without waiting until they submit their
annual performance report. No change to the regulatory text was made in
response to these comments.
Comments: Concerning the timing of performance outcome reporting,
several commenters stated that performance outcomes for core programs
should be reported by December 31 of each year.
Departments' Response: The Departments have concluded that the
timing of reporting performance outcomes will be announced through
joint guidance clarifying when and how States should provide their
respective program performance reports. No change to the regulatory
text was made in response to these comments.
Comments: A commenter asserted that to evaluate performance
effectively,
[[Page 55862]]
indicators should be reported on a quarterly basis.
Departments' Response: The Departments note that Sec. 677.235
requires quarterly reporting for the WIOA title I, Wagner-Peyser Act
Employment Service, and VR programs. No change to the regulatory text
was made in response to these comments.
Comments: Commenters also addressed the limited availability of and
timely access to data, which can significantly hinder a State's ability
to identify areas of improvement and make the necessary program
adjustments to avoid failing.
Departments' Response: The Departments acknowledge the commenters'
concern regarding the limited availability of timely data that may
assist in identifying areas of program improvement. The Departments
have clarified the regulations regarding data availability and
sanctions in Sec. 677.190(c), above. Additionally, the Departments
note that all States have access to their program data and can use it
to assess at intervals of their own choosing to best manage their
performance, without the Departments having to require such action.
Comments: Some commenters suggested using only the State average
measure of the performance indicators rather than the average program
scores for each State in order to incentivize partnerships among
programs.
Departments' Response: Under these regulations, failure is
determined by both individual program performance as well as overall
State performance in the overall State indicator score. The
Departments' approach is premised on ensuring accountability for the
individual core programs while incentivizing the partnerships that the
Departments have concluded are critical to WIOA's long-term success. No
change to the regulatory text was made in response to these comments.
Comments: Several commenters suggested that the Departments award
monetary incentives and public recognition in order to emphasize the
importance of performance success, rather than setting unrealistic
goals.
Departments' Response: The Departments note that WIOA, unlike WIA,
does not authorize the use of incentives for successful performance.
However, States may continue to utilize incentives to recognize
successful local performance under WIOA sec. 134(a)(3)(A)(xi). Finally,
requests for guidance concerning performance metrics were made in order
to allow for proper administration of programs. The Departments intend
to issue further details on performance accountability through the WIOA
Joint Performance ICR, guidance, and technical assistance.
Comments: In addition to soliciting public comments on the NPRM
text, the Departments posed several questions regarding the application
of sanctions for failure to achieve adjusted levels of performance.
Many commenters responded to the question about using a weighted
average or a straight average for calculating State overall indicator
scores. Some commenters supported the use of an unweighted average in
order to support the goal of shared accountability among core programs.
A commenter stated that performance measures should not be weighted
until it is clear how weighted averages would be determined. Other
commenters stated that a weighted average would take into account
differences among programs and would prevent the misrepresentation of
particular programs. Citing the enhanced accuracy of the system of
performance, a commenter suggested that program performance be weighted
by the number of participants served to avoid giving unequal weight to
smaller core programs. Other commenters urged the Departments to weight
the indicators in order to maintain the emphasis on job placement and
employer partnerships as established in WIOA. A few commenters
suggested that local areas be weighted less due to their lesser impact
on wages paid within the area. A commenter supported the use of a
weighted average if performance is to be determined regionally, in
order to take into account the relative size of regional WDBs. In
addition, several commenters stated that if a weighted average is
pursued, a draft weighted average should be published for public
comment. Similarly, a commenter suggested that the weights assigned to
each program should be determined or agreed to by all partners. A few
commenters suggested that, in addition to a public comment period, the
weights should be reviewed at the end of each program year and adjusted
as needed.
Departments' Response: The Departments considered the comments
regarding the use of a weighted or unweighted average for the
determination of performance outcomes across programs and individual
indicators. The Departments have decided that using unweighted measures
across the programs and indicators still ensures performance
accountability across all core programs and individual indicators. The
Departments conclude this, in part, because an average performance
number weighted by the number of participants would essentially cause
each State's performance under Wagner-Peyser Act Employment Service
programs to have a disproportionate impact. The Wagner-Peyser Act
Employment Service program served more than 14 million participants in
PY 2014, which surpasses the number of participants served in all other
core programs combined. Using a weighted formula would mean that the
Wagner-Peyser Act Employment Service program's outcomes would be
determinative of a State's failure to achieve performance requirements.
The Departments do not consider this to be consistent with the
performance accountability goal of WIOA, which provides for shared
accountability across the core programs. The Departments have concluded
that using unweighted outcomes across the programs and indicators
properly implements WIOA in recognizing the importance of both
employment-related and education outcomes of the participants. No
change to the regulatory text was made in response to these comments.
Comments: Additionally, some commenters suggested the Departments
weight the employment indicators more heavily than the credential and
measureable skill gains indicators.
Departments' Response: The Departments considered these comments,
but decided not to alter the regulation as the three employment-related
indicators make up half of all of the WIOA performance indicators. The
three employment related indicators are the second and fourth quarter
employment rate and the second quarter median earnings indicator.
Because these measures make up half of all WIOA performance indicators,
the Departments concluded they already have a sufficient impact on a
State's performance.
Comments: Many commenters addressed the proposed thresholds for
performance failure of 90 percent for each of the State overall program
scores and the overall State indicator scores, and 50 percent of the
individual indicator scores. Numerous commenters opposed the 90 percent
threshold, citing the current lack of core program performance data,
the unrealistic nature of a 90 percent threshold, and the seemingly
arbitrary assignment of the threshold. A few commenters stated that the
90 and 50 percent threshold for performance failure should not be
established without the required statistical adjustment models. Many
other commenters responded to the Departments' solicitation regarding
the potential increase of the 90 percent threshold to emphasize the
importance
[[Page 55863]]
of performance success stating that the 90 percent threshold should not
be increased. Other commenters urged the Departments to adopt alternate
thresholds, ranging from 70 to 80 percent, with the majority supporting
an 80 percent threshold. A number of commenters urged the Departments
to establish thresholds in guidance rather than regulation so that they
could be more easily adjusted in the future, as necessary. Many
commenters stated that the Departments should establish a lower
threshold than 90 percent to allow for a phased-in approach that
gradually increases the threshold for performance failure over time.
One commenter supported a tiered approach in order to promote
continuous improvement. Although the vast majority of commenters
supported maintaining or decreasing the proposed thresholds, one
commenter stated that the 50 percent threshold for individual
performance indicators should be increased because, as proposed, it
would weaken the requirements of States and was not Congress's intent
in WIOA.
Departments' Response: The Departments considered the comments
regarding the overall 90 percent threshold and the 50 percent threshold
for individual indicators for a program year. The Departments
considered the various commenter-proposed threshold levels in light of
historical performance data and historical thresholds for each of the
core programs and have decided to maintain the thresholds as proposed.
The new thresholds are an increase from the 80 percent threshold
familiar to the title I programs and a decrease from the 100 percent
threshold for title II programs under WIA. The Departments consider
these thresholds to be reasonable due to the use and application of an
objective statistical model to account for actual conditions
experienced by a program. Previously, the title I and title II
thresholds were applied to a negotiated performance level and
performance was assessed in the absence of weighting for actual
economic conditions or participant characteristics. With the structure
of the performance accountability system in sec. 116 of WIOA, the
Departments consider a 90 percent overall threshold to strike the
appropriate balance between maintaining flexibility for unknown
mitigating variables and the newer precision introduced by utilizing an
objective statistical model. The 50 percent performance threshold
ensures that significant performance failure on a single indicator
cannot be compensated for by successful performance in any other
indicator or set of indicators. The introduction of an overall State
score across programs and indicators ensures that the performance
accountability system as articulated in sec. 116 of WIOA maintains
alignment and integration across all of the core programs. This overall
score paradigm, which is set at the 90 percent threshold, and balanced
with a 50 percent threshold on any single indicator, allows a State to
account for mitigating factors that prevent it from achieving 100
percent of its adjusted levels of performance. It also provides that a
State has not failed to achieve its negotiated levels of performance
unless its average performance across all programs for one indicator or
its performance for all indicators in one program falls below 90
percent of the State's adjusted targets. No change to the regulatory
text was made in response to these comments.
Comments: One commenter expressed concern that a program could
potentially pass the threshold for all of the individual indicators,
but not meet the overall program or overall indicator threshold, which
would send a mixed message to a program.
Departments' Response: In order to ``pass'' the threshold, each
State must meet or exceed the 90 percent threshold for the overall
State program score for each program and the overall State indicator
score for each indicator. Furthermore, under Sec. 677.190(d)(2), the
State must not fall below 50 percent on any individual indicator. This
is an additional safeguard against egregious failure by one indicator
being outweighed by high scores elsewhere. Thus, there is no
possibility of what the commenter suggested occurring. No change to the
regulatory text was made in response to this comment.
Comments: Some commenters raised potential alternative metrics for
evaluating success including: the use of statistical variation metrics
instead of the proposed threshold framework; standard deviation units
or variation against regression predictions; and confidence intervals
rather than a point estimate.
Departments' Response: The Departments considered utilizing these
methods, but concluded that a consistent threshold, which does not
change from year to year based on the size of the dataset, is the most
appropriate way to account for variations in the core programs or the
indicators and the varying availability of data. By creating a
consistent threshold, expected levels of performance will be easier for
program staff to understand and allows for comparisons across program
years. No change to the regulatory text was made in response to these
comments.
Section 677.195 What should States expect when a sanction is applied to
the Governor's Reserve Allotment?
Section 677.195 governs what will occur when a sanction is applied
to the Governor's Reserve for failure to report or failure to meet
adjusted levels of performance. It clarifies that the sanction will be
five percent of the amount that could otherwise be reserved by the
Governor.
Section 677.195(a)(3) was added so that this section contains the
causes of failure as defined in Sec. 677.190(e) by noting that States
also are subject to a 5 percent reduction of the Governor's Reserve
Allotment for the immediately succeeding program year if the State's
score for the same indicator in the same program falls below 50 percent
for the second consecutive year. A conforming edit was made to Sec.
677.195(b).
Comments: Several commenters expressed general support for the
Departments' interpretation of WIOA sec. 116(f) and the approach
proposed. However, numerous commenters opposed this approach and
requested clarification regarding the implementation of financial
sanctions only on WIOA title I programs funded by the Governor's
Reserve allotment. A commenter suggested that the burden of financial
sanctions be applied to the specific programs not meeting the
performance requirements. A few commenters requested clarification from
the Departments concerning allocation of funding lost via sanctions. A
number of commenters urged the Departments to permit the restoration of
funds once the State meets its reporting responsibilities. Commenters
also remarked that sanctioned funds should be spent on the Technical
Assistance and Performance Improvement Plan.
Departments' Response: Section 116(f)(1)(B) of WIOA does not
provide authority for the Departments to use, for other purposes, funds
that are reduced as a sanction from the Governor's Reserve. Therefore,
the funds may not be used for technical assistance, performance
improvement plans, the restoration of the Governor's Reserve funding,
or any other activity. In contrast, WIA provided that funds reduced due
to sanctions were to be used by the Secretary for performance incentive
grants to the States under sec. 503 of WIA, which was not carried over
to WIOA.
The Departments considered the comments regarding the sanctions to
WIOA title I programs being based on
[[Page 55864]]
any program's failure. WIOA sec. 116(f)(1)(B) clearly requires that any
performance sanction must apply to the Governor's Reserve allotment
under title I for any core program or indicator failure. Therefore, the
Departments do not have the authority to sanction the specific program
not meeting its adjusted levels of performance. The Departments
strongly encourage high levels of alignment and coordination to ensure
all core partners are engaged at all levels. The Departments emphasize
the role of State and local planning to ensure alignment and common
goals in attaining integration and service delivery. Regarding the
commenters' request for clarification concerning the allocation of
funding lost via sanctions, the Governor's Reserve for the next program
year will be reduced by five percentage points and money lost via
sanction will not be reallocated. No change to the regulatory text was
made in response to these comments.
Comments: Commenters also supported the elimination of proposed
Sec. 677.195(b) because a State could fail to meet 2 different
indicators for 2 consecutive years and receive a 5 percent sanction,
but if the State fails to meet one indicator for 2 consecutive years
and fails to report one time, the State would receive a 10 percent
sanction. These commenters stated that the latter scenario is a less
significant infraction and should not prompt the imposition of a 10
percent sanction.
Departments' Response: The Departments considered the comments on
imposing sanctions when in the same year the State fails to submit a
performance report and is in its second year of failure to meet
adjusted levels of performance. The Departments are maintaining the
language in Sec. 677.195(b) because the Departments conclude that
failure to submit a State annual performance report is a serious
compliance issue and should result in sanctions. Because the
regulations provide for a 10 percent sanction on States that fail to
submit performance reports as well as fail to meet the adjusted levels
of performance for 2 consecutive years (5 percent for failure to submit
report plus 5 percent for failure to meet adjusted levels of
performance), States will have an incentive to report to the
Departments even if they fail the adjusted levels of performance for 2
consecutive years because by doing so, they would receive only a 5
percent sanction for failure to meet adjusted levels of performance
rather than the 10 percent sanction. No change to the regulatory text
was made in response to these comments.
Comments: Several commenters addressed concerns regarding the
insufficient funding of the Governor's Reserve allotment and stated
that sanctions should be lessened or not implemented until the
allotment is fully funded, as is statutorily required. One commenter
suggested that the Departments scale sanctions according to the funding
available in the Governor's Reserve allotment.
Departments' Response: The Departments considered the comments
regarding the funding of the Governor's Reserve allotment and the use
of sanctions. Statutorily, the Governor's Reserve is set at 15 percent
of the WIOA adult, dislocated worker, and youth formula allocations to
the States. For several years, the Governor's Reserve levels were
restricted below 15 percent through the congressional appropriation,
but were restored in the FY 2016 Consolidated Appropriations Act. The
Departments support the full funding of the Governor's Reserve at 15
percent as envisioned in WIOA. The Departments note that if the
Governor's Reserve amount is not fully funded, the amount of funds
subject to sanctions will be proportionately less because the sanction
is either 5 or 10 percent of the Reserve amount no matter how much the
Reserve amount is. No change to the regulatory text was made in
response to these comments.
Comments: A commenter stated that the sanctions for failure to
report and failure to meet a State's adjusted levels of performance
should be separated. Another commenter requested that the Departments
provide guidelines for a process allowing for minor corrections to
annual reports without incurring sanctions for failure to report.
Departments' Response: The Departments considered the comments
regarding the separation of sanctions for failure to report and for
failure to achieve performance. The Departments note that these two
sanctions are applied separately. When a State fails to meet 90 percent
of its adjusted levels of performance or fails to submit a report in
the same year, the State would incur 2 separate 5 percent sanctions
totaling 10 percent. Otherwise, a State may receive a sanction for
failure to report based on the criteria described in Sec. 677.185 or a
State may receive a sanction for failure to achieve adjusted levels of
performance per Sec. 677.190. Regarding a process to allow for minor
corrections to annual reports, the Departments will provide a process
for this and details on the process in guidance. No change to the
regulatory text was made in response to these comments.
Comments: A commenter urged the Departments to allow States
flexibility in imposing sanctions on the State agencies responsible for
the late submission.
Departments' Response: The Departments note that ultimately the
Governor and State Workforce Board, which consists of representatives
from all core programs, are responsible for the submission of the
annual report. The Departments expect the State agencies to work
together to ensure timely reporting and, if there are expected delays
due to exceptional circumstances, that the State provides timely
communication to the Departments. The Departments note the flexibility
provided to States under Sec. 677.185(b) and will work with States
that are struggling to submit timely reports through guidance and
technical assistance. No change to the regulatory text was made in
response to these comments.
Section 677.200 What other administrative actions will be applied to
States' performance requirements?
Section 677.200 outlines the circumstances under which a State will
be subject to additional administrative actions when determined to be
at risk due to low performance on an individual primary indicator, the
overall State indicator score, and the overall State program score. No
substantive change was made to this section.
Comments: A few commenters remarked that language in the NPRM
indicated that the Departments would each issue their own guidance
regarding performance risk or performance improvement plans. These
commenters were concerned that the development of separate guidance
documents signals a lack of long-term coordination between the
Departments regarding performance accountability and reporting. A
commenter urged DOL and WDBs to become familiar with setting measurable
objectives, defining activities to meet the objectives, and determining
if the objectives were achieved.
Departments' Response: WIOA provides a unique opportunity for the
core programs to work together in new ways, and to the extent practical
the Departments will use joint guidance so that all core programs are
provided a clear and consistent message.
Regarding comments about DOL and WDBs setting measurable
objectives, defining activities to meet objectives, and determining if
objectives were achieved for purposes of the DOL-administered core
programs, this will be communicated generally. WIOA articulates certain
performance
[[Page 55865]]
requirements, the Joint WIOA Final Rule operationalizes the provisions
of WIOA, and the Departments will provide guidance and technical
assistance to assist States and Local WDBs in achieving their
performance goals.
5. Local Performance Accountability for Workforce Innovation and
Opportunity Act Title I Programs (20 CFR Part 677, Subpart C; 34 CFR
361.205 Through 361.210; 34 CFR 463.205 Through 463.210)
Section 677.205 What performance indicators apply to local areas and
what information must be included in local area performance reports?
This section governs which performance indicators apply to local
areas and the information that must be included in the local area
performance reports. While the arrangement of this section was revised
no substantive changes were made to the regulatory text.
Comments: One commenter noted that the title did not fully convey
what was contained within this section of the regulation.
Departments' Response: The Departments concur and modified the
title of this section to clarify that this section also governs what
information the local area must include in its local area performance
reports.
Proposed Sec. 677.205(a), (b), and (c) are implemented as
proposed.
Comments: One commenter recommended removing section Sec.
677.205(d) of the NPRM as unnecessary and duplicative of the
requirements of Sec. 677.175.
Departments' Response: The Departments agree that this section is
duplicative, and is removing it. As a result, the Departments are
renumbering subsequent sections to conform to this deletion.
Comments: One commenter recommended revising proposed Sec.
677.205(e)(2) to clarify that in addition to reporting on the
performance indicators, the local area report must also include the
other program information required in the State annual performance
report, such as average cost information.
Departments' Response: The Departments agree that further
clarification would assist States and local areas in complying with
their reporting requirements. The Departments note that as finalized,
this has been renumbered as Sec. 677.205(d)(1). Since Sec.
677.205(d)(1) includes all of the information previously in Sec.
677.205(e)(1) and (2), the Departments removed proposed Sec.
677.205(e)(2) from this Final Rule and have renumbered the remainder of
Sec. 677.205(d).
Comments: One commenter encouraged adding a parallel provision to
the one that is included in Sec. 677.160(b) to clarify that the
disaggregation of data in the local area performance report is also
subject to WIOA sec. 116(d)(6)(C).
Departments' Response: The Departments have added a parallel
provision at Sec. 677.205(e).
The Departments made a technical edit to proposed Sec. 677.205(f)
to state that States must comply with any requirements from sec.
116(d)(3) of WIOA as explained in guidance. The Departments made this
revision to clarify our expectations that, to the extent that either
Department's guidance merely explains in plain terms the requirements
that stem directly from WIOA, the Departments expect States to comply
with those statutory requirements.
Comments: Several commenters from various stakeholder entities
questioned the applicability of local performance indicators to core
programs outside of WIOA title I. Many of these commenters specifically
requested clarification on whether other core programs were exempt from
local reporting requirements. One commenter also acknowledged some
confusion regarding local-level requirements and offered several
suggestions on reorganizing this subpart to enhance clarity.
Additionally, the Departments received a number of comments pertaining
to additional indicators of performance, with commenters suggesting
that language be added to the Final Rule requiring States to develop
any additional indicators of performance only in consultation with
Local WDBs and CEOs.
Departments' Response: The Departments acknowledge that there may
be some confusion across the core programs regarding local-level
performance-related requirements and are taking this opportunity to
specify that local-level accountability requirements contained in WIOA
sec. 116 pertain solely to title I adult, dislocated worker, and youth
programs. As provided by WIOA sec. 116(b)(2)(B) and Sec. 677.165 of
this regulation, the Governor has discretion to add additional
indicators of performance.
The Departments recognize that Local WDBs and CEOs are critical
partners in the establishment of additional indicators of performance
and strongly encourage States to engage and consult with Local WDBs and
CEOs in their development. No change to the regulatory text was made in
response to these comments.
Section 677.210 How are local performance levels established?
Section 677.210 explains how the local performance levels are
established. This section has been revised and renumbered in accordance
with the distinctions among expected, negotiated, and adjusted levels
of performance as described in the preamble to Sec. 677.170. This has
resulted in the introduction of the terms ``negotiated levels'' and
``adjusted levels'' as it applies appropriately within the process.
Additionally, the Departments have added language to mirror provisions
in Sec. 677.190 that require 2 years of complete data for any local
core program before applying the objective statistical model and
establishing adjusted levels of performance.
Comments: Several comments pertained to the negotiations process in
response to proposed Sec. 677.210(b). A few commenters were unclear
why Local WDBs are included in the negotiations process described in
sec. 116(c) of WIOA but are not included in the negotiations process
described in sec. 116(b). Many commenters also expressed a desire that
the negotiations process be meaningful, with one commenter noting that
the negotiations process under WIA was often subjective with
performance standards dictated on a take it or leave it basis.
Similarly, a commenter emphasized that the process should not simply be
a matter of setting a target independently and passing it down to Local
WDBs. Another commenter also suggested that the overall negotiations
process would be enhanced if local areas were allowed to provide
additional information not accounted for in the statistical models. One
commenter suggested that the regulations contain an appeal mechanism
for Local WDBs in cases where the State does not negotiate performance
with the Local WDB and CEO as required by WIOA.
Departments' Response: The Departments note that local areas are
permitted to provide additional information during the negotiations
process. This allows the negotiations process to take into account
other information that local areas consider important when establishing
the negotiated levels of performance. The Departments also note that
under WIOA sec. 116(g)(2)(B), the local areas may appeal the Governor's
decision to impose a reorganization plan under WIOA sec.
116(g)(2)(B)(i). Therefore, if the Governor fails to negotiate with the
[[Page 55866]]
Local WDBs, the Local WDB fails to meet its local performance
accountability indicators as described in WIOA sec. 116(g), and the
Governor imposes a reorganization plan, then the Local WDB may exercise
its right to appeal under WIOA sec. 116(g)(2)(B). For further
discussion, the Departments refer readers to the preamble to 20 CFR
679.130 on the functions of the State WDB (see DOL WIOA Final Rule
published elsewhere in this issue of the Federal Register).
WIOA sec. 116(c)(2) requires the Local WDB, CEO, and the Governor
to negotiate and reach agreement on local levels of performance. The
Local WDBs are not included in the process outlined in sec. 116(b)
because that process pertains to State accountability, with
negotiations occurring between the State and the cognizant Federal
agency for the core program. The Departments agree that WIOA requires a
meaningful negotiation. The Departments encourage the parties to
negotiate which the Departments interpret as requiring open-
communication between the parties for the purpose of reaching an
agreement on the local performance targets. The Departments emphasize
that the purpose of the statistical adjustment model required under
sec. 116(b)(3)(A)(viii) is to enhance objectivity in the development of
performance targets as part of the negotiations process. However,
because the Departments have concluded that the requirement to
negotiate is already conveyed through WIOA and the regulation, the
Departments do not consider additional regulatory text necessary to
ensure States comply with the requirements contained in sec. 116(c)
that pertain to inclusion in the negotiations process. Therefore, no
change to the regulatory text has been made in response to this
comment.
The Departments also agree that the statistical adjustment model
may not adequately account for all of the economic and demographic
variables that may affect a local area's performance. Section
677.210(c) requires the negotiations between the Governor, Local WDB,
and CEO to include a discussion of the circumstances not accounted for
in the model. Because this is already required by the regulation, the
Departments did not make a change to the regulatory text in response to
this comment.
Comments: Another commenter recommended that local areas have
access to the models in order to run local targets.
Departments' Response: The Departments note that it will publish
the methodology of the statistical adjustment model, and the
Departments invite the public, including local areas, to review, and
access the model, as appropriate.
Comments: The Departments received a number of comments on the
statistical adjustment model. Some commenters expressed concern that
using the model as proposed at the end of the program year would result
in targets being applied retroactively. Similarly, commenters expressed
concern that targets set through the model may not reflect service to
hard-to-serve populations, such as foreign-born participants often
served by title II programs or other populations with barriers to
employment. Some commenters suggested that the model needed to be
updated on a regular basis in order to reflect the barriers of enrolled
participants and the participants actually served.
Departments' Response: With respect to the utilization of the model
at the end of program year in order to account for actual
circumstances, this would not be a retroactive application of a
performance target, but rather an adjustment to an already established
target based on what actually transpired during the program year. This
would take into account, as a commenter suggested, service to hard-to-
serve populations, such as those with barriers to employment. In other
words, the model will increase the performance levels required if a
State or local area were to serve lower-than-anticipated percentages of
hard-to-serve populations with barriers to employment because it would
presumably be easier to serve these individuals. Similarly, performance
levels (or targets) would be decreased if a State or local area were to
serve a higher-than-anticipated percentage of individuals with
barriers, because these individuals are harder to serve. Given the
importance both Departments place on consistent understanding,
application, and implementation of these complex yet critical
requirements, the Departments are committed to providing joint and
substantive technical assistance in addition to detailed policy
guidance. Furthermore, commenters' expressed need to update the model
to reflect the participants who are actually being served is one of the
hallmarks of the statistical adjustment models as envisioned. Because
the model addresses the commenters' concerns, no changes to the
regulatory text were made in response to these comments.
Comments: One commenter recommended a national workgroup with broad
participation across core programs and other WIOA stakeholders in order
to address the statistical model, as well as other aspects of WIOA
performance accountability because of the significance and impact of
this Joint WIOA Final Rule. One commenter recommended that local areas
be given an opportunity to review any detailed methodology utilized for
setting performance targets prior to implementation.
Departments' Response: The Departments understand the significance
of these joint regulations on performance accountability that implement
sec. 116 of WIOA. It is for this reason that the Departments have
convened multiple stakeholder dialogues to address the intricacies of
the statistical adjustment models as they are developed, consistent
with, and as required by WIOA sec. 116(b)(3)(A)(viii). In addition,
once the statistical adjustment methodology has been approved, there
will be a comment period to ensure broad stakeholder input into its
finalization.
Comments: Another commenter remarked that CEOs of each local area
in a planning region should be permitted to choose to develop, rather
than be required to develop, regional performance measures in addition
to local area measures and recommended a revision to 20 CFR 679.510 to
reflect this suggested flexibility, remarking that Local WDBs and CEOs
already have a significant responsibility regarding their own local
area performance targets; requiring regional targets in addition to
local area targets would be unduly burdensome.
Departments' Response: WIOA sec. 108(b)(1) requires the CEOs to
develop the regional performance indicators and the Departments'
regulations are consistent with this statutory requirement. Therefore,
the regulatory text has not been changed in response to this comment.
Comments: A commenter requested that the Departments provide
additional information regarding the requirement to promote continuous
improvement through performance target setting, adding that neither the
Preamble nor the NPRM text discuss the requirement beyond the fact that
it exists. The commenter opined that the Departments seemed to
interpret continuous improvement under WIA as requiring improvement on
every measure, every year, and offered their own interpretation of
continuous improvement, which could be defined as achieving the same
results with fewer resources or serving a population with more barriers
(or simply a larger population) with the same resources (i.e.,
increased efficiency). A commenter
[[Page 55867]]
recommended, based on the context of an optimal return on investment in
Federal funds, that setting targets focusing on improvement of measures
with lower performance, while setting targets consistent with existing
performance levels on measures with higher performance, is consistent
with the requirement to set targets that promote continuous improvement
and an optimal return on investment of Federal funds.
Departments' Response: The Departments agree that continuous
improvement can be defined in multiple ways based on the circumstances
and context. Because the meaning of this term varies significantly
based on the circumstances and context in which it is used, the
Departments do not think it is appropriate for inclusion in the
regulation and will be providing additional information on continuous
improvement during guidance development. Therefore, no change was made
to the regulatory text in response to this comment.
6. Incentives and Sanctions for Local Performance for Workforce
Innovation and Opportunity Act Title I Programs (20 CFR Part 677,
Subpart D; 34 CFR 361.215 Through 361.225; 34 CFR 463.215 Through
463.225)
Section 677.215 Under what circumstances are local areas eligible for
State Incentive Grants?
This section of the regulation governs when local areas are
eligible for incentive grants.
Comments: The Departments received a comment asking under what
circumstances local areas are eligible for State incentive grants.
Another commenter remarked that the question posed by the rule
regarding possible circumstances for eligibility is not actually
answered by the rule, which instead goes on to discuss pay-for-
performance strategies.
Departments' Response: The Departments agree that the regulatory
text in this paragraph should be revised to ensure understanding and
consistent application. Therefore, paragraph (a) has been revised to
specify that Governors are not required to award incentive funds based
on local performance on the primary indicators, although they have the
flexibility to do so using State set-aside funds based on WIOA at sec.
134(a)(3)(A)(xi). Paragraph (b) has been revised to clarify that
Governors also have the flexibility to create incentives for the Local
WDBs to implement pay-for-performance contract strategies to provide
training services as described in sec. 134(c)(3) or youth activities as
described in sec. 129(c)(2). However, these incentives must be paid for
with non-Federal funds.
The Departments have chosen not to regulate under what specific
circumstances a local area be eligible for incentive grants using WIOA
funds given that this is at the discretion of the Governor. However,
the Departments are considering providing guidance on this topic. No
change to the regulatory text was made in response to this comment.
Comments: Other commenters remarked that separate funds should be
made available for States as an incentive for meeting or exceeding
statewide performance targets as was the case under WIA, with
commenters expressing concern that the dedicated incentive grants to
States were utilized to leverage other funds and programs and the lack
of this provision in WIOA presents a funding gap. These commenters
requested further clarity on the issue and recommended that funds be
made available to target system development needs.
Departments' Response: The requirement under WIA that high-
performing States be rewarded with State incentive grants within
specified Federal parameters no longer exists under WIOA. Rather, sec.
134(a)(3)(A)(xi) provides States with the flexibility to utilize
Governor's Reserve funds to provide incentive grants to local areas for
performance by the local areas on local performance accountability
indicators. Further, the Departments would like to emphasize that, in
addition to the statewide capacity building efforts that are a required
use of the funds allotted to States, both Departments are committed to
providing substantive technical assistance on a national, regional, and
statewide basis in order to target specific development needs,
including needs around performance accountability. No change to the
regulatory text is being made in response to this comment.
Comments: One commenter expressed confusion about the programs
included in pay-for-performance contract strategies and inquired as to
whether the provision applies to title II providers, which the
commenter recommended.
Departments' Response: The Departments interpret the statutory
provision for pay-for-performance contract strategy incentives at WIOA
sec. 116(h) as only permitted for WIOA title I programs because of the
specific reference to title I training services for adults and
dislocated workers as well as the reference to title I youth services.
Moreover, WIOA references Local WDBs, which are responsible for title I
programs and providers, as the other programs do not have Local WDBs.
However, there is nothing prohibiting the adoption of pay-for-
performance contract strategies by other programs that is consistent
with other Federal, State, and local policies. No change to the
regulatory text has been made in response to this comment.
Section 677.220 Under what circumstances may a corrective action or
sanction be applied to local areas for poor performance?
This section explains when a corrective action plan or sanction may
be applied to a local area. This section has been revised and
renumbered in accordance with the distinctions among expected,
negotiated, and adjusted levels of performance as described in the
preamble to Sec. 677.170. This has resulted in the introduction of the
terms ``negotiated levels'' and ``adjusted levels'' as it applies
appropriately within the process. Additionally, the Departments have
added language to mirror provisions in Sec. 677.190 that require 2
years of complete data for any local core program before applying the
objective statistical model and establishing adjusted levels of
performance. The Departments also have revised Sec. 677.220(b) to
specify that failure occurs when a local area fails to meet the
adjusted levels of performance for the same indicator for the same core
program authorized under WIOA title I for the third consecutive program
year.
Comments: Several commenters indicated that more clarity is needed
regarding how sanctions would apply locally to other programs and
funding streams besides WIOA title I. One commenter remarked that the
impact of local sanctions should be spread across the other core
programs. Another commenter noted that all potential sanctions would be
placed squarely on the shoulders of the Local WDB regardless of fault,
creating a situation it viewed as inequitable.
Departments' Response: Any financial sanction applied to the
Governor's Reserve Allotment is based on State performance across the
core programs, and not local performance. This is governed by WIOA sec.
116(f) and subpart B of this part. Specifically, Sec. Sec. 677.180
through 677.200 govern when the Departments will sanction a State. The
Departments note that the local area provisions under WIOA sec. 116(c)
only apply to WIOA title I programs. The other core programs may
participate, partner, and provide services in a local area, but, there
is no local area performance accountability
[[Page 55868]]
provision for those programs. However, local areas are held accountable
for performance on the primary performance indicators for title I
programs. Local-level accountability and any sanctions imposed are
determined by the State, consistent with WIOA sec. 116(g) and subpart D
of this part. Therefore, the Departments are not changing the
regulatory text in response to these comments.
Comments: Several commenters responded to the Departments' request
for feedback regarding what other actions in addition to those already
in statute should be considered by the Governor for local areas that
continue to fail to meet performance for 3 consecutive years. Many
commenters offered suggestions but stated the need for clarification
first on what is meant by ``failure to meet adjusted levels of
performance on required indicators for a third consecutive year,''
recommending that local area failure for a third consecutive year be
based on the same indicator and not any indicator.
Departments' Response: The Departments have defined ``failure to
meet'' adjusted levels of performance at the State level across the
core programs based on the primary indicators of performance and
criteria delineated in Sec. 677.190 of these regulations. Determining
what is meant by ``failure to meet adjusted levels of performance on
required indicators for a third consecutive year'' at the local level
is within the Governor's discretion per Sec. 677.220(a)(1), which is
similar to the historical requirements that existed under WIA. Because
defining these terms is within the Governor's discretion, the
Departments think this is not appropriate to be addressed in these
regulations. No change to the regulatory text was made in response to
these comments.
Comments: One commenter proposed another reason for the Departments
to define ``failure to meet adjusted levels of performance'' arguing
that a local area could be making significant progress towards
improving performance but could potentially miss the required level by
a fraction of a point. The commenter added that the lagged performance
data complicates matters further and that some systemic performance
issues may take more than 3 years to correct. For these reasons, this
commenter suggested changing the regulatory language of ``fails to
meet'' to ``fails to make satisfactory progress.''
Departments' Response: The Departments' requirement to determine
when a corrective action or sanction can be applied to a local area is
based on statutory language and the Departments will not modify this
requirement. Therefore, no change to the regulatory text was made in
response to this comment.
Comments: Several commenters offered suggestions for additional
actions that might be taken by the Governor in addition to those
already specified in regulatory text. Some commenters suggested that
the Governor should be authorized to apply a financial sanction, with
one commenter adding that the Governor should be authorized to dissolve
a local area for continued failure, and other commenters recommended
that the Governor also be authorized to consolidate local areas.
Another commenter supported the Governor's flexibility, noting that
redesignation of a local area is an inequitable penalty when compared
to the penalties WIOA prescribes for State workforce agencies that fail
to meet required performance levels. Other commenters, including a
number of Local WDBs, expressed concern that the language in the
regulatory text allowing Governors to take significant actions as
deemed appropriate was too broad in scope and could be used to
redesignate or eliminate local areas, suggesting at a minimum that
parameters be specified at the Federal level. These commenters also
stated that any additional actions taken by the Governor should be
required to include consultation with the local elected official,
although one commenter suggested the mandatory consultation with local
elected officials should extend to any actions related to technical
assistance. One commenter also inquired about the absence of any
reference to failing performance for 2 consecutive years, stating it
was clear that technical assistance was required after the first year,
and it was clear a reorganization plan was needed after the third
consecutive year, but the regulations were silent on what would take
place after the second consecutive year of failure.
Departments' Response: The Departments considered the comments
regarding additional significant actions that might be taken by a
Governor for continued local performance failure and concluded that
there is nothing prohibiting a State from considering financial
sanctions as a potential ``significant action'' as part of the
reorganization plan. Therefore, no Federal action is needed to permit
this. The Departments also agree that significant actions taken by the
Governor pursuant to Sec. 677.220(b)(3) would be most effective if
they included a consultation with the local elected official and other
local stakeholders, and therefore, recommend the Governor do so.
However, the Departments do not think a change in regulatory text is
necessary as WIOA and regulation do not preclude the Governor from
doing this. The Departments do not agree that regulatory text is
necessary requiring consultation with local elected officials occur
prior to the provision of any technical assistance as this is not
required by WIOA and the process for providing technical assistance is
at the Governor's discretion. Therefore, the Departments have chosen
not to regulate this. Regarding the comment pertaining to failure for a
second consecutive year, WIOA sec. 116(g)(1) makes clear that failure
``for any program year'' will trigger the provision of technical
assistance; therefore, if failure occurs in the second consecutive
year, the Governor is obligated to provide technical assistance, or
request the Secretary of Labor to do so. In response to comments that
the Governor could consolidate, redesignate, or dissolve a local area
through the reorganization plan, the Departments note that WIOA sec.
116(g)(2) leaves what actions are most appropriate to take when a local
area fails to meet its local performance accountability indicators, to
the Governor's discretion. Therefore, the Departments will not change
regulatory text in response to these comments.
Comments: One commenter requested clarification on Sec.
677.220(b)(2), which allows the Governor to prohibit the use of
eligible providers and one-stop partners that have been identified as
achieving poor levels of performance as an action that may be taken as
part of a reorganization plan. The commenter pointed out that neither
WIOA nor proposed regulations addressed poor performance levels of one-
stop partners, such as TANF, and suggested that the NPRM was referring
to a competitively procured contractor or one-stop center operator.
Departments' Response: The language in the regulation is statutory
language from WIOA sec. 116(g)(2)(A)(ii), and the Departments do not
have authority to change the requirements of WIOA. No change to the
regulatory text was made in response to this comment.
Comments: The Departments also received a number of general
comments pertaining to this paragraph. One commenter wanted to ensure
that any technical assistance for youth programs be developed by
experienced youth experts that also could include youth who have
successfully navigated the system and who are now employed. This
commenter also cautioned against assumptions that a particular youth
program may be causing the
[[Page 55869]]
performance failure. Another commenter strongly recommended that the
Departments delay enforcement of the sanctions provisions for at least
2 years to further calibrate the statistical adjustment model, during
which time States could approach implementation in a methodical manner
that allowed for the application of lessons learned without strict
penalties. Other commenters offered a similar suggestion, recommending
that an additional 2 years was needed to implement these requirements,
during which time the Departments should launch an intensive and
nationwide technical assistance effort. Another commenter recommended
transitional implementation in conjunction with the development of a
national workgroup of broad stakeholders and experts to tackle each
aspect of performance accountability, including the imposition of
sanctions.
Departments' Response: The Departments expect the technical
assistance the Governor provides pursuant to Sec. 677.220(a) will be
well-informed and developed with input from subject matter experts and
agrees that former youth participants can offer a valuable perspective
on technical assistance needs based on their own experience. In
response to comments requesting delayed implementation of performance
at the local level, the Departments received similar comments on the
State-level performance accountability. In response to those comments,
the Departments have revised Sec. 677.190(c) to provide that the
Departments expect full implementation of the performance
accountability requirements to take some years, given the complexity of
WIOA's requirements and the timing of the availability of data
necessary to populate the statistical adjustment models, for instance.
At the local level, the decisions on performance implementation are at
the Governor's discretion and subject to the requirements of 20 CFR
part 679 (see DOL WIOA Final Rule, published elsewhere in this issue of
the Federal Register). Therefore, no change to the regulatory text is
being made in this part in response to this comment. Additional
information on implementation will be provided by the Departments in
guidance.
Section 677.225 Under what circumstances may local areas appeal a
reorganization plan?
This section of the regulation governs the process for an appeal if
the local area wishes to appeal a reorganization plan. The Departments
received few comments on the proposed text for this paragraph of the
regulations. The Departments are implementing this regulation as
proposed, except for a revision to Sec. 677.225(d) which is described
below.
The Departments revised paragraph (d) of Sec. 677.225, replacing
``to impose a reorganization plan'' with ``on the appeal'' for
consistency with the relevant WIOA provision. WIOA sec. 116(g) governs
the consequences for a local area's failure to meet local performance
accountability indicators for the youth, adult, or dislocated worker
programs. WIOA sec. 116(g)(2) requires the Governor to develop a
corrective action plan if the local area's failure continues for a
third consecutive year. The local area and CEO of the local area may
appeal this decision to the Governor. The Local WDB and CEO may appeal
the Governor's decision on the appeal to the Secretary of Labor. The
proposed version of this paragraph stated that the Governor's decision
to impose a reorganization plan becomes effective at the time it is
issued. However, WIOA sec. 116(g)(2)(C) provides that it is the
Governor's decision on the appeal, not the reorganization plan, that
becomes effective unless the Secretary of Labor rescinds or revises the
plan.
Comments: One commenter recommended a revision to the regulatory
text to clarify that if the Secretary of Labor does not respond to a
joint appeal pursuant to Sec. 677.225(c) within 30 days, then the
Governor's decision to impose a reorganization plan automatically
results in the reorganization plan becoming effective.
Departments' Response: Section 677.225(c) clearly requires the
Departments to respond within the specified timeframe. The statutory
text does not provide for automatic effectiveness of the plan if the
Secretary of Labor does not respond within the 30-day timeframe. No
change to the regulatory text was made in response to these comments.
7. Eligible Training Provider Performance for Workforce Innovation and
Opportunity Act Title I Programs (20 CFR Part 677, Subpart E; 34 CFR
361.230; 34 CFR 463.230)
Section 677.230 What information is required for the eligible training
provider performance reports?
Section 677.230 implements the requirements of sec. 116(d)(4) of
WIOA, which requires annual ETP performance reports. The ETP
performance reports provide critical information, including the
employment, earnings, and credentials obtained by individuals in the
program of study eligible to receive funding under the adult and
dislocated worker formula programs under title I of WIOA. This
information will be of significant benefit in assisting WIOA
participants and members of the general public in identifying effective
training programs and providers. The information will also benefit
providers by widely disseminating information about their programs
increasing awareness of the program and potentially as a tool to
enhance their programs.
Section 677.230(b) has been revised to specify that the registered
apprenticeships programs referred to are those registered under the
National Apprenticeship Act. This section, in conjunction with 20 CFR
680.400 through 680.530, establishes the minimum requirements for
performance information to be provided in the ETP performance reports.
Additional information on these requirements and the data to be
collected is provided through the WIOA Joint Performance ICR. The
Departments inserted ``mechanism of'' into Sec. 677.230(c) to clarify
that the State must provide a mechanism of electronic access to the
public ETP performance report in its annual State performance report.
This edit was made for consistency with Sec. 677.160(c).
Comments: The Departments sought specific input on how the
Departments could best support ETPs in meeting the requirements of this
section as well as on how to make the ETP reports a useful tool for
WIOA participants, ETPs, interested stakeholders, and the general
public. Multiple commenters suggested the Departments could support
ETPs in meeting the requirements of subpart E by providing reporting
formats and instructions in order to establish the basis for data
collection. A commenter remarked that guidance to States would help
streamline performance reporting for training providers and minimize
the associated burden.
However, other comments suggested the Departments avoid being too
prescriptive in order to maximize the accessibility of the reported
data. A few commenters suggested that the increased volume of data
collection necessitates technical assistance and funding support from
DOL.
Departments' Response: The Departments recognize that in many cases
the ETP reporting provisions will be different from what was standard
under WIA. In recognition of this, the Departments are issuing
definitions on the elements required under this provision through the
WIOA Joint Performance ICR in accordance with the
[[Page 55870]]
PRA. The Departments crafted the definitions as they pertain to ETP
reporting with consideration of commenter suggestions, industry
standards, and statutory requirements while balancing the need for
clarity and flexibility. Although the Departments agree these
definitions are needed, they are appropriately handled through the
aforementioned WIOA Joint Performance ICR.
Comments: Several commenters asserted that the Departments must
permit an alternate definition of ``participant'' and/or ``exit'' for
use in ETP reporting. These commenters noted that they would require
considerable local flexibility in the application of these definitions.
Commenters further articulated a need for technical assistance around
the data collections associated with these definitions.
Departments' Response: As mentioned above, through the WIOA Joint
Performance ICR, the Departments are issuing definitions of how these
terms are used in ETP reporting. These definitions balance the needs
for consistency and flexibility. No change to the regulatory text was
made in response to these comments.
Comments: A few commenters suggested that the performance metrics,
which are required to be reported for all individuals in a program of
study, be waived for non-WIOA participants for the first 2 years to
provide sufficient time to establish the required data systems to
collect and report on these elements.
Departments' Response: The Departments have given consideration to
the systems readiness to implement these provisions and understand that
implementation will require guidance and technical assistance in order
to assist States in this implementation. No change to the regulatory
text was made in response to these comments.
Comments: A commenter stated that data collected should align with
existing data collected on educational programs from other sources in
order to maximize its usefulness to consumers.
Departments' Response: The Departments considered this concern,
however, the data being collected are required by WIOA sec. 116(d)(4).
Therefore no change to the regulatory text has been made in response to
this comment.
Comments: A few commenters stated that since many training
providers serve small populations, the data they report would not be
statistically reliable indicators of performance. Similarly, a
commenter requested clarification regarding the application of the
disaggregation requirements to individual ETPs.
Departments' Response: The Departments recognize the contribution
of ETPs that may serve smaller populations. The Departments note that
the data disaggregation requirement in WIOA sec. 116(d)(6)(C) also
applies to the ETP performance reports. The Departments will provide
additional information on the parameters of the collection and
reporting of this information through the WIOA Joint Performance ICR
and program-specific guidance. This information is required to be
collected under WIOA sec. 116(d)(4); therefore, no change to the
regulatory text has been made in response to these comments.
Comments: A commenter urged the Departments to provide States
maximum flexibility in displaying provider performance data in order to
allow for State experimentation and to ensure compatibility with
technology platforms. Another commenter suggested that the
``scorecards'' already developed by Local WDBs should be considered as
a model.
Departments' Response: WIOA sec. 116(d)(1) and (4) require the use
of `a template' developed by the Departments to report on outcomes for
eligible training providers and this template must be used consistent
with the requirements of WIOA sec. 116 and this regulation. However,
the use of this template does not preclude the States from additionally
displaying performance data in a manner of their choosing and the
Departments welcome innovative approaches to displaying this
information in a user-friendly manner. No change to the regulatory text
was made in response to these comments.
Comments: A commenter stated that if this data were a Federal
requirement collected through ED, there would be a more consistent
national approach.
Departments' Response: WIOA sec. 116(d)(4) requires the collection
and reporting of this information on eligible training providers
therefore no change to the regulatory text has been made in response to
this comment.
Comments: A few commenters suggested that the possible barriers to
employment be standardized for the purpose of the ETP performance
report.
Departments' Response: The Departments recognize the importance of
standardized and uniform definitions to provide data that are
comparable across programs and States. The Departments note that
specific calculations, definitions, and reporting parameters will be
provided through the WIOA Joint Performance ICR; therefore, no change
has been made with respect to defining barriers to employment in this
section. No change to the regulatory text was made in response to these
comments.
Comments: A commenter identified the most important data to be
reported as training program completion rates, wage rates, and job
placement rates.
Departments' Response: The Departments acknowledge the suggestions
raised regarding information that is valuable to understanding the
outcomes of training programs. WIOA provides specific collection
requirements at sec. 116(d)(4), which includes much of the data
suggested by the commenter, and further information as it pertains to
the reporting requirements for these programs can be found in the WIOA
Joint Performance ICR. No changes to the regulatory text were made in
response to this comment.
Comments: A commenter stated that the performance outcomes only
should be collected on those participants receiving services under WIOA
title I, subtitle B.
Departments' Response: WIOA sec. 116(d)(4)(a) requires reporting on
the primary indicators of performance for all students in the program
of study, therefore no change has been made in response to this
suggestion. No change to the regulatory text was made in response to
this comment.
Comments: A commenter asserted that the ETP reporting requirements
should be kept flexible to provide local providers the greatest choice
in training providers. Commenters urged the Departments to allow ETP
eligibility to last more than 1 year in order to generate enough
participants and exits to provide a useful outcome measurement. A
commenter remarked that WIOA authorizes Governors to establish a
transition period for ETPs under WIA to remain on the list through
2015. A commenter suggested that the Departments require States to list
credentialing programs on ETP lists (ETPLs) in order to provide the
most comprehensive information.
Departments' Response: WIOA sec. 122 governs this process;
therefore, the Departments refer readers to the discussion of 20 CFR
part 680 in the DOL WIOA Final Rule (published in this issue of the
Federal Register) for responses to these comments and more information
regarding these issues. No change to the regulatory text was made in
response to these comments.
Comments: The Departments received numerous comments requesting
clarity and further information on the interaction between the
provisions in WIOA sec. 116(d)(4) Eligible Training Provider
performance report and the
[[Page 55871]]
performance reporting required for training provider eligibility under
WIOA sec. 122 (20 CFR part 680, see DOL WIOA Final Rule).
Departments' Response: WIOA sec. 116(d)(4) requires that the ETP
performance report must be prepared annually and the States must
provide electronic access to this report in their State annual
performance report pursuant to Sec. 677.160(c). WIOA sec. 122 governs
the process for determining training provider eligibility; this process
requires calculation of certain performance information. As many
commenters noted, there is significant overlap in what must be included
in the WIOA sec. 116(d)(4) report and the information providers must
provide for the eligibility determination under WIOA sec. 122. The
Departments recognize this overlap may provide opportunities for States
to collect this information for both purposes. Further information
concerning ETP reporting requirements and performance reporting
requirements is available through the WIOA Joint Performance ICR. The
Departments will also be providing technical assistance in regard to
these reporting requirements. No change to the regulatory text was made
in response to these comments.
Under 20 CFR 681.550, DOL allows the use of individual training
accounts (ITAs) for out-of-school youth ages 16 to 24. The parameters
for this allowance are discussed in the preamble to that section. The
Departments clarify here how youth are reported on in the WIOA sec.
116(d)(4) eligible training provider performance reports. The
Departments clarify that such out-of-school youth are reported on in
both the eligible training provider performance report as well as in
the State and Local annual reports. Because WIOA sec. 116(d)(4) does
not describe such youth, the Departments are clarifying here as well as
in the WIOA Joint Performance ICR how these youth program participants
are reported on in these reports. When such youth are reported on in
the eligible training provider performance reports, their performance
is reported using the same performance indicators as prescribed for
WIOA adult and dislocated worker participants. Using the same metrics
minimizes the burden on ETPs. The Departments note that such youth are
excluded from the required reporting identified at Sec.
677.230(a)(1)(i) through (iii) but are included in the counts required
by Sec. 677.230(a)(2) through (a)(4). The Departments further note
that such youth are additionally reported on in the State and Local
annual reports in accordance with Sec. Sec. 677.155(d), 677.160, and
677.205, as described in those sections. The Departments will provide
additional guidance on the treatment of these individuals through the
WIOA Joint Performance ICR and in guidance.
Comments: A number of commenters responded to the Departments'
request for comments regarding support for registered apprenticeship
programs interested in providing performance information. A few
commenters suggested that registered apprenticeship programs should
report on the same performance outcomes as other training programs.
Another commenter urged the Departments to require registered
apprenticeships to publish performance data. Other commenters suggested
there is value in having a comprehensive list of registered
apprenticeship providers, but opposed additional reporting requirements
for these programs. A commenter stated that if pre-apprenticeship
programs are to be included in the ETP system, they will likely require
separate criteria. Another commenter stated that performance
information for registered apprenticeship programs should be clearly
described.
Departments' Response: The Departments have concluded that WIOA
sec. 116(d)(4) does not require registered apprenticeship programs to
provide performance information for the ETP report. However, the
Departments note that including information for a registered
apprenticeship in these reports would provide a benefit to those
individual seeking training through registered apprenticeships in that
they will gain visibility and access to a broader applicant pool by
voluntarily participating in this reporting. Therefore, the Departments
are implementing Sec. 677.230(b) as proposed to allow for the
voluntary submission of performance information from registered
apprenticeship program sponsors and their providers of related
technical instruction. Any such information must be published in the
State's annual ETP performance reports. With regard to the creation of
a comprehensive list of registered apprenticeships the Departments note
that such a requirement is beyond the scope of this regulation. No
change to the regulatory text was made in response to these comments.
Comments: A commenter supported the creation of incentives for
registered apprenticeship programs to submit performance information.
Departments' Response: The Departments are not creating additional
incentives but notes that incentive for reporting already exists as
explained above. No change to the regulatory text was made in response
to this comment.
Comments: A commenter encouraged the Departments to account for
positive outcomes from registered apprenticeship programs, even if the
outcome is not necessarily completion of the program because programs
could be several years in length.
Departments' Response: To the extent that the registered
apprenticeship is actively reporting the information required under
these provisions includes such information as measureable skill gains,
which accounts for progress made during participation of a registered
apprenticeship. No change to the regulatory text was made in response
to this comment.
Comments: The Departments received multiple comments on how to
calculate the average cost per participant for those who received
training services for the most recent program year and the 3 preceding
program years as required by WIOA sec. 116(d)(4)(E) and Sec.
677.230(a)(3). One commenter noted that this metric is not currently
collected. Such suggestions included: Calculating at the education or
training program level, rather than the participant level; aligning
calculations with existing national reporting standards, such as the
Integrated Postsecondary Education Data System; calculating based on
the tuition plus any support services (e.g., books, supplies,
transportation) necessary to succeed in the training; calculating based
on actual training costs for a student, including portions paid for
with government subsidies; and calculating based on the direct cost
paid under WIOA title I funding.
Departments' Response: The Departments considered these proposals;
however, the Departments have concluded that the cost per participant
is more appropriately addressed in the WIOA Joint Performance ICR,
which provides more specificity around what underlying data are
necessary and how such data will be used in calculating this
information. The Departments will provide additional information on how
this metric is calculated through the WIOA Joint Performance ICR,
guidance, and technical assistance. No change to the regulatory text
was made in response to these comments.
Comments: Commenters expressed concern that the ETP performance
report does not provide sufficient cost information because it does not
take into account other factors such as, textbooks, supplies,
transportation, etc.
Departments' Response: WIOA sec. 116(d)(4) and Sec. 677.230
mandate the collection of specific information for each program of
study for each eligible
[[Page 55872]]
provider of training services under title I as outlined in Sec.
677.230(a). The Departments are cognizant of the reporting burden the
ETP performance report places on ETPs and do not want to place
additional burden on these entities. However, WIOA sec. 122 and 20 CFR
part 680 require States to develop procedures for determining the
eligibility of training providers and programs and to make information
about the provider and program available to participants and members of
the public. The WIOA sec. 116(d)(4) ETP performance report is only one
component of an overall consumer product. States are not precluded from
developing additional resources for consumers and the Departments
encourage States to identify additional information that would be most
helpful for students to have as they are evaluating a program or
provider. No change to the regulatory text was made in response to
these comments.
Comments: Numerous commenters raised issues on the burden posed for
training providers. Such as:
A commenter asserted that many small training providers,
particularly those in rural areas, would be unable to comply with ETP
performance reporting requirements, which would limit available
trainings.
A commenter expressed concern regarding the burden
associated with collecting data reliant on SSNs, stating that many
community colleges do not collect student SSNs.
A commenter described the increased data collection burden
associated with obtaining the SSNs for all enrolled students, and, if
deemed necessary, establishing data sharing agreements with each of the
individual ETPs.
A commenter asserted that the costs associated with
collecting, maintaining, and reporting out data are unknown and will
vary depending on the entity responsible for these processes.
This commenter also suggested that entities applying for
inclusion on the State ETPL may not capture the required demographic
and programmatic data that would allow for the production of the
performance report.
A few commenters suggested that many of the reporting
elements would not be valuable and would impose a significant burden at
the State and local level.
Multiple commenters suggested that many training providers do not
have the capability or desire to report the proposed level of data on a
regular basis, and this will lead to a decrease in training provider
participation.
Departments' Response: The information required to be reported is
required by WIOA sec. 116(d)(4). The Departments reiterate that the ETP
performance reports provide critical information, including the
employment, earnings, and credentials obtained by individuals in the
program of study eligible to receive funding under the adult and
dislocated worker formula programs under title I of WIOA. This
information will be of significant benefit in assisting WIOA
participants and members of the general public in identifying effective
training programs and providers. The information will also benefit
providers by widely disseminating information about their programs and
potentially as a tool to enhance their programs. No change to the
regulatory text was made in response to these comments.
Comments: Many commenters addressed Sec. 677.230(e)(3) which
contains the provisions allowing the Governor to designate one or more
State agencies such as a State Education Agency or State Educational
Authority to assist in overseeing the eligible training provider
performance. Several commenters suggested designating the State as
responsible for ETP data collection, coordination, and dissemination.
These commenters suggested that their proposed approach would ensure
local staff time is spent serving participants and that the data are
consistently collected and reported across the State. A few commenters
also stated that the burden on training providers would be minimized by
not requiring collection of any data the State already has. A few
commenters suggested aligning the ETP eligibility determination process
with the data reporting process in order to minimize burden. A
commenter sought clarification regarding the role of training providers
in generating ETP performance reports and collecting data on
participants.
Departments' Response: The Departments note that Sec. 677.230(e)
allows many such actions as recommended by the commenters.
Additionally, the Departments reiterate that to the extent that there
is overlap between data collected to meet requirements under WIOA sec.
122 and WIOA sec. 116 this overlap may provide opportunities for
efficiency in collection and reporting of this information for both
purposes. No change to the regulatory text was made in response to
these comments.
Comments: Commenters expressed concern regarding the level of
burden to eligible training providers for collecting the required data.
Departments' Response: The Departments acknowledge the need to
identify the most effective data collection strategies and have
reviewed the comments received through the WIOA Joint Performance ICR.
Based on comments received, the Departments have concluded that State
grantees are best situated to make the ETP performance reports
available to ETA given their existing familiarity with the reporting
structure. Grantees are required to establish a process to collect the
data from the eligible training providers. The Departments will provide
additional guidance on the ETP performance report.
Comments: In order to facilitate the reporting process, a commenter
suggested that all training providers should report outcomes in the
same format to facilitate cross-program comparisons and identify
underperforming vendors.
Departments' Response: The Departments agree that reporting data in
the same format would facilitate cross-program comparisons and WIOA
sec. 116(d)(1) requires the Departments to develop a template for the
annual ETP performance report. This section of WIOA requires the ETPs
to use this report; therefore, all annual ETP performance reports will
have outcomes listed in the same report to facilitate cross-program
comparisons. Because this is already accomplished through WIOA and the
regulation, the Departments did not make any changes to the regulatory
text based on this comment.
Comments: Another commenter suggested that each program of study
that a provider wants to be eligible to serve WIOA-funded students
should be required to report.
Departments' Response: Under WIOA sec. 116(d)(4), the required
reporting on a program of study only applies to those eligible training
providers who are already on the State list of Eligible training
providers and programs. Additional information on eligibility
requirements is found in 20 CFR part 680, subpart D. The Departments
also note, however, there is nothing in WIOA that precludes a State or
an Eligible Training provider from providing or publishing similar
information. No change to the regulatory text was made in response to
this comment.
Comments: A commenter pointed out that entrepreneurship training
would not score well on the performance indicators unless a recognized
credential is developed.
Departments' Response: The Departments acknowledge concerns raised
with regard to training that is
[[Page 55873]]
targeted at self-employment and recognizes that individuals who are
self-employed would not be accounted for in State UI wage records.
However, the Departments note that WIOA sec. 116(d)(4) identifies more
than just employment or credential based outcomes. Such indicators as
measurable skill gains combined with the allowance to collect and
verify employment information through supplemental means as described
more fully in the preamble to Sec. 677.175 provides alternative points
of information on outcomes associated with such trainings. The
Departments have not made any revisions to this section with regard to
this comment. Further clarification on the allowed sources of data and
calculations for these provisions will be provided through the WIOA
Joint Performance ICR. No change to the regulatory text was made in
response to this comment.
8. Performance Reporting Administrative Requirements (20 CFR Part 677,
Subpart F; 34 CFR 361.235 Through 361.240; 34 CFR 463.235 Through
463.240)
Section 677.235 What are the reporting requirements for individual
records for core Workforce Innovation and Opportunity Act (WIOA) title
I programs; the Wagner-Peyser Act Employment Service program, as
amended by WIOA title III; and the Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by WIOA title IV?
This section of the regulations requires all of the core programs--
except for the title II program--to report using individual records, as
opposed to aggregate data. While the NPRM would have required that
records submitted to DOL must be submitted in one record that is
integrated across all core DOL-administered programs, the regulatory
text has been revised to read that such records ``may'' be submitted in
an integrated format.
Comments: Many commenters expressed a range of concerns regarding
the proposed reporting requirements that appear to be based on
incorrect or incomplete information. For instance, one commenter
asserted that WIA required an SSN for program participation, whereas
the Wagner-Peyser Act Employment Service program did not, thereby
resulting in data deficiencies regarding the matching of wage records,
which should be addressed under WIOA.
Departments' Response: The provision of a SSN is strongly
encouraged to facilitate objective performance measurement through the
use of wage records; however, requiring an SSN as a condition of
program participation has been and remains a violation of the Privacy
Act of 1974, 5 U.S.C. 552a Note, which DOL has previously clarified in
policy guidance. See TEGL No. 5-08, ``Policy for Collection and Use of
Workforce System Participants' Social Security Numbers.'' No change to
the regulatory text was made in response to these comments.
Comments: Another commenter suggested that, because one integrated
record was required for each participant across all core programs,
sufficient time should be provided to implement this paragraph, and it
should be implemented no earlier than July 1, 2018. One commenter noted
that State VR agencies are not part of the Workforce Investment
Streamlined Performance Reporting (WISPR) system and suggested that
States should be allowed to file separate reports for the VR program.
Departments' Response: While the Departments want to make clear
that there is no requirement that performance reporting for the
Departments of Labor and Education be integrated, the Departments
encourage moving in that direction. For States that have integrated
reporting of WIOA title I core programs and Wagner-Peyser Act
Employment Service programs, DOL strongly encourages those States to
submit an integrated report. This provision regarding the submission of
integrated reports does not extend to the AEFLA and VR programs
administered by ED. However, the Departments note that as previously
discussed, DOL intends to work towards developing an integrated
reporting mechanism. No change to the regulatory text was made in
response to this comment.
Comments: Another commenter disagreed with the Departments'
intention to have States integrate and submit their performance
reporting as a single, comprehensive, aggregate report because it would
incur an undue and unrealistic burden.
Departments' Response: As explained above, this is not a current
requirement. The Departments understand that there would be a burden
with submitting a single, aggregate report to be submitted by one State
agency when the different programs may currently be housed in different
departments or agencies.
Comments: Several commenters were also under the impression that
all of the core programs currently utilize individual records, with one
commenter asserting that the comment had been validated by WIOA staff
across multiple States.
Departments' Response: The Departments also would like to clarify
that five of the six core programs currently transmit individual
records to their respective Departments. The ED's OCTAE, which
administers title II programs, does not receive individual records from
State Adult Education Agencies. It is noted that for title II, State
eligible agencies are required to collect individual records on a
quarterly basis and submit annually aggregated data using individual
records. The Departments acknowledge the need for guidance on program
reporting as well as technical assistance needed to ensure consistent
understanding for implementation. No change to the regulatory text was
made in response to these comments.
Comments: Many commenters expressed opposition to the exclusion of
title II programs from the individual records reporting requirements.
Several articulated that the expectations for system alignment through
integrated reporting discussed in the NPRM would be undercut by the
proposal to exclude title II from the same quarterly reporting
requirements as the other five core programs. One commenter remarked
that title II programs should be included in these reporting
requirements in the spirit of true integration. And, and as previously
noted, some commenters were under the impression that all of the core
programs already use individual records, thereby making the exclusion
of title II unwarranted.
Departments' Response: Although ED's Office of Career, Technical,
and Adult Education does not collect individual records at the Federal
level, States are required to maintain individual record systems that
meet strict standards. States are required to collect such data
quarterly and aggregate the data to meet performance requirements in an
annual submission. No change to the regulatory text was made in
response to these comments.
Comments: Several commenters suggested that the burden for the
proposed reporting requirements was considerably underestimated and
should reside at the Federal level, with some suggesting the additional
requirements constitute an unfunded mandate, particularly for the VR
program, which must incur the significant cost and staff training
needed to transition from annual reporting of the RSA 911 to the
proposed quarterly reporting of the RSA 911. Many of these commenters
recommended that a currently available tool be utilized to validate RSA
911 data on a quarterly
[[Page 55874]]
basis without the requirement for full quarterly report submission.
Additionally, there were concerns raised regarding data that are
collected through the VR program, which falls under the confidentiality
requirements under 34 CFR 361.38 that may prohibit the release of
social security information.
Departments' Response: The ED's RSA acknowledges that additional
time and resources as well as staff training will be needed to
accomplish statutory requirement while ensuring consistent
understanding and nationwide implementation. There is no provision in
34 CFR 361.38 that prohibits the release of SSNs for reporting purposes
since the reporting requirements are necessary for the administration
of the VR program. Therefore 34 CFR 361.38(b) does not require informed
written consent for the release of PII for this purpose. However, there
may be other Federal or State laws that would govern such releases.
Further, the Departments refer to the VR Performance ICR for the RSA-
911 form where burden for collection and reporting this information in
the RSA 911 are further addressed. No change to the regulatory text was
made in response to these comments.
Comments: The Departments received comments on aspects of this part
related to calculations for indicators and performance information,
structure and compilation of individual records, and formatting for the
collection of underlying data for the reports.
Departments' Response: Because of the level of detail these
comments sought on the more specific technical aspects of this part,
the Departments, as discussed throughout this regulation, reiterate
that such information will be provided through the WIOA Joint
Performance ICR or Department-specific ICRs, as well as associated
program guidance. No change to the regulatory text was made in response
to these comments.
Section 677.240 What are the requirements for data validation of State
annual performance reports?
Section 677.240 provides the requirements for data validation of
State annual performance reports. It has been revised to specify that
performance reports should be consistent with the requirement for data
validation in WIOA sec. 116(d)(5).
Comments: Several commenters requested guidance for conducting data
validation across core programs. Commenters specifically asked for
guidance concerning where the responsibility for data validation lies
when participants are co-enrolled in two or more partner programs.
Commenters also asked for clarification regarding the distinction
between State and local roles in annual reporting. Multiple commenters
supported either the postponement of the effective date for data
validation requirements until July 2017 or the gradual implementation
of data validation requirements, particularly if the validation
pertains to new data that are required to be collected. Some of these
commenters expressed concern regarding potentially retroactive data
validation requirements whereby States would have to go back in order
to capture newly required data elements on periods of participation
that began before the new requirements were implemented. Several
commenters also suggested that the starting point for data validation
guidance be based on existing data validation methods and procedures
used under WIA, with one commenter specifically suggesting that a
comprehensive review of the data elements currently included in WIA
data validation be undertaken to ensure the appropriate data are being
validated, eliminating those elements that are either duplicative or no
longer necessary.
Departments' Response: The Departments concur that joint guidance
for conducting data validation across the core programs is necessary in
order to provide the level of detail and specificity required to
implement these provisions. As noted above, Sec. 677.240(a) has been
revised to specify that reporting should be consistent with guidance
issued pursuant to WIOA sec. 116(d)(5) concerning data validation. The
guidance to be developed will be based on a comprehensive review of the
methodology, data elements, and source documentation that have been
utilized under WIA. It will clarify State and local roles in annual
reporting and the associated validation process, and the co-enrollment
of participants across two or more core programs will be addressed. The
Departments do not expect to issue guidance that includes the need for
retroactive data collection. In terms of implementation timeframes, the
Departments anticipate a phased-in approach, which is particularly
important for those programs that have not conducted data validation
under WIA. Expectations will be articulated through the Departments'
joint policy guidance, and technical assistance will be provided to
ensure consistency in understanding and implementation. No change to
the regulatory text has been made in response to these comments.
Comments: Commenters shared specific suggestions for source
documentation to be used to validate personal identity, with one
commenter arguing that applicant and counselor statements should be
acceptable for SSN validation to eliminate the need to copy social
security cards, thereby minimizing the risk of file breach. Another
commenter requested clarification on accuracy standards, inquiring as
to whether the Departments will follow the ``five percent rule'' used
for WIA data validation.
Departments' Response: Source documentation requirements will be
clarified in policy guidance to be issued jointly by the Departments,
including documentation to validate personal identity. The Departments
agree with one commenter who suggested that allowing staff verification
is not consistent with data quality standards. The Departments
acknowledge the proposed suggestions by commenters and will further
clarify such procedures through the guidelines. No change to the
regulatory text was made in response to these comments.
The ``five percent rule'' referenced in the comment pertains to an
accuracy standard utilized under WIA by DOL for its programs whereby
critical data elements with an error rate exceeding five percent were
flagged as potentially symptomatic of larger reporting and data quality
issues. This will be addressed in guidance.
In addition to the regulatory text changes discussed above, various
non-substantive changes have been made for purposes of correcting
typographical errors and improving clarity that have not been necessary
to note elsewhere.
C. Description of the One-Stop System Under Title I of the Workforce
Innovation and Opportunity Act (20 CFR Part 678; 34 CFR Part 361,
Subpart F; 34 CFR Part 463, Subpart J)
1. Introduction
In the section-by-section discussions of each one-stop system
provision below, the heading references the DOL CFR part and section
number. However, ED has identical provisions at 34 CFR part 361,
subpart F (under its State VR program regulations) and at 34 CFR part
463, subpart J (under a new CFR part for AEFLA regulations). For
purposes of brevity, the section-by-section discussions for each
Department's provisions appear only once--in conjunction with the DOL
section number--and constitute the Departments' collective explanation
and rationale for each provision. When the regulations are published in
the CFR, these joint one-stop regulations will
[[Page 55875]]
appear in each of the CFR parts identified above.
2. General Description of the One-Stop Delivery System (20 CFR Part
678, Subpart A; 34 CFR 361.300 Through 361.320; 34 CFR 463.300 Through
463.320)
WIOA reaffirms the role of the one-stop delivery system, a
cornerstone of the public workforce development system, and subpart A
describes the one-stop delivery system. Although there are many
similarities to the system established under WIA, there are also
significant changes under WIOA. This subpart, therefore, restates WIA
requirements governing one-stop centers, to the extent they are still
applicable under WIOA, and embodies a set of reforms that, when
implemented effectively, are intended to make significant improvements
to the public workforce delivery system. These regulations set forth
requirements of the one-stop delivery system as established under WIOA,
requiring partners to collaborate to support a seamless customer-
focused service delivery network. The regulations require that programs
and providers colocate, coordinate, and integrate activities and
information, so that the system as a whole is cohesive and accessible
for individuals and employers alike. These regulations provide a
detailed framework for implementation; however, the Departments
acknowledge additional written guidance and technical assistance to the
public workforce system is needed to implement the provisions and
intentions of WIOA fully. Such guidance and technical assistance was
provided during PY 2015 and will continue to be provided and updated
with the future development of policies regarding the one-stop delivery
system. The ultimate goal is to increase the long-term employment
outcomes for individuals seeking services, especially those with
significant barriers to employment, and to improve services to
employers.
Subpart A describes the one-stop delivery system. It establishes
the different types of one-stop centers allowable in each local area,
the need for both physical and programmatic accessibility in the one-
stop delivery system, and also addresses the use of technology to
provide services through the one-stop delivery system. As discussed in
Sec. Sec. 678.305 and 678.310, a local area's one-stop delivery system
may be made up of a combination of a comprehensive one-stop center and
a network of affiliated sites. When designing the one-stop delivery
system, States and Local WDBs must ensure that information on the
availability of career services is available at all one-stop center
physical locations and access points, including electronic access
points, regardless of where individuals initially enter the local one-
stop delivery system. The Departments acknowledge that some comments of
support were included among comments in this subpart. No changes to the
regulatory text were made in response to these comments.
The Departments made several changes to regulatory text in response
to comments on subpart A. Most notably, changes were made to Sec.
678.305(d) that clarify what it means to make available a ``direct
linkage'' through technology to provide access to program services and
information for those partner programs not physically located in a
comprehensive one-stop center.
Section 678.300 What is the one-stop delivery system?
This section provides that there are responsibilities at the local,
State, and Federal levels relative to the establishment and maintenance
of the one-stop delivery system.
Comments: Several commenters addressed the accessibility provisions
in this subpart. A few commenters stated that VR agencies must work
closely with workforce systems to ensure accessibility for individuals
with disabilities. Another commenter said that each local area must
have at least one comprehensive one-stop center that is accessible. A
few commenters said that there are one-stop centers located in
buildings that are not fully accessible, and the regulations should
emphasize in this section that full accessibility is required.
Departments' Response: The Departments agree with commenters that
accessibility to one-stop centers and the program and services provided
at those centers is of the utmost importance. Section 188 of WIOA, the
corresponding regulations at 29 CFR part 38, and the regulations in
this part at Sec. Sec. 678.305, 678.310, and 678.800 require that all
one-stop centers and affiliated sites be physically and
programmatically accessible to disabled individuals. The Departments
have concluded that the numerous instances of directly addressing this
or cross-referencing another section of regulation or WIOA throughout
part 678 is sufficient emphasis on this point. No change to the
regulatory text was made in response to these comments.
Comments: One commenter asked which entity is responsible for
ensuring one-stop center accessibility.
Departments' Response: The decision as to which entity will be
responsible for ensuring accessibility at a one-stop center is
ultimately the Local WDB's to make, appropriately specified in the MOU.
Comments: Another commenter said this subpart should describe the
procedure for when a one-stop center is found not to be physically and
programmatically accessible.
Departments' Response: The procedures that must be followed when a
one-stop center is found not to be physically or programmatically
accessible are described in 29 CFR part 38. The Departments have added
cross references to those regulations in Sec. Sec. 678.305 and 678.310
to clarify that these are the controlling regulations in such
instances, replacing references to Sec. 678.800.
Comments: A commenter asked, given the long-standing separation
between one-stop centers and adult education programs, how soon the
Departments expect these entities to fulfill the requirement to provide
a ``seamless customer-facing service delivery network.''
Departments' Response: While the Departments understand that
adapting to the new one-stop delivery system structure will take time
for all partners involved, partner programs are expected to work as
expeditiously as possible to reach the goal of providing a ``seamless
customer-facing service delivery network.''
Comments: A few commenters requested guidance on how certain
partners, like libraries, are expected to measure enrollment.
Departments' Response: A WIOA program carries the responsibility
for reporting and ensuring such data are available to fulfill their
reporting requirements. In the case where a partner program is
receiving WIOA funds to provide services for any program, a mechanism
for tracking and reporting such services and individuals will need to
be established between the local one-stop partner and the program
responsible for making such reports. Where a local one-stop partner is
providing services beyond those funded under WIOA, reporting
requirements would not extend to such services. In the case of a local
one-stop partner, such as a local library, who may only be providing
space for a program or programs to operate within, or providing access
to public computers by which participants access programs, reporting is
the responsibility of the program operator.
[[Page 55876]]
Comments: A few commenters said that this section will require the
UI program to change its business model.
Departments' Response: The Departments do not agree that the UI
program will require a change to its business model, and see the
program as completely adaptable to the new regulations' plan and vision
for the one-stop delivery system. New requirements, such as the
requirement to provide ``meaningful assistance'' to claimants who need
help filing a claim, do not translate into a move away from primarily
on-line or phone claims filing. They simply assure that claimants who
need assistance accessing the program receive it.
Section 678.305 What is a comprehensive one-stop center and what must
be provided there?
Access and Direct Linkage
Providing one-stop center participants with access to program
activities and services is the keystone of the one-stop delivery
system. ``Access'' is defined in Sec. 678.305(d), which provides three
ways each partner program may meet this requirement: (1) Having a
program staff member physically present at the one-stop center; (2)
having a staff member from a different partner program physically
present at the one-stop center appropriately trained to provide
information to customers about the programs, services, and activities
available through partner programs; or (3) making available a direct
linkage through technology to program staff who can provide meaningful
information or services. Options two and three offer a wide range of
possibilities to partners. Option two could require varying levels of
assistance depending on the program's needs, but this could be as
simple as providing a hardcopy TANF benefit application to a
participant or directing them to an online form. Direct linkage can
take many forms as well, and the Departments received many comments on
the definition of this term, as discussed below.
Comments: A few commenters disagreed with the definition of
``direct linkage,'' specifically because it does not include providing
a phone number or Web site that individuals can use at home. These
commenters said this is an unnecessary restraint on how States can
serve customers and does not take into account the usage of mobile apps
and other technology. The commenters also said that the definition of
``direct linkage'' exceeds what is required in WIOA. Further, the
commenters stated that proposed technologies, such as live Web chat
systems, are expensive.
Departments' Response: Maintaining the option of connecting to a
well-trained program staff member at the one-stop center is extremely
important to the success of the one-stop delivery system. The
Departments recognize that the language defining ``access'' and
``direct linkage'' may have been too restrictive and also could make it
appear that every interaction required a human component, not just the
availability of the option to speak with a person. Many one-stop
customers may only require services provided electronically or may not
be ready for a direct interaction with a staff member. For these
reasons, the Departments have changed the regulatory text in paragraph
(d)(3) of this section, replacing ``providing direct linkage . . .''
with ``making available a direct linkage . . .,'' in order to reflect
that communicating with an individual must remain an option, but is not
required for every one-stop customer interaction.
Comments: Several of the previously mentioned commenters joined
other commenters who said that it is not realistic to expect that every
customer can receive services at the time of arrival at the one-stop
center, and suggested that the regulation should not prohibit arranging
for customers to receive services at a later time.
Departments' Response: The Departments agree that the proposed
regulation was not intended to prohibit arrangements to serve customers
at a later time. Accordingly, the Departments have deleted the language
prohibiting arranging for customers to receive services at a later
time, thereby providing what the Departments see as more flexible
service delivery options. Specifically, paragraph (d)(2) was changed by
striking the phrase ``or making arrangements for the customer to
receive services at a later time or on a different day.''
Comments: A few commenters commented that the definition of
``direct linkage'' implies that all customers entering a one-stop
center have a computer with Internet access at home. The commenters
recommended revising this section to indicate that providing a computer
with access to enrollment or eligibility services does qualify as a
direct linkage.
Departments' Response: While providing such a service is of value
and should be encouraged, a ``direct linkage,'' pursuant to these final
regulations, must be the availability of a direct connection to a
program staff member by phone or through real-time Web-based
communication, an element seen by the Departments as critical to the
service. As mentioned above, however, not all one-stop customer
interactions require the use of a ``direct linkage;'' rather, the
regulations require only that a ``direct linkage'' remains available to
the customer. The language of paragraph (d)(2) was changed from ``[a]
`direct linkage' does not include providing a phone number or computer
Web site that can be used at an individual's home . . .'' to ``[a]
`direct linkage' cannot exclusively be providing a phone number or
computer Web site . . . .'' This means that providing a phone number or
Web site, as mentioned by the commenters, would still be considered
serving an individual, as long as more involved access was available to
that customer if desired.
Comments: Another commenter also disagreed with the NPRM, saying
that States should have flexibility to determine how and when to
deliver virtual services.
Departments' Response: The Departments have concluded that, with
the above-mentioned changes to the definitions of ``accessibility'' and
``direct linkage,'' States and local areas are provided a reasonable
amount of flexibility to determine how and when to deliver virtual
services, as long as the option of a ``direct linkage'' remains open to
customers if another form of ``access'' is not available. The
Departments have not made further changes to the regulatory text in
response to this comment.
Comments: A few commenters requested clarification on the
definition of ``timely manner'' and ``within a reasonable time.''
Departments' Response: The Departments decline to define ``within a
reasonable time'' in this section. The Departments consider what is
``reasonable'' will fluctuate based on demand and resources in a
specific local area. However, to ensure quality customer service, the
Departments encourage States and local areas to minimize the time
during which an individual must await a direct linkage to services and
to coordinate direct services effectively.
One-Stop Center Partner Staffing
Comments: A commenter asked whether the title I program staff
person needs to be present full-time or may be present on a part-time
basis. Another commenter asked whether there must also be at least a
part-time title II staff presence. Additionally, one commenter said
that electronic linkage should be permissible instead of requiring a
physical staff presence.
[[Page 55877]]
Departments' Response: At least one title I staff person must be
present when the one-stop center is open for operations, although this
requirement does not have to be met by a full-time staff person and can
be met by the physical presence of different staff trading off
throughout the one-stop center's times of operation.
No such requirement exists for the physical presence of a title II
staff person at the one-stop center. However, such physical presence
may be appropriate as a means to provide access to the title II
program, depending upon the particular local area's needs.
Lastly, as long as there is a physical presence of at least one
title I program staff member at all times of operation, all other
programs have the option to provide ``access'' through a ``direct
linkage'' that leverages available technologies according to the
definitions provided in this section. The Departments, however,
encourage partners to strive for a physical presence at one-stop
centers to serve customers' needs better.
Comments: A few commenters asked if it is the intent of the
regulations to have all required partners colocated in the one-stop
centers.
Departments' Response: As stated in Sec. 678.305(a), ``[a]
comprehensive one-stop center is a physical location where job seeker
and employer customers can access the programs, services, and
activities of all required one-stop partners.'' As providing services
through ``direct linkage'' is an allowable form of ``access,'' as
defined in Sec. 678.305(d), not all required partners must be
physically present at a comprehensive one-stop center as long as
``access'' to their services, programs, and activities is provided.
However, the Departments encourage as much physical presence of partner
staff persons that is feasible.
Comments: Another commenter said that it will be logistically
difficult to ensure that 50 percent of required partners are located in
the one-stop centers, particularly with regard to adult education
programs and the volume of customers that they serve.
Departments' Response: This comment seems to stem from a
misunderstanding of the colocation requirements. While all required
one-stop partners must provide ``access'' to their programs and
activities through a comprehensive one-stop center, at least one title
I program staff person must be physically present. However, the
Departments encourage as much physical presence of other one-stop
partners' program staff persons as is feasible. States and local areas
should be aware of the requirement in Sec. 678.315 that, if Wagner-
Peyser Act services are provided at an affiliated site, at least one or
more other one-stop partner programs must be located in the affiliated
site, and there must be a physical presence of combined staff from the
other program(s) over 50 percent of the time that the site is open.
Comments: Another commenter said that the ability of the VR program
to participate through technology instead of through a physical
presence will greatly expand the VR program's participation in the one-
stop delivery system.
Departments' Response: As stated above, as long as this technology
meets the definition of ``direct linkage'' as stated in Sec.
678.305(d), the VR agencies are able to substitute this for a physical
presence at a comprehensive one-stop center.
Comments: One commenter asked if it is the intent of the
regulations to require NFJP grantees to be located in the same one-stop
center as other entities that provide one-stop services. The commenter
said that colocating these grantees would be logistically very
difficult. A couple of commenters stated that the decision to colocate
services can be beneficial but should consider financial viability. If
it is more beneficial to locate NFJP programs outside of a one-stop
center, these commenters reasoned that grantees should be given the
flexibility to do so, and commented that the grantee can still develop
a close partnership with the one-stop delivery system without
necessarily being colocated.
Departments' Response: Because NFJP is an entity that administers a
program authorized by title I of WIOA, sec. 121(b)(1)(B) and Sec.
678.400(b)(1) require NFJP to be a comprehensive one-stop center
partner. This does not necessarily mean, however, that NFJP staff must
be physically present at the one-stop center. There are multiple
examples in the regulations for providing access to a program and its
services through the one-stop center (such as providing a ``direct
linkage''), as discussed in paragraph (d) of this section. It should be
noted, however, that an NFJP staff member placed at the local area's
comprehensive one-stop center could serve as the required title I staff
member when present.
Comments: Another commenter remarked that, traditionally, there has
been a cost increase associated with operating NFJP services in
conjunction with a one-stop delivery system that leaves less funding
available for training programs and participant services. This
commenter said that the increase in operating costs would be due to
high rent, assignment of personnel to other duties in the one-stop
delivery system, and cooperative spending.
Departments' Response: The Departments determined that while there
may be cost increases in some areas, there may be savings in others due
to the infrastructure cost contribution plan laid out in the local
area's MOU in accordance with Sec. Sec. 678.700 through 678.755.
Comments: One commenter suggested that one-stop centers should
receive guidance about how to calculate co-occupancy rates so that
partners are aware if there is inadequate space to provide colocated
services.
Departments' Response: The Departments recognize the importance of
quality facilities, including adequate physical space, to deliver
services across one-stop partner programs. However, the Departments do
not consider this level of detail necessary in regulations and have not
made changes to the regulatory text in response to this comment. The
Departments encourage the use of State and local administrative data to
guide negotiations regarding colocation and shared infrastructure
costs.
Comments: Some commenters said that the regulation implies that
operating one-stop centers beyond normal business hours will lead to a
higher evaluation during the certification process. These commenters
expressed concern about the fairness of this practice, stating that
some one-stop centers many not be able to stay open past normal
business hours due to lease agreements or security concerns (e.g.,
needing to hire an additional security guard).
Departments' Response: Providing nontraditional hours of operation,
such as on Saturdays or after 5 p.m. on weekdays, is seen as a critical
element in servicing difficult to reach populations, such as low-wage,
low-skill, and other employed workers, and homeless individuals.
Therefore, this will remain one of the required elements to be taken
into account when evaluating the effectiveness of one-stop centers. The
Departments have revised the regulatory text at Sec. 678.800(b) to
reflect that such hours should be provided where there is such a need
by the workforce population, as identified by the Local WDB. It should
be noted that this is only one factor to take into consideration when
evaluating a one-stop center for certification, and while operating a
one-stop center beyond normal business hours will count positively
toward a center's evaluation, this will in no way negatively affect the
[[Page 55878]]
evaluations of other one-stop centers in the State that may not be able
to offer such services.
Comments: Another commenter asserted that the regulation's emphasis
on expanding operating hours would require additional staff and
relocations to larger facilities to accommodate these staff.
Departments' Response: In some instances, this may be true, but the
Departments encourage creative ways of implementing these
nontraditional hours with the resources the one-stop centers and Local
WDBs have available to them. Innovation is one of the driving
principles behind WIOA, including in how services are delivered to
difficult to reach populations and individuals with barriers to
employment.
Other Comments
Comments: Another commenter said that States should determine
standards for one-stop centers with input from Local WDBs.
Departments' Response: Under sec. 101(d)(6) of WIOA, State WDBs are
responsible for assisting the Governor in developing statewide policies
affecting the coordinated provision of services through the one-stop
delivery system, including developing objective criteria and procedures
that Local WDBs will use to assess the effectiveness and continuous
improvement of one-stop centers. In addition, one-stop centers must
adhere to the requirements in sec. 121 of WIOA and these implementing
regulations.
Comments: A commenter suggested amending this section to encourage
States to develop technology-based strategies to ensure that
wraparound, or comprehensive, services are available outside of normal
business hours.
Departments' Response: The Departments encourage the development of
technology-based strategies to deliver services to customers in
innovative and comprehensive ways, both during normal business hours
and nontraditional hours, and the Departments have concluded that the
regulations support such activity as written. No changes to the
regulatory text were made in response to this comment.
Comments: Another commenter said that the NPRM does not provide
enough guidance on how to decide the number and location of
comprehensive one-stop centers, explaining that these decisions require
significant collaboration among several stakeholders.
Departments' Response: While sec. 121(e) of WIOA and Sec.
678.300(c) require that at least one comprehensive one-stop center be
established in a local area, many local areas will require the
establishment of multiple centers to serve their populations properly.
This is highly dependent on individualized factors in each local area.
This determination is best carried out at the State and local planning
level. WIOA sec. 121(a) requires the establishment of the one-stop
delivery system, consistent with the approved Unified or Combined State
Plan, through the Local WDB for a local area and with the agreement of
CEO for the local area. It is these entities that should determine the
proper number and location of one-stop centers, by drawing on their
knowledge of the area's needs. The Departments made no change to the
regulatory text in response to the comment.
Section 678.310 What is an affiliated site and what must be provided
there?
In addition to the requirement for a physical center in each local
area where all required one-stop partners must provide access to their
programs, services and activities, consistent with sec. 121(e)(2)(B) of
WIOA,,Sec. Sec. 678.310 and 678.320 provide that the one-stop delivery
system may also provide partner programs, services, and activities
through affiliated sites or 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. The Departments
added a reference to 29 CFR part 38, the implementing regulations of
WIOA sec. 188.
Comments: A commenter recommended that affiliated sites not be
required to have operators; however, the commenter also said that the
entities delivering services at these sites should be signatories to
the MOU.
Departments' Response: As required by sec. 121(c) of WIOA, an MOU
is an agreement among the one-stop partner programs and the Local WDB;
therefore, the entities delivering services--i.e., the partner
programs--will be signatories to the MOU. A local area's one-stop
operator may be in charge of running affiliated sites as well as the
comprehensive one-stop center. In other cases, other arrangements for
operations of the affiliate sites may be specified in the MOU. The
operator may be assigned different responsibilities, which are
dependent on the terms of the selection process and the operator
agreement(s) reached between the operator(s) and the Local WDB.
Comments: One commenter suggested that affiliated sites should not
have to provide access to all required partners, since physical
staffing is determined locally.
Departments' Response: Since affiliated sites are not required to
provide access to all partner programs, as stated in Sec. 678.310(a),
no change to the regulatory text is necessary.
Comments: Another commenter asked whether VR agencies are required
to participate in affiliated sites.
Departments' Response: To clarify, neither the VR program, nor any
other partner program, is required to participate in affiliated sites
by these regulations or by statute; partner programs are required only
to participate in the operation of the one-stop delivery system and
must provide access to their programs through the comprehensive one-
stop centers. The Departments encourage the use of affiliated sites to
serve a local area's population better, but decisions concerning this
implementation are ultimately made by the local areas. These affiliated
sites should, first and foremost, supplement and enhance customer
access to services, and should be seen as access points that are in
addition to the local area's comprehensive one-stop centers.
Comments: One commenter asked whether an adult education provider
in a CBO is considered an affiliated site.
Departments' Response: Yes, an adult education provider, or any
other partner program, located in a CBO, may be considered an
affiliated site. If any partner program in a CBO is considered an
affiliated site, that program must follow all of the requirements of
this section.
Section 678.315 Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?
This section sets forth the prohibition against standalone Wagner-
Peyser Act Employment Services offices. WIOA requires that the Wagner-
Peyser Act Employment Service program be colocated with one-stop
centers. A Wagner-Peyser Act Employment Service office cannot, by
itself, constitute an affiliated site. In those cases where the Wagner-
Peyser Act Employment Service program is located in an affiliated site,
there must be staff of at least one other partner in that affiliated
site that is physically present more than 50 percent of the time the
center is open.
Comments: A commenter asked whether one partner agency that
administers multiple partner programs can satisfy the 50 percent
presence requirement. This commenter reasoned that multiple partners
should be able to
[[Page 55879]]
meet the 50 percent requirement collectively.
Departments' Response: In light of the comments and upon
considering the requirement for physical presence of non-Wagner Peyser
program staff more than 50 percent of the time, the Departments have
concluded that it is appropriate to allow a combination of partner
program staff members to meet this requirement, and the Departments
have revised the regulatory text to reflect this.
If there is only one qualifying partner program (i.e., partner
programs other than local veterans' employment representatives,
disabled veterans' outreach program specialists, or UC programs) in
addition to the Wagner-Peyser Act program at an affiliated site, then
that partner program alone must meet the more than 50 percent
threshold. If there is more than one qualifying partner program in the
affiliated site, such programs together must have staff present to
provide coverage more than 50 percent of the time the site is open.
Comments: A commenter also recommended that electronic access
should be included to meet the more than 50 percent requirement.
Another commenter agreed, and also added that it may not be financially
feasible to have staff in affiliated sites more than 50 percent of the
time.
Departments' Response: While the Departments appreciate and
encourage partners' use of technology to better, and more
comprehensively, serve customers of the one-stop delivery system, the
Departments have not revised the regulatory text to permit such
activities in order to meet the more than 50 percent physical presence
requirement for non-Wagner-Peyser Act partner programs. Doing so would
defeat the purpose of this requirement, which is to have staff other
than Wagner-Peyser Act staff physically present for a majority of the
time that an affiliated site is open.
Comments: A few commenters requested flexibility in determining
staffing at affiliated sites to meet local needs best, stating that the
50 percent threshold may result in some programs being overstaffed
while Wagner-Peyser Act services are understaffed. Another commenter
agreed that this requirement is burdensome and does not take into
account existing long-term lease agreements.
Departments' Response: In determining the number and placement of
affiliated sites, Local WDBs should consider how their one-stop
delivery system could deliver services most effectively across the
local area with the resources that are available. In making these
adjustments, Local WDBs should consider the services that are needed in
each location, how services are delivered in the comprehensive one-stop
center, where the one-stop center is located, and where current
affiliated sites are located. This may require the opening of new
affiliated sites, or the consolidation of existing offices that would
be considered affiliated sites under WIOA. The Departments recognize
that such adjustments take time, but the Departments expect this
process to begin as soon as possible.
Comments: Another commenter asked how this requirement would affect
existing standalone Wagner-Peyser Act offices.
Departments' Response: This requirement will mean that either a
non-Wagner-Peyser Act partner program will need to colocate at the
formerly standalone Wagner-Peyser Act office; the Wagner-Peyser Act
program will need to move to another space that can support colocation
with a non-Wagner-Peyser Act partner program; or the Wagner-Peyser Act
program will need to shift operations to a comprehensive one-stop
center, of which the program is a required member, or to another
affiliated site. As stated in Sec. 678.315, Wagner-Peyser Act programs
may no longer exist in standalone offices.
Comments: One commenter recommended strengthening the language
about how required partners are to operate in integrated partnerships
with Wagner-Peyser Act services. The commenter stated that many local
areas have flexibility to determine whether to colocate with Wagner-
Peyser Act services.
Departments' Response: The Departments are not altering the
regulatory text to address the language concerning how required
partners are to operate in partnership with Wagner-Peyser Act services.
WIOA recognizes the Wagner-Peyser Act program's role in the one-stop
delivery system and has made Wagner-Peyser Act one of the core
programs. The Departments have determined that Wagner-Peyser Act
services are vital to the successful operation of one-stop centers, and
have, through administrative guidance, strongly encouraged access to
these services throughout the public workforce system.
Comments: A few commenters expressed concern about the lack of
specific instructions for how State workforce agencies are supposed to
fund the colocation of Wagner-Peyser Act services. The commenters
recommended that States do not need to use their Wagner-Peyser Act
program allocations for this action.
Departments' Response: Given the diversity in how States have
structured their Wagner-Peyser Act employment services, the regulation
provides States with discretion in developing an appropriate plan for
relocation. Any plan, including the identification of funding to be
used to carry out relocation, must comply with applicable Federal cost
principles. The Departments did not make changes to the regulatory text
in response to this comment.
Comments: One commenter recommended that States be required to have
a conflict-resolution process in place for on-site staff disputes,
which may help alleviate one of the major challenges of program
colocation.
Departments' Response: While the Departments recognize the utility
of such a process and may recommend the implementation of such a
process in many instances, the Departments have decided it is best to
provide Local WDBs with flexibility in determining how to
operationalize the colocation of programs, as well as integrated
service delivery. For this reason, the Departments will not require a
conflict-resolution process for on-site staff disputes, and have made
no changes to the regulatory text.
Section 678.320 Are there any requirements for networks of eligible
one-stop partners or specialized centers?
The Departments received no comments for this section and made no
substantive changes to the regulatory text. However, the Departments
have rephrased the first sentence of the paragraph to improve clarity
and readability. The phrase ``such as having in place processes to make
referrals to'' was stricken from its original position; ``one-stop
center'' was added after ``comprehensive;'' and the phrase ``for
example, by having processes in place to make referrals to these
centers and the partner programs located in them'' was inserted at the
end of the first sentence. The new sentence reads as follows: ``Any
network of one-stop partner or specialized centers must be connected to
the comprehensive one-stop center and any appropriate affiliate one-
stop centers, for example, by having processes in place to make
referrals to these centers and the partner programs located in them.''
The Departments have made these changes to make this sentence more
understandable than originally phrased and do not intend to change the
meaning of the sentence or paragraph.
[[Page 55880]]
3. One-Stop Partners and the Responsibilities of Partners (20 CFR Part
678, Subpart B; 34 CFR 361.400 Through 361.440; 34 CFR 463.400 Through
463.440)
The public workforce system envisioned by WIOA seeks to provide all
participants with access to high-quality one-stop centers that connect
them with the full range of services available in their communities,
whether they are looking to find jobs, build educational or
occupational skills, earn a postsecondary certificate or degree, obtain
guidance on how to chart careers, or are employers seeking skilled
workers. A genuinely seamless, one-stop experience requires strong
partnerships across programs that are able to streamline service
delivery and align program requirements. In this subpart of the
regulation, the Departments describe requirements relating to such one-
stop partnerships. Specifically, this subpart identifies the programs
that are required partners and their roles and responsibilities, the
other entities that may serve as partners, and the types of services
provided.
The Departments changed several sections of this subpart in
response to comments. While small changes to the regulatory text were
made in Sec. 678.410, much more significant changes were made to Sec.
678.415(e), which changed the default one-stop partner under the
Perkins Act from the State agency administering that program to a local
postsecondary recipient of Perkins funds. Changes to the requirements
for local TANF partners have also been made in Sec. 678.430(a)(2) and
(d). Two additions were also made to the human services that may be
provided as business services in Sec. 678.435(b)(4).
Section 678.400 Who are the required one-stop partners?
This section lists the one-stop partners required under sec.
121(b)(1)(B) of WIOA. Beyond the partners previously required under
WIA, WIOA adds the TANF program, administered by HHS, and the Ex-
Offender program, administered by DOL under sec. 212 of the Second
Chance Act of 2007, to the list of required partners.
Comments: A commenter requested clarification on participation for
career and technical education programs and also a clearer definition
of employment and training programs. The commenter expressed concern
that without a clear definition of these terms, nearly any entity can
claim to be an employment and training program. Further, the commenter
requested that States be able to define these terms.
Departments' Response: Within the context of these regulations,
these terms are used in reference to programs authorized under specific
Federal statutes. The ``career and technical education programs''
referred to in Sec. 678.400(b)(6) are those authorized by the Perkins
Act at the postsecondary level. The ``employment and training
activities'' listed in this section are either those carried out under
the CSBG or those carried out by HUD, as provided in Sec.
678.400(b)(9) and (10), respectively. Under these categorical
restrictions, the Departments are not concerned that nearly any entity
could claim to be an employment and training program. Section
121(b)(1)(B) of WIOA, as implemented by Sec. 678.400, lists
intentionally broad categories of required partners so as to bring more
local partner programs into the comprehensive one-stop center and the
broader one-stop delivery system to provide more comprehensive services
for the one-stop centers' customers. For this reason, the Departments
are not changing the regulatory text concerning these terms. The
Departments have determined that it is within the best interests of the
one-stop delivery system and its customers for States to adhere to
these broad categorical definitions. Furthermore, narrowing these
definitions would exclude some programs explicitly included by Congress
as the regulatory language mirrors the statutory text in WIOA secs.
121(b)(1)(B)(vi), (ix), and (x).
Comments: A commenter asked whether CSBG programs have to be
physically located at the one-stop center.
Departments' Response: If a CSBG program carries out employment and
training activities, then these activities must be accessible at the
comprehensive one-stop center, either through a physical presence or
through another means of ``access'' as defined by the regulations in
Sec. 678.305(d), because these programs are required one-stop partners
under sec. 121(b)(1)(B) of WIOA. Section 678.305(c) specifically
requires customers to have access to one-stop partner programs in a
comprehensive one-stop center, including employment and training
activities carried out under the CSBG program. Furthermore, Sec.
678.305(d) defines ``access'' as including, but not limited to, having
partner program staff physically present at the one-stop center. That
is, one-stop partner programs do not need to be physically present in a
comprehensive one-stop center, but they must provide access to their
services in the ways described in Sec. 678.305(d).
Comments: One commenter said that the Perkins program needs to
determine who the Perkins one-stop partner will be. Another commenter
stated that Sec. 678.400 needs to be reconciled with the Perkins Act
and asserted that career and technical education programs do not have
authority to enter into an MOU, although a postsecondary entity does
have such authority.
Departments' Response: The NPRM specified that the State Eligible
Agency serves as the one-stop partner for the Perkins program. As
discussed below in this preamble, the Departments have determined that
an eligible recipient at the postsecondary level, or a consortium of
eligible recipients at the postsecondary level in the local area is the
most appropriate entity to serve as the one-stop partner in a local
area. This change is reflected in Sec. 678.415(e) and is discussed in
the corresponding preamble section below.
Comments: Another commenter recommended that all Federal grantees
that have employment and training components in their grant should be
required one-stop partners.
Departments' Response: While the Departments encourage the
inclusion of such entities as additional one-stop partners, the list of
required partners in Sec. 678.400(b) is the statutorily mandated list
of required partners. The Departments do not have authority to require
additional programs to be one-stop partners. However, several entities
such as those mentioned by the commenter are explicitly listed in sec.
121(b)(2)(B) of WIOA and Sec. 678.410 as acceptable additional one-
stop partners, subject to approval of the Local WDB and CEO.
Section 678.405 Is temporary assistance for needy families a required
one-stop partner?
This section provides further clarification that the Governor may
determine that TANF will not be a required one-stop partner in a local
area(s), but must notify the Secretaries of Labor and HHS in writing of
this determination. This implements sec. 121(b)(1)(C) of WIOA. It
should be noted that the Governor's decision to exclude TANF from being
a required one-stop partner is distinct and separate from the decision
to include or not to include TANF in a Combined State Plan. TANF
remains one of the many options of programs to be included in a
Combined State Plan. Its status as a required one-stop partner does not
mean it is required to be included in a Combined State Plan. For all
sections regarding TANF, the HHS, which administers the program, was
consulted extensively.
[[Page 55881]]
Comments: A few commenters expressed support for TANF being a
required one-stop partner. Other commenters remarked that adding TANF
as a one-stop partner will lead to improved services for job seekers.
However, one commenter recommended that the Departments include
stronger language about including TANF as a required one-stop partner.
This commenter said that if TANF is such an important partner, it
should not be so easy for Governors to opt out.
Departments' Response: While the Departments agree that TANF is an
important partner in the one-stop delivery system, WIOA requires--at
sec. 121(b)(1)(C)--that Governors be able to determine that TANF will
not be a required one-stop partner through written notice to both the
Secretary of Labor and the Secretary of HHS. It should be noted,
however, that even if the Governor decides not to require TANF to be a
one-stop partner, local TANF programs may still work in collaboration
or partnership with the local one-stop centers to deliver employment
and training services to the TANF population, unless inconsistent with
the Governor's direction. Additionally, the local TANF program also may
find other avenues of providing TANF services to one-stop customers
that may not reach ``partner'' status.
Comments: One commenter recommended that the regulations should
clarify that TANF employment and training activities must be offered at
one-stop centers, with other TANF-funded activities included at the
discretion of the local TANF agency and Local WDB. This commenter
reasoned that requiring all TANF activities at one-stop centers would
be a substantial cost and administrative burden.
Departments' Response: Access through the one-stop delivery system
is required only for TANF activities related to work, education or
training, the initiation of an application, and career services as
specified in Sec. 678.430(a)(2). TANF is a required one-stop partner
unless the Governor opts not to require TANF participation in either a
specific local area or the entire State. The cost of the various
activities associated with the one-stop operators should be one of the
factors considered by the Governor in making this decision.
Comments: A commenter stated that even if the Governor opts out,
local TANF programs might still be required to be one-stop partners.
Other commenters expressed support for local TANF programs to be
permitted to opt in as one-stop partners, even if the Governor opts
out. Another commenter expressed concern that the proposed regulations
would permit a local TANF agency official to defy a Governor's decision
not to include TANF as a required one-stop partner. The commenter
recommended that this clause should be deleted, stating that a
Governor's decision regarding TANF as a required one-stop partner must
be respected.
Departments' Response: While local TANF programs are allowed to be
one-stop partners, they cannot be required to do so if the Governor has
determined that TANF is not required to be a partner. However, the
Departments agree that local TANF programs should be permitted to work
in collaboration and partnership with the local one-stop centers and
have determined that allowing local TANF programs to make this
decision, in conjunction with Local WDBs, is in the best interest of
serving one-stop customers to the fullest extent possible, unless doing
so is inconsistent with the Governor's direction. The Departments
recognize the importance of increasing access to TANF programs, and
have determined that allowing these programs' voluntary inclusion, when
not required by a Governor and when not prohibited by the Governor's
direction, is consistent with the spirit of WIOA. The Departments have
modified the regulatory text to indicate that local TANF programs may
become partners at the local one-stop centers unless the Governor
directs or orders otherwise. While a Governor may choose not to require
TANF programs to be one-stop partners, the Departments do not want to
create barriers to local TANF programs becoming partners in the local
one-stop center when there is a mutual desire to do so. The Departments
have concluded that the availability of TANF services to one-stop
customers is an important element of the one-stop vision. Furthermore,
the Departments have interpreted WIOA sec. 121(b) as providing separate
authority to local areas to include additional one-stop partners,
including TANF, which is not overridden by a Governor electing to
exclude TANF from being a required partner. However, as administrator
of the State TANF program, the Governor is empowered under the Social
Security Administration (SSA) to direct the actions of local TANF
programs and may choose to limit a local program's ability to opt in.
It should be noted here that any additional partners not required by
sec. 121(b)(1)(B) of WIOA, but permitted by sec. 121(b)(2)(B), can
participate as a one-stop partner only with the agreement of the CEO
and Local WDB.
Comments: A commenter urged the Departments to ensure that a
decision regarding whether TANF is a required one-stop partner should
be separate from the decision regarding including TANF in a Combined
State Plan.
Departments' Response: The Governor's decision to exclude TANF as a
required one-stop partner must be made through direct written
notification of such a decision from the State's Governor to the
Secretaries of Labor and HHS. By contrast, at any time, a Governor can
opt to include or not include TANF in a Combined State Plan, whether or
not TANF is a required one-stop partner in the State.
Comments: Another commenter asked how TANF being a required partner
instead of a core partner translates into level of service delivery for
clients.
Departments' Response: The regulations do not differentiate between
core programs and required one-stop partners with respect to level of
service delivery. All required one-stop partners are expected to
provide comparable levels of service delivery to one-stop customers,
regardless of whether they are core programs under WIOA. No changes to
the regulatory text were made in response to this comment.
Comments: One commenter stated that this is an opportunity for the
TANF program to partner with schools.
Departments' Response: While the TANF program's inclusion in a
State's one-stop delivery system may, in fact, provide an opportunity
for TANF programs to partner with schools, this is a decision that
should be made at the local level and will not be required by the
Departments. As such, no changes to the regulatory text were made in
response to this comment.
Section 678.410 What other entities may serve as one-stop partners?
Partnerships across programs are critical to supporting the one-
stop vision for service delivery. Section 678.410 reinforces sec.
121(b)(2)(B)(vii) of WIOA, which states that other Federal, State,
local, or private sector entities that carry out workforce development
programs may serve as additional one-stop partners if the Local WDB and
CEOs approve.
Comments: A few commenters recommended that the regulations should
strongly encourage partnerships with disability service providers, as
increasing the employment of persons with disabilities is a key goal of
WIOA. Another commenter stated that SNAP employment and training
programs would include the Basic Food
[[Page 55882]]
Employment and Training (BFET) and Able-Bodied Adults Without
Dependents (ABAWD) programs. The commenter also asked whether Sec.
678.410(b)(6) includes programs funded by the Office of Refugee
Resettlement (ORR). Another commenter urged one-stop centers that have
youth services to partner with Runaway and Homeless Youth (RHY)
providers. The commenter explained that RHY providers have best
practices for dealing with traumatized youth. One commenter looked
forward to working with refugee English language training organizations
and other organizations as potential one-stop partners.
Departments' Response: Each one of the comments above suggests
including programs as one-stop center partners. Local partners
representing any one of these programs that provides services or serves
participants who are in need of the career development or job placement
services of the one-stop delivery system would be appropriate additions
to the one-stop delivery system in a given local area and could be
added as additional partners under Sec. 678.410(b)(6). Inclusion in
the one-stop center of these and other programs is outlined in the
local area strategic plan, and in the specifications for the selection
of one-stop operators and service providers in the local areas. In
response to these and other comments, which are addressed below,
wording has been added to this section to clarify that the list of
optional one-stop partners is not exhaustive. The Departments have
determined that no additional specific regulatory language is needed.
Comments: A commenter recommended that the Departments add a
reference to local or regional labor market information, which should
be used to drive strategic planning and one-stop partner decisions
regarding the appropriate mix of services required in local areas.
Departments' Response: Many factors, including labor market
information, can inform what local partners should include in a one-
stop center. The Departments have not changed the examples of optional
one-stop partners in the regulation, but have clarified that the list
in Sec. 678.410 is not exhaustive, by changing ``including'' to
``including, but not limited to'' in the catch-all provision of
paragraph (b)(6). It should be noted that the term ``including'' is, by
definition, nonexclusive, and that this addition is made for the sake
of emphasis and should not to be interpreted as suggesting that any
other use of the term ``including'' in these or any other regulations
denotes exclusivity. The Departments agree that partners suggested by
commenters can be appropriate and useful one-stop partners but have
concluded that it is easier to communicate this flexibility by
clarifying that the list is not exhaustive, rather than trying to list
every potential partner.
Section 678.415 What entity serves as the one-stop partner for a
particular program in the local area?
This section provides a general definition of the entities that
carry out the programs identified in Sec. Sec. 678.400 and 678.410 and
serve as the one-stop partners. The regulation defines an entity as the
grant recipient, administrative entity, or other organization
responsible for administering the funds of the specified program in the
local area. The term ``entity'' does not include service providers that
contract with, or are subrecipients of, the local administrative
entity. The regulation notes that for programs that do not have local
administrative entities, the responsible State agency should be the
one-stop partner.
Section 678.410(d) lists the entity that acts as the WIOA title I
one-stop partner for national programs in any particular local area.
While YouthBuild was listed in the NPRM as one of these national
programs, the paragraph failed to list which entity would serve as the
one-stop partner. Just as for the Indian and Native American and
Migrant and Seasonal Farmworker programs, the grantee of the YouthBuild
program is the entity that will serve as the one-stop partner in a
local area. The regulatory text has been amended to convey this and
correct the omission in the NPRM.
Comments: A commenter asserted that proposed Sec. 678.415(e),
which designates the Perkins State eligible agency as the local one-
stop partner for purposes of negotiating the MOU, ``lacks any support
in the text of the law and would make an already complicated
negotiation process that much more complex.'' Several commenters
recommended revising the paragraph to state that the entity that
carries out the program is the local area's Perkins eligible
institution, rather than the State eligible agency. Further, this
commenter recommended that the Departments remove the clause about the
State eligible agency delegating its responsibilities.
Departments' Response: In response to these comments, the
Departments agree that the local eligible recipient is a more
appropriate one-stop partner for the Perkins program and have changed
the regulatory text in Sec. 678.415(e) to provide that the Perkins
one-stop partner is the eligible recipient at the postsecondary level,
or a consortium of eligible recipients at the postsecondary level in
the local area. This change is aligned to the statutory text in WIOA
sec. 121(b)(1)(B)(vi). The regulatory text also has been revised to
state that the Perkins one-stop partner may request assistance from the
State eligible agency in completing its responsibilities as a one-stop
partner.
Comments: A few commenters interpreted proposed Sec. 678.415(c) to
mean that if the State's VR program is under an umbrella agency that is
not primarily concerned with vocational rehabilitation, the designated
VR partner will be the director of the designated State unit.
Departments' Response: Under Sec. 678.415(c), if the designated
State agency--which these commenters refer to as an ``umbrella
agency''--is not primarily concerned with VR, then the designated State
unit for the VR program would be the local partner.
Comments: One commenter stated that it is unclear from this section
whether the Local WDB or its chosen title I provider is the entity that
serves as the one-stop partner and recommended that the Local WDB not
be considered the one-stop partner in this case.
Departments' Response: The Departments agree with the commenter
that the Local WDB is not a one-stop partner, unless it is a specific
program provider as well. The Departments have concluded that the
proposed regulatory text is clear on this issue and have made no
changes to the regulatory text.
Comments: Another commenter agreed with the Job Corps center being
the one-stop partner, but suggested also including the providers who
conduct recruitment for the Job Corps program.
Departments' Response: Determination of such an inclusion in the
local one-stop delivery system is best left to the Local WDB. These
providers will remain permissible one-stop partners but will not be
required, and the Departments decline to change the regulatory text in
response to this comment.
Comments: One commenter suggested allowing the State TANF agency to
delegate its responsibilities under Sec. 678.415(a), as other
mandatory partners are permitted to do.
Departments' Response: The Departments' interpretation of WIOA is
that the local TANF program is the required one-stop partner that,
therefore, holds the responsibilities mentioned by this commenter.
Matters concerning the roles of entities in
[[Page 55883]]
carrying out TANF must be addressed under the TANF authorizing statute.
Comments: Some commenters expressed support for not requiring the
one-stop partner to have responsibilities in local areas where that
program or activity is not carried out.
Departments' Response: The final regulation continues to reflect
this policy.
Section 678.420 What are the roles and responsibilities of the required
one-stop partners?
This section describes and elaborates upon the statutory
responsibilities of the one-stop partners. These responsibilities and
corresponding WIOA provisions are identified and summarized in
paragraphs (a) through (e) of Sec. 678.420. Jointly funding services
is a necessary foundation for an integrated service delivery system.
All partner contributions to the costs of operating and providing
services within the one-stop delivery system must be proportionate to
the benefits received and also must adhere to the partner program's
Federal authorizing statute and to Federal cost principles requiring
that costs are reasonable, necessary, and allocable. The requirement in
Sec. 678.420(e), to provide representation on State and Local WDBs, is
new in WIOA and is required only of core programs; WIA only required
one-stop partner representation on Local WDBs, and required it for all
one-stop partner programs. The Departments have begun issuing guidance
and providing the system with technical assistance on matters related
to this section and will continue to do so.
Responsibilities Related to Infrastructure Cost Contributions
Comments: A commenter asked whether the statement in this section
that references Federal laws on administrative costs refers to the
established ceilings on the infrastructure contributions that can be
expected from certain programs, such as VR.
Departments' Response: This is the intent of the rule and, as such,
the Departments have made no changes to the regulatory text in response
to this comment.
Comments: A commenter stated that partner programs would be more
likely to contribute to infrastructure costs if the individual
programs' authorization were amended to include that expectation.
Departments' Response: Revisions to the authorizing statutes and
regulations of individual programs are beyond the scope of this
regulation.
Comments: Another commenter stated that it would be very
challenging to establish equitable funding to support a one-stop
delivery system without stronger language and guidance governing the
required one-stop partners.
Departments' Response: The Departments have released, and will
continue to release, guidance relating to this and many other issues.
The Departments concluded that the guidance will be sufficient in
assisting one-stop partners in supporting a one-stop delivery system
and decline to make a change to the regulatory text.
Comments: A few commenters said that Sec. 678.420(b) can be
construed to mean that YouthBuild programs must contribute money to
their local one-stop delivery system. The commenters expressed concern
that YouthBuild programs would have to pay into the one-stop delivery
system for infrastructure support when the money is needed to operate
the program.
Departments' Response: As a statutorily required one-stop partner
program, YouthBuild is required by sec. 121(b)(1)(A)(ii) of WIOA to
contribute to the infrastructure costs of any one-stop center in which
it participates, based on proportionate use and relative benefit
received. The Departments do not have authority to change this
requirement and have made no changes to the regulatory text in response
to these comments.
Comments: A commenter requested additional guidance on proportional
benefits received and also on costs associated with title II providers
contributing to one-stop infrastructure.
Departments' Response: The portion of this preamble addressing
public comments and changes made to the provisions in subpart E
relating to ``One-Stop Operating Costs'' also addresses many of these
issues.
Other Comments
A few commenters recommended rewording this section to state that
not all one-stop partners are required to be members of the State and
Local WDBs.
Departments' Response: After considering this comment, the
Departments have concluded that the language of the proposed regulatory
text is clear that not all one-stop partners are required to be members
of the State and Local WDBs. No changes to the regulatory text were
made in response to this comment.
Comments: One commenter asked what recourse a Local WDB would have
if States allocate the majority of their program funding to more
populous areas, leaving rural areas underfunded.
Departments' Response: The allocation of funds by programs is
beyond the scope of this regulation and WIOA. As such, the Departments
have no ability or authority to create such a recourse mechanism. As
good faith partners in the one-stop delivery system, however, the
Departments expect that programs will operate in a manner that best
serves the needs of a State.
Section 678.425 What are the applicable career services that must be
provided through the one-stop delivery system by required one-stop
partners?
WIOA requires one-stop partners to deliver applicable program-
specific career services. This regulation clarifies that an applicable
career service is a service identified in Sec. 678.430 and is an
authorized program activity.
Comments: A few commenters requested clarification on what services
must be physically available in one-stop centers. Another commenter
said that proposed Sec. 678.425 does not describe how or where these
services must be provided and suggested that customers should be able
to receive in-person assistance with the required partners. Another
commenter expressed support for eliminating the sequence of services,
as this would provide staff with greater flexibility to serve
customers.
Departments' Response: The Departments have not made changes to
Sec. 678.425. Section 678.305(b)(1) specifically states that
comprehensive one-stop centers must provide career services described
in Sec. 678.430. The language is not qualified by the phrase ``access
to,'' meaning that career services must actually be provided in the
comprehensive one-stop centers. With respect to programs and activities
to which the one-stop partners must provide access, as set forth in
Sec. 678.305(b)(2) through (4), the regulations describe requirements
concerning physical presence of staff and in-person assistance in Sec.
678.305(a), (c), and (d). Paragraph (a) of Sec. 678.305 requires that
at least one title I staff person be physically present in a
comprehensive one-stop center. Paragraph (c) of Sec. 678.305 requires
customers to have access to one-stop partner programs in a
comprehensive one-stop center, and paragraph (d) defines ``access'' as
including, but not limited to, physical presence of partner program
staff appropriately trained to provide information to customers about
the programs, services, and activities available through partner
programs. That is, one-stop partner programs do not need to be
physically present in a comprehensive one-stop center, but they
[[Page 55884]]
must provide access to their services in the ways described in Sec.
678.305(d).
Section 678.430 What are career services?
Unemployment Insurance Claims Filing and Assistance. Section
678.430 specifies the career services that one-stop partners must
provide through the one-stop delivery system. Paragraph (a)(10)
provides that core services include providing meaningful assistance to
individuals seeking assistance in filing a claim for unemployment
compensation.
Comments: Several commenters addressed the proposed definition of
``meaningful assistance.'' In particular, one commenter expressed
support for the definition as it allows for technology to be used to
provide the assistance. However, this commenter joined many others in
expressing strong disagreement with the discussion in the preamble to
the NPRM that one-stop customers referred to a phone-based service for
UI claims be sent to a dedicated phone line for one-stop customers,
rather than the general State UI queue. These commenters asserted that
this requirement is not in WIOA; would be costly and difficult to
maintain during times of high call volume; fails to take advantage of
existing UI claims filing and assistance technology infrastructure in
many States; and gives priority to individuals who are able to travel
to one-stop centers, thereby disproportionately affecting individuals
who are unable to travel to one-stop centers due to distance, lack of
transportation options, or disability. A few commenters also stated
that this requirement conflicts with the fact that most UI claims are
done remotely through self-service options, including mobile
applications and Web sites. One commenter asked for the definition of
``within a reasonable time.'' Another commenter said that the
definition of ``meaningful assistance'' is not clear.
Departments' Response: The Departments disagree with the comments
regarding a dedicated phone line for one-stop customers using UI
services. States are not required to have a dedicated phone line for
one-stop customers, but a phone line would provide a direct linkage for
providing services remotely as required by Sec. 678.305(d). More
importantly, simply referring one-stop customers to the general UI
queue, without otherwise making trained staff available does not
qualify as ``meaningful assistance.'' Therefore, if local areas choose
to provide meaningful assistance through technological means, trained
staff must be available such as through a dedicated phone line.
In response to the comments regarding concerns that the
``meaningful assistance'' requirement to help individuals file UI
claims is overly burdensome, the Departments note that Sec.
678.430(a)(10)(i) provides flexibility to States regarding
implementation by providing a menu of options for States to meet the
requirement. The regulation does not mandate the service delivery
methodology. Options include the ability to provide the service
remotely as long as it is provided by trained and available staff
within a reasonable time. The Departments also note that this
requirement is targeted to individuals who need assistance and is not
intended to replace State processes for taking claims remotely, either
online or by phone. The Departments have not provided a definition of
reasonable time because that varies by circumstances. The Departments
have made no changes to the regulatory text in response to these
comments.
Comments: Many commenters raised concerns about private entities or
contractors providing assistance with filing UI claims, asserting that
this should be considered an inherently governmental function that must
be conducted by State merit staff. These commenters said that if UI
staff is not present in one-stops to fulfill this function, Employment
Services staff could do so. A few commenters also recommended that
``State merit'' be inserted before ``staff'' in proposed Sec.
678.430(a)(10)(i)(A) and (B). A commenter expressed concern regarding
the definition of ``filing,'' suggesting that it should not be the
function of one-stop or Wagner-Peyser Act staff to file UI
applications.
Another commenter asked for guidance on defining ``and assistance''
in the requirement to provide ``information and assistance regarding
filing claims for unemployment compensation.'' Another commenter
expressed support for the proposed expanded definition of ``enhanced
career services'' including UI claims filing assistance and eligibility
assessments.
Departments' Response: The Departments decline to make changes to
Sec. 678.430(a)(10) to refer to State merit staff. The assistance
requirement only encompasses helping the individual navigate the
State's claims filing process and providing the individual with general
information on their responsibilities as a claimant. These functions
are informational in nature and not directly connected to determining
the claimant's eligibility for benefits. The requirement does not
encompass speaking specifically to the individual's potential
eligibility for benefits or making any determinations regarding the
individual's eligibility for benefits, which are inherently
governmental functions that must be provided by UI merit staff. The
Departments note that it has been permissible for non-State merit staff
to carry out similar functions, for example, reviewing compliance with
State work search requirements as part of the Reemployment and
Eligibility Assessment program for many years. The Departments
reiterate the importance that, if these functions are carried out by
non-UI staff, States must ensure that the staff is well trained. The
Departments expect to provide additional guidance and technical
assistance to States on the implementation of these provisions. For the
reasons stated above, the Departments are not revising the regulatory
text in response to these comments. For more information about the
impact of WIOA implementation merit staffing for the Wagner-Peyser Act,
see 20 CFR 652.215.
Temporary Assistance for Needy Families
Comments: Several commenters addressed the Departments' request for
comment regarding the identification and inclusion of TANF employment,
related supported services, and TANF intake functions as career
services that must be provided in one-stop centers. For example, some
commenters suggested that because there are so many ways of delivering
TANF intake services (e.g., electronically), States should have
flexibility in determining whether TANF intake services should be
physically located in the one-stop centers.
Departments' Response: The Departments recognize the need, and
utility, of providing States flexibility in implementing TANF intake
services and have added two paragraphs to Sec. 678.430. Paragraph
(a)(2) of Sec. 678.430 states, in pertinent part, that ``[f]or the
TANF program, States must provide individuals with the opportunity to
initiate an application for TANF assistance and non-assistance benefits
and services . . .'' This provides States with flexibility as to how
this is achieved. As a required partner, however, TANF must still
provide access (as defined by Sec. 678.305(d)) to employment services
and related support services. To this end, paragraph (d) has been added
to Sec. 678.430, stating that ``[i]n addition to the requirements in
paragraph (a)(2) of this section, TANF
[[Page 55885]]
agencies must identify employment services and related support being
provided by the TANF program (within the local area) that qualify as
career services and ensure access to them via the local one-stop
delivery system.''
Comments: Another commenter suggested that required partners should
be required to provide TANF outreach and intake at one-stop centers.
Departments' Response: As TANF is a required one-stop partner by
default, and only is excluded from the one-stop delivery system through
a decision by the Governor, TANF outreach and intake services must be
provided at any one-stop center for which TANF is a partner.
Comments: One commenter asserted that including TANF intake
functions as career services would require significant cross training
of other program staff in their State. For these reasons, the commenter
supported the continuation of the colocation/co-enrollment model for
TANF services at one-stop centers. Another commenter asked whether
State agency staff were properly cross trained to conduct TANF intake.
Departments' Response: The Departments recognize that some services
come at higher costs than others, and this is one of the many factors
that must be weighed in determining how best to deliver services. In
addition, the question of what constitutes ``proper'' training on the
TANF program for local one-stop workforce staff will depend on the TANF
benefits and services that are offered at the local one-stop center.
Comments: A few commenters stated that requiring one-stop centers
to process TANF applications that are not related to employment is
unhelpful and should not be considered career services.
Departments' Response: As mentioned above, the Departments' review
and consideration of comments made on the NPRM, particularly the
language regarding intake, application processing, and initial
eligibility determinations for TANF assistance and non-assistance
benefits at one-stop centers, prompted the Departments to modify the
requirement from how it was proposed in the NPRM. This modified
requirement, found in final Sec. 678.430(a)(2), requires that, at a
minimum, the one-stop centers must enable a family to initiate an
application (as defined by the State agency) for TANF assistance and
non-assistance benefits and services. One-stop centers could accomplish
this by having paper application forms available at the one-stop center
or by having information or links to the application on the one-stop
center's Web site.
The Departments have determined that allowing customers in need of
career services to have the opportunity to initiate an application for
TANF benefits at one-stop centers is not counterproductive or
unhelpful. On the contrary, providing for a family's unmet needs via a
TANF benefit is crucial to ensuring progress and success in meeting
career service objectives.
The Departments affirm the NPRM preamble explanation on the
identification and delivery of career services (restated below) absent
a definition of career services in the TANF statute.
The TANF statute does not include a definition for career services.
Accordingly, the TANF State grantees must identify any employment and
related support services that the TANF program provides (within the
particular local area) that are comparable with the career services as
described in this section.
Comments: A few commenters remarked that there is no universal
English as a Second Language (ESL) test under TANF or other employment
and training programs and suggested that ESL providers are better at
conducting language proficiency testing than employment service
providers. Another commenter suggested that one-stop providers should
be expected to provide services to linguistically and culturally
diverse populations.
Departments' Response: The regulations do not require a specific
ESL test as part of the initial assessment of skills, or to gain
meaningful access to TANF or other Federal programs. They leave the
selection and use of assessment tools, and qualified administrators of
such tools, up to the partner program or service provider, as
appropriate to individual participants. If any one-stop partner or
service provider receives funds directly or indirectly from HHS or
other Federal agencies, it is required under title VI of the Civil
Rights Act of 1964 and its implementing regulations, to take reasonable
steps to ensure meaningful access to its programs by persons with
limited English proficiency. Title VI also prohibits Federal grant
recipients from utilizing methods of administration that have the
effect of discriminating against persons based on their race, color, or
national origin. In some cases, a provider's failure to provide
language assistance to linguistically or culturally diverse populations
could be a violation of title VI. However, the title VI requirement to
take reasonable steps to ensure meaningful access does not mean that
jurisdictions are required to provide universal ESL training. While
individual jurisdictions may need to provide ESL training and testing
to TANF family members in some cases, universal ESL training is not a
statutorily mandated requirement.
Other Career Services
Comments: A commenter suggested that career services also should
include a pre-screening for eligibility for supportive services such as
the Children's Health Insurance Program (CHIP), SNAP, the Earned Income
Tax Credit, TANF, and transportation services alongside the initial
assessment of skill levels.
Departments' Response: Paragraph (a)(2) of Sec. 678.430 requires
that, along with intake, an orientation to the other services and
programs provided at the one-stop center must be given to participants,
and paragraph (a)(5) requires referrals to, and coordination of,
activities with other programs and services. The Departments have
determined that this strikes a balance between the burden on one
program's staff to be knowledgeable about other partner programs and
the benefit that this knowledge can be to participants. Requiring all
staff to do pre-screening for the programs identified by the commenter
would take time away from providing actual programmatic assistance to
participants, as well as delay other participants from receiving
services.
Comments: Other commenters requested additional guidance on the
initial assessment process. The commenters asked whether there is a
specific point in service delivery when initial assessments should be
provided to customers, what the vision and intent is of this
assessment, and how the assessment is to be used. Another commenter
asked whether there are any standardized tools to be used to conduct
this assessment.
Departments' Response: The Departments intend to issue joint
guidance on this subject in the near future.
Comments: One commenter said that the assessment should be tailored
to include an evaluation of women's ``interest and aptitude for higher-
wage, nontraditional careers.''
Departments' Response: The Departments have decided not to change
the regulatory text in response to this comment. The Departments
recognize the importance of placing women in higher-wage,
nontraditional careers, but note that local areas have discretion to
undertake such an evaluation as part of
[[Page 55886]]
the initial assessment of skill levels required in Sec. 678.430(a)(3).
Comments: A commenter recommended rewording paragraph (b)(1) of
Sec. 678.430 to state, ``Comprehensive and specialized assessments of
the skill levels, interests, values, aptitudes, and service needs of
adults and dislocated workers . . .''
Departments' Response: The Departments have decided not to change
the regulatory text in response to this comment. The assessment of
skill levels could very well include these elements, but the
Departments had determined that the inclusion of such elements is best
left up to the Local WDB and partners to decide, given that they are in
a position to adapt these processes to local area needs.
Comments: Another commenter suggested that these assessments should
include disability-related barriers to employment and the development
of an action plan to reduce these barriers, as well as information on
how to access common disability-related services. This commenter also
recommended that when to disclose a disability and how to request a
reasonable accommodation should be part of career counseling.
Departments' Response: Disability-related barriers to employment
and information on how to access disability-related services are
elements of the assessment process that the Departments encourage Local
WDBs and partner programs to implement, but the Departments have
decided not to change Sec. 678.430(b)(1) in response to the comment at
this time. The assessment process is meant to be molded to best fit a
local area's employment environment and the needs of the participants,
potential employers, and the community. Moreover, as written, Sec.
678.430(b)(1)(ii) specifically indicates that assessments may include
in-depth interviewing and evaluation to identify employment barriers,
which could include disability-related barriers.
Comments: A commenter expressed support for the inclusion of
financial literacy as an allowable activity. The commenter stated that
bundling financial education with workforce development leads to
improved employment and financial outcomes. Another commenter suggested
that there should be financial literacy programs specifically targeting
individuals with disabilities.
Departments' Response: The Departments agree with the commenter's
statements about the bundling of financial education with workforce
development. While the Departments have chosen not to change Sec.
678.430(b)(9) to specifically include financial literacy programs
targeting individuals with disabilities, the Departments encourage
Local WDBs to implement such plans as they determine are necessary to
meet the needs of a local area.
Comments: One commenter recommended that one-stop center partners
should work with local institutions to ensure that one-stop customers
are banked (e.g., have banking accounts) to reduce reliance on
predatory lending.
Departments' Response: The Departments recognize the need to combat
predatory lending and encourage Local WDBs to make such partnerships a
part of their financial literacy services programs. However, the
Departments decline to change the regulatory text to mandate such
relationships because they may not be appropriate for every local area.
The Local WDB is in the best position to determine if such a service is
needed in a particular local area.
Comments: Another commenter recommended that transportation should
be put in a separate paragraph to emphasize that transportation for
youth includes transportation to one-stop centers and work sites. The
commenter also suggested that referrals to organizations that assist
with housing, food, and obtaining identification documents should be
provided at one-stop centers.
Departments' Response: The provision of information about the
availability of, and the referral to, transportation provided through
TANF are included in WIOA sec.134(c)(2)(A)(1)(ix) and in Sec.
678.430(a)(9) as a career service. The commenter's recommendation about
transportation is adequately addressed in the regulatory provision as
drafted, and the Departments have decided that it is not necessary to
include it in a separate paragraph. The Departments have also
determined that Sec. 678.430(a)(9), requiring information and
referrals to be provided for other supportive services and assistance,
would encompass referrals to other services as suggested by the
commenter. While the list in the regulation does not specifically
mention some of these services, it is a non-exhaustive list. Local WDBs
are free to provide information and referrals to any supportive
services that they determine would benefit one-stop participants in a
local area.
Comments: Another commenter said that it might be confusing to
differentiate between basic and individualized career services.
Departments' Response: The Departments have decided to make a
distinction and separation between these terms. Basic services are
those made available to each individual who accesses a one-stop center,
while individualized services are those that are tailored to each
participant to best meet his or her needs.
Comments: A commenter suggested that if career services are
classified as ``pre-enrollment'' and ``required enrollment,'' Local
WDBs could determine the customer flow without having to worry about
cost issues.
Departments' Response: While the Departments have determined that
some career services are more appropriate for those in pre-enrollment
or those enrolled in a program, the Departments have determined that it
is best to leave this distinction to the Local WDBs, as they are in
better positions to recognize and respond to the needs of the local
area.
Comments: A couple of commenters stated that Sec. 678.430(a)
potentially conflicts with Sec. 678.305, and suggested that the
Departments rephrase it to read: ``Basic career services must be made
available in accordance with the methods outlined in Sec. 678.305, at
a minimum. . .''
Departments' Response: The Departments disagree, having found,
after examination of the text, no conflicting language or intent in
these two sections. No changes to the regulatory were made text in
response to this comment.
Comments: Another commenter suggested adding ``and recognized
postsecondary credentials'' to Sec. 678.430(a)(4)(i)(A) to place
additional emphasis on the benefits of such credentials.
Departments' Response: The Departments have not made such a change
in the regulatory text, but postsecondary credentials and their
importance in the employment environment of a local area will be
emphasized by title II and other educational programs.
Comments: One commenter expressed disagreement with Sec. 678.430,
asserting that it restricts what WIOA allows. The commenter recommended
that States should be permitted to develop guidelines to help local
areas determine how to deliver services.
Departments' Response: After consideration, the Departments have
not found this section to restrict WIOA's allowances and, in fact, the
Departments have determined that Sec. 678.430 is unrestrictive
regarding what services a one-stop center may provide to a local area.
The list of career services here are
[[Page 55887]]
required, but the list should not be read as excluding additional
career services that a Local WDB may decide the local area needs.
Nothing in this regulation prohibits States from developing guidelines
on the deliverance of services, and the Departments encourage States to
do so.
Comments: A few commenters requested guidance on how to deliver
career services when multiple one-stop partners might provide similar
services.
Departments' Response: The coordination among partners over which
partner or partners will provide a service at any particular one-stop
center or affiliated site is a subject that must be agreed upon and
described in the MOU.
Comments: A commenter asked for clarification on the definitions of
``group counseling'' and ``individual counseling.''
Departments' Response: ``Group counseling'' involves two or more
participants addressing certain issues, problems, or situations that
may be shared by the group members, while ``individual counseling'' is
a one-on-one session that may go into greater detail about a particular
participant's needs.
Comments: A few commenters recommended that States be given
flexibility in determining follow-up time frames and whether follow-up
services are appropriate.
Departments' Response: The 12-month time frame requirement for
follow-up services to be conducted is established by WIOA sec.
134(c)(2)(A)(iii). No change to the regulatory text was made in this
section in response to the comments.
Section 678.435 What are the business services provided through the
one-stop delivery system, and how are they provided?
The one-stop delivery system is intended to serve both job seekers
and businesses. Similar to job seekers, businesses should have access
to a truly one-stop experience in which high quality and professional
services are provided across partner programs in a seamless manner.
Labor markets are typically regional, but programs often design service
delivery strategies around State and local geographic boundaries.
Effective business services must be developed in a manner that supports
engagement of employers of all sizes in the context of both regional
and local economies, but should avoid burdening employers, for example,
with multiple uncoordinated points of contact. Section 678.435(a) lists
required business services. Section 678.435(b) States that local areas
have flexibility to provide services that meet the needs of area
businesses and must carry out these activities in accordance with
relevant statutory provisions.
Comments: A commenter encouraged the Departments to improve the
marketing of one-stop services to employers, because many employers
that could benefit substantially from these services are not aware that
there are one-stop services available to them.
Departments' Response: While the Departments encourage Local WDBs
and one-stop operators to increase efforts to reach out to local
business industries and sectors, and to form and foster these
relationships and partnerships is required by both the regulations in
the section and WIOA, the Departments have determined this is a
decision best left up to the Local WDBs. This will ensure that these
efforts can be customized to fit the particular employment environment
of the local area and remain malleable to the changing employment
landscape.
Comments: Several commenters recommended that employers be provided
with an individual liaison at the one-stop center.
Departments' Response: Individual liaisons can be an effective
mechanism for serving employers. However, each local one-stop center
should structure business services to best meet the needs of the
employers that they serve; the Departments decline to require that all
one-stop centers use this structure, although it may be a best practice
that should be encouraged. The Departments also note that the duties of
the one-stop operator under Sec. 678.620(a) may include the
coordination of service delivery by required one-stop partners and
service providers. This could reasonably include interacting with
employers on a regular basis to ensure that appropriate service
providers are meeting the employers' needs. For these reasons, no
change was made to the regulatory text concerning this topic. However,
the Departments will continue to engage with business customers to
determine the best ways to determine effectiveness in serving employers
and to improve those services continuously.
Comments: Several commenters recommended eliminating references to
sector partnerships in this section. The commenters asserted that it is
important to distinguish between developing and implementing sector
partnerships and simply providing career or training services to
employers in a particular industry. Further, the commenters said that
while sector partnerships are described as a required activity in Sec.
678.435(a), paragraph (c) describes sector partnerships as one of
several permissible activities that Local WDBs may undertake. The
commenters suggested that the Departments should revise the language to
state that Local WDBs should ensure that business services provided at
one-stop centers can support sector partnerships in local areas.
Departments' Response: The Departments view the development of
industry and sector partnerships as a critical business service that
local areas must explicitly provide as required by WIOA sec.
134(c)(1)(A)(v). Regarding the commenters' statements about Sec.
678.435(a) and (c), these paragraphs do not describe the same services.
Paragraph (a) refers to ``industry or sector partnerships,'' while
paragraph (c)(1) refers to ``industry sector strategies,'' which, as is
noted in the regulatory text, could include strategies involving
industry partnerships. Because these are separate services and not
references to the same or duplicative services, the Departments have
concluded that no change to the regulatory text is necessary. Moreover,
while it is important for business services provided through one-stop
centers to properly support industry sector partnerships, to change the
regulatory text to specify this could have the unintended consequence
of making this appear as a priority above providing these services to
non-partner employers that seek them out.
Comments: One commenter requested additional guidance regarding the
implementation of sector partnerships, particularly the role of the
convener (e.g., Local WDBs). Another commenter said that the limited
instructions in the NPRM regarding sector partnerships might indicate
that they are not a high priority and result in delayed implementation.
Departments' Response: The Departments have concluded that the
regulatory text does not indicate these sector partnerships are a low
priority, but rather the regulatory text indicates that the details of
how these partnerships are structured and operate are best left to
Local WDBs with agency guidance, as they are in a better position to
know the individual needs of a local area.
Comments: The Departments received a number of comments that
discussed the types of services that should be available to employers.
One commenter suggested that one-stop centers should be able to provide
services for employers interested in hiring individuals with
disabilities. Another commenter said that the list of services to
employers should be expanded to include services that are important for
[[Page 55888]]
hiring and retaining employees with disabilities, including
``information on work experience options and tax credits, assistance
and information on job accommodations and assistive technologies, and
disability awareness training.''
Departments' Response: The Departments have considered the
suggestions regarding the types of services that should be available to
employers, and have decided to amend the regulatory text to include
some, but not all, of the suggestions.
Business services related to job accommodations and assistive
technology for individuals with disabilities have been included at
Sec. 678.435(b)(4)(vi) to encourage not only these specific practices,
but also the provision of other disability hiring services and general
disability awareness. Information on local, State, and Federal tax
credits is already listed as a possible business service to be provided
under Sec. 678.435(c)(6). The Departments do not consider information
on work experience options, suggested by the commenter, as a business
service and have not added this to Sec. 678.435(c).
Comments: Another commenter also suggested including individuals
with disabilities in job fairs and customized recruitment events and
expanding the list of services to include assistance on legal
requirements and best practices around accommodating individuals with
disabilities.
Departments' Response: The Departments recognize the need to
provide access to these services. However, the Departments have
concluded not to make this addition to this section of the regulation
because the Departments have determined that this level of detail is
not necessary. All WIOA services are subject to the nondiscrimination
requirements of WIOA sec. 188 and its implementing regulations at 29
CFR part 38. Additionally, the Departments have made technical
assistance on holding effective and inclusive job fairs available and
will continue to provide guidance and resources regarding appropriate
accommodations.
Comments: A couple of commenters expressed support for Sec.
678.435 and suggested additional services to employers including
metrics, recordkeeping, and data analysis; affirmative action planning
and assistance with goal attainment; assessment of employer needs;
accessibility reviews; cultural awareness of specific disabilities;
mentoring; on-the-job evaluation; and disability management for
existing workforces. Another commenter said that businesses could use
assistance developing ``position descriptions'' to better define the
skills required for positions, as well as assistance locating
information on where certifications are awarded.
Departments' Response: While the Departments recognize the
advantages of providing these and other services, the Departments also
recognize that providing an all-encompassing list of possible business
services is an impossibility and would restrict creative thinking about
methods of service provision, the encouragement of which is at the
heart of WIOA. Because of this, the list of possible business services
in the regulation will remain a non-exhaustive list and the Departments
made no changes to the regulatory text in response to these comments.
Comments: One commenter recommended that the Departments should
clarify their use of the phrase ``labor laws'' to ensure that it is
clear this includes all Federal employment discrimination laws.
Departments' Response: The Departments recognize the need for
clarity in this language and have revised the regulatory text to
include employment and discrimination laws in Sec. 678.435(b)(4)(vii).
Comments: Another commenter suggested that Job Corps should be a
required partner in the sector partnerships required in Sec.
678.435(a).
Departments' Response: To fully support the development of sector-
based strategies, the Departments are providing States, local areas,
and regions with flexibility. The Departments strongly encourage that
sector partnerships include a variety of entities, including training
and education programs like Job Corps. Given the range of potential
partners and the variety of industries and career pathways that may be
included in a sector strategy, the Departments are not placing further
regulatory requirements around partnerships, but will encourage such
partnerships through guidance and technical assistance.
Comments: One commenter asked whether the services provided in
Sec. 678.435(b) but conducted by business intermediaries need to be
located in the one-stop centers.
Departments' Response: WIOA sec. 134(d)(1)(A) requires that
business services, which are listed as a permissible local employment
and training activity at WIOA sec. 134(d)(1)(A)(ix), be provided
through the one-stop delivery system. No change to the regulatory text
was made in response to this comment.
Comments: Another commenter recommended that the Departments
clarify in the regulations that it is an allowable activity for local
areas to provide business services and develop relationships with the
business community that will last beyond a change in one-stop operator
or career services provider.
Departments' Response: The Departments encourage Local WDBs to
develop strategies to establish and sustain lasting partnerships and
provision of business services. These business services may be provided
by the Local WDB or through effective business intermediaries working
in conjunction with the Local WDB, or through other public and private
entities in a manner determined appropriate by the Local WDB and in
cooperation with the State, consistent with Sec. 678.435(c). No change
has been made to this portion of the regulatory text in response to the
comment.
Section 678.440 When may a fee be charged for the business services in
this subpart?
WIOA allows customized employer-related services to be provided on
a fee-for-service basis. Section 678.440 clarifies that there is no
requirement that a fee-for-service be charged to employers. The Local
WDBs, however, should examine available resources and assets to
determine an appropriate cost structure. These Boards may also provide
such services for no fee. The regulatory text was revised to add
paragraph (d) to explain that fees earned are program income.
Comments: One commenter expressed support for this section as
proposed. Another commenter said that each program should be permitted
to determine whether to charge a fee, instead of the Local WDB making
that decision.
Departments' Response: After considering this comment, the
Departments have concluded that Local WDBs are in the best position to
determine what business services are needed in a local area and what
fee, if any, should be associated with the provision of these services.
The Departments encourage Local WDBs to consult with partner programs
when making such decisions, keeping in mind that any fees collected by
partners are program income allocable to partner programs in proportion
to the partner programs' participation in the activity. In this case,
program income must be expended by the partner in accordance with the
partner program's authorizing statute, implementing regulations, and
Federal cost principles identified in
[[Page 55889]]
Uniform Guidance to ensure consistency with program income disbursement
requirements. Additionally, the partner must consult its program
statute and grant requirements to determine which method to use when
disbursing program income as described in the Uniform Guidance at 2 CFR
200.307(e).
Comments: One commenter expressed concern that employer services
beyond the provision of no-charge services under the Wagner-Peyser Act
have not been discussed.
Departments' Response: Local WDBs are not limited to only those
business services discussed in this and other sections. They may also
provide other business services that meet the workforce investment
needs of area employers. If the Wagner-Peyser Act program provides
funds for a business service, a fee cannot be charged. The Departments
have concluded that the regulations sufficiently address business
services and will not modify the regulatory text in response to this
comment. Further joint guidance, however, will be released on this
topic.
Comments: A few commenters expressed concern about the prohibition
on charging a fee for certain services. These commenters asked whether
``appropriate recruitment and other business services on behalf of
employers'' includes activities such as career expos, job fairs, and
sector convening events. The commenters said that these events can be
quite costly, and suggested that this section state that no fee, above
a cost recovery fee, may be charged for services described in Sec.
678.435(a).
Departments' Response: Events such as career expos, job fairs, and
sector convening events are not subject to the prohibition on charging
fees as they are services provided under Sec. 678.435(b) and (c). For
example, Wagner-Peyser Act funds are used for general labor exchanges,
but these are limited to situations such as the use of a job board.
These larger events are more tailored for employers, for which fee-for-
service is allowed. WIOA sec. 134(d)(1)(A)(ix) discusses activities to
promote business services and strategies to meet workforce needs of
employers, which may be provided on a fee-for-service basis.
4. Memorandum of Understanding for the One-Stop Delivery System (20 CFR
Part 678, Subpart C; 34 CFR 361.500 Through 361.510; 34 CFR 463.500
Through 463.510)
This subpart describes the requirements for the MOU between the
Local WDB, CEO, and the one-stop partners relating to the operation of
the one-stop delivery system in the local area. The Local WDB acts as
the convener of MOU negotiations and shapes how local one-stop services
are delivered. One comment concerning the extension of existing MOUs to
cover one-stop operations in PY 2016 was very pertinent and, as
explained below, helped inform the Departments' decision on the
implementation of the State funding mechanism, although this decision
did not affect the regulatory language in subpart C. As explained in
greater detail below, the Departments promulgate this subpart with no
substantive changes.
Comments: A commenter suggested that Governors should be permitted
to opt out of the MOU requirement if a comparable mechanism already
exists and achieves the desired results.
Departments' Response: While the Departments recognize that
existing mechanisms may already be in place in many States and local
areas, bypassing the WIOA MOU process is not an option, because partner
participation in the MOU is required by WIOA sec. 121(b)(1)(A)(iii).
Any existing mechanisms will need to be supplanted by the WIOA MOU
mechanism.
Section 678.500 What is the Memorandum of Understanding for the one-
stop delivery system and what must be included in the Memorandum of
Understanding?
Section 678.500 describes what must be included in the MOU 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.
Comments: A commenter recommended allowing existing MOUs in place
under WIA to extend for the first program year of WIOA to acknowledge
the unlikelihood of negotiating MOUs before the deadline.
Departments' Response: The Departments note the first year of
implementation for WIOA MOU provisions was PY 2015 (July 1, 2015 to
June 30, 2016), which concluded prior to the effective date of these
regulations.
Comments: A commenter asked who specifically is supposed to write
the MOU and wondered whether they can trust Local WDBs to write their
own agreements.
Departments' Response: Neither WIOA nor the regulations address
which entity writes the MOU, but Sec. 678.500(a) specifies that the
MOU must be a ``product of local discussion and negotiation'' among the
Local WDB, chief elected official, and the one-stop partners,'' who all
must sign it, according to paragraph (d), and which must include
procedures for amending and reviewing it, according to paragraphs
(b)(5) and (6). The Departments have determined that these provisions,
and those in Sec. 678.510, include adequate safeguards for the
drafting of the MOUs, and that specifying a single entity to draft the
MOU would be too prescriptive.
Comments: A commenter asked, for single-area States, if the State
WDB assumes the MOU negotiation responsibilities, or whether the
Governor/mayor assumes these responsibilities.
Departments' Response: WIOA and the regulations do not assign
negotiation responsibilities to a single party, and the regulations
specify the joint nature of the responsibility among the parties.
Therefore, no specific governmental entity is required by these
regulations to assume MOU negotiation responsibilities, in single-area
States.
Comments: A few commenters supported the inclusion of provisions in
this section that would allow one-stop partners to share client data
through MOUs and confidentiality agreements.
Departments' Response: WIOA and the regulations are silent on the
inclusion of data sharing agreements in the MOU, but the Departments
have concluded that the MOU may include such agreements, consistent
with all applicable laws and regulations including 34 CFR 361.38
(covering VR program privacy safeguards). No change to the regulatory
text was made in response to these comments.
Comments: A commenter said that the regulations should clarify that
MOUs must be in accordance with 34 CFR 361.38.
Departments' Response: The Departments agree; MOUs must not contain
any provisions that violate the requirements of 34 CFR 361.38, which
covers the protection, use, and release of personal information within
the VR program. This applies specifically to Sec. 678.500(b)(3), which
requires that MOUs include methods for referring individuals between
the one-stop operators and partners for appropriate services and
activities, as there are specific guidelines to be followed in 34 CFR
361.38(e) regarding the release of participating individuals'
information. As there are no specific requirements applying to the
sharing of information, but rather only a requirement that the MOU
provide the method of referrals from one partner program to another
partner program, the Departments are not referencing the requirements
of 34 CFR 361.38 in the regulatory text,
[[Page 55890]]
although such requirements will be mentioned in guidance released to
aid in the implementation of the one-stop delivery system.
Comments: Another commenter said that the MOU should include a
specific process to ensure individuals are screened to determine the
best set of services to receive at the one-stop center.
Departments' Response: The Departments agree that individuals
should receive the services that best meet their needs, but do not
agree that the regulations should prescribe a screening process,
especially given WIOA's movement away from the sequential delivery of
services provided under WIA. The Departments will address this issue in
guidance, if necessary, and through technical assistance.
Comments: A few commenters requested additional guidance on MOU
requirements, including whether the MOU should address partnerships
that do not involve financial commitments, like housing agencies.
Departments' Response: All one-stop partners must be signatories to
an MOU, and all must use a portion of their funds to maintain the one-
stop delivery system including their proportionate share of one-stop
infrastructure costs, whether this is through cash contributions, non-
cash contributions, or third-party in-kind contributions. These
requirements are covered in much greater detail in subpart E of this
part.
Section 678.505 Is there a single Memorandum of Understanding for the
local area, or must there be different Memoranda of Understanding
between the Local Workforce Development Board and each partner?
Section 678.505 establishes that a Local WDB and one-stop partners
may develop a single ``umbrella'' MOU that applies to all partners, or
develop separate agreements between the Local WDB and each partner or
groups of partners. Under either approach, the MOU requirements
described in Sec. 678.500 apply. The Departments encourage States and
local areas to use ``umbrella'' MOUs to facilitate transparent,
flexible agreements that are not burdensome so that partners may focus
upon service delivery.
Comments: One commenter expressed support for the option to utilize
an umbrella MOU or individual MOUs with each partner. Another commenter
agreed that the umbrella MOU is the best approach, and said that MOUs
for all local areas should be in a consistent format. In addition, a
commenter asserted that WIOA sec. 121(c)(1) requires each Local WDB to
enter into one MOU with all of the partners.
Departments' Response: The Departments interpret sec. 121(c)(1) as
permitting a single umbrella MOU that encompasses all partner programs,
and the Departments encourage the use of such MOUs, but they are not
required. No change to the regulatory text was made in response to this
comment. The Departments will provide suggestions about the MOU in
guidance and through technical assistance. However, because the MOU is
the product of local discussion and negotiation developed by the Local
WDB, with the agreement of the chief elected official and the local
one-stop partners, which relates solely to the operation of the one-
stop delivery system in that particular local area, the determination
of an MOU's format is best left to the Local WDBs, as long as the MOU
meets the requirements outlined in Sec. 678.500 and any requirements
mandated by the State.
Comments: A different commenter expressed opposition to umbrella
MOUs, saying that they will result in inaccurate cost allocations and
inappropriate service delivery decisions.
Departments' Response: The Departments have determined that there
is no reason why umbrella MOUs will be less effective than multiple
MOUs in addressing cost allocation and service delivery decisions in
most situations. No change to the regulatory text was made in response
to this comment.
Comments: A commenter remarked that statewide organizations, such
as VR, could have to enter into several dozen MOUs to cover all local
areas.
Departments' Response: This is correct. Any program that is a
partner in a one-stop center, whether they are a partner in one or
more, must sign an MOU with the appropriate Local WDB.
Comments: A commenter suggested that the State WDB and any
statewide partners negotiate on a ``mandatory agreement template'' that
can be used by Local WDBs in their MOUs with these statewide agencies.
Another commenter agreed and supported the development of a standard
MOU for use with all Local WDBs.
Departments' Response: While there is nothing to preclude the use
of such a strategy, the Departments have determined not to require,
encourage, or discourage such a method in order to leave the MOU
mechanism as flexible and adaptable to local area situations as
possible.
Comments: A commenter said that partner programs operating outside
of the workforce area (e.g., INA programs, Job Corps) should not be
required to sign MOUs. Rather, the commenter said, these programs
should commit to taking referrals from local areas and vice versa.
Departments' Response: If a program is a required one-stop partner
under WIOA sec. 121(b)(1) and the corresponding regulations found in
subpart B of this part, then that program must sign an MOU with the
Local WDB for each local area where it is a partner. According to WIOA
sec. 121(b)(1)(A), required partners are limited to those entities that
carry out programs or activities in a local area. Likewise, if a
program is not required to be a partner but is approved by the Local
WDB and CEO as an additional partner, that partner program must sign
the respective MOU. The Departments have determined that, as this is
required by WIOA, no changes to the regulatory text regarding what
entities are required to sign MOUs are necessary.
Section 678.510 How must the Memorandum of Understanding be negotiated?
Section 678.510 describes the collaborative and good-faith approach
Local WDBs and partners are expected to use to negotiate MOUs. ``Good-
faith'' negotiations may include fully and repeatedly engaging
partners, transparently sharing information, and maintaining a shared
focus on the needs of the customer. Section 678.510(a) allows Local
WDBs, CEOs, and partners to request assistance from a State agency
responsible for the program, the Governor, State WDB, or other
appropriate parties when negotiating the MOU. The Departments
acknowledge that additional guidance and technical assistance will be
needed on MOU requirements and negotiating infrastructure funding
agreements. The Departments will issue guidance on this topic. Ongoing
technical assistance will be made available to the public workforce
system as well.
5. One-Stop Operators (20 CFR Part 678, Subpart D; 34 CFR 361.600
Through 361.635; 34 CFR 463.600 Through 463.635)
This subpart addresses the role and selection of one-stop
operators. Unlike the other subparts in this Joint WIOA Final Rule,
this subpart is administered primarily by DOL. DOL and ED agreed that
the subpart should remain in this part of the Joint Rule, so that all
of the subparts having to do with one-stop requirements are together.
However, unlike the rest of part 678, this portion of the preamble
refers mainly to DOL. For this reason, any reference to ``the
[[Page 55891]]
Department'' throughout this subpart D discussion is a reference to
DOL.
Comments: As noted, the Department received and evaluated numerous
public comments on this topic. Several commenters expressed support for
the Department's proposal to require competition for one-stop
operators, primarily on the grounds that competition leads to better
services and outcomes for job seekers. Others raised concerns, as
detailed below.
Department's Response: It is the conclusion of the Department that
the requirement to use a competitive process for the selection of the
one-stop operator is required by statute, as is the requirement for
continuous improvement through evaluation of operator performance and
regularly scheduled competitions. Competition is intended to promote
efficiency and effectiveness of the one-stop operator by regularly
examining performance and costs. The Department recognizes the
challenges associated with competitive selection, including the
additional costs such a process carries with it, the statutory
requirement for a competitive process is clear. Additionally,
competitive procurement processes are not uncommon in State and local
government, and the Department encourages the consideration of methods
used by other State and local government entities in streamlining their
own process, as well as consideration of State and local procurement
laws and the Uniform Guidance. Even with such a reference, however,
additional guidance and technical assistance will be needed on MOU
requirements and negotiating infrastructure funding agreements. Ongoing
guidance and technical assistance will be made available to all parts
of the public workforce system as well.
Section 121(d)(2)(A) of WIOA only allows for selection of a one-
stop operator through a competitive process. This subpart uses the term
``selection'' of one-stop operator through a competitive process,
rather than ``designation'' or ``certification'' to avoid confusion.
The competitive process established by this subpart requires States to
follow the same policies and procedures they use for procurement from
non-Federal funds as allowed under the Uniform Guidance at 2 CFR
200.317. All other non-Federal entities, including subrecipients of a
State (such as local areas), are required to use a competitive process
based on the procurement standards in the Uniform Guidance set out at 2
CFR 200.318 through 200.326.
Unlike under WIA, there is no ``designation'' or ``certification,''
separate from the competitive selection requirements, of any entity as
a one-stop operator, including a Local WDB. For Local WDBs, WIOA
imposes an additional step beyond the competitive selection. Section
107(g)(2) of WIOA states that a Local WDB may be designated or
certified as a one-stop operator only with the agreement of the CEO in
the local area and the Governor. DOL interprets this provision to
create an additional requirement for situations in which a Local WDB is
selected to be a one-stop operator through the competitive process as
required under WIOA sec. 121(d)(2)(A) and as described in this subpart
at Sec. 678.605(c). In situations in which the outcome of the
competitive selection process is the selection of the Local WDB itself
as the one-stop operator, WIOA sec.107(g)(2) requires that the Governor
and CEO approve the selection.
The DOL received many public comments regarding the impact of
competition on local services. In response to these comments, changes
were made to Sec. 678.605, simplifying the language regarding the
procedures to be followed in conducting a one-stop operator selection
competition. Some minor changes were also made to Sec. Sec. 678.620
and 678.635 for clarity and consistency.
Section 678.600 Who may operate one-stop centers?
Sections 678.600(a) through (d) describe who may operate a one-stop
center. As stated in paragraph (a), WIOA allows a one-stop operator to
be a single eligible entity or a consortium of entities. Consortia,
like single entities, must be selected through a competitive process.
Eligible entities identified in WIOA sec. 121(d)(2)(B). Section
678.600(c)(6) clarifies that a Local WDB, with the approval of the
chief elected official and the Governor, may serve as the one-stop
operator. Section 678.600(c)(7) clarifies that another interested
organization or entity, which is capable of carrying out the duties of
the one-stop operator, may serve as the one-stop operator. Section
678.600(d) repeats the requirement in sec. 121(d)(3) of WIOA that
elementary schools and secondary schools are not eligible to be one-
stop operators; however, nontraditional public secondary schools such
as night schools, adult schools, or area career and technical education
schools are eligible to be operators.
Section 678.600 states that a one-stop operator may be a single
entity or a consortium of entities, and that if a consortium consists
of one-stop partners, it must include a minimum of three of the one-
stop partners described in Sec. 678.400.
Comments: One commenter stated that these two provisions of Sec.
678.600(a), when taken together, do not make clear whether a single
one-stop partner may be a one-stop operator. The commenter further
stated that a one-stop operator may be a single one-stop partner, based
on WIOA's intent and current practice, but requested that the
regulations clarify this point.
Department's Response: The commenter is correct in that a single
one-stop partner may serve as a one-stop operator. Paragraph (c) of
Sec. 678.600 lists the types of entities that may be selected as the
one-stop operator. This repeats the eligible entities from WIOA sec.
121(d)(2)(B), adding paragraph (c)(6) which states that a Local WDB,
with the approval of the CEO and the Governor, may serve as a one-stop
operator. Paragraph (c)(7) states that an interested organization of
any other type that is capable of carrying out the duties of one-stop
operator may serve as the operator. A single entity that is also a one-
stop partner may serve as operator, but in cases where more than one
partner form a consortia to serve as operator, WIOA requires that the
consortia contain a minimum of at least three one-stop partners. The
Department declines to make any substantive change to the regulatory
text and will be issuing guidance on this topic, as well as for
competition for one-stop operators.
Comments: A few commenters requested clarification on the phrase,
``practices that create disincentives to providing services to
individuals with barriers to employment that may require longer-term
career and training services.'' Paragraph (e)(2) requires that State
and Local WDBs ensure that one-stop operators do not establish
practices that create disincentives to providing services to
individuals with barriers to employment who may require longer-term
career and training services. One commenter specifically recommended
that one such practice that should be ``barred'' is sending older
workers to self-service or the Senior Community Services Employment
Program, both of which would prevent those workers from being counted
in performance evaluations.
Department's Response: The Departments have reiterated throughout
the proposed regulations that all individuals with barriers to
employment must be fairly evaluated for services, and services are to
be made available and accessible in an equitable manner throughout the
one-stop delivery system. Local WDBs must ensure that
[[Page 55892]]
one-stop operators do not create barriers that limit services to such
individuals. WIOA sec. 188 and the corresponding regulations provide
guidance on such issues for protected classes.
Comments: A few commenters expressed concern about the selection of
certain entities as one-stop operators. For example, one commenter
expressed concern that private entity management would not be efficient
or cost-effective for rural areas. Further, the commenter stated that a
private entity could have difficulty providing quality service to rural
areas due to inadequate expertise, models, or knowledge of living and
working in such areas.
Department's Response: The final regulations guard against the
concerns expressed by the commenters. Section 678.605 requires that the
Local WDB is to make the ultimate selection of the one-stop operator
based on the principles of full and open competition. A sound
competitive process will objectively evaluate bidders' proposals on
factors that may consider costs and the ability to meet the needs of
the local area.
Comments: A commenter expressed concern that partner infrastructure
and one-stop operating costs could be impacted by the profit motivation
of a private for-profit entity acting as a one-stop operator.
Department's Response: The Department does not share this concern.
Procurement standards under the Uniform Guidance at 2 CFR 200.323(b),
require that profit must be negotiated separately from the price in
addition to a cost analysis and/or price analysis. Records documenting
or detailing the procurement history including the negotiation and
analysis of profit must be maintained by all entities (2 CFR
300.318(h)(i)). This provides transparency in the actual operating
costs versus profits for any entity, including for-profit entities,
selected under a competitive procurement. Section 683.295 of the DOL
WIOA Final Rule addresses the earning of profit. WIOA allows private
for-profit entities to be one-stop operators (sec. 121(d)(2)(B)(iv));
therefore, the regulations are consistent with WIOA.
Private for-profit entities also are required to adhere to the
Uniform Guidance at 2 CFR part 200. DOL's adoption of the Uniform
Guidance at 2 CFR 2900.2 expands the definition of `non-Federal entity'
to include `for-profit' and `foreign' entities. As such, any private
for-profit entity that is a direct grant recipient or subrecipient of a
DOL award must adhere to the Uniform Guidance.
Comments: A commenter urged the Departments to provide maximum
flexibility and more defined authority to State WDBs to select the one-
stop operator. Additionally, the commenter asked what it means to be an
operator, how the operator will be paid, and how firewalls and
conflicts of interest are defined.
Department's Response: These final regulations provide maximum
flexibility to States and local areas in selecting one-stop operators
for the one-stop delivery system as long as the competitive process is
consistent with the Uniform Guidance at 2 CFR part 200 and/or with
State procurement policies. WIOA sec. 121(d)(1) states that Local WDBs
select the one-stop operator, but they must have the agreement of the
CEO. Governors and CEOs must concur in cases where the Local WDB acts
as the operator itself. In single-area States, the State WDB fulfills
the requirements of a Local WDB by selecting the one-stop operator. A
competitive selection process creates a level playing field where
applicants must propose how to respond to the unique needs and
requirements set forth by the Local WDB. Competition is the most
effective way to ensure that providers can effectively and efficiently
serve as one-stop operators. No changes to the regulatory text were
made in response to this comment.
Regarding the role of a one-stop operator, Sec. 678.620(a) only
requires that the one-stop operator must coordinate the service
delivery of required one-stop partners and service providers. A
nonexclusive list of other roles that can be assigned to the one-stop
operator also exists in paragraph (a) of Sec. 678.620, but the
assignment of these or other roles is always at the discretion of the
Local WDB.
Comments: One commenter requested clarity regarding who may approve
the Local WDB serving as the one-stop operator when the CEO and the
Governor are the same individual.
Department's Response: The comment appears to be addressing
concerns about the treatment of single-area States. In single-area
States and outlying areas where the CEO and Governor are the same
individual, the Governor approves the designation of the Local WDB as
one-stop operator after the completion of a competitive process. Single
area States will follow their own procurement policies per the Uniform
Guidance at 2 CFR 200.317. State procurement policies may include
additional procurement methods beyond those included in the Uniform
Guidance or may allow for a non-competitive selection of a government
entity. In cases where there is no competition, the State and State WDB
must work together to establish necessary internal controls and
firewalls to provide the public with assurances that although a
competitive process is not conducted, there is no conflict of interest.
The Department will be issuing guidance on this topic and will follow
the issuance of guidance with technical assistance.
As stated above, the competitive process applies to both State and
locally operated one-stop delivery systems; WIOA is clear that neither
Governors nor State WDBs have the sole authority to designate one-stop
operators, except under the conditions of a sole source method of
procurement as stated in WIOA sec. 123(b). States are expected to
conduct a competitive process for the selection of a one-stop operator,
with appropriate protections from conflict of interest, per the State's
own procurement policies and procedures.
Section 678.605 How is the one-stop operator selected?
Comments on the Proposed Competition Process
DOL examined the comments received and reviewed the statutory
provisions upon which this section is based. WIOA made significant
changes to the requirements regarding the selection of one-stop
operators. As noted in the preamble to the NPRM, unlike the situation
under WIA, WIOA sec. 121(d)(2)(A) only allows selection of a one-stop
operation to be made through a competitive process.
Comments: A number of commenters generally questioned the
complexities and specificities of the process described in the NPRM.
Department's Response: After considering those comments, the
Department has revised the regulatory text by deleting much of the
specific contract-related language in the proposed regulations as
applied to non-Federal entities other than States. The language now
more generally requires that those entities follow the competitive
process in accordance with local policies and procedures and the
principles of competitive procurement in the Uniform Guidance at 2 CFR
200.318 through 200.326. This provides maximum flexibility in
implementing the competition requirement. Furthermore, as noted in
revised paragraph (c) of Sec. 678.605, any reference to
``noncompetitive proposals'' in the Uniform Guidance should be read as
``sole source selection'' for the purposes of Sec. 678.605(c).
[[Page 55893]]
The competitive selection process permits more than one method of
procurement, and procurement options are outlined in the Uniform
Guidance at 2 CFR 300.320. Discussions based on comments made evident
that there are many different methods of procurement used appropriately
throughout the public workforce system. Moreover, such methods are
generally based on the Uniform Guidance when Federal funds are
involved. The Department has determined that it is unnecessary to be
overly prescriptive in defining the methods of procurement in these
regulations. It is the intention of the Department to provide extensive
guidance and technical assistance on acceptable methods of procurement,
using the Uniform Guidance as a basis. The Department responds to
specific substantive public comments on this topic in the remainder of
this Final Rule preamble section.
Comments: Many commenters suggested that existing one-stop
operators that are performing well should be grandfathered into WIOA
and permitted to continue operating without competitive procurement,
which would reduce the burden of the competitive process and ensure
continued system stability during the transition to WIOA. Some of the
commenters further recommended that Local WDBs and CEOs should have the
authority to waive the competitive procurement process after 4 years
based on performance and accountability and only conduct a competitive
procurement if their evaluations determine it is warranted.
Department's Response: The requirement in WIOA to use a competitive
process for the selection of the one-stop operator is an unequivocal
statutory requirement, which is clearly set out in WIOA sec.
121(d)(2)(A). Because of this statutory requirement, the competitive
selection process for one-stop operators in all local areas cannot be
waived. No changes to the regulatory text were made in response to
these comments. Past performance, however, is an evaluation factor that
may be considered in the competitive process, potentially giving weight
to those bidders demonstrating successful performance as a one-stop
operator.
Comments: A commenter stated that requiring competitive procurement
for its one-stop operators would be detrimental to the State's
workforce because any new operator would have to invest in new
infrastructure, which would take time and money away from implementing
programs. Further, this commenter stated that the existing State
employees, who are unionized, could be laid off if new operators were
selected.
Department's Response: Costs and burdens placed on the one-stop
delivery system by the selection of a new one-stop operator is one of
many factors that may be taken into account by a Local WDB or State WDB
under the terms of the competitive selection process. Other factors may
include, but are not limited to, performance results, performance
results by targeted population, certification results, and price.
Single-area States will follow their own procurement process per the
Uniform Guidance at 2 CFR 200.317. State procurement policies may
include additional procurement methods beyond those included in the
Uniform Guidance, including sole source procurement. In appropriate
instances, the State and State WDB must work together to establish
necessary internal controls and firewalls to provide the public with
assurances that there are no conflicts of interest. Further, the
Department hopes that any disruption to existing public workforce
system employees will be limited under the new competitive procurement
policies. However, the Department is also confident that the intent of
Congress in these provisions was to increase competition among the
publicly funded WIOA programs. The implications of collective
bargaining agreements will have to be taken into consideration within
the provisions of State or Federal procurement and other legal
requirements. As such, no changes were made to the regulatory text in
response to this comment.
Comments: A few commenters suggested that sole sourcing should be
permitted when a public agency is selected as the one-stop operator,
reasoning that a competitive process would disrupt delivery of
workforce services to job seekers and employers. Another commenter
urged that rural areas should be exempt from the competitive process,
while a different commenter recommended that single-area States should
be exempt from the competitive process.
Department's Response: As stated above, sole source selection is
allowable as long as the situation falls within the guidelines and
requisite conditions of State and local procurement policies and
procedures and the conditions outlined in the Uniform Guidance. The
Local WDB must be able to demonstrate that it conducted sufficient
market research and outreach to justify sole source selection. No
change to the regulatory text was made in response to these comments.
Comments: Some commenters stated that requiring a competitive
process would divert resources away from delivery of services.
Department's Response: While the Department recognizes the
challenges associated with competitive selection, including the
additional costs, the statutory requirement for a competitive process
for selection of a one-stop operator is clear. Additionally,
competitive procurement processes are not uncommon in State and local
government, and the Department encourages the consideration of methods
used by other State and local government entities in streamlining their
own processes, as well as State and local procurement laws and the
Uniform Guidance. No change was made to the regulatory text in response
to these comments.
Comments: A commenter recommended that the regulations permit Local
WDB personnel to staff one-stop operators and service providers, with
the agreement of the CEO and Governor, which would provide more
flexibility to the CEO to determine the most efficient and effective
one-stop delivery system for their area.
Department's Response: The Department has determined that such
staffing is allowable, as long as the Local WDB is selected in
accordance with the requirements of the regulations and proper
firewalls are in place. As the commenter noted, in such circumstances
the agreement of the Governor and CEO is required as an additional step
in the approval of the Board as the one-stop operator.
Comments: One commenter recommended that if there is no cost
associated with the selection of a consortium as a one-stop operator,
there should be no competition.
Department's Response: As noted, WIOA imposes the requirement of a
competitive process. The fact that a particular entity, such as the
consortium mentioned by the commenter, would be at no cost, however,
might be taken into account by the Local WDB under the terms of the
selection.
Comments: Several commenters disagreed with the Department's
interpretation of the relationship between WIOA secs. 107(g)(2) and
121(d)(2)(A). The commenters asserted that WIOA sec. 107(g)(2), which
states that a Local WDB may be designated or certified as a one-stop
operator only with the agreement of the CEO and the Governor, is a
separate and unrelated provision from WIOA sec. 121(d)(2)(A), which
requires a competitive selection process for the one-stop operator.
They
[[Page 55894]]
suggested that a Local WDB can be designated as a one-stop operator
solely under WIOA sec. 107(g)(2), without having to undergo the
competitive process described in WIOA sec. 121(d)(2)(A).
Department's Response: The Departments received and evaluated
numerous public comments on this topic. It is the conclusion of the
Departments that the requirement to use a competitive process for the
selection of the one-stop operator is required by statute, as is the
requirement for continuous improvement through evaluation of operator
performance and regularly scheduled competitions. Competition is
intended to promote efficiency and effectiveness of the one-stop
operator by regularly examining performance and costs.
The relationship between these two provisions of WIOA was duly
noted and considered by the Departments. After extensive consideration,
the Departments have not changed their interpretation of the
relationship between WIOA secs. 107(g)(2) and 121(d)(2)(A) as providing
that a Local WDB may be designated or certified as a one-stop operator,
with the agreement of the CEO and the Governor, only after being
selected through a competitive process for the one-stop operator. In
the Departments' view, the two provisions read together implement
Congress' emphasis on increasing competition among the publicly funded
WIOA programs, while also giving the CEO and the Governor the
flexibility to approve the competitive selection of a Local WDB as a
one-stop operator. The Departments read sec. 121(d)(2)(A) as
establishing the governing requirement for competitive selection of
one-stop operators with sec. 107(g)(2) imposing an additional
requirement when the competitive process results in the selection of
the Local WDB. No change to the regulatory text was made in response to
these comments.
Comments: A few commenters also stated that the Governor should
have the authority to designate the one-stop operator in single-area
States or States that have a statewide planning region.
Department's Response: All areas, even single-area States, must use
a competitive process to determine the one-stop operator by following
the Uniform Guidance and State procurement procedures. Sole source
selection is available but only if the applicable conditions exist
under the State procurement policies and procedures. No change to the
regulatory text was made in response to these comments.
Comments: One commenter also recommended that the Department
establish a workgroup of single-area States to provide advice for the
Final Rule.
Department's Response: Because of the extensive participation of
stakeholders, including single-area States and representatives of State
governments in the development of the NPRM and in the opportunity to
comment on the NPRM before issuance of this Final Rule, the Department
determined that it is not necessary to establish a separate workgroup,
although workgroups aimed at serving other purposes may still be
established.
Comments: Several commenters described potential issues that could
arise from a mandate for competitive procurements. They said that there
could be: (1) Issues with organized labor representing local workers;
(2) delays in service due to staff time being spent on the procurement
process; (3) CEOs, who have liability for funding who are unable to
choose the best solution for their local area; and (4) loss of local
control. A few commenters suggested that requiring competition would
increase the liability of the CEO, contribute to loss of local control,
and increase the overall cost of operation by dismantling existing,
efficient systems that utilize leveraged funding.
Department's Response: The Department is required by WIOA sec.
121(d)(2)(A) to mandate competitive selection of one-stop operators and
cannot waive that requirement. Local WDBs should evaluate risk during
all stages of the competitive selection process. Leveraged funding or a
pledge for matching funds may be considered as a scoring factor when
evaluating bidders' proposals for one-stop operator selection, if the
solicitation describes how such scoring will be awarded. By following
the Uniform Guidance, any such liability of CEOs is mitigated by
corresponding protections in the eventual contract. Additionally, the
Department encourages Local WDBs to work with local partners and one-
stop operators to use innovative and creative ways of mitigating these
issues. No change to the regulatory text was made in response to these
comments.
Comments: A commenter remarked that while there are likely
situations in which there is cause to procure one-stop operators
competitively, it is not always the case that Local WDBs are unable to
oversee the local workforce system while also serving as the one-stop
operator.
Department's Response: The Department agrees, as did Congress. WIOA
allows Local WDBs to serve as a one-stop operator with the concurrence
of the CEO and the Governor, if the Board is selected under a
competitive process as provided in the Final Rule. No change to the
regulatory text was made in response to this comment.
Comments: A few commenters asked for clarification on whether the
rule for competitive bidding is applied only at the regional or State
sub-area level (such as a workforce development area), or if it also
applies to operators who are site managers of one-stop sites.
Department's Response: The requirements for the competitive
selection of one-stop operators under WIOA would apply only to those
procurements carried out by State or Local WDBs. All direct grant
recipients and subrecipients of a Federal award must adhere to the
procurement standards found in the Uniform Guidance. No change to the
regulatory text was made in response to these comments.
Comments: Several commenters expressed concerns about the financial
impact of requiring Local WDBs to conduct competitive procurements, as
this would be a new cost that could significantly impact limits on
administrative costs. A few commenters also asserted that the proposed
process of essentially vetting possible candidates prior to issuing a
RFP is costly and repetitive. Some commenters said that having a one-
stop operator at all is not cost effective.
Department's Response: The Department recognizes that there is a
cost burden associated with conducting competitive procurements. Both
WIOA and the Uniform Guidance encourage efficiencies in administrative
operations through streamlining of services or building from an
existing network of services. To the maximum extent practical, the
Department encourages States and local areas to leverage their
administrative support for procurement to reduce burden.
Comments: A few commenters stated that Congress was intentional in
requiring one-stop operators to be selected through a competitive
process. These commenters suggested that the Final Rule should not
allow contracts to be awarded to entities who then subcontract the work
back to State or local agencies on a noncompetitive basis.
Department's Response: The Department agrees that the requirement
of using a competitive process for the selection of the one-stop
operator cannot be subverted by subcontracting the position of one-stop
operator on a noncompetitive basis. By aligning the one-stop operator
competitive process
[[Page 55895]]
with the procurement requirements in the Uniform Guidance, there are
stringent conflicts of interest and documentation requirements that
will also apply to one-stop operator competitions. The Uniform Guidance
requirements also apply to the award of subcontracts. Application of
the Uniform Guidance requirements will ensure the integrity of the
process. For this reason, the Department sees no need to change the
regulatory language in response to this comment.
Comments: A few commenters also said that the regulations should
clarify that one-stop service providers must also be competitively
procured. One commenter recommended that the final regulations should
ensure that either the adult and dislocated worker service provider is
also required to perform the responsibilities of the one-stop operator,
and the Local WDB must hold a competition to procure a provider to fill
this mixed role; or, if operator and service provider contracts are bid
separately, an entity must be allowed to compete for and perform both
roles. The commenter went on to recommend that Local WDBs should be
required to bid every contract competitively, or request letters of
intent at a minimum, and only select an operator through a
noncompetitive method if there are no qualified candidates.
Department's Response: The competitive processes outlined in the
Uniform Guidance are applicable to procurement transactions with a
contractor and not to a sub-awardee such as an adult or dislocated
workers service provider. It is when WIOA requires competitive
procurement process such as with the one-stop operators and youth
service providers that States and Local WDBs must adhere to such
requirements.
Comments: A commenter stated that there are competitive selection
processes available other than those listed in the proposed
regulations. The commenter suggested that invitations to negotiate,
professional services solicitations, and other approaches that
emphasize performance over price should be considered. Another
commenter requested clarity regarding whether ``competitive process''
requires an RFP. They recommended that ``competitive process'' be
defined to include all methods permitted under State procurement laws.
Department's Response: The commenters are correct in stating that a
variety of competitive selection processes exist within approved
procurement practices. As a result, the regulatory text has been
changed from what was proposed in the NPRM to allow for greater
flexibility in defining the competitive process to be followed by non-
Federal entities other than States. The regulations now state that
where States are engaging in a competitive process, competitions should
be based on the State procurement policies as defined in State
administrative procedures and should be the same process used for
procurement with non-Federal funds. The policies and procedures may
encompass many of the areas suggested by the commenters. The
regulations also state that where local areas or Local WDBs are
engaging in a competitive process, competitions should be based on the
local procurement policies as defined in local administrative
procedures that must be consistent with all provisions of the Uniform
Guidance. The policies and procedures may encompass many of the areas
suggested by the commenters. All other entity types follow the Uniform
Guidance requirements for procurement, which also contain flexibility
in procurement methods, as well as the type of contract vehicle used.
For example, the Uniform Guidance does permit sole source as a method
of procurement under certain conditions. It was determined to be
unnecessary for the Department to be overly prescriptive in defining
the methods of procurement in these regulations.
The Department has determined that this approach provides
sufficient flexibility to enable a range of operators, including
current one-stop operators, State agencies, Local WDBs, or consortia of
required partners to be selected under a competitive process as one-
stop operators.
Comments: Another commenter asked for clarification on whether
``selection'' is the same as ``procurement,'' and whether the selection
of a one-stop operator is always ``procurement,'' and which parts of
the Uniform Guidance apply to such a selection process.
Department's Response: While selection is typically understood as
being a part of the procurement process--which typically goes through a
series of phases that may include planning, evaluation, negotiation,
selection, implementation and closeout--when discussing WIOA one-stop
operators in this Final Rule, selection refers to the competitive
process by which one-stop operators are chosen. This process may
involve a number of methods of procurement as they are described in the
Uniform Guidance. The Uniform Guidance describes the process and
methods that must be followed to conduct procurement.
Comments: The commenter further stated that the solicitation
announcements need to reach a minimum number of vendors to ensure a
variety of capable vendors have the ability to bid. In addition, the
commenter suggested that selection of one-stop operators should include
the ability to serve linguistically and culturally diverse
participants.
Department's Response: The Department declines to change the
regulatory text in response to this comment. Determining the number of
vendors is best left to the Local WDB, based on the needs identified in
the local area. Typically, two or more vendors or bidders would be
adequate in meeting the minimum requirement of competition, which may
already be specified in the State procurement process.
Comments: Another commenter asked how providers of career services
are selected. The commenter also asked whether this must involve a
competitive process.
Department's Response: Career services are provided by the various
partner programs participating in the one-stop center, the details of
which are set out and agreed upon in the MOU. As mentioned above, these
partners are not required to be procured in a competitive process under
WIOA, but they may be under State or local procurement policies.
Comments: Other commenters stated that the Governor should be
allowed to recommend the RFP process for their State.
Department's Response: The Governor, in consultation with the State
WDB and chief elected official does have the authority under these
regulations to choose the type of RFP process for their State that is
consistent with State policy and the Uniform Guidance. No change to the
regulatory was made text in response to these comments.
Comments: A few commenters requested additional guidance on how a
WDB could compete in the procurement process, either alone or as part
of a consortium. Another commenter asked if, in single-area States, the
State WDB assumes the responsibilities in WIOA sec. 107(d)(10)(A), or
if the Governor is authorized to identify a State entity to conduct the
competition.
Department's Response: As noted, the Department has revised the
regulatory text to allow greater flexibility in defining the
competition process for non-Federal entities other than a State,
deleting much of the language related to specific procurement methods
in the proposed regulations. The Department
[[Page 55896]]
provides this flexibility because, as it became apparent through the
discussion of comments, there are many different methods of procurement
throughout the public workforce system, which are generally based on
the Uniform Guidance when Federal funds are involved and which the
Department would consider sufficient to meet the requirement for
competitive selection of the one-stop operator. It was unnecessary for
the Department to be overly prescriptive in defining the methods of
procurement in these regulations, and provisions of proposed Sec.
678.605(c) prescribing certain methods have been removed.
Length of Time Required Between Competitions
Comments: A few commenters addressed the Department's question
seeking comments regarding the length of time required between
competitions for one-stop operators. In particular, a few commenters
recommended that the timelines should be determined by States. Other
commenters stated that 4 years, as proposed in the NPRM, is
appropriate. A few commenters agreed that 4 years between competitions
is appropriate, but they suggested that there be an option to extend
additional years if performance expectations are met or exceeded. A few
commenters suggested allowing more flexibility for States regarding the
length of contracts, such as providing guidance that recommends
contracts of 3 to 5 years, or allowing the award of 5-year contracts
that have an initial base year followed by 4 option years that can be
executed if the operator is performing well. A few commenters
recommended 6 years between competitions, as that timeline would align
with two 3-year certification periods for one-stop operators. Another
commenter suggested that local areas should be permitted to extend an
operator's contract once by 2 years to reward high performance.
Department's Response: After considering these comments and
recommendations, the Department decided to retain the period of 4 years
as it is consistent with the other time periods contained in WIOA for
resubmission of State Plans as well as re-certification of one-stop
centers. The Department has determined that there is not a sufficient
reason to shorten this period to 3 years, extend it beyond 4 years, or
to leave the timeline determination to individual States. Instead,
maintaining the proposed 4 years between competitions is consistent
with WIOA's goals of a periodic reexamination of local plans and
supporting successfully performing one-stop centers.
Comments: A commenter remarked that, given the timelines for
competitive procurement and certification criteria updates, both
processes will be conducted simultaneously every 12th year. The
commenter suggested that the Department adjust these timelines to be
event-driven, rather than simply time dependent.
Department's Response: While the Department recognizes the
difficulties that the timing may cause, after considering the comments
and suggested changes, the Department concluded that leaving these
processes on set timelines, as opposed to event-driven timelines, is
the best way to insure integrity in the process and will reap the best
outcomes for the one-stop delivery system. As such, the Department has
made no changes to the regulatory text in response to this comment.
Guidance and technical assistance on this section regarding competition
will be made available to all parts of the public workforce system.
Section 678.610 When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?
Section 678.610 explains when and how sole-source selection of one-
stop operators is appropriate as a part of a competitive procurement
process. The text has been changed from the NPRM to delete the
references to the specific acceptable processes in proposed Sec.
678.605(d)(3) and to indicate that State and local entities must follow
their own procurement rules in addition to the Uniform Guidance, as
appropriate. It also includes requirements about maintaining written
documentation regarding the entire selection process, and developing
appropriate conflict of interest policies. It states that a Local WDB
may be selected as one-stop operator through sole source procurement
only with the agreement of the CEO in the local area and the Governor.
The Governor must approve the conflict of interest policies and
procedures the Local WDB has in place when also serving as the one-stop
operator. This is consistent with the Departments' interpretation of
sec. 107(g)(2) of WIOA--the section adds an additional check in
situations where a Local WDB is selected to be operator.
Comments: Several commenters recommended allowing the Governor to
designate the one-stop operator when the State is a single-area State,
particularly if the State has a history of meeting performance
standards. Several commenters also recommended allowing CEOs to
designate the one-stop operator without a competitive process so as not
to interrupt program continuity, particularly if the operator is
already performing well.
Department's Response: WIOA requires the selection of one-stop
operators through a competitive process. The Governor or CEOs may not
designate an operator without a competitive process. No change to the
regulatory text was made in response to these comments. It is possible
for the Governor to select an organization, such as the State WDB, by
sole source selection after a competitive process. Otherwise, Local
WDBs are responsible for conducting a competitive process to select a
one-stop operator, which must also be consistent with the Uniform
Guidance. The Department encourages Local WDBs to plan for the
competitive process and allow for transition time to minimize any
disruption and ensure program continuity. Local WDBs can be selected as
one-stop operator through sole source procurement only with the
agreement of the CEO in the local area and the Governor. Under Sec.
678.610(d), the Governor must approve the conflict of interest policies
and procedures that the Local WDB has in place when also serving as
one-stop operator. This is consistent with DOL's interpretation of WIOA
sec. 107(g)(2)--the section adds an additional check in the situations
where a Local WDB is selected to be operator.
Comments: One commenter also suggested that local areas already
operating under a consortia model with demonstrated success be
permitted to be sole sourced. Another commenter stated that very large,
complex local areas should be able to sole source a ``system operator''
provided that the individual one-stop operators are procured through a
competitive process.
Department's Response: While WIOA requires selection of the one-
stop operator through a competitive process, under the Uniform Guidance
there is the flexibility for sole source as a method of procurement;
however, there are conditions that must be met to allow for sole source
selection. The Local WDB must be able to demonstrate it conducted
sufficient market research and outreach to make that determination.
Additionally, Sec. 678.615(b) and (c) require robust conflict of
interest policies and procedures as well as internal firewalls within
the State agency to address the real and perceived conflicts of
interest that could arise for a State or local agency applying to a
competition run by a Local WDB.
The Department notes that this section is particularly relevant to
the
[[Page 55897]]
first competitions that are conducted after these regulations are
promulgated for one-stop operators. With appropriate firewalls and
conflict of interest policies and procedures to provide a fair and open
competitive process, entities serving as one-stop operators at the time
these regulations are promulgated, including Local WDBs and other
current one-stop operators, may compete and be selected as operator
under the competition requirements in this subpart if they are able to
do so under applicable procurement policies and procedures. However,
appropriate firewalls must be in place to ensure that the current
operator is not involved in conducting the competitive process, as that
would be an inherent conflict of interest. No change to the regulatory
text was made in response to this comment.
Comments: A commenter stated that the Department should reconcile
Sec. Sec. 678.610 through 678.625 with 20 CFR 679.410 to ensure that
both one-stop operations and career services are awarded competitively.
The commenter provided one exception to this rule: that the Governor
and CEO agree that there are insufficient providers available for a
competition.
Department's Response: WIOA does not link one-stop operator
competition with competition for career services providers. That
decision is left to the State and/or Local WDB, and the Department
declines to require this by regulation. Competitions for certain types
of services are neither expressly prohibited nor required by WIOA.
State and Local WDBs are in the best position to determine how
extensively to require service provider competitions in their
respective areas.
Section 678.615 May an entity currently serving as one-stop operator
compete to be a one-stop operator under the procurement requirements of
this subpart?
Section 678.615(a) states that Local Boards may compete for and be
selected as one-stop operators, as long as appropriate firewalls and
conflict of interest policies and procedures are in place. Section
678.615(b) allows State or local agencies to compete for, and be
selected as, one-stop operators. However, there must also be strong
firewalls, internal controls, and conflict of interest policies and
procedures in place.
Comments: A few commenters stated that they interpret the Uniform
Guidance on conflict of interest to mean simply that the specifications
and requirements for the procurement must be drawn up by a neutral
third-party, and that Local and State WDB members can take part in the
selection, award, or administration of the one-stop operator contract
so long as no member will see an increase in pay or benefits upon award
of the contract.
Department's Response: Competitions must be undertaken pursuant to
Sec. 678.605. States are required to follow the same policies and
procedures used for procurement with non-Federal funds while other non-
Federal entities are required to follow local procurement policies and
procedures and the requirements in the Uniform Guidance at 2 CFR
200.318 through 200.326. These policies and procedures may allow or
require many of the commenter's suggestions. For example, the Uniform
Guidance does permit sole source as a method of procurement under
certain conditions. The Local WDB must be able to demonstrate it
conducted sufficient market research and outreach to make that
determination. With appropriate firewalls and conflict of interest
policies and procedures to provide a fair and open competitive process,
entities serving as one-stop operators at the time these regulations
are promulgated, including Local WDBs and other current one-stop
operators, may compete and be selected as operator under the
competition requirements in this subpart if they are able to do so
under the relevant procurement policies and procedures. In the
alternative, they may be selected under appropriate sole source
processes. However, appropriate firewalls must be in place to provide
that the current operator is not involved in conducting the competitive
process, as that would be an inherent conflict of interest.
The Department wants to make clear that this approach provides
sufficient flexibility to enable a range of operators to compete and be
selected, including current one-stop operators, State agencies, Local
WDBs, or consortia of required partners.
Comments: Several commenters also asserted that effective
firewalls, internal controls, and conflict of interest policies already
exist in the workforce development system and have been reviewed by the
States and DOL.
Department's Response: While the Department agrees that some
effective firewalls, internal controls, and conflict of interest
policies already exist in the workforce development system, no change
to the regulatory text was made in response to this comment. The
procurement standard in the Uniform Guidance provides guidance on
written codes of conduct covering real, apparent, and organizational
conflicts of interest for persons involved in the procurement process.
Comments: One commenter stated that one-stop operators can be
staffed by Local WDBs as long as firewalls and conflict of interest
policies are in place, which can include a WDB/CEO agreement with
organizational charts.
Department's Response: The Department agrees that, as long as the
requisite firewalls and conflict of interest policies and procedures
are in place, a Local WDB can compete to fill the one-stop operator
position. To be placed in this position, of course, the Local WDB must
win the competition and then be approved by the Governor and CEO. While
such agreements and organizational charts are a useful tool to define
firewalls, proper firewalls must go beyond these tools.
Comments: One commenter asked the Department to define the term
``firewall'' as it relates to this section. A group of Federal elected
officials urged the Departments to establish strong organizational
conflict of interest provisions in the Final Rule to ensure fair
competition.
Department's Response: The Department has determined that the
Uniform Guidance, used in concert with State procurement procedures,
establishes adequate standards for conflict of interest policies. Also,
Sec. 678.615(b) and (c) require robust conflict of interest policies,
as well as internal firewalls within the State agency, to address the
real and apparent conflicts of interest that could arise for a State or
local agency applying to a competition run by a Local WDB. In order to
ensure flexibility for State and local entities in designing one-stop
delivery systems, the Department declines to define these terms further
in the final regulations.
Comments: A few commenters said that they do not believe it is
possible for a sufficient firewall to be established to eliminate a
real or apparent conflict of interest when a Local WDB competes to be a
one-stop operator. Even if an alternate entity were involved in
developing the procurement requirements, according to these commenters,
the Local WDB would still need to be involved in developing and
approving them. Other commenters agreed and requested that single-area
States be granted flexibility on, and waivers of, this provision. Two
commenters asserted that in small States where there is very little
competition (e.g., a one-stop operator may also be a service provider),
it is not cost effective to implement firewalls.
Department's Response: While the Uniform Guidance does provide
[[Page 55898]]
flexibility, some State and local procurement policies may prevent a
Local WDB from competing under an RFP if it is not possible to
establish a sufficient firewall to avoid a real or apparent conflict of
interest. The Department declines to revise Sec. 678.615 to provide
for a waiver or other flexibility concerning the requirement for
firewalls and conflict of interest policies and procedures because
avoiding a real or apparent conflict of interest is essential to a fair
competitive process. The Department encourages States and local areas
to review their procurement policies and procedures to ensure that they
are consistent and contain appropriate firewalls and conflict of
interest policies and procedures to provide a fair and open competitive
process.
Comments: A few commenters suggested that because the Governor has
the authority, in agreement with the CEO, to select the Local WDB as
the one-stop operator, firewalls and conflict of interest policies are
not necessary. Another commenter agreed with this suggestion, adding
that firewalls and conflict of interest policies are not necessary
because the CEO would have oversight responsibilities.
Department's Response: The Department disagrees. The Uniform
Guidance, where applicable, calls for a written code of conduct policy
that includes real, apparent, and organizational conflict of interest
procedures to provide a fair and open competitive process. Entities
serving as one-stop operators at the time these regulations are
promulgated, including States, Local WDBs, and other current one-stop
operators, may compete and be selected as the operator under the
competition requirements in this subpart, if allowable under applicable
procurement policies and procedures. Appropriate firewalls, however,
must be in place to ensure that the current operator is not involved in
conducting the competitive process, as that would be an inherent
conflict of interest. Such firewalls pertain to the elected leadership
of the State or local area as well as to the Boards. The Uniform
Guidance, where applicable, and Sec. 678.615(b) and (c) require robust
conflict of interest policies that will create internal firewalls
within the State agency to address the real and perceived conflicts of
interest that could arise when a State or local agency applies to a
competition run by a Local WDB. No change to the regulatory text was
made in response to these comments.
Comments: One commenter expressed support for the Department's
requirement to establish appropriate firewalls and internal controls.
Section 678.620 What is the one-stop operator's role?
Section 678.620(a) describes the role of the one-stop operator
without prescribing a specific and uniform role across the system. The
minimum role that an operator must perform is coordination of all one-
stop partners and service providers.
A change was made to this section for clarity. The regulatory text
was revised to modify the list of potential roles for the one-stop
operator, as chosen by the Local WDB, changing it from ``coordinating
service providers within the center and across the one-stop system . .
.'' to ``coordinating service providers across the one-stop delivery
system.''
Comments: Several commenters addressed the Department's question
regarding whether all of the functions listed in proposed Sec.
678.620(b) are accurately described as inherently the responsibility of
the Local WDB. Some commenters agreed that all of these items are
inherently the responsibility of the Local WDB. One commenter stated
that some of the Local WDB responsibilities may have changed or been
devolved to the operator or fiscal agent as the one-stop delivery
system has evolved under WIA. A Local WDB recommended that the
Department remove this paragraph because it adds confusion,
particularly when the Local WDB or fiscal agent is also the one-stop
operator. The commenter suggested that CEOs should be responsible for
determining who is responsible for each function. Another commenter
also stated that, rather than prohibiting certain actions, the NPRM
should provide guidance to operators regarding how to deal with
conflicting responsibilities. The commenter stated that this is
particularly necessary for small States and single area States where
agencies serve multiple roles in the system.
Department's Response: The Department considers these provisions
necessary and consistent with WIOA. The Department is aware that the
requirements related to formally procuring the one-stop operator may be
new in many areas, and that the roles and responsibilities for Boards,
operators, and service providers under WIOA may differ from those under
WIA. Some roles will continue and others will be modified in response
to the new requirements and vision presented by WIOA. Transitioning to
a new, more integrated system of service under WIOA will take time and
technical assistance from all agencies involved. Some guidance is
already available to the system in the form of TEGLs on a variety of
subjects, such as ``Workforce Innovation and Opportunity Act Transition
Authority for Immediate Implementation of Governance Provisions'' (TEGL
No. 27-14), ``Vision for the Workforce System and Initial
Implementation of the Workforce Innovation and Opportunity Act'' (TEGL
No. 4-15), ``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'' (TEGL No.
3-15), and ``Workforce Innovation and Opportunity Act (WIOA) Youth
Program Transition'' (TEGL Nos. 23-14 and 8-15), among others, which
can be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
Furthermore, WIOA does not permit CEOs to be solely responsible for
selecting who carries out each function of a one-stop center; this is
something to be set forth in the MOU, as agreed upon by all the local
partners and the Local WDB. No change to the regulatory text was made
in response to these comments.
Comments: Several commenters stated that the requirement in Sec.
678.620(b) that one-stop operators establish firewalls and conflict of
interest policies if they are also a service provider implies that the
organization's head would need to establish firewalls between himself
and his own staff who are delivering services.
Department's Response: The Department would like to stress that
there must be appropriate firewalls between staff providing services
and staff responsible for oversight and monitoring of services. The
same person or department cannot both provide services and oversee the
provision of those services. This may require examination of the
organizational structure of a State or local system to ensure that
adequate firewalls are in place to ensure appropriate oversight and
monitoring of services. Because the WIA system operated under similar
internal controls for nearly 2 decades, the Department does not
anticipate that the WIOA requirements regarding firewalls, conflict of
interest policies, and procurement procedures will be major obstacles
to WIOA implementation. The Department also has determined that the
provisions of the Uniform Guidance at 2 CFR part 200 sufficiently
address these issues. No
[[Page 55899]]
change to the regulatory text was made in response to these comments.
Comments: Commenters also asked whether, if the organization that
wins the one-stop operator competition is not also the WIOA title I
service provider, there would have to be another competition for this
service provider and thus another level of administration.
Department's Response: The Department has concluded that State and
Local WDBs are in the best position to determine how extensively to
require service provider competitions in their respective areas, and
the Department encourages States and local areas to review their
procurement policies and procedures against the Uniform Guidance to
ensure that they are consistent and contain appropriate conflict of
interest policies and procedures to provide a fair and open competitive
process.
Comments: A commenter suggested that when there is a potential
conflict of interest, the State WDB should be required to certify those
one-stop centers. Another commenter asked how one-stop operators will
be audited to ensure that internal controls are utilized.
Department's Response: The State sets the criteria for
certification of one-stop centers, and Federal representatives and
State agencies will continue to monitor the entire public workforce
system under WIOA. As part of such monitoring and oversight
responsibilities, States and Federal representatives will review an
entity's compliance with the Uniform Guidance, the soundness of its
internal controls, and its internal control framework. Further, States
and local agencies are audited either independently or under a State's
comprehensive audit on an annual or biannual basis, which includes an
examination of the State and local agencies' internal controls and
internal controls framework. No change to the regulatory text was made
in response to this comment.
Comments: One commenter said that there was not enough clarity
regarding staff oversight in one-stop centers. The commenter asked who
is responsible for performance outcomes and operations when there are
Combined Plan partners, and also, that CEOs be permitted to make this
determination. Another commenter agreed that Governors should be able
to determine appropriate roles for one-stop operators and Boards.
Department's Response: Some operating guidance on this subject has
already been released in TEGL No. 27-14 (``Workforce Innovation and
Opportunity Act Transition Authority for Immediate Implementation of
Governance Provisions''), and much more is in development, especially
around performance outcomes of Combined State Plan partners. The
Department presumes that staff oversight and other roles and
responsibilities of WDBs and operators will be set in each State and
local area by the WDB, in accordance with guidance provided by the
Department, the Governor, and the provisions of the Uniform Guidance in
2 CFR part 200 regarding the use of Federal funds. There must be
appropriate firewalls between staff providing services and staff
responsible for oversight and monitoring of services; however to ensure
this, the Department has concluded that additional regulatory language
is not required. Having proper firewalls in place will ensure that the
same person or department does not oversee its own provision of
services. This may require examination of the organizational structure
of an organization to ensure that adequate firewalls are in place to
ensure appropriate oversight and monitoring of services. No change to
the regulatory text was made in response to these comments.
Comments: A few commenters requested clarification of the term
``another capacity'' in Sec. 678.620(b).
Department's Response: The text from Sec. 678.620(b) in the NPRM
reads, in part, ``[a]n entity serving as a one-stop operator may
perform some or all of these functions if it also serves in another
capacity, if it has established sufficient firewalls and conflict of
interest policies. The policies must conform to the specifications in
20 CFR 679.430 of this chapter for demonstrating internal controls and
preventing conflict of interest.'' The Department has clarified this
language, which now refers to ``acting in its other role,'' instead of
``serves in another capacity.'' As revised, Sec. 678.620(b) now reads,
``An entity serving as a one-stop operator, that also serves a
different role within the one-stop delivery system, may perform some or
all of these functions when it is acting in its other role, if it has
established sufficient firewalls and conflict of interest policies and
procedures. The policies and procedures must conform to the
specifications in 20 CFR 679.430 of this chapter for demonstrating
internal controls and preventing conflict of interest.'' The Department
has determined that the term ``other roles'' is more readily
understood. These could include such roles as service providers, State
agencies, or Local WDBs.
Comments: One commenter suggested that the Department should define
the role of a ``system coordinator,'' which would unify a network of
one-stop operators in large local areas into a more cohesive local
system.
Department's Response: The Department has declined to revise the
regulatory text to define such a role, as this is a function of the
Local WDB. WIOA does not identify a system coordinator role. Local
areas have the ability to coordinate regionally and develop local or
regional plans. Any coordination would be established as part of the
local planning process.
Comments: One commenter stated that one-stop operators should be
allowed to participate in the local plan development only if there are
appropriate firewalls and conflict of interest policies in place.
Department's Response: The one-stop operator will be a contractor
under the Local WDB. The Local WDB is tasked with oversight and
monitoring of the one-stop operator. Therefore, if the operator
participates in the development of the local plan, there must be
adequate conflict of interest policies and firewalls in place to ensure
the one-stop operator staff who are participating do not provide input
on any policies associated with oversight and monitoring of their own
actions. The Department has determined that this does not require the
addition of regulatory language to this section, as Sec. Sec. 678.615,
678.620, and 678.625 require firewalls and conflict of interest
policies to prevent conflicts of interest in the selection of a one-
stop operators, in the one-stop operator's role, and in the functioning
of the State and Local WDBs.
Comments: One commenter recommended that the regulations should
clarify that the one-stop operator chosen through the competitive
procurement process is responsible for carrying out the required
activities of WIOA sec. 134(c)(1)(A), both directly and through the
one-stop required partners.
Department's Response: The Department has determined that it is
important to provide flexibility to local areas to define the role of
one-stop operator to meet the needs of the local area and that Sec.
678.620 provides this flexibility. No change to the regulatory text was
made in regard to this comment.
Section 678.625 Can a one-stop operator also be a service provider?
Section 678.625 allows a one-stop operator to also be a service
provider. However, the section clarifies that there
[[Page 55900]]
must be firewalls in place to ensure that the operator is not
conducting oversight of itself as a service provider. There also must
be proper internal controls and firewalls in place to ensure that the
entity, in its role as operator, does not conflict with its role as a
service provider.
Comments: Some commenters expressed that the process described in
the NPRM for the grant recipient to operate the one-stop center and/or
provide career services is difficult to follow. They expressed concern
that the process as described could lead to ``unintended, questionable
procurements.''
Department's Response: After considering these comments and
examining the language of WIOA sec. 121(d), the Departments have
determined that the process for separating the functions of operator
and service provider is clear. A one-stop operator cannot participate
in the selection of a provider to perform services in which the
operator intends to compete. Specifically, the operator cannot
participate in the planning, development, review, negotiation, and
selection phases of the competitive procurement process and then also
submit its own proposal. Moreover, proper firewalls must be in place,
as well as internal controls, to separate the functions of oversight,
monitoring, and evaluation of its role as service provider in order for
a one-stop operator to also serve as a service provider. The Department
will continue to provide guidance and technical assistance to the
public workforce system in this regard.
Comments: One commenter asserted that Congress could not have
intended for the WIOA competition provision to be the catalyst for a
regulatory structure that would entrench service providers and insulate
them from competition while competing out only the more tangential
oversight position of one-stop operator, which typically has a much
smaller total impact on the quality of services delivered to one-stop
users. The commenter remarked that the one-stop operator and service
provider roles have been ``substantially intertwined'' over the years,
with WIA sec. 117(d)(2)(D) even suggesting that operators were also
expected to be service providers. The commenter stated that it has been
common practice at many one-stop centers for the roles of operator and
service provider to be bid concurrently, and common practice in other
one-stop centers for service providers to be assigned various operator
duties as part of their service provider role.
Department's Response: The Departments encourage Local WDBs to
review current service providers strategically and plan for the
competitive process, allowing for a period of transition to minimize
any disruption and ensure program continuity. WIOA does not link one-
stop operator competition with competition of providers of services in
the one-stop. That decision is left to the State and/or Local WDB. No
change to the regulatory text was made in response to this comment.
Section 678.630 Can State merit staff still work in a one-stop center
where the operator is not a governmental entity?
Section 678.630 addresses the concern about whether State merit
staff can continue to work in a one-stop center where the operator is
an entity other than the State. State merit staff support numerous
programs at the one-stop center, including Wagner-Peyser Act programs,
VR, UI, and the JVSG program. Section 678.630 clarifies that State
merit staff may continue to work in the one-stop center so long as a
system for the management of merit staff in accordance with State
policies and procedures is established. Similar to State merit staff,
nothing would prevent local government staff from being employees in
the one-stop center, although the Department recognizes that local
government employees are not equivalent to the State merit staff, as
State merit staff are governed by the requirements attached to specific
programs that must be in the one-stop center regardless of operator.
In response to concerns about staffing, the last sentence of Sec.
678.630 has been revised to clarify that continued use of State merit
staff for the provision of Wagner-Peyser Act services or services from
other programs with merit staffing requirements must be included in the
competition for and final contract with the one-stop operator when
Wagner-Peyser Act services or services from other programs with merit
staffing requirements are being provided.
Comments: Several commenters remarked that local staff do not have
the same protections as State merit staff, and new contractors often
bring in their own staff when taking over programs. Additionally, these
commenters asserted that it would be cost-prohibitive for potential
applicants to retain many public employees because they are typically
fully vested and may be unionized.
Department's Response: DOL acknowledges the concerns and points
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 the respective UI, Wagner-Peyser Act, and VR merit staffing
requirements under WIOA. While there is no merit staffing requirement
under other WIOA core programs, the Department has determined,
consistent with 20 CFR 652.215 that Wagner-Peyser Act and VR staff must
meet the requirements of merit staff. A revision to the regulatory
text, as discussed above, has been made to Sec. 678.630 to respond to
concerns about staff.
Comments: Some commenters, including a few unions, urged the
Department to require that UI and ES agencies be parties and agree to
the establishment of the NPRM's ``system for management of merit
staff.''
Department's Response: UI and Wagner-Peyser Act programs will be
party to the establishment of such a system through their participation
and decision-making on State or Local WDBs as required partners, and
through their good-faith negotiations during the MOU process. The
Department has made no changes to the regulatory text in response to
these comments.
Comments: Some of these commenters also suggested that the
Department should revise Sec. 678.630 to require UI and ES agencies to
agree to inclusion of local merit staff in the competition and final
contract, to be consistent with proposed 20 CFR 652.216.
Department's Response: The Departments decline to make revisions to
policies regarding local merit staffing.
Comments: One commenter stated that the NPRM, which includes VR in
the list of State merit staff, conflicts with the responsibility of the
designated State agency (DSA) or designated State unit (DSU) in sec.
101(a)(2) of the Rehabilitation Act of 1973 ``by inferring that the
State Board and one-stop operator may establish State policies
regarding the management of'' VR staff. The commenter also stated that
the NPRM may conflict with RSA Technical Assistance Circulars 12-03 and
13-02. Another commenter expressed support for including VR as State
merit staff, as this will provide flexibility for States to integrate
VR staff within one-stop centers.
Department's Response: In accordance with this section, State VR
personnel are permitted to perform functions and activities in a one-
stop center where the one-stop operator is a non-governmental entity.
This section does not circumvent the requirements governing the
State VR Program at 34 CFR part 361. In particular, if State VR
personnel are
[[Page 55901]]
performing functions and activities in a one-stop center operated by a
non-governmental entity, the requirements related to the responsibility
for administration and the non-delegable functions of the designated
State unit at 34 CFR 361.13(c) remain in place.
Contrary to the commenter's suggestion, neither the State WDB nor
the one-stop operator would assume sole management of State VR
personnel employed by the designated State unit responsible for the
administration of the VR services program, because such responsibility
rests fully with the designated State unit for the VR program. Rather,
the State WDB and the one-stop operator would establish a system for
management of State VR personnel in accordance with State policies and
procedures, consistent with program specific requirements such as that
described in 34 CFR 361.13(c).
Comments: A few commenters recommended that CEOs or Local WDBs
should be permitted to determine the best staffing mix for their local
areas.
Department's Response: WIOA sec. 107(f) and 20 CFR 679.400 of the
DOL Final Rule describe the Local WDB's authority to hire and the
appropriate roles for Board staff and Sec. 678.620 describes the role
of the one-stop operator in comparison to Local WDB functions. Local
WDBs may establish appropriate staffing within the confines of these
requirements, but nothing in these provisions would change staffing
requirements established pursuant to other laws, such as the Wagner-
Peyser Act merit-staffing requirement. The Department made no changes
to the regulatory text in response to these comments.
Comments: One commenter asserted that, because WIOA does not
specifically amend, address, or rescind the Employment Services merit
staff exemption granted to Colorado, Massachusetts, and Michigan under
the Wagner-Peyser Act, this exemption remains in full effect.
Department's Response: The benefits of merit staffing in promoting
greater consistency, efficiency, accountability, and transparency have
been well established and DOL has proposed continuing Wagner-Peyser Act
merit staffing requirements under WIOA. Nonetheless, WIOA is silent on
the continuation of this exemption, and there is no need to address it
in these regulations. However, to prevent significant disruptions in
service delivery and to help facilitate implementation of WIOA, the
Secretary of Labor has elected to continue all current exemptions to
the Wagner-Peyser Act merit staffing requirement. This continuation
applies only to the current exemptions; the Department has no immediate
plans to expand this authority within States that have been granted
this administrative flexibility or to additional States, and such
grants could be subject to termination in the future at the discretion
of future DOL leadership.
Section 678.635 What is the compliance date of the provisions of this
subpart?
While no significant policy changes have been made to this section,
the date by which Local WDBs must demonstrate they are preparing for
the one-stop operator competition process has been changed from June
30, 2016 to [90 days from publication of this Final Rule], in order to
give Local WDBs an adequate amount of time to actively respond to the
requirements of these regulations.
Comments: A few commenters requested flexibility to delay
competitive selection if a State determines that breaking a lease in
existence prior to PY 2014 exceeds the three percent funding cap for
that local area's title I or Wagner-Peyser Act funding for PY 2016. The
commenters requested guidance or technical assistance if the cost of
maintaining current programming in existing one-stop centers exceeds
the caps.
Department's Response: DOL has issued operational guidance on the
continuation of contracts during the WIA to WIOA transition, and
depending on the State or local interpretation of a lease agreement,
this guidance may be relevant. Please see TEGL No. 38-14, ``Operational
Guidance to Support the Orderly Transition of Workforce Investment Act
Participants, Funds, and Subrecipient Contracts to the WIOA,'' which
can be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
Comments: A commenter stated that DOL should adjust the
implementation date of this provision to July 1, 2017 from June 30,
2017 to coincide with the beginning of the new program year, instead of
the last day of the previous program year.
Department's Response: After considering this comment, the
Department has adjusted the date in Sec. 678.635(a) to July 1, 2017 in
order to be consistent with the program year.
Comments: A few commenters expressed support for regulatory
language that would allow Local WDBs to continue competitively procured
one-stop operator contracts that are executed before the June 30, 2017
effective date.
Department's Response: No regulatory text changes were made in
response to these comments. The Department recommends following the
guidance that has been released for continuing, adapting, and
terminating (if necessary) one-stop services contracts that can be
applied to one-stop operator contracts, which can be found in 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,'' which can
be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm.
Other Comments on One-Stop Operators
Comments: A few commenters stated that neither WIOA nor the NPRM
state that the Local WDB is required to pay the one-stop operators.
They also recommended that Governors be able to set policies for one-
stop operators.
Department's Response: A competitive process is required for the
selection of the one-stop operator by the Local WDB, and it is expected
that a sizable portion of the bid-on costs would be the salary of the
one-stop operator's staff. One-stop operator roles and responsibilities
are defined in WIOA and these regulations, and existing and future
operational guidance and rules will delineate how these policies are
set at the local level. WIOA sec. 121(d)(1) delegates the majority of
the authority to set these policies to the Local WDB. No change to the
regulatory text was made in response to these comments.
Comments: A commenter recommended making this section more
collaborative with ED, to be consistent with the rest of the NPRM. The
commenter expressed concern that this topic is only under DOL's
auspices when both Departments oversee the entities involved in the
one-stop delivery system.
Department's Response: The Department agrees; this is a joint
regulation and the comment responses, in addition to most existing
operational policies, have been developed through collaboration between
the Departments of Labor and Education. It is the intention of the
Departments to continue to provide joint guidance and training to our
respective systems of service in a collaborative manner.
Comments: Another commenter suggested that the Department should
establish labor standards for staff working in the one-stop delivery
system.
Department's Response: The Department appreciates the concerns
giving rise to this suggestion, but the establishment of labor
standards for
[[Page 55902]]
occupations in State or local governmental entities carrying out the
provisions of WIOA is outside the scope of these regulations, as well
as the Departments' administrative authority. No change to the
regulatory text was made in response to this comment.
6. One-Stop Operating Costs (20 CFR Part 678, Subpart E; 34 CFR 361.700
Through 361.760; 34 CFR 463.700 Through 463.760)
The regulations governing one-stop partner funding of
infrastructure costs and other shared costs are intended to:
(1) Maintain the one-stop delivery system to meet the needs of the
local areas;
(2) Reduce duplication by improving program effectiveness through
the sharing of services, resources and technologies among partners;
(3) Reduce overhead by streamlining and sharing financial,
procurement, and facilities costs;
(4) Encourage efficient use of information technology to include,
where possible, the use of machine readable forms and shared management
systems;
(5) Ensure that costs are appropriately shared by one-stop partners
by basing contributions on proportionate use of the one-stop centers
and relative benefit received, and requiring that all funds are spent
solely for allowable purposes in a manner consistent with the
applicable authorizing statute and all other applicable legal
requirements, including the OMB's Uniform Guidance set forth in 2 CFR
chapter II, part 200 (Uniform Guidance); and
(6) Ensure that services provided by the one-stop partners to
reduce duplication or to increase financial efficiency at the one-stop
centers are allowable under the partner's program.
Infrastructure costs are the responsibility of all one-stop partner
programs, whether they are physically located in the one-stop center or
not. Each partner's contribution to these costs, however, may vary, as
these contributions are to be based on the proportionate use and
relative benefit received by each program, consistent with the partner
programs' authorizing laws and regulations and the Uniform Guidance at
2 CFR part 200. Section 121(h)(1)(A) of WIOA establishes two funding
mechanisms--a local funding mechanism and a State funding mechanism.
Under WIOA sec. 121(c), the Local WDBs must enter into MOUs that cover,
in part, the amount each partner will contribute toward the one-stop
center's infrastructure costs. The Departments strongly encourage Local
WDBs to reach agreement. If the Local WDB fails to reach agreement with
each of the partners with regard to the amount each partner will
contribute to the one-stop delivery system's infrastructure costs
pursuant to WIOA sec. 121(h)(1)(A)(i)(I), the local area is considered
to be at an impasse. When a local area fails to reach such agreement,
the State funding mechanism is triggered pursuant to WIOA sec.
121(h)(1)(A)(ii).
As discussed in more detail in the analysis of comments regarding
Sec. 678.725, the State funding mechanism, in the event a local area
fails to reach agreement with the one-stop partners, will not be
triggered prior to PY 2017. In other words, the failure of a local area
to reach an agreement with regard to the funding of the one-stop
centers' infrastructure costs for PY 2017 (which begins July 1, 2017),
would trigger the State funding mechanism, in order to provide that
funds are available to pay for the one-stop delivery system's
infrastructure costs in PY 2017. In specific instances, the triggering
of the State funding mechanism will be based on the guidance developed
by the Governor under Sec. 678.705(b)(3) as to the timeline for
notifying the Governor that the local area was unable to reach
agreement. The same would be true for each subsequent program year.
States and local areas may continue to negotiate local funding
agreements as they have under WIA for the purposes of PY 2016.
The Departments have determined this interpretation is most
consistent with the plain meaning of the statutory provision, because
all negotiations for purposes of the one-stop delivery system's
infrastructure costs for PY 2016, which begins on July 1, 2016, as well
as the implementation of a State funding mechanism, would need to occur
well before the start of PY 2016 in order to provide funding for the
one-stop delivery system in PY 2016. However, sec. 121(h)(1)(A)(ii)
makes clear that the State funding mechanism does not apply until
negotiations fail to result in an agreement after the start of PY 2016,
which, by necessity, would make it applicable beginning with PY 2017,
and then for all subsequent program years.
For PY 2017 and all subsequent program years, when a local area
fails to reach an agreement, thereby triggering the implementation of
the State funding mechanism pursuant to sec. 121(h)(1)(A)(ii), the
Governor, or in some cases other officials as described in Sec.
678.730(c)(2) and in more detail below, after consultation with State
and Local WDBs and CEOs, will determine the amount each partner must
contribute to assist in paying the infrastructure costs of one-stop
centers. The Governor, or other official in consultation with the
Governor, as appropriate, must calculate amounts based on the
proportionate use of the one-stop centers and relative benefit received
by each partner and other factors stated in Sec. 678.737(b). The
amounts contributed by each one-stop partner in a local area will be
based on an infrastructure cost budget determined either by local
agreement, as stated in Sec. 678.735(a), or by formula, as stated in
Sec. 678.735(b)(3) and in accordance with the remainder of Sec.
678.745 and sec. 121(h)(3)(B) of WIOA. Section 678.738(c) sets forth
the limitation for one-stop partners' contributions under the State
funding mechanism, based on a percentage of their statewide funding
allocation, in accordance with WIOA sec.121(h)(2)(D)(ii).
Comments: A commenter expressed support for the proposed
regulations in this subpart. Another commenter requested technical
assistance and additional clarity on these provisions. One commenter
asked that the Departments describe the expectations in this subpart
and in subpart C for each one-stop partner program, individually and
separately, because each program has its own requirements for
administrative costs and infrastructure contributions based on its
authorizing statute.
Departments' Response: The Departments have issued operating
guidance that describes the Departments' views on how these provisions
will work. The expectations for each partner program will be further
defined in guidance on one-stop infrastructure negotiations, and
technical assistance will be provided to the public workforce system
following publication of these regulations. To describe these details
in regulatory language would be overly prescriptive; the Departments
decline to change the regulatory text in response to this comment.
Required Federal partner programs often operate under different
authorizing statutes in addition to WIOA. Those administering agencies
will issue program-specific guidance and technical assistance on
infrastructure costs and negotiating MOUs in addition to any joint
guidance regarding WIOA implementation. The costs of the one-stop
delivery system are not only supported by infrastructure funding, but
also by the payment of other shared costs that may be part of the MOU.
Comments: A commenter stated that this subpart would have the
effect of
[[Page 55903]]
worsening or reducing collaboration between local programs. The
commenter went on to say that partners do not know how to implement
WIOA's options for sharing local infrastructure costs.
Departments' Response: The Departments disagree with this general
assessment, and the Departments are aware of many States and local
areas where infrastructure and cost sharing agreements have been
working well for some time. The intent of WIOA is to continue and
enhance the collaboration of partners, with more specific guidelines,
and the Departments intend to provide further guidance and technical
assistance regarding the sharing of local infrastructure costs and
other shared costs. No change to the regulatory text was made in
response to this comment.
Comments: A few commenters expressed support for a separate funding
line item for one-stop infrastructure costs.
Departments' Response: Since a separate line item was not
authorized in WIOA, nor included in any of the Departments'
appropriations, the Departments are not authorized to implement
separate funding for infrastructure costs. No change to the regulatory
text was made in response to these comments.
Section 678.700 What are the one-stop infrastructure costs?
Section 678.700 provides the definition for infrastructure costs
based on sec. 121(h)(4) of WIOA. In addition, the section adds common
one-stop delivery system identifier costs. These costs are those
associated with signage and other expenses related to the one-stop
common identifier, as required by subpart G of this part.
Jointly funding services is a necessary foundation for an
integrated service delivery system. Section 678.700(c) explains that a
partner's contributions to the costs of operating and providing
services within the one-stop delivery system must adhere to the partner
program's Federal authorizing statute, and to all other applicable
legal requirements, including the Federal cost principles that require
that costs must be allowable, reasonable, necessary and allocable.
These requirements and principles will help one-stop partners identify
an appropriate cost allocation methodology for determining partner
contributions. There are a variety of methods to allocate costs, for
instance: based on the proportion of a partner program's occupancy
percentage of the one-stop center (square footage); the proportion of a
partner program's customers compared to all customers served by the
one-stop; the proportion of partner program's staff compared to all
staff at the one-stop; or based on a partner program's use of equipment
or other items that support the local one-stop delivery system. A
detailed discussion of the Departments' responses to public comments
received on this section follows immediately below.
Comments: One commenter asked whether infrastructure costs are
applicable only to partners physically located in the one-stop centers
or to all partners.
Departments' Response: Infrastructure costs are applicable to all
one-stop partner programs, whether they are physically located in the
one-stop center or not. Each partner's contribution to these costs,
however, may vary, as these contributions are based on the
proportionate use and relative benefit received, consistent with the
partner programs' authorizing laws and regulations and the Uniform
Guidance at 2 CFR part 200.
Comments: Another commenter said that the Departments need to
provide sufficient guidance on the expectations for certain programs to
ensure that cost negotiations take place and contributions occur.
Departments' Response: Since the issuance of the NPRM,
infrastructure funding guidance has been released by the Departments,
and more guidance and technical assistance documents will be released
throughout the operational lifetime of the regulations.
Comments: One commenter suggested that because the NPRM essentially
requires title I programs to police the participation of other programs
regarding infrastructure costs, they would discourage optional one-stop
partners from participating at all.
Departments' Response: Governors and State WDBs must create the
framework for funding and required partner programs must operate within
that framework, both at the State and local levels. Local WDBs will
follow this framework, which must be inclusive of required partner
programs as well as other programs that are additional partners in the
one-stop centers in that local area. Once negotiated MOUs are in place,
the State will monitor their operations, along with the other fiscal
procedures of local areas, as they do now. The Local WDBs will be
responsible for ensuring that all of the one-stop infrastructure costs
are paid according to the provisions of the MOU, as they are the entity
with which the partner programs will be signing the MOU. No change to
the regulatory text was made in response to this comment.
Comments: A commenter said that proposed Sec. 678.700(c) should
begin, ``Each entity described in . . .'' to clearly indicate that
partners must contribute funds for infrastructure, regardless of
whether a partner wants to have a service delivery mechanism separate
from the one-stop center.
Departments' Response: The Departments have determined that the
regulation is clear as proposed, and have concluded that this change is
not needed and would cause unnecessary confusion.
Comments: Another commenter suggested that Perkins Act funds should
not be shifted to infrastructure support.
Departments' Response: As a statutorily required partner of the
one-stop center under WIOA, a Perkins eligible recipient at the
postsecondary level, or a consortium of eligible recipients at the
postsecondary level in a local area, will now be involved in the
development of local MOUs, which spell out the services to be provided
through the one-stop centers. All partners must contribute to the one-
stop infrastructure costs according to WIOA, as is described in more
detail in Sec. 678.720(a). No change to the regulatory text was made
in response to this comment.
Comments: One commenter expressed concern that, given the
``proportionate use by or benefit to the partner program'' clause in
this part, TANF or Basic Food Employment and Training could incur a
significant cost due to the volume of clients served by these programs.
The commenter also asked if this funding is in addition to the funds
already provided for employment services.
Departments' Response: With regard to the TANF program, only those
funds used for the provision or administration of employment and
training programs are considered in infrastructure and MOU negotiations
under WIOA. The Departments wish to clarify that there are numerous
methods for allocating costs, of which a proportion of customers is
only one. One-stop partners will negotiate MOU's and infrastructure
funding agreements that meet the needs of the local areas and the
partner programs.
Comments: A few commenters objected to the funding structure
described in the NPRM, stating that there is a discrepancy in how
contributions are calculated and how funds are reallocated.
Specifically, the commenter suggested that the State WDB formula--as
discussed in Sec. 678.745--redistribute funds under
[[Page 55904]]
what was proposed as the State funding mechanism in the NPRM using
different factors than what is used to calculate proportionate share.
Departments' Response: The Departments have determined that the
referenced discrepancy does not exist. There will be differences in the
application of the framework for infrastructure funding used among
local areas, but required partner programs will have consistent
requirements across all programs. As the commenter suggested, however,
the use of the State WDB formula as proposed in the NPRM created
ambiguities in determining what local partner programs should
contribute. Because of this and other comments, the formula has been
reworked to provide a more stable, and practicable tool for the
Governor to use. These changes are detailed in Sec. 678.745 and the
associated Preamble discussion.
Comments: A few commenters said that contributions from partner
programs must be consistent with their authorizing statutes and all
other legal requirements under WIOA.
Departments' Response: The Departments agree that all required
partner programs must also comply with the provisions of their own
authorizing statutes, in addition to WIOA, and have determined that the
regulations reflect this requirement.
Comments: A few commenters asked if only partners colocated within
the one-stop must contribute, or if all partners that benefit from the
centers must also contribute.
Departments' Response: As mentioned above, all one-stop partners
must contribute to infrastructure funding, but will do so based upon a
reasonable cost allocation methodology whereby infrastructure costs are
charged based on each partner's proportionate use of the one-stop
centers and relative benefit received. This would still apply even if
the program is not located at the one-stop center, if it is a required
partner.
Comments: A commenter asked why the UI system is not a mandatory
funding partner.
Departments' Response: This is an incorrect assumption. As a
required one-stop partner under WIOA sec. 121(b)(1)(B)(xi), a partner
providing UI services must contribute its proportionate share of the
infrastructure costs, as is required by WIOA sec. 121(b)(1)(A)(ii).
Comments: Another commenter recommended that TANF should not be
required to pay infrastructure costs.
Departments' Response: As a one-stop partner, a TANF program must
provide infrastructure cost funding according to its proportionate use
of the one-stop centers and relative benefit received, as is required
by WIOA, unless the Governor exercises the option not to include TANF
as a required partner. See WIOA sec. 121(b)(1)(C). If the Governor has
exercised the option so that an entity carrying out a TANF program is
not a required one-stop partner, but it chooses to become one
voluntarily, the program must provide its share of infrastructure costs
as do all required partners. No change to the regulatory text was made
in response to this comment.
Comments: A few commenters said that the Departments should make it
clear that title I funds can support title II based on the definition
of ``training'' in WIOA sec. 134(c)(3).
Departments' Response: Program funds are for the benefit of the
participants enrolled in training authorized in that particular title.
Funds provided by partners to support infrastructure and shared costs
of the one-stop delivery system are intended to benefit the
participants of all programs. Guidance also has been released on the
subject in both TEGL No. 2-15, ``Operational Guidance for National
Dislocated Worker Grants pursuant to the Workforce Innovation and
Opportunity Act,'' and TEGL No. 04-15 ``Vision for the One-Stop
Delivery System under WIOA,'' among others, as well as corresponding ED
documents, such as TAC-15-01 and Program Memorandum OCTAE 15-3, which
are associated with TEGL No. 04-15. All DOL WIOA operating guidance can
be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm, and all associated ED documents may be
found at www2.ed.gov/about/offices/list/osers/rsa/wioa-reauthorization.html and www2.ed.gov/policy/adulted/guid/memoranda.html.
Furthermore, an additional section of regulatory text on this
subject was added to the DOL WIOA Final Rule at 20 CFR 680.350. No
change to the regulatory text was made in response to these comments.
Comments: Multiple commenters urged the elimination of the one-stop
delivery system proposed infrastructure payments, 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. Some of these commenters
discussed the extensive outreach necessary in these communities and
remarked that NFJP grantees would not have to sacrifice their identity
or their close partnerships with one-stop delivery systems if the
Departments allow them this exemption.
Departments' Response: The Departments cannot eliminate the one-
stop delivery system infrastructure payments for any of the required
partner programs, as the infrastructure cost contributions are required
by sec. 121(b)(1)(A)(ii) of WIOA. While NFJP grantees are required
partners and are required to provide infrastructure funding for the
one-stop centers, they will contribute amounts in direct proportion to
their use in accordance with the provisions of these regulations and
Departmental guidance. No change to the regulatory text was made in
response to these comments.
Comments: 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 considered as a valid form of payment.
Departments' Response: WIOA requires partners to contribute
infrastructure funds according to the partners' proportionate use and
relative benefit received. The regulations allow noncash and third-
party in-kind contributions as valid forms of payment for
infrastructure costs. The Uniform Guidance related to in-kind
contributions applies here, and additional guidance regarding noncash
and in-kind contributions and shared costs has been released by the
Departments. No change to the regulatory text was made in response to
these comments.
Comments: A commenter suggested that NFJP grantees should continue
to be required partners on State and Local WDBs if NFJP is forced to
make a financial contribution.
Departments' Response: The Departments recognize that many
important system partners with experience with specific populations--
such as certain 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 WDBs. However, 20 CFR 679.320(c) of the DOL-only Final Rule requires
that the Local WDB must 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. Further, 20 CFR 679.320(e)(4) says the CEO
has the
[[Page 55905]]
flexibility to appoint ``other appropriate individuals,'' which does
not preclude any organization that the CEO deems appropriate. The
Departments encourage 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. Section 679.320 in the DOL WIOA Final Rule implements the WIOA
sec. 107(b) Local WDB membership requirements. No change to the
regulatory text was made in response to this comment.
Comments: Several commenters addressed the Departments' request for
comment on the types of costs that should be included as infrastructure
costs. One commenter reasoned that staff development and training is an
appropriate use of funds to maintain the one-stop delivery system as
described in Sec. 678.700(c). The commenter also asked if the
Departments are acknowledging that costs described in paragraphs (a)
and (b) are allowed by the required program authorizing statutes.
Another commenter asked if infrastructure costs include personnel costs
such as facility maintenance, and one commenter asked if they include
copy machine leases. A different commenter suggested that
infrastructure costs should include one-stop marketing, IT and
communication costs, and administrative costs of operating one-stop
centers. A couple of commenters suggested that certain one-stop
operation personnel costs, such as receptionist, IT support, building
security, and manager, should be funded from infrastructure costs.
Another commenter agreed, reasoning that if they are not, such costs
would fall on WIOA title I-B funds.
Departments' Response: Section 121(h)(4) of WIOA defines one-stop
infrastructure costs as ``the nonpersonnel costs that are necessary for
the general operation of the one-stop center, including rental costs of
the facilities, the costs of utilities and maintenance, equipment
(including assessment-related products and assistive technology for
individuals with disabilities), and technology to facilitate access to
the one-stop center, including the center's planning and outreach
activities.'' This definition is also in Sec. 678.700(a). The
Departments will provide additional guidance regarding infrastructure
costs, but addressing all potential specific items of cost that could
be included or excluded from infrastructure costs, based on this
definition, is beyond the scope of these regulations.
WIOA allocates equitably the cost responsibility for operating the
one-stop delivery system across partner programs; therefore, it is not
the intention that any one partner bear a disproportionate share of the
costs. The Departments do not agree with the conclusion that if the
costs identified by the commenters are not included in infrastructure
costs they will fall on WIOA title I funds. Costs that are related to
services shared by partners that do not fall into the definition of
infrastructure costs should be treated as other shared costs according
to WIOA sec. 121(i)(2) and Sec. 678.760 of these regulations.
Comments: One commenter stated that infrastructure costs should be
aggregated and addressed at the State level.
Departments' Response: It is not possible to accomplish this by
Federal regulation. Funds are separately appropriated to States under a
variety of authorizing statutes. The Governor, in working with the
State WDB, will develop guidance that, among other things, outlines a
framework for identifying infrastructure contribution from each
required partner, as discussed in Sec. 678.705 of these regulations.
If consensus cannot be reached on an infrastructure funding agreement
locally, the Governor will implement the State funding mechanism to
determine one-stop partner contributions, as discussed in Sec. Sec.
678.725 through 678.745. No change to the regulatory text was made in
response to this comment.
Comments: A commenter expressed support for including assistive
technology as a required infrastructure cost.
Departments' Response: Section 121(h)(4) and Sec. 678.700(a)(3)
provide that equipment, including assistive technology for individuals
with disabilities, is an infrastructure cost. However, neither of these
provisions describes assistive technology as a required infrastructure
cost, and the Departments have determined that designating any
particular cost as a required infrastructure cost is beyond the scope
of these regulations. As previously indicated in this Preamble, the
Departments intend to issue guidance regarding specific items of
allowable infrastructure costs and will address one-stop center
accessibility costs in that guidance. No change to the regulatory text
was made in response to this comment.
Comments: A few commenters recommended that costs associated with
adopting the common identifier should be funded by the Departments, not
from infrastructure costs. One commenter asked for examples of common
identifier costs. Another commenter agreed that common identifier costs
should be included as common infrastructure costs.
Departments' Response: Costs associated with the common identifier
may be included as infrastructure as well, however there is no separate
source of funding to allocate from the Federal level for common
identifier costs. Examples of common identifier costs would be the cost
of new signage, changing material templates, and changing electronic
resources, but it would not include any sort of advertising campaign
promoting the one-stop center under the new common identifier. No
change to the regulatory text was made in response to these comments.
Comments: Several commenters stated that infrastructure cost levels
should be set at the State level for adult education programs, rather
than requiring local negotiations between each adult education program
and each one-stop partner.
Departments' Response: Section 678.415(b) of the regulation
specifies that the appropriate entity to serve as a partner for the
adult education program is the State eligible agency or entity and the
State eligible agency or entity for AEFLA may delegate its
responsibilities to act as a local one-stop partner to one or more
eligible providers or consortium of eligible providers. As part of
these delegated responsibilities to serve as a one-stop partner, a
local adult education entity would assume the roles and
responsibilities of one-stop partners under sec. 121(b)(1)(A), which
would include contributing to infrastructure costs. No change to the
regulatory text was made in response to these comments.
Section 678.705 What guidance must the Governor issue regarding one-
stop infrastructure funding?
Section 678.705 includes certain requirements for the Governor's
guidance, including establishing roles, defining equitable and
efficient methods for negotiating around infrastructure costs, and
establishing timelines for local areas. These requirements are
essential to ensuring a consistent approach to the Governors' guidance
across States. This allows for one-stop certification, competition of
the one-stop operator, and inclusion of infrastructure funding
agreement terms into the local State Plan in appropriate timeframes.
Based on comments received, the Departments have concluded that the
Governor's guidance and technical assistance will be of greatest value
to the public workforce system in implementing the provisions
[[Page 55906]]
of the sections that follow. A detailed discussion of the Departments'
responses to public comments received on this section follows
immediately below.
Comments: A commenter asked whether the Governor may dictate the
cost categories and allocation methods, or whether the Governor may
provide flexibility to local partners in these areas. Another commenter
said that the Departments should issue guidance on cost sharing,
allocation, and allowable costs. One commenter recommended that in
cases where the Governor needs to intervene to establish local
contributions, the contributions should be supported with similar
funding sources for all contributors. Another commenter said that
guidance on funding should allow for flexible contributions from
required partners.
Departments' Response: The Departments have determined that the
language in Sec. 678.705 is consistent with the cost principles
contained in the Uniform Guidance and those of the authorizing statutes
and, thus, provides sufficient parameters within which to define costs,
cost allocation, and other principles of cost sharing. For purposes of
clarity, specific references to the Uniform Guidance have been added to
Sec. 678.705. Furthermore, paragraph (b)(2) also has been revised to
clarify that cost allocation should be based on proportionate use of
the one-stop centers and relative benefit received. The Governor may
not dictate cost categories or allocation methods that are not
consistent with the Uniform Guidance. There are a variety of methods to
allocate costs that are consistent with the Uniform Guidance, for
instance, based on: The proportion of a partner program's occupancy
percentage of the one-stop center (square footage); the proportion of a
partner program's customers benefitting by coming to the one-stop; the
proportion of partner program's staff among all staff at the one-stop
center; or the percentage of a partner program's use of equipment at
the one-stop center. This portion of the regulation can be complex, and
the Departments will continue to issue guidance and provide technical
assistance to the public workforce system.
The DOL's previous Financial Management Technical Assistance Guide
published for WIA remains useful for an overview of cost allocation
methodologies. See http://www.doleta.gov/grants/pdf/TAG_PartI.pdf and
http://www.doleta.gov/grants/pdf/TAG_PartII_July2011.pdf. The
Departments jointly will work to update this guide and provide
technical assistance on cost allocation in the future.
Comments: A few commenters said there needs to be guidance for
local partners to contribute to the one-stop infrastructure costs. The
commenter said that these costs need to be defined as program costs.
Departments' Response: In addition to the provisions of these
regulations, guidance for local partner contributions will be available
from Departmental policy guidance documents, and from the State
agencies administering partner funds. However, local required partners
and their CEOs also must recognize that funds must be used in
accordance with the related authorizing statutes, and consistent with
the requirements of the Uniform Guidance. While infrastructure costs
may be considered as program costs for DOL WIOA programs--which are
primarily WIOA title I programs--this is not the case for all local
area partner programs. Other authorizing statutes may have differing
interpretations. Further guidance and technical assistance is
forthcoming on this issue.
Comments: A few commenters requested additional guidance for the
Governor to assist in establishing roles and defining equitable and
efficient methods for negotiation. A commenter said that the rule
should give guidance on what roles the Departments envision to ensure
that the Governors' recommendations are appropriate.
Departments' Response: Since the issuance of the NPRM, the
Departments have released infrastructure funding guidance that includes
roles and responsibilities, and more guidance and technical assistance
documents will be released throughout the operational lifetime of the
regulations. No change to the regulatory text was made in response to
these comments.
Comments: A commenter said that this section should refer to WIOA
sec. 121, concerning infrastructure spending ceilings for certain
programs.
Departments' Response: The Departments decline to adopt this
recommendation. While the infrastructure funding caps for certain
programs under the State funding mechanism are covered in Sec.
678.738(c), they do not apply to contributions of local programs
pursuant to the local funding mechanism. No change to the regulatory
text was made in response to this comment.
Comments: A couple of commenters said that the regulations need to
provide a ``fail safe'' for local areas in case the State is not
negotiating in good faith or fails to meet the requirements of the MOU.
The commenter recommended that this would be a plan consisting of MOU
terms and cost allocation plans that would go into effect if either
condition above occurs.
Departments' Response: The Departments are not authorized by WIOA
to implement a ``fail safe'' plan as the commenter suggested. WIOA and
this Joint WIOA Final Rule (at Sec. 678.750) require that the Governor
have an appeals process for the State funding mechanism that would
allow one-stop partners to appeal a Governor's funding determination.
In addition, 20 CFR 683.600 of the DOL WIOA Final Rule would include
Local WDBs and CEOs as ``other interested parties'' that may file
grievances under the State established procedures required by WIOA sec.
181(c)(1). No change to the regulatory text was made in response to
these comments.
Section 678.710 How are infrastructure costs funded?
Section 678.710 indicates that sec. 121(h)(1)(A) of WIOA
establishes two methods for funding the infrastructure costs of one-
stop centers: A local funding mechanism and a State funding mechanism.
Both methods utilize the funds provided to one-stop partners by their
authorizing statutes. There is no separate funding source for one-stop
infrastructure costs. The Departments received no comments on this
section and made no changes to the regulatory text.
Section 678.715 How are one-stop infrastructure costs funded in the
local funding mechanism?
To use the local funding mechanism, Local WDBs, in consultation
with CEOs, must engage one-stop partners early in discussions about
one-stop center locations, costs, and other services, so that all
parties can make decisions cooperatively and reach consensus about
funding infrastructure costs. WIOA does not place any limitations on
contributions under the local mechanism; however, partner programs'
contributions must be in compliance with their Federal authorizing
statutes and other applicable legal requirements, including
administrative cost limitations, and represent each partner's
proportionate share, consistent with the Uniform Guidance. Under this
section, agreement is achieved when all of the one-stop partners sign
an MOU with the Local WDB, which includes a final agreement regarding
funding of infrastructure that includes the elements listed in Sec.
678.755, or an interim funding agreement that includes as many of these
elements as possible. A detailed discussion of the Departments'
[[Page 55907]]
responses to public comments received on this section follows
immediately below.
Comments: One commenter said that partners should pay an equitable
share of the infrastructure costs, not a proportionate share based on
relative benefits.
Departments' Response: WIOA sec. 121(h)(1)(B)(i) and sec.
121(h)(2)(C) specifically require funding allocations under both the
local or State funding options to be based on proportionate use and
relative benefit received. The first and preferred option is through
methods agreed on by the Local WDB, CEOs, and one-stop partners. If no
agreement can be made, then the State funding mechanism applies. Both
mechanisms are based upon Federal cost principles contained in the
Uniform Guidance. No change to the regulatory text was made in response
to this comment.
Comments: A commenter stated that the regulations should clarify
that the Local WDB has the responsibility for maintaining and preparing
the records necessary to periodically review and reconcile partner
shares of infrastructure costs against actual expenditures to ensure
equity.
Departments' Response: The Departments disagree; specifics of the
roles and responsibilities of local entities is something to be worked
out in the MOU, not in Federal regulation. Additionally, MOUs are
required to be reviewed no less than once every 3 years as required by
WIOA sec. 121(c)(2)(A)(v). No change to the regulatory text was made in
response to this comment.
Comments: Another commenter asked for a definition of
``proportionate share.'' One commenter said that the Governor should
set policy regarding ``proportionate benefit.'' Another commenter
requested guidance on calculating proportionate use.
Departments' Response: There is no specific Federal definition of
proportionate share, proportionate benefit, or proportionate use, and
none of these terms are defined in WIOA. In a general sense,
proportionate share is the share of each partner program's
infrastructure costs based upon its proportionate use of the one-stop
centers and relative benefit received from that use. The concept of
proportionate share, consistent with the partner programs' authorizing
statutes and regulations and the Uniform Guidance at 2 CFR part 200, is
used by Federal cost principles in the Uniform Guidance, among others.
The Departments are aware of the complex nature of arriving at a
generally accepted method of calculating proportionate share in a given
State or local area and will address this issue through additional
fiscal guidance and training. No additional regulatory text is
required.
Comments: Several commenters in the adult education field asked for
guidance regarding the duties and functions of the Local and State WDBs
in small States and single-area States.
Departments' Response: Because WIOA is an evolving system, there is
no standard list of all of the possible duties and functions of Local
and State WDBs. While WIOA establishes required duties and functions
for State and Local WDBs, discussed further in this subpart, each State
and Local WDB will develop State and local plans that define their
visions and roles and may expand upon these duties and functions.
Pursuant to WIOA's Sunshine Provisions, the State and local plans are
available for public inspection and Board meetings must be open to the
public, which ensures transparency and accountability for all State and
Local WDBs.
Comments: A few commenters said that the Departments should issue
guidance on simply bypassing the local infrastructure funding process
and using the State funding process instead.
Departments' Response: WIOA does not provide authority for
bypassing the local funding mechanism. The State funding mechanism is
only triggered after the Governor is informed that consensus could not
be reached at the local level.
Comments: Many commenters said that the Departments should clarify
that both cash and in-kind contributions are permitted in both the
local and State funding mechanisms. One commenter asked for
clarification on how in-kind contributions should be calculated as an
alternative to direct payments. A few commenters asked for
clarification of the phrase ``fairly evaluated in-kind contributions''
and also asked to know who makes this determination. Another commenter
said that infrastructure funding should be cash-only. One commenter
said that the Departments should update their guidance for in-kind
contributions to ensure that such contributions are weighted
appropriately. A few other commenters said that provision of
alternative communication services (e.g., Braille, deaf interpreters)
should be considered an in-kind contribution for the VR program.
Departments' Response: These comments assisted the Departments in
making certain adjustments in this part of the regulations. WIOA sec.
121(c)(2) outlines the required content of the local MOU. This includes
a description of how the costs of operation of the one-stop delivery
system will be funded. Operating budgets for one-stop centers encompass
two types of costs that are specifically outlined in the law:
Infrastructure costs, defined in WIOA sec. 121(h)(4), and additional
costs relating to the operation of the one-stop delivery system that do
not constitute infrastructure costs, described in WIOA sec. 121(i)(1),
which includes the cost of career services under WIOA sec. 134(c)(2)
and may include shared services, defined in WIOA sec. 121(i)(2). WIOA
sec. 121(c)(2)(A)(ii)(I) establishes in-kind contributions as valid
forms of payment for operations.
The regulatory text in Sec. 678.715 has been revised to clarify
that cash, non-cash, and third-party in-kind contributions may be
provided by, or on behalf of, one-stop partners to cover their
proportionate share of infrastructure costs and to provide further
agreement on the terms with definitions provided in the Uniform
Guidance. These terms are further defined in Sec. 678.720(c).
Non-cash contributions, which are separate from third-party in-kind
contributions, are comprised of receipts for current expenditures
incurred by one-stop partners on behalf of the one-stop center and non-
cash resources such as goods or services, or the documentation of
supporting costs for items owned by the partner's program and used by
the one-stop center.
For example, imagine a partner's proportionate share of the one-
stop operating costs is $15,000. The partner does not have sufficient
cash or other resources to fund its share fully, and wishes to donate
(not for its own individual use) gently used surplus computer
equipment. The computers at the time of the donation have a value
determined in accordance with the requirements of 2 CFR 200.306 of
$10,000. The partner would be able to use the $10,000 value as part of
the resources provided to fund the shared costs.
Third-party in-kind contributions are contributions of space,
equipment, technology, nonpersonnel services, or other like items to
support the infrastructure costs associated with one-stop center
operations, by a non-one-stop partner to support the one-stop center in
general (rather than a specific partner), or contributions by a non-
one-stop partner of space, equipment, technology, nonpersonnel
services, or other like items to support the infrastructure costs
associated with one-stop center operations, to a one-stop partner to
support its proportionate share of one-stop infrastructure costs.
[[Page 55908]]
There are two types of third-party in-kind contributions: General
contributions to one-stop operations (i.e., those not connected to any
individual one-stop partner) and specific contributions made to a
particular one-stop partner program.
For example, a general in-kind contribution could be a city
government allowing the one-stop to use city space rent-free. These in-
kind contributions would not be associated with one specific partner,
but rather would go to support the one-stop generally and would be
factored into the underlying budget and cost pools used to determine
proportionate share. The result would be a decrease in amount of funds
each partner contributes, as the overall budget will have been reduced.
The second type of in-kind contribution could be a third-party
contribution to a specific partner to support one-stop infrastructure.
For example, an employer partner provides assistive technology to a VR
program that then gives it to the one-stop center. So long as assistive
technology was in the one-stop operating budget's infrastructure costs,
the partner could then value the assistive technology in accordance
with the Uniform Guidance and use the value to count towards its
proportionate share. Prior to accepting in-kind contributions from a
partner (via a third-party donor), there would need to be agreement
among the partners on cost allocation methodology to ensure that other
infrastructure operating costs are sufficiently covered through cash
and noncash contributions.
Both non-cash and in-kind contributions must be valued consistent
with 2 CFR 200.306 and reconciled on a regular basis to ensure that
they are fairly evaluated and meeting the partners' proportionate
share.
All partner contributions, regardless of the type, must be
reconciled on a regular basis (i.e., monthly or quarterly) to ensure
each partner program is contributing no more than its proportionate
share, in accordance with the Uniform Guidance at 2 CFR part 200. No
other change to the regulatory text is made in response to these
comments.
Section 678.720 What funds are used to pay for infrastructure costs in
the local one-stop infrastructure funding mechanism?
Section 678.720 explains the funds that one-stop partners may use
to pay for one-stop infrastructure costs. In funding the one-stop
infrastructure costs, partner programs must satisfy the requirements of
their authorizing statutes and regulations. Further, all one-stop
partners must work together to administer the partner programs and the
one-stop and other activities of the core programs under WIOA as
efficiently and effectively as possible. This will ensure that, as
recipients and stewards of Federal funds for all of these programs, the
partners and their subrecipients, when allowable under a partner
program's authorizing statute, administer these programs and activities
to meet all applicable legal requirements and goals. It is important to
note that the different Federal statutes and regulations of partner
programs define administrative costs slightly differently. Some
programs' statutes and regulations define all of the infrastructure
costs listed in Sec. 678.700 as administrative costs, while other
programs' statutes and regulations define some of the infrastructure
costs as administrative costs, and some as program costs. Under Sec.
678.720 of these final regulations, one-stop partner programs must
adhere to the administrative and program cost limitations and
requirements to which they are subject.
Several changes were made to this section in response to public
comments received by the Departments on the NPRM. In Sec. 678.720(a),
language was added clarifying that, for WIOA title I programs,
infrastructure costs may be considered program costs. Also in paragraph
(a), a distinction was made between title II programs and programs
authorized under the Perkins Act. Because the proposed Joint Final Rule
had designated the State eligible agency under the Perkins Act as the
required one-stop partner, it consequently required that infrastructure
costs be paid from the funds reserved by the State eligible agency for
State administrative expenses. The joint Final Rule, instead,
designates that the Perkins one-stop partner is the eligible recipient
at the postsecondary level, or a consortium of eligible recipients at
the postsecondary level in a local area. Consequently, the joint Final
Rule requires that infrastructure costs under the Perkins Act be paid
from funds available for Perkins postsecondary recipients' local
administrative expenses, or from other funds made available by the
State. The Joint Final Rule also changes the source of infrastructure
funding for the title II program, specifying that these costs be paid
from the funds available for local administrative expenses or from non-
Federal resources that are cash, in-kind or third-party contributions.
Also the Departments added a new paragraph (c) and associated
subparagraphs to Sec. 678.720 in response to requests for further
clarification, which cover the distinctions between and definitions of
cash, non-cash, and third-party in-kind contributions to meet partner
programs' infrastructure costs contribution obligations. In addition,
the Departments provided operating guidance and technical assistance to
the public workforce system, and will continue to provide such
assistance, as needed. A detailed discussion of the Departments'
responses to public comments received on this section follows
immediately below.
Comments: A commenter indicated that this section ``is in error in
its implication of Perkins State administration funding to support
local one-stop infrastructure.'' This commenter asserted that directing
Perkins Act State administration is a violation of the uses of funds
for such dollars as articulated in Perkins Act sec. 112(a)(3). The
commenter recommended revising Sec. 678.720(a) to read: ``In the case
of partners administering the Carl D. Perkins Career and Technical
Education Act of 2006, these funds shall include local administrative
funds available to local eligible institutions or consortia of such
institutions.'' The commenter further stated that Perkins Act funds are
not divided among secondary and postsecondary career and technical
education programs; the distribution between the eligible recipients
only takes place at the local level, and this section and Sec.
678.740(d) should be revised to apply only to local-level funding
instead of the Perkins eligible agency and the State's administrative
dollars. Another commenter agreed, stating that the regulations appear
to require duplicate Perkins funds, including both State and local
Perkins administrative funds. The commenter similarly indicated that
this is a new use of Perkins State administrative funds. Another
commenter interpreted the intent of this section to mean that when the
Perkins State eligible agency delegates authority to local entities to
serve as one-stop partners, the State agency may require the use of
local administrative funds in lieu of State administrative funds.
Departments' Response: The Joint WIOA NPRM designated the State
eligible agency under the Perkins Act as the required one-stop partner,
and consequently required that infrastructure costs be paid from the
funds reserved by the State eligible agency for State administrative
expenses. The Final Rule instead designates that the Perkins one-stop
partner is the eligible recipient at the postsecondary level, or a
consortium of eligible recipients at the postsecondary
[[Page 55909]]
level in the local area. The Departments have determined that this
change is consistent with WIOA sec. 121(b)(1)(B)(iv) which designates
local one-stop Perkins partners as the entity that carries out career
and technical education programs at the postsecondary level, authorized
under the Perkins Act, in a local area. However, the Departments have
concluded the State's involvement could be valuable at the negotiation
stage and have modified Sec. Sec. 678.415(e) and 678.720(a) to provide
that the local recipients at the postsecondary level may request
assistance from the State eligible agency in completing its
responsibilities in negotiating local MOUs. To meet their obligations
to cover their proportionate share of infrastructure costs, Perkins
postsecondary recipients may use funds available for local
administrative costs under the Perkins Act, or draw from other funds
made available by the State, at the State's discretion.
Comments: A commenter stated that Perkins funds are not divided
among secondary and postsecondary career and technical education
programs; rather, the distribution between the eligible recipients only
takes place at the local level, and Sec. Sec. 678.720 and 678.740(d)
of the NPRM should be revised to apply only to local-level funding
instead of the Perkins eligible agency and the State's administrative
dollars.
Departments' Response: As stated above, this comment was taken into
consideration in making the final regulatory text changes indicating
that the Perkins one-stop partner is the eligible recipient at the
postsecondary level, or a consortium of eligible recipients at the
postsecondary level in the local area.
Comments: A commenter stated that the regulations appear to require
duplicate Perkins funding, including both State and local Perkins
administrative funds. The commenter said that this is a new use of
Perkins State administrative funds.
Departments' Response: Perkins State funds are no longer required
to be used to pay for infrastructure costs, as outlined above, but may
be made available by the State, at the State's discretion.
Comments: A commenter said that Sec. 678.720(a) of the NPRM limits
title II contributions to no more than five percent of the Federal
AEFLA funds received by the State. The commenter said that the
Departments should direct States to distribute a share of other title
II funds to local partners to pay for infrastructure costs.
Departments' Response: The Departments do not have the authority to
direct the States to do this. Section 233(a)(2) of WIOA specifically
provides that up to five percent of the AEFLA funds allocated to local
eligible providers shall be used for administrative costs, including
costs related to the one-stop partner responsibilities in sec.
121(b)(1)(A). These responsibilities include contributing to
infrastructure costs. Under sec. 233(a)(1), 95 percent of the funds
allocated to local eligible providers must be used for carrying out
adult education and literacy activities. However, under sec. 233(b), if
the five percent cost limit is too restrictive to permit the local
eligible provider to cover the local administrative costs, including
the payment of infrastructure costs, the local eligible provider
negotiates with the State eligible agency to determine an adequate
amount to be used for non-instructional purposes. No change to the
regulatory text was made in response to this comment.
Comments: A few commenters asked if the approach described in Sec.
678.720(a) would allow ``the Federal funding stream to sidestep its
responsibility to cover costs relative to the benefit received by the
program.''
Departments' Response: As described at the beginning of this
section, changes have been made to the local funding mechanism to
explain partner responsibilities and make clear that programs must
contribute their proportionate share based on proportionate use and
relative benefit received.
Comments: Some commenters stated that because WIOA sec. 121 does
place a cap on infrastructure funding for the VR program, Sec. 678.720
should not state that there is no cap on the funding a one-stop partner
may contribute.
Departments' Response: The caps on infrastructure funding, which
are addressed in Sec. 678.738, apply to what the Governor can require
partner programs to contribute under the State funding mechanism,
triggered when local partners cannot reach consensus on the local-
funding mechanism. If a partner program chooses to contribute more than
the cap for its program under the State funding mechanism, it can do
so, as long as such contributions reflect its proportionate share,
consistent with the Uniform Guidance. On the other hand, if the State
funding mechanism is not triggered, neither WIOA sec. 121 nor Sec.
678.720 of these final regulations impose a limitation on how much a
core program may contribute for infrastructure costs. No change to the
regulatory text was made in response to these comments.
Comments: A commenter said that infrastructure costs should use
only a portion of the available administrative cost amount, otherwise
there will be no funds available for other administrative costs
associated with operating the program.
Departments' Response: A one-stop partner program's contributions
to infrastructure costs under the local funding mechanism is limited in
that contributions for administrative costs may not exceed the amount
available for administrative costs under the authorizing statute of the
partner program. In addition, the amounts contributed for
infrastructure costs must be allowable and based on proportionate use
of the one-stop centers and relative benefit received by the partner
program, and must be consistent with 2 CFR part 200, including the
Federal cost principles. No change to the regulatory text was made in
response to this comment.
Comments: Another commenter requested additional clarification on
the process and role of adult education programs in contributing to
infrastructure costs.
Departments' Response: Upon further review, the Departments note
that sec. 233(a)(2) of WIOA specifically provides that adult education
program local administrative funds, rather than the State
administration funds referenced in the NPRM, are to be used for one-
stop partner responsibilities under WIOA sec. 121(b)(1)(A). These
responsibilities include contributing toward one-stop infrastructure
costs. Further, while AEFLA caps the amount that may be used for local
administrative expenses at five percent under sec. 233(a)(2) of WIOA,
the State adult education agency may increase the amount that can be
spent on local administration in cases where the cost limits are too
restrictive to allow for specified activities. This may include funding
one-stop center infrastructure that would be part of the one-stop
partner responsibilities to be carried out by the eligible provider in
a local area.
The NPRM permitted the State eligible agency to use non-Federal
funds that it contributes to meeting the program's matching or
maintenance of effort requirements for infrastructure costs under both
the local and State-level infrastructure funding mechanisms. Upon
further review, the Departments have determined that providing States
and local entities even greater flexibility to leverage non-Federal
resources to pay infrastructure costs is appropriate.
[[Page 55910]]
The text of Sec. Sec. 678.720 and 678.740 have been revised to
provide that funds for infrastructure costs for the adult education
programs under the local funding mechanism and State funding
mechanisms, respectively, must include Federal funds available for
local administration of the programs and non-Federal resources that are
cash, non-cash, or in-kind or third-party contributions.
Comments: A few commenters said that in times of limited resources,
requiring one-stop partners to pay for infrastructure costs out of
administrative funds could have the effect of limiting their
participation in the one-stop delivery system.
Departments' Response: Each one-stop partner will enter
negotiations around the MOU and infrastructure funding agreement with
the knowledge of their budgets and the requirements of their program
statutes. The Departments hope that all partners find that developing a
truly integrated one-stop center system results in efficiencies and
enables partners to provide services in a cost effective manner that
allows them to support the infrastructure costs of the one-stop center.
No change to the regulatory text was made in response to these
comments.
Comments: A commenter expressed support for the flexibility
provided to partners to use State or local funding options as long as
there is minimal administrative burden. A couple of commenters
expressed support for State and Local WDBs to have flexibility to
determine how to meet their cost sharing requirements.
Departments' Response: The Departments agree that these final
regulations provide flexibility to one-stop partners in determining
infrastructure funding contributions.
Comments: A commenter asked if there is a difference between
administrative and overall funding for one-stop partners.
Departments' Response: As discussed above, the Federal statutes and
regulations governing each of the partner programs define
``administrative costs'' differently; therefore, partners must comply
with program-specific requirements governing the expenditure of funds
for such purpose.
Comments: A commenter supported only administrative funds being
used for one-stop infrastructure costs. Another commenter suggested
that workforce development funds should not be co-mingled with career
and technical education funds for purposes of funding and allocating
one-stop infrastructure costs.
Departments' Response: WIOA does not require or authorize blending
or co-mingling of partner funds. Rather, the local MOU and
infrastructure funding agreement will identify the infrastructure and
operating costs of the one-stop center and develop a cost allocation
methodology to determine each partner's proportionate share for both
types of costs, consistent with the Uniform Guidance set forth in 2 CFR
part 200. This process is similar to what has been done by one-stop
partners for several years and it has been working well among one-stop
centers in many local areas. Partners can contribute cash, noncash, or
third-party in-kind contributions to the Local WDB to satisfy their
share. However, infrastructure costs, unlike other shared operating
costs, do not include personnel costs and therefore may not be paid for
with in-kind personnel time. No change to the regulatory text was made
in response to these comments.
Section 678.725 What happens if consensus on infrastructure funding is
not reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?
The Departments have concluded that WIOA sec. 121(h)(1)(A)(i)
requires that consensus agreement on the methods of sufficiently
funding the costs of infrastructure be reached in negotiations,
beginning July 1, 2016. The Departments informed the public and all
relevant parties that this section of the WIOA regulations will not be
implemented for PY 2016. The workforce development system was informed
of this decision through the issuance of a Frequently Asked Question
(FAQ) that was posted on agency Web sites on January 28, 2016 (see
https://www.doleta.gov/wioa/FAQs.cfm). The regulatory text of this
section has been revised to further clarify these provisions and to
provide that the provisions outlined in this section on the State
funding mechanism will be applicable to program years beginning with PY
2017. Before that time, State agencies of the Governor will have issued
the mechanism to follow if a local area fails to reach a local
infrastructure funding agreement through the process of negotiating
MOUs with the required programs.
Section 678.725 states that failure to sign the MOU containing the
final infrastructure funding agreement or interim agreement by the
beginning of each program year would trigger the State funding
mechanism. This section states that Local WDBs must notify the Governor
by the deadline established by the Governor's infrastructure guidance
developed under Sec. 678.705(b)(3) if the local partners cannot reach
consensus. The State will monitor the local areas to address violations
of the Governor's guidance. The Governor's guidance might establish an
earlier date for notification of a lack of consensus to the State, or
of milestones or decision points in the negotiation process, to ensure
the uninterrupted services of the one-stop services in the local area.
A detailed discussion of the Departments' responses to public comments
received on this section follows immediately below.
Comments: A commenter suggested that the regulations should state
that if the Governor has to intervene to establish local contributions,
that the contribution will be supported with similar funding sources
for all contributors.
Departments' Response: The State funding mechanism will be made
public prior to application in any local area, and the framework used
to determine contributions is the same for all contributors (see Sec.
678.730). There is no statutory requirement in WIOA sec. 121(h) that
partners contribute funds for one-stop infrastructure costs under the
State funding mechanism from similar sources, as the commenter
recommends. The State funding mechanism is developed at the State--not
the Federal--level; it would not be appropriate to accept the
commenter's suggestion. The Departments decline to do so.
The framework used to determine contributions, however, would be
the same for all contributors statewide (see Sec. 678.730). It also
should be noted that, while under the local funding mechanism partner
programs may contribute through any funds allowed by their authorizing
statutes, under the State funding mechanism, infrastructure funds must
come from administrative funds for the majority of partner programs.
Section 678.730 What is the State one-stop infrastructure funding
mechanism?
This section--as well as Sec. Sec. 678.735 and 678.740--has
undergone significant changes from the NPRM in both content and
structure, although the core principles of the State funding mechanism
remain the same. Several sections have been added to both break the
previous section into more concise parts and to provide further clarity
and structure to the State funding mechanism regulations, including
Sec. 678.731, which outlines the steps to implement the State
mechanism. The Departments recognize that the State
[[Page 55911]]
funding mechanism is still complex, and further guidance regarding its
design and implementation will be released.
As outlined in Sec. 678.730(b)(1) through (3) of this section, the
framework for the State funding mechanism consists of three essential
steps to be performed by the Governor once the State mechanism has been
triggered by the submission of a notice by the Local WDB that no
consensus could be reached in the MOU negotiations:
(1) A budget must be determined for the infrastructure costs for
one-stop centers in the local area (Sec. 678.735).
(2) Each partner's proportionate share must be determined
(Sec. Sec. 678.736 and 678.737).
(3) The calculation of the required funding caps must be made,
along with any associated reconsiderations and adjustments to the
budget or partner's proportionate share (Sec. 678.738).
These steps are detailed in Sec. Sec. 678.731 and 678.735 through
678.738 of the regulatory text and the associated discussion sections
below, which include an example scenario. A detailed discussion of the
Departments' responses to public comments received on this section
follows immediately below. Minor changes were made to NPRM Sec.
678.735(b), which covered instances in which the Governor does not
determine the infrastructure funding contribution for certain partners,
and this section was moved to Sec. 678.730(c) of the Final Rule.
Comments: One commenter remarked that the requirements in this
section are complex, onerous, and will be costly to administer.
Specifically, the commenter expressed concern with (1) the annual
identification of each partner's required share based on proportionate
use, in the absence of a data collection system to accurately track
program participants for each partner; (2) collecting and accounting
for the funds; (3) ongoing administration, including tracking each
partner's contributions; and (4) periodically reviewing costs charged
to each partner to ensure they are still in line with proportionate use
and benefit.
Departments' Response: As mentioned above, the Departments
recognize the complexities of the State funding mechanism and have
taken steps to address this. While there will be a cost associated with
implementing the State funding mechanism, this cost will be mitigated
by the provision of all negotiation materials and documents from the
local area to the Governor, as is required by Sec. 678.735(a).
As to the collecting and accounting for funds, the Governor never
actually takes possession of any funds, but instead determines a local
budget in accordance with Sec. 678.735, as well as partner
contributions, and directs partners to pay for their share of
infrastructure costs from the individual partner program's funds, as is
specified by Sec. Sec. 678.736 and 678.737. Furthermore, the Governor
will not be managing the local plans; the Local WDB and one-stop
operator will carry on their duties as under any locally reached
agreement. The only difference in the State funding mechanism is that
the Governor determines what the infrastructure funding agreement
portion of the MOU looks like.
Comments: One commenter expressed confusion over how the State
funding mechanism will operate. The commenter stated that in some
provisions, it seems that the Governor would assemble a single
statewide fund consisting of local contributions, and then distribute
them to local areas using the formula established by the State WDB. In
other provisions, according to the commenter, it appears that the
Governor would decide on an area-by-area basis what the contributions
from each partner should be, and collect and allocate those funds to
that local area only. Another commenter requested additional clarity on
how this mechanism would work, particularly when there is potential for
conflict between the partners. A Local WDB requested examples of
creating and implementing the one-stop funding provisions.
Departments' Response: The Governor and the State WDB are required
to develop and issue guidance to be used by the local areas in
negotiating agreements for the funding of the one-stop delivery system,
particularly guidance about the roles of one-stop partners and
approaches to facilitate equitable and efficient cost allocation for
infrastructure costs. The guidance, as required by Sec. 678.705, also
would include the development of a State funding mechanism that will be
used only in the event that a local area fails to reach an agreement.
As to the collecting and accounting for funds, the Governor never
actually takes possession of any funds, but they instead determine a
local budget in accordance with Sec. 678.735, as well as partner
contributions, and direct partners to pay for their share of
infrastructure costs from the individual partner program's funds, as is
stated by Sec. Sec. 678.736 and 678.737.
Section 678.731 What are the steps to determine the amount to be paid
under the State one-stop infrastructure funding mechanism?
This section was not in the NPRM; and therefore, the Departments
did not receive any comments on it directly, but it was created in
response to comments that said the State funding mechanism was
confusing and overly complex. This section lists the individual steps
that must be taken by the Local WDB and the Governor in order to
implement the State funding mechanism in order to clarify this process.
Section 678.735 How are infrastructure cost budgets for the one-stop
centers in a local area determined in the State one-stop infrastructure
funding mechanism?
In response to comments pointing out the complexity of the State
funding mechanism regulations, the original Sec. 678.735 (``How are
partner contributions determined in the State one-stop funding
mechanism?'') was broken up into four separate sections and
considerably expanded to provide more assistance in explaining how this
process will work. Section 678.735 now covers the Governor's
determination of the one-stop infrastructure budget under the State
funding mechanism. This includes a requirement for the Local WDB to
provide the Governor with all pertinent materials from the failed local
negotiations (Sec. 678.735(a)), and provisions for a Governor adopting
a budget that was agreed upon at the local level (Sec. 678.735(b)(1)
and (2)), as well as for situations when the adoption of such a budget
would not be appropriate or is impossible because one was never locally
agreed upon (Sec. 678.735(b)(3)). In the case of the later situation,
the Governor must use the formula created by the State WDB for
determining the budget, as is described in Sec. 678.745. A detailed
discussion of the Departments' responses to public comments received on
proposed Sec. 678.735 follows immediately below.
In this section of the NPRM preamble, the Departments stated that
Native American programs must contribute to infrastructure funding as
required one-stop partners and must negotiate with the Local WDB on
that contribution amount. Upon further review, the Departments have
determined that Native American programs are not required to contribute
to infrastructure funding, but as required one-stop partners they are
encouraged to contribute. Any agreement regarding the contribution or
non-contribution to infrastructure funding by Native
[[Page 55912]]
American programs must be recorded in the signed MOU (see WIOA sec.
121(h)(2)(D)(iv)). The Departments have determined that the regulatory
text proposed in the NPRM is supported by WIOA and the revised
statement above properly reflects both the regulatory text and WIOA. As
such, no change to the regulatory text was necessary to address this
issue.
Comments: Many commenters requested clarification on whether the
1.5 percent cap on funding one-stop infrastructure funds for title II
is calculated from the State administration funds, or from the total
adult education grant. The commenters stated that if it is 1.5 percent
of the total grant, and the funds must be taken from the State
administration funds within the grant, that would require 30 percent of
the State administration funds to be used for one-stop infrastructure.
The commenters asked the Departments to clarify that the cap is 1.5
percent of State administration funds, not the total grant.
Departments' Response: The calculation of the percentage of funds
to be used for infrastructure is from the total State grant award. The
1.5 percent cap on contributions of funds from the adult education
program is a statewide cap, as implemented in Sec. 678.738. In
accordance with Sec. 678.738(b)(1), the Governor must ensure that the
funds required to be contributed by each partner program in the local
areas in the State under the State funding mechanism, in aggregate, do
not exceed the statewide cap for each program. Thus, the amount of
funds contributed by each AEFLA partner program in the local areas in
the State, in aggregate, cannot exceed the 1.5 percent statewide cap
for the AEFLA program, as calculated under Sec. 678.738(a). The funds
that the local AEFLA partners contribute toward infrastructure costs
must be paid from funds that are available for local administration or
from State or other non-Federal resources that are cash, in-kind, or
third-party contributions.
Comments: Many of these commenters also stated that it is not
fiscally practical for programs such as adult education and NFJP that
cover multiple Local WDB regions to give 1.5 percent to each Local WDB.
These commenters asked the Departments to clarify that a local program
only needs to provide a maximum of 1.5 percent of its administration
funds to infrastructure costs.
Departments' Response: For the State funding mechanism,
infrastructure costs for the adult education program authorized by
title II of WIOA must be paid from funds that are available for local
administration or from State or other non-Federal resources that are
cash, in-kind, or third-party contributions. No matter the program, be
it NFJP, adult education, or other, the percentage cap mentioned in the
comment does not apply at the local level or to areas under the local
funding mechanism, but to the aggregate amount of funds for local
partners of a particular program across the entire State which are in
local areas operating under the State funding mechanism.
Comments: A commenter said that because only postsecondary Perkins
is a mandatory partner, the 1.5 percent cap is the amount used for
administration of postsecondary programs and activities. Another
commenter agreed but also said that at the State level there is no
distinction between funds available for postsecondary programs and
those available for secondary programs. Another commenter asked whether
the predetermined amounts are in addition to the ``fair share''
allocation formulas in Sec. 678.730.
Departments' Response: To clarify, because only local postsecondary
Perkins programs are mandatory one-stop partners, the 1.5 percent cap
is calculated based upon the amount made available by the State for
postsecondary level programs and activities under sec. 132 of the
Perkins Act (distribution of Perkins funds for postsecondary education
programs) and the amount of funds used by the State under Perkins Act
sec. 112(a)(3) during the prior year to administer postsecondary level
programs and activities, as applicable. The Departments have clarified
the regulatory text to reflect this. As a reminder, the Final Rule
designates that the Perkins one-stop partner is the eligible recipient
at the postsecondary level, or a consortium of eligible recipients at
the postsecondary level in the local area. To meet their obligations to
pay infrastructure costs, Perkins postsecondary recipients may use
funds available for local administrative costs under the Perkins Act,
or draw from other funds made available by the State.
Comments: Some commenters expressed support for the cap for the VR
contribution.
A few commenters stated that the Wagner-Peyser Act and VR program
do not distinguish between administrative and programmatic funds,
resulting in Wagner-Peyser Act programs in particular providing a
disproportionate share of infrastructure costs. The commenters
recommended the Departments study the allocation percentages no later
than WIOA reauthorization in 2020.
Departments' Response: The commenters are correct that the Wagner-
Peyser Act program does not make a distinction between the program
funds that must be used for the provision of services and those funds
that must be used for administrative costs.
WIOA requires partner contributions determined through the State
funding mechanism to come from administrative sources. The ED's
Rehabilitation Services Administration (RSA) has revised 34 CFR
361.5(c)(2)(viii) to clarify that the definition of ``administrative
costs'' includes those costs associated with the infrastructure of the
one-stop delivery system, regardless of whether the VR partner
contribution is determined through the local or State funding mechanism
(see ED Office of Special Education and Rehabilitative Services Final
Rule, RIN 1820-AB70, Docket No. ED-2015-OSERS-0001). Historically,
infrastructure costs were considered administrative based upon the
statutory and regulatory provisions of the VR program. This
clarification will ensure one-stop costs are treated in accordance with
long-standing practices in the VR program and will ensure that similar
costs are not treated differently based upon which funding mechanism is
utilized to determine the VR partner infrastructure contribution.
The Departments want to make clear, however, that each program may
contribute only an amount that does not exceed its proportionate share
in accordance with the Uniform Guidance set forth in 2 CFR part 200 and
an agreed-upon cost allocation methodology developed by the one-stop
partners. In so doing, neither partner should be paying a
disproportionate share because it would not be an allowable cost under
the Uniform Guidance and could not be allocable to the program. The
question of studying the allocation percentages in advance of the WIOA
reauthorization is not pertinent to these regulations.
Comments: A few commenters said that there is an inherent inequity
among the caps for various programs such that some programs'
contributions to infrastructure costs, when spread across multiple
local areas and one-stop centers, would be negligible.
Departments' Response: The Departments want to clarify that the
statutory caps on administrative funds apply only when the State
funding mechanism is triggered due to the inability of one or more
Local WDBs in a State to reach consensus regarding the funding of local
one-stop centers. The Departments encourage Local WDBs to develop MOUs
among each of the one-
[[Page 55913]]
stop partners that sufficiently fund the one-stop delivery system so
that the State funding mechanism, and hence the funding caps, are not
needed. Because the administrative caps apply only when the State
funding mechanism is triggered, partner programs may contribute more
than the cap amount under the local funding mechanism. The partners'
shares may be contributed in cash, non-cash, and, in certain
aforementioned circumstances, in-kind contributions. However, the
partners may not contribute more than their proportionate share.
Comments: A commenter remarked that the Departments should provide
a more clear definition of ``proportionate benefit,'' as some partners
may claim no benefit from the one-stop delivery system and therefore
not contribute to infrastructure costs.
Departments' Response: The allocation of infrastructure costs by
partner program must be based on methodologies that are driven by
proportionate use of the one-stop centers and relative benefit
received, as determined by the Uniform Guidance principles at 2 CFR
part 200. The benefit is not subjective, as the commenter suggests, but
rather the benefit is based on a cost allocation methodology that
determines the proportion of the costs that are allocable to the use of
the partner program at the one-stop center.
Comments: Another commenter urged the Departments to recognize that
the Perkins Act funds systems and programs instead of individuals, so
the proportionality determination will be difficult to implement
because there are no data to determine relative benefit on a per-
student basis.
Departments' Response: The allocation of infrastructure costs by
partner program must be based on methodologies that are driven by
proportionate use of the one-stop centers and relative benefit
received, as determined by the Uniform Guidance principles at 2 CFR
part 200. When making this determination, the calculation is per-
program, rather than per-individual. The Departments do not conclude
that the fact that Perkins funds systems and programs, rather than
individuals, will present an issue for Governors when making this
determination. In addition, the Governor has discretion to determine a
reasonable cost allocation methodology provided that the calculation of
proportionate share is consistent with the Uniform Guidance in 2 CFR
part 200, particularly that all costs charged to partners, including
Perkins partners, are in proportion to use of the one-stop center, and
constitute allowable, reasonable, necessary and allocable costs. No
change to the regulatory text was made in response to this comment.
Comments: One commenter hoped the funding obligations for a
particular program are determined in the context of program resources
and any in-kind support the one-stop receives from program
participants.
Departments' Response: Infrastructure funding contributions are
either determined using the local or State mechanism. Under each, the
proportionate share principle is key; the partners should be
contributing an amount proportionate to their use of the one-stop
center. Determining this under the local mechanism is completely left
up to the local partners and Local WDB to work out in the MOU, as long
as it follows the Federal cost principles of the Uniform Guidance.
Under the State mechanism, specific language in Sec. 678.737(b)(2)
requires the Governor to take into consideration program resources in
determining proportionate share. Under both mechanisms, third-party in-
kind contributions are acceptable contributions to infrastructure
funding, as is detailed in Sec. 678.720. No change to the regulatory
text was made in response to this comment.
Comments: One commenter asserted that there would be many
administrative difficulties for Wagner-Peyser Act contributions if they
are required to be calculated on a fiscal year basis, because Wagner-
Peyser Act funds are provided on a program year basis.
Departments' Response: The Departments want to make clear that
there is no requirement in WIOA or these final regulations that the
one-stop delivery system be funded on a fiscal year, as the commenter
seems to suggest. Many of the required partners are funded on different
fiscal periods (e.g., some are funded on a program year basis while
others are funded on a Federal fiscal year basis); so, accounting
methodologies will have to be employed to resolve such differences.
Comments: A commenter encouraged the Departments to clarify their
guidelines for infrastructure cost sharing, including in-kind
contributions, and the use of administrative vs. program funds.
Departments' Response: The Departments acknowledge that guidance
will assist stakeholders in the public workforce system with
understanding how to negotiate infrastructure cost sharing agreements
and understand other aspects of funding the one-stop delivery system,
such as in-kind contributions and the allocation of costs. Some of this
guidance is currently available in the form of TEGLs on a variety of
subjects, such as, the ``Operational Guidance to Support the Orderly
Transition of Workforce Investment Act Participants, Funds, and
Subrecipient Contracts to the Workforce Innovation and Opportunity
Act'' (TEGL No. 38-14), ``Workforce Innovation and Opportunity Act
Transition Authority for Immediate Implementation of Governance
Provisions'' (TEGL No. 27-14), ``Vision for the One-Stop Delivery
System under the Workforce Innovation and Opportunity Act (WIOA)''
(TEGL No. 4-15), ``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'' (TEGL No.
3-15), ``Workforce Innovation and Opportunity Act (WIOA) Youth Program
Transition'' (TEGL Nos. 23-14 and 8-15), among others. All DOL WIOA
operating guidance can be located at www.doleta.gov/wioa, and all
associated ED documents may be found at www2.ed.gov/about/offices/list/osers/rsa/wioa-reauthorization.html and www2.ed.gov/policy/adulted/guid/memoranda.html.
In addition, cost principle guidance is provided in the Uniform
Guidance at 2 CFR part 200 on the use of Federal funds, and in the
existing financial Technical Assistance Guide (TAG) handbooks
previously issued by DOL, which are still applicable to WIOA (see
http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm).
Nevertheless, the Departments' intention is to continue to provide
system guidance and technical assistance on all aspects of WIOA
throughout the life of this authorizing legislation.
Comments: A commenter said that for the TANF program, the cap of
1.5 percent of the Federal funds provided to ``carry out that education
program or employment and training program'' should instead state
``education program or employment and training activities.'' The
commenter also urged the Departments to clarify that ``education
program'' only refers to the TANF funds used to serve adults or teen
heads of households in needy families, not dependent children in low-
income households.
Departments' Response: The addition of Sec. 678.738(c)(5) provides
that for purposes of TANF, the cap on contributions is determined based
on total Federal TANF funds expended by the State for ``work,
education, and training activities'' during the prior
[[Page 55914]]
Federal fiscal year as reported by States to HHS on the Quarterly TANF
Financial Report form (and associated administrative expenditures).
Section 678.736 How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs'
proportionate shares of infrastructure costs under the State one-stop
infrastructure funding mechanism?
This new section was created from portions of proposed Sec.
678.735 in the NPRM in response to comments regarding the complexity of
the State funding mechanism. The new Sec. 678.736 details how the
Governor is to establish a cost allocation methodology for determining
partner programs' proportionate shares of one-stop infrastructure
costs. The idea that partner programs should make contributions to
infrastructure costs that are proportionate to the benefit they receive
from one-stop centers is central to the funding of the one-stop
delivery system under WIOA. There are a variety of methods that may be
used--e.g., square footage occupied, number of staff present, number of
people served--to make the determination of partner programs'
proportionate share. It is important that the Governor choose a
methodology that is consistent with the requirements of the Uniform
Guidance found at 2 CFR part 200.
Section 678.737 How are one-stop partner programs' proportionate shares
of infrastructure costs determined under the State one-stop
infrastructure funding mechanism?
This new section is another created from the NPRM's proposed Sec.
678.735 in response to comments regarding the complexity of the State
funding mechanism, and details the steps that should be taken by the
Governor to determine partner programs' proportionate share of the one-
stop infrastructure costs. In addition to the methodology determined in
Sec. 678.736, Sec. 678.737(b)(2) states that the Governor must take
into account a number of factors, including the costs of administration
of the one-stop delivery system for purposes not related to one-stop
centers for each partner, costs associated with maintaining the Local
WDB or information technology systems, as well as the statutory
requirements for each partner program, all other applicable legal
requirements, and the partner program's ability to fulfill such
requirements. The Governor may also take into account the extent to
which proportionate shares were agreed upon in the failed local
negotiations, as well as any other elements of the negotiation process
provided to the Governor per Sec. 678.735(a).
Section 678.738 How are statewide caps on the contributions for one-
stop infrastructure funding determined in the State one-stop
infrastructure funding mechanism?
This is the final new section created from proposed Sec. 678.735
in response to comments regarding the complexity of the State funding
mechanism, covering the caps that apply to program funding that can be
designated by the Governor as one-stop infrastructure funding.
Paragraph (a) of Sec. 678.738 is a step-by-step instruction on how the
Governor is to calculate the cap for each program. First, the Governor
determines the maximum potential cap amount in the State by determining
the amount of Federal funds provided to the State to carry out a one-
stop partner program for the applicable fiscal year multiplied by the
cap percentage applicable to that program under paragraph (c) of Sec.
678.738. Second, the Governor selects a factor or factors that
reasonably indicates the use of one-stop centers in the State (such as
the total population). The Governor then determines the percentage of
that factor applicable to the local areas that reached consensus under
the local funding mechanism (for example, 70 percent of the State
population resides in those areas). This percentage is applied to the
amount of the maximum potential cap. The resulting amount (70 percent
of the maximum potential amount) is then deducted from the maximum
potential cap amount to produce the applicable cap amount for the local
areas subject to the State funding mechanism. This approach recognizes
that the statewide caps only apply to those local areas that do not
reach consensus, and are not applicable to the local areas that reach
agreement. Therefore, the actual amounts of infrastructure agreed to in
those local areas that reach agreement should not affect the cap
amounts available to those local areas that do not reach agreement.
Instead, the applicable cap is determined by selection and application
of a factor or factors that would reflect the relative expected use of
one-stop centers in the local areas subject to the cap.
Paragraph (b) details the requirement that, in aggregate, a program
statewide does not exceed the caps, including only those local partner
programs in areas under the State funding mechanism (Sec.
678.738(b)(1)), as well as the steps to be taken in the event that the
proportionate share of a partner causes a program's aggregate
infrastructure funding to exceed the cap (Sec. 678.738(b)(1) through
(4)).
Paragraph (c) of Sec. 678.738 sets out the specific limitations
put on infrastructure funding from each program, and Sec. 678.738(d)
gives instructions on calculating the caps for programs for which it is
not feasible to determine the amount of Federal funding used by the
program until the end of the fiscal or programmatic year. While the
methodologies of these programs somewhat differ in application, the
methodologies for the CSBG and TANF programs are similar to that used
for the Perkins program because in each case the State is asked to make
a determination regarding the amount of administrative costs that are
related to relevant education, employment, and training activities
carried out within the respective program.
The following is an example scenario to determine one partner
program's cap: Partner Program A (a WIOA formula program) receives
[x]--in this example, $30 million--to carry out its program in the
State in the applicable year. There are seven local areas in the State,
two of which have not been able to reach consensus through the local
funding mechanism. Because Partner Program A is a WIOA formula program,
the limitation percentage [p] given in Sec. 678.738(c)(1) is applied
to the Federal dollars received in total by the program statewide. The
example below uses three percent for [p], resulting in a maximum
potential cap of $900,000 [y]. The maximum potential cap [y] is
calculated by multiplying the program dollars [x] by the percentage
[p], in this example yielding $900,000.
px = y
.03 x 30,000,000 = 900,000
The Governor then selects a factor [f] that reasonably indicates
the use of one-stop centers in the State--such as total population. The
Governor then determines the percentage of the total population that
resides in the local areas that have reached agreement. In this
example, local areas that have reached agreement represent 70 percent
of the State's total population. Next the Governor applies this
percentage to the maximum potential cap [y], $900,000, giving the
amount of these dollars represented by the local areas in agreement
[z]: $630,000.
fy = z
0.7 x 900,000 = 630,000
Finally, the Governor subtracts this amount [z], $630,000, from
maximum potential cap [y], $900,000, giving the amount of the cap to be
used for those two areas under the State funding mechanism [c],
$270,000.
[[Page 55915]]
y - z = c
900,000 - 630,000 = 270,000
This means that the aggregate of the infrastructure contributions
made by the two local partner programs in local areas operating under
the State funding mechanism must not exceed $270,000. This calculation
must then be done for all the other partner programs in those local
areas.
For the VR program, WIOA sec. 121(h)(2)(D)(ii)(III) and Sec.
678.738(c)(3) establishes the limitations for the amount the VR program
can be required to contribute toward the funding of the one-stop
delivery system's infrastructure costs. In the first year that the
State funding mechanism could be applicable--e.g., PY 2017 beginning
July 1, 2017 (see explanation above)--the VR program may contribute no
more than 0.75 percent of the State's FY 2016 VR allotment (see sec.
121(h)(2)(D)(ii)(III)(aa)). If a local area fails to reach an agreement
for purposes of PY 2018, the VR program cannot be required to pay more
than one percent of its FY 2017 VR allotment (see sec.
121(h)(2)(D)(ii)(III)(bb) of WIOA). If a local area fails to reach
agreement for purposes of PY 2019, the VR program cannot be required to
contribute more than 1.25 percent of its FY 2018 VR allotment (WIOA
sec. 121(2)(D)(ii)(III)(cc)). Finally, if a local area fails to reach
an agreement for PY 2020 and all subsequent years, the VR program
cannot be required to contribute more than 1.5 percent of its FY 2019
or, as appropriate, any subsequent year's VR allotment (WIOA sec.
121(h)(2)(D)(ii)(III)(dd)). In States where there are two VR agencies
(a general agency and a blind agency), the combined contribution from
these programs cannot be required to exceed the cap, which is based on
the total VR allotment to the State. In addition to this specific
funding limitation, each program, including the VR program, must comply
with the requirements of the program's authorizing statute, all other
applicable legal requirements, and the requirements in this subpart
when contributing funds to cover one-stop center infrastructure costs.
In determining the maximum amount that a VR program could
contribute toward the one-stop infrastructure costs under the State
funding mechanism, the Governor would first have to determine the
amount of the VR allotment to the State for the applicable year as
described above. Because the allotment amount to any given State could
change throughout a Federal fiscal year due to reductions made for
maintenance of effort deficits, funds returned for reallotment to other
States, and additional funds received by a State in reallotment, a
Governor should base the limitations for infrastructure costs on the
final VR allotment amount for the State for the applicable Federal
fiscal year (WIOA sec. 110 and 111 of the Rehabilitation Act, as
amended by title IV of WIOA). The final VR allotment for any Federal
fiscal year may not be determined until September 30 of that fiscal
year. Prior to that time and for planning purposes, the Governor can
use historical data to estimate or project its contributions. However,
these fluctuations of the VR allotment in any particular Federal fiscal
year should not affect the VR program's percentage that can be
attributed to the infrastructure costs under the State funding
mechanism because the final VR allotment for any year would be known
well before the implementation of the State funding mechanism for any
applicable program year.
It is important to note that WIOA sec. 121(h)(2)(D)(ii)(III) refers
to a program year (July 1 through June 30), not a Federal fiscal year
(October 1 through September 30). However, because the VR program funds
are provided to a State on a Federal fiscal year basis, the Departments
have interpreted ``program year'' in this context, for purposes of
determining the VR program's funding limitations, as meaning the funds
provided to the State to operate the VR program in a Federal fiscal
year.
As this section did not exist in the NPRM, the Departments did not
receive any comments that directly refer to it, but did receive
comments referring to some of the contributing material, which are
discussed under Sec. 678.635 of the Final Rule part 678 discussion.
Section 678.740 What funds are used to pay for infrastructure costs in
the State one-stop infrastructure funding mechanism?
This section describes the funding sources that are used under the
State funding mechanism by WIOA title I programs, adult education
programs, the Carl D. Perkins program, and other WIOA authorized
programs. Changes were made in response to comments to Sec.
678.740(d), which addresses Carl D. Perkins program infrastructure
funding sources. Because the State is no longer the default Perkins
program partner, the Departments' modified this section to state that
Perkins postsecondary recipient one-stop partners may use funds
available for administrative expenses to pay infrastructure costs and
that these funds may be supplemented by any additional funds the State
chooses to make available. A detailed discussion of the Departments'
responses to public comments received on this section follows
immediately below.
Comments: A commenter expressed concern that Sec. 678.740(d)
implies an incentive for local areas to fail to develop a local MOU, as
defaulting to the State funding mechanism could result in local areas
gaining access to State administrative funds. The commenter suggested
that the Departments should revise this paragraph to clarify that this
is not the case, particularly with regard to Perkins funds, and also
revise other paragraphs in the State funding mechanism sections to
emphasize local contributions.
Departments' Response: As stated above, Sec. 678.740(d) has been
reworded, which has taken the emphasis away from State funds and put
more on local entities funding infrastructure costs. No further change
to the regulatory text is being made in response to this comment.
Comments: Another commenter made the opposite argument, saying that
because this section is about a State funding mechanism, State funds
should be used. The commenter also said that in cases where the local
Perkins partner is entering into an MOU in the local funding mechanism
option, the regulations should clarify that no local recipient is
required to contribute more than the cap percentage (e.g., 1.5 percent)
in local administrative funds if other partners in that local area are
unable to negotiate an MOU and the State process is used for those
partners.
Departments' Response: As the State is no longer the default
Perkins partner, the suggested course of action no longer applies to
the situation. No change to the regulatory text was made in response to
this comment.
Comments: A commenter said that Combined State Plan partner
programs such as TANF would be limited to the administrative funds at
their disposal. Another commenter said that as long as the costs of
Senior Community Service Employment Program (SCSEP) funds spent on
participants and enrollees assigned to the one-stop is counted toward
the cost allocation, the regulations will minimize the impact on this
program.
Departments' Response: The TANF program is not a Combined State
Plan partner program in the one-stop delivery system, but rather it is
a required partner pursuant to WIOA sec. 121(b) unless exempted per
sec. 121(b)(1)(C). The SCSEP program is a required partner and must
contribute to the infrastructure costs of the local one-stop delivery
system. The allocation
[[Page 55916]]
methodology agreed upon by the partner programs or the Governor may
include participant counts served by the one-stop center. No change to
the regulatory text was made in response to this comment.
Section 678.745 What factors does the State Workforce Development Board
use to develop the formula described in Workforce Innovation and
Opportunity Act sec. 121(h)(3)(B), which is used by the Governor to
determine the appropriate one-stop infrastructure budget for each local
area operating under the State infrastructure funding mechanism, if no
reasonably implementable locally negotiated budget exists?
This section also underwent significant changes in response to
public comments received that stated that the State WDB formula
provisions were confusing, overly complicated, and could violate
authorizing statutes. In order to reduce the confusion centered around
the formula, step-by-step instructions are provided on how to apply the
formula when a locally negotiated budget does not exist. The new
provisions only require the use of the formula in specific situations
regarding the determination of the one-stop budget by the Governor
(i.e., when the Governor cannot, or has chosen not to, accept a locally
agreed upon one-stop budget). The formula is to identify factors and
the associated weights of these factors that the Governor must consider
when determining the one-stop budget under these situations. Included
in these factors are those statutorily required by WIOA and any other
factors related to the operation of the one-stop delivery system that
the State WDB sees as appropriate. A detailed discussion of the
Departments' responses to public comments received on this section
follows immediately below.
Comments: A commenter asked how ``a redirection of Federal funds
from one program to another will not negatively impact the calculation
of the Perkins Act's `maintenance of effort' provisions or Federal
`supplement not supplant' provisions.'' The commenter said that these
provisions would likely be violated if any Perkins State administrative
funds are redirected to one-stop infrastructure.
Departments' Response: Because of changes to this provision, the
commenter's concerns regarding Perkins State administrative funds are
no longer applicable. Additionally, partner contributions must not
exceed the partner's proportionate share.
Comments: Likewise, the commenter stated that the Departments need
to ensure that the reallocation formula in this part ensures that local
Perkins funds return to the local area from which they were derived in
order to adhere to the within-State allocation formula of the Perkins
Act, sec. 132(a)(2).
Departments' Response: Again, because of the changes to the formula
provision, that is that the Governor will never actually collect and
re-allocate funds, this commenter's concerns are no longer applicable.
Comments: A commenter said that Sec. 678.745 should include a
descriptor of the type of one-stop center (e.g., comprehensive,
affiliate, satellite) in the funding formula policy.
Departments' Response: The formula applies to all one-stop center
and affiliated sites under the State mechanism where the Governor has
not accepted a locally agreed upon budget. Therefore, it is not
necessary to specify the type of one-stop center.
Section 678.755 What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of
Understanding?
Comments: A couple of commenters urged the Departments to encourage
shared staffing for similar partner positions (e.g., business
development). These commenters said that encouraging partnerships
beyond infrastructure could avoid duplication of efforts, particularly
with respond to employer services.
Departments' Response: The Departments encourage the partners to
consider all available means of integration at the one-stop centers,
thereby improving the effectiveness and efficiency of the partner
programs in the one-stop delivery system. There is nothing in WIOA or
these final regulations that prohibit partner programs in sharing
certain key staff positions. However, the Departments caution that such
sharing of staff would necessitate the retention of adequate records
supporting the allocation of personnel costs between the programs,
which also must be consistent with the Uniform Guidance. Furthermore,
the Departments reiterate that the sharing of staff will not be
considered an infrastructure cost, but it may be paid with other funds
in accordance with WIOA sec. 121(i).
Section 678.760 How do one-stop partners jointly fund other shared
costs under the Memorandum of Understanding?
The Departments added paragraph (c) to explain that contributions
to the additional costs related to operation of the one-stop delivery
system may be cash, non-cash, or third-party in-kind contributions.
This addition is consistent with the changes made in Sec. 678.720(c).
As a result the remaining paragraphs were renumbered.
Comments: Multiple commenters expressed confusion about whether the
1.5 percent spending cap for infrastructure costs for the title II
program includes the joint contribution to funding the costs of career
services. One commenter recommended that it include the cost of career
services so that more funds are available to provide AEFLA services.
Departments' Response: Contribution to shared cost including career
services are separate from contributions for infrastructure cost and
thus the 1.5 percent cap on contributions does not apply to shared
cost.
Comments: Two commenters requested a definition of ``additional
costs relating to the operation of the one-stop delivery system.''
Another commenter asked whether this phrase includes the cost for the
one-stop operator.
Departments' Response: The Departments will not define additional
costs. By allowing States to define additional costs, they will be in a
better position of assisting their local areas in meeting the demand
and challenges of operating a one-stop delivery system. No change to
the regulatory text was made in response to these comments.
7. One-Stop Certification (20 CFR Part 678, Subpart F [678.800]; 34 CFR
361.800; 34 CFR 463.800)
Subpart F of part 678 implements the requirements in WIOA sec.
121(g) that the Local WDB certify the one-stop center every 3 years.
The certification process is important to setting a minimum level of
quality and consistency of services in one-stop centers across a State.
The certification criteria allow States to set standard expectations
for customer-focused seamless services from a network of employment,
training, and related services that help individuals overcome barriers
to becoming and staying employed.
The one major change to this section from what was published in the
NPRM was made in response to comments regarding the use of the
provision of services beyond regular business hours as a certification
factor for one-stop centers. While the Departments have retained this
as a certification criterion, the language has been changed at Sec.
678.800(b) to make the consideration of this factor conditional on the
Local
[[Page 55917]]
WDB determining that there is a need in the local area for such an
extension of service hours. The Departments also would like to assure
readers that it is highly unlikely that a one-stop center's
certification would hinge on such a factor, as there are many criteria
that must be taken into account in the certification process.
Section 678.800 How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic accessibility,
and continuous improvement?
General Comments About One-Stop Certification
Comments: Several commenters addressed the proposed timelines for
one-stop certification and updates to the evaluation criteria. A
commenter stated that the proposed timelines could conflict or overlap.
A few commenters suggested that all reviews should be on a 4-year
cycle. A few State and Local WDBs recommended that the certification
criteria be updated every 3 years to match the certification process. A
few commenters asserted that it is impractical for all Local WDBs to
update the local additional certification criteria every 2 years as
part of the local plan update process. Another commenter suggested that
both timelines should be event-dependent.
Departments' Response: The Departments have made no substantive
changes to this section other than the changes to Sec. 678.800(a)(1)
and (b) discussed below. The timelines related to one-stop
certification are statutory: Certification every 3 years from WIOA sec.
121(g)(1) and updated criteria every 2 years from WIOA sec. 121(g)(5).
However, the regulations require certification ``at least'' every 3
years, and Local WDBs may certify more often if it helps align
timelines with other efforts. No change to the regulatory text was made
in response to this comment.
Comments: One commenter asserted that giving Local WDBs the
authority to certify one-stop centers creates a conflict of interest.
Another commenter stated that Local WDBs that are one-stop operators
are currently permitted to certify themselves.
Departments' Response: The Departments agree that Local WDBs should
not certify themselves but have not made changes to this section as
Sec. 678.800(a)(3) already stated that State WDBs must certify one-
stop centers when the Local WDB is the one-stop operator.
Comments: A commenter suggested that the Departments should provide
guidance to State WDBs on developing objective criteria and training or
assistance the State WDBs can share with Local WDBs on implementing
certification procedures.
Departments' Response: On August 13, 2015, the Departments issued a
joint vision for the implementation of American Job Centers as TEGL No.
04-15, and have released other technical assistance materials since
then as well. All of these guidance documents and other pieces of
guidance relating to WIOA may be found at http://wdr.doleta.gov/directives/All_WIOA_Related_Advisories.cfm, www2.ed.gov/about/offices/list/osers/rsa/wioa-reauthorization.html, and www2.ed.gov/policy/adulted/guid/memoranda.html. The Departments' staffs continue to remain
available for technical assistance.
Comments: A commenter stated that the State Plan should define the
certification process for the one-stop delivery system.
Departments' Response: The State Plan may include the one-stop
certification process if a State wishes to include it, but the
Departments do not consider it appropriate or necessary to require such
an inclusion in the State Plan. No change to the regulatory text was
made in response to this comment.
Comments: Another commenter recommended that certification criteria
focus on system performance instead of program performance; effective
communication and data sharing across systems while safeguarding
information; and availability of diverse and necessary resources at
one-stops.
Departments' Response: States that wish to focus on certain aspects
of one-stop center quality can establish criteria for those aspects,
but the statutorily required criteria at WIOA sec. 121(g)(2) must be
included. The State WDB-established criteria create a baseline of
consistency across the State, and States can establish policies about
processes and methods. No change to the regulatory text was made in
response to this comment.
Comments: A few commenters suggested that the State WDB should
consult with Local WDBs when updating certification criteria.
Departments' Response: The Departments agree and have revised Sec.
678.800(a)(1) to clarify that the State WDB must consult with chief
elected officials and Local WDBs when it reviews and updates criteria,
not only when it establishes criteria.
Comments: A few commenters requested flexibility for States to
determine the certification method, while other commenters stated that
all Local WDBs should use the same process to certify one-stops.
Departments' Response: While all Local WDBs within a State must use
the State required certification criteria, WIOA sec. 121(g)(3) allows
Local WDBs to establish additional criteria to be used in that local
area as well. The Departments have concluded that Local WDBs should be
able to choose the process for certifying one-stop centers that works
best for each local area. No change to the regulatory text was made in
response to these comments.
Comments: A commenter asked whether the State WDB has discretion to
determine the method of certification, and whether the State WDB can
delegate the certification process.
Departments' Response: The State WDB does not certify, but it must
set the certification criteria. The Departments have determined that
this responsibility is an important strategy to establish quality one-
stop centers and have not incorporated the suggestion to allow the
State WDB to delegate it. The State WDB must approve the final
certification criteria.
Comments: Another commenter asked whether the intent is to certify
each one-stop center or the local area one-stop delivery system.
Departments' Response: WIOA sec. 121(g)(4) and this section of the
regulation state that the Local WDB must certify one-stop centers, not
the one-stop delivery system. Although the same criteria used to make
this certification are to be used in evaluating a local area's one-stop
delivery system, there is no certification process for the one-stop
delivery systems themselves, only the one-stop centers that together
make up the one-stop delivery system.
Comments: A few commenters asked what would happen if the one-stop
center does not meet the evaluation criteria or get certified.
Departments' Response: Paragraph (d) of Sec. 678.800 and WIOA sec.
121(g)(4) state that local areas that do not certify their one-stop
centers are not eligible to use infrastructure funding under the State
infrastructure option until such certification is complete. Local WDBs
can consider ramifications for failing one-stop certifications in their
one-stop operator contracts.
Comments: One commenter asked whether technical assistance will be
provided to one-stop centers that fail certification.
Departments' Response: States may provide technical assistance to
one-stop centers that fail certification or to any other one-stop
center that may require or ask for it.
[[Page 55918]]
Evaluations of Effectiveness
Comments: Several commenters expressed concern regarding the
requirement to include the provision of service outside of regular
business hours as a factor to be considered when evaluating one-stop
center effectiveness, stating that many one-stop centers may not be
able to provide such services and that an inability to do so should not
count against them.
Departments' Response: The Departments considered these concerns,
and have determined that this should still remain one of the many
factors to be considered in evaluating one-stop center effectiveness.
Paragraph (b) of Sec. 678.800, however, was revised to include that
the consideration of this factor is conditional on whether the
applicable Local WDB has determined there is a workforce need for the
provision of service outside of regular business hours. The Departments
stress that this is one of many factors to be taken into account when
evaluating effectiveness, and that it is very unlikely that a one-stop
center will fail to qualify for certification solely for not providing
services outside of regular business hours.
Comments: Several commenters remarked that the NPRM's inclusion of
customer satisfaction in the evaluation of a one-stop center's
effectiveness goes beyond what is included in WIOA. The commenters
stated that, while this is an important measure, it is not necessarily
a measure of effectiveness, and it is also subjective.
Departments' Response: This provision is supported by the statutory
requirement to consider how well a one-stop center meets the workforce
development needs of local employers and participants in WIOA sec.
121(g)(2)(B)(iii). The Departments have determined that reviewing
customer satisfaction is an important part of knowing whether services
to employers and participants are effective and meet their needs, and
will aid one-stop operators, Local WDBs, and State WDBs in the
continued improvement of the one-stop delivery system required by WIOA.
For this reason, the Departments have not removed this requirement from
the regulations. No change to the regulatory text was made in response
to these comments.
Comments: Another commenter stated that Local WDBs could assess
customer satisfaction through surveys centered on the one-stop center's
responsiveness to the needs of employers and customers, the
availability and quality of workshops, and the repeat usage over a
period of time.
Departments' Response: The regulations are not specific on how
customer satisfaction must be measured and the Departments have
concluded that State WDBs and Local WDBs can determine how best to
include it as a component of a one-stop certification criteria.
Comments: Two commenters said that the proposed performance
accountability metrics already address customer satisfaction.
Departments' Response: To clarify, the proposed accountability
metrics concerning customer satisfaction and the requirements in Sec.
678.800 related to customer satisfaction are referring to the same
mechanism. This section gives the requirement to review and apply the
customer satisfaction data to measure the effectiveness of one-stop
centers; the actual measure, its technical aspects, and the timing of
the data collection are outlined in Sec. 677.160 (see Joint WIOA Final
Rule).
Comments: A few commenters asserted that the most efficient and
effective systems are where the Local WDB is the one-stop operator.
Departments' Response: The Departments have determined that regular
measurements of effectiveness and efficiency will assist States in
determining the most effective one-stop operator, including whether it
is effective and efficient for a Local WDB to be the operator.
Evaluations of Accessibility
Comments: Several commenters expressed support for the Departments'
dedication to ensuring accessibility to individuals with disabilities.
A few commenters also stated that the requirement for one-stop centers
to be programmatically and physically accessible should be reiterated
in this part.
Departments' Response: The Departments agree and have updated Sec.
678.800(e) to clarify that all one-stop centers must be
programmatically, as well as physically, accessible.
Comments: A few commenters also suggested that the language on
programs being in integrated settings should be stronger and use the
phrase ``in an integrated setting'' rather than ``in the most
integrated setting appropriate.'' The commenters also stated that
programs should be in community-based settings.
Departments' Response: The Departments have retained the phrase
``in the most integrated setting appropriate'' to describe our
expectations for integrated and community-based settings in order to
remain consistent with WIOA sec. 188 and the Americans with
Disabilities Act.
Comments: One commenter stated that the Departments should provide
full accessibility and be in full compliance with civil rights laws,
the Americans with Disabilities Act, and secs. 504 and 508 of the
Rehabilitation Act. The commenter further stated that one-stop
operators should have additional training on the importance of full
accessibility to individuals with disabilities for all services.
Departments' Response: The Departments are fully committed to
accessibility and adhering to civil rights laws. The regulation
reiterates the requirement for full accessibility in Sec. Sec.
678.800(e), 678.305, and 678.310. The Departments have provided, and
will continue to provide, technical assistance on accessibility. No
change to the regulatory text was made in response to this comment.
Comments: Another commenter stated that there should be
transparency in reporting States' performance in physical and
programmatic access.
Departments' Response: The DOL currently is conducting a study of
accessibility in one-stop centers, which will be published and made
available to the public when completed in the summer of 2016. Potential
violations of civil rights laws, including the inadequate provision of
programmatic and physical accessibility, are investigated by DOL's
Civil Rights Center, which may share major findings with the public.
States also can improve transparency by making certification results
public.
Comments: One commenter expressed concern that accessibility
evaluation criteria and guidelines will be determined by the State and
Local WDBs. The commenter recommended the Departments establish general
guidelines for minimum standards, targets, and metrics.
Departments' Response: The regulations keep the determination of
accessibility criteria as a responsibility of the State and Local WDBs,
as required by statute, but such criteria must meet, at a minimum, the
legal standards established by the regulations implementing WIOA sec.
188, set forth at 29 CFR part 38. DOL has issued best practices in how
recipients can comply with accessibility laws in a guide shared in
Training and Employment Notice No. 01-15, ``Promising Practices in
Achieving Universal Access and Equal Opportunity: A Section 188
Disability Reference Guide.''
[[Page 55919]]
Evaluations of Continuous Improvement
Comments: A commenter expressed concern about the use of
performance outcome data in evaluations of continuous improvement
because it may not be timely enough to identify and resolve issues.
Departments' Response: States have the flexibility to add
additional data to the criteria that are more timely if they wish, but
the Departments have determined that no additional data other than that
which is already included in the regulations should be required.
8. Common Identifier (20 CFR part 678, subpart G [678.900]; 34 CFR
361.900; 34 CFR 463.900)
The regulations in 20 CFR part 678, subpart G and 34 CFR 361.900
and 463.900 promote increased public identification of the one-stop
delivery system through use of a common identifier across the nation,
consistent with WIOA sec. 121(e)(4). Section 678.900 designates the
name ``American Job Center'' as the common identifier for the one-stop
delivery system. This designation was made by the Secretaries after
consulting with the heads of other appropriate departments and
agencies, representatives of State WDBs and Local WDBs, and other
stakeholders in the one-stop delivery system through various means.
This was a process started under WIA, and many one-stop centers are
already incorporating use of either the ``American Job Center'' title
or the associated tag line ``proud partner of the American Job Center
network'' into their branding.
The major changes in this section in response to comments relate to
the date by which rebranding of the one-stop centers is to be complete.
The date by which one-stop centers are required to rebrand all of their
primary electronic resources, such as Web sites has been changed to [90
days from the publication of this Final Rule] instead of July 1, 2016,
which will provide a reasonable time to effectuate this provision.
Additionally, any new products and materials printed, purchased or
created after [90 days from the publication of this Final Rule] must
comply with the new branding requirements. However the Departments have
determined that extending the deadline to July 1, 2017 for other
branding, including activities, physical products and signage, would
allow an appropriate amount of time for the rebranding to be completed.
Additionally, the Departments will not object if the one-stop centers
continue to use materials not using the ``American Job Center''
branding which are created before [90 days from the publication of this
Final Rule] until those supplies are exhausted.
Section 678.900 What is the common identifier to be used by each one-
stop delivery system?
Comments: Many commenters expressed opposition to the use of
American Job Center as a common identifier. Several commenters said
that they already have a common brand used in their State, and it would
be confusing to the public to discontinue the use of an existing brand
and begin utilizing new logos and branding. A few Local WDBs asked that
States have flexibility in branding, such as by utilizing ``American
Job Centers of [State name].'' Another commenter suggested that centers
should be permitted to utilize their program name, followed by ``a
partner in America's Workforce System.'' One commenter requested a
waiver for States that already have a widely known brand. Another Local
WDB commented that the Departments should allow States with approved
names under WIA be able to continue to use those names.
Departments' Response: The Departments are not requiring that any
State or local area discontinue use of their existing name or brand.
The Departments recognize that many States and local areas use their
own brand, some of which are well known. The requirement in Sec.
678.900(c) to use either the ``American Job Center'' identifier or ``a
proud partner of the American Job Center network'' as a tag line
already allows the usage of other identifiers or brands or logos. One-
stop centers that want to use their existing name followed by a tagline
may use their name along with ``a proud partner of the American Job
Center network;'' the use of ``a partner in America's Workforce
System'' alone would not meet the requirement. The Departments have
concluded that this section adequately states that the use of
additional identifiers is permitted, and what the tagline requirement
is, and so have not made changes in response to these comments. States
that wish to use ``American Job Center of [State name]'' would be
including the American Job Center identifier, and thus in compliance
with this regulation. While the Departments did not make a change to
list different permutations that would be allowed, the Departments will
issue guidance on the usage of the identifier.
Comments: Some commenters suggested that the identifier use
``career'' instead of ``jobs.'' Some commenters also stated that
American Job Center implies that only citizens can be served. One
commenter asked what ``American'' means in this context. Another
commenter stated that American Job Center implies that only one
service--job placement assistance--is available, and does not address
the other services available at one-stop centers.
Departments' Response: The Departments considered the concerns
about ``Job'' and ``American'' shared by commenters but have maintained
the name American Job Center. The Departments see value in both ``Job''
for its simplicity, directness, and description of the end goal of
virtually all services; the Departments also see value in ``Career''
for its emphasis on growth. In deciding between the two, the
Departments have chosen to continue to use ``job'' because many States
and local areas have already adopted ``American Job Center'' or have
incorporated the ``proud partner of the American Job Center network''
tag line into their established branding. Additionally, ``American'' is
not meant to imply that only citizens can be served, but used to
communicate that the centers are part of a nation-wide system.
Comments: A few commenters asked the Departments what the logo is
for the common identifier. Some commenters asked that the new logo or
icon be something simple that can be added to existing signage without
changing the names of existing centers. Some commenters stated that
they needed clearer expectations to implement the common identifier.
One commenter expressed support for the proposed common identifier.
A few commenters expressed support for the flexibility provided by the
use of ``a proud partner of the American Job Center network'' alongside
existing brands. Another commenter supported the use of a common
identifier, but cautioned that improper use of the logo, brand, or
tagline could dilute the brand or mislead the public. This commenter
stated that American Job Center should be utilized only for
comprehensive one-stop centers, with ``A proud partner of the American
Job Center Network'' permitted to be used at other sites. The commenter
also recommended that the Departments trademark the common identifier.
Departments' Response: The logo for American Job Center is
available at www.dol.gov/ajc and its use, implementation expectations,
and suggestions for adoption at various price points will be released
in upcoming guidance and technical assistance. In order to allow job
seekers and employers to find all the locations that
[[Page 55920]]
could assist them, the Departments are continuing to allow all one-stop
centers, comprehensive and affiliate, to use ``American Job Center'' or
the tagline ``a proud partner of the American Job Center network.'' The
DOL has trademarked the identifier American Job Center, as a commenter
suggested.
Comments: A few commenters asserted that this will be an expensive
unfunded mandate for most States, and requested that the Departments
provide funding to States to help pay for the cost to print new
materials and change signage, or else make this requirement optional.
One commenter also asked that the Departments phase in the change more
slowly. Other commenters urged the Departments to allow one-stop
centers to phase in the change as they print new materials.
A few commenters requested clarification regarding the deadline for
implementation. They stated that the NPRM regulatory text indicated
one-stop centers must utilize the new identifier by July 1, 2016, but
the NPRM preamble stated that the identifier be in place during PY
2016, or by June 30, 2017. The commenter requested the later date,
reasoning that changing signage and materials by July 1, 2016 would be
cost prohibitive.
Departments' Response: The Departments recognize that there is a
cost associated with adopting the common identifier, and has extended
the timeframe in which one-stop centers must include the identifier, to
require that one-stop centers use it on Web sites and online materials
by [90 days from the publication of this Final Rule], on new products
and materials purchased or created after July 1, 2016 and on all other
activities, materials, buildings, and signs by July 1, 2017. These
changes are reflected in Sec. 678.900(b) and (c). Implementing the
identifier is an allowable use of WIOA title I funds. The Departments
will release suggestions for adopting the identifier at various price
points in upcoming guidance and technical assistance.
While one-stop centers will be expected to provide the ``American
Job Center'' or ``proud partner of the American Job Center network''
branding on any newly printed, purchased or created materials after [90
days from the publication of this Final Rule], this does not require
one-stop centers to discard previously obtained materials. The
Departments will not object to use of any materials lacking the
branding that were printed, purchased, or created before this initial
deadline until supplies are exhausted, regardless of the final
implementation date of July 1, 2017. Paragraphs (b) and (c) of Sec.
678.900 have been modified to reflect the revision of the date when
this policy goes into effect.
In addition to the regulatory text changes discussed above, various
non-substantive changes have been made for purposes of correcting
typographical errors and improving clarity that have not been necessary
to note elsewhere.
V. 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 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 a significant regulatory action under sec. 3(f)
of E.O. 12866. The economic effects of the costs that will result from
the changes in this Final Rule are economically significant.
Outline of the Analysis
Section V.A.1 describes the need for the Joint WIOA Final Rule and
section V.A.2 describes the alternatives that were considered in this
rule's NPRM. Section V.A.3 summarizes the public comments received
related to the NPRM, and comments received related to the VR program-
specific requirements set forth in the NPRM on ``State Vocational
Rehabilitation Services Program; State Supported Employment Services
Program; Limitations on Use of Subminimum Wage.'' Section V.A.3 also
provides the Departments' responses to the comments. Section V.A.4
describes the process used to estimate the costs of this Final 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 of this Final Rule. Section V.A.6
describes how the provisions of this Final Rule will result in
quantifiable costs and presents the calculations the Departments used
to estimate them. Finally, section V.A.7 summarizes the estimated
first-year and 10-year total costs and describes the benefits and
transfers that may result from this Final Rule.
Summary of the Analysis
The DOL and ED, hereafter collectively referred to as ``the
Departments,'' provide the following summary of the Regulatory Impact
Analysis (RIA):
(1) This Final Rule is a ``significant regulatory action'' under
sec. 3(f)(4) of E.O. 12866 and, accordingly, OMB has reviewed the Final
Rule.
(2) This Final Rule is not expected to have a significant cost
impact on a substantial number of small entities.
The Departments estimate that this Final Rule will generate
benefits (including some that take the form of cost reductions).
Because of the nature of these benefits, the Departments are not able
to quantify them, but rather describe them qualitatively in the
``Regulatory Benefits'' section. As shown in Exhibit 1, over the 10-
year period, this Final Rule is estimated to have an undiscounted total
cost of $626.8 million. This is equivalent to an estimated annual cost
of $62.7 million. With 7-percent discounting over the 10-year period,
the Final Rule will result in an estimated total cost of $495.2
million. This is equivalent to an
[[Page 55921]]
estimated annualized cost of $70.5 million (with 7-percent
discounting).
Exhibit 1--Estimated Monetized Costs of the Departments of Labor and
Education Final Rule (2015 dollars) ($ mil)
------------------------------------------------------------------------
------------------------------------------------------------------------
Undiscounted 10-Year Total..................................... $626.8
10-Year Total with 3% Discounting.............................. 558.9
10-Year Total with 7% Discounting.............................. 495.2
10-Year Average................................................ 62.7
Annualized with 3% Discounting................................. 65.5
Annualized with 7% Discounting................................. 70.5
------------------------------------------------------------------------
The largest contributor to the total cost of the rule is the
implementation of performance accountability requirements contained in
sec. 116 of WIOA. The largest of these costs include the development
and updating of State performance accountability systems, followed by
performance reporting requirements, and adjusting levels of
performance. See section V.A.6 (Subject-by-Subject Cost-Benefit
Analysis) for a detailed explanation.
The Departments were unable to quantify several important benefits
to society due to data limitations and lack of existing data or
evaluation findings. We qualitatively describe the benefits related to
increased alignment of training with local labor markets using
economic, education, and workforce data. In addition, based on a review
of empirical studies (primarily studies published in peer-reviewed
academic publications and studies we sponsored), we 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, combined
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. We
identified several channels through which these benefits might be
achieved, including: (1) Better information about training providers
enables workers to make more informed choices about programs to pursue;
and (2) enhanced services for dislocated workers, self-employed
individuals, and workers with disabilities will lead to the benefits
discussed above.
In addition, the Departments qualitatively describe an ancillary
benefit to the DOL-administered core programs that is expected to
result from the integration of DOL program participant records. While
the integration of these participant records is not required by WIOA or
these implementing regulations, it is highly encouraged. For a detailed
description of the regulatory and ancillary benefits of the Final Rule,
see section V.A.7 (Summary of Analysis).
1. Need for Regulation
Section 503(f)(1) of WIOA requires publication of implementing
regulations. These regulations will ensure that States implement
requirements under WIOA efficiently and effectively. In addition, such
regulations will provide Congress and others with uniform information
necessary to evaluate the outcomes of WIOA.
2. Alternatives to 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 Departments assessed, to the extent
feasible, alternatives to the regulations.
As described in the NPRM, the Departments considered alternatives
to accomplish the objectives of WIOA, which also would minimize any
significant economic impact on small entities. This analysis considered
the extent to which WIOA's prescriptive language presented regulatory
options that also would allow for achieving WIOA's programmatic goals.
In many instances, we have reiterated WIOA's language in the regulatory
text, and have expanded some language to provide clarification and
guidance. The additional regulatory guidance should result in more
efficient program administration by reducing ambiguities caused by
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 Departments considered three possible alternatives in the NPRM:
(1) Implement the legislative changes prescribed in WIOA, as noted
in this Final Rule, thereby satisfying the legislative mandate;
(2) Take no action, that is, attempt to implement WIOA using
existing regulations promulgated under WIA; or
(3) Publish no regulation and rescind existing WIA regulations,
which would result in non-compliance with the WIOA requirement to
publish implementing regulations.
The Departments considered these three options in accordance with
the provisions of E.O. 12866 and concluded that publishing the WIOA
Final Rule--that is, the first alternative--was the only appropriate
option. We considered the second alternative--retaining existing WIA
regulations as the guide for WIOA implementation--but WIOA has changed
WIA's requirements substantially enough that new implementing
regulations are necessary for the public workforce system to achieve
compliance. We considered, but rejected, the third alternative--not to
publish implementing regulations and rescind existing WIA regulations--
because this option, inherently, does not provide sufficient detailed
guidance to implement the statutory requirements effectively.
In addition to the regulatory alternatives noted above, the
Departments 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, we have recognized and made
allowances for different implementation schedules. However, with the
exception of these allowances, we are not implementing an alternative
that delays certain requirements for the following two reasons: (1)
Implementation delays are not operationally feasible because many
critical WIOA elements depend on the implementation of other
provisions, and (2) the costs associated with additional implementation
delays beyond those noted in this Final Rule could outweigh the
benefits of alternative starting dates.
3. General Comments Received on the Economic Analysis in the NPRM
The Departments received several public comments regarding the
economic analysis, presented RIA in the NPRM for this rule, and a few
other comments regarding the economic analysis related to the VR
program specifically as set forth in the NPRM on ``State Vocational
Rehabilitation Services Program; State Supported Employment Services
Program; Limitations on Use of Subminimum
[[Page 55922]]
Wage'' (80 FR 21059 (April 16, 2015)).\1\ We considered all comments
received. The significant comments and summaries of the Departments'
analyses of those comments are discussed in the following two sections,
depending on whether the comments relate to jointly administered
requirements set forth in the NPRM for this Final Rule or the comments
relate to VR program-specific requirements as set forth in the NPRM on
``State Vocational Rehabilitation Services Program; State Supported
Employment Services Program; Limitations on Use of Subminimum Wage.''
Comments that pertain only to the VR program, and not jointly
administered requirements, will be summarized here, but ED will address
them directly in the Final Rule for ``State Vocational Rehabilitation
Services Program; State Supported Employment Services Program;
Limitations on Use of Subminimum Wage,'' which is published in this
edition of the Federal Register.
---------------------------------------------------------------------------
\1\ The NPRM for ``State Vocational Rehabilitation Services
Program; State Supported Employment Services Program; Limitations on
Use of Subminimum Wage'' was published at 80 FR 21059 on April 16,
2015. It can be accessed at http://regulations.gov.
---------------------------------------------------------------------------
a. Discussion of Public Comments Related to This Rule's NPRM
i. Contextualizing the Costs of WIOA
To provide context for the costs of the NPRM in the RIA, the
Departments expressed the annual cost of the NPRM relative to the
average annual amount made available to the six core programs in Fiscal
Years (FYs) 2012, 2013, and 2014 under WIA.\2\ Based on an average
annual total Federal appropriation of $6.4 billion for the 3 fiscal
years for these programs, the proportional annual cost of the NPRM was
between 2.6 percent and 2.7 percent (using 3-percent and 7-percent
discounting, respectively).
---------------------------------------------------------------------------
\2\ 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 Departments 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). 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
corresponds to the fiscal year in which it is obligated.
U.S. Department of Education. (2016). Department of Education
Budget Tables. Retrieved from: http://www2.ed.gov/about/overview/budget/tables.html?src=ct. The Departments used data from the
following files to estimate the average annual WIA budget:
Congressional Action (FYs 2012, 2013, and 2014).
---------------------------------------------------------------------------
Comments: A commenter asserted that the incremental cost burden
should not be compared to the total funds made available for these six
programs under WIA, but instead should be compared to the
administrative funds available to the States because this will be the
funding source for a majority of the new requirements.
Departments' Response: In section V.A.7 (Summary of Analysis) of
this Final Rule, the Departments present the incremental burden of WIOA
both as a proportion of the average annual appropriation for carrying
out these programs under WIA and as a proportion of the administrative
and transition funds that might be used for WIOA implementation.
ii. The Value of Common Exit
In the NPRM, the Departments sought public comments on the value of
a cross-program definition of exit (i.e., a ``common exit'') that is
based on the last date of service (other than self-service or
information only activities) from all core programs, rather than a
program-specific exit as proposed in the NPRM. Under a common exit, an
individual would have to complete services from all core programs from
which he or she received services to exit from the system.
Comments: Several commenters stated that a common exit approach
would be costly. Specifically, some of these commenters asserted that a
requirement to report a common exit would be prohibitive to States
because a single Management Information System (MIS) does not exist for
all core programs. Another commenter indicated that, in addition to the
very large costs that would result from the interfaces that would need
to be built across programs, additional labor hours would be required
to track the exit dates of other programs. Other commenters indicated
that some of their clients who cannot complete instructional services
might continue to use their services for years if other options are not
developed. These commenters further stated that data systems would need
to have the capacity to hold clients' data for years, which could
result in significant costs.
On the other hand, one commenter remarked that the lack of a common
exit would result in the need for more information technology (IT)
resources, such as increased storage space.
Departments' Response: The Departments have revised these final
regulations to permit--but not require--WIOA title I and Wagner-Peyser
Act Employment Service DOL programs to collect and report common exit
data. Common exit data collection and reporting will not be permitted
or required for core programs under titles II and IV of WIOA.
Although the Departments have concluded an integrated system that
would track common exits for an individual is a vision for the
workforce development system, an integrated system is not a requirement
under WIOA or these final regulations. Furthermore, because the common
exit approach is optional, we have not concluded that it would cause
providers to extend the duration of program services artificially. In
addition, we have no way to anticipate how many, if any, States will
implement the common exit approach. For these reasons, no costs are
included in this analysis related to the implementation of the optional
common exit approach, including the cost of developing integrated
systems or artificially extending the duration of services.
iii. Primary Indicators of Performance
Several commenters addressed the costs of implementing proposed
requirements related to some of the primary indicators of performance.
Comments: A few commenters indicated concerns about tracking
program participants to determine if they had attained a postsecondary
credential or a secondary school diploma within 1 year after exiting
the program. These commenters stated that no system is in place to
collect and track such information and asserted that doing so would be
very staff intensive and costly. Commenters also expressed concern that
major changes would be needed to their MISs to track data on
individuals who had exited the program.
Departments' Response: Although the Departments understand the
concerns expressed by commenters, we want to make clear that the
performance indicators proposed in the NPRM and contained in these
final regulations are consistent with the statutory requirements set
forth in sec. 116(b)(2)(A) of WIOA. Moreover, we have concluded that
these requirements will not lead to a burden increase for most core
programs because similar--although not identical--information was
tracked by these programs for performance purposes under WIA. We
acknowledge that for some programs, such as the VR program, post-exit
data, including credential attainment, is not collected under the
current data system. Consequently, States will have to collect such
data with the informed written consent of the participant through
follow-up with the exited participant or
[[Page 55923]]
the educational institution or entity where the individual was
receiving training. We have concluded this process will not be overly
burdensome to the VR program, as suggested by the commenters, however,
because the VR program provides postsecondary education and training
only as a necessary service to support an employment goal on the
individualized plan for employment. As a result, in the vast majority
of cases, a credential will be obtained prior to employment and prior
to exit from the VR program. Very few individuals will obtain
postsecondary credentials after exiting the VR program. Hence, only a
small percentage of cases will need to be tracked manually.
Comments: In response to the Departments seeking comments on
clarifications that might be needed to implement the credential
attainment rate performance indicator, one commenter indicated that
implementing and tracking the time frames would be an immense reporting
burden on States.
Departments' Response: The Departments did not establish a time
frame for obtaining a credential for purposes of the performance
indicator required by sec. 116(b)(2)(A)(i)(IV) of WIOA, except for that
required by WIOA--specifically that the credential be attained during
the participant's participation in the program or within 1 year after
exit from the program. Given that WIOA requires this particular time
frame, there is no statutory authority to eliminate it from these final
regulations or eliminate any burden estimate related to its
implementation. Therefore, the estimated burden related to implementing
the statutorily required time frame is maintained. During the
development of the NPRM, the Departments considered the extent of the
work required for data collection and reporting on this indicator and
incorporated the level of effort for those follow-up activities in the
burden estimates that were published in the NPRM. These costs will not
be substantial because the time frame for participants to obtain a
credential was lengthened from only 3 quarters from exit under WIA to 4
quarters under WIOA.
Comments: The NPRM proposed that States would be required to report
information on the career and training services provided by title I
core programs, as well as the percentage of those participants who
obtain training-related employment. One commenter said that the States'
administrative data do not indicate whether employment is related to
training. The commenter asserted that such data would be costly to
collect directly from each participant on a case-by-case basis.
Departments' Response: Although the Departments understand the
commenter's concern, we want to make clear that the requirement to
collect and report this information is required by sec. 116(d)(2)(G) of
WIOA. We do not agree that collecting and reporting the required data
will be as costly or burdensome as the commenter suggests. Currently,
State (UI) agencies provide wage data that, at a minimum, include a
North American Industry Classification System (NAICS) code that
generally provides an indication of whether employment outcomes were
training related. In addition, costs for follow-ups to determine if
training was related to employment were already accounted for in the
baseline because they were collected under WIA. The other core programs
are not required to collect and report such data.
Comments: One commenter suggested that some of the performance
measures proposed for INA supplemental youth service programs are
burdensome--particularly given the disparity in funding between the INA
youth grants and State grants. The commenter remarked that it would
cost $1 million to update its Bear Tracks performance reporting system,
which is currently used by INA grantees to collect data for performance
measures. The performance reporting system would have to be upgraded
because: (1) It is not a Web-based application; (2) it does not provide
an adequate level of data security; and (3) it soon could be
incompatible with the Departments' new technology. In addition,
training would be required for the INA grantees across the United
States. Furthermore, the commenter warned that its program only might
be able to handle the additional reporting burden by keeping
participants as ``active participants'' by not exiting them from the
program until they graduate from high school. The commenter stated that
this would create a significant burden because grantees would have to
provide qualified follow-up service every 90 days to keep the
participants active.
Departments' Response: The Departments acknowledge that some
grantees, including grantees awarded funding under WIOA, title I,
subtitle D--National Programs, could experience higher burdens than
other entities. We want to make clear that the cost estimates presented
in the NPRM and these final regulations represent the cost for a single
representative State, not potential cost burden that could be realized
by individual grantees because such effects are based on a variety of
factors specific to each program. Furthermore, we point out that data
for a credential attainment measure are currently being collected by
the INA program (under WIA) that is similar to the education and
credential indicators under WIOA and, therefore, the burden associated
with such requirements is not new but rather is burden already
accounted for in the baseline presented in the RIA for the NPRM and
these final regulations.
iv. Additional State Performance Indicators
Comments: A commenter questioned why the NPRM's RIA projected
burdens for only five States with regard to establishing additional
performance accountability indicators and asked for clarification on
which five States were expected to submit these data. The commenter
asserted that if all States were expected to submit data, by accounting
only for five, the Departments were significantly underestimating the
cost of this requirement in the NPRM.
Departments' Response: Under WIA, States were permitted to
establish performance indicators in addition to the required
indicators. No State, however, established additional performance
indicators under WIA. Based on this past practice, the Departments
estimate that very few States, if any, will establish additional
performance indicators and report related data under WIOA. In an effort
to estimate all potential costs where quantifiable, however, we
provided burden estimates based on as many as five States choosing to
establish additional performance indicators. To be clear, the five
States referenced in the NPRM's RIA were intended as an upper-level
estimate of the number of States expected to establish additional State
performance indicators, and were not intended to mean that we knew
which States, if any, would choose to do so. Burden estimates
associated with collection and reporting of data for the primary
indicators of performance include all States and are accounted for
elsewhere in provision (c) Performance Accountability System of the RIA
for these final regulations. For the foregoing reasons, we have
concluded the burden estimates proposed in the NPRM, and revised for
these final regulations, reflect an accurate representation of the
expected cost burden of WIOA in the event that as many as five States
decide to implement and report on additional performance indicators.
Comments: In the NPRM, the Departments estimated that seven VR
agencies each would experience $5,000
[[Page 55924]]
in one-time software and IT systems costs and annual labor costs for 60
technical staff members at 9 hours each to obtain additional
information for new data fields for those States, if any, choosing to
establish additional performance indicators under WIOA. A commenter
noted that the $35,000 first-year software and IT systems costs
associated with programming designated State unit systems (i.e., VR
agencies) accounted for only 7 VR agencies not 80. In addition, the
commenter indicated that the Departments underestimated the level of
effort per entity to modify the State-developed case management system
(CMS) so that designated State agencies and VR agencies could report on
the required performance measures.
Departments' Response: The Departments want to make clear that the
estimates referenced by the commenter reflect the increased burden to
the VR program should a few States adopt additional performance
indicators. As stated in the response to another commenter, no State
established additional performance indicators under WIA, even though
each was permitted to do so. To avoid underestimating costs, however,
the NPRM estimated the burden to the State if up to five States--two of
which have a separate agency for the individuals who are blind (i.e.,
seven VR agencies)--choose to adopt additional performance indicators.
After further Departmental review of the proposed burden estimate, we
have reduced the estimated number of affected entities from seven to
five VR agencies and reduced the estimated labor cost per entity, as
indicated in Exhibit 33.
In response to public comments and based on additional information
received, the Departments have also eliminated the estimated burden for
the revision of existing CMSs to accommodate the collection of data to
support additional State indicators. We have concluded that such
indicators likely would not require the collection of additional new
data. In addition, any changes needed to State CMSs for such measures
already would be subsumed by the one-time costs of revising their
existing systems to collect required data to support the primary
indicators of performance, reported under the Development and Updating
of State Performance Accountability Systems subsection of provision (c)
``Performance Accountability System'' displayed in Exhibit 18.
iv. State Performance Reports
Comments: In the NPRM, the Departments proposed that States would
be required to submit a State performance report, which would describe,
among other things, the amount of funds spent on career and training
services, respectively, for the current program year and the 3
preceding program years. Several commenters asserted that breaking out
the funds spent by service would be too costly.
One commenter expressed opposition to tracking and reporting the
amount of funds spent on each type of career and training service. The
commenter stated that the NPRM did not take into account the expense of
doing so. Citing their own experiences, multiple commenters noted that
costs incurred for programming in addition to the ongoing
administrative costs related to IT systems would be prohibitive.
Another commenter stated that the existing CMSs do not track funds
spent on each type of career and training service. The commenter
indicated that this would require the costly and time-intensive
integration of the State's CMS with the financial systems in place in
each of the local areas.
A commenter expressed that, in addition to tracking specific
payments to training providers, it would have to track indirect costs
such as benefits paid to staff, building space, and the cost of devices
used in delivering services (e.g., computers). The commenter concluded
that the effort to determine these specific cost breakouts greatly
would exceed the value gained from this information.
Departments' Response: The Departments want to make clear that the
statutory requirement and these final regulations are less burdensome
than the commenters appear to believe. Section 116(d)(2)(D) of WIOA
requires the State to report on the amount of funds spent on ``each
type of service,'' which we have interpreted to mean career services,
as one type, and training services, as the other type--not each
individual type of career or training services, provided to
participants. Therefore, the NPRM's RIA did not account for burden
associated with tracking each individual type of career service and
training service provided because such tracking is not required by WIOA
or these final regulations. Moreover, the cost estimates in the NPRM
and these final regulations do not account for IT system integration
because the Departments concluded that States are unlikely to update
their IT systems to allow for the integration of fiscal, case
management, and performance data.
The Departments agree with the commenters that such micro-level
reporting would be burdensome to the States. Before publishing the
NPRM, we consulted with States and concluded that this type of tracking
would be extremely burdensome. Therefore, we have concluded that
affected entities are likely to use a model that divides the total cost
spent on career services or training services by the total number of
participants who received career services or training services to
determine the cost per participant.
v. Underestimated Burden for Development of Strategies for Aligning
Technology and Data Systems Across One-Stop Partner Programs To Enhance
Service Delivery and Improved Efficiencies
In the NPRM, the Departments estimated that State WDBs would incur
a one-time cost of $1.2 million and that State- and local-level AEFLA
programs and VR agencies would incur annual costs of $35.5 million
related to the development of strategies for aligning technology and
data systems across one-stop partner programs. This includes costs for
design implementation of common intake, data collection, case
management information, performance accountability measurement,
reporting processes, and incorporation of local input into design and
implementation to improve coordination of services across one-stop
partner programs.
Comments: A few commenters asserted that the cost of aligning data
and data systems to collect data on performance measures across
programs was understated in the NPRM. One of these commenters stated
that the Departments underestimated the burden for coordinating service
delivery across all of the relevant programs given the large array of
data systems, software platforms, and partners involved. Another
commenter suggested that aligning technology and data systems might
prove expensive for State agencies due to changing or integrated data
system and collection methods. The commenter concluded that full
integration of technology and data systems would be a costly and time-
consuming process.
Departments' Response: First, the Departments want to make clear
that WIOA has no statutory requirement that data systems be integrated
across all core programs, as some of the commenters appear to believe.
State WDBs are required to assist Governors in developing strategies to
align technology and data systems across one-stop partner programs to
enhance service delivery. Therefore, the NPRM and these final
regulations reflect the estimated burden for the DOL-
[[Page 55925]]
administered and VR programs associated with the future implementation
of integrated IT systems across core programs and the burden for State
agencies to enhance their AEFLA program participation in the Statewide
Longitudinal Data Systems (SLDS) Grant Program. Because States are at
varying stages in the data alignment process, the cost estimates for
DOL-administered and VR programs presented in the NPRM represent the
national average costs for ``low-'' and ``high-effort'' States, while
the cost estimates for the AEFLA program do not adopt such a
classification of States and, instead, use a standard cost estimate for
all States. The Departments understand that some States could
experience higher actual costs, while actual costs could be lower for
others.
vi. Integrating Record Collection and Performance Reporting
Comments: One commenter stated that the Departments underestimated
the cost of integrating record collection across ED and between DOL and
ED in terms of time and resources. In particular, the commenter
indicated that the costs would be greater for the VR program because
the VR program has the most disparate system (i.e., WISPR is a DOL-
specific platform), according to the commenter. Furthermore, the
commenter suggested that the burden for integrating data for
performance reporting across core programs belongs at the Federal level
because DOL and ED receive records from each State for their respective
programs. To have Federal agencies work out the integration of data
elements and then push this integration to the States that are
integrating their systems based on Federal recommendations would be
more efficient. In addition, the commenter stated that costs are
associated with the guidance and technical assistance that would be
needed to bridge the gap between workforce partners' current systems
and the Final Rule requirements before the data could be integrated.
Departments' Response: The Departments acknowledge that some
affected entities would experience higher burdens than other entities.
Following additional consultation with program experts in the affected
DOL and ED program areas, and based on the best available evidence, we
calculated the compliance costs of each component of this Final Rule
based on a range of burden estimates by States, a standard burden
estimate per State, or an estimate for a single representative State
that was used as a proxy for the average cost per State in the
analysis. Please note, however, that this Final Rule does not require
the integration of data collection and reporting systems across DOL and
ED programs. Under WIOA, State VR programs will continue to submit RSA-
911 data to RSA, except that data will be submitted quarterly on open
and closed service records instead of annually on closed service
records as had been done historically. RSA will use these four
quarterly reports to generate the annual WIOA performance report, which
will be sent to the State agencies, reducing the burden on State VR
agencies.
Concerning the comment about burden for integrated reporting
belonging at the Federal level, as part of the implementation of this
rule, DOL and ED jointly are proposing an Information Collection for
the WIOA Performance Management, Information, and Reporting System (OMB
Control Number 1205-0526). This ICR (WIOA Joint Performance ICR) and
associated documents, including the WIOA Participant Individual Record
Layout (PIRL), provides a standardized set of data elements,
definitions, and reporting instructions that will be used to describe
the characteristics, activities, and outcomes of WIOA participants.
vii. Reductions in State VR Agency Resources and the Impact of WIOA
Implementation
Comments: One commenter stated that the cost estimates for the VR
program in the NPRM did not appear to account for the current
reductions in agency staff and State funding.
Departments' Response: Although the Departments understand the
concern expressed by the commenter, we want to make clear that the
burden estimates are based on the estimation of what implementing new
requirements under WIOA, including both jointly administered
requirements and program-specific requirements, will cost States. The
burden estimates do not account for circumstances individual States
face at the State level, such as reductions in staff or reductions in
State funds for match purposes.
viii. Benefits Due To Reduced Youth Unemployment
Comments: One commenter said that WIOA includes improvements that
would ensure low-income workers have the skills and support needed for
full participation in the workforce. Specifically, the commenter
expressed that provisions that increase the focus on comprehensive
programming for out-of-school youth should reduce the effect youth
unemployment has on Federal and State governments. The commenter cited
a 2014 report, which found that the average unemployed 18- to 24-year-
old costs taxpayers over $4,000 annually and the average unemployed 25-
to 34-year-old costs taxpayers approximately $9,000 annually.
Departments' Response: WIOA provides additional opportunities to
coordinate education and employment services for youth across the core
programs. The Departments will continue to encourage these partnerships
and the benefits that result from their implementation. The study cited
by the commenter evaluates impacts resulting from reduced welfare and
unemployment benefits being paid out, as well as increased tax revenue.
The Departments considered these outcomes in evaluating the impact of
WIOA, and described these and other impacts resulting from training and
employment services, such as re-engagement of dislocated workers, in
the Regulatory Benefits discussion and the Transfers discussion in
section V.A.7 (Summary of Analysis) of this RIA.
ix. Inability to Quantify Benefits
In the NPRM, the Departments stated that they were unable to
quantify the benefits associated with the NPRM because of data
limitations and a lack of operational WIOA data or evaluation findings
on the provisions of the NPRM. The Departments invited comments
regarding how the benefits described qualitatively in the NPRM could be
estimated.
Comments: Several commenters stated that State workforce and
business agencies have developed a set of performance measures designed
to capture the financial impact of services delivered at the local
community, workforce area, regional, and State levels. The measures
also allow for the calculation of return on investment. The commenters
remarked that the measures would allow the economic value of services
delivered to local communities to be expressed, attainable goals that
align with staff activities to be set, and staff to understand the
value of their work. These tools are in the initial stages of
development and implementation.
Departments' Response: The Departments acknowledge that the tools
described by the commenters are currently being developed and tested.
We understand, however, that these tools were developed for use at the
State, local, and regional levels and have not been applied for similar
purposes at the national level. Therefore, modifying these tools to
[[Page 55926]]
obtain information in the limited time frame for this analysis was not
feasible.
b. Discussion of Public Comments Related to the Proposed Program-
Specific Rules for the VR Program
i. Underestimated Costs to the VR Program
Comments: The Departments received a few comments related to one of
ED's three WIOA-related NPRMs, which, among other things, covered VR
program-specific requirements.
Departments' Response: The public comments pertaining to estimates
provided in the NPRM specific to the VR program will be responded to
directly by ED in the Final Rule governing, among other things, the VR
program published elsewhere in this issue of the Federal Register.
4. Analysis Considerations
The Departments estimated the additional costs, benefits, and
transfers associated with implementing this WIOA-required Final Rule
from the existing baseline, that is, the practices complying with, at a
minimum, the 2000 WIA Final Rule (65 FR 49294, Aug. 11, 2000).
The Departments explain how the required actions of States, Local
WDBs, employers and training entities, government agencies, and other
related entities were linked to the estimated costs and expected
benefits. We also consider, when appropriate, the unintended
consequences of the regulations introduced by this Final Rule. We have
made every effort to quantify and monetize the costs and benefits of
the Final Rule. We were 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 Departments have made every effort to quantify all incremental
costs associated with the implementation of WIOA's requirements 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 occurred under WIA. Thus, the costs itemized below
represent an upper bound for the potential cost of implementing WIOA.
In addition to this Final Rule, the Departments are publishing
separate final rules to implement program-specific requirements of WIOA
that fall under each Department's purview; see section I of this Joint
WIOA Final Rule (Executive Summary). We acknowledge 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 the
effects of this interdependence. Therefore, this analysis does not
capture the correlated impacts of the costs and benefits of this Final
Rule and those associated with the other Final Rules. We have made an
effort to ensure no duplication of benefits and costs between this and
the other Final Rules.
In accordance with the regulatory analysis guidance articulated in
Circular A-4, and consistent with the Departments' practices in
previous rulemakings, this regulatory analysis focuses on the likely
consequences (i.e., costs and benefits 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 benefits that accrue over time. The
Departments express all quantifiable impacts in 2015 dollars and use 3-
percent and 7-percent discounting following Circular A-4.
Exhibit 2 presents the estimated number of entities expected to
experience a change in level of effort (workload) due to the
regulations included in this Final Rule. The Departments provide these
estimates and use them extensively throughout this analysis to estimate
the cost of each provision, where feasible.
---------------------------------------------------------------------------
\3\ For simplicity, the Departments' use of the term ``States''
in this Final Rule 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. In the NPRM, the
number of States for the DOL program was 56 and 57 for the AEFLA and
RSA programs because DOL did not include the Republic of Palau.
\4\ Based on internal DOL data.
\5\ DOL estimate.
\6\ DOL estimate.
\7\ Based on internal ED data.
\8\ ED estimate.
\9\ Local AEFLA providers include local education agencies;
community-based organizations; faith-based organizations; libraries;
community, junior, and technical colleges; 4-year colleges and
universities; correctional institutions; and other agencies and
institutions.
\10\ Based on internal ED data.
\11\ Pursuant to sec. 7(34) of the Rehabilitation Act of 1973,
as amended, this figure includes the 50 States, the District of
Columbia, American Samoa, Guam, the Commonwealth of the Northern
Mariana Islands, the Commonwealth of Puerto Rico, and the Virgin
Islands. Twenty-four States have two DSAs for the VR program;
therefore, the total number of VR agencies is 80. The Departments
note particularly that we have sought to avoid duplication of costs,
given the fact that some States have two VR agencies.
\12\ Based on internal ED data.
Exhibit 2--Number of Affected Entities by Type
------------------------------------------------------------------------
Number of
Entity type entities
------------------------------------------------------------------------
DOL Program:
States \3\.......................................... \4\ 57
States establishing additional performance \5\ 5
indicators.........................................
Local WDBs.......................................... \6\ 580
AEFLA Program:
States.............................................. \7\ 57
States establishing additional performance \8\ 5
indicators.........................................
Local AEFLA providers............................... \9\ 2,396
Local AEFLA providers establishing additional \10\ 200
performance indicators.............................
RSA Program:
VR agencies......................................... \11\ 80
VR agencies establishing additional performance \12\ 5
indicators.........................................
------------------------------------------------------------------------
[[Page 55927]]
Estimated Number of Workers and Level of Effort
The Departments present 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. Where possible, Federal
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) to derive these estimates. 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.
Compensation Rates
In the subject-by-subject analysis, the Departments present the
additional labor and other costs associated with the implementation of
the provisions 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 Bureau of Labor Statistics' (BLS) mean hourly wage rate for State
and local employees.13 14 We also use wage rates from the
Office of Personnel Management's Salary Table for the 2015 General
Schedule for Federal employees.\15\ 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. For the State and
local sectors, we use a loaded wage factor of 1.57, which represents
the ratio of average total compensation \16\ to average wages for State
and local government workers in 2015.17 18 For Federal
employees, we use a loaded wage factor of 1.63, which was estimated
using a two-step process. First, we calculated a loaded wage rate of
1.44 for private industry workers, which is the ratio of average total
compensation \19\ to average wages \20\ for private industry workers in
2015. We then multiplied the 2015 loaded wage rate for private workers
(1.44) by the ratio of the loaded wage factors for Federal workers to
private workers (1.13) using data from a Congressional Budget Office
report \21\ to estimate the 2015 loaded wage rate for Federal workers
of 1.63.\22\ We then multiply the loaded wage factor by each
occupational category's wage rate to calculate an hourly compensation
rate.
---------------------------------------------------------------------------
\13\ Bureau of Labor Statistics. (2015). 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.
\14\ Bureau of Labor Statistics. (2015). 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.
\15\ The wage rate for Federal employees is based on Step 5 of
the General Schedule (source: OPM, 2015, ``Salary Table for the 2015
General Schedule''). Retrieved from: https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2015/GS_h.pdf.
\16\ Bureau of Labor Statistics. (2016). 2015 Employer Costs for
Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm. The Departments 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, we averaged the total
compensation for all workers provided in March, June, September, and
December releases.
\17\ Bureau of Labor Statistics. (2016). 2015 Employer Costs for
Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm. The Departments 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, we averaged the wage and
salaries for all workers provided in March, June, September, and
December releases.
\18\ 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 Departments 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.
\19\ Bureau of Labor Statistics. (2016). 2015 Employer Costs for
Employee Compensation. Retrieved from: http://www.bls.gov/schedule/archives/ecec_nr.htm. The Departments calculated this value using
data from Table 5. ``Employer Costs per Hour Worked for Employee
Compensation and Costs as a Percent of Total Compensation: Private
Industry Workers, by Major Occupational Group and Bargaining Unit
Status.'' Total compensation for all workers. To calculate the
average total compensation in 2015 of $31.57, we 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 Departments calculated this value using
data from Table 5. ``Employer Costs per Hour Worked for Employee
Compensation and Costs as a Percent of Total Compensation: Private
Industry Workers, by Major Occupational Group and Bargaining Unit
Status.'' Wages and salaries for all workers. To calculate the
average wage and salary in 2015 of $21.97, we averaged the wage and
salaries for all workers provided in March, June, September, and
December releases.
\21\ Congressional Budget Office. (2012). Comparing the
compensation of federal and private-sector employees. Tables 2 and
4. Retrieved from: https://www.cbo.gov/sites/default/files/112th-congress-2011-2012/reports/01-30-FedPay_0.pdf. The Departments
calculated the loaded wage rate for Federal workers of all education
levels of 1.63 by dividing total compensation by wages (1.63 =
$52.50/$32.30). We then calculated the loaded wage rate for private
sector workers of all education levels of 1.44 by dividing total
compensation by wages (1.44 = $ 45.40/$31.60). Finally, we
calculated the ratio of the loaded wage factors for Federal to
private sector workers of 1.13 (1.13 = 1.63/1.44).
\22\ The Departments conclude 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 calculate 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 on 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. (By 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 4.7 percent, from
$135.2 million in Year 1 to $141.5 million. Over the 10-year period,
using an overhead rate of 17 percent would increase the total
undiscounted cost of the Final Rule from $620.4 million to $650.2
million, or 4.8 percent.
---------------------------------------------------------------------------
The Departments use the hourly compensation rates presented in
Exhibit 3 throughout this analysis to estimate the labor costs for each
provision.
[[Page 55928]]
Exhibit 3--Compensation Rates
[2015 dollars]
----------------------------------------------------------------------------------------------------------------
Average hourly Loaded wage Hourly
wage rate factor compensation
Position Grade level -------------------------------- rate
---------------
a b c = a x b
----------------------------------------------------------------------------------------------------------------
Local Employees
----------------------------------------------------------------------------------------------------------------
Computer systems analysts.......... N/A........................ $38.70 1.57 $60.76
Database administrators............ ........................... 37.96 .............. 59.60
Management analysts................ ........................... 38.60 .............. 60.60
Management occupations staff....... ........................... 40.53 .............. 63.63
Office and administrative support ........................... 18.70 .............. 29.36
occupations.
Social and community service ........................... 38.86 .............. 61.01
managers.
----------------------------------------------------------------------------------------------------------------
State Employees
----------------------------------------------------------------------------------------------------------------
Computer systems analysts.......... N/A........................ 35.78 1.57 56.17
Database administrators............ ........................... 36.32 .............. 57.02
Lawyers............................ ........................... 41.71 .............. 65.48
Management analysts................ ........................... 29.22 .............. 45.88
Management occupations staff....... ........................... 41.65 .............. 65.39
Office and administrative support ........................... 19.47 .............. 30.57
occupations.
Rehabilitation counselors.......... ........................... 23.35 .............. 36.66
Social and community service ........................... 34.53 .............. 54.21
managers.
Social workers..................... ........................... 22.43 .............. 35.22
Staff trainers \23\................ ........................... 34.53 .............. 54.21
State Rehabilitation Council Board ........................... 29.22 .............. 45.88
members \24\.
----------------------------------------------------------------------------------------------------------------
Federal Employees
----------------------------------------------------------------------------------------------------------------
Federal positions.................. GS-12, Step 5.............. 33.39 1.63 54.43
GS-13, Step 5.............. 39.70 .............. 64.71
GS-14, Step 5.............. 46.92 .............. 76.48
----------------------------------------------------------------------------------------------------------------
The subject-by-subject analysis presents the total incremental
costs of the Final Rule relative to the baseline--that is, requirements
applicable to core programs prior to the enactment of WIOA. This
analysis estimates these incremental costs, which affected entities
will incur in complying with the Final Rule. The equation below shows
the method the Departments use to calculate the incremental total cost
for each provision over the 10-year analysis period.
---------------------------------------------------------------------------
\23\ Based on the BLS mean hourly wage for social and community
service managers.
\24\ Based on the BLS mean hourly wage rate for management
analysts.
[GRAPHIC] [TIFF OMITTED] TR19AU16.000
---------------------------------------------------------------------------
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,
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 50 for a summary of the average annual cost
of the Final Rule by provision). The total labor cost is the sum of the
labor costs for each occupational category i (e.g., computer systems
analysts, 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 members required to perform the
activity, Ni; the hours required per staff member to perform
the 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
The Departments provide an assessment of transfer payments
associated with transitioning the Nation's public workforce system from
the requirements of WIA to the new
[[Page 55929]]
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. For example, under both
WIA and WIOA, financial transfers via formula grants will be made from
the Federal government to the States and from the States to Local WDBs,
as appropriate. In accordance with the State allotment provisions
required by WIOA sec. 127, the interstate funding formula methodology
is not significantly different from that used for the distribution of
funds under WIA.\25\
---------------------------------------------------------------------------
\25\ States may elect to change the distribution of funds at the
local level and appropriately document such changes in the State
Plans. Because small entities are fully funded by the States, which
are not small entities, however, the Departments do not anticipate
any impact on small entities.
---------------------------------------------------------------------------
One example of where impacts are discussed qualitatively, rather
than quantified, is the expectation that available U.S. workers trained
and hired who were previously unemployed will no longer seek new or
continued UI benefits. Assuming other factors remain constant, the
Departments expect State UI expenditures to decline because of the
hiring of U.S. workers following WIOA implementation. We cannot
quantify these transfer payments, however, due to a lack of adequate
data.
5. Updates to the Cost-Benefit Analysis for the Final Rule
In total, the Departments estimate that this Final Rule will result
in a 10-year undiscounted cost of $626.8 million (in 2015 dollars). We
estimated that the NPRM would result in $1.5 billion in undiscounted
costs (in 2013 dollars). As discussed below, after reviewing public
comments and with further consultation with program experts in the DOL
and ED program areas, we updated the cost analysis and made changes to
specific provisions in the NPRM that affected costs.
General Updates
In the Final Rule economic analysis, the Departments update all
costs to 2015 dollars from 2013 dollars in the NPRM. This update
increases the estimated cost of the Final Rule relative to the cost
presented in the NPRM.
In addition, the Departments have made several updates to the labor
cost estimates. First, we use more appropriate occupational categories
than those used in the NPRM (i.e., administrative staff, Board members,
counsel staff, local stakeholders, managers, and technical staff). In
this Final Rule, the occupational categories include: computer systems
analysts, database administrators, lawyers, management analysts,
management occupations staff (hereafter referred to as ``managers''),
office and administrative support occupations staff (hereafter referred
to as ``office and administrative support staff''), rehabilitation
counselors, social and community service managers, social workers,
staff trainers, and State Rehabilitation Council (SRC) Board members.
Due to the numerous changes made to each provision in the analysis,
which are described in detail below, these occupational categories add
more specificity to the labor costs, but it is unclear whether they had
a positive or negative effect on costs as a whole.
Second, the Departments have 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 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, it is unclear
whether this had a positive or negative effect on costs as a whole.
Third, based on further discussion with DOL program experts, the
Departments have increased the overall number of States affected by DOL
program requirements from 56 to 57 in the Final Rule because we
concluded that the WIOA requirements also will affect the Republic of
Palau.
In the Final Rule, the Departments have made several changes to the
provisions presented in the NPRM. Exhibit 4 presents a summary of the
updates made to the NPRM provisions in the Final Rule. To simplify the
analysis and combine related requirements, we merge the following
provisions:
Provision (b) ``New Elements to State and Local Plans''
and provision (f) ``Unified or Combined State Plans'' are combined to
form provision (b) ``Unified or Combined State Plan: Expanded Content,
Biennial Development and Modification Process, and Submission
Coordination Requirements.''
Provision (c) ``Development and Updating of State
Performance Accountability Measures,'' provision (e) ``Development of
Strategies for Aligning Technology and Data Systems across One-Stop
Partner Programs,'' provision (h) ``State Performance Accountability
Measures,'' provision (i) ``Performance Reports,'' and provision (j)
``Evaluation of State Programs'' are combined to form provision (c)
``Performance Accountability System.''
In addition, the Departments have decided that the following two
provisions are more appropriate in the DOL WIOA Final Rule RIA:
Provision (d) ``Identification and Dissemination of Best Practices''
and provision (g) ``Local Plan Revisions.'' Although 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 Cost-Benefit
Analysis).
---------------------------------------------------------------------------
\26\ This column maps the requirements from the RIA of the NPRM
to the RIA of the Final Rule, and is not a comprehensive list of all
Final Rule requirements.
Exhibit 4--Updates to Cost Provisions in the NPRM
------------------------------------------------------------------------
Required activities
NPRM Final rule in NPRM \26\
------------------------------------------------------------------------
(a) Time to Review the New (a) Time to Review Learn about
Rule. the New Rule. new regulations and
plan for
compliance.
(b) New Elements to State (b) Unified or Develop new
and Local Plans. Combined State 4-year Unified or
Plans: Expanded Combined State
Content, Biennial Plans; and
Development and Review and
Modification modify 4-year
Process, and Unified or Combined
Submission State Plans.
Coordination
Requirements.
[[Page 55930]]
(c) Development and Updating (c) Performance Develop and
of State Performance Accountability update the State
Accountability Measures. System. performance
accountability
systems;
Implement
measures for data
collection and
reporting on the
effectiveness in
serving employers;
Negotiate
levels of
performance;
Run
statistical
adjustment model to
adjust levels of
performance based
on actual economic
conditions and
characteristics of
participants;
Provide
technical
assistance to
States;
Obtain UI
wage data; and
Purchase
data analytic
software and
perform training.
(d) Identification and Moved to the DOL N/A.
Dissemination of Best WIOA Final Rule
Practices. (see provision (c)
``Identification
and Dissemination
of Best
Practices'').
(e) Development of (c) Performance Align
Strategies for Aligning Accountability technology and data
Technology and Data Systems System. systems across one-
across One-Stop Partner stop partner
Programs. programs.
(f) Unified or Combined (b) Unified or Review and
State Plan. Combined State develop new 4-year
Plans: Expanded Unified or Combined
Content, Biennial State Plans to
Development and ensure they satisfy
Modification the new content
Process, and requirements; and
Submission Coordinate
Coordination actions for
Requirements. developing a new 4-
year Unified or
Combined State Plan
among the core
programs
administered by the
Departments.
(g) Local Plan Revisions.... Moved to the DOL N/A.
WIOA Final Rule:
(See provision (m)
``Local and
Regional Plan
Modification'').
(h) State Performance (c) Performance Collect
Accountability Measures. Accountability data to report on
System. additional State
performance
accountability
measures.
(i) Performance Reports..... (c) Performance Develop a
Accountability performance report
System. template that
reports outcomes
via the new WIOA
performance
accountability
metrics;
Develop,
update, and submit
eligible training
provider (ETP)
reports;
Collect,
analyze, and report
performance data;
and
Provide
training on data
collection.
(j) Evaluation of State (d) State Evaluation Coordinate
Programs. Responsibilities. any evaluation
activities to
cooperate in the
provision of
various forms of
data for evaluation
activities; and
Coordinate
in designing and
developing
evaluations carried
out under sec.
116(e) of WIOA.
------------------------------------------------------------------------
Time To Review the New Rule
This section describes the updates to the NPRM's provision (a)
``Time to Review the New Rule.'' In this Final Rule's subject-by-
subject analysis, costs related to this provision are found in
provision (a) ``Time to Review the New Rule.'' The cost of this
provision reflects the cost for individuals in the regulated community
to learn about the new regulations and plan for compliance. Each core
program has different staffing and WIOA affects them differently, which
would result in different labor categories and level of effort for them
to read and understand the Joint WIOA Final Rule. The total
undiscounted 10-year cost of this provision decreased from $17.7
million for the NPRM to $3.3 million for this Final Rule.\27\
---------------------------------------------------------------------------
\27\ This variance in cost is mainly a result of the decrease in
the estimated number of staff and level of effort required for this
activity for the State- and local-level AEFLA program.
---------------------------------------------------------------------------
At the State level for the DOL programs, the Departments made the
following changes, which are presented in Exhibit 5. Following
additional discussions with program experts, we decreased the number of
DOL management staff from two to one. We added four lawyers who will
review the new requirements in the Final Rule. Finally, we replaced the
technical staff in our previous estimate with the more appropriate
occupational category of social and community service manager. Although
the number of personnel in this last category was reduced from four to
two, the level of effort was increased from 20 to 40 hours; hence, the
overall level of effort (80 hours) remained the same.
[[Page 55931]]
Exhibit 5--Updates to Costs of State-Level DOL Programs--Time to Review the New Rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Time to review the new rule (a) Time to review the new 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.......................... 2 20 One time............. 56 States............ Management 1 20 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 4 20 Lawyer............. 4 20
---------------------------------------------------------------------------------------------------------------------------------------------------------
Social & community 2 40
service manager.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 6 presents the updates to the State-level AEFLA program.
The Departments consulted with experts at the State-level AEFLA program
and decided to reduce the number of managers from five to four after
concluding that the number needed to reflect an average staffing level
across all States and outlying areas was less than expected. Three of
the four managers are categorized as social and community service
managers and will have a level of effort of 20 hours rather than 40
hours because we concluded that associate staff will not spend as much
time on this activity as the State director.\28\ We reduced the level
of effort required from the lawyer from 40 to 20 hours because we
concluded that the lawyer, whose role is largely advisory, will not
spend as much time on this activity as the State director, who will be
responsible for implementation. We also excluded the two technical and
five administrative staff included in our previous estimate because
those occupational categories generally are not involved in reviewing
regulations.
---------------------------------------------------------------------------
\28\ The Departments used the occupations category of
``management occupations staff'' to estimate the compensation rate
for the State Director.
Exhibit 6--Updates to Costs of State-Level AEFLA Programs--Time To Review the New Rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Time to review the new rule (a) Time to review the new 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.......................... 5 40 One time............. 57 States............ Management 1 40 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 40 Lawyer............. 1 20
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 40 Social & community 3 20
service manager.
------------------------------------------------------------ --------------------------------------------------------------------------------------
Admin. staff..................... 5 40
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates to the State VR program,
which are shown in Exhibit 7. We consulted with VR program experts and
decided to increase the number of managers from three to four. Three of
these four managers are categorized as social and community service
managers. In addition, we increased the level of effort per manager
from 20 to 40 hours to reflect the greater complexity of the new rule.
We replaced the counsel and technical staff members with three
rehabilitation counselors to review the new requirements of the Final
Rule. This change was made to better reflect the VR agency staff who
will be performing this task.
Exhibit 7--Updates to Costs of State-Level VR Programs--Time To Review the New Rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Time to review the new rule (a) Time to review the new 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.......................... 3 20 One time............. 80 VR agencies....... Management 1 40 One time............ 80 VR agencies.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
[[Page 55932]]
Counsel staff.................... 1 20 Social & community 3 40
service manager.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 20 Rehabilitation 3 40
counselor.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
At the local level for the AEFLA program, the Departments made the
following changes, which are presented in Exhibit 8. We concluded that
local involvement in reviewing the new rule generally will require
participation in a statewide meeting convened by the State office to
present the new rule and address questions raised by local staff. We
added one social and community service manager who will review the new
requirements of the Final Rule. Based on conversations with additional
program experts, we excluded the technical and administrative staff
included in our previous estimate, because those occupational
categories generally are not involved in reviewing regulations. Note
that, instead of presenting the costs at the State level as in the
NPRM, we are presenting costs at the program, or local, level.
Exhibit 8--Updates to Costs of Local-Level AEFLA Programs--Time To Review the New Rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(a) Time to review the new rule (a) Time to review the new 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.......................... 40 40 One time............. 57 States............ Management 1 4 One time............ 2,396 local
occupations staff. programs.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 40 40 Social & community 1 4
service manager.
------------------------------------------------------------ --------------------------------------------------------------------------------------
Admin. staff..................... 40 40
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New Elements to State and Local Plans
This section describes the updates to the NPRM's provision (b)
``New Elements to State and Local Plans.'' In this Final Rule's
subject-by-subject analysis, this cost provision is included in
provision (b) ``Unified or Combined State Plans: Expanded Content,
Biennial Development and Modification Process, and Submission
Coordination Requirements'' and it captures the cost of developing new
4-year Unified or Combined State Plans, performing a review of each
State Plan, and modifying it 2 years after it is submitted. For this
activity, the total 10-year cost (undiscounted) decreased from $53.9
million in the NPRM to $1.9 million in the Final Rule.\29\ These
revised cost estimates can be found under the subsections ``Four-Year
Plan Modification--Third Year,'' ``Development of New 4-Year Plan--
Fifth Year,'' ``Four-Year Plan Modification--Seventh Year,'' and
``Development of New 4-Year Plan--Ninth Year,'' in provision (b) of
this Final Rule.
---------------------------------------------------------------------------
\29\ The variance in cost is due to changes to the assumptions
used to estimate costs (e.g., number of staff, occupational
categories, level of effort, and frequency.) More specifically, this
variance in cost is mainly due to AEFLA omitting biennial State-
level consulting costs and biennial local-level labor costs and the
Departments' assumption that the level of effort to undertake the
biennial development and modification process will decrease over
time rather than remain constant. The Final Rule does not implement
any policy changes over the NPRM that impact this cost.
---------------------------------------------------------------------------
At the State level for the DOL programs, the Departments made the
following changes, which are presented in Exhibit 9. In the Final Rule,
required compliance activities are measured biennially and instead of
assuming a constant level of effort for each biennial activity, we
assumed that the level of effort will be slightly higher for managers
and management analysts to modify the first 4-year State Plan and
develop the second State Plan than it will be to produce new State
Plans and modifications in subsequent years. The Departments expect
that more effort initially will be expended to build relationships
between new partners and to acquire experience drafting State Plans in
a format that might be new to some partners. In addition, we added
managers and lawyers and we replaced the technical staff in our
previous estimate with the more appropriate occupational category of
management analyst.
[[Page 55933]]
Exhibit 9--Updates to Costs of State-Level DOL Programs--New Elements to State and Local Plans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(b) New elements to state and local plans (b) Unified or combined state plans: expanded content, biennial development and
---------------------------------------------------------------------------------------------------------- modification process, and submission coordination Requirements
--------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Technical staff.................. 2 16 Annual............... 56 States............ Four-Year Plan Modification--Third Year
------------------------------------------------------------ --------------------------------------------------------------------------------------
Admin. staff..................... 1 16 Management 1 12 3rd year............ 57 States.
occupations staff.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Lawyer............. 1 4
-------------------------------------------------
Management analyst. 2 12
-------------------------------------------------
Office & admin. 1 4
support staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of New 4-Year Plans--Fifth Year
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 12 5th year............ 57 States.
occupations staff.
-------------------------------------------------
Lawyer............. 1 4
-------------------------------------------------
Management analyst. 2 12
-------------------------------------------------
Office & admin. 1 4
support staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Four-Year Plan Modification--Seventh Year
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 7th year............ 57 States.
occupations staff.
-------------------------------------------------
Lawyer............. 1 4
-------------------------------------------------
Management analyst. 2 8
-------------------------------------------------
Office & admin. 1 4
support staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of New 4-Year Plans--Ninth Year
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 10 9th year............ 57 States.
occupations staff.
-------------------------------------------------
Lawyer............. 1 4
-------------------------------------------------
Management analyst. 2 10
-------------------------------------------------
Office & admin. 1 4
support staff.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 10 presents the changes made by the Departments at the
State level for the AEFLA program. The Departments considered the State
office's historical level of effort for State Plan development. The
Departments expect that it will take more effort initially to build
relationships between new partners and to acquire experience drafting
State Plans in a format that may be new to some partners. We concluded
that the AEFLA State office could leverage economies of scale for the
biennial State Plan development and modification process required under
WIOA. That is, established procedures and experienced staff already
will be in place from previous State Plan efforts to gather, refine,
and incorporate input for modification of the new elements. In
addition, we anticipate that the extent of necessary plan modifications
will decrease over time as the elements are improved with each revision
cycle. Burdens will be higher in the fifth and ninth years to account
for the additional burden involved with developing new State Plans.
Furthermore, we reduced the number of managers from five to four (three
of which are categorized as social and community service managers). We
removed technical and administrative staff because we concluded that
those occupational categories are not typically involved in State Plan
development. In addition, we removed the consultant cost because we
concluded that consultants are not commonly engaged in State Plan
development.
[[Page 55934]]
Exhibit 10--Updates to Costs of State-Level AEFLA Programs--New Elements to State and Local Plans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(b) New elements to state and local plans (b) Unified or combined state plans: Expanded content, biennial development and
------------------------------------------------------------------------------------------------------ modification process, and submission coordination requirements
------------------------------------------------------------------------------------------
Average Average Average
Labor category number of level of Frequency Number of affected Average level of Number of affected
workers effort entities Labor category number of effort Frequency entities
(hrs.) workers (hrs.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager........................... 5 40 Biennial............ 57 States.......... Four-Year Plan Modification--Third Year
----------------------------------------------------------- ------------------------------------------------------------------------------------------
Counsel staff..................... 1 20 Management 1 10 3rd year............ 57 States.
occupations staff.
----------------------------------------------------------- ----------------------------------------------
Technical staff................... 2 40 Lawyer.............. 1 10
----------------------------------------------------------- ----------------------------------------------
Admin. staff...................... 5 20 Social & community 3 10
service manager.
----------------------------------------------------------- ------------------------------------------------------------------------------------------
Consultant cost................... $25,000 Development of New 4-Year Plans--Fifth Year
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 15 5th year............ 57 States.
occupations staff.
----------------------------------------------
Lawyer.............. 1 15
----------------------------------------------
Social & community 3 15
service manager.
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Four-Year Plan Modification--Seventh Year
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 5 7th year............ 57 States.
occupations staff.
----------------------------------------------
Lawyer.............. 1 5
----------------------------------------------
Social & community 3 5
service manager.
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of New 4-Year Plan--Ninth Year
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 10 9th year............ 57 States.
occupations staff.
----------------------------------------------
Lawyer.............. 1 10
----------------------------------------------
Social & community 3 10
service manager.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates to the State VR program,
which are shown in Exhibit 11. Instead of assuming a constant level of
effort for each biennial activity, we assumed the level of effort will
be highest for modifying the first new 4-year State Plan in the third
year, will decrease slightly for developing the second 4-year State
Plan in the fifth year, and will remain at a slightly lower level for
the subsequent development and modification process. Again, this
decrease over time reflects the initial effort to build relationships
between new partners and to acquire experience drafting State Plans in
a format that might be new to some partners. In addition, we replaced
the technical staff in our previous estimate with the more appropriate
occupational category of social and community service manager.
Exhibit 11--Updates to Costs of State-Level VR Programs--New Elements to State and Local Plans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(b) New elements to state and local plans (b) Unified or combined state plans: Expanded content, biennial development and
------------------------------------------------------------------------------------------------------ modification process, and submission coordination requirements
------------------------------------------------------------------------------------------
Average Average Average
Labor category number of level of Frequency Number of affected Average level of Number of affected
workers effort entities Labor category number of effort Frequency entities
(hrs.) workers (hrs.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager........................... 1 5 Biennial............ 80 VR agencies..... Four-Year Plan Modification--Third Year
----------------------------------------------------------- ------------------------------------------------------------------------------------------
Technical staff................... 1 5 Management 2 14 3rd year............ 80 VR agencies.
occupations staff.
----------------------------------------------------------------------------------------------------------------------------------------------------
Social & community 2 14
service manager.
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of New 4-Year Plan--Fifth Year
-------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 55935]]
Management 2 10 5th year............ 80 VR agencies.
occupations staff.
----------------------------------------------
Social & community 2 10
service manager.
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Four-Year Plan Modification--Seventh Year
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 2 7 7th year............ 80 VR agencies.
occupations staff.
----------------------------------------------
Social & community 2 7
service manager.
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of New 4-Year Plan--Ninth Year
-------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 2 7 9th year............ 80 VR agencies.
occupations staff.
----------------------------------------------
Social & community 2 7
service manager.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
For the AEFLA program at the local level, the Departments made the
following changes, which are presented in Exhibit 12. We have concluded
that local AEFLA staff will not bear the burden for reviewing State and
Local Plans because we have concluded that reviewing State and Local
Plans is not the role of local AEFLA staff. Therefore, we removed all
cost inputs at the local level related to this provision.
Exhibit 12--Updates to Costs of Local-Level AEFLA Programs--New Elements to State and Local Plans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(b) New elements to state and local plans NA
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of affected
Labor category number of effort Frequency entities Labor category number of effort Frequency entities
workers (hrs.) workers (hrs.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager........................... 40 40 Biennial............ 57 States.......... N/A
-----------------------------------------------------------
Admin. staff...................... 40 20
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development and Updating of State Performance Accountability Measures
This section describes the updates to the NPRM's provision (c)
``Development and Updating of State Performance Accountability
Measures.'' In this Final Rule, this cost provision has been included
in provision (c) ``Performance Accountability System,'' and it captures
the cost of: (1) Developing and updating the State performance
accountability system; (2) implementing measures for data collection
and reporting on the effectiveness in serving employers; (3)
negotiating levels of performance; (4) running the statistical
adjustment model to adjust levels of performance based on actual
economic conditions and characteristics of participants; (5) providing
technical assistance to States; (6) obtaining UI wage data; and (7)
purchasing data analytic software and performing training. For these
activities, the total 10-year cost (undiscounted) increased from $128.9
million in the NPRM to $320.0 million in this Final
Rule.30 31 These revised cost estimates can be found under
the subsections ``Development and Updating of State Performance
Accountability Systems,'' ``Negotiation of Levels of Performance,''
``Running Statistical Adjustment Model to Adjust Levels of Performance
Based on Actual Economic Conditions and Characteristics of
Participants,'' ``Technical Assistance to States,'' ``Obtain UI Wage
Data,'' and ``Data Analytic Software and Training,'' in provision (c)
of this Final Rule.
---------------------------------------------------------------------------
\30\ A portion of the $320.0 million in costs accounts for
software and IT systems costs from provision (e) ``Development of
Strategies for Aligning Technology and Data Systems across One-Stop
Partner Programs,'' provision (i) ``Performance Reports,'' and
provision (j) ``Evaluation of State Programs.'' Thus, this value
overstates how much costs have increased in this Final Rule relative
to the NPRM.
\31\ This variance in cost is mainly due to new burdens for
negotiating levels of performance and running statistical adjustment
models to adjust levels of performance and to new Federal-level
burdens for the VR program to develop and update the State
performance accountability systems.
---------------------------------------------------------------------------
At the Federal level for the DOL programs, the Departments made the
following changes, which are presented in Exhibit 13. We added a one-
time Federal software and IT systems cost of $750,000 to upgrade the
system to meet the requirements of WIOA. Following discussions with
additional program experts, we accounted for the effort related to
negotiating levels of performance and adjusting levels of performance
based on economic
[[Page 55936]]
conditions and the characteristics of participants. For negotiations,
we added one manager and two management analysts. The biennial level of
effort is estimated at 8 hours for both occupational categories. This
additional level of effort is required for existing staff to compile
new inputs that were not required under WIA. For adjusting levels of
performance, we also added one manager and two computer systems
analysts to account for running the regression model twice per year as
required under WIOA rather than only once per year as required under
WIA. The annual level of effort is estimated at 250 hours for managers
and 1,000 hours for computer systems analysts. Furthermore, licensing
fees of $10,000 will be incurred to purchase the statistical software
used to perform the regression analysis and modeling.
Exhibit 13--Updates to Costs of Federal-Level DOL Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of affected
Labor category number of effort Frequency entities Labor category number of effort Frequency entities
workers (hrs.) workers (hrs.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development and Updating of State Performance Accountability Systems
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Software/IT systems $750,000 One time............ 1
cost.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Negotiation of Levels of Performance
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 1st year, then every 1
occupations staff 2 years.
(GS-14, Step 5).
-----------------------------------------------
Management analyst 2 8
(GS-12, Step 5).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Running Statistical Adjustment Model to Adjust Levels of Performance Based on Actual
Economic Conditions and Characteristics of Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 250 Annual.............. 1
occupations staff
(GS-14, Step 5).
-----------------------------------------------
Computer systems 2 1,000
analysts (GS-13,
Step 5).
-----------------------------------------------
Licensing fee....... $10,000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates to the Federal-level
AEFLA program, which are presented in Exhibit 14. We accounted for the
additional burden for Federal staff to negotiate levels of performance
for the new performance indicators under WIOA. We added four managers
and four social community service managers to perform these activities.
The biennial level of effort for each occupational category is
estimated at 24 hours for each staff member.
The Departments also revised the estimates from the NPRM to include
an important source of Federal burden for running the new statistical
adjustment model. In the NPRM, we originally estimated no hours for
this activity. After further review and consideration, however, we
concluded that Federal staff hours will be required annually to account
for running the statistical adjustment model twice per year as required
under WIOA. We added two managers at 40 hours each and two management
analysts at 80 hours each to perform these tasks annually.
In addition, the Departments added a one-time Federal consultant
cost of $1 million in the second year to provide technical assistance
to States in the collection of data to comply with the new requirements
relating to the WIOA performance accountability indicators.
Exhibit 14--Updates to Costs of Federal-Level AEFLA Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of affected
Labor category number of effort Frequency entities Labor category number of effort Frequency entities
workers (hrs.) workers (hrs.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A Negotiation of Levels of Performance
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 4 24 1st year, then every 1
occupations staff 2 years.
(GS-14, Step 5).
-----------------------------------------------
[[Page 55937]]
Social & community 4 24
service manager (GS-
13, Step 5).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Running Statistical Adjustment Model to Adjust Levels of Performance Based on Actual
Economic Conditions and Characteristics of Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 2 40 Annual.............. 1
occupations staff
(GS-14, Step 5).
-----------------------------------------------
Management analysts 2 80
(GS-12, Step 5).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Technical Assistance to States
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Consultant cost..... $1,000,000 2nd year............ 1
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 15 presents the following changes made by the Departments
to the Federal level for the VR program. After consulting with
additional program experts, we accounted for and revised the level of
effort needed to develop and update State performance accountability
systems, negotiate levels of performance, and run the statistical
adjustment model to adjust levels of performance based on actual
economic conditions and characteristics of participants.
For developing and updating State performance accountability
systems, the Departments added two data management specialists
positions, one of which will be General Schedule (GS)-level 14 and the
other GS-level 13. Both specialists will devote 768.63 hours in the
first year of the rule to program the database and perform related
software development tasks. For negotiations, we added four managers to
reflect the analysis and review of State and Federal data during the
negotiation process. The level of effort for the managers is estimated
at 12 hours each biennially. For adjusting levels of performance, we
added two managers and two database administrators to review the State
and Federal data relative to the adjustments made to the levels of
performance by the final run of the model. The level of effort for
managers is estimated at 52 hours each annually, while the level of
effort for database administrators is estimated at 156 hours each
annually.
Exhibit 15--Updates to Costs of Federal-Level VR Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of affected
Labor category number of effort Frequency entities Labor category number of effort Frequency entities
workers (hrs.) workers (hrs.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development and Updating of State Performance Accountability Systems
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Data Management 1 768.63 One time............ 1.
Specialist (GS-14,
Step 5).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Data Management 1 768.63 One time............ 1.
Specialist (GS-13,
Step 5).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Negotiation of Levels of Performance
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 4 12 1st year, then every 1.
occupations staff 2 years.
(GS-14, Step 5).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Running Statistical Adjustment Model to Adjust Levels of Performance Based on Actual
Economic Conditions and Characteristics of Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 2 52 Annual.............. 1.
occupations staff
(GS-14, Step 5).
-----------------------------------------------
Database admin. (GS- 2 156
13, Step 5).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 55938]]
At the State level for the DOL programs, the Departments made the
following updates, which are presented in Exhibit 16. We replaced the
technical staff in our previous estimate with the more appropriate
occupational category of computer systems analyst. Following
discussions with program experts, we increased the level of effort for
each administrative staff member from 32 to 72 hours, and we decided
that costs related to the work performed by staff and the software and
IT systems will be incurred only once rather than annually. In
addition, we accounted for the effort related to negotiating levels of
performance and adjusting levels of performance. For negotiations, we
added one manager and two office and administrative support staff
members. The estimated level of effort for each staff member in both
occupational categories is 8 hours biennially. For adjusting levels of
performance, we added one manager, two computer systems analysts, and
two office and administrative support staff members. These staff
members will gather and input various data points to the tool, which
then will create statewide levels of performance for each WIOA
performance indicator. The estimated annual level of effort for each
manager, computer systems analyst, and office and administrative
support staff member is 10 hours, 40 hours, and 20 hours, respectively.
Exhibit 16--Updates to Costs of State-Level DOL Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Average level of Number of affected Average level of Number of affected
Labor category number of effort Frequency entities Labor category number of effort Frequency entities
workers (hrs.) workers (hrs.)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 1 32 Annual............. 56 States.......... Development and Updating of State Performance Accountability Systems
------------------------------------------------------------ ------------------------------------------------------------------------------------------
Technical Staff.................. 3 80 Management 1 32 One time............ 57 SWAs.
occupations staff.
------------------------------------------------------------ ----------------------------------------------
Admin. staff..................... 1 32 Computer systems 3 80
analyst.
------------------------------------------------------------ ----------------------------------------------
Software/IT systems cost......... $100,000 Office & admin. 1 72
support staff.
------------------------------------------------------------ --------------------------------------------------------------------
Licensing fee.................... $50,000 Software/IT systems $100,000
cost.
--------------------------------------------------------------------------------- --------------------------------------------------------------------
Consultant cost.................. $75,000 One time........... Licensing fee....... $50,000 Annual..............
--------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Consultant cost..... $75,000 One time............
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Negotiation of Levels of Performance
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 1st year, then every 57 States.
occupations staff. 2 years.
-----------------------------------------------
Office & admin. 2 8
support staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Running Statistical Adjustment Model to Adjust Levels of Performance Based on Actual
Economic Conditions and Characteristics of Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 10 Annual.............. 57 States.
occupations staff.
-----------------------------------------------
Computer systems 2 40
analysts.
-----------------------------------------------
Office & admin. 2 20
support staff.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates to the State-level AEFLA
program, which are presented in Exhibit 17. For the costs related to
developing and updating State performance accountability systems, we
reduced the number of managers from five to four after determining that
this number will reflect more accurately the staffing level needed
across all States and outlying areas. Three of these staff members are
categorized as social and community service managers, and we decreased
the level of effort per staff member from 80 hours to 60 hours. We
replaced the two technical staff in our previous estimate with the more
appropriate occupational categories of database administrator and
computer systems analyst. After consideration, we revised the
calculation to exclude the five administrative staff members included
in our previous estimate, because those occupational categories are
generally not involved in these tasks. We eliminated a one-time
consultant cost because we have concluded that consultants are
typically not engaged in this task. We added an annual $350,000
software and IT systems cost for the State AEFLA data system. This
annual $350,000 software and IT systems cost replaces one-time and
annual State
[[Page 55939]]
software and IT systems costs that were previously attributed in the
NPRM to provisions (i) ``Performance Reports'' and (j) ``Evaluation of
State Programs.'' We have concluded that using annual State software
and IT systems costs, rather than one-time software and IT systems
costs, more accurately reflects the typical IT funding pattern of the
State-level AEFLA program.
These changes also are based on the review of public comments,
which resulted in a decision by the Departments that each exit by a
participant during a program year will count as a separate response to
be used for data collection and outcome reporting for the performance
indicators. Prior to WIOA, the AEFLA program reported only unduplicated
counts of participant outcomes. Making the change to an accountability
structure that is based on reporting outcomes for each exit by a
participant during a program year represents a significant operational
change for the AEFLA program and will require a commensurate increase
in the level of effort needed for implementation.
In addition, after discussions with program experts, the
Departments accounted for additional burden for State staff to
negotiate levels of performance for the new indicators under WIOA. We
added one manager and one social community service manager to perform
these activities. The biennial level of effort per staff member is
estimated at 12 hours.
The Departments eliminated the State burden for running the
statistical adjustment model, after consulting with statistical experts
and determining that the model will only be run in the Federal office
using aggregate State data.
Exhibit 17--Updates to Costs of State-Level AEFLA Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability 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.......................... 5 80 One time............. 57 States............ Development and Updating of State Performance Accountability Systems
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 2 80 Management 1 60 One time............ 57 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 5 80 Computer systems 1 80
analyst.
------------------------------------------------------------ -----------------------------------------------
Consultant cost.................. $25,000 Social & community 3 60
service manager.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Database 1 80
administrator.
------------------------------------------------------------------------
Software/IT systems $350,000 Annual..............
cost.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Negotiation of Levels of Performance
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 12 1st year, then every 57 States.
occupations staff. 2 years.
-------------------------------------------------
Social & community 1 12
service manager.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Under the ``Development and Updating of State Performance Accountability Systems,'' the software and IT systems costs are a combination of inputs that were previously accounted for under
provisions (i) ``Performance Reports'' and (j) ``Evaluation of State Programs.''
Exhibit 18 presents the updates to the State VR program. Based on
public comment and further deliberation, the Departments significantly
revised the estimated State-level burden associated with the
development and updating of State VR agency performance accountability
systems. First, to more appropriately account for the burden associated
with the establishment of State performance goals and the State's
evaluation and analysis of progress toward such goals, the Departments
reduced the number of managers from six to four, three of which are
categorized as social and community service managers, and replaced the
four technical staff with two database administrators. However, this
decrease in the number of staff is offset by the increase in the level
of effort from 10 to 80 hours for managers and 10 to 100 hours for
database administrators. We also included SRC members because they will
need to play an advisory role in developing and updating levels of
performance for the State VR agency. These costs will occur biennially.
Although the Departments estimate that each VR agency will require
computer systems analysts for this one-time task, the related burden
for changing a State's CMS has been broken down to reflect the
variation among the 80 State VR agencies with respect to their size and
whether they contract for outside assistance for developing and
maintaining their CMS. For example, the level of effort for the 30 VR
agencies that have a maintenance contract with a CMS vendor to make
system updates will be less than the 50 agencies that are without
vendor support. The burden hours shown in Exhibit 18 for tasks to be
carried out by computer systems analysts has been adjusted to reflect
only those hours we attribute to new requirements under sec. 116 in
title I of WIOA. The remaining hours related to this new burden are
accounted for in the RIA accompanying the final regulations for ``State
Vocational Rehabilitation Services Program; State Supported Employment
Services Program; Limitations on Use of Subminimum Wage,'' which is
published in this edition of the Federal Register. We also
[[Page 55940]]
added the proportional cost of annual licensing fees of $6,930 for 48
VR agencies for vendor-supplied CMS software.
In addition, following discussions with program experts, the
Departments accounted for and revised the level of effort needed to
negotiate and adjust levels of performance and we are adding one
manager, two social and community service managers, and two management
analysts to accommodate the increased level of effort. Similarly, we
used input from public comment and program experts to revise the level
of effort needed to apply the statistical adjustment model and we are
adding one manager, one computer systems analyst, one database
administrator, and one management analyst to account for the effort
needed to integrate the statistical adjustment model into the process
of establishing expected levels of performance and negotiated levels of
performance.
In response to public comment and discussions with program experts,
the Departments have included the estimated burden for obtaining UI
Wage Data by VR Agencies. The estimates reflect that VR agencies will
incur new costs for obtaining UI wage data on participants that exit
the program after receiving services and will incur different levels of
annual data query costs related to obtaining UI wage data, depending on
the size of the agency. State VR agencies operating under the increased
data and performance requirements of WIOA will also need the capability
to analyze their program performance data more effectively. In response
to public comment, we added a new software and IT systems cost for data
analytic software and related training. The amount of the software and
IT systems costs varies, depending on the size of the agency.
Exhibit 18--Updates to Costs of State-Level VR Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability 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.......................... 6 10 One time............. 80 VR agencies....... Development and Updating of State Performance Accountability Systems
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 4 10 Management 1 80 1st year, then every 80 VR agencies.
occupations staff. 2 years.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Social & community 3 80
service manager.
-------------------------------------------------
Database 2 100
administrator.
-------------------------------------------------
SRC Board members.. 12 3
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Computer systems 5 360 One time............ 5 (large) VR
analyst. agencies w/o
vendor support.
------------------------------------ --------------------------------------------------------------------------------------
2 360 45 (small &
med.) VR
agencies w/o
vendor support.
------------------------------------ --------------------------------------------------------------------------------------
2 54 30 VR agencies w/
CMS vendor
contracts.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Licensing fee...... $6,930 Annual.............. 48 VR agencies.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Negotiation of Levels of Performance
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 12 1st year, then every 80 VR agencies.
occupations staff. 2 years.
-------------------------------------------------
Social & community 2 12
service manager.
-------------------------------------------------
Management analyst. 2 12
--------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 55941]]
Running Statistical Adjustment Model to Adjust Levels of Performance Based on Actual
Economic Conditions and Characteristics of Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 4 Annual.............. 80 VR agencies.
occupations staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Computer systems 1 4
analyst.
-------------------------------------------------
Database 1 20
administrator.
-------------------------------------------------
Management analyst. 1 4
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Obtain UI Wage Data
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Data query cost.... $20,000 Annual.............. 10 (large) VR
agencies.
------------------------------------ --------------------------------------------------------------------------------------
$8,000 42 (med.) VR
agencies.
------------------------------------ --------------------------------------------------------------------------------------
$4,000 28 (small) VR
agencies.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Data Analytic Software and Training
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Software/IT systems $25,000 One time............ 10 (large) VR
cost. agencies.
------------------------------------ --------------------------------------------------------------------------------------
$15,000 42 (med.) VR
agencies.
------------------------------------ --------------------------------------------------------------------------------------
$10,000 28 (small) VR
agencies.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
At the local level for the DOL programs, the Departments made the
following updates, which are presented in Exhibit 19. Based on
discussions with program experts, we added one manager and two office
and administrative support staff members to account for the effort
needed to negotiate levels of performance biennially. The biennial
level of effort per staff member for both occupational categories is
estimated at 8 hours. We also added one manager, two computer systems
analysts, and two office and administrative support staff members to
account for the effort needed to run the statistical adjustment model
annually. The estimated annual level of effort per staff member for the
manager, computer systems analysts, and administrative staff members is
10 hours, 40 hours, and 20 hours, respectively.
[[Page 55942]]
Exhibit 19--Updates to Costs of Local-Level DOL Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A Negotiation of Levels of Performance
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 1st year then every 580 Local WDBs.
occupations staff. 2 years.
-------------------------------------------------
Office & admin. 2 8
occupations staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Running Statistical Adjustment Model to Adjust Levels of Performance Based on Actual
Economic Conditions and Characteristics of Participants
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 10 Annual.............. 580 Local WDBs.
occupations staff.
-------------------------------------------------
Computer systems 2 40
analysts.
-------------------------------------------------
Office & admin. 2 20
support staff.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 20 presents the updates to the local-level AEFLA program.
The Departments considered the typical experience of local involvement
and concluded that local staff will participate in statewide
stakeholder meetings, convened by the State AEFLA office, to develop
and update State performance accountability measures. We found that the
level of effort for local AEFLA programs will be significantly less
than previously expected because their role would be limited to those
stakeholder meetings. Note that instead of presenting the costs at the
State level as in the NPRM, we are presenting costs at the program, or
local, level using the total number of local AEFLA programs reflected
in actual program data submitted by States for the most recent
reporting year.
Exhibit 20--Updates to Costs of Local-Level AEFLA Programs--Development and Updating of State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(c) Development and updating of state performance accountability measures (c) Performance accountability 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.......................... 40 80 One-time............. 57 States............ Development and Updating of State Performance Accountability Systems
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 40 80 Management 1 4 One-time............ 2,396 local
occupations staff. programs.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Database 1 4
administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Identification and Dissemination of Best Practices
After further consideration, the Departments decided that the costs
associated with provision (d) ``Identification and Dissemination of
Best Practices'' in the NPRM are more appropriate in the DOL WIOA Final
Rule because the requirements affect only State WDBs. This provision
now can be found as provision (c) in the DOL WIOA Final Rule.
Therefore, this provision and its costs that result from the inputs
presented in Exhibit 21 ($2.9 million) are no longer included in the
economic analysis for this Final Rule.
[[Page 55943]]
Exhibit 21--Updates to Costs of Local-Level DOL State WDBs--Identification and Dissemination of Best Practices
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(d) Identification and dissemination of best practices Moved to DOL WIOA 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 20 One-time............. 40 States............ N/A. See DOL WIOA Final Rule
------------------------------------------------------------
Technical staff.................. 2 40
------------------------------------------------------------
Admin. staff..................... 1 20
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Development of Strategies for Aligning Technology and Data Systems
Across One-Stop Partner Programs To Enhance Service Delivery and
Improve Efficiencies
This section describes the updates to the NPRM's provision (e)
``Development of Strategies for Aligning Technology and Data Systems
across One-Stop Partner Programs to Enhance Service Delivery and
Improve Efficiencies.'' In the Final Rule's subject-by-subject
analysis, this cost provision is combined into provision (c)
``Performance Accountability System,'' and it captures the cost of
aligning technology and data systems across one-stop partner programs.
For this activity, the total 10-year cost (undiscounted) decreased from
$356.6 million in the NPRM to $166.5 million in the Final Rule.\32\
These revised cost estimates can be found under the subsection
``Development and Updating of State Performance Accountability
Systems'' in provision (c) of the Final Rule.
---------------------------------------------------------------------------
\32\ The variance in cost is due to changes to the assumptions
used to estimate costs (e.g., number of staff, occupational
categories, level of effort, and frequency.) More specifically, this
variance in cost is due to the reduction in annual software and IT
systems cost for the State-level AEFLA program and the removal of
the local-level AEFLA program costs. The Final Rule does not
implement any policy changes over the NPRM that impact this cost.
---------------------------------------------------------------------------
Exhibit 22 presents the changes made by the Departments for the
State Workforce Agencies (SWAs) State-level program. After further
consideration, we removed the manager and technical staff members and
replaced them with consultant and software and IT systems costs. We
estimated that the 23 SWAs that are farther in the process of aligning
their technology and data systems will incur $100,000 in first-year
consultant costs for designing the new systems, $200,000 in first-year
software and IT systems costs for purchasing hardware and implementing
the new systems, and $100,000 in software and IT systems costs in the
following 2 years for system maintenance. We estimate that the 34 SWAs
that use legacy systems will require more effort to align their
technology and data systems. These SWAs will incur $200,000 in first-
year consultant and software and IT system costs; $100,000 and $200,000
in second-year consultant and software and IT system costs,
respectively; and $100,000 in software and IT systems costs for
maintenance in the third through fifth years.
Exhibit 22--Updates to Costs of SWA--Development of Strategies for Aligning Technology and Data Systems Across One-Stop Partner Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(e) Development of strategies for aligning technology and data systems across one-stop partner programs (c) Performance accountability 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 80 One time............. 56 States............ Aligning Technology and Data Systems across One-stop Partner Programs
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 2 120 Consultant cost $100,000 One time............ 23 SWAs.
(``Low-Effort''
SWAs).
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Software and IT $200,000 One time............
systems cost
(``Low-Effort''
SWAs).
------------------------------------------------------------------------
Software and IT $100,000 2nd & 3rd years.....
systems cost
(``Low-Effort''
SWAs).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Consultant cost $200,000 One time............ 34 SWAs.
(``High-Effort''
SWAs).
------------------------------------------------------------------------
Consultant cost $100,000 2nd year............
(``High-Effort''
SWAs).
------------------------------------------------------------------------
Software and IT $200,000 1st & 2nd years.....
systems cost
(``High-Effort''
SWAs).
------------------------------------------------------------------------
[[Page 55944]]
Software and IT $100,000 3rd-5th years.......
systems cost
(``High-Effort''
SWAs).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
For the AEFLA State-level program, the Departments made the
following updates, which are shown in Exhibit 23. We removed the labor
costs because these occupational categories are not generally involved
in aligning technology and data systems. The annual software and IT
systems cost decreased from $150,000 to $100,000 because we were
initially accounting for some costs that are now accounted for in the
costs for performance reports under provision (c) of the Final Rule. As
a result of the opportunities created for greater program coordination
under WIOA, we estimate that AEFLA State agencies will enhance their
participation in the SLDS Grant Program, which supports the design,
development, implementation, and expansion of P-20W (early learning
through the workforce) longitudinal data systems.\33\ The annual IT
systems cost of $100,000 estimated in Exhibit 23 accounts for this
work.
---------------------------------------------------------------------------
\33\ For more information on the SLDS Grant Program, see the
U.S. Department of Education, Institute of Education Sciences,
National Center for Education Statistics' Web site: https://nces.ed.gov/programs/slds/about_SLDS.asp.
Exhibit 23--Updates to Costs of State-Level AEFLA Programs--Development of Strategies for Aligning Technology and Data Systems Across One-Stop Partner Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(e) Development of strategies for aligning technology and data systems across one-stop partner programs (c) Performance accountability 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.......................... 5 40 Annual............... 57 States............ Aligning Technology and Data Systems across One-stop Partner Programs
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 2 120 Software/IT systems $100,000 Annual.............. 57 States.
cost.
------------------------------------------------------------ --------------------------------------------------------------------------------------
Admin. staff..................... 5 40
------------------------------------------------------------
Software/IT systems cost......... $150,000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following changes to the VR program cost
burden at the State level, which are presented in Exhibit 24. After
further consideration, we removed the managers as well as the counsel
and technical staff members and replaced them with consultant and
software and IT systems costs. We estimated that the 32 VR agencies
that are further in the process of aligning their technology and data
systems will incur $100,000 in first-year consultant costs for
designing the new systems, $200,000 in first-year software and IT
systems costs for purchasing hardware and implementing the new systems,
and $100,000 in software and IT systems costs in each of the following
2 years for system maintenance. We estimate that the 48 VR agencies
that use legacy systems will require more effort to align their
technology and data systems. These VR agencies will incur $200,000 in
first-year consultant and software and IT system costs; $100,000 and
$200,000 in second-year consultant and software and IT system costs,
respectively; and $100,000 in software and IT systems costs for
maintenance in each year from the third through fifth years.
[[Page 55945]]
Exhibit 24--Updates to Costs of State-Level VR Programs--Development of Strategies for Aligning Technology and Data Systems Across One-Stop Partner Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(e) Development of strategies for aligning technology and data systems across one-stop partner programs (c) Performance accountability 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 8 Annual............... 80 VR agencies....... Aligning Technology and Data Systems across One-Stop Partner Programs
------------------------------------------------------------ --------------------------------------------------------------------------------------
Counsel staff.................... 1 4 Consultant cost $100,000 One time............ 32 VR agencies.
(``Low-Effort'' VR
agencies).
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 1 16 Software and IT $200,000 One time............
systems cost
(``Low-Effort'' VR
agencies).
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Software and IT $100,000 2nd & 3rd years.....
systems cost
(``Low-Effort'' VR
agencies).
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Consultant cost $200,000 One time............ 48 VR agencies.
(``High-Effort''
VR agencies).
------------------------------------------------------------------------
Consultant cost $100,000 2nd year............
(``High-Effort''
VR agencies).
------------------------------------------------------------------------
Software and IT $200,000 1st & 2nd years.....
systems cost
(``High-Effort''
VR agencies).
------------------------------------------------------------------------
Software and IT $100,000 3rd-5th years.......
systems cost
(``High-Effort''
VR agencies).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
For the AEFLA program at the local level, the Departments made the
following changes, which are shown in Exhibit 25. We have concluded
that local AEFLA staff will not bear the burden for aligning technology
and data systems because AEFLA data are collected and maintained at the
State level in each State and outlying area. Therefore, we removed all
cost inputs at the local level related to this provision.
Exhibit 25--Updates to Costs of Local-Level AEFLA Programs--Development of Strategies for Aligning Technology and Data Systems Across One-Stop Partner Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(e) Development of strategies for aligning technology and data systems across one-stop partner programs N/A
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.......................... 40 40 Annual............... 57 States............ N/A
----------------------------------------------------------
Technical staff.................. 40 120
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Unified or Combined State Plan
This section describes the updates to the NPRM's provision (f)
``Unified or Combined State Plans.'' In this Final Rule's subject-by-
subject analysis, this cost provision has been included in provision
(b) ``Unified or Combined State Plans: Expanded Content, Biennial
Development and Modification Process, and Submission Coordination
Requirements,'' and it captures the cost of (1) reviewing and
developing new 4-year Unified or Combined State Plans to ensure they
satisfy the new content requirements and (2) coordinating actions for
developing new 4-year Unified or Combined State Plans among the core
programs administered by the Departments. For these activities, the
total 10-year cost (undiscounted) decreased from $17.2 million in the
NPRM to $9.6 million in this Final Rule.\34\ These revised cost
estimates can be found under the subsections ``Expanded Content'' and
``Coordinating Submission of State Plans'' in provision (b) of this
Final Rule.
---------------------------------------------------------------------------
\34\ This variance in cost is mainly due to the reduction in the
number and types of workers expected to incur incremental cost for
the local-level AEFLA program and a reduction in their level of
effort.
---------------------------------------------------------------------------
At the State level for the DOL programs, the Departments made the
[[Page 55946]]
following updates, which are presented in Exhibit 26: (1) We added a
one-time cost to review and revise existing plans to ensure they
include the new elements; (2) we concluded the costs will be incurred
biennially rather than only in the second and sixth years of the
analysis period; (3) we reduced the number of managers from two to one
along with their level of effort; (4) we removed the lawyers; (5) we
replaced the four technical staff members in our previous estimate with
the more appropriate management analyst occupational category; and (6)
we reduced the level of effort per analyst from 20 to 8 hours.
Exhibit 26--Updates to Costs of Local-Level DOL State WDBs--Unified or Combined State Plan
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(f) Unified or Combined State Plan (b) Unified or Combined State Plans: Expanded Content, Biennial Development and
-------------------------------------------------------------------------------------------------------- Modification Process, and Submission Coordination Requirements
----------------------------------------------------------------------------------------
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.......................... 2 20 2nd & 6th years...... 56 States............ Expanded Content
----------------------------------------------------------------------------------------
Counsel staff.................... 1 8 Management 4 20 One time............. 57 states.
occupations staff.
---------------------------------------------------------- ------------------------------------------------
Technical staff.................. 4 20 Lawyer.............. 1 8
---------------------------------------------------------- ------------------------------------------------
Admin. staff..................... 1 8 Social & community 2 20
service manager.
-----------------------------------------------
Office & admin. 1 8
support staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Coordinating Submission of State Plans
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 1st year, then every 57 states.
occupations staff. 2 years.
-----------------------------------------------
Management analyst.. 2 8
-----------------------------------------------
Office & admin. 1 8
support staff.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates to the State-level AEFLA
program, which are presented in Exhibit 27. After consulting with
additional program experts, we added a one-time cost to review and
revise existing plans to ensure that they include the new elements. We
concluded that the costs for coordinating submissions will be incurred
biennially rather than only once. We reduced the number of managers
from five to one, which is a more accurate reflection of typical
staffing in a State adult education office, and reduced the level of
effort because we have concluded that the process of coordinating the
submission of the State Plan does not require the level of effort we
initially estimated. We decreased the lawyer's level of effort from 8
to 4 hours because we have concluded that the process of coordinating
the submission the State Plan does not require the level of effort we
initially estimated. We clarified that the work done by the two
technical staff will be done by three social and community service
managers because we have concluded that technical staff members are
typically not involved in the process of coordinating the submission of
the State Plan. We also decreased the number of administrative staff
from five to one, which is a more accurate reflection of typical
staffing in a State adult education office, and halved the level of
effort for the staff member because we have concluded that the process
of coordinating the submission of the State Plan does not cumulatively
require more than 1 full day of work for the administrative staff
member. Finally, we removed the $25,000 consultant cost because we have
concluded that a consultant is not required for the submission of the
State Plan.
Exhibit 27--Updates to Costs of State-Level AEFLA Programs--Unified or Combined State Plan
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(f) Unified or Combined State Plan (b) Unified or Combined State Plans: Expanded Content, Biennial Development and
-------------------------------------------------------------------------------------------------------- Modification Process, and Submission Coordination Requirements
----------------------------------------------------------------------------------------
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.......................... 5 24 One time............. 57 states............ Expanded Content
---------------------------------------------------------- ----------------------------------------------------------------------------------------
Counsel staff.................... 1 8 Management 1 20 One time............. 57 States.
occupations staff.
---------------------------------------------------------- ------------------------------------------------
[[Page 55947]]
Technical staff.................. 2 24 Lawyer.............. 1 20
---------------------------------------------------------- ------------------------------------------------
Admin. staff..................... 5 16 Social & community 3 20
service manager.
---------------------------------------------------------- ----------------------------------------------------------------------------------------
Consultant cost.................. $25,000 Coordinating Submission of State Plans
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 1st year, then every 57 States.
occupations staff. 2 years.
-----------------------------------------------
Lawyer.............. 1 4
-----------------------------------------------
Social & community 3 8
service.
-----------------------------------------------
Office & admin. 1 8
support staff.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 28 presents the changes made by the Departments to the
State level for the VR program. After further consideration, we added a
one-time cost to review and revise existing plans to ensure they
include the new elements. We concluded that these costs for
coordinating submissions will be incurred biennially rather than
annually and we doubled the level of effort per manager and social and
community service manager. We replaced the technical staff in our
previous estimate with the more appropriate occupational category of
social and community service manager.
Exhibit 28--Updates to Costs of State-Level VR Programs--Unified or Combined State Plan
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(f) Unified or Combined State Plan (b) Unified or Combined State Plans: Expanded Content, Biennial Development and
-------------------------------------------------------------------------------------------------------- Modification Process, and Submission Coordination Requirements
----------------------------------------------------------------------------------------
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.......................... 2 7 Annual............... 80 VR agencies....... Expanded Content
---------------------------------------------------------- ----------------------------------------------------------------------------------------
Technical staff.................. 2 7 Management 2 21 One time............. 80 VR agencies.
occupations staff.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Social & community 2 21
service manager.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Coordinating Submission of State Plans
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 2 14 1st year, then every 80 VR agencies.
occupations staff. 2 years.
-----------------------------------------------
Social & community 2 14
service manager.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following changes to the local-level AEFLA
program, which are presented in Exhibit 29. We considered the typical
experience of local involvement and concluded that local staff will
participate in statewide stakeholder meetings, convened by the State
AEFLA office, to examine State Plan elements in need of modification
and to gather input for those revisions. Therefore, we reduced the
number of managers and removed the lawyers, technical and
administrative staff, and local stakeholders and replaced them with
social and community service managers. Note that instead of presenting
the costs at the State level as in the NPRM, we are presenting costs at
the program level.
[[Page 55948]]
Exhibit 29--Updates to Costs of Local-Level AEFLA Programs--Unified or Combined State Plan
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(f) Unified or combined state plan (c) Unified or combined state plans: Expanded content, biennial development and
---------------------------------------------------------------------------------------------------------- modification process, and submission coordination requirements
--------------------------------------------------------------------------------------
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.......................... 40 24 One time............. 57 States............ Coordinating Submission of State Plans
------------------------------------------------------------ --------------------------------------------------------------------------------------
Counsel staff.................... 3 8 Management 1 4 1st year, then every 2,396 local
occupations staff. 2 years. programs.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 40 24 Social & community 1 4
service manager.
------------------------------------------------------------ --------------------------------------------------------------------------------------
Admin. staff..................... 40 16
------------------------------------------------------------
Local stakeholder................ 100 8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Local Plan Revisions
After further consideration, the Departments decided that the costs
associated with provision (g) ``Local Plan Revisions'' in the NPRM are
more appropriate in the DOL WIOA Final Rule. The costs associated with
this provision now can be found under provision (m) ``Local and
Regional Plan Modification'' in the DOL WIOA Final Rule. Therefore,
this provision and its costs that result from the inputs presented in
Exhibit 30 ($22.6 million) are no longer included in this Final Rule
economic analysis.
Exhibit 30--Updates to Costs of Local-Level Programs--Local Plan Revisions
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(g) Local plan revisions Moved to the DOL WIOA 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Workforce Development Board Costs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 2 20 2nd & 6th years...... 580 Local WDBs....... N/A. See DOL WIOA Final Rule
------------------------------------------------------------
Counsel staff.................... 1 8
------------------------------------------------------------
Technical staff.................. 4 20
------------------------------------------------------------
Admin. staff..................... 1 8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
AEFLA Program Costs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 40 24 One time............. 57 States............ N/A. See DOL WIOA Final Rule
------------------------------------------------------------
Technical staff.................. 40 24
------------------------------------------------------------
Admin. staff..................... 40 16
------------------------------------------------------------
Local stakeholders............... 100 8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
State Performance Accountability Measures
This section describes the updates to the NPRM's provision (h)
``State Performance Accountability Measures,'' which in this Final
Rule's subject-by-subject analysis is included in provision (c)
``Performance Accountability System.'' This provision captures the cost
of collecting data to report on any additional State performance
accountability indicators established by a State pursuant to WIOA sec.
116(b)(2)(B). For this activity, the total 10-year cost (undiscounted)
decreased from $11.7 million in the NPRM to $170,000 in the Final
Rule.\35\ These revised cost estimates can be found under the
subsections ``Additional State Performance Accountability Indicators
(Beyond Required Performance Indicators)'' in provision (c) of the
Final Rule.
---------------------------------------------------------------------------
\35\ The variance in cost is mainly due to changes for State-
level DOL programs including: a reduction in the level of effort per
worker; costs incurred once rather than annually; and the removal of
annual software and IT systems costs and licensing fees and one-time
consultant costs.
---------------------------------------------------------------------------
At the State level for the DOL programs, the Departments made the
[[Page 55949]]
following updates, which are presented in Exhibit 31. After discussions
with additional program experts, we made the following updates: (1) We
concluded that costs will be incurred only once rather than annually;
(2) we halved the level of effort for managers; (3) we replaced the
technical staff in our previous estimate with the more appropriate
occupational category of computer systems analyst and halved their
level of effort; (4) we increased the level of effort from 32 to 36
hours; and (5) we removed the software and IT systems cost, licensing
fees, and consultant cost.
Exhibit 31--Updates to Costs of State-Level DOL Programs--State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(h) State performance accountability measures (c) Performance accountability measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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............... 5 States............. Additional State Performance Accountability Indicators (Beyond Required Performance
Indicators)
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 3 80 Management 1 16 One time............ 5 States
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 32 Computer systems 3 40
analyst.
------------------------------------------------------------ -----------------------------------------------
Software/IT systems cost......... $100,000 Office & admin. 1 36
support staff.
------------------------------------------------------------ --------------------------------------------------------------------------------------
Licensing fee.................... $50,000
-----------------------------------------------------------------------------------
Consultant cost.................. $75,000 One time
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates at the State level for
the AEFLA program, which are presented in Exhibit 32. We increased the
hours for all State staff and reduced the number of management staff
members from five to four after determining the number needed to
reflect a staffing level that is more representative of the States and
outlying areas. Three of these managers are categorized as social and
community service managers. We replaced the two technical staff members
in our previous estimate with the more appropriate occupational
categories of database administrators and computer systems analysts. We
revised the calculation to exclude the five administrative staff
members included in our previous estimate, because those occupational
categories generally would not be involved in the development of
additional State performance accountability measures.
Exhibit 32--Updates to Costs of State-Level AEFLA Programs--State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(h) State performance accountability measures (c) Performance accountability measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.......................... 5 7 One time............. 5 States............. Additional State Performance Accountability Indicators (Beyond Required Performance
Indicators)
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 2 7 Management 1 8 One time............ 5 States.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 5 7 Computer systems 1 8
analyst.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Social & community 3 8
service manager.
-------------------------------------------------
Database 1 8
administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 33 presents the changes made by Departments for the State-
level VR program. After additional discussion with our program experts,
we became aware that the estimated burden for obtaining UI wage data in
the NPRM was not related to the additional State performance
indicators. In this Final Rule, the burden will be for 80 State VR
agencies to obtain UI wage data for the reporting on the primary
indicators of performance, which is included in Exhibit 18. In
addition, due to public comment and additional consultation with
program experts, we reduced the number of VR agencies that will incur
costs related to the additional State performance accountability
indicators
[[Page 55950]]
from seven to five and decreased the level of effort from 9 to 8 hours
for each occupational category. We removed the software and IT systems
costs from the subsection on ``Additional State Performance
Accountability Indicators (Beyond Required Performance Indicators)''
because upon further consideration, we concluded that this software
cost applies only to data collection for the primary indicators of
performance.
Exhibit 33--Updates to Costs of State-Level VR Programs--State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(h) State performance accountability measures (c) Performance accountability measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
ObtaAdditional State Performance Accountability Indicators (Beyond Required Performance
Indicators)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Manager.......................... 2 20 One time............. 7 VR agencies........ Management 1 8 One time............ 5 VR agencies.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Counsel staff.................... 1 20 Computer systems 1 8
analyst.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 20 Social & community 3 8
service manager.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Obtain Additional Information for New Data Fields Database 1 8
administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Technical staff.................. 60 9 Annual............... 7 VR agencies........
-----------------------------------------------------------------------------------
Software/IT systems cost......... $5,000 One time.............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
At the local level for the AEFLA program, the Departments made the
following changes, which are presented in Exhibit 34. We considered the
typical experience of local involvement and concluded that local staff
will participate in statewide stakeholder meetings, convened by the
State AEFLA office, to develop and update the additional State
performance accountability measures. Therefore, we reduced the level of
effort from 7 to 4 hours. Note that instead of presenting the costs at
the State level as in the NPRM, we are presenting costs at the program,
or local, level.
Exhibit 34--Updates to Costs of Local-Level AEFLA Programs--State Performance Accountability Measures
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(h) State performance accountability measures (c) Performance accountability 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.......................... 40 7 One time............. 5 States............. Additional State Performance Accountability Indicators (Beyond Required Performance
Indicators)
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 40 7 Management 1 4 One time............ 200 local
occupations staff. programs.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Database 1 4
administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Performance Reports
This section describes the updates to the NPRM's provision (i)
``Performance Reports.'' In the Final Rule, this cost provision has
been included in provision (c) ``Performance Accountability System''
and it captures the costs of developing a performance template that
reports outcomes via the new WIOA performance accountability metrics;
developing, updating, and submitting ETP reports; and collecting,
analyzing, and reporting performance data. For this activity, the total
10-year cost (undiscounted) increased from $121.9 million in the NPRM
to $295.4 million in the Final Rule.36 37 These revised cost
estimates can be found under the subsections ``Development and Updating
State Performance Accountability Systems'' and ``Performance Reports''
in provision (c) of this Final Rule.
---------------------------------------------------------------------------
\36\ A portion of the $295.4 million in costs accounts for
software and IT systems costs from provision (e) ``Development of
Strategies for Aligning Technology and One-Stop Partner Programs''
and provision (j) ``Evaluation of State Programs.'' Thus, this value
overstates how much costs have increased in this Final Rule relative
to the NPRM.
\37\ This variance in cost is due to new annual and one-time
software and IT systems costs for Federal AEFLA programs, new annual
labor costs for the State-level DOL program, and new one-time and
annual labor costs for the State-level VR program.
---------------------------------------------------------------------------
[[Page 55951]]
At the Federal level for the DOL programs, the Departments made the
following updates, which are shown in Exhibit 35. After consultation
with additional program experts, we added annual burden hours for one
manager, one computer systems analyst, and one management analyst to
implement and review the new ETP performance reporting template. We
also added an estimated annual software and IT systems cost of $250,000
for ETP reporting.
Exhibit 35--Updates to Costs of Federal-Level DOL Programs--Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Performance reports (c) Performance accountability 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A Performance Report
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 Annual.............. 1
occupations staff
(GS-14, Step 5).
-------------------------------------------------
Computer systems 1 5
analysts (GS-13,
Step 5).
-------------------------------------------------
Management analyst 1 16
(GS-12, Step 5).
-------------------------------------------------
Software/IT systems $250,000
cost.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates for the Federal-level
AEFLA program, which are presented in Exhibit 36. We concluded that
updating and maintaining the Federal data system for compliance with
the new requirements of WIOA will be performed annually rather than
once because Federal data system costs have been historically incurred
annually. We reduced the number of Federal staff members and clarified
that the work will be performed by one manager, one social and
community service manager, and one database administrator. We reduced
the level of effort per manager from 60 to 8 hours, because most of
this work will be performed by the database administrator. The managers
will direct and oversee the modernization process and the database
administrator will manage the new system. Finally, we revised our
estimate to add a one-time Federal cost of $5 million for IT systems
development, modernization, and enhancement to build the data
infrastructure and increase the capacity of the adult education data
collection system at the Federal, State, and local levels to comply
with the new performance reporting requirements under WIOA. An annual
software and IT cost of $250,000 also has been included to maintain the
data infrastructure in steady state.
Exhibit 36--Updates to Costs of Federal-Level AEFLA Programs--Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Performance reports (c) Performance accountability 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 (GS-13, Step 5).......... 1 60 One time............. 1.................... Performance Report
------------------------------------------------------------ --------------------------------------------------------------------------------------
Federal staff (GS-13, Step 5).... 10 15 Management 1 8 Annual.............. 1
occupations staff
(GS-14, Step 5).
---------------------------------------------------------------------------------------------------------------------------------------------------------
Social & community 1 16
service manager
(GS-13, Step 5).
-------------------------------------------------
Database 1 40
administrator (GS-
13, Step 5).
-------------------------------------------------
Software/IT systems $250,000
cost.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Software/IT systems $5,000,000 One time............ 1
cost.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following updates for the Federal-level VR
program, which are presented in Exhibit 37. We added a one-time
software and IT cost of $68,925 to support the VR program's ability to
compile quarterly
[[Page 55952]]
data reported by VR agencies into the annual reports required under
WIOA. The ED will be developing and submitting the annual reports based
on quarterly data submitted by the VR agencies. This cost was not
included in the NPRM because at the time the NPRM was published, the
PIRL and RSA-911 had not been finalized. Since that time, ED has
completed a more comprehensive analysis of the data structure required
to meet the WIOA requirements and found that additional software is
necessary to support the development of the annual reports for VR
agencies by ED.
Exhibit 37--Updates to Costs of Federal-Level VR Programs--Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Performance reports (c) Performance accountability 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A Performance Reports
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Software/IT systems $68,925 One-time............ 1
cost.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 38 presents updates to the State-level DOL program. The
Departments added one manager, one computer systems analyst, one
management analyst, and one office and administrative support staff
member to account for the annual effort related to ETP reporting.
Exhibit 38--Updates to Costs of State-Level DOL Programs--Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Performance reports (c) Performance accountability 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
N/A Performance Reports
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 Annual.............. 57 States.
occupations staff.
-------------------------------------------------
Computer systems 1 40
analyst.
-------------------------------------------------
Management analyst. 1 60
-------------------------------------------------
Office & admin. 4 20
support staff.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following changes for the AEFLA program at
the State level, which are presented in Exhibit 39. We concluded that
the effort from all relevant staff members will occur on an annual
basis rather than once. We reduced the number of managers from five to
four after determining that this number will reflect more accurately
the staffing level needed across all States and outlying areas. Three
of these staff members are categorized as social and community service
managers. We replaced the two technical staff members in our previous
estimate with the more appropriate occupational categories of database
administrator and computer systems analyst. We also revised the
calculation to exclude the five administrative staff members included
in our previous estimate because those occupational categories are
generally not involved with performance reports. In addition, we moved
the State data system costs to the subsection under provision (c) on
``Development and Updating of State Performance Accountability
Systems'' where more realistic costs will be captured that States will
incur in establishing the capabilities to collect the data necessary to
calculate the newly required performance measures (see Exhibit 17). We
have concluded that the one-time cost estimate for the State-level
software and IT systems cost needed to be aligned with actual funding
patterns across all States and outlying areas and will occur annually.
In addition, we eliminated the recurring licensing fee, since we
accounted for such fees in the annual cost estimate for the State data
system under the subsection ``Development and Updating of State
Performance Accountability Systems.''
[[Page 55953]]
Exhibit 39--Updates to Costs of State-Level AEFLA Programs--Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Performance reports (c) Performance accountability 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.......................... 5 40 One time............. 56 States............ Development and Updating of State Performance Accountability Systems
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 2 40 Software/IT systems $350,000 Annual.............. 57 States.
cost.
------------------------------------------------------------ --------------------------------------------------------------------------------------
Admin. staff..................... 5 40 Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 40 Annual.............. 57 States.
occupations staff.
-----------------------------------------------------------------------------------
Software/IT cost................. $1,750,000 57 States............ Computer systems 1 40
analyst.
------------------------------------------------------------ -----------------------------------------------
Licensing fee.................... $25,000 Annual............... Social & community 3 40
service manager.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Database 1 40
administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
At the State level for the VR program, the Departments made the
following changes, which are presented in Exhibit 40. We added one
manager, one computer systems analyst, two social and community service
managers, and one database administrator to address the State-level
effort involved in reviewing and verifying the annual performance
report that RSA will assemble from the quarterly RSA-911 data the
States have previously reported.
In response to comments, the Departments have included the burden
associated with the training of VR staff on the collection of new data
and related data collection requirements. Based on information from the
RSA-2 Cost Report, we use an average of 62 rehabilitation counselors
per VR agency in calculating this burden and have added labor burden of
6 hours for one staff trainer and 3 hours for each of the 62
rehabilitation counselors to participate in the training.
Finally, Exhibit 40 includes the annual labor for 62 rehabilitation
counselors per VR agency to collect the new data. The data collection
related labor burden included in this analysis is limited to the hours
the Departments have attributed to the requirements under sec. 116 of
title I of WIOA implemented in these joint regulations. We estimate
that approximately 36 percent of all new data elements required by WIOA
are related to requirements under sec. 116 of title I of WIOA and have
prorated the total additional data collection burden accordingly. For
the first year of data collection, VR agencies will incur a greater
data collection burden than in subsequent years. All VR participants
who are still receiving services (i.e., have not exited) by the start
of PY 2016 (July 1, 2016) become WIOA participants and will be counted
and tracked in accordance with the WIOA performance requirements set
forth in sec. 116 of WIOA. Based on State-reported RSA data for FY
2015, we estimate that each VR agency will incur an additional 3,600
hours in labor burden to collect sec. 116 performance data for current
and new participants in the first year of data collection, or 58
additional hours per VR counselor. However, for the second and
subsequent years of data collection under these final regulations, we
estimate that each VR agency will incur an additional 945 hours per
year in labor burden to collect joint performance data, or 15 hours per
year per counselor. The data collection burden associated with the
implementation of amendments to the VR program under title IV of WIOA
is included in the RIA section of the final regulations for the ``State
Vocational Rehabilitation Services Program; State Supported Employment
Services Program; Limitations on Use of Subminimum Wage'' also
published in this edition of the Federal Register.
Exhibit 40--Updates to the Final Rule Analysis Costs of State-Level VR Programs--Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Performance reports (c) Performance accountability 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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Performance Reports--Review and Verify Annual Performance Reports
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 5 Annual.............. 80 VR agencies.
occupations staff.
-------------------------------------------------
Computer systems 1 5
analyst.
-------------------------------------------------
Social & community 2 10
service manager.
-------------------------------------------------
[[Page 55954]]
Database 1 25
administrator.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Performance Reports--Training on New Data Collection
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Staff trainer...... 1 6 One time............ 80 VR agencies.
-------------------------------------------------
Rehabilitation 62 3
counselor.
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Performance Reports -Data Collection
--------------------------------------------------------------------------------------------------------------------------------------------------------------
Rehabilitation 62 58 First year.......... 80 VR agencies.
counselor.
-------------------------------------------------
Rehabilitation 62 15 Second and 80 VR agencies.
counselor. subsequent years.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
At the local level for the AEFLA program, the Departments made the
following updates, which are presented in Exhibit 41. We considered the
extent of actual local involvement in performance reporting and
additional burden under WIOA. Instead of presenting the costs at the
State level as in the NPRM, we are presenting annual costs at the
program, or local, level. As a result, we reduced the number of
managers and the hours per local manager and increased the number of
entities to reflect local programs for this provision. In addition, we
added one database administrator for data collection, analysis, and
entry.
Exhibit 41--Updates to Costs of Local-Level AEFLA Programs--Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Performance reports (c) Performance accountability 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.......................... 40 40 One time............. 57 States............ Performance Reports
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Management 1 8 Annual.............. 2,396 local
occupations staff. programs.
-------------------------------------------------
Social & community 1 8
service manager.
-------------------------------------------------
Database 1 8
administrator.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Evaluation of State Programs
This section describes the updates to the NPRM's provision (j)
``Evaluation of State Programs.'' In the Final Rule's subject-by-
subject analysis, costs related to this provision can be found
primarily in provision (d) ``State Evaluation Responsibilities.'' \38\
The cost of this provision of the Final Rule reflects the cost for
affected entities to conduct evaluations of title I activities over
multiple years to provide various forms of data for Federal
evaluations, and for SWAs and other State agencies to coordinate in
designing and developing evaluations carried out under sec. 116(e) of
WIOA. For this provision, the total 10-year cost (undiscounted)
decreased from $737.9 million in the NPRM to $222.5 million in this
Final Rule.39 40
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\38\ A small portion of State-level software and IT systems
costs for the AEFLA program was moved to provision (c) ``Performance
Accountability System.''
\39\ A portion of the $222.5 million in costs accounts for
software and IT systems costs from provision (e) ``Development of
Strategies for Aligning Technology and One-Stop Partner Programs''
and provision (i) ``Performance Reports.'' Thus, this value
understates how much costs have decreased in this Final Rule
relative to the NPRM.
\40\ This variance in cost is due to the reduction in software
and IT systems costs for State-level DOL programs and the removal of
costs for local-level AEFLA programs.
---------------------------------------------------------------------------
At the Federal level for the DOL programs, the Departments made the
following updates, which are presented in Exhibit 42. We added two
managers, one computer system analyst, and two management analysts to
account for Federal effort related to SWA evaluation activities under
sec. 116(e) of WIOA. We added these Federal staff costs to support all
aspects of State evaluation
[[Page 55955]]
activities, including technical assistance, monitoring, and
dissemination.
Exhibit 42--Updates to Costs of Federal-Level DOL Programs--Evaluation of State Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Evaluation of state programs (d) State evaluation responsibilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 Management 2 25 Annual.............. 1.
occupations staff
(GS-14, Step 5).
-------------------------------------------------
Computer systems 1 3
analysts (GS-13,
Step 5).
-------------------------------------------------
Management analyst 2 30
(GS-12, Step 5).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 43 presents the changes made by the Departments to reflect
the cost of Federal AEFLA program staff in providing technical
assistance and promoting State adult education agency participation in
the coordination process, and possibly in the design and development of
State evaluation activities under WIOA sec. 116(e). These Federal staff
costs were added to support all aspects of State evaluation activities,
including technical assistance, monitoring, and dissemination.
Exhibit 43--Updates to Costs of Federal-Level AEFLA Programs--Evaluation of State Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Evaluation of state programs (d) State evaluation responsibilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 Management 4 10 Annual.............. 1.
occupations staff
(GS-14, Step 5).
-------------------------------------------------
Computer systems 1 5
analysts (GS-13,
Step 5).
-------------------------------------------------
Management analyst 2 30
(GS-12, Step 5).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Exhibit 44 presents the changes made by the Departments to reflect
the cost of Federal staff responsible for the VR program in providing
technical assistance and promoting State VR agency participation and
coordination in carrying out State evaluations under sec. 116(e) of
WIOA, including possible involvement in the design and development of
such evaluations. We added these Federal staff costs to support all
aspects of State evaluation activities such as technical assistance,
monitoring, and dissemination.
Exhibit 44--Updates to Costs of Federal-Level VR Programs--Evaluation of State Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Evaluation of state programs (d) State evaluation responsibilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 Management 2 5 Annual.............. 1.
occupations staff
(GS-14, Step 5).
-------------------------------------------------
Social & community 2 10
service manager
(GS-13, Step 5).
-------------------------------------------------
Management analyst 2 15
(GS-12, Step 5).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 55956]]
The Departments made the following updates to the State-level DOL
programs, which are presented in Exhibit 45. After consultation with
additional program experts, we made the following updates: (1) We
replaced the manager in our previous estimate with the more appropriate
occupational category of social and community service manager; (2) we
replaced the two technical staff members in the previous estimate with
the more appropriate occupational category of computer systems analyst
and reduced the annual level of effort per staff member from 20 hours
to 15 hours; (3) we added a management analyst with an annual level of
effort of 10 hours; (4) we reduced the annual software and IT systems
costs from $200,000 and $1 million for 20 ``low-effort'' States and 15
``high-effort'' States, respectively, to $10,000 for all 57 SWAs; and
(5) we added an annual consultant cost of $21,400. In the NPRM, we
assumed that full cooperation would occur. Realistically, cooperation
will be difficult to achieve because there is an overall lack of
funding for evaluations; therefore, a reduced cost estimate is
appropriate.
Exhibit 45--Updates to Costs of State-Level DOL Programs--Evaluation of State Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Evaluation of state programs (d) State evaluation responsibilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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............ Computer systems 2 15 Annual.............. 57 SWAs.
analyst.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 2 20 Social & community 1 20
service manager.
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 10 Management analyst. 1 10
------------------------------------------------------------ ----------------------------------------------------------------------
Software/IT systems cost (``Low- $200,000 20 States............ Office & admin. 1 10
Effort'' States). support staff.
------------------------------------------------------------ ----------------------------------------------------------------------
Software/IT systems cost (``High- $1,000,000 15 States............ Software/IT systems $10,000
Effort'' States). cost.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Consultant cost.... $21,400
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
At the State level for the AEFLA program, the Departments made the
following changes, which are presented in Exhibit 46. We reduced the
number of managers from five to two after determining that the number
needed to reflect an average staffing level for this activity across
all States and outlying areas. One of these managers is categorized as
a social and community service manager. We replaced the two technical
staff members in the previous estimate with the more appropriate
occupational categories of computer systems analysts and management
analysts. We also revised the calculation to exclude the five
administrative staff members included in the previous estimate, because
those occupational categories are generally not involved in the
evaluation of State programs. We reduced the level of effort for the
staff because we have concluded that this work does not require the
level of effort we initially estimated. In addition, we eliminated the
annual IT systems costs from this provision and accounted for them
under subsection ``Development and Updating of State Performance
Accountability Systems'' in provision (c) of this Final Rule because
they were more appropriately placed there (see Exhibit 17).
Exhibit 46--Updates to Costs of State-Level AEFLA Programs--Evaluation of State Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Evaluation of state programs (c) Performance accountability 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.......................... 5 120 Annual............... 57 States............ Development and Updating of State Performance Accountability Systems
------------------------------------------------------------ --------------------------------------------------------------------------------------
Technical staff.................. 2 80 Software/IT systems $350,000 Annual.............. 57 States.
cost.
------------------------------------------------------------ --------------------------------------------------------------------------------------
Admin. staff..................... 5 80 (d) State Evaluation Responsibilities
------------------------------------------------------------ --------------------------------------------------------------------------------------
[[Page 55957]]
Software/IT systems cost......... $250,000 Management 1 10 Annual.............. 57 SWAs.
occupations staff.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Computer systems 1 20
analyst.
-------------------------------------------------
Social & community 1 10
service manager.
-------------------------------------------------
Management analyst. 1 20
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
For the State VR program, the Departments replaced the technical
staff member in the previous estimate with the more appropriate
occupational category of computer systems analysts, as shown in Exhibit
47. In addition, we added one social community service manager and one
management analyst.
Exhibit 47--Updates to Costs of State-Level VR Programs--Evaluation of State Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Evaluation of state programs (d) State evaluation responsibilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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 1 Annual............... 80 VR agencies....... Management 1 1 Annual.............. 80 VR agencies.
occupations staff.
------------------------------------------------------------ -----------------------------------------------
Technical staff.................. 1 13 Computer systems 1 13
analyst.
------------------------------------------------------------ -----------------------------------------------
Admin. staff..................... 1 2 Social & community 1 5
service managers.
---------------------------------------------------------------------------------------------------------------------------------------------------------
Management analyst. 1 5
-------------------------------------------------
Office and admin. 1 2
support staff.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
The Departments made the following changes for the local-level
AEFLA program, which are presented in Exhibit 48. We reconsidered the
extent of local involvement in the evaluation of State programs. As a
result, we concluded that hours for local staff should be eliminated
for this provision.
Exhibit 48--Updates to Costs of Local-Level AEFLA Programs--Evaluation of State Programs
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NPRM Final rule
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(j) Evaluation of state programs (d) State evaluation responsibilities
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.......................... 40 120 Annual............... 57 States............ N/A
------------------------------------------------------------
Technical staff.................. 40 80
------------------------------------------------------------
Admin. staff..................... 40 80
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Effectiveness in Serving Employers
This section describes the updates to the rule's cost analysis. In
the NPRM, the Departments did not include costs for States to implement
effectiveness in serving employer approaches because, at the time of
the NPRM's publication, policy decisions had not yet been made on
whether these measures would be added to the rule. In the Final Rule,
the Departments estimated the cost of the pilot program and the
implementation
[[Page 55958]]
of the effectiveness in serving employers measures, which amounted to a
total undiscounted 10-year cost of $6.4 million. See the cost
subsection of section V.A.6 (Subject-by-Subject Analysis) below for
details on this estimate.
6. Subject-by-Subject Cost-Benefit Analysis
The Departments' analysis below covers the expected costs of
implementing the requirements of the Final Rule against the baseline
cost under WIA, especially with regard to the following four expected
costs: (a) ``Time to Review the New Rule;'' (b) ``Unified or Combined
State Plans: Expanded Content, Biennial Development and Modification
Process, and Submission Coordination Requirements;'' (c) ``Performance
Accountability System;'' and (d) ``State Evaluation Responsibilities.''
The Departments emphasize that many of the requirements in this
Final Rule are not new, for DOL programs, but rather were requirements
under WIA. For example, States were required to ``prepare performance
reports'' under title I of WIA and other authorizing statutes amended
by WIA required States to submit performance information. Similarly,
many of the requirements governing the one-stop system's infrastructure
and operations under WIA are carried forward under WIOA. Therefore,
these and other such costs are not considered ``new'' cost burdens
under this Final Rule for some of the core programs, but rather are
included in the ``baseline costs'' used as a comparison for the new
burden costs. Accordingly, this regulatory analysis focuses on new
costs that can be attributed exclusively to new requirements under
title I of WIOA as addressed in this Final Rule.
a. Time To Review the New Rule
Upon publication of this Final Rule, the regulated community will
need to learn about the new regulations and plan for compliance.
Affected entities will incur costs based primarily on the level of
effort needed by relevant individuals to review and understand the
Final Rule. This includes interpretation and learning how to navigate
the Final Rule, but it does not include any steps beyond what is
included in the baseline related to running a Federal program. Costs
for developing a detailed action plan for compliance would not be
included in the new cost burden because they will be accounted for in
other burden estimate discussions. In addition, affected entities will
incur relatively minor costs for the first steps needed to comply, such
as notifying relevant personnel of the rule. The Departments estimate
that learning about the new regulations and planning for compliance
with those regulations will involve one-time labor costs for State-
level DOL programs, State- and local-level AEFLA programs, and State VR
agencies in the first analysis year. Local WDBs might incur limited
costs under this provision, which are not accounted for below, because
the costs for relevant individuals to comply are accounted for in the
DOL, AEFLA, and VR agency estimates. DOL expects that the States will
carefully review and interpret the Final Rule before passing along any
necessary information to Local WDBs. Although Local WDBs are not
required to review the Final Rule, those that do are likely to limit
their review to a few paragraphs or sections most relevant to them.
i. Costs
At the State level for DOL's core programs (see Exhibit 5), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (4) by the time required to read and review
the new rule (20 hours each), and then by the applicable hourly
compensation rate ($65.48/hour). We performed the same calculation for
the following occupational categories: Managers (1 manager at $65.39/
hour for 20 hours) and social and community service managers (2
managers at $54.21/hour for 40 hours each). We summed the labor cost
for all three categories ($10,883) and multiplied the result by the
number of States (57) to estimate this one-time cost of $620,331. Over
the 10-year period, this calculation yields an average annual cost of
$62,033.
At the State level for the AEFLA program (see Exhibit 6), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (1) by the time required to read and review
the new rule (20 hours) and then by the applicable hourly compensation
rate ($65.48/hour). We performed the same calculation for the following
occupational categories: Managers (1 manager at $65.39/hour for 40
hours) and social and community service managers (3 managers at $54.21/
hour for 20 hours each). We summed the labor cost for all three
categories ($7,178) and multiplied the result by the number of States
(57). This calculation resulted in a one-time cost of $409,135, which
is equal to an average annual cost of $40,913.
At the local level for the AEFLA program (see Exhibit 8), the
Departments multiplied the estimated number of managers (1) by the time
required to read and review the new rule (4 hours) and then by the
hourly compensation rate ($63.63/hour). We repeated the calculation for
social and community service managers (1 manager at $61.01/hour for 4
hours). We did not estimate lawyer hours for local-level AEFLA programs
because our experience indicates that this occupational category is
typically engaged only at the State level. We summed the labor cost for
both occupational categories ($499) and multiplied the result by the
number of local AEFLA providers (2,396). This calculation yields $1.2
million ($1,194,550) in labor costs in the first year of the rule. Over
the 10-year period, this calculation yields an average annual cost of
$119,455.
For State VR agencies (see Exhibit 7), the Departments multiplied
the estimated number of managers per VR agency (1) by the time required
to read and review the new rule (40 hours) and then by the hourly
compensation rate ($65.39/hour). We performed the same calculation for
the following occupational categories: Social and community service
managers (3 managers at $54.21/hour for 40 hours each) and
rehabilitation counselors (3 counselors at $36.66/hour for 40 hours
each). We summed the labor cost for all three categories ($13,520) and
multiplied the result by the number of VR agencies (80). This
calculation resulted in a one-time labor cost of $1.1 million
($1,081,600), which is equal to an average annual cost of $108,160 over
the 10-year period.
The sum of these costs yields a total one-time labor cost of $3.3
million ($3,305,615) for individuals from State-level DOL programs,
State- and local-level AEFLA programs, and State VR agencies to read
and review the new rule. Over the 10-year period of analysis, these
one-time costs result in an average annual cost of $330,562.
b. Unified or Combined State Plans: Expanded Content, Biennial
Development and Modification Process, and Submission Coordination
Requirements
Under WIOA title I, each State must develop and submit a 4-year
Unified State Plan that covers the following six core programs: The
adult, dislocated worker, and youth formula programs (WIOA title I);
the AEFLA program (WIOA title II); the Employment Service program
authorized under the Wagner-Peyser Act, as amended by WIOA title
[[Page 55959]]
III; and the VR program as authorized by title I of the Rehabilitation
Act of 1973, as amended by WIOA title IV. In the alternative, a State
may submit a 4-year Combined State Plan that covers the six core
programs plus one or more Combined State Plan partner programs
identified in sec. 103(a)(2) of WIOA. Section 103(b)(1) of WIOA
requires the portion of a Combined State Plan covering the core
programs to meet the same requirements as for a Unified State Plan
under sec. 102 of WIOA. States must have an approved Unified or
Combined State Plan in place to receive funding for the six core
programs.
Under WIA, States were required to submit separate State Plans that
covered: (1) The title I and Wagner-Peyser Act Employment Service DOL
programs; (2) the AEFLA program; and (3) the VR program. Because
States, under WIOA, must integrate what had historically been stand-
alone State Plans for the AEFLA and VR programs into a single Unified
or Combined State Plan with the title I and Wagner-Peyser Act
Employment Service DOL programs, the Departments anticipate added cost
burdens for the States as they work together to strategize alignment of
all six core programs into one Unified or Combined State Plan. Thus,
the requirement that the Unified or Combined State Plan must include
the ED-administered programs is new under WIOA.
Affected entities will incur costs to (1) review and develop new 4-
year Unified or Combined State Plans to ensure that they satisfy the
new content requirements; (2) perform the development and modification
process for the plans; and (3) coordinate on developing a Unified or
Combined State Plan that covers all six core programs.
i. Expanded Content
WIOA sec. 102(b) expands the content requirements for Unified and
Combined State Plans, many of which are new to all core programs, such
as strategic and operational planning elements. Strategic planning
elements include State analyses of economic and workforce conditions,
an assessment of workforce development activities (including education
and training) in the State, and formulation of the State's vision and
goals for preparing an educated and skilled workforce that meets the
needs of employers and a strategy to achieve the vision and goals.
Operational planning elements include State strategy implementation,
State operating systems and policies, program-specific requirements,
assurances, and additional requirements imposed by the Secretaries of
Labor and Education, or other Secretaries (for Combined State Plan
purposes), as appropriate. Most of the WIOA operational planning
elements are functionally equivalent to State Plan content requirements
that were required by DOL's core programs under WIA sec. 112(b). The
WIOA strategic planning elements, however, constitute new or expanded
State planning requirements for all core programs that were not
required under WIA. For example, WIOA requires that more economic,
education, and workforce data be included in the State Plan than was
required under WIA.\41\
---------------------------------------------------------------------------
\41\ WIOA sec. 102(b)(1) requires:
(1) Strategic Planning Elements.--The Unified State Plan shall
include strategic planning elements consisting of a strategic vision
and goals for preparing an educated and skilled workforce, that
include--
(A) an analysis of the economic conditions in the State,
including--
(i) existing and emerging in-demand industry sectors and
occupations; and
(ii) the employment needs of employers, including a description
of the knowledge, skills, and abilities, needed in those industries
and occupations;
(B) an analysis of the current workforce, employment and
unemployment data, labor market trends, and the educational and
skill levels of the workforce, including individuals with barriers
to employment (including individuals with disabilities), in the
State;
(C) an analysis of the workforce development activities
(including education and training) in the State, including an
analysis of the strengths and weaknesses of such activities, and the
capacity of State entities to provide such activities, in order to
address the identified education and skill needs of the workforce
and the employment needs of employers in the State;
(D) a description of the State's strategic vision and goals for
preparing an educated and skilled work-force (including preparing
youth and individuals with barriers to employment) and for meeting
the skilled work-force needs of employers, including goals relating
to performance accountability measures based on primary indicators
of performance described in section 116(b)(2)(A), in order to
support economic growth and economic self-sufficiency, and of how
the State will assess the overall effectiveness of the workforce
investment system in the State; and
(E) taking into account analyses described in subparagraphs (A)
through (C), a strategy for aligning the core programs, as well as
other resources available to the State, to achieve the strategic
vision and goals described in subparagraph (D).
WIA sec. 112(b)(4) required:
(b) Contents.--The State plan shall include--
* * * * *
(4) information describing--
(A) the needs of the State with regard to current and projected
employment opportunities, by occupation;
(B) the job skills necessary to obtain such employment
opportunities;
(C) the skills and economic development needs of the State; and
(D) the type and availability of workforce investment activities
in the State;
---------------------------------------------------------------------------
Therefore, this will be an expansion of a State planning
requirement for DOL's core programs under WIOA and will be new
requirements for the AEFLA and VR programs. Because DOL core programs
were already analyzing and using economic, education, and workforce
data under WIA, those programs will not experience as much in
incremental costs associated with that particular requirement as will
the AEFLA and VR programs. The Departments anticipate that any costs
incurred by the States with regard to new or expanded State planning
content requirements will constitute one-time incremental costs for all
core programs to ensure that all Unified or Combined State Plans
satisfy the new content requirements.
Costs
At the State level for the DOL core programs (see Exhibit 26), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (1) by the time required to review and
develop new Unified or Combined State Plans to ensure that the new
elements are included (8 hours) and by the hourly compensation rate
($65.48/hour). We performed the same calculation for the following
occupational categories: Managers (4 managers at $65.39/hour for 20
hours each), social and community service managers (2 managers at
$54.21/hour for 20 hours each), and office and administrative support
staff members (1 staff member at $30.57/hour for 8 hours). We summed
the labor cost for all four categories ($8,168) and multiplied the
result by the number of States (57) to estimate this one-time cost of
$465,576. Over the 10-year period, this calculation yields an average
annual cost of $46,558.
At the State level for the AEFLA program (see Exhibit 27), the
Departments estimated this cost by multiplying the estimated number of
lawyers per State (1) by the time required to review and develop new
Unified or Combined State Plans to ensure that the new elements are
included (20 hours) and by the hourly compensation rate ($65.48/hour).
We performed the same calculation for the following occupational
categories: Managers (1 manager at $65.39/hour for 20 hours) and social
and community service managers (3 managers at $54.21/hour for 20 hours
each). We summed the labor cost for the three occupational categories
($5,870) and multiplied the result by the number of States (57). This
calculation yields $334,590 in one-time labor costs, which is equal to
an average annual cost of $33,459 over the 10-year period.
For State VR agencies (see Exhibit 28), the Departments estimated
this cost by first multiplying the estimated number
[[Page 55960]]
of managers per VR agency (2) by the time required to review and
develop new Unified or Combined State Plans to ensure that the new
elements are included (21 hours each) and by the hourly compensation
rate ($65.39/hour). We performed the same calculation for social and
community service managers (2 managers at $54.21/hour for 21 hours
each). Summing the labor cost for both categories ($5,023) and
multiplying the result by the number of VR agencies (80) will result in
a one-time cost of $401,856. Over the 10-year period, this calculation
yields an average annual cost of $40,186.
The sum of these costs yields a total one-time cost of $1.2 million
($1,202,022) for individuals from the State-level DOL core programs,
AEFLA program, and VR agencies to review and develop new Unified or
Combined State Plans to ensure that the new elements are included. Over
the 10-year period of analysis, these one-time costs result in an
average annual cost of $120,202.
ii. New 4-Year State Plan Development and Modification
Under WIA sec. 112(d), modifications to a State Plan covering the
DOL core programs were permitted but not required. For the AEFLA
program under WIA sec. 224, States submitted 5-year State Plans, and
revisions to plans were required only if those revisions were
substantial. Upon the expiration of authorization of the program, and
pending reauthorization, States submitted annual State Plan extensions
containing revisions that were updated sections of their original 5-
year plans. For the VR program under title IV of WIA (sec. 101 of the
Rehabilitation Act), States were required to update specified State
Plan attachments annually and modifications to State Plan assurances
and other attachments were required only if substantive changes
occurred. Under WIOA sec. 102(c)(3)(A), States must submit
modifications to the Unified or Combined State Plan, at a minimum, at
the end of the first 2-year period of any 4-year Plan. The
modifications must reflect changes in labor market and economic
conditions or other factors affecting implementation of the 4-year
Unified or Combined State Plan. This mandatory biennial review and
modification of a 4-year Unified or Combined State Plan is a new cost
under WIOA for all six core programs.
State-level DOL programs, AEFLA programs, and VR agencies will
incur biennial labor costs to review and modify the Unified or Combined
State Plan at the end of the 2-year period after any 4-year plan. In
the absence of significant economic or administration changes within a
State, most costs resulting from the State Plan modification
requirements will occur during the first and second submissions because
the unified State planning process is new for all core programs and
States will just be learning the new requirements of WIOA and how to
coordinate among all core programs so that they become more aligned to
promote an integrated workforce development system. The Departments
anticipate that new Unified or Combined State Plans submitted in 2020
and thereafter, and the 2-year modifications of those Plans, will be
easier for States to develop. For this reason, we present the costs by
year of submission of either the development of a 4-year Unified or
Combined State Plan or the 2-year modification of that Plan.
Costs
Four-Year Plan Modification--Third Year
At the State level for the DOL core programs (see Exhibit 9), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (1) by the time required to review and
modify the 4-year Unified or Combined State Plan (4 hours) and by the
hourly compensation rate ($65.48/hour). We performed the same
calculation for the following occupational categories: Managers (1
manager at $65.39/hour for 12 hours), management analysts (2 analysts
at $45.88/hour for 12 hours each), and office and administrative
support staff members (1 staff member at $30.57/hour for 4 hours). We
summed the labor cost for all four categories ($2,270) and multiplied
the result by the number of States (57) to estimate this one-time cost
of $129,390, occurring in 2018. Over the 10-year period, this
calculation yields an average annual cost of $12,939.
At the State level for the AEFLA program (see Exhibit 10), the
Departments estimated this cost by multiplying the estimated number of
lawyers per State (1) by the time required to review and modify the 4-
year Unified or Combined State Plan (10 hours) and by the hourly
compensation rate ($65.48/hour). We performed the same calculation for
the following occupational categories: Managers (1 manager at $65.39/
hour for 10 hours) and social and community service managers (3
managers $54.21/hour for 10 hours each). We summed the labor cost for
the three occupational categories ($2,935) and multiplied the result by
the number of States (57). This results in a one-time cost of $167,295,
occurring in 2018. Over the 10-year period of the analysis, this one-
time cost results in an average annual cost of $16,730.
For State VR agencies (see Exhibit 11), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency (2) by the time required to review and modify the 4-year Unified
or Combined State Plan (14 hours each) and by the hourly compensation
rate ($65.39/hour). We performed the same calculation for social and
community service managers (2 managers at $54.21/hour for 14 hours
each). Summing the labor cost for both categories ($3,349) and
multiplying the result by the number of VR agencies (80), we estimate
this one-time cost at $267,904, occurring in 2018. This calculation
yields an average annual cost of $26,790 over the 10-year period.
The sum of these costs yields a total one-time cost of $564,589,
occurring in 2018, for individuals from the State-level DOL core
programs, AEFLA program, and VR agencies to review and modify the 4-
year Unified or Combined State Plan. Over the 10-year period of
analysis, these one-time costs result in an average annual cost of
$56,459.
Development of 4-Year State Plan--Fifth Year
At the State level for the DOL core programs (see Exhibit 9), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (1) by the time required to review and
develop a new 4-year Unified or Combined State Plan (4 hours) and by
the hourly compensation rate ($65.48/hour). We performed the same
calculation for the following occupational categories: Managers (1
manager at $65.39/hour for 12 hours), management analysts (2 analysts
at $45.88/hour for 12 hours each), and office and administrative
support staff members (1 staff member at $30.57/hour for 4 hours). We
summed the labor cost for all four categories ($2,270) and multiplied
the result by the number of States (57) to estimate this one-time cost
of $129,390, occurring in 2020. This one-time cost results in an
average annual cost of $12,939 over the 10-year period.
At the State level for the AEFLA program (see Exhibit 10), the
Departments estimated this cost by multiplying the estimated number of
lawyers per State (1) by the time required to review and develop a new
4-year Unified or Combined State Plan (15 hours) and by the hourly
compensation rate ($65.48/hour). We performed the same calculation for
the following occupational categories:
[[Page 55961]]
Managers (1 manager at $65.39/hour for 15 hours) and social and
community service managers (3 managers at $54.21/hour for 15 hours
each). We summed the labor cost for the three occupational categories
($4,403) and multiplied the result by the number of States (57). This
will result in a one-time cost of $250,943, occurring in 2020. Over the
10-year period, this calculation yields an average annual cost of
$25,094.
For State VR agencies (see Exhibit 11), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency (2) by the time required to review and develop a new 4-year
Unified or Combined State Plan (10 hours each) and by the hourly
compensation rate ($65.39/hour). We performed the same calculation for
social and community service managers (2 managers at $54.21/hour for 10
hours each). We summed the labor cost for both categories ($2,392) and
multiplied the result by the number of VR agencies (80). This
calculation yields $191,360 in one-time labor costs, occurring in 2020.
This one-time cost results in an average annual cost of $19,136 over
the 10-year period.
The sum of these costs yields a total one-time cost of $571,693,
occurring in 2020, for individuals from the State-level DOL core
programs, AEFLA program, and VR agencies to review and develop a new 4-
year Unified or Combined State Plan. Over the 10-year period of
analysis, the sum of these one-time costs results in an average annual
cost of $57,169.
Four-Year State Plan Modification--Seventh Year
At the State level for the DOL core programs (see Exhibit 9), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (1) by the time required to review and
modify the 4-year Unified or Combined State Plan (4 hours) and by the
hourly compensation rate ($65.48/hour). We performed the same
calculation for the following occupational categories: Managers (1
manager at $65.39/hour for 8 hours), management analysts (2 analysts at
$45.88/hour for 8 hours each), and office and administrative support
staff members (1 staff member at $30.57/hour for 4 hours). We summed
the labor cost for all four categories ($1,641) and multiplied the
result by the number of States (57) to estimate this cost of $93,560,
occurring in 2022. This is equal to an average annual cost of $9,356.
At the State level for the AEFLA program (see Exhibit 10), the
Departments estimated this cost by multiplying the estimated number of
lawyers per State (1) by the time required to review and modify the 4-
year Unified or Combined State Plan (5 hours) and by the hourly
compensation rate ($65.48/hour). We performed the same calculation for
the following occupational categories: Managers (1 manager at $65.39/
hour for 5 hours) and social and community service managers (3 managers
at $54.21/hour for 5 hours each). We summed the labor cost for the
three occupational categories ($1,468) and multiplied the result by the
number of States (57). This results in a one-time cost of $83,648,
occurring in 2022. This is equal to an average annual cost of $8,365.
For State VR agencies (see Exhibit 11), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency (2) by the time required to review and modify the 4-year Unified
or Combined State Plan (7 hours) and by the hourly compensation rate
($65.39/hour). We performed the same calculation for social and
community service managers (2 managers at $54.21/hour for 7 hours
each). Summing the labor cost for both categories ($1,674) and
multiplying the result by the number of VR agencies (80), we estimate
this one-time cost of $133,952, occurring in 2022. This is equal to an
average annual cost of $13,395.
The sum of these costs for the modification process occurring for
new 4-year Unified or Combined State Plans yields a total cost of
$311,159, occurring in 2022, for individuals from the State-level DOL
core programs, AEFLA program, and VR agencies. Over the 10-year period
of analysis, this results in an average annual cost of $31,116.
Development of 4-Year State Plan--Ninth Year
At the State level for the DOL core programs (see Exhibit 9), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (1) by the time required to review and
develop a new 4-year Unified or Combined State Plan (4 hours) and by
the hourly compensation rate ($65.48/hour). We performed the same
calculation for the following occupational categories: Managers (1
manager at $65.39/hour for 10 hours), management analysts (2 analysts
at $45.88/hour for 10 hours each), and office and administrative
support staff members (1 staff member at $30.57/hour for 4 hours). We
summed the labor cost for all four categories ($1,956) and multiplied
the result by the number of States (57) to estimate this one-time cost
of $111,475, occurring in 2024. This one-time cost results in an
average annual cost of $11,147 over the 10-year period.
At the State level for the AEFLA program (see Exhibit 10), the
Departments estimated this cost by multiplying the estimated number of
lawyers per State (1) by the time required to review and develop a new
4-year Unified or Combined State Plan (10 hours) and by the hourly
compensation rate ($65.48/hour). We performed the same calculation for
the following occupational categories: Managers (1 manager at $65.39/
hour for 10 hours) and social and community service managers (3
managers at $54.21/hour for 10 hours each). We summed the labor cost
for the three occupational categories ($2,935) and multiplied the
result by the number of States (57). This will result in a one-time
cost of $167,295, occurring in 2024. Over the 10-year period, this
calculation yields an average annual cost of $16,730.
For State VR agencies (see Exhibit 11), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency (2) by the time required to review and develop a new 4-year
Unified or Combined State Plan (7 hours each) and by the hourly
compensation rate ($65.39/hour). We performed the same calculation for
social and community service managers (2 managers at $54.21/hour for 7
hours each). We summed the labor cost for both categories ($1,674) and
multiplied the result by the number of VR agencies (80). This
calculation yields $133,952 in one-time labor costs, occurring in 2024.
This one-time cost results in an average annual cost of $13,395 over
the 10-year period.
The sum of these costs yields a total one-time cost of $412,722,
occurring in 2024, for individuals from the State-level DOL core
programs, AEFLA program, and VR agencies to review and develop a new 4-
year Unified or Combined State Plan. Over the 10-year period of
analysis, the sum of these one-time costs results in an average annual
cost of $41,272.
In total, the cost for the biennial development and modification
process over the 10-year period is $1.9 million ($1,860,163). This
estimated total 10-year cost results in an average annual cost of
$186,016.
iii. Coordinating Submissions
Affected entities will incur costs associated with coordinating
actions among the core programs administered by DOL and ED because, as
explained above, under WIA, only the DOL core programs were covered by
a single State Plan; the AEFLA and VR programs each
[[Page 55962]]
had stand-alone State Plans under WIA. For State WDBs, the Departments
estimate that costs will be associated with State planning attributed
to the extra effort to coordinate and develop a plan that covers all
six core programs, which is a new requirement under WIOA.
The Departments estimate that the AEFLA and VR programs will incur
one-time costs associated with coordinating and participating in
statewide stakeholder meetings and other activities to coordinate,
develop, and review their first-time State Plan submissions. We
anticipate that the AEFLA and VR programs will incur a larger cost than
the DOL core programs because, under WIA, neither the AEFLA nor VR
program were required to coordinate with other partner programs in
developing a State Plan. We also anticipate that the DOL core programs
will experience an incremental increase in their coordination costs
because this will be the first time that DOL core programs must
coordinate with the AEFLA and VR programs for State planning purposes.
Although the DOL core programs have had to coordinate with each other
under WIA, because new relationships will need to be formed with the
AEFLA and VR partners, their costs will increase.
In addition, in some States, different agencies that previously
have not worked together will have to build infrastructure to form
partnerships. Working together might take the form of ``shaking hands''
and following a ``model agreement'' involving State councils.
Compliance with this provision will increase biennial labor costs--
in connection with the development of a 4-year Unified or Combined
State Plan or the 2-year modifications of each of those plans--for
State-level DOL core programs, State- and local-level AEFLA programs,
and State-level VR agencies.
Costs
At the State level for the DOL core programs (see Exhibit 26), the
Departments estimated this labor cost by multiplying the estimated
number of managers per State (1) by the time required to coordinate on
developing a Unified or Combined State Plan among all six core programs
(8 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 8 hours
each) and office and administrative support staff members (1 staff
member at $30.57/hour for 8 hours). We summed the labor cost for all
three categories ($1,502) and multiplied the result by the number of
States (57) to estimate this biennial cost of $85,600. Over the 10-year
period, this calculation yields a total cost of $428,002, which is
equal to an average annual cost of $42,800.
At the State level for the AEFLA program (see Exhibit 27), the
Departments estimated this labor cost by multiplying the estimated
number of lawyers per State (1) by the time required to coordinate on
developing the Unified or Combined State Plan submission (4 hours) and
by the hourly compensation rate ($65.48/hour). We performed the same
calculation for the following occupational categories: Managers (1
manager at $65.39/hour for 8 hours), social and community service
managers (3 managers at $54.21/hour for 8 hours each), and office and
administrative support staff members (1 staff member at $30.57/hour for
8 hours). We summed the labor cost for all four categories ($2,331) and
multiplied the result by the number of States (57). This calculation
yields a biennial cost of $132,846. Over the 10-year period, this
calculation results in a total cost of $664,232, which is equal to an
average annual cost of $66,423.
At the local level for the AEFLA program (see Exhibit 29), the
Departments estimated this cost by multiplying the estimated number of
managers per local AEFLA provider (1) by the time required to
coordinate on developing the Unified or Combined State Plan submission
(4 hours) and by the hourly compensation rate ($63.63/hour). We
repeated the calculation for social and community service managers (1
manager at $61.01/hour for 4 hours). We summed the labor cost for the
two occupational categories ($499) and multiplied the result by the
number of local AEFLA providers (2,396). The biennial cost at the local
level for the AEFLA program is estimated to be $1.2 million
($1,194,550). Over the 10-year period, this calculation results in a
total cost of $6.0 million ($5,972,749), which is equal to an average
annual cost of $597,275.
For State VR agencies (see Exhibit 28), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency (2) by the time required to coordinate and develop the Unified
or Combined State Plan submission (14 hours each) and by the hourly
compensation rate ($65.39/hour). We performed the same calculation for
social and community service managers (2 managers at $54.21/hour for 14
hours each). Summing the labor cost for both categories ($3,349) and
multiplying the result by the number of VR agencies (80) results in a
biennial cost of $267,904 for State VR agencies. Over the 10-year
period, this calculation yields a total cost of $1.3 million
($1,339,520), which is equal to an average annual cost of $133,952.
The sum of these costs yields a biennial cost of $1.7 million
($1,680,901). Over the 10-year period, this calculation results in a
total cost of $8.4 million ($8,404,503), which is equal to an average
annual cost of $840,450, for individuals from State-level DOL core
programs, State- and local-level AEFLA programs, and State-level VR
agencies to coordinate actions among all six core programs.
The sum of the costs for the Unified or Combined State Plans:
Expanded Content, Biennial Development and Modification Process, and
Submission Coordination requirements, which includes the costs to
expand content requirements, develop and modify State Plans, and
coordinate the submission of State Plans results in a 10-year total
cost of $11.5 million ($11,466,688), which results in an average annual
cost of $1.1 million ($1,146,669).
c. Performance Accountability System
WIOA sec. 116 establishes performance accountability indicators and
performance reporting requirements to assess the effectiveness of
States and local areas in achieving positive outcomes for individuals
served by the six core programs (WIOA sec. 116(b)(3)(A)(ii)). With few
exceptions, including the local accountability system under WIOA sec.
116(c), the performance accountability requirements apply across all
six core programs.
Affected entities will incur costs to (1) develop and update their
State performance accountability system; (2) implement measures for
data collection and reporting on effectiveness of serving employers;
(3) negotiate levels of performance; (4) run statistical adjustment
model to adjust levels of performance based on actual economic
conditions and characteristics of participants; (5) collect data to
report on any additional State performance accountability indicators;
(6) provide technical assistance to States; (7) develop a performance
report template that reports outcomes via the new WIOA performance
accountability metrics; develop, update, and submit ETP reports; and
collect, analyze, and report performance data; (8) obtain UI wage data;
and (9) purchase data analytic software and perform training.
[[Page 55963]]
i. Development and Updating of State Performance Accountability Systems
Under WIOA sec. 101(d)(8), States must help Governors develop
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. This WIOA
provision specifies that such strategies must include design and
implementation of common intake, data collection, case management
information, and performance accountability measurement and reporting
processes. The strategies also must incorporate local input to such
design and implementation to improve coordination of services across
one-stop partner programs.
Although this State WDB requirement is implemented in the DOL WIOA
Final Rule, one-stop partner programs will have to contribute to the
development of the data system alignment strategies required by WIOA.
Moreover, the implementation of these data system alignment strategies
developed by the State WDBs--the actual alignment of technology and
data systems across one-stop partner programs--would impose costs on
one-stop partners. For these reasons, the Departments consider the
costs imposed on State WDBs and the potential future costs to one-stop
partner programs by this WIOA requirement a cost of this Final Rule.
WIOA sec. 116(b)(2)(A)(i) establishes six primary indicators of
performance for measuring the effectiveness of activities provided for
under each of the core programs:
(1) Percentage of program participants who are in unsubsidized
employment during the second quarter after exit from the program;
(2) Percentage of program participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(3) Median earnings of program participants who are in unsubsidized
employment during the second quarter after exit from the program;
(4) 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;
(5) 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) Indicator(s) of effectiveness in serving employers.\42\
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\42\ WIOA sec. 116(b)(2)(A)(iv) requires DOL and ED to develop
one or more indicators of performance to measure the effectiveness
of the core programs in serving employers.
---------------------------------------------------------------------------
Under WIOA sec. 116(b)(2)(A)(i), however, the fourth and fifth
indicators are not applicable to the Wagner-Peyser Act Employment
Service program because that program provides no education or training
services, which are measured by those performance indicators.
Additionally, for youth activities authorized under WIOA title I,
subtitle B, WIOA specifies slightly modified versions of the first two
primary indicators of performance.\43\ Under WIA sec. 136, the
performance indicators differed and applied only to activities under
the adult, dislocated worker, and youth formula programs administered
by DOL. Under WIA sec. 212, the AEFLA program was subject to indicators
of performance that applied specifically to that program. The VR
program was subject to standards and indicators of performance
established under the Rehabilitation Act. Thus, the task of measuring
program effectiveness through the calculation and updating of levels of
performance as indicated by the specific performance indicator metrics
established in WIOA is somewhat new for all six core programs.
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\43\ WIOA sec. 116(b)(2)(A)(ii) establishes the following youth
performance indicators in place of the first and second indicators
applicable to the other core programs: (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; and (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.
---------------------------------------------------------------------------
The Departments assume that the potential implementation of the
strategies for aligning technology and data systems across one-stop
partner programs would involve consulting and software and IT systems
for State-level DOL programs and VR agencies. There would be larger
upfront consulting costs to design the system and software and IT
systems costs to purchase hardware and implement the system. Subsequent
software and IT systems costs would also be incurred for maintaining
the systems. Some States are already working to better align technology
and data systems where feasible and are at varying points in the
alignment process. States that are farther in the process will require
less effort for alignment than those using legacy systems. We estimate
that 40 percent of State-level DOL programs (i.e., SWAs) (23 SWAs) and
VR agencies (32 agencies) will be ``low-effort'' SWAs and VR agencies,
and 60 percent will be ``high-effort'' SWAs (34 SWAs) and VR agencies
(48 agencies). These estimates are based on the Departments' experience
with WIA programs and information received from SWAs, and represent
costs for average SWAs and VR agencies within each effort
classification. We understand that some SWAs and VR agencies will
experience costs far exceeding those we account for in ``high-effort''
entities and far below those estimated for ``low-effort'' entities. In
addition, the Departments anticipate that the State-level AEFLA
programs will incur annual software and IT systems costs to enhance
their participation in the SLDS Grant Program, which supports the
design, development, implementation, and expansion of P-20W (early
learning through the workforce) longitudinal data systems.
The affected entities will incur costs to develop and update their
performance accountability systems, which involves establishing the
capabilities to collect and regularly update the relevant performance
data. State-level DOL core programs, State- and local-level AEFLA
programs, and Federal- and State-level VR agencies will incur labor
costs related to complying with this provision's requirements in the
first year of the Final Rule. Furthermore, compliance will result in a
one-time non-labor cost for software and IT systems for the Federal DOL
program. For State-level DOL core programs, compliance will result in
one-time non-labor costs for software and IT systems and consultants
and annual non-labor costs for licensing fees. In addition, compliance
will result in annual software and IT systems costs for the AEFLA
program at the State level.
Costs
Aligning Technology and Data Systems Across One-Stop Partner Programs
For the future costs associated with implementing strategies for
aligning technology and data systems across one-stop partner programs
(see Exhibit 22), the Departments estimated costs for ``low-'' and
``high-effort'' SWAs for DOL core programs. We estimated the consultant
cost for ``low-effort'' SWAs by multiplying the one-time consultant
cost ($100,000) by the number of ``low-effort'' SWAs (23). This
calculation yields a one-time cost of $2.3 million ($2,300,000) in the
first year of the Final Rule, which is equal to an average annual cost
of $230,000 over the 10-year period.
The Departments estimated the consultant cost for ``high-effort''
SWAs
[[Page 55964]]
by multiplying the sum of the consultant cost for the first year of the
rule ($200,000) and for the second year ($100,000) by the number of
``high-effort'' SWAs (34). This results in a 10-year total cost of
$10.2 million ($10,200,000), which is equal to an average annual cost
of $1.0 million ($1,020,000).
The Departments estimated the software and IT systems cost for
``low-effort'' SWAs by multiplying the sum of the cost for the first
year of the rule ($200,000) and the cost for the second and third years
($100,000 per year) by the number of ``low-effort'' SWAs (23). This
calculation yields a total 10-year cost of $9.2 million ($9,200,000),
which is equal to an average annual cost of $920,000.
The Departments estimated the software and IT systems cost for
``high-effort'' SWAs by multiplying the sum of the cost for the first
and second years of the rule ($200,000 per year) and the cost in for
the third year through the fifth year ($100,000 per year) by the number
of ``high-effort'' SWAs (34). This calculation results in an average
annual cost of $2.4 million ($2,380,000), which is equal to a total
cost of $23.8 million ($23,800,000) over the 10-year period.
For the State-level AEFLA program (see Exhibit 23), the Departments
estimated the software and IT systems cost for States to enhance their
participation in the SLDS Grant Program by multiplying the annual
software and IT cost ($100,000) by the number of States (57). This
calculation results in a total 10-year cost of $57.0 million
($57,000,000), which is equal to an average annual cost of $5.7 million
($5,700,000).
The Departments estimated implementation and future alignment costs
for ``low-'' and ``high-effort'' VR agencies (see Exhibit 24). We
estimated the consultant cost for ``low-effort'' VR agencies by
multiplying the one-time consultant cost ($100,000) by the number of
``low-effort'' VR agencies (32). This calculation yields a one-time
cost of $3.2 million ($3,200,000) in the first year of the rule, which
is equal to an average annual cost of $320,000 over the 10-year period.
The Departments estimated the consultant cost for ``high-effort''
VR agencies by multiplying the sum of the consultant cost for the first
year of the rule ($200,000) and the second year ($100,000) by the
number of ``high-effort'' VR agencies (48). This results in a total 10-
year cost of $14.4 million ($14,400,000), which is equal to an average
annual cost of $1.4 million ($1,440,000) over the 10-year period.
The Departments estimated the software and IT systems cost for
``low-effort'' VR agencies by multiplying the sum of the cost for the
first year of the rule ($200,000) and the cost for the second and third
years ($100,000 per year) by the number of ``low-effort'' VR agencies
(32). This calculation yields a total 10-year cost of $12.8 million
($12,800,000), which is equal to an average annual cost of $1.3 million
($1,280,000).
The Departments estimated the software and IT systems cost for
``high-effort'' VR agencies by multiplying the sum of the cost for the
first and second years of the rule ($200,000 per year) and the cost for
the third year through the fifth year ($100,000 per year) by the number
of ``high-effort'' VR agencies (48). This calculation results in a
total 10-year cost of $33.6 million ($33,600,000), which is equal to an
average annual cost of $3.4 million ($3,360,000).
The sum of these potential costs for aligning technologies and data
systems across one-stop partner programs yields a total cost of $166.5
million ($166,500,000) in non-labor costs from the SWAs, the State-
level AEFLA program, and VR agencies. Over the 10-year analysis, these
costs result in an average annual cost of $16.7 million ($16,650,000).
Development and Updating of State Performance Accountability Systems
For the costs related to developing and updating State performance
accountability systems (see Exhibit 13), the Departments estimated the
one-time Federal software and IT systems cost for DOL to be $750,000 in
the first year of the Final Rule. This is equivalent to an average
annual cost of $75,000.
At the State level for DOL core programs (i.e., SWAs) (see Exhibit
16), the Departments estimated this labor cost by first multiplying the
estimated number of managers per SWA (1) by the time required to
develop and update the performance accountability system (32 hours) and
by the hourly compensation rate ($65.39/hour). We performed the same
calculation for computer systems analysts (3 analysts at $56.17/hour
for 80 hours each) and office and administrative support staff members
(1 staff member at $30.57/hour for 72 hours). We summed the labor cost
for all three categories ($17,774) and multiplied the result by the
number of SWAs (57) to estimate a one-time cost of $1.0 million
($1,013,136). Over the 10-year period, this calculation yields an
average annual cost of $101,314.
The Departments estimated the software and IT systems cost for SWAs
by multiplying the software and IT systems cost per SWA ($100,000) by
the number of SWAs (57). This calculation yields a one-time cost of
$5.7 million ($5,700,000) in the first year of the rule, which results
in an average annual cost of $570,000 over the 10-year period.
The Departments estimated the licensing fees for SWAs by
multiplying the annual licensing fee per SWA ($50,000) by the number of
SWAs (57). This calculation results in an annual cost of $2.9 million
($2,850,000), which is equal to a 10-year total cost of $28.5 million.
The Departments estimated the consultant cost for SWAs by
multiplying the consultant cost per SWA ($75,000) by the number of SWAs
(57). This calculation yields a one-time cost of $4.3 million
($4,275,000) in the first year of the rule, which is equal to an
average annual cost of $427,500 over the 10-year period.
At the State level for the AEFLA program (see Exhibit 17), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State (1) by the time required to
develop and update the performance accountability system (60 hours) and
by the hourly compensation rate ($65.39/hour). We repeated the
calculation for computer systems analysts (1 analyst at $56.17/hour for
80 hours), social and community service managers (3 managers at $54.21/
hour for 60 hours each), and database administrators (1 administrator
at $57.02/hour for 80 hours). We summed the labor cost for all four
categories ($22,736) and multiplied the result by the number of States
(57), resulting in an estimated one-time cost of $1.3 million
($1,295,975).\44\ Over the 10-year period, this calculation yields an
average annual cost of $129,597.
---------------------------------------------------------------------------
\44\ This provision will be a joint effort between State and
local AEFLA staff.
---------------------------------------------------------------------------
The Departments estimated the software and IT systems cost for the
State-level AEFLA program by multiplying the software and IT systems
cost per State ($350,000) by the number of States (57). This
calculation yields an annual cost of $20.0 million ($19,950,000), which
is equal to a total 10-year cost of $199.5 million ($199,500,000).
At the local level for the AEFLA program (see Exhibit 20), the
Departments estimated this cost by first multiplying the estimated
number of managers per local AEFLA provider (1) by the time required to
develop and update the performance accountability system (4 hours) and
by the hourly compensation rate ($63.63/hour). We
[[Page 55965]]
performed the same calculation for database administrators (1
administrator at $59.60/hour for 4 hours). We summed the labor cost for
the two occupational categories ($493) and multiplied the result by the
number of local AEFLA providers (2,396), resulting in a one-time cost
of $1.2 million ($1,181,036). Over the 10-year period, this calculation
yields an average annual cost of $118,104.
At the Federal level for the VR program (see Exhibit 15), the
Departments estimated this labor cost by first multiplying the
estimated number of GS-14 level, Step 5 data management specialists (1)
by the time required to program the database and perform related
software development tasks (768.63 hours) and by the hourly
compensation rate ($76.48/hour). We performed the same calculation for
GS-13 level, Step 5 data management specialists (1 specialist at
$64.71/hour for 768.63 hours). We summed the labor cost for both
categories to estimate this one-time cost of $108,523, which is equal
to an average annualized cost of $10,852.
For State VR agencies (see Exhibit 18), the Departments estimated
the cost associated with the establishment of State performance goals
and the State's evaluation and analysis of progress toward such goals
by first multiplying the estimated number of managers per VR agency (1)
by the time required to develop and update the performance
accountability system (80 hours) and by the hourly compensation rate
($65.39/hour). We repeated the calculation for the following
occupational categories: Social and community service managers (3
managers at $54.21/hour for 80 hours each), database administrators (2
administrators at $57.02/hour for 100 hours each), and SRC Board
members (12 members at $45.88/hour for 3 hours each). We summed the
labor cost for the four categories ($31,297) and multiplied the result
by the number of VR agencies (80) to estimate the biennial cost as $2.5
million ($2,503,782). In addition, to estimate the cost of updating and
modifying VR agency case management systems we multiplied the estimated
number of computer systems analysts per large VR agency that is
updating case management and reporting systems using in-house staff (5)
by the time required to make system changes (360) and by the hourly
compensation rate ($56.17/hour). We multiplied the result ($101,106) by
the number of large VR agencies updating systems using in-house staff
(5) to estimate this one-time cost of $505,530. We then multiplied the
estimated number of computer systems analysts per small or medium VR
agency that is updating case management and reporting systems using in-
house staff (2) by the time required to make system changes (360 hours)
and by the hourly compensation rate ($56.17/hour). We multiplied the
result ($40,442) by the number of small and medium VR agencies updating
systems using in-house staff (45) to estimate this one-time cost of
$1.8 million ($1,819,908). Finally, we multiplied the estimated number
of computer systems analysts per VR agency that has a maintenance
contract with a single CMS vendor (2) by the time required to make
system changes (54 hours) and by the hourly compensation rate ($56.17/
hour). We multiplied the result ($6,066) by the number of VR agencies
with a maintenance contract (30) to estimate this one-time cost of
$181,991. In total, the sum of these calculations yields a total 10-
year cost of $15.0 million ($15,026,341), which results in an average
annual cost of $1.5 million ($1,502,634) over the 10-year period.
The Departments estimated the annual licensing fees cost for State
VR agencies by multiplying the annual licensing fee per VR agency
($6,930) by the number of VR agencies that receive vendor-supplied CMS
software (48). This calculation results in an annual cost of $332,640,
which is equal to a 10-year total cost of $3.3 million ($3,326,400).
The sum of these costs for the development and updating of State
performance accountability systems yields a total 10-year cost of
$260.7 million ($260,676,411) in costs from the SWAs, AEFLA program,
and VR program. Over the 10-year analysis period, these costs result in
an average annual cost of $26.1 million ($26,067,641).
The sum of the costs for individuals from the Federal- and State-
level DOL core programs, State- and local-level AEFLA programs, and
Federal- and State-level VR agencies to implement strategies for
aligning technology and data systems across one-stop partners and to
develop and update the performance accountability measures yields a
total 10-year cost of $427.2 million ($427,176,411) and an average
annual cost of $42.7 million ($42,717,641).
ii. Effectiveness in Serving Employers
WIOA sec. 116(b)(2)(A)(i)(VI) provides that the sixth primary
indicator of performance will be an indicator of effectiveness in
serving employers, which will be established pursuant to WIOA sec.
116(b)(2)(A)(iv). This indicator will measure program effectiveness in
serving employers. Under WIOA sec. 116(b)(2)(A)(iv), the Departments
must consult with stakeholders on proposed approaches to defining this
indicator. The NPRM described three approaches to measure employer
satisfaction. In the first approach, States would use wage records to
identify whether a participant's identification matches the same FEIN
in the second and fourth quarters. The second approach to define this
performance indicator would use the number or percentage of employers
that are using the core program services out of all employers
represented in an area or State served by the system (i.e., employers
served). The third approach would measure the repeated use rate for
employers' use of the core programs. Both the market penetration and
repeat business measure should come from already existing data sources.
For market penetration, States will have to produce the total number of
business customers, as well as the total number of businesses, which is
readily available through BLS. For repeat businesses, these figures
will also come from the business customer database and will be shown as
a sum within the reporting period.
In this Final Rule, the Departments are initially implementing the
performance indicator of effectiveness in serving employers in the form
of a pilot program to test the rigor and feasibility of the three
proposed approaches and to develop a standardized indicator. The
performance indicator for effectiveness in serving employers will not
be included in sanctions determinations until the standardized
indicator is developed in accordance with rulemaking requirements. The
WIOA Joint Performance ICR and the DOL Performance ICR include the data
elements and specifications to calculate all three measures proposed in
the NPRM (employee retention with the same employer, market
penetration, and repeat business). States will be required to choose
two of the three measures of effectiveness in serving employers for
data collection and reporting for PYs 2016 and 2017 with results to be
included in the WIOA annual reports due in October.
The Departments cannot anticipate which of the three approaches
States will select, limiting our ability to estimate the cost of these
activities. Due to this uncertainty, the Departments estimated the
costs of the pilot program in 2016 and 2017 using the assumption that
the realized cost will be the midpoint of the range of the total costs
if on the low end, all States choose the
[[Page 55966]]
two lowest-cost approaches; if on the high end, all States choose the
two highest-cost approaches. The Departments similarly estimated the
cost of the implementation beginning in 2019 using the assumption that
this cost will be the midpoint of the range of the total costs if on
the low end, all States choose the lowest-cost approach; on the high
end, all States choose the highest-cost approach. Below we discuss the
estimated costs for each approach in the pilot program if all States
were to choose that approach. We then use these values to estimate the
cost of this provision as discussed.
Costs
Approach 1--Retention With the Same Employer
At the Federal level for the DOL core programs, the Departments
estimated the one-time labor cost associated with the first approach by
multiplying the estimated number of GS-14, Step 5 management analysts
(1) by the time required for technical assistance development (8 hours)
and by the hourly compensation rate ($76.48/hour). This calculation
would result in a one-time labor cost of $612.
The Departments estimated DOL's annual labor costs for the first
approach by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
delivery (4 hours) and by the hourly compensation rate ($76.48/hour).
This calculation would result in an annual labor cost of $306.
At the State level for the DOL core programs, the Departments
estimated the first approach's one-time labor cost by multiplying the
estimated number of management analysts (1) by the time required for
programming and data collection (8 hours) and by the hourly
compensation rate ($45.88/hour). We multiplied the labor cost ($367) by
the number of States (57) to estimate this one-time cost of $20,921.
The Departments estimated the State-level DOL core programs' annual
labor cost associated with the first approach in the pilot program by
multiplying the estimated number of management analysts (1) by the sum
of time required for data collection (4 hours) and for Federal
reporting (4 hours) and by the hourly compensation rate ($45.88/hour).
We multiplied the labor cost ($367) by the number of States (57) to
estimate this annual cost of $20,291.
At the Federal level for the AEFLA program, the Departments
estimated the one-time labor cost associated with the first approach in
the pilot program by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
development (8 hours) and by the hourly compensation rate ($76.48/
hour). This calculation would result in a one-time labor cost of $612.
The Departments estimated AEFLA's annual labor cost for the first
approach by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
delivery (4 hours) and by the hourly compensation rate ($76.48/hour).
This calculation would result in an annual labor cost of $306.
At the State level for the AEFLA program, the Departments estimated
the first approach's one-time labor cost by multiplying the estimated
number of management analysts (1) by the time required for programming
and data collection (8 hours) and by the hourly compensation rate
($45.88/hour). We multiplied the labor cost ($367) by the number of
States (57) to estimate this one-time cost of $20,921.
The Departments estimated the State-level AEFLA program's annual
labor cost associated with the first approach by multiplying the
estimated number of management analysts (1) by the sum of time required
for data collection (4 hours) and for Federal reporting (4 hours) and
by the hourly compensation rate ($45.88/hour). We multiplied the labor
cost ($367) by the number of States (57) to estimate this annual cost
of $20,921.
At the Federal level for the VR program, the Departments estimated
the one-time labor cost associated with the first approach in the pilot
program by multiplying the estimated number of GS-14, Step 5 management
analysts (1) by the time required for technical assistance development
(8 hours) and by the hourly compensation rate ($76.48/hour). This
calculation would result in a one-time labor cost of $612.
The Departments estimated the annual labor costs for the VR program
associated with the first approach by multiplying the estimated number
of GS-14, Step 5 management analysts (1) by the time required for
technical assistance delivery (4 hours) and by the hourly compensation
rate ($76.48/hour). This calculation would result in an annual labor
cost of $306.
At the State level for the VR program, the Departments estimated
the first approach's one-time labor cost by multiplying the estimated
number of management analysts (1) by the time required for programming
and data collection (8 hours) and by the hourly compensation rate
($45.88/hour). We multiplied the labor cost ($367) by the number of VR
agencies (80) to estimate this one-time cost of $29,363.
The Departments estimated the State-level AEFLA program's annual
labor cost associated with the first approach by multiplying the
estimated number of management analysts (1) by the sum of time required
for data collection (4 hours) and for Federal reporting (4 hours) and
by the hourly compensation rate ($45.88/hour). We multiplied the labor
cost ($367) by the number of VR agencies (80) to estimate this annual
cost of $29,363.
In total, Approach 1 would result in one-time costs of $73,041 for
individuals from the Federal- and State-level DOL core programs, AEFLA
program, and VR program. In addition, Approach 1 would result in
$72,123 in annual costs for these entities.
Approach 2--Percentage of Employers Using Services Out of All Employers
in the State
At the Federal level for the DOL core programs, the Departments
estimated the one-time labor cost associated with the second approach
in the pilot program by multiplying the estimated number of GS-14, Step
5 management analysts (1) by the time required for technical assistance
development (8 hours) and by the hourly compensation rate ($76.48/
hour). This calculation would result in a one-time labor cost of $612.
The Departments estimated DOL's annual labor cost associated with
the second approach by multiplying the estimated number of GS-14, Step
5 management analysts (1) by the time required for technical assistance
delivery (4 hours) and by the hourly compensation rate ($76.48/hour).
This calculation would result in an annual labor cost of $306.
At the State level for the DOL core programs, the Departments
estimated the second approach's annual labor cost by multiplying the
estimated number of management analysts (1) by the sum of time required
for data collection (4 hours), providing training and technical
assistance to Local WDBs (3 hours), and Federal reporting (4 hours) and
by the hourly compensation rate ($45.88/hour). We multiplied the labor
cost ($505) by the number of States (57) to estimate this annual cost
of $28,767.
For local-level DOL core programs, the Departments estimated the
annual labor cost for the second approach by multiplying the estimated
number of management analysts (1) by the time required for data
collection (4 hours) and by the hourly compensation rate ($60.60/hour).
We multiplied the labor cost ($242) by the number of Local
[[Page 55967]]
WDBs (580) to estimate this annual cost of $140,592.
At the Federal level for the AEFLA program, the Departments
estimated the one-time labor cost associated with the second approach
in the pilot program by multiplying the estimated number of GS-14, Step
5 management analysts (1) by the time required for technical assistance
development (8 hours) and by the hourly compensation rate ($76.48/
hour). This calculation would result in a one-time labor cost of $612.
The Departments estimated AEFLA's annual labor cost associated with
the second approach by multiplying the estimated number of GS-14, Step
5 management analysts (1) by the time required for technical assistance
delivery (4 hours) and by the hourly compensation rate ($76.48/hour).
This calculation would result in an annual labor cost of $306.
At the State level for the AEFLA program, the Departments estimated
the second approach's annual labor cost by multiplying the estimated
number of management analysts (1) by the sum of time required for data
collection (4 hours), providing training and technical assistance to
local AEFLA providers (3 hours), and Federal reporting (4 hours) and by
the hourly compensation rate ($45.88/hour). We multiplied the labor
cost ($505) by the number of States (57) to estimate this annual cost
of $28,767.
For the local-level AEFLA program, the Departments estimated the
annual labor cost for the second approach by multiplying the estimated
number of management analysts (1) by the time required for data
collection (4 hours) and by the hourly compensation rate ($60.60/hour).
We multiplied the labor cost ($242) by the number of local AEFLA
providers (2,396) to estimate this annual cost of $580,790.
At the Federal level for the VR program, the Departments estimated
the one-time labor cost associated with the second approach in the
pilot program by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
development (8 hours) and by the hourly compensation rate ($76.48/
hour). This calculation would result in a one-time labor cost of $612.
The Departments estimated the VR program's annual labor cost
associated with the second approach by multiplying the estimated number
of GS-14, Step 5 management analysts (1) by the time required for
technical assistance delivery (4 hours) and by the hourly compensation
rate ($76.48/hour). This calculation would result in an annual labor
cost of $306.
At the State level for the VR program, the Departments estimated
the second approach's one-time labor cost by multiplying the estimated
number of staff trainers (1) by the time required for training of
rehabilitation counselors (4 hours) and by the hourly compensation rate
($54.21/hour). We repeated the calculation for the rehabilitation
counselors (62 assistants at $36.66/hour for 1 hour each). We summed
the labor cost for both categories ($2,490) and multiplied it by the
number of VR agencies (80) to estimate this one-time cost of $199,181.
The Departments estimated the State-level VR program's annual labor
cost associated with the second approach by multiplying the estimated
number of management analysts (1) by the time required for Federal
reporting (4 hours) and by the hourly compensation rate ($45.88/hour).
In addition, we added the estimated number of rehabilitation counselors
(62 assistants) by the time required for data collection (1 hour each)
and by the hourly compensation rate ($36.66/hour). We summed the labor
cost for both categories ($2,456) and multiplied it by the number of VR
agencies (80) to estimate this annual cost of $196,515.
In total, Approach 2 would result in one-time costs of $201,016 for
individuals from the Federal-level DOL core programs, AEFLA program,
and VR program and the State-level VR program. In addition, Approach 2
would result in $976,349 in annual costs for the Federal-, State-, and
local-level DOL core programs and AEFLA program and the State-level VR
program.
Approach 3--Percentage of Repeat Employers Using Services Within the
Previous 3 Years
At the Federal level for the DOL core programs, the Departments
estimated the one-time labor cost associated with the third approach in
the pilot program by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
development (8 hours) and by the hourly compensation rate ($76.48/
hour). This calculation would result in a one-time labor cost of $612.
The Departments estimated DOL's annual labor cost associated with
the third approach by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
delivery (4 hours) and by the hourly compensation rate ($76.48/hour).
This calculation would result in an annual labor cost of $306.
At the State level for the DOL core programs, the Departments
estimated the third approach's annual labor cost by multiplying the
estimated number of management analysts (1) by the sum of time required
for data collection (4 hours), providing training and technical
assistance to Local WDBs (3 hours), and Federal reporting (4 hours) and
by the hourly compensation rate ($45.88/hour). We multiplied the labor
cost ($505) by the number of States (57) to estimate this annual cost
of $28,767.
For the local-level DOL core programs, the Departments estimated
the annual labor cost for third approach in the pilot program by
multiplying the estimated number of management analysts (1) by the time
required for data collection (6 hours) and by the hourly compensation
rate ($60.60/hour). We multiplied the labor cost ($364) by the number
of Local WDBs (580) to estimate this annual cost of $210,888.
At the Federal level for the AEFLA program, the Departments
estimated the one-time labor cost associated with the third approach in
the pilot program by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
development (8 hours) and by the hourly compensation rate ($76.48/
hour). This calculation would result in a one-time labor cost of $612.
The Departments estimated AEFLA's annual labor cost associated with
the third approach by multiplying the estimated number of GS-14, Step 5
management analysts (1) by the time required for technical assistance
delivery (4 hours) and by the hourly compensation rate ($76.48/hour).
This calculation would result in an annual labor cost of $306.
At the State level for the DOL core programs, the Departments
estimated the third approach's annual labor cost by multiplying the
estimated number of management analysts (1) by the sum of time required
for data collection (4 hours), providing training and technical
assistance to local AEFLA providers (3 hours), and Federal reporting (4
hours) and by the hourly compensation rate ($45.88/hour). We multiplied
the labor cost ($505) by the number of States (57) to estimate this
annual cost of $28,767.
For the local-level AEFLA program, the Departments estimated the
annual labor cost for the third approach by multiplying the estimated
number of management analysts (1) by the time required for data
collection (6 hours) and by the hourly compensation rate ($60.60/hour).
We multiplied the labor cost ($364) by the number of local AEFLA
providers (2,396) to estimate this annual cost of $871,186.
At the Federal level for the VR program, the Departments estimated
the
[[Page 55968]]
one-time labor cost associated with the third approach in the pilot
program by multiplying the estimated number of GS-14, Step 5 management
analysts (1) by the time required for technical assistance development
(8 hours) and by the hourly compensation rate ($76.48/hour). This
calculation would result in a one-time labor cost of $612.
The Departments estimate the VR program's annual labor cost
associated with the third approach by multiplying the estimated number
of GS-14, Step 5 management analysts (1) by the time required for
technical assistance delivery (4 hours) and by the hourly compensation
rate ($76.48/hour). This calculation would result in an annual labor
cost of $306.
At the State level for the VR program, the Departments estimated
the third approach's one-time labor cost by multiplying the estimated
number of staff trainers (1) by the time required for training of
rehabilitation counselors (4 hours) and by the hourly compensation rate
($54.21/hour). We repeated the calculation for the rehabilitation
counselors (62 counselors at $36.66/hour for 1 hour each). We summed
the labor cost for both categories ($2,490) and multiplied it by the
number of VR agencies (80) to estimate this one-time cost of $199,181.
The Departments estimated the State-level VR program annual labor
cost associated with the third approach by multiplying the estimated
number of management analysts (1) by the time required for Federal
reporting (4 hours) and by the hourly compensation rate ($45.88/hour).
In addition, we added the estimated number of rehabilitation counselors
(62 counselors) by the time required for data collection (1 hour each)
and by the hourly compensation rate ($36.66/hour). We summed the labor
cost for both categories ($2,456) and multiplied it by the number of VR
agencies (80) to estimate this annual cost of $196,515.
In total, Approach 3 would result in one-time costs of $201,016 for
individuals from the Federal-level DOL core programs, AEFLA program,
and VR program and the State-level VR program. In addition, Approach 3
would result in $1.3 million (1,337,040) in annual costs for the
Federal-, State-, and local-level DOL core programs and AEFLA program
and the State-level VR program.
As presented in Exhibit 49, Approach 1 is the lowest-cost approach
with $73,041 in one-time costs and $72,124 in annual costs for Federal-
and State-level costs for DOL, AEFLA, and the VR program. Approach 3 is
the highest-cost approach with $201,016 in one-time costs and $1.3
million ($1,337,040) in annual costs for Federal-, State-, and local-
level costs for DOL and AEFLA and Federal- and State-level costs for
the VR program.
Exhibit 49--Estimated Cost of the Pilot Program by Approach
------------------------------------------------------------------------
Approach One-time cost Annual cost
------------------------------------------------------------------------
Approach 1--Retention with the Same $73,041 $72,124
Employer...............................
Approach 2--Percentage of Employers 201,016 976,349
Using Services Out of All Employers in
the State..............................
Approach 3--Percentage of Repeat 201,016 1,337,040
Employers Using Services within the
Previous 3 Years.......................
------------------------------------------------------------------------
The Departments estimated the one-time labor cost for the pilot
program to be incurred in 2016 and the annual labor cost to be incurred
in 2017 by taking the average of the low-end range of costs (i.e., if
all States were to choose the two lowest-cost approaches) and the high-
end range of costs (i.e., if all States were to choose the two highest-
cost approaches). If all States chose the two lowest-cost approaches
(i.e., Approaches 1 and 2), the one-time cost to the States would be
$274,057 ($73,041 + $201,016). If all States chose the two highest-cost
approaches (i.e., Approaches 2 and 3), the one-time cost to the States
would be $402,032 ($201,016 + $201,016). We took the average of this
range to estimate the one-time cost of the pilot program of $338,045 to
be incurred in 2016. We repeated this calculation to estimate the
annual cost for the pilot program. If all States chose the two lowest-
cost approaches, the annual cost to the States would be $1.0 million
($1,048,473) ($72,124 + $976,349). If all States chose the two highest-
cost approaches, the annual cost to the States would be $2.0 million
($2,313,389) ($976,349 + $1,337,040). We took the average of this range
to estimate the annual cost of the pilot program of $1.7 million
($1,680,931) to be incurred in 2017. The sum of these calculations
results in a total 10-year cost of $2.0 million ($2,018,976), which is
equal to an average annual cost of $201,898 for the pilot program.
The Departments estimated the one-time labor cost for
implementation to be incurred in 2019 and the annual labor cost to be
incurred annually starting in 2020 by taking the average of the low-end
range of costs (i.e., if all States were to choose the lowest-cost
approach) and the high-end range of costs (i.e., if all States were to
choose the highest-cost approach). If all States chose the lowest-cost
approach (i.e., Approach 1), the one-time cost to the States would be
$73,041. If all States chose the highest-cost approach (i.e., Approach
2), the one-time cost to the States would be $201,016. We took the
average of this range to estimate the one-time cost of the program of
$137,029 to be incurred in 2019. We repeated this calculation to
estimate the annual cost for the program. If all States chose the
lowest-cost approach, the annual cost to the States would be $72,124.
If all States chose the highest-cost approach, the annual cost to the
States would be $1.3 million ($1,337,040). We took the average of this
range to estimate the annual cost of the program of $704,582 to be
incurred beginning in 2020. The sum of these calculations results in a
total 10-year cost of $4.4 million ($4,364,521), which is equal to an
average annual cost of $436,452 for the implementation.
The sum of the costs for the pilot program and the implementation
results in a total 10-year cost of $6.4 million ($6,383,497), which is
equal to an average annual cost of $638,350 for the implementation.
iii. Negotiation of Levels of Performance
WIOA sec. 116(b)(3) requires States to negotiate with DOL and ED
and agree on levels of performance for each performance indicator for
each core program every 2 years. States must establish expected levels
of performance for each of the six core programs in the submitted
Unified or Combined State Plan. Prior to approving the Unified or
Combined State Plan, however, DOL and ED must negotiate with the States
to agree on an adjusted performance level (referred to as a
``negotiated level of performance'' in Sec. 677.170(b) of these final
regulations). The negotiated level of performance must be incorporated
into the Unified or Combined Plan prior to its approval. The negotiated
levels of performance are based on factors including how the expected
levels compare to other States, the statistical
[[Page 55969]]
adjustment model, the extent to which the levels promote continuous
improvement, and the extent to which the levels will assist the State
in meeting its long-term performance goals. This negotiation of levels
of performance will result in recurring costs incurred by each core
program.
Costs will be incurred by entities at Federal, State, and local
levels to negotiate adjusted levels of performance. Specifically,
biennial labor costs will be incurred at the Federal, State, and local
levels for the DOL core programs, at the Federal and State levels for
the AEFLA program, and at the Federal and State levels for the VR
program.
Costs
At the Federal level for DOL core programs (see Exhibit 13), the
Departments estimated this labor cost by first multiplying the
estimated number of GS-14 level, Step 5 managers (1) by the time
required to negotiate levels of performance (8 hours) and by the hourly
compensation rate ($76.48/hour). We performed the same calculation for
GS-12 level, Step 5 management analysts (2 analysts at $54.43/hour for
8 hours each). We summed the labor cost for both categories to estimate
this biennial cost of $1,483. This calculation results in a total 10-
year cost of $7,414, which is equal to an average annual cost of $741.
At the State level for DOL core programs (see Exhibit 16), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State (1) by the time required to
negotiate levels of performance (8 hours) and by the hourly
compensation rate ($65.39/hour). We performed the same calculation for
office and administrative support staff members (2 staff members at
$30.57/hour for 8 hours each). We summed the labor cost for both
categories ($1,012) and multiplied the result by the number of States
(57). This calculation yields a biennial cost of $57,698. Over the 10-
year period, this calculation results in a total cost of $288,488,
which is equal to an average annual cost of $28,849.
At the local level for DOL core programs (see Exhibit 19), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per Local WDB (1) by the time required to
negotiate levels of performance (8 hours) and by the hourly
compensation rate ($63.63/hour). We performed the same calculation for
office and administrative support staff members (2 staff members at
$29.36/hour for 8 hours each). We summed the labor cost for both
categories ($979) and multiplied the result by the number of Local WDBs
(580), which results in a biennial cost of $567,704. This calculation
results in a total 10-year cost of $2.8 million ($2,838,520), which is
equal to an average annual cost of $283,852.
At the Federal level for the AEFLA programs (see Exhibit 14), the
Departments estimated this labor cost by first multiplying the
estimated number of GS-14 level, Step 5 managers (4) by the time
required to negotiate levels of performance (24 hours each) and by the
hourly compensation rate ($76.48/hour). We performed the same
calculation for GS-13 level, Step 5 social and community service
managers (4 managers at $64.71/hour for 24 hours each). We summed the
labor cost for both categories to estimate this biennial cost of
$13,554. Over the 10-year period, this calculation yields a total cost
of $67,771, which is equal to an average annual cost of $6,777.
At the State level for the AEFLA program (see Exhibit 17), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State (1) by the time required to
negotiate levels of performance (12 hours) and by the hourly
compensation rate ($65.39/hour). We repeated the calculation for social
and community service managers (1 manager at $54.21/hour for 12 hours).
We summed the labor cost for both categories ($1,435) and multiplied
the result by the number of States (57). This calculation results in a
biennial cost of $81,806. Over the 10-year period, this calculation
results in a total cost of $409,032, which is equal to an average
annual cost of $40,903.
At the Federal level for the VR program (see Exhibit 15), the
Departments estimated this biennial labor cost by first multiplying the
estimated number of GS-14 level, Step 5 managers (4) by the time
required to negotiate levels of performance (12 hours each) and by the
hourly compensation rate ($76.48/hour).\45\ The biennial labor cost of
$3,671 results in a total 10-year cost of $18,355, which is equal to an
average annual cost of $1,836.
---------------------------------------------------------------------------
\45\ Managers include data, VR program, State liaison, and unit
chief participation.
---------------------------------------------------------------------------
For State VR agencies (see Exhibit 18), the Departments estimated
the cost of negotiating levels of performance by first multiplying the
estimated number of managers per VR agency (1) by the time required to
negotiate adjusted levels of performance (12 hours) and by the hourly
compensation rate ($65.39/hour). We repeated the calculation for the
following occupational categories: social and community service
managers (2 managers at $54.21/hour for 12 hours each) and management
analysts (2 analysts at $45.88/hour for 12 hours each). We summed the
labor cost for the three categories ($3,187) and multiplied the result
by the number of VR agencies (80) to estimate this biennial cost as
$254,947. This calculation results in a 10-year cost of $1.3 million
($1,274,736), which is equal to an average annual cost of $127,474 over
the 10-year analysis period.
The sum of these calculations yields a biennial cost of $980,863
for individuals from the Federal, State, and local level for the DOL
core programs, from the Federal- and State-levels for the AEFLA
program, and from the Federal and State levels for the VR program to
negotiate levels of performance. This results in a total 10-year cost
of $4.9 million ($4,904,316), which is equal to an average annual cost
of $490,432.
iv. Running Statistical Adjustment Model To Adjust Levels of
Performance Based on Actual Economic Conditions and Characteristics of
Participants
WIOA sec. 116(b)(3) requires DOL, ED, and States to ensure that
negotiated levels of performance are adjusted using a statistical
adjustment model--developed and disseminated by DOL and ED--based on
the differences among States in (1) actual economic conditions
(including differences in unemployment rates and job losses or gains in
particular industries) and (2) the characteristics of participants when
they entered the relevant program (including indicators of poor work
history, lack of work experience, lack of education or occupational
skills attainment, dislocation from high-wage and high-benefit
employment, low levels of literacy or English proficiency, disability
status, homelessness, ex-offender status, and welfare dependency).
Regularly adjusting the levels of performance for each primary
performance indicator for each core program will result in annual costs
being incurred at the Federal, State, and local levels for the DOL core
programs, at the Federal level for the AEFLA program, and at the
Federal and State levels for the VR program to collect and update data
on participants. Furthermore, DOL will experience costs related to
annual licensing fees.
Costs
At the Federal level for DOL core programs (see Exhibit 13), the
Departments estimated this labor cost by first multiplying the
estimated number
[[Page 55970]]
of GS-14 level, Step 5 managers (1) by the time required to collect and
update data on the core programs' participants (250 hours) and by the
hourly compensation rate ($76.48/hour). We performed the same
calculation for GS-13 level, Step 5 computer systems analysts (2
analysts at $64.71/hour for 1,000 hours each). We summed the labor cost
for both categories to estimate this annual cost of $148,540, which
results in a total 10-year cost of $1.5 million ($1,485,400).\46\
---------------------------------------------------------------------------
\46\ For DOL programs, the Federal program will experience the
heaviest burden as ETA will produce all State and local calculations
and disseminate them to States and local areas.
---------------------------------------------------------------------------
The Departments estimated the annual licensing fee for DOL to be
$10,000, or a total cost of $100,000 over the 10-year analysis period.
At the State level for DOL core programs (see Exhibit 16), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State (1) by the time required to
collect and update data on the programs' participants (10 hours) and by
the hourly compensation rate ($65.39/hour). We performed the same
calculation for the following occupational categories: computer systems
analysts (2 analysts at $56.17/hour for 40 hours each) and office and
administrative support staff members (2 staff members at $30.57/hour
for 20 hours each). We summed the labor cost for the three categories
($6,370) and multiplied the result by the number of States (57) to
estimate this annual cost of $363,107. This result is equal to a total
10-year cost of $3.6 million ($3,631,071).
At the local level for DOL core programs (see Exhibit 19), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per Local WDB (1) by the time required to
collect and update data on the programs' participants (10 hours) and by
the hourly compensation rate ($63.63/hour). We performed the same
calculation for the following occupational categories: computer systems
analysts (2 analysts at $60.76/hour for 40 hours each) and office and
administrative support staff members (2 staff members at $29.36/hour
for 20 hours each). We summed the labor cost for both categories
($6,672) and multiplied the result by the number of Local WDBs (580).
The annual cost is estimated to be $3.9 million ($3,869,470), which
results in a 10-year total cost of $38.7 million ($38,694,700).
At the Federal level for the AEFLA program (see Exhibit 14), the
Departments estimated this labor cost by first multiplying the
estimated number of GS-14 level, Step 5 managers (2) by the time
required to provide Federal oversight and technical assistance (40
hours each) and by the hourly compensation rate ($76.48/hour). We
performed the same calculation for GS-12 level, Step 5 management
analysts (2 analysts at $54.43/hour for 80 hours each). We summed the
labor cost for both categories to estimate this annual cost of $14,827,
which results in a total 10-year cost of $148,272.
At the Federal level for the VR program (see Exhibit 15), the
Departments estimated this biennial labor cost by first multiplying the
estimated number of GS-14 level, Step 5 managers (2) by the time
required to collect and update data on its participants (52 hours each)
and by the hourly compensation rate ($76.48/hour).\47\ The Departments
repeated the calculation for GS-13 level, Step 5 database
administrators (2 administrators at $64.71/hour for 156 hours each). We
summed the annual labor cost for the two categories ($28,143), which
results in a total 10-year cost of $281,434.
---------------------------------------------------------------------------
\47\ Managers will include data unit database administrative
staff and management staff.
---------------------------------------------------------------------------
For State VR agencies (see Exhibit 18), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency (1) by the time required to collect and update data on its
participants (4 hours) and by the hourly compensation rate ($65.39/
hour). We repeated the calculation for the following occupational
categories: Database administrators (1 administrator at $57.02/hour for
20 hours), computer systems analysts (1 analyst at $56.17/hour for 4
hours), and management analysts (1 analyst at $45.88/hour for 4 hours).
We summed the labor cost for the four categories ($1,810) and
multiplied the result by the number of VR agencies (80) to estimate
this annual cost as $144,813, which results in a total 10-year cost of
$1.4 million ($1,448,128).
The sum of these calculations yields an annual cost of $4.6 million
($4,578,901) for individuals from the Federal, State, and local levels
for the DOL core programs, the Federal level for the AEFLA program, and
the Federal and State levels for the VR program to collect and update
data on their participants. This is equal to a 10-year total cost of
$45.8 million ($45,789,005).
v. Additional State Performance Accountability Indicators (Beyond
Required Performance Indicators)
Under WIOA sec. 116(b), States must include levels of performance
for the six primary performance indicators in their Unified or Combined
State Plans. In addition, WIOA sec. 116(b)(2)(B) permits States to
identify in the State Plan additional performance accountability
indicators for the core programs beyond the six required primary
indicators. Although States had similar latitude under WIA, no State
has ever established additional performance indicators. Therefore, the
Departments do not expect any State to establish additional performance
accountability indicators under WIOA. If a State chooses to do so,
however, we have conservatively calculated a burden estimate based on
five States establishing additional indicators of performance. The
costs associated with this activity are those incurred by State-level
DOL core programs, State- and local-level AEFLA programs, and State VR
agencies having to collect additional data to report on the additional
performance indicators in the first year of the Final Rule.
Costs
At the State level for DOL core programs (see Exhibit 31), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State providing additional data (1) by
the time required to collect additional data (16 hours) and by the
hourly compensation rate ($65.39/hour). We performed the same
calculation for computer systems analysts (3 analysts at $56.17/hour
for 40 hours each) and office and administrative support staff members
(1 staff member at $30.57/hour for 36 hours). We summed the labor cost
for all three categories ($8,887) and multiplied the result by the
number of States providing additional data (5) to estimate this one-
time cost of $44,436. Over the 10-year period, this calculation yields
an average annual cost of $4,444.
At the State level for the AEFLA program (see Exhibit 32), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State providing additional data (1) by
the time required to collect additional data (8 hours) and by the
hourly compensation rate ($65.39/hour). We repeated the calculation for
the following occupational categories: Database administrators (1
administrator at $57.02/hour for 8 hours), computer systems analysts (1
analyst at $56.17/
[[Page 55971]]
hour for 8 hours), and social and community service managers (3
managers at $54.21/hour for 8 hours each). We summed the labor cost for
all four categories ($2,730) and multiplied the result by the number of
States providing additional data (5) to estimate this one-time cost of
$13,648.\48\ Over the 10-year period, this calculation yields an
average annual cost of $1,365.
---------------------------------------------------------------------------
\48\ This provision will be a joint effort between State and
local AEFLA staff.
---------------------------------------------------------------------------
At the local level for the AEFLA program (see Exhibit 34), the
Departments estimated this cost by first multiplying the estimated
number of managers per local AEFLA provider proving additional data (1)
by the time required to collect additional data (4 hours) and by the
hourly compensation rate ($63.63/hour). We performed the same
calculation for database administrators (1 administrator at $59.60/hour
for 4 hours). We summed the labor cost for the two occupational
categories ($493) and multiplied the result by the number of local
AEFLA providers providing additional data (200) to estimate this one-
time cost of $98,584. Over the 10-year period, this calculation yields
an average annual cost of $9,858.
For State VR agencies (see Exhibit 33), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency providing additional data (1) by the time required to collect
additional data (8 hours) and by the hourly compensation rate ($65.39/
hour). We repeated the calculation for the following occupational
categories: Database administrators (1 administrator at $57.02/hour for
8 hours), computer systems analysts (1 analyst at $56.17/hour for 8
hours), and social and community service managers (3 managers at
$54.21/hour for 8 hours each). We summed the labor cost for the four
categories ($2,730) and multiplied the result by the number of VR
agencies providing additional data (5) to estimate this one-time cost
as $13,648. Over the 10-year period, this calculation yields an average
annual cost of $1,365.
The sum of these calculations yields a total first-year cost of
$170,317 from the State-level DOL core programs, State- and local-level
AEFLA programs, and State VR agencies to collect additional data. This
is equal to an average annual cost of $17,032.
vi. Technical Assistance to States
The cost of this activity reflects the Federal cost for procuring a
consultant to provide technical assistance to States in the collection
of data to comply with the new performance accountability requirements
of WIOA. The cost for this activity was not included in the NPRM,
because the FY 2017 budget request was in the process of being
developed. For FY 2017, the Administration requested funds to help meet
WIOA performance requirements through improved data infrastructure
along with $1 million for ED to provide technical assistance to help
AEFLA grantees comply with the new requirements, including the
collection of new WIOA data elements. The total 10-year cost
(undiscounted) for this activity represents a one-time Federal
consultant cost of $1 million in the second year of WIOA.
Costs
At the Federal level for the AEFLA program (see Exhibit 14), the
Departments estimated the cost related to providing technical
assistance to States to comply with the new WIOA performance
accountability requirements, including the collection and reporting of
new data as a one-time consultant cost ($1,000,000) in the second year
of the rule. Over the 10-year period, this calculation yields an
average annual cost of $100,000.
vii. Performance Reports
Under WIOA sec. 116(d)(6), States must make available (including by
electronic means) performance reports for local areas and for ETPs
under title I of WIOA. WIA required DOL to make State performance
reports publicly available but did not require States, themselves, to
make their performance reports available (see WIA sec. 136(d)(3)).
Section 116(d)(1) of WIOA requires the Departments to provide a
performance reporting template to be used by States, Local WDBs, and
ETPs for the performance reports required in WIOA secs. 116(d)(2)
through (4). This Final Rule requires States to submit quarterly
participant and performance data reports for each of the DOL core
programs. Because DOL has required quarterly reporting for its programs
prior to WIOA, the frequency of the reporting requirement should not
result in incremental cost increases for any of the DOL core programs;
rather, the Federal costs associated with this rule's performance
reporting requirements will be associated with the implementation of
the new performance reporting template. In addition, DOL State-level
costs will be associated with developing, updating, and submitting ETP
reports because while ETP reporting was required under WIA, many States
received waivers allowing them not to make the submissions. Under WIOA,
DOL does not expect to allow waivers for this reporting requirement.
The State-level AEFLA programs reported annually under WIA, while
local-level AEFLA programs reported annually to States under WIA, and
both will continue to do so under WIOA. AEFLA programs will incur costs
to collect, analyze, and report performance data. Under WIA, VR
agencies submitted annual performance data on closed service records
through the RSA-911 Case Service Report, and under WIOA, they will
incur costs to transition to reporting on open and closed service
records on a quarterly basis.
The DOL and ED, for purposes of the DOL core programs and the AEFLA
program, will incur annual Federal level costs to collect, analyze, and
report performance data. Furthermore, both Federal agencies will
experience annual costs for software and IT systems. The Departments do
not anticipate an increase in annual Federal-level costs for the VR
program compared to the baseline. However, ED will incur a one-time
software and IT systems cost to support its ability to compile
quarterly data reported by VR agencies into annual reports required
under WIOA. At the State level for the DOL core programs, the AEFLA
program, and the VR program, as well as at the local level for the
AEFLA program, there will be annual costs to collect, analyze, and
report performance data.
Costs
At the Federal level for DOL core programs (see Exhibit 35), the
Departments estimated this labor cost by first multiplying the
estimated average number of GS-14, Step 5 managers (1) by the time
required to implement and review the new performance reporting template
(8 hours) and by the hourly compensation rate ($76.48/hour). We
performed the same calculation for GS-13, Step 5 computer systems
analysts (1 analyst at $64.71/hour for 5 hours) and GS-12, Step 5
management analysts (1 analyst at $54.43/hour for 16 hours). We summed
the labor cost for all three categories to estimate an annual cost of
$1,806, which results in a total cost of $18,063 over the 10-year
analysis period.
The Departments estimated the annual software and IT systems cost
at the Federal level for the DOL core programs to be $250,000, which
yields a total cost of $2.5 million ($2,500,000) over the 10-year
analysis period.
At the State level for the DOL core programs (see Exhibit 38), the
Departments estimated this labor cost by first multiplying the
estimated average number of managers per State (1) by the
[[Page 55972]]
time required to develop, update, and submit ETP reports (8 hours) and
by the hourly compensation rate ($65.39/hour). We performed the same
calculation for the following occupational categories: Computer system
analysts (1 analyst at $56.17/hour for 40 hours), management analysts
(1 analyst at $45.88/hour for 60 hours), and office and administrative
staff members (4 staff members at $30.57/hour for 20 hours each). We
summed the labor cost for all four categories ($7,968) and multiplied
the result by the number of States (57) to estimate an annual cost of
$454,194, which results in a total cost of $4.5 million ($4,541,942)
over the 10-year analysis period.
At the Federal level for the AEFLA program (see Exhibit 36), the
Departments estimated this labor cost by first multiplying the
estimated number of GS-14, Step 5 managers (1) by the time required to
collect, analyze, and report performance data (8 hours) and by the
hourly compensation rate ($76.48/hour). We repeated the calculation for
GS-13, Step 5 social and community service managers (1 manager at
$64.71/hour for 16 hours) and GS-13, Step 5 database administrators (1
administrator at $64.71/hour for 40 hours). We summed the labor cost
for all three categories to estimate an annual cost of $4,236. Over the
10-year period, this calculation yields a total cost of $42,356.
The Departments estimated a one-time software and IT systems cost
at the Federal level for the AEFLA program to be $5 million for
development, modernization, and enhancement. Over the 10-year period,
this calculation yields an average annual cost of $500,000.
The Departments also estimated the annual software and IT systems
cost for the AEFLA program at the Federal level to be $250,000 to
maintain the steady state. Over the 10-year period, this calculation
yields a cost of $2.5 million ($2,500,000).
At the State level for the AEFLA program (see Exhibit 39), the
Departments estimated this labor cost by first multiplying the
estimated average number of managers per State (1) by the time required
to collect, analyze, and report performance data (40 hours) and by the
hourly compensation rate ($65.39/hour). We repeated the calculation for
the following occupational categories: Computer systems analysts (1
analyst at $56.17/hour for 40 hours), social and community service
managers (3 managers at $54.21/hour for 40 hours each), and database
administrators (1 administrator at $57.02/hour for 40 hours). We summed
the labor cost for all four categories ($13,648) and multiplied the
result by the number of States (57) to estimate an annual cost of
$777,959. Over the 10-year period, this calculation yields a total cost
of $7.8 million ($7,779,588).\49\
---------------------------------------------------------------------------
\49\ This provision will be a joint effort between State and
local AEFLA staff.
---------------------------------------------------------------------------
At the local level for the AEFLA program (see Exhibit 41), the
Departments estimated this cost by first multiplying the estimated
number of managers per local AEFLA provider (1) by the time required to
collect, analyze, and report performance data (8 hours) and by the
hourly compensation rate ($63.63/hour). We performed the same
calculation for social and community service managers (1 manager at
$61.01/hour for 8 hours) and database administrators (1 administrator
at $59.60/hour for 8 hours). We summed the labor cost for all three
occupational categories ($1,474) and multiplied the result by the
number of local AEFLA providers (2,396) to estimate an annual cost of
$3.5 million ($3,531,512). Over the 10-year period, this calculation
yields a total cost of $35.3 million ($35,315,123).
At the Federal level for the VR program (see Exhibit 37), the
Departments estimated a one-time software and IT systems cost to be
$68,925 to support ED's ability to compile quarterly data reported by
VR agencies into annual reports required under WIOA. Over the 10-year
period, this calculation yields an average annual cost of $6,893.
For State VR agencies (see Exhibit 40), the Departments estimated
this cost by first multiplying the estimated number of managers per VR
agency (1) by the time required to review and verify the annual
performance report that RSA will assemble from the quarterly RSA-911
data that the States have previously reported (5 hours) and by the
hourly compensation rate ($65.39/hour). We repeated the calculation for
the following occupational categories: Computer systems analysts (1
analyst at $56.17/hour for 5 hours), social and community service
managers (2 managers at $54.21/hour for 10 hours each), and database
administrators (1 administrator at $57.02/hour for 25 hours). We summed
the labor cost for all four categories ($3,118) and multiplied the
result by the number of VR agencies (80) to estimate an annual cost as
$249,400, which results in a total 10-year cost of $2.5 million
($2,494,000).\50\
---------------------------------------------------------------------------
\50\ Costs for the Federal RSA program are not estimated because
Federal costs for report generation will not be in excess of current
RSA-911 report costs.
---------------------------------------------------------------------------
For State VR agencies (see Exhibit 40), the Departments estimated
this cost by first multiplying the estimated number of staff trainers
per VR agency (1) by the time required to train staff on new data
collection (6 hours) and by the hourly compensation rate ($54.21/hour).
We repeated the calculation for rehabilitation counselors (62
counselors at $36.66/hour for 3 hours each). We summed the labor cost
for both categories ($7,144) and multiplied the result by the number of
VR agencies (80) to estimate a one-time cost of $571,522, which results
in an average annual cost of $57,152.
For State VR agencies (see Exhibit 40), the Departments estimated
this cost by first multiplying the estimated number of rehabilitation
counselors (62) by the time required to collect data in the first year
(58 hours) and by the hourly compensation rate ($36.66/hour). We summed
the labor cost ($131,829) and multiplied the result by the number of VR
agencies (80) to estimate a first year cost of $10.5 million
($10,546,349). We then multiplied the estimated number of
rehabilitation counselors (62) by the time required to collect data in
the second and subsequent years (15 hours) and by the hourly
compensation rate ($36.66/hour). We summed the labor cost ($34,094) and
multiplied the result by the number of VR agencies (80) to estimate an
annual cost of $2.7 million ($2,727,504). This results in a total 10-
year cost of $35.1 million ($35,093,885), which is equivalent to an
average annual cost of $3.5 million ($3,509,388).
The sum of these calculations yields an average annual cost of $9.6
million ($9,592,540) for individuals from the Federal- and State-level
DOL core programs, the Federal-, State-, and local-level AEFLA
programs, and the Federal- and State-level VR agencies, that will incur
costs related to the performance reports. This is equal to a total 10-
year cost of $95.9 million ($95,925,404).
viii. Obtain UI Wage Data
WIOA core programs will need access to quarterly State UI wage data
to efficiently identify exited participants who are employed in the
second and fourth full quarters after exit to report on the employment
performance indicators. These core programs also will need access to
the State quarterly UI wage data to identify the individual quarterly
wages in the second full quarter to calculate the median wage
performance measure. Prior to WIOA, the AEFLA program obtained
quarterly UI wage data on its participants and DOL's public workforce
systems had costs associated with UI wage matches. This will be the
first time, however, that
[[Page 55973]]
State VR agencies will be required to obtain and report UI wage data.
VR programs will need to contribute a reasonable and proportional share
of the costs for maintaining and using the State UI wage system and
interstate wage information systems, on a per individual, per query,
monthly, quarterly, or annual basis.
Costs
For State VR agencies (Exhibit 18), the Departments estimated this
cost by first multiplying the data query cost for large VR agencies
($20,000) by the number of large VR agencies (10). We then multiplied
the data query cost for medium VR agencies ($8,000) by the number of
medium VR agencies (42). Finally, we multiplied the data query cost for
small VR agencies ($4,000) by the number of small VR agencies (28). We
summed the annual data query cost for all VR agencies ($648,000), which
results in a total 10-year cost of $6.5 million ($6,480,000).\51\
---------------------------------------------------------------------------
\51\ Costs for the Federal RSA program are not estimated because
Federal costs for report generation will not be in excess of current
RSA-911 report costs.
---------------------------------------------------------------------------
ix. Data Analytic Software and Training
VR agencies also will require data analytic and reporting software
to extract the information required from their data collection systems
necessary to match individual cases to the employment and quarterly
earnings data contained in the UI wage data system. DOL and AEFLA,
which have the software and perform the analytics, will experience no
incremental costs related to this activity. This software also will be
required to import the wage and earnings information to their
information collection and reporting systems, and complete the
calculations necessary to report on the second quarter employment and
median-age performance indicators, and on the fourth-quarter employment
indicator.
Costs
For State VR agencies (see Exhibit 18), the Departments estimated
this cost by first multiplying the software and IT systems cost for
large VR agencies ($25,000) by the number of large VR agencies (10). We
then multiplied the software and IT systems cost for medium VR agencies
($15,000) by the number of medium VR agencies (42). Finally, we
multiplied the software and IT systems cost for small VR agencies
($10,000) by the number of small VR agencies (28). We summed the one-
time software and IT systems cost for all VR agencies, resulting in a
total one-time cost of $1.2 million ($1,160,000), which is equivalent
to an average annual cost of $116,000.\52\
---------------------------------------------------------------------------
\52\ Costs for the Federal RSA program are not estimated because
Federal costs for report generation will not be in excess of older
RSA-911 report costs.
---------------------------------------------------------------------------
The sum of the costs for the Performance Accountability System,
which includes the costs to:
Develop and update State performance accountability
systems (which includes the cost to align technology and data systems
across one-stop partner programs);
Implement measures for data collection and reporting on
the effectiveness in serving employers;
Negotiate levels of performance;
Run a statistical adjustment model to adjust levels of
performance;
Obtain data to report on any additional State performance
accountability indicators beyond required performance indicators;
Provide technical assistance to States;
Develop a performance report template;
Develop, update and submit ETP reports;
Collect, analyze, and report performance data; and provide
training;
Collect UI wage data; and
Purchase data analytic software and provide training.
This calculation results in a 10-year total cost of $589.0 million
($588,988,950), which is equal to an average annual cost of $58.9
million ($58,898,895).
d. State Evaluation Responsibilities
WIOA sec. 116(e)(1) requires States, in coordination with Local
WDBs and agencies responsible for administering core programs, to
conduct ongoing evaluations of title I activities carried out in the
State under the core programs. Such program evaluations were required
under WIA; however, WIOA specifies that SWAs and other State agencies
must coordinate the evaluations with the evaluation and research
conducted by the Secretary of Labor or the Secretary of Education under
the provisions of Federal law identified in WIOA secs. 169 and
242(c)(2)(D); secs. 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 the VR
program); 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)).
Additionally, WIOA sec. 116(e)(4) directs that SWAs and other State
agencies must, to the extent practicable, cooperate in the evaluations
(including related research projects) conducted under the provisions of
Federal law identified in the preceding sentence. Specifically, such
cooperation must include the provision of data and responses to
surveys, as well as allowing timely site visits. These directives
regarding coordination within States as well as coordination with and
cooperation in Federal evaluations were not present in WIA. Finally,
WIOA sec. 116(e)(3) requires States to prepare and submit annually to
the State and Local WDBs within a State, and make available to the
public (including by electronic means), any reports containing the
results of evaluations conducted by the State under this section. Under
WIA sec. 136(e)(3), States were required to prepare and submit
periodically evaluation reports to the State and Local WDBs within the
State and to DOL as part of their annual report, but were not required
to make them electronically available to the public.
Requirements related to Federal coordination to support State
evaluations will be new to the AEFLA and VR programs under WIOA;
however, DOL core programs had evaluation-related requirements under
WIA, as discussed above.
DOL will incur Federal-level costs for SWA evaluation activities
under sec. 116(e) of WIOA. The Federal-level AEFLA and VR programs will
incur costs for providing technical assistance and promoting State
AEFLA and VR agency participation, respectively, in the coordination
process (which may include the design and development of State
evaluation activities). All Federal programs will incur costs for
technical assistance, monitoring, and dissemination. Costs will be
incurred by affected entities to coordinate any evaluations of
activities carried out in the States and in cooperating in the
provision of various forms of data for Federal evaluations. The
Departments estimate that implementing these requirements will generate
annual labor costs at the Federal and State level for DOL and ED
programs. In addition, there will be some marginal software and IT
systems and consultant costs for State-level DOL programs.
i. Costs
At the Federal level for DOL core programs (see Exhibit 42), the
Departments estimated this labor cost by first multiplying the
estimated number of GS-14, Step 5 managers per State (2) by the time
required to support State evaluation activities (25 hours each) and by
the hourly compensation rate ($76.48/hour). We performed the same
[[Page 55974]]
calculation for GS-13, Step 5 computer system analysts (1 analyst at
$64.71/hour for 3 hours) and GS-12, Step 5 management analysts (2
analysts at $54.43/hour for 30 hours each). We summed the labor cost
for all three categories ($7,284) to estimate the costs this entity
will incur annually. This is equivalent to a 10-year cost of $72,839.
At the State level for DOL core programs (see Exhibit 45), the
Departments estimated this labor cost by first multiplying the
estimated number of computer systems analysts per State (2) by the time
required to coordinate any evaluations of activities carried out in the
States and to cooperate in the provision of various forms of data for
Federal evaluations (15 hours each) and by the hourly compensation rate
($56.17/hour). We performed the same calculation for the following
occupational categories: Social and community managers (1 manager at
$54.21/hour for 20 hours), management analysts (1 analyst at $45.88/
hour for 10 hours), and office and administrative staff members (1
staff member at $30.57/hour for 10 hours). We summed the labor cost for
all four categories ($3,534) and multiplied the result by the number of
States (57) to estimate an annual cost of $201,427. This is equivalent
to a 10-year cost of $2.0 million ($2,014,266).
At the State level for DOL core programs, the Departments estimated
the software and IT systems costs. We first multiplied the software and
IT systems cost ($10,000) by the number of States (57) to estimate an
annual cost of $570,000. This estimate represents the cost associated
with this Final Rule beyond the IT expenditures currently incurred by
SWAs. This is equivalent to a 10-year cost of $5.7 million
($5,700,000).
At the State level for DOL core programs, the Departments estimated
the consultant costs. We first multiplied the consultant costs
($21,400) by the number of States (57) to estimate an annual cost of
$1.2 million ($1,219,800). This is equivalent to a 10-year cost of
$12.2 million ($12,198,000).
At the Federal level for the AEFLA program (see Exhibit 43), the
Departments estimated the labor cost by first multiplying the estimated
number of GS-14, Step 5 managers per State (4) by the time required to
support State adult education agency participation in the coordination
process (10 hours each) and the hourly compensation rate ($76.48/hour).
We performed the same calculation for the following occupational
categories: GS-13, Step 5 computer systems analysts (1 analyst at
$64.71/hour for 5 hours), and GS-12, Step 5 management analysts (2
analysts at $54.43/hour for 30 hours each). We summed the labor cost
for all three categories to estimate an annual cost of $6,649. This is
equivalent to a 10-year cost of $66,486.
At the State level for the AEFLA program (see Exhibit 46), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State (1) by the time required to
coordinate any evaluations of activities carried out in the States and
in cooperating in the provision of various forms of data for Federal
evaluations (10 hours) and by the hourly compensation rate ($65.39/
hour). We performed the same calculation for the following occupational
categories: Computer systems analysts (1 analyst at $56.17/hour for 20
hours), social and community managers (1 manager at $54.21/hour for 10
hours), and management analysts (1 analyst at $45.88/hour for 20
hours). We summed the labor cost for all four categories ($3,237) and
multiplied the result by the number of States (57) to estimate an
annual cost of $184,509. This is equivalent to a 10-year cost of $1.8
million ($1,845,090).
At the Federal level for the VR program (see Exhibit 44), the
Departments estimated the labor cost by first multiplying the estimated
number of GS-14, Step 5 managers per State (2) by the time required to
support State VR agency participation and coordination in carrying out
State evaluations (5 hours each) and the hourly compensation rate
($76.48/hour). We performed the same calculation for the following
occupational categories: GS-13, Step 5 social and community service
managers (2 managers at $64.71/hour for 10 hours each) and GS-12, Step
5 management analysts (2 analysts at $54.43/hour for 15 hours each). We
summed the labor cost for all three categories to estimate an annual
cost of $3,692. This is equivalent to a 10-year cost of $36,919.
At the State level for the VR program (see Exhibit 47), the
Departments estimated this labor cost by first multiplying the
estimated number of managers per State (1) by the time required to
coordinate any evaluations of activities carried out in the States and
for cooperating in the provision of various forms of data for Federal
evaluations (1 hour) and by the hourly compensation rate ($65.39/hour).
We performed the same calculation for the following occupational
categories: Computer systems analysts (1 analyst at $56.17/hour for 13
hours), social and community service managers (1 manager at $54.21/hour
for 5 hours), management analysts (1 analyst at $45.88/hour for 5
hours), and office and administrative support staff (1 staff member at
$30.57/hour for 2 hours). We summed the labor cost for all five
categories ($1,357) and multiplied the result by the number of VR
agencies (80) to estimate an annual cost of $108,575. This is
equivalent to a 10-year cost of $1.1 million ($1,085,752).
The sum of these calculations yields a total 10-year cost of $23.0
million ($23,019,352) resulting in an average annual cost of $2.3
million ($2,301,935), for individuals from the Federal- and State-level
DOL, AEFLA and VR programs related to State evaluation
responsibilities.
Relative to the baseline of practice under WIA, the four provisions
of the WIOA Final Rule described above are expected to result in costs
of $626.8 million ($626,780,605) over the 10-year period. This is
equivalent to an average annual cost of $62.7 million ($62,678,060).
See section V.A.7 (Summary of Analysis) for a summary of these costs.
7. Summary of Analysis
Exhibit 50 summarizes the estimated undiscounted average annual
costs for each provision of this Final Rule. The exhibit also presents
a high-level qualitative description of the benefits resulting from
full WIOA implementation for each rule provision. These qualitative
forecasts are predicated on program experience and are outcomes for
which data will become available only after implementation. The
Departments estimate the average annual cost of this Final Rule over
the 10-year period of analysis to be $62.7 million. The largest
contributor to this cost is the provision related to the development
and updating of State performance accountability systems, which is
estimated at $42.7 million per year. The next largest cost results from
performance reports at an estimated $9.6 million per year, followed by
the average cost of adjusting performance based on actual economic
conditions and characteristics of participants at an estimated $4.6
million per year.
[[Page 55975]]
Exhibit 50--Estimated Costs of the Departments of Education and Labor Final Rule by Provision
----------------------------------------------------------------------------------------------------------------
Average
Provision annual cost Percent of Qualitative benefit highlights
(undiscounted) total cost
----------------------------------------------------------------------------------------------------------------
(a) Time to Review the New Rule............ $330,562 0.53 General requirement.
(b)(i) Unified or Combined State Plans-- 120,202 0.19 Enhanced data for management
Expanded Content Requirements. decision-making and policy
integration; avoided program
service duplication; enhanced
internal State planning; avoids
``silos'' and service
duplications; more efficient use
of public resources.
(b)(ii) Unified or Combined State Plans-- 186,016 0.30
Biennial Development and Modification
Process.
(b)(iii) Unified or Combined Plans-- 840,450 1.34
Coordinating Submission of State Plans.
(c)(i) Development and Updating of State 42,717,641 68.15 Clear articulation of expectations
Performance Accountability Systems. and outcomes for accountability
purposes; improved policy and
management decision-making from
performance measure data; better
management and policy decisions
using outcome data; improved
service and placements; more
accountability.
1.02%
(c)(ii) Effectiveness of Serving Employers. 638,350 1.02
(c)(iii) Negotiation of Levels of 490,432 0.78
Performance.
(c)(iv) Running Statistical Adjustment 4,578,901 7.31
Model to Adjust Levels of Performance
Based on Actual Economic Conditions and
Characteristics of Participants.
(c)(v) Additional State Performance 17,032 0.03
Accountability Indicators (Beyond Required
Performance Indicators).
(c)(vi) Technical Assistance to States..... 100,000 0.16
(c)(vii) Performance Reports, including 9,592,540 15.30
collection of new data.
(c)(viii) Obtain UI Wage Data.............. 648,000 1.03
(c)(ix) Data Analytic Software and Training 116,000 0.19
(d) State Evaluation Responsibilities...... 2,301,935 3.67 Improved service delivery and
customer service; enhanced policy-
making and system building; more
accountability.
--------------------------------
Total Costs............................ 62,678,060 100.00 ...................................
----------------------------------------------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
Exhibit 51 summarizes the first-year costs for each provision of
this Final Rule. The Departments estimated the total first-year cost of
this Final Rule to be $135.5 million. The largest contributor to the
first-year cost is the provision related to developing and updating
State performance accountability systems at $97.5 million. The next
largest first-year cost results from performance reports, amounting to
$21.7 million, followed by adjusting levels of performance based on
actual economic conditions and characteristics at $4.6 million.
Exhibit 51--Estimated First-Year Costs of the Final Rule by Provision
------------------------------------------------------------------------
Percent of
Provision Total first- total first-
year cost year cost
------------------------------------------------------------------------
(a) Time to Review the New Rule......... $3,305,615 2.44
(b)(i) Unified or Combined State Plans-- 1,202,022 0.89
Expanded Content Requirements..........
(b)(ii) Unified or Combined State Plans-- 0 0.00
Biennial Development and Modification
Process................................
(b)(iii) Unified or Combined Plans-- 1,680,901 1.24
Coordinating Submission of State Plans.
(c)(i) Development and Updating of State 97,467,521 71.91
Performance Accountability Systems.....
(c)(ii) Effectiveness of Serving 338,045 0.25
Employers..............................
(c)(iii) Negotiation of Levels of 980,863 0.72
Performance............................
(c)(iv) Running Statistical Adjustment 4,578,901 3.38
to Adjust Levels of Performance Based
on Actual Economic Conditions and
Characteristics of Participants........
(c)(v) Additional State Performance 170,317 0.13
Accountability Indicators (Beyond
Required Performance Indicators).......
(c)(vi) Technical Assistance to States.. 0 0.00
(c)(vii) Performance Reports, including 21,705,903 16.01
collection of new data.................
(c)(viii) Obtain UI Wage Data........... 648,000 0.48
(c)(ix) Data Analytic Software and 1,160,000 0.86
Training...............................
(d) State Evaluation Responsibilities... 2,301,935 1.70
-------------------------------
Total Cost.......................... 135,540,023 100.00
------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
[[Page 55976]]
Exhibit 52 summarizes the estimated annual and total costs of this
Final Rule. The estimated total (undiscounted) cost of the rule sums to
$626.8 million over the 10-year analysis period, which is equal to an
average annual cost of $62.7 million per year. In total, the estimated
10-year discounted costs of the Final Rule range from $495.2 million to
$558.9 million (with 7- and 3-percent discounting, respectively).
To contextualize the cost of this Final Rule, the average annual
budget for WIA implementation over FY 2012-2014 for the Departments of
Labor and Education combined was $7.2 billion.\53\ Thus, the annual
additional cost of implementing this Final Rule is 0.9 to 1 percent of
the average annual WIA budget for FY 2012-2014 (with 3-percent and 7-
percent discounting, respectively). In response to public comments, the
Departments 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.\54\ The
annual additional cost of implementing the Final Rule is between 32.7
percent and 35.2 percent of the average annual administrative and
transition funds budget (with 3-percent and 7-percent discounting,
respectively).
---------------------------------------------------------------------------
\53\ 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 Departments 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 adult and
dislocated worker activities, the Departments summed the program
year's July funding with the previous program year's October funding
to calculate the amount of funding per fiscal year. The youth
activities funding is obligated to States in April and therefore
corresponds to the fiscal year in which it is obligated. We 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 Departments
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. We
inflated the funding for each fiscal year, so that the average
annual WIA budget is in 2015 dollars.
U.S. Department of Education. (2016). Department of Education
Budget Tables. Retrieved from: http://www2.ed.gov/about/overview/budget/tables.html?src=ct. The Departments used data from the
following files to estimate the average annual WIA budget:
Congressional Action (FYs 2012, 2013, and 2014). The budget was
updated to 2015 dollars.
\54\ Training and Employment Guidance Letter (TEGL) 34-14, TEGL
12-14, TEGL 24-14. The Departments inflated the funding for each
program year.
Exhibit 52--Estimated Monetized Costs of Departments of Labor and
Education Final Rule
[2015 dollars]
------------------------------------------------------------------------
------------------------------------------------------------------------
2016.................................................... $135,540,023
2017.................................................... 77,389,018
2018.................................................... 64,038,222
2019.................................................... 52,945,116
2020.................................................... 59,249,908
2021.................................................... 45,312,669
2022.................................................... 50,789,374
2023.................................................... 45,312,669
2024.................................................... 50,890,937
2025.................................................... 45,312,669
Undiscounted 10-Year Total.............................. 626,780,605
10-Year Total with 3% Discounting....................... 558,940,877
10-Year Total with 7% Discounting....................... 495,158,156
10-Year Average......................................... 62,678,060
Annualized with 3% Discounting.......................... 65,524,922
Annualized with 7% Discounting.......................... 70,499,382
------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
Regulatory Benefits
The Departments were unable to quantify several important benefits
to society due to data limitations and a lack of existing data or
evaluation findings on particular items.\55\ These include increased
employment opportunities for unemployed or underemployed U.S. workers,
enhanced ETP process, and evaluation of State programs. Below, we
describe qualitatively the benefits related to this Final Rule.
---------------------------------------------------------------------------
\55\ The Departments were able to estimate many but not all of
the inputs that would be necessary to quantify a benefit to DOL
programs that could result from this Final Rule if affected entities
choose to integrate DOL program participant records. This activity
is highly encouraged but not required by this Final Rule; hence, one
of the key inputs to the benefits calculation (the number of
entities choosing to integrate) is highly uncertain. Given the
inability to reliably estimate this input, no quantitative estimate
of cost savings is presented; instead these ancillary benefits are
discussed at the end of this benefits section.
---------------------------------------------------------------------------
The Departments provide a qualitative description of the
anticipated WIOA benefits below. The anticipated WIOA benefits are the
results of expanded services to a larger number of people and/or
improving services that are already being offered under WIA. These
qualitative forecasts are predicated on program experience and are
outcomes for which data will become available only after
implementation. The studies discussed below are largely based on
programs and their existing requirements under WIA and therefore they
capture the benefits associated with WIA. However, they still can
illustrate the types of benefits that are expected from this Final
Rule.
Increased alignment of training with local labor markets through
economic, education, and workforce data. Under WIOA, more substantial
economic, education, and workforce data are required to be integrated
into the State Plan than was required under WIA for ED programs. Under
WIA, economic, education, and workforce data were not included in State
Plans for ED programs.\56\ Hence, it was possible that some program
participants were being trained for jobs with no local demand at the
time of the participants' exit from the training program, even though
the demand for the job might have existed elsewhere. Under WIOA,
economic, education, and workforce data will be shared by DOL and ED
via the core programs in the State Plan. Relative to WIA, the use of
economic, education, and workforce data are expected to result in
training that is better aligned with local labor market demand (i.e.,
the likelihood that more participants are learning skills that are
applicable to jobs for which there will be local demand is increased).
---------------------------------------------------------------------------
\56\ DOL already included economic, education, and workforce
data in the State Plans under WIA, so DOL programs will not
experience as much in incremental costs associated with this
particular requirement as will the AEFLA and VR programs.
---------------------------------------------------------------------------
This is expected to result in three potential benefits: (1)
Improved employment outcomes in the local area, (2) higher wages, and
(3) reduced costs associated with returning training participants.
First, because training participants will primarily be trained for jobs
with local demand, these individuals will have an increased likelihood
of obtaining employment following their training due to their
applicable skill set and the increased availability of local labor
market positions. This could minimize the duration of unemployment in
some local areas. Second, these individuals could be paid a higher wage
because they will possess job-specific training for jobs in demand in
the local area. Finally, under WIA, if an individual was not employed
after exiting a training program, he or she was able to participate in
some additional training programs, which resulted in greater costs for
those training providers and one-stop partners. Under WIOA, the
Departments expect costs for returning participants could decrease due
to some participants' increased likelihood of obtaining employment.
Overall, having better aligned training programs will have a positive
effect on the economy from benefits such as reduced retraining
[[Page 55977]]
costs, and improved worker morale. The lengthy and involved process of
implementing changes to existing programs and developing new programs,
however, might delay the benefits derived from improved economic,
education, and workforce data.\57\
---------------------------------------------------------------------------
\57\ 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.
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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 labor market
outcomes, lower unit costs, or increase the number served.
Training's impact on job 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.\58\ 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.\59\ The
WIA youth program remains largely untested.\60\ One study found that
WIA training services increase placement rates by 4.4 percent among
adults and by 5.9 percent among dislocated workers,\61\ while another
study concluded that placement rates are 3 to 5 percent higher among
all training recipients.\62\
---------------------------------------------------------------------------
\58\ 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.
\59\ Ibid.
\60\ Decker, P.T., & 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.
\61\ 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.
\62\ 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 reemployment rate 5
percentage points higher 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.\63\ The study
found that training, however, did not correspond to higher employment
retention or earnings.\64\ 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.\65\
DOL-sponsored research found that participants who received core
services (often funded by Employment Services) and other services in
American Job Centers were more likely to enter and retain
employment.\66\
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\63\ 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.
\64\ Ibid.
\65\ Jackson, R.H., Malen[eacute] Dixon, R., McCoy, A.,
Pistorino, C., Zador, P., Lopdell, J., . . . and 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.
\66\ 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.\67\ WIA training
increased participants' quarterly earnings by $660; these impacts
persisted beyond 2 years and were largest among women.\68\ 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. Participants who received training services
in addition to core and intensive services initially earned 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.\69\ WIA training services also improved participants' long-term
wage rates, doubling earnings after 10 quarters over those not
receiving training services.\70\ 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.\71\
---------------------------------------------------------------------------
\67\ 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.
\68\ Ibid.
\69\ 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.
\70\ 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.
\71\ Ibid.
---------------------------------------------------------------------------
Another DOL 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
[[Page 55978]]
did not complete training experienced no increase.\72\ Another
publication noted that on average, adults experienced a $743 quarterly
post-exit earnings boost.\73\
---------------------------------------------------------------------------
\72\ 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.
\73\ 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. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/Net%20Impact%20Estimates%20for%20Services%20Provided%20through%20the%20Workforce%20Investment%20Act-%20Final%20Report.pdf.
---------------------------------------------------------------------------
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.\74\ Participation in WIA training also
had a distinct positive but smaller impact on employment and earnings,
with employment 4.4 percentage points higher and quarterly earnings
$660 higher than comparison group members.
---------------------------------------------------------------------------
\74\ 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.
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National and international studies such as the recent Survey of
Adult Skills \75\ provide strong evidence of the need for and economic
value of adult basic skills (ABS). A growing body of research indicates
strong economic return on basic skills at given levels of education.
Estimates have been made of the potential economic benefits that would
accrue from increased educational attainment and levels of basic
skills. The Longitudinal Study of Adult Learning \76\ (LSAL) randomly
sampled approximately 1,000 high school dropouts and followed them for
nearly a decade from 1998 to 2007. LSAL followed both participants and
nonparticipants in ABS programs, assessing their literacy skills and
skill uses over long periods, along with changes in their social,
educational, and economic status, offering a rich picture of adult
literacy development. The study found that individuals who participate
in ABS programs have higher future earnings, and income premiums are
larger with more intensive participation.\77\ Individuals who
participate in ABS programs tend to have higher levels of future
literacy proficiency. Their proficiency premiums are larger with more
intensive participation.\78\ The study also found a robust impact of
ABS program participation on secondary school credential attainment
\79\ and engagement in postsecondary education.\80\
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\75\ OECD. About the Survey of Adult Skills (PIAAC). Retrieved
from: https://www.oecd.org/site/piaac/surveyofadultskills.htm.
\76\ Portland State University. (2010). Introduction to LSAL.
Retrieved from: http://www.lsal.pdx.edu/index.html.
\77\ U.S. Department of Education, Office of Career, Technical,
and Adult Education. The Impact of ABS Program Participation on
Long-Term Economic Outcomes. Washington, DC, 2014. Retrieved from:
http://lincs.ed.gov/employer/1_ABS_Economic_Outcomes.pdf.
\78\ U.S. Department of Education, Office of Career, Technical,
and Adult Education. The Impact of ABS Program Participation on
Long-Term Literacy Growth. Washington, DC, 2014. Retrieved from:
http://lincs.ed.gov/employer/2_ABS_Literacy_Growth.pdf.
\79\ U.S. Department of Education, Office of Career, Technical,
and Adult Education. The Impact of ABS Program Participation on
Long-Term GED Attainment. Washington, DC, 2014. Retrieved from:
http://lincs.ed.gov/employer/3_ABS_GED_Attainment.pdf.
\80\ U.S. Department of Education, Office of Career, Technical,
and Adult Education. The Impact of ABS Program Participation on
Long-Term Postsecondary Engagement. Washington, DC, 2014. Retrieved
from: http://lincs.ed.gov/employer/4_ABS_Postsecondary_Engagement.pdf.
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Vocational and adult literacy's education impact. Vocational
managers indicate that closely aligning service offerings with labor
market reports improves the likelihood that participants will learn
applicable skills. The lengthy and involved process of implementing
changes to existing programs and developing new programs, however,
might delay the benefits derived from improved labor market data.\81\
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\81\ 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.
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The following are channels through which the benefits discussed
above might be achieved:
Better information for workers. The performance 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 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 those with barriers to
employment, such as 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.\82\ Given these information gaps and
financial pressures, it is important that displaced workers learn of
the economic returns to various training plans.\83\ Still, one study
concluded 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.\84\
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\82\ 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.
\83\ Jacobson, L.S., Lalonde, R.J., and Sullivan, D. (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.
\84\ 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.
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State performance accountability measures. This requirement will
include significant data collection for Local WDBs to address
performance measures for the core programs in their jurisdictions. This
data collection will permit 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 Board membership provision
requiring employer/business representation that is part of the DOL WIOA
Final Rule--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
[[Page 55979]]
could divert resources from training activities.\85\
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\85\ Courty, P., and Marschke, G. (2007). Making government
accountable: Lessons from a federal job training program. Public
Administration Review, 67(5), 904-916.
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Before-after earning metrics capture the contribution of training
to earnings potential and minimize incentives to select only training
participants with high initial earnings.\86\ With the exception of
programs in a few States, current incentives do not reward enrollment
of the least advantaged.\87\ In addition, the study noted evidence that
the performance-standards can be ``gamed'' in an attempt to maximize
centers' measured performance.\88\
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\86\ Heckman, J.J., Heinrich, C., and Smith, J.A. (1997).
Assessing the performance of performance standards in public
bureaucracies. American Economic Review, 87(2), 389-395.
\87\ Ibid.
\88\ Ibid.
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Pressure to meet performance levels could lead providers to focus
on offering services to participants most likely to succeed. For
example, current performance 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.\89\
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\89\ 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.
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The following subsections present additional channels by which
economic benefits may be associated with various aspects of this 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.\90\ Another
study, however, found that training in the WIA dislocated worker
program had a net benefit close to zero or even below zero.\91\
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\90\ 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.
\91\ 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.
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Self-employed individuals. Job seekers who received self-employment
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.\92\
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\92\ Kosanovich, W., 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.
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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.
In conclusion, after a review of the quantitative and qualitative
analysis of the impacts of this Final Rule, the Departments have
concluded that the societal benefits justify the anticipated costs.
Ancillary Benefits
The following section describes the ancillary benefit to the DOL
program that may result from this Final Rule due to integrated DOL
program participant records--an activity that is highly encouraged in
the Final Rule, but is not required.
Integrated DOL Program Participant Records. Section 504 of WIOA
requires State and Local WDBs to establish procedures and criteria that
will simplify reporting requirements and reduce reporting burdens.
Under WIOA, States will be highly encouraged to submit one record for
an individual participating in one or more DOL title I and Wagner-
Peyser Act Employment Service core programs. The individual records
would be standardized in terms of data elements and associated
reporting specifications. Under WIA, for the DOL core programs, States
were required to provide two separate individual records for an
individual receiving services under the DOL title I programs and the
Wagner-Peyser Act Employment Service program. A single integrated
individual record for DOL core programs would eliminate duplicative
reporting of an individual's demographic information across programs.
According to a recent report which sampled 28 local areas, career
counselors reported that their high caseloads (approximately 50 to 100
cases per counselor) limited the amount of time they could spend
providing individualized career services (individualized career
services under WIOA) per client.\93\ Efficiencies in the intake process
will allow case managers to spend more time per client delivering
intensive services. The study also found that intensive services led to
increased employment and earnings, and individuals that received
intensive services were more likely to have stable jobs with more
benefits.\94\ In addition to the technical benefits of integrated
systems, this process will reduce administrative burdens in service
delivery that existed under WIA. WIOA removes a sequence of service
requirement that in some cases may have prolonged or created barriers
to effective service delivery. Under WIOA, career planners can deliver
the needed services without going through these administrative
processes. By doing so, individuals will get the services they need
sooner which can lead to quicker entry into employment or training.
Furthermore, having integrated records will help the programs find the
best mix of services for individuals, which can result in UI payment
reductions, improved job placement rates, higher paying jobs, and
reduced government assistance. Although there will be some upfront
costs to develop the system (as discussed in provision (c) ``State
Performance Accountability System''), the Departments expect long-term
benefits.
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\93\ D'Amico, R. et al. (2015). Providing public workforce
services to job seekers: Implementation findings on the WIA Adult
and Dislocated Worker Programs. Washington, DC: Mathematic Policy
Research.
\94\ McConnell, S. et al. (2016). Providing public workforce
services to job seekers: 15-Month impact findings on the WIA Adult
and Dislocated Worker Programs. Washington, DC: Mathematica Policy
Research.
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Transfers
In addition, there are two important transfers that the Departments
were unable to quantify. Below, we describe qualitatively the transfers
that are expected to result from improved system alignment and the
Reemployment and Eligibility Assessment Program.
Improved system alignment. Under WIOA, State WDBs must help
Governors develop strategies for
[[Page 55980]]
aligning technology and data systems across one-stop partner programs
to enhance service delivery and improve efficiencies in reporting on
performance accountability measures. Improved system alignment will
allow States to better understand and address State-level problems.
Integrated data systems will allow for unified and streamlined intake,
case management, and service delivery; minimize the duplication of
data; ensure consistently defined and applied data elements; facilitate
compliance with performance reporting and evaluation requirements; and
provide meaningful information about core program participation to
inform operations. For example, participants in a title I job training
program, who need to improve their basic literacy skills, will be able
to access the title II adult education services they need in one
location which will help to facilitate concurrent service delivery by
the one-stop core partner programs and ultimately accelerate overall
timeliness for outcome attainment. With this improved information,
States will have the ability to negotiate levels of performance more
accurately, which will subsequently reduce the likelihood that States
will receive sanctions for failing to meet the State-adjusted levels of
performance for a program for a second consecutive program year or for
failing to submit a report for any program year.
The Reemployment and Eligibility Assessment program. The
Reemployment and Eligibility Assessment program, which has now evolved
to become the Reemployment Service and Eligibility Assessment program,
was effective in assisting claimants to exit the UI program and avoid
exhausting regular UI benefits in Florida, Idaho, and Nevada. By
avoiding UI benefit exhaustion, the program led to reductions in the
likelihood of receiving unemployment compensation benefits. There
exists notable evidence that the Reemployment and Eligibility
Assessment program is cost-effective, particularly when provided
through an integrated service delivery model, which WIOA also
promotes.\95\ The program reduced UI payments and increased tax revenue
resulting from increased worker earnings.
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\95\ Poe-Yamagata, E., Benus, J., Bill, N., Carrington, H.,
Michaelides, M., and Shen, T. (2011). Impact of the Reemployment and
Eligibility Assessment (REA) Initiative. Columbia, MD: IMPAQ
International, LLC. Retrieved from: http://wdr.doleta.gov/research/FullText_Documents/ETAOP_2012_08_Impact_of_the_REA_Initiative.pdf.
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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 Departments have
adopted the SBA definition for purposes of this certification.
The Departments have notified the Chief Counsel for Advocacy, SBA,
under the RFA at 5 U.S.C. 605(b), and certify that this rule will not
have a significant economic impact on a substantial number of small
entities. This finding is supported, in very 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
The 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 employment service State agency 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 chief elected official 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.
This Final Rule can also be expected to impact a variety of AEFLA
local providers: (1) Local education agencies; (2) community-based
organizations; (3) faith-based organizations; (4) libraries; community,
junior, and technical colleges; (5) 4-year colleges and universities;
(6) correctional institutions; and (7) other institutions, such as
medical and special institutions not designed for criminal
offenders.\96\
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\96\ In terms of VR grantees, they are State government entities
and, by definition, are not small entities.
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Impact on Small Entities
The Departments indicate 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 payments to States. We have highlighted costs that are new to
WIOA implementation and this Final Rule. Therefore, we expect that this
WIOA Final Rule will have no cost impact on small entities.
C. Small Business Regulatory Enforcement Fairness Act of 1996
The Departments have concluded that this Joint WIOA Final Rule does
not impose a significant economic impact on a substantial number of
small entities under the RFA; therefore, the Departments are not
required to produce any Compliance Guides for Small Entities, as
mandated by the SBREFA.
D. Paperwork Reduction Act
The purposes of the 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 continuing efforts to reduce paperwork and respondent
burden, the Departments conduct preclearance consultation activities 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 collection instructions,
respondents can provide the requested data in the desired format,
reporting
[[Page 55981]]
burden (time and financial resources) is minimized, collection
instruments are clearly understood, and the Departments 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 the 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 Departments submitted two ICRs--(1)
Workforce Innovation and Opportunity Act Common Performance Reporting
and (2) Unified or Combined State Plan and Plan Modifications under the
Workforce Innovation and Opportunity Act, Wagner-Peyser Act WIOA Title
I Programs, and Vocational Rehabilitation Adult Education--to OMB when
the NPRM was published. The NPRM provided an opportunity for the public
to send comments on the two information collections directly to the
Departments; 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 Departments to resubmit the ICRs, after
considering public comments, at the Final Rule stage. Given that
information collection instruments were not ready at the time the NPRM
published, the Departments 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 agencies. Each of
these ICRs was then submitted for OMB approval, and additional notices
were published in the Federal Register that invited comments to be sent
to OMB for a period lasting at least 30 days. The Departments also
submitted each ICR for further approval to incorporate the provisions
of this Joint WIOA Final Rule; these Final Rule ICRs were not subject
to further public comment. The Departments provide a status of 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. The Departments also discuss the public
comments received related to the ICRs in this section of the preamble.
It should be noted that these ICRs have been submitted under a
procedure that allows a collection to be sponsored by one agency and
later subscribed to by other agencies. Such ICRs are classified as
``common forms.'' In making the initial request, the host agency
submits the request and claims its portion of the burden; ultimately,
the full burden is accounted for as other agencies subscribe and claim
their share of the burden. For purposes of this Joint WIOA Final Rule
preamble, only the DOL share of the burden is discussed. The full
burden is addressed in the supporting statement used to justify the
request.
It should be noted that the ICR review status reported in this
section only relates to requests related directly to the Final Rule.
Certain ICR packages that were previously approved are being updated to
change references to those in the Joint WIOA Final Rule. As has been
the practice throughout WIOA implementation, the agencies will continue
to update stakeholders on the status of the joint ICRs related to State
planning and performance accountability through other means.
The Required Elements for the Submission of the Unified or Combined
State Plan and Plan Modifications Under the Workforce Innovation and
Opportunity Act Information Collection, OMB 1205-0522 substantive
requirements were approved via a notice of action dated February 19,
2016. As of the date of the drafting of this preamble, the information
collection is being updated to reflect references in the Joint WIOA
Final Rule. Also, the Workforce Innovation and Opportunity Act Common
Performance Reporting ICR 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 Departments will announce this approval.
The information collections in this Final Rule are summarized as
follows.
Workforce Innovation and Opportunity Act Common Performance Reporting
Agency: DOL-ETA.
Title: Workforce Innovation and Opportunity Act Common Performance
Reporting.
Type of Review: New collection.
OMB Control Number: 1205-0526.
Affected Public: State, Local, and Tribal Governments; Private
Sector; and Individuals or Households.
Obligation to Respond: Required to obtain or retain benefits (WIOA
sec. 116).
Total Estimated Number of Respondents Annually: 16,246,121.
Total Estimated Number of Annual Responses: 32,456,962.
Frequency of Response: On occasion.
Total Estimated Annual Time Burden: 8,372,737 hours.
Total Estimated Annual Other Costs Burden: $26,147,067.
Regulations Sections: 20 CFR part 680 (adult and dislocated worker
programs, and ETPs); 20 CFR part 681 (youth program); 20 CFR part 652
(Wagner-Peyser Act Employment Service program); 34 CFR parts 462 and
463 (AEFLA program); and 34 CFR part 361 (VR program).
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: This information collection will collect common
performance data required under sec. 116 of WIOA from all six core
programs--the adult, dislocated worker, youth, Wagner-Peyser Act
Employment Service, AEFLA, and VR programs--as well as from ETPs. The
Departments will use a common approach to standardize the quarterly and
annual reporting, as appropriate, of common data elements for all core
programs and ETPs. These data are in addition to other performance data
reported by each of the core programs under current information
collections in accordance with final joint and program-specific
regulations discussed elsewhere in this issue of the Federal Register.
The Departments note that the OMB control number for this new
information collection was shown in the NPRM as 1205-0420. After
further review and consultation with OMB, due to the need to continue
reporting other data associated with WIA, 1205-0420 will remain as a
WIA-only collection and the new WIOA performance collection will
receive the control number 1205-0526.
Response to Comments Received: The Departments received general and
specific comments concerning this performance information collection.
The comments focused specifically upon three areas: Measurable skill
gains; ETP; and the ICR instruments.
General Comments
General comments focused on data collection and overall burden.
[[Page 55982]]
Comments: One commenter stated that the Departments should be aware
that the proposed definitions and rules could create unintended
incentives that do not align with program objectives. Another commenter
stated that there is too much data included in the WIOA Joint
Performance ICR. Several commenters requested clarification about data
collection, reducing the burden, and other requirements.
Departments' Response: The Departments have established a reporting
system that reflects all the requirements of WIOA and, to the extent
possible, safeguards against false or inaccurate reporting. The
statistical adjustment model will contribute greatly to such efforts.
The WIOA Performance Management, Information, and Reporting System
includes only those elements that are required by statute or are a
necessary component of the calculation of performance indicators or
report items. While the Departments recognize that the data
requirements are potentially burdensome, the Departments have made
every effort to minimize the burden as much as possible. Additionally,
the Departments recognize concerns regarding clarification about data
collection for several of the primary indicators of performance and the
burden of collection and management of data on common performance
accountability requirements, as well as ensuring consistency in
reporting across programs. The Departments recognize that State
agencies will be faced with the challenges and burden of implementing
the new requirements and responsibilities imposed by WIOA, including
revising their management information systems. The Departments are
working together to provide both joint and program-specific guidance
and technical assistance to assist States in implementing these
changes. The ETA will also issue an agency-specific reporting handbook
for the PIRL along with guidance.
Comments: A few commenters discussed the use of supplemental data
(i.e., a proxy for wage records that do not exist) in the context of
the median earnings performance indicator. Specifically, two commenters
expressed opposition to the use of supplemental data for the median
wage indicator, commenting that under WIA reporting, any wage-related
measure relied exclusively on wage records. Another commenter remarked
that the collection of supplemental data on wages is burdensome. Other
commenters recommended that calculation of median earnings should not
permit the utilization of supplemental data, but should rely solely on
quarterly wage records.
Departments' Response: The Departments considered the concerns
expressed by commenters regarding the possible burden and reliability
of supplemental data and follow-up methods to report on the median wage
indicator. However, the Departments have concluded that in order to
hold States accountable for employment and earnings outcomes of all
program participants, States will be allowed to collect and verify
supplemental wage information to demonstrate employment outcomes in the
2nd and 4th quarters after exit in those instances where wage records
are not available. Using supplemental data ensures that programs may
track participants even if those participants' employment and wage
information is not contained in the State's quarterly wage record
system. If a State uses supplemental information to report on the
employment rate indicators, the State must also use supplemental
information to report on the median earnings indicator. States that
elect not to use supplemental data and follow-up methods are expected
to include participants who do not have the necessary data points to
complete a wage record match in the denominator of the calculation.
Those individuals would be counted as failures on the three employment
indicators. In some programs, follow-up procedures have already been
established and have been used historically to supplement wage record
matching. The Departments conclude that allowing States to use
supplemental follow-up methods for individuals who are self-employed,
do not provide a valid SSN, or other specified reasons will provide a
more comprehensive picture of program performance. The Departments will
issue joint guidance to define further what constitutes acceptable
forms of supplemental data and follow-up methods.
Comments: Many commenters discussed the credential attainment rate
indicator, several of whom commented on the calculation methodology. In
particular, three commenters said the proposed methodology for
calculating the credential attainment rate would overlook the progress
and accomplishments of students who enter adult education programs with
high school credentials. A commenter remarked that if the denominator
for the credential attainment indicator includes all participants, it
would serve as a disincentive to co-enrollment; however, if it only
includes participants in training, it would create a disincentive for
widespread access to training. Two commenters stated that the proposed
calculation of the credential rate denominator would create a negative
incentive and serve to steer low-skilled individuals away from training
services. Another commenter suggested that only participants who
received training services should be counted in this indicator. Still
another commenter urged the Departments to design this indicator to
prevent counting a participant more than once. Two commenters
recommended that secondary and postsecondary results be separated for
the calculation of the credential attainment rate indicator. Some
commenters requested clarification on various aspects of the credential
attainment rate indicator. Three commenters asked the Departments to
clarify what would constitute a certificate. A commenter requested that
the Departments provide clear definitions for the terms ``recognized
postsecondary credentials'' and ``industry recognized credentials.''
Similarly, two other commenters suggested that the Departments provide
guidance on this issue. Another commenter recommended that
clarification be provided regarding how far in the past a date of
enrollment in education or training may be to count for purposes of
this indicator. Two commenters requested clarification regarding
whether Adult Basic Education (ABE) participation in classes at the
ninth grade equivalent or higher would count as enrollment in secondary
education. A different commenter requested additional information
regarding the counting of participants who obtain multiple credentials
during the same program year. A couple of commenters requested
clarification about what services would qualify as a participant having
received training for the purpose of the credential attainment rate.
Finally, two commenters asked whether the credential obtained must be
based on WIOA-funded services and provided by an ETP.
Departments' Response: The Departments understand the concerns
expressed by many commenters about whether the credential attainment
rate indicator includes all participants of any core program. The
credential attainment rate indicator focuses on participants who are
enrolled in an education or training program because the purpose of the
indicator is to measure performance related to attainment of
credentials received as a result of successful participation in these
programs; therefore, it would not be reasonable to measure credential
attainment against a universe that
[[Page 55983]]
includes other individuals who are seeking critical WIOA services other
than a credential. The final regulations, as well as the final WIOA
Joint Performance ICR, will make clear that this indicator measures the
percentage of those participants enrolled in an education or training
program (excluding those in OJT and customized training) who obtained 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. Moreover, a participant who has obtained a
secondary school diploma or its recognized equivalent is only included
in the percentage of participants who obtained a secondary school
diploma or recognized equivalent if the participant is also employed or
is enrolled in an education or training program leading to a recognized
postsecondary credential within 1 year after exit from the program.
This WIOA Joint Performance ICR has been revised accordingly such that
the postsecondary portion of the credential attainment rate denominator
includes only those postsecondary exiters in an education or training
program. Postsecondary exiters in on-the-job training and customized
training are excluded from the credential attainment rate indicator
because the Departments recognize that those trainings do not typically
lead to a credential.
A ``recognized postsecondary credential'' is defined in WIOA sec.
3(52) as ``a credential consisting of an industry-recognized
certificate or certification, a certificate of completion of an
apprenticeship, a license recognized by the State involved or Federal
Government, or an associate or baccalaureate degree.'' The Departments
will issue joint guidance that further defines what constitutes an
acceptable credential for the credential attainment rate numerator,
including guidance regarding an acceptable industry-recognized
certificate or certification and definitions for each type of
credential. The Departments have not provided a threshold for
participation in education or training programs for inclusion in the
indicator. The Departments will provide further program-specific
guidance on what constitutes education or training for inclusion in the
credential attainment rate indicator, for purposes of the core
programs. The credential obtained is not required to be WIOA-funded or
based on services provided by an eligible training provider. There is
no reason to capture the date training concluded. The credential
indicator is calculated based on those in education or training at any
point in the program or within 1 year after exiting the program,
regardless of whether the training ended.
Because WIOA sec. 116(b)(2) specifies the percentage of
participants who obtain a recognized postsecondary credential or
secondary school diploma or its recognized equivalent in a single
indicator, the Departments will not separate secondary and
postsecondary credential attainment into two separate indicators. Any
acceptable credential attained during the program or within 1 year
following program exit counts toward the credential attainment rate
indicator. The PIRL records outcomes regarding this indicator in the
following manner.
First, for participants enrolled in a postsecondary education or
training program (other than OJT and customized training), PIRL 1811,
Most Recent Date Enrolled in Education or Training Program Leading to a
Recognized Postsecondary Credential or Employment During the Program,
records enrollment. Participants enrolled in such a program are
included in the denominator for calculating outcomes for this
indicator. PIRL 1801, Date Attained Recognized Credential, records the
date on which an individual attained a recognized credential, and PIRL
1800, Type of Recognized Credential, records the type of recognized
credential attained. The Departments note that PIRL 1801 (formerly PIRL
1705) has been renamed as suggested by a commenter. Participants are
included as successes in the numerator of this indicator if at least
one recognized credential is earned either during participation in the
program or within 1 year (i.e., four quarters) after exit from the
program. A participant counts in the denominator and numerator only one
time regardless of how many credentials a ``participant'' attains prior
to an ``exit.'' However, if a ``participant'' ``exits'' more than once
in a program year and attains a credential prior to each exit, the
program will report the credential attained prior to each exit. The
Departments note that participants who enter a program with a secondary
school credential are counted as a success on this indicator if they
earn a postsecondary credential during participation in the program or
within 1 year after exit from the program.
Second, for participants who attain a secondary school diploma or
its recognized equivalent, PIRL 1401, Enrolled in a Secondary Education
Program, records enrollment. ABE participation in classes at the ninth
grade equivalent or higher will count as enrollment in secondary
education. Participants enrolled in such a program are included in the
denominator for calculating outcomes regarding this indicator. As
stated above, PIRL 1801, Date Attained Recognized Credential, records
the date on which an individual attained a recognized credential, and
PIRL 1800, Type of Recognized Credential, records the type of
recognized credential attained, including high school diploma or
equivalency. WIOA sec. 116(b)(2)(A)(iii) requires that program
participants who obtain a secondary school diploma or its recognized
equivalent shall be included in the percentage counted as meeting the
criterion only if such participants 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. To that end, PIRL 1406, Date Enrolled in a Post Exit Education
or Training Program, records the date of post-exit enrollment in such a
program. Participants are included as successes in the numerator of
this indicator if, during the program or within 1 year after exit from
the program, they are enrolled in a post-exit education or training
program (PIRL 1406), attain a recognized postsecondary credential (PIRL
1800), or obtain or retain employment (PIRL 1600, PIRL 1602, PIRL 1604,
PIRL 1606). In the final WIOA Joint Performance ICR, those participants
who are receiving adult education services while incarcerated will not
count in the employment retention, earnings, credential attainment, or
effectiveness of serving employers indicators. These individuals will
only be counted, for performance calculation purposes, in the
measurable skill gains indicator. The Departments recognize burden
concerns for tracking credential attainment. WIOA requires the
collection and reporting of the credential attainment rate indicator
for all core programs, except for the Employment Service program,
authorized under the Wagner-Peyser Act as amended by title III of WIOA
(see WIOA sec. 116(b)(2)(A)(i)). The Departments will provide guidance
and technical assistance for tracking and reporting credential
attainment.
Comments: A few commenters expressed concern that a participant may
only be in the denominator once but may be in the numerator multiple
times, thereby disproportionately affecting the indicator. Commenters
suggested that the measurable skill gains report templates be aligned
with the
[[Page 55984]]
reporting instructions and designed so that a participant is not
counted multiple times. Another recommended that the Departments revise
the reporting period to include a reasonable lag period, which would
provide participants with a reasonable opportunity to achieve a gain.
Three commenters suggested that participants who receive educational or
training services while incarcerated or institutionalized be included
in the measurable skill gains performance indicator in order to avoid a
disincentive to serve these populations. However, a commenter remarked
that institutionalized individuals should be excluded from the
indicator because they will not likely be able to continue in secondary
or postsecondary education. A commenter requested clarification on the
inclusion of incarcerated individuals in this indicator. One commenter
stated that the program year timeline does not align with the
performance needs of the participant and would result in an
underestimation of the true rate of skill gains. The commenter also
contended that if a participant is receiving services under multiple
programs, the individual could be counted multiple times, creating an
incentive to recruit and promote providers offering short-term
trainings with easily achieved milestones.
Departments' Response: The performance calculation for the
measurable skill gains indicator is the same as it is for all other
indicators. If a participant exits a program more than once in a
program year and achieves measurable skill gains prior to exiting each
time, then that participant could achieve more than one measurable
skill gain in a program year. A participant may achieve more than one
measurable skill gain prior to each exit, but only one gain per exit
will be counted in the performance calculations. If a participant is
co-enrolled in multiple core programs and meets the definition of
participant for each of the multiple programs in which the participant
is enrolled, the participant would count in each program's indicators
of performance, including the measurable skill gains indicator.
The Departments will provide program-specific guidance and
technical assistance to define the types of services and trainings that
constitute ``an education or training program that leads to a
recognized postsecondary credential or employment''. Individuals not in
the types of programs specified will not be included in the measurable
skill gains indicator.
The Departments recognize the concern raised by commenters that the
program year timeline may not provide participants with reasonable
opportunity to achieve a gain, particularly when a participant enters
the program late in a program year. Therefore, the Departments
considered whether a minimum time threshold should be incorporated into
the measurable skill gains indicator. However, the Departments have
concluded that given the diversity of participant needs and program
services, imposing a time period by which progress is to be documented
would be somewhat arbitrary and difficult. Such practice could result
in excluding a number of participants from performance accountability
reporting requirements, even if those participants achieve a gain under
one of the measures of progress. The Departments note that the
negotiations process can and should take into account enrollment
patterns and lower baseline data when establishing negotiated levels of
performance for the measurable skill gains indicator.
All participant outcomes, regardless of whether achieved at the end
of the reporting period in which a participant enrolled or in the next
reporting period, will count as positive outcomes for the program. The
Departments are concerned about incentivizing behavior that discourages
service providers from enrolling disconnected youth, in particular,
when they first approach programs, or that purposefully attempts to
focus service on individuals who are more likely to obtain a positive
outcome. The Departments emphasize that programs must not delay
enrollment or prohibit participants from entering a program late in the
program year.
It is not the Departments' intent to exclude incarcerated
individuals from the measurable skill gains indicator. The PIRL
includes a code value for incarcerated participants in PIRL 923, Other
Reasons for Exit (formerly PIRL 971, Exclusionary Reasons). This
element is used to exclude incarcerated participants who are enrolled
in adult education from all performance indicators except for the
measurable skill gains indicator if they remain incarcerated at program
exit. The Departments recognize that some programs (i.e., the youth and
adult education programs) offer educational services to incarcerated
individuals, and participants may make interim progress or other gains
in secondary or postsecondary education. The final information
collection specifies that the purpose of the code values specific to
incarcerated participants is to exclude incarcerated individuals from
the performance calculations for the employment indicators (employment
in 2nd and 4th quarter after exit, median wages, and effectiveness in
serving employers) and the credential attainment indicator, but not to
exclude them from performance calculations for the measurable skill
gains indicator. This means that programs that serve incarcerated
individuals would be held accountable for the measurable skill gains
indicator.
Comments: Regarding the burden of collecting data for measurable
skill gains, commenters stated that the performance indicator would be
too burdensome to collect for adult and dislocated worker programs.
Commenters also inquired how frequently the data used to calculate this
indicator need to be collected. One commenter remarked that it has not
tracked the data required to calculate measurable skill gains and it
would be burdensome to gather this information retroactively. A
commenter emphasized the need for guidance regarding measurable skill
gains. Another commenter requested that guidance for the indicator
consider skills beyond typical quantifiable measures, using the NFJP
model as a basis, which includes developing detailed custom training
plans for each participant. One commenter inquired whether local areas
will be required to implement a standard measure or test of proficiency
and whether there will be technical assistance to operationalize the
real-time recording of proficiency levels. This commenter compared the
potential challenges of the measurable skill gains indicator for local
areas to the challenges experienced under the WIA literacy/numeracy
gains common measure. One commenter supported the proposal to phase in
the implementation of the measurable skill gains indicator and
suggested that grade point average (GPA) be used as a method to measure
and document skill gains.
Departments' Response: The Departments recognize burden concerns
for States due to the changes in the performance reporting
requirements; however, WIOA sec. 116(b)(2)(A)(i) requires that the
measurable skill gains indicator apply across all core programs, except
for the Wagner-Peyser Act Employment Service program, in order to
assess the effectiveness of States and local areas in achieving
positive outcomes for individuals served by those programs. Therefore,
the implementation of the measurable skill gains indicator cannot be
phased in and States are required to begin collecting
[[Page 55985]]
data for this indicator in PY 2016. Having said this, the Departments
recognize that some programs will not be able to collect data and
report on all indicators immediately. The Departments will provide
program-specific guidance as appropriate.
In order to address the various comments and questions received
regarding the measurable skill gains indicator, the Departments will
provide program guidance and technical assistance regarding each core
program in WIOA titles I, II, and IV to further clarify the measurable
skill gains indicator. The Departments have concluded, however, that
additional types of documented progress for determining whether a
participant has achieved measurable skill gains beyond the five types
set forth in final Sec. 677.155(a)(1)(v) will not be included. The
Departments note the five gain types included in the regulation and the
WIOA Joint Performance ICR share a level of rigor and provide enough
flexibility to allow for the commenters' recommended option.
The Departments acknowledge the suggestion to use GPA as a method
to measure skill gains. The Departments reiterate that, as stated
above, both the Final Rule at Sec. 677.155(a)(1)(v) and the WIOA Joint
Performance ICR will define only five standardized ways States can
measure and document participants' measurable skill gains. The
Departments note, however, that GPA may be reflected in PIRL 1807
(former PIRL 1801) and PIRL 1808 (former PIRL 1801). Each of these
elements records measurable skill gains as documented by a transcript
or report card for either secondary or postsecondary education for a
sufficient number of credit hours to show that a participant is meeting
the State unit's academic standards.
Comments: A commenter suggested that measurable skill gains should
include attainment of competencies to stay abreast of innovative
educational practices; secondary and postsecondary education should be
measured separately to enhance precision and clarity of the indicator;
and interim progress should be achieved after attainment of 12 rather
than 24 credit hours. Another commenter inquired as to what is
considered an adequate rate of measurable skill gains for part-time
students.
Departments' Response: The Departments acknowledge the suggestion
to include attainment of competencies to stay abreast of innovative
educational practices but have not added measures beyond the five
standardized ways for documenting measurable skill gains in Sec.
677.155(a)(1)(v) and the WIOA Joint Performance ICR. In regard to the
comment related to measuring secondary and postsecondary education
separately, the Departments will not separate secondary and
postsecondary credential attainment into two separate indicators of
performance because WIOA specifies the percentage of students who
obtain a recognized postsecondary credential or secondary school
diploma as a single indicator of performance for the performance
accountability measures. However, the Departments note that it is
important to capture data on students who achieve a high school diploma
or its recognized equivalent, as well as a recognized postsecondary
credential; therefore, both will be included in one indicator for
performance accountability purposes (as indicated by the ``Credential
Attainment Rate'' tab in the WIOA Statewide Performance Report
Template), but programs will be able to collect data on achievement of
both types of credentials, as appropriate, in PIRL 1800 (former PIRL
1700), which records Type of Recognized Credential attained. The
Departments conclude that for the measurable skill gains indicator, the
multiple gain types proposed are rigorous and provide flexibility to
allow for gains to be captured in a variety of ways. While commenters
may be concerned about how the Departments will adjust for variation
among States in gains for clients enrolled in longer-term postsecondary
programs, the Departments note that participants would have the
opportunity for success in the transcript type gain, which would allow
a program to record a gain for such participants in every year.
Furthermore, the statistical adjustment model is designed to compensate
for these variations in the consideration of levels of performance,
thereby compensating for State-to-State variances in the length of
postsecondary education. The Departments will not weigh performance
indicators based on degree of program difficulty. The Departments
emphasize that programs may not purposefully attempt to focus service
on individuals perceived as more likely to obtain a positive outcome,
or selectively enroll participants in programs in which positive
outcomes on these indicators are perceived as more likely, but for
which such enrollment is not in the best interest of the participants.
Lastly, the Departments recognize concerns regarding credit hours
for interim progress. In the NPRM, the Departments proposed a measure
requiring a transcript or report card for 1 academic year or for 24
credit hours. The Departments agree with the concern that a transcript
for 1 academic year or 24 credit hours is too onerous for part-time
students and have changed this measure to require that the transcript
or report card reflect a sufficient number of credit hours to show a
participant is achieving the State unit's academic standards. This
change will be reflected in the Joint WIOA Final Rule at Sec.
677.155(a)(1)(v)(C), which will document progress through receipt of a
secondary or postsecondary transcript or report card for a sufficient
number of credit hours that shows a participant is meeting the State
unit's academic standards. The Departments anticipate that, for
participants in postsecondary education, a sufficient number of credit
hours would be at least 12 hours per semester or, for part-time
students, a total of at least 12 hours over the course of two completed
consecutive semesters during the program year that shows a participant
is achieving the State unit's academic standards (or the equivalent for
other than credit-hour programs).
Comments: A commenter recommended that the Departments implement
processes in data collection and reporting that are sensitive to
diverse populations. Specifically, this commenter pointed out that the
significant barriers for some students (especially those at the lowest
literacy levels or non-native English speakers) are often not taken
into consideration when developing measures to track goals and student
performance. Another commenter suggested that special programming
efforts may require new regulations or exceptions to existing
regulations. Other commenters recommended that special priority
populations, including ``low-level learners'', be reported as separate
cohorts and suggested that the reporting methods take into
consideration the more difficult process for data collection to follow
up with these populations.
Departments' Response: The Departments acknowledge the
recommendation to implement processes for data collection and reporting
that are sensitive to special populations with barriers to employment.
The Departments recognize that, given the diversity of participant
needs and program services, the State agencies will be faced with the
challenges and burden of implementing the new requirements and
responsibilities imposed by WIOA, including the challenges associated
with revising the management information systems to collect information
on diverse populations.
[[Page 55986]]
However, for consistency purposes in reporting, the Departments
will not implement additional exceptions to these final regulations.
The Departments have provided rules to accommodate certain exceptional
circumstances. For example, criminal offenders in correctional
facilities are not included in employment and earnings indicators or
the credential attainment rate indicator if they remain incarcerated at
program exit, since they do not have the same opportunity to engage in
unsubsidized employment or postsecondary education as do others in the
general population. Likewise, participants who score at low levels of
literacy are not included in credential attainment rate indicators
unless they are enrolled in programs that provide instruction at or
above the ninth grade level. These measures provide a reasonable
approach to providing accountability while acknowledging the needs of
vulnerable populations.
Comments: Multiple commenters provided feedback on two basic
approaches to compiling the information necessary for a compliant ETP
performance report that would achieve the stated objective of
maximizing the value of the template for stakeholders. In the first
approach, grantees would complete the ETP performance reports and make
them available using the proposed template. Under that approach, one
commenter favored grantees completing and making available the
information using the proposed template, reasoning that it would give
States the flexibility to compile and reconcile their own data.
Commenters in another State agreed this approach would maximize the
value of the report for local use. One commenter said that its State
does not collect program level data for its large public institutions
as part of the criteria to be an ETP, but the commenter recommended
that program level data should be reported for those who provide
training to participants in the WIOA adult and dislocated worker
programs. In the second approach, grantees would send the necessary
aggregate data to the Department, which would then compile, format and
display the data.
One commenter favored this approach because it would increase the
likelihood that reporting would be consistent, which would facilitate
analysis and comparison. Another commenter suggested that, because each
State has different access rights to information, the burden on States
could be drastically reduced if WIOA partners could submit their
reports to their Federal reporting agency that is then responsible for
consolidating the information. Another commenter requested that DOL not
specify the manner in which ETP performance reports are filed,
reasoning that it would be easier for State agencies to run data
required by the template rather than requiring ETPs to modify their
systems to capture all the information required by the report. A
commenter agreed that much of the information in the ETP report could
be more efficiently provided by State and local governments--notably
one-stop caseworkers--rather than ETPs, which have little or no access
to some of the data. Commenters in another State remarked that local
areas collect and track information for the ETP performance report
constantly and stated that transferring the data to a centralized point
for display to the public seems unnecessary and burdensome. Some
commenters supported flexibility and urged the Departments not to
mandate a method for filing reports, allowing either of the two
approaches: grantees complete the ETP performance reports using a
template and provide the Departments with the appropriate location of
the report, or grantees send the necessary aggregate data to the
Departments where the data could be compiled, formatted and displayed
in a standardized user-friendly template and made available as required
by WIOA sec. 116(d)(6)(B).
Departments' Response: WIOA sec. 116(d)(1) requires the Secretary
of Labor, in conjunction with the Secretary of Education, to develop a
template for performance reports to be used by States, Local WDBs, and
ETPs for reporting on outcomes achieved by participants in the six core
programs. The statute further requires that these templates for
performance reports be designed in a manner that reflects the need to
maximize the value of these templates for workers, job seekers,
employers, local elected officials, State officials, Federal policy-
makers, and other key stakeholders. Ultimately, as required by WIOA
sec. 116(d)(6), the State must make available, in an easily
understandable format, the performance reports for the ETPs. Based on
review and consideration of the comments, the Departments have
concluded that the standardization of the submission approach would
lead to the best results in terms of data quality and will be providing
submission details in a separate publication.
Comments: Many commenters expressed concern regarding the level of
burden to ETPs for collecting the required data. Comments on burden
pertained to required data elements as well as the data required for
WIOA and non-WIOA students in particular. Some of these commenters
recommended that the Departments lessen the burden by providing States
the flexibility to develop ETP reporting requirements specifically for
the elements related to wage data. One commenter acknowledged the data
collection challenge for some ETPs but asserted it was important to
have data on all students in order to help WIOA participants make
informed decisions when selecting a training program. Another commenter
remarked that it would be challenging to track down students to
identify information as needed. A State agency expressed concern that
ETPs would incur substantial burden to modify their systems to track
and report data specific to WIOA participants. Another commenter said
it is unlikely all providers will be able to collect the required data,
so there may be data gaps for non-WIOA participants. A commenter
expressed concern that the ETP performance report would not encourage
entities other than colleges to participate in training because the
data collection would seem intrusive to smaller facilities. This
commenter also stated that collecting detailed program level data would
be ineffective due to the small number of enrollments in training
programs. Other commenters expressed similar concerns that data
collection for the ETP performance report would seem intrusive to
smaller training facilities and that information and documentation for
low-income and younger clients would be difficult. Another commenter
stated that disaggregated reports would be largely blank due to the
relatively small number of participants and the need to maintain
confidentiality.
Departments' Response: The Departments acknowledge the commenters'
concerns and recognize the need to identify effective data collection
strategies. However, the Departments have no authority to reduce the
ETP reporting requirements set forth in WIOA sec. 116(d)(4), which
mandate the collection of specific information for WIOA participants
and for all individuals engaged in a program of study (or equivalent)
for each such program of study provided by each eligible training
provider, as outlined in the final regulations at Sec. 677.230(a). The
Departments recognize concerns expressed regarding the level of burden
to ETPs for collecting the required data. In particular, WIOA sec.
116(d)(4)(A) requires information specifying the levels of performance
achieved, for all
[[Page 55987]]
individuals engaged in a program of study, with respect to the primary
indicators of performance for employment, earnings, and credential
attainment. Moreover, WIOA sec. 116(d)(4)(B) requires the total number
of individuals exiting from a program of study. Finally, WIOA secs.
116(d)(4)(C)-(F) require additional information regarding participant
counts, participant exits, average cost per participant, and number of
participants with barriers to employment as described in the proposed
definitions.
In addition, the Departments have concluded that States are
permitted to use ITAs for out-of-school WIOA youth participants ages 18
to 24, as provided in the DOL WIOA Final Rule at 20 CFR 681.550. For
the purpose of the annual ETP performance report, WIOA out-of-school
youth, ages 18 to 24, participating in a program of study using an ITA
are reported in both the ETP performance report as well as in the State
and Local annual reports. Because WIOA sec. 116(d)(4) does not describe
such youth, the Departments note that when such youth are reported in
the ETP performance reports, their performance is reported using the
same performance indicators as prescribed for WIOA adult and dislocated
worker participants (i.e., the primary indicators of performance
specified under WIOA sec. 116(b)(2)(A)(i)), which will be further
specified in implementing regulations at Sec. 677.155(a)(1)(i) through
(vi). Using the same metrics for out-of-school youth using ITAs as well
as for other WIOA participants and individuals in a course of study (or
equivalent) minimizes the burden on ETPs. The Departments note that
such youth are excluded from the required reporting identified at Sec.
677.230(a)(1)(i) through (iii), but are included in the counts required
by (a)(2) through (a)(4). The Departments further note that such youth
are additionally reported on in the State and Local annual reports in
accordance with Sec. Sec. 677.155(d), 677.160, and 677.205 as
described in those sections. The Departments will provide additional
guidance on the treatment of these out-of-school youth using ITAs
through the information collection process and in guidance. Therefore,
for purposes of reporting on the ETP performance report, references to
the adult and dislocated worker programs under title I of the WIOA
adult program include out-of-school WIOA youth ages 18 to 24
participating in a program of study using an ITA.
The Departments have concluded that the WIOA Joint Performance ICR
is in line with WIOA sec. 116(d) and will not reduce the number of
required elements in the ETP reporting template. The Departments
recognize the contribution of ETPs that may serve smaller populations
and acknowledge that suppression standards may limit data, but have
concluded that the WIOA Joint Performance ICR aligns with WIOA sec.
116. The Departments also recognize the interest in establishing
processes for accessing wage related data. The Departments will provide
additional information on the parameters of the collection and
reporting of this information through the associated ICR and program
specific guidance.
Comments: Regarding the PIRL, multiple commenters addressed the use
of unique identifiers for program participants. A commenter requested
clarification regarding how States would match unique identifiers when
not using SSNs. Similarly, three commenters asked whether all core
programs would be required to use the same unique identifier for a
participant. Other commenters requested that the Departments clarify if
the unique identifier must be an SSN. Another commenter recommended
that a method for implementing a unique identifier be identified and
phased in over time in order to allow States time to develop the
necessary data collection systems. One commenter remarked that its core
programs are not interconnected and would be unable to share unique
identifiers.
Departments' Response: The unique identifier is not required to be
an SSN. However, wage matching with the State UI system will be
impossible for any participant for whom an SSN is not available. In
those circumstances, programs will need to rely on supplemental follow-
up methods for determining wages at 2nd quarter and 4th quarter
following program exit. State VR agencies use a unique identifier now
and the VR program may be a resource for other core programs when
developing such a system. The Departments understand that many State
data systems for Education and Labor programs are not interconnected.
There is no requirement to share a common data system. Having separate
systems does not preclude matching data to identify employment
outcomes.
Comments: Commenters also discussed cultural barriers to
employment. Four commenters urged the Departments to define cultural
barriers clearly. Similarly, two commenters recommended that the
Departments provide a less subjective definition of cultural barriers
to allow for more consistency in the data. Another commenter suggested
that the definition of cultural barriers be expanded to include limited
English abilities. Two commenters stated that PIRL 705 identifies both
displaced homemaker and cultural barriers. A commenter expressed
opposition to tracking cultural barriers, reasoning this could alienate
populations it should be serving and create liability for
discrimination-based lawsuits. Similarly, another commenter expressed
concern about posing this question without appearing discriminatory.
Two commenters opposed collecting information on cultural barriers,
stating that it is subjective and adds no significant value. Another
commenter asked whether cultural barriers should be identified by the
participant. One commenter recommended that the service providers,
rather than the participant, be responsible for identifying cultural
barriers. However, another commenter suggested only substantial, self-
identified cultural barriers should be reported. Still another
commenter contended that PIRL 705 is defined using a lesser standard
than WIOA, which references a substantial cultural barrier. Two
commenters requested that the Departments provide guidance indicating
how to collect data on cultural barriers. A commenter suggested that
participants may be unaware of the cultural barriers to employment that
they face, making the data inaccurate.
Departments' Response: The statute identifies ``individuals who are
English language learners, individuals who have low levels of literacy
and individuals facing substantial cultural barriers'' as three
categories of an ``individual with a barrier to employment.'' These
three categories are treated as separate data elements in the PIRL
because both individuals who are English language learners and
individuals with low levels of literacy are elements that are required
to be used in the statistical adjustment model, while the data element
for individuals who are facing substantial cultural barriers is not
required to be used in the model. The Departments understand that the
determination of cultural barriers is highly subjective and have
provided a definition that allows a program to base the designation on
a participant's self-perception as to whether his or her attitudes,
beliefs, customs, or practices pose a hindrance to employment.
Comments: Five commenters expressed concern and requested
clarification about the discrepancies between the PIRL and RSA-911. For
example, a commenter stated that the RSA-911 does not currently collect
PIRL 1802 (Date of Most Recent
[[Page 55988]]
Measurable Skill Gains: Training Milestone) or PIRL 1803 (Date of Most
Recent Measurable Skill Gains: Skills Progression). Another commenter
recommended that the Departments align the PIRL and RSA-911 definitions
and reporting options for PIRL data elements 1800 through 1804.
Similarly, another commenter suggested that the Departments align the
PIRL and RSA-911 or provide a crosswalk between the two sets of data
elements.
Departments' Response: The Departments note the RSA-911 ICR was
published prior to the proposed WIOA Joint Performance ICR, which
includes the PIRL. Therefore, the RSA-911 did not reflect all of the
changes necessary to align with the PIRL. The final RSA-911 ICR will
include new and/or revised data elements and definitions as necessary
to provide alignment with the PIRL. In addition, RSA-911 data will be
submitted quarterly in order to align reporting under the VR program,
which operates on a Federal fiscal year basis, to the reporting of
performance on a program year basis as required under these
regulations.
Comments: Two commenters expressed concern that the PIRL is
centered on DOL programs and is difficult for other core programs to
use. A commenter said that it is unclear which programs are responsible
for the transmission of the PIRL, or if each core program should submit
the report separately. A commenter said that a combined core PIRL would
be duplicative if States are required to submit quarterly and annual
reports as well.
Departments' Response: Individual core programs will submit data
through each core program's information collection. The entity that
will submit this data will vary by State based on the level of data
integration. The Departments strongly encourage States to improve data
integration across programs. The purpose of this collection is to
specify the elements that are required to be reported by all core
programs and align the definitions of the different data elements
across the core programs, thereby ensuring consistency and
comparability of the data among all core programs and States. The
Departments note that, for the programs that require submissions of
quarterly and annual reports, the information obtained through this
collection will be part of these quarterly and annual reports and not a
duplication of those reports.
Comments: A number of stakeholders submitted comments on the burden
estimates for the State performance report template, noting that the
costs are underestimated. In particular, commenters suggested that the
time to collect data should be more than 15 minutes per response.
Commenters also cited the burden to obtain information that is not
currently available, including the requirement to track individuals
after program exit and the need to monitor data quality. A commenter
enumerated significant IT time and costs, including more frequent
reporting and integration with partnering agencies, to implement the
required changes. Another commenter remarked that staff time spent on
these activities results in fewer direct services to program
participants. A commenter asked for clarification about reporting for
multiple years and possible duplication for co-enrolled participants,
commenting that enhancing the quality, utility, and clarity of the
information collected would reduce the burden on those who must
respond. Another commenter requested that an effort be made to utilize
any existing Federal and State databases that already contain some of
the WIOA-required data elements that need to be collected. One
commenter suggested that the Departments develop a standardized
application or supplemental form that includes fields for applicants to
self-report the required data elements.
Departments' Response: The Departments acknowledge that an increase
in the burden estimate is necessary to reflect more accurately the
costs in time and resources to begin collecting, validating, and
reporting new requirements under WIOA's new reporting system,
particularly for the VR program. As such, the burden estimates in the
RIA section of this Joint WIOA Final Rule (see section V.A), as well as
the tables in section 12 of the Supporting Statement for the WIOA Joint
Performance ICR (which cover burden estimates) have been modified . For
example, in response to comments, RSA has revised its methodology for
estimating burden related to new data collection requirements in order
to more accurately reflect needed State investments in personnel, time,
and other resources.
The Departments also understand the increased administrative burden
for follow up and the collection of new statutorily required data under
WIOA, such as cost per WIOA participant served (see WIOA sec.
116(d)(2)(F), which requires the State performance report to include
``the average cost per participant of those participants who received
career and training services, respectively, during the most recent
program year and the three preceding program years''). The Departments
made every effort to provide a comprehensive estimate of the costs
incurred by programs, State agencies, and all other stakeholders in
adhering to all WIOA requirements and will provide direction on issues
such as identifying clients without SSNs, streamlining processes and
eliminating duplication, timelines for integration, alignment of the
RSA-911 with the WIOA PIRL, and best practices for providing optimal
initial and follow-up services to participants in subsequent guidance.
Also, the Departments agree with the commenter that the enhanced use of
technology in the data collection and reporting process will result in
greater efficiencies and reduced burden for States and local programs.
With regard to the commenter's other concerns about data sharing among
the core partners, the Departments are currently working on additional
guidance to facilitate that process. The burden estimate for the
collection and reporting of data was updated in the issuance of the
final WIOA Joint Performance ICR to more accurately reflect the time
staff spent obtaining and entering the required data elements.
States may use existing databases to assist in obtaining the
required data elements provided the data sharing meets the required
statutory and regulatory privacy requirements. However, States remain
responsible for ensuring the accuracy and timely submission of required
data elements. States are not prohibited from developing a standardized
form that would allow individuals to self-report data, apart from
information that is necessary for the program to receive Federal funds.
Comments: Several commenters provided input on the definition of
participant and/or participation period. The majority of commenters
expressed opposition to establishing a new exit date for an individual
who has exited and returned within the same program year. A few
commenters stated that the proposed exit methodology will increase the
implementation burden while producing less informative data. Another
commenter mentioned that the proposal to combine multiple periods of
participation (POPs) when a participant exits more than once in a
program year would reduce the reliability of quarterly reports,
increase the burden to manage programs, and decrease the effectiveness
of the statistical adjustment model. A few other commenters said that
implementing the definition of ``exit'' as proposed would require
modifications to case management systems. A commenter suggested that
the definition of ``exiter'' remain the same as under
[[Page 55989]]
WIA. This commenter also remarked that the definition of ``exiter'' as
proposed in the WIOA Joint Performance ICR would provide an accurate
count of participants in a program year for participant and ``exiter''
measures, but would potentially duplicate participants in primary
performance outcome measures. A commenter remarked that the proposed
definitions of ``participant'' and ``exit'' would require a rolling
system for reporting, but it is not clear how this could be done
accurately to track performance.
Departments' Response: The Departments acknowledge the commenters'
many concerns and suggestions related to the Departments' proposed
approach to participation and exit for individuals who exit more than
once in the same program year. To respond to these concerns, the
Departments have altered the approach to unique participants that was
published in the proposed WIOA Joint Performance ICR. For performance
reporting purposes, States should report participants separately for
each time the participant exits the program, with the period of time
the participant received services prior to exiting sometimes commonly
called a ``POP.'' In addition, States should provide to the
Departments, for each of the WIOA titles I and II core programs, and
the VR program, a unique identifier that stays the same across multiple
POP for the same participant, but not necessarily the same identifier
across different programs if the participant receives services from
multiple programs in the same program year. The Departments will use
this unique identifier to calculate a count of unique participants in
each program for each State, which will be reported on the State
Performance Reporting Template. The performance measures will be
calculated using the ``exits'' (i.e., POP), which the Departments
conclude will incentivize the provision of the most effective and
appropriate service delivery strategy regardless of how many previous
POP an individual has had. The Departments will provide further
guidance and technical assistance to implement this in order to ensure
a consistent approach that facilitates comparability across programs.
Core programs administered by ETA already utilize a ``rolling four
quarter methodology'' for quarterly reporting. In other words, for each
data element, the most recent four quarters worth of data are reported
(which will be different for different data elements due to the timing
of the availability of the data). ETA will continue utilizing this
approach, which adjusts for seasonality and which allows 1 year of data
to be reported on any given quarterly report.
Comments: Several commenters discussed the collection of data
pertaining to barriers to employment. A few commenters said that
collecting the data on barriers of employment would be challenging and
burdensome. Similarly, a commenter stated that the collection of this
data would increase the burden more than the value it would provide and
asked how the Departments plan to communicate the results of the data
to local areas. Another commenter stated that the proposed data on
barriers to be collected is unnecessary. A few commenters requested
clarification on barriers to employment. In particular, one of these
commenters asked whether it is expected to collect data on all barriers
to employment for each client. Another commenter requested
clarification on how data on barriers to employment would be collected.
A different commenter suggested the Departments confirm that a
participant may be reported in multiple categories for barriers to
employment.
Departments' Response: WIOA sec. 116 requires a statewide report
that includes a breakout by those with barriers to employment. The WIOA
Joint Performance ICR provides information about the barriers to
employment that must be collected and how these data will be collected.
Additional information on how these categories are populated can be
found in the PIRL and Statewide Annual Report Specifications.
Comments: Some Commenters pointed out that every barrier to
employment should not have to require documentation to be validated.
Two commenters asked whether PIRL 802 (formerly PIRL 702) determining
``Low Income'', would apply to adult education participants and whether
supporting documentation from the participant would be required.
Similarly, another commenter said that describing artificial barriers
for ex-offenders is a poor word choice for describing their barriers to
employment.
Departments' Response: WIOA specifies new reporting requirements,
including data reporting related to barriers to employment. The
definition of an ``individual with a barrier to employment''
encompasses mandatory populations. Low income and ex-offenders are just
two of the populations included in the definition, representing
barriers to employment that must be collected for purposes of the
performance accountability system under WIOA. The Departments recognize
the importance of ensuring that individuals with barriers to employment
receive services, and the Departments recognize that States may
experience challenges with this data collection. The Departments intend
to issue joint- and program-specific guidance and technical assistance
to provide further clarification on each employment barrier, how the
data should be collected, and necessary documentation for each barrier.
Unified or Combined State Plan and Plan Modifications Under the
Workforce Innovation and Opportunity Act, Wagner-Peyser WIOA Title I
Programs, and Vocational Rehabilitation Adult Education
Agency: DOL-ETA.
Title of Collection: Unified or Combined State Plan and Plan
Modifications under the Workforce Innovation and Opportunity Act,
Wagner-Peyser WIOA Title I Programs, and Vocational Rehabilitation
Adult Education.
Type of Review: Revision.
OMB Control Number: 1205-0522.
Affected Public: State, Local, and Tribal Governments.
Obligation to Respond: Required to obtain or maintain benefits
(WIOA, secs. 102 and 103).
Total Estimated Number of Respondents Annually: 38.
Total Estimated Number of Annual Responses: 38.
Frequency of Responses: On Occasion.
Total Estimated Annual Time Burden: 8,136 hours.
Total Estimated Annual Other Costs Burden: $0.
Regulations Sections: DOL programs--20 CFR 652.211, 653.107(d),
653.109(d), 676.105, 676.110, 676.115, 676.120, 676.135, 676,140,
676.145, 677.230, 678.310, 678.405, 678.750(a), 681.400(a)(1),
681.410(b)(2), 682.100, 683.115. ED programs--34 CFR parts 361, 462 and
463.
ICR Approval Status: Not yet approved.
Overview and Response to Comments Received
Overview: WIOA requires each State to submit either a Unified or
Combined State Plan that fosters strategic alignment of the six core
programs, which include the adult, dislocated worker, youth, Wagner-
Peyser Act Employment Service, AEFLA, and VR programs. The Departments
have interpreted ``State,'' in this context, to include the outlying
areas of Guam, American Samoa, Northern Mariana Islands, the U.S.
Virgin Islands, and, as applicable, the Republic of Palau. This
[[Page 55990]]
means that each of the outlying areas must submit a Unified or Combined
State Plan, in accordance with secs. 102 and 103 of WIOA, just as any
State does. The Unified or Combined State Plan requirements improve
service integration and ensure that the public workforce system is
industry-relevant and responds to the economic needs of the State and
successfully matches employers with skilled workers. The Unified or
Combined State Plan describes how the State will develop and implement
a unified and integrated service delivery system rather than separately
discuss the State's approach to operating each core program
individually. This information collection implements secs. 102 and 103
of WIOA.
While each State, at a minimum, must submit a Unified State Plan
covering the six core programs, sec. 103 of WIOA permits a State to
submit a Combined State Plan that includes the six core programs plus
one or more additional Combined State Plan partner programs listed in
sec. 103(a)(2) of WIOA. If the State chooses to include one or more
Combined State Plan partner programs, its Combined State Plan must
include all of the common planning elements contained in the Unified
State Plan and an additional element describing how the State will
coordinate the additional Combined State Plan partner programs with the
six core programs (WIOA sec. 103(b)(3)).
Comments: One commenter recommended that State Plans require a
labor market analysis.
Departments' Response: Although the Departments agree with the
comment, no change to the WIOA State Plan ICR is needed because it
already requires a labor market analysis consistent with sec. 102(b)(1)
of WIOA.
Comments: Another commenter expressed concern that the trucking
industry may struggle to secure ``in-demand'' recognition in many
States unless a State's obligations are further clarified under section
II of the Draft Unified and Combined State Plan Requirements document.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment because States are
encouraged to use a variety of accurate, reliable, and timely labor
market information on which to base their analyses in the State Plan.
The use of a variety of labor market information allows States to
reliably determine ``in-demand'' labor market needs, including for the
trucking industry.
Comments: Several commenters provided input on section
II(a)(1)(A)(iii), in which commenters proposed that States include an
assessment of the employment needs of employers in certain industries
and sectors, including a description of the knowledge, skills,
abilities, and credentials and licenses required for employers. The
commenters also recommended replacing ``credentials and licenses'' with
``recognized postsecondary credentials.''
Departments' Response: The Departments conclude that it was
appropriate to keep ``credentials and licenses'' rather than narrowing
the meaning of term by replacing it with ``postsecondary credentials''
since it is a broad term that allows maximum flexibility to States to
determine their needs and the WIOA State Plan ICR already requires
States to include ``recognized postsecondary credentials.''
Comments: A commenter stated that when assessing the needs of
employers, it would be beneficial to collect information on whether
these various employers are subject to sec. 503 of the Rehabilitation
Act.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR because it is not the appropriate vehicle for collecting
information on whether employers are subject to sec. 503 of the
Rehabilitation Act.
Comments: Some commenters noted that section II(a)(1)(B) would be
an appropriate opportunity to include labor force participation rates
for persons with disabilities, including youth and veterans with
disabilities.
Departments' Response: The Departments agree that understanding
labor force participation rates is important and revised the collection
instrument in section II(a)(1)(B)(i) to include labor force
participation rates.
Comments: A commenter suggested that States collect information
concerning the numbers of individuals with disabilities who are working
in segregated work environments (``sheltered workshops'') and who are
employed under a 14c waiver (receiving sub-minimum wage).
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment because the change is not
necessary. Section 101(a)(14) of the Rehabilitation Act of 1973, as
amended by title IV of WIOA, requires the VR agencies to conduct a
semiannual review and re-evaluation of individuals served by the VR
program who are employed in sheltered settings or at subminimum wage.
The semiannual reviews must be conducted for the first 2 years of the
individual's employment and annually thereafter. Furthermore, the VR
services portion of the Unified or Combined State Plan contains an
assurance that the State VR agency will report information generated
under sec. 101(a)(14) to the Administrator of the Wage and Hour
Division of DOL.
Comments: Another commenter proposed that knowledge and familiarity
with English be included in the analysis of the current workforce and
that each Plan include a strategy for addressing the adult education
and family literacy needs of the incumbent workforce.
Departments' Response: The Departments agree that such analysis and
strategies should be included and expect States to provide a strategy
for addressing the needs of individuals with limited English
proficiency. Since the WIOA State Plan ICR already requires this as
written, no change is needed.
Comments: A commenter cited an increase in State and Federal
policies aimed at increasing employment for individuals with
disabilities and encouraged States to examine whether or not their
particular State is under any of these policies, which would help
determine future labor market trends and give further direction on
increasing employment for individuals with disabilities.
Departments' Response: The Departments decline to require an
examination of State policies as a way to understand their possible
impact on employment for individuals with disabilities since it goes
beyond what the State is required to do under WIOA for purposes of the
State Plan and may be more appropriate for a formal study.
Comments: Another commenter explicitly urged that financial
literacy be included as a component of education. Specifically, the
commenter said that there should be an assessment of financial literacy
skills as part of the assessment of education and skills level.
Departments' Response: The Departments agree that financial
literacy plays a significant role in a person's overall success, and
that the WIOA State Plan ICR, as written, permits States to identify
what skills gaps exist in their State, including a lack of financial
literacy. States are encouraged to look at financial literacy as a
possible need of their population, but the Departments decline to
itemize every kind of skill that could be included in an assessment of
education and skill level in the WIOA State Plan ICR.
Comments: Several commenters asked for clarification on what is
meant by ``skill gaps.''
[[Page 55991]]
Departments' Response: Determining ``current gaps,'' ``projected
gaps,'' and ``projected education and skills of the workforce'' is
within the State's purview, and each State has flexibility to identify
what skills gaps or mismatches exist in the State.
Comments: A commenter said innovative partnerships with entities
such as faith- and community-based organizations should be included in
the analysis of the State's workforce development, education, and
training activities in section II(a)(2)(A) and section III(a)(2)(c).
Departments' Response: The Departments agree and made a change to
the WIOA State Plan ICR by adding a footnote clarifying that the phrase
``workforce development activities'' could include a wide variety of
programs, including human services, faith- and community-based
organizations, and educational institutions.
Comments: A commenter asserted that the requirements for the
workforce development, activities should include reporting on, and not
only an assessment of, activities offered and to what extent those
activities are both physically and programmatically accessible to job
seekers with disabilities.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment because it is more
appropriate to identify the extent to which these activities are
accessible during monitoring than through the State Plan. Sections V.7
and V.10 require States to comply with physical and programmatic
accessibility requirements of WIOA sec. 188 and the Americans with
Disabilities Act of 1990.
Comments: A commenter said the State's strategic goal should be a
guiding rather than prescriptive document, providing overall direction
and supporting Local WDBs in developing strategies best suited to their
local economies.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR because it is within the Governor's discretion to decide
how broad the vision should be for the State; however, engagement of
the Local WDBs is required under sec. 101(d) of WIOA in the development
of the State Plan.
Comments: Several commenters took issue with the use of the term
``sector strategies'' in section (II)(c)(1) and suggested that the
language be refined.
Departments' Response: The Departments agree and changed the WIOA
State Plan ICR to refer to ``industry or sector partnerships'' and to
align more closely with the statutory language, including WIOA sec.
101(d)(3)(B) and (D). Also, statutory references were added for the
definitions of ``career pathway'' and ``in-demand industry sector or
occupation'' to provide additional clarity concerning this requirement.
Comments: Some commenters requested career pathways and sector
strategies be addressed in State Plans and requested further definition
of career pathways. Another commenter requested that State Plans
include descriptions about credentialing and integrating credentialing
with sector partnerships.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to these comments. The WIOA State Plan ICR
already includes requirements for the State to describe both its sector
and career pathways strategy in section (II)(c), so it already supports
the inclusion of credentialing and its integration with sector and
career pathways strategies. Although the Departments did not revise the
WIOA State Plan ICR to include definitions of ``career pathways'' and
``sector partnerships,'' the Departments did add statutory citations
for the definitions of those terms.
Comments: Commenters said the language of section (II)(c)(2) is
more detailed than the requirements under WIOA sec. 102(b)(1)(E), which
the commenters said only references the alignment between core programs
and ``other resources available to the State.''
Departments' Response: The Departments agree with this comment, and
section IV has been revised in the WIOA State Plan ICR to require a
description of the joint planning and coordination among the core
programs and with other required partners and other programs and
activities included in the Unified or Combined State Plan.
Comments: A commenter said the Departments should clarify the
intended ``gaps'' mentioned in the final sentence of section II(c)(2).
Departments' Response: The Departments clarify the meaning in the
final sentence of section (II)(c)(2) by changing the word ``gaps'' to
``weaknesses'' and by adding a reference to section II(a)(2) to explain
what analysis should be taken into account for this requirement.
However, the Departments decline to add a reference to section
II(a)(1)(B)(iv), since the requirement is specifically regarding the
strengthening of workforce development activities.
Comments: A commenter stated that State strategy should unify wrap-
around services across programs.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment, since section III(a)(2)(C)
of the WIOA State Plan ICR already requires coordination of supportive
services (wrap-around services) among programs.
Comments: Another commenter recommended amending language, which
clarifies that States can and should be coordinating and aligning
services across programs in a manner that achieves the goals of
industry and sector partnerships. The same commenter recommended
strengthening the language to clarify that the description required is
not limited to direct employer services, but should also include any
other programs and activities that will support service delivery to
employers.
Departments' Response: The Departments concur with this suggestion
to reinforce the importance of industry and sector partnerships and
have amended the requirement. With respect to the comment concerning
service delivery to employers, the Departments conclude that the
language is sufficient as originally written to include both direct and
indirect services to employers.
Comments: A commenter was unclear as to the source of the
requirement that the State outline additional strategies for
coordinating ``services to employers.''
Departments' Response: The Departments conclude that both the State
and local governments are partners in developing strategies for serving
employers. Using the authority WIOA grants to the Secretaries to add
additional operational planning elements as appropriate, the
Departments chose to include a requirement around serving employers
since they are a critical customer.
Comments: Several commenters supported extending the requirement to
cover a broader range of providers than community colleges and area
career and technical education (CTE) schools, but noted that there is
no formal definition of the term ``education and training providers''
under WIOA.
Departments' Response: The Departments agree with this comment and
revised section III(a)(2) of the WIOA State Plan ICR to include in
section III(a)(2)(E) a separate requirement for engagement with
community colleges and career and technical education schools as
required by sec. 102(b)(2)(B)(iv) of WIOA. The Departments included in
section
[[Page 55992]]
III(a)(2)(F) a separate element for engagement with other education and
training providers because such coordination is necessary to have a
successful strategy for the provision of services.
Comments: A commenter requested that the listed examples in section
III(a)(2)(E) include community rehabilitation organizations (CROs). The
commenter noted that frequently individuals with disabilities enter
into CROs after completing high school, and these CROs are tasked with
teaching individuals with disabilities job skills with the expectation
of acquiring employment in the community.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment because CROs are not solely
education/training entities. Nevertheless, States may address CROs in
their plans.
Comments: A commenter suggested adding a subsection to section
III(b) of the WIOA State Plan ICR that includes a description of
proposed benchmarks for the negotiated amounts and/or percentages that
each one-stop partner that is a unit of State government will
contribute to the local one-stop delivery system costs. The commenter
said that including this element will provide for better coordination
and more transparency in the negotiation of shared costs.
Departments' Response: The Departments concur that the inclusion of
information on one-stop partner cost sharing arrangements in the State
Plan will provide for better coordination and more transparency in the
negotiation of shared costs. However, the Departments anticipate that
States will not be ready to provide their guidelines in the initial
Unified or Combined State Plans that take effect July 1, 2016. Instead,
the Departments revised section III(b)(2) of the WIOA State Plan ICR to
require information about the State's process for developing guidelines
and benchmarks in the initial Unified or Combined State Plan, and
require the guidelines when the State submits a modification to its
State Plan in PY 2018.
Comments: Another commenter recommended emphasizing the role of
local and regional planning in establishing appropriate assessment
standards.
Departments' Response: The Departments concur with the comment with
minor modifications and made a change to the WIOA State Plan ICR. The
Departments amended the requirement that ``such State assessments
should take into account local and regional planning goals,'' and also
added ``broken down by State and local area.''
Comments: A commenter agreed with the importance of the assessment
of core programs and one-stop partner programs based on accountability
measures, but asserted that not all core programs currently collect the
same performance information. The commenter requested clarification on
what constitutes previous assessment results for the preceding 2 years,
noting that there may not be a formal assessment available in States
that were previously granted waivers of the requirement to conduct
evaluations under WIA. The commenter also requested clarification on
what constitutes elements required to be included in the assessments
for the other core programs.
Departments' Response: The Departments agree and made a change to
the WIOA State Plan ICR as a result of this comment. The previous 2-
year period referenced in sec. 116 of WIOA and in section III(b)(4) of
the WIOA State Plan ICR should be implemented for the first time at the
2-year plan modification cycle because assessments of WIOA programs
will not be available before that time. Therefore, clarifying language
has been added.
Comments: Another commenter requested the Departments to require
States to provide a description of a clearly defined management
reporting structure for State merit staff.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment because requiring a
reporting structure for merit staff imposes an unnecessary burden on
States. However, States may elect to develop such a policy and include
it in its State Plan.
Comments: A commenter urged the Departments to require that
assessments document how each program will ensure not only physical
accessibility but programmatic accessibility, including specific
examples of how WIOA sec. 188 regulations are being met.
Departments' Response: The Departments agree that compliance with
physical and programmatic accessibility requirements is critical and
have required States to provide how this will be achieved in section
III(b)(8) of the WIOA State Plan ICR and through the common assurances
in section V. Therefore, a change in the WIOA State Plan ICR is not
needed.
Comments: Another commenter supported efforts to improve
coordination across programs and recognized that integrated data
systems are an important step in achieving this goal. However, the
commenter was concerned that achieving this goal will be expensive and
challenging for States in light of State budget crises and declining
Federal resources. This commenter proposed adding language that
clarifies that States are not required to make such efforts.
Departments' Response: The Departments decline to revise the WIOA
State Plan ICR not to require States to make efforts to integrate data
systems. Under WIOA sec. 101(d)(8), the State WDB is required to assist
the Governor with ``the 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 the design and 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)''
and under WIOA sec. 102(b)(2)(C)(v)(I), the State Plan must explain
``how the lead State agencies with responsibility for the
administration of the core programs will align and integrate available
workforce and education data on core programs, unemployment insurance
programs, and education through postsecondary education.'' Due to these
statutory requirements, States must develop a plan for aligning and
integrating data systems.
Comments: A commenter indicated that moving to true
interoperability and integration of data management systems would
likely require substantial outlays of time and money that States may
not be able to meet, especially in a time of level or declining Federal
resources.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment since WIOA requires States
to have a plan for aligning and integrating data systems.
Comments: Another commenter said that States should establish a
reasonable timeline for data alignment and integration.
Departments' Response: The WIOA State Plan ICR, as written, permits
States to establish a ``reasonable timeline'' as part of their plans
for achieving data system alignment and integration. Therefore, a
change to the collection is not needed.
Comments: The same commenter also said the Departments and State
Plans should both report a single score for each of the six performance
indicators,
[[Page 55993]]
but only after 4 years of WIOA implementation.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. WIOA requires that each
State establish levels of performance for each of the indicators of
performance for each of the programs.
Comments: A commenter suggested that Veterans Priority of Service
(POS) be addressed in the State Plan and that POS should be required
for service-connected and non-service connected disabilities.
Departments' Response: The Departments decline to make the
requested change because the WIOA State Plan ICR requires States to
describe how they implement Veterans POS in their State (see section
III(b)(7)). Moreover, under 38 U.S.C. 4215, all veterans, including
disabled veterans with both service and non-service connected
disabilities, receive POS for all employment and training programs
funded in whole or in part by DOL.
Comments: A few commenters requested clarification on the
Addressing the Accessibility of the One-Stop Delivery System for
Individuals with Disabilities requirement in light of a parenthetical
sentence at the end of the section indicating that this requirement
applies to core programs, rather than the one-stop delivery system
partners referenced earlier in the requirement.
Departments' Response: The Departments make a change to section
III(b)(8) of the WIOA State Plan ICR as a result of the comment. The
Departments concur with the comment that the parenthetical in the
proposed WIOA State Plan ICR could create confusion about the
requirements of WIOA sec. 188 and so it was removed. WIOA sec.
102(b)(2)(C)(vii) requires that the Unified State Plan contain a
description of how one-stop operators and one-stop partners, in
addition to core programs, will comply with sec. 188 of WIOA and the
applicable provisions of the Americans with Disabilities Act of 1990.
Per WIOA sec. 103(b)(1), this information must also be included in any
Combined State Plan.
Comments: Some commenters said States should be required to
describe the methods used for joint planning and coordination of the
core programs, even where the State opts to submit a Unified State Plan
rather than a Combined State Plan.
Departments' Response: The Departments concur that discussion of
coordination with core programs and one-stop partners is helpful to
ensure successful joint planning and coordination for both Unified and
Combined State Plans, rather than just the Combined State Plan as had
been proposed. To that end, the Departments added specific reference to
the Unified State Plan to section IV of the WIOA State Plan ICR.
Comments: A few commenters said the review and approval requirement
should be extended to all agencies or entities with responsibility for
Combined State Plan partner programs.
Departments' Response: The Departments maintain that the WIOA State
Plan ICR as written, and as required by WIOA, provides all programs the
opportunity to review and comment on the State Plan. WIOA does not
require Combined State Plan partner programs to approve the Combined
State Plan prior to its submission.
Comments: A commenter said the State Plan process should also
include the expertise and experience of partner organizations that
serve individuals with barriers to employment because they are
important partners in the public workforce system.
Departments' Response: The Departments concur that the State Plan
process should include the expertise and experience of partner
organizations that serve individuals with barriers to employment
because they are important partners in the public workforce system. To
that end, the Departments have added specific mention of organizations
serving individuals with barriers to employment to the common
assurances in section V(4)(a) of the WIOA State Plan ICR. As such,
these organizations are now specifically listed as being among the
stakeholders who should have the opportunity to comment on the Unified
or Combined State Plan.
Comments: A commenter requested a specific number of days for
public comment on the State Plan.
Departments' Response: The Departments decline to set a number of
days for public comment because States may use their own discretion in
providing a reasonable period of time for public comment. Many States
have State laws or regulations that govern the amount of time that must
be provided for public comment.
Comments: Another commenter requested clarification on whether
there are cost limitations for contributions and whether such
contributions shall be factored into infrastructure costs.
Departments' Response: The Departments conclude that the requested
information is not appropriate to the WIOA State Plan ICR so no change
was made. Further specifics on infrastructure costs are provided in the
preamble for the Joint WIOA Final Rule at part 678 and will be provided
in future joint guidance.
Comments: A commenter recommended including explicit reference to
other people with barriers to employment, including individuals with
disabilities, as well as clarification that priority of service to
veterans remains in place.
Departments' Response: Section 3(24) of WIOA defines an
``individual with a barrier to employment,'' which includes many
different populations. Individuals with disabilities are specifically
identified in sec. 3(24)(D) of WIOA. Given the exclusive list of
populations contained in that definition, there is no statutory
authority for the Departments to add other populations to that
definition or to the WIOA State Plan ICR. Requirements for priority of
service for veterans remain in place and are covered in section
III(b)(7) of the WIOA State Plan ICR.
Comments: Another commenter recommended adding the following Common
Assurance: ``The State will negotiate in good faith with the Local
Boards its portion of the shared costs of the one-stop system, in
accordance with WIOA sec. 121, on behalf of all one-stop partners that
are units of State government.''
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. The Departments expect that
States will negotiate in good faith with Local WDBs on one-stop cost
sharing without requiring an assurance that they will do so.
Comments: A commenter said States should be required to describe
how they will meet the statutory requirement to use statewide funds to
support local areas by providing information on, and support for, the
effective development, convening, and implementation of industry or
sector partnerships.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. Other areas of the State
Plan requirements provide adequate information on how the State intends
to implement sector partnerships, and the Departments have concluded it
appropriate to maintain the requirement regarding use of statewide
funds broad enough for States to describe a number of uses of those
funds, required and allowable.
Comments: Some commenters on 20 CFR 683.130 of the DOL WIOA NPRM
were concerned with the Governor's approval of the adult-dislocated
worker funds transfer request and whether the Governor would complete
the request
[[Page 55994]]
timely or would unreasonably deny a request.
Departments' Response: The Departments concur with the comment and
added a requirement to include State-developed criteria for
transferring adult and dislocated worker funds in the plan in order to
provide process transparency to local areas that may request funds
transfers.
Comments: A commenter acknowledged the need to differentiate
training models enumerated in paragraph (b)(1) from apprenticeships,
but said the name ``employer-based'' is more appropriate than the term
``alternative'' in reflecting the widespread use of programs.
Departments' Response: The Departments agree that the language in
section VI(b)(1) of the WIOA State Plan ICR, which governs program-
specific requirements for the adult and dislocated worker programs,
should reflect more specifically the training model, and have amended
the requirement to replace ``alternative'' with ``work-based'' since
``work-based'' more accurately captures the variety of training models
than ``employer-based.''
Comments: Another commenter suggested requiring a policy on
criteria for selecting employers for work-based training.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. Since the Departments
require States to address work-based learning approaches, requiring a
specific policy on employer criteria is not needed because the
description of the State's approach will provide sufficient information
and also provide information to stakeholders.
Comments: A commenter said it was unclear whether the description
of the Training Provider Eligibility Procedure was for initial
eligibility, subsequent eligibility, or both.
Departments' Response: The Departments concur with the commenter
that the proposed language was unclear. Therefore, the Departments
revised the program-specific requirements in the WIOA State Plan ICR
under section VI in subsection (b)(3) for the adult and dislocated
worker programs to specify that the State must provide its training
provider eligibility procedure for both initial and continued
eligibility.
Comments: A commenter asked if it is the intent for the State to
describe how the State ensures that all 14 program elements required
under the youth program are carried out, or some other objective.
Departments' Response: The Departments agree with the concern and
replaced the language in the WIOA State Plan ICR under section VI in
subsection (c)(2), thereby offering more clarity.
Comments: Another commenter said WIOA title I, subtitle B should be
expanded to include assurance that States have a written publicly
available policy that ensures adult program funds provide a priority in
the delivery of career and training services to individuals who are
basic skills deficient.
Departments' Response: The Departments concur that more information
on the implementation of the priority in the use of adult funds for
training services and the individualized career services outlined in
WIOA sec. 134(c)(2)(A)(xii) would be useful, and have included a new
requirement in the WIOA State Plan ICR under section VI in subsection
(b)(4) for the adult program to describe how the State will implement
and monitor the priority of service provisions for public assistance
recipients, other low-income individuals, or individuals who are basic
skills deficient in accordance with the requirements of WIOA sec.
134(c)(3)(E), which applies to training services and individualized
career services funded by the adult formula program. However, the
Departments did not add a requirement that the policy be made publicly
available because the State Plan is already required to be made
publicly available for comment.
Comments: A commenter submitted a comment related to the priority
for use of adult funds stating that DOL should 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. The commenter stated that these data should be utilized
in Federal reviews of State Plans to ensure that system designs and
projected investments are equitably targeted to service-priority
populations and that they should also be used to benchmark system
performance in actual implementation of the priority for the use of
adult funds from year to year.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. The Departments maintain
that the priority for use of adult funds can be made without the use of
Census data, and the approach suggested by the commenter would be
overly burdensome for both State and Federal staff.
Comments: Another commenter said use of the term identification of
UI eligibility issues does not align with language in WIOA, asserting
that there is a fundamental difference between providing assistance in
filing for benefits and determining eligibility.
Departments' Response: The Departments made a change to the WIOA
State Plan ICR in response to this comment by adding ``and referral to
UI staff for adjudication'' to the WIOA State Plan ICR under section VI
in subsection (a)(2) for the Wagner-Peyser Act Employment Service
program. The Departments' intention with the language referenced by the
commenter was not to de-emphasize reemployment services, but rather to
emphasize the importance of enhanced connection between UI and ES/WIOA
staff, and reemphasize the importance of providing reemployment
services to UI claimants and other unemployed individuals. Both WIOA
title I and the Wagner-Peyser Act (as amended by WIOA title III)
contain new language regarding how these programs may provide services
to UI claimants.
Comments: Numerous commenters requested reintroducing the
requirement for SWAs to consult the NFJP grantees as was required in
the regulations at 20 CFR 653.107(d).
Departments' Response: In response to this comment, the Departments
make a change to the WIOA State Plan ICR under section VI in subsection
(e)(4) for the Wagner-Peyser Act Employment Service program because it
will foster greater collaboration between the SWAs and the NFJP
grantees.
Comments: A few commenters said there appears to be no specific
element relating to integrated education and training, as required
under WIOA sec. 102(b)(2)(D)(ii)(II)(dd), and recommended that the
instrument be amended to include a requirement that States describe how
they will fund and support such activities.
Departments' Response: Under section VI of the WIOA State Plan ICR
for the AEFLA (title II) program, States have an opportunity to
describe in subsection (b) how they will fund eligible providers to
establish or operate adult education and literacy activities, including
integrated education and training. The Departments make a small
clarification to the WIOA State Plan ICR.
Comments: A commenter asked for clarification on whether ``eligible
agency'' as used in the Aligning of Content Standards section refers to
State agencies, Local WDBs, and/or adult education providers (WIOA,
AEFLA, etc.).
[[Page 55995]]
Departments' Response: The definition of ``eligible agency'' for
the AEFLA program is located in sec. 203(3) of WIOA.
Comments: A couple of commenters provided input on section (d),
Integrated English Literacy and Civics Education Program. A commenter
expressed concern that the language used in the fourth paragraph of (d)
fails to acknowledge the populations enrolled in integrated literacy
and civics education courses who are already employed and working
towards job advancement and literacy gains. The commenter stated that
plans for program design and success should include not only job
placement outcomes but also job retention and advancement measures. The
other commenter said the Departments should provide flexibility for
program operators to determine the appropriate services to meet the
needs of individual participants, which may not include workforce
preparation and training.
Departments' Response: The Departments delete the paragraph and
move it to the AEFLA program certifications and assurances section,
where the language outlining the two requirements for design of
Integrated English Literacy and Civics Education programs will remain
included as part of the assurance. This language expresses the specific
requirements for design of these programs in sec. 243(c)(1) and (2) of
WIOA.
Comments: A commenter applauded the attention that is given to
reporting coordination and collaboration between State VR agencies and
relevant entities, specifically inter-agency and inter-department
cooperatives.
Departments' Response: No change to the WIOA State Plan ICR is
needed as a result of this comment.
Comments: Another commenter suggested that the State should
describe the manner in which the designated State agency establishes
cooperative agreements with private non-profit VR service providers.
The same commenter stated that the instrument should include a
reference to employers who are Federal contractors to assist with their
compliance with Rehabilitation Act sec. 503 and Vietnam Era Veterans'
Readjustment Assistance Act (VEVRAA). The same commenter also stated
that the instrument should include a section under (j)(1) for those who
are veterans with non-service-connected disabilities on public
assistance. Lastly, the same commenter stated that data should be
disaggregated by age and disability.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment since only those elements
described in sec. 101(a) of the Rehabilitation Act are required to be
included in the VR services portion of the Unified or Combined State
Plan.
Comments: A couple of commenters expressed concern over whether
States will be able to meet current State Plan submission deadlines.
One commenter expressed concern over limitations for tracking client
earnings in the 2nd and 4th quarter due to the lack of data agreements
at the Federal level. The other commenter noted that some core partners
do not collect the information needed to establish a reasonable
baseline of comparison and was uncertain if the requested information
needed to complete the table will be available in time to meet the
State Plan submission deadline.
Departments' Response: The Departments make a change to the WIOA
State Plan ICR in response to these comments by including specific
instructions for how to populate the chart for the first 2 years of the
plan to account for a lack of data availability.
Comments: A commenter recommended developing crosswalks of
substantially similar plan elements and allowing States to respond to
program-specific elements through incorporation by reference of
responses to the Combined State Plan.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. Although the Departments
agree that identical or similar plan provisions relative to required
and optional Combined State Plan partner programs may be ``integrated''
or ``synthesized'' together in the Combined State Plan document, the
Departments decline to develop crosswalks of those elements at this
time. However, in responding to a program-specific requirement that may
be duplicative of an element addressed in other parts of a Combined
State Plan, a State may clearly identify where it thinks it has
responded to the requirement in the plan document. If the provision is
not so identified, then the Federal task of reviewing the document and
rendering a decision on completeness may become a major challenge and
burdensome to the State and Federal staff.
Comments: A joint submission from a couple of commenters requested
clarification on the use of the term ``the State'' as it pertains to
the inclusion of the Carl D. Perkins Career and Technical Education Act
in a Combined State Plan, per the supplemental document entitled,
``Supplement to Workforce Innovation and Opportunity Act- program
specific.'' The commenters asserted that the document uses ``the
State'' in lieu of the statutorily required term ``the State eligible
agency,'' at least as it pertains to what entity is responsible for the
Perkins Act's participation in a Combined State Plan.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. The Departments were not
seeking comment on the program-specific elements for the Perkins
section of the WIOA State Plan ICR since it is a separately approved
data collection.
Comments: A commenter referred to the States' total estimated
burden, which is $141,708, and noted that the Federal burden is
$240,987. The commenter asserted that, unless the $141,708 value of
respondent time is for each of the six core program respondents, the
estimated burden for States to fulfill the program-specific
requirements for all six core programs appears to be significantly
underestimated.
Departments' Response: The Departments concur with the commenter
that the burden estimated for the Federal review was overstated
relative to the State burden. After further analysis of the burden
estimate, the Departments corrected a mathematical error in item #14
that failed to annualize State Plan receipt as was done for the State
burden estimate.
Comments: Another commenter stated that the WIOA State Plan ICR
provides a reasonable synthesis of the required elements and provides
States with sufficient guidance, but certain elements could be
strengthened to ensure that States and programs are moving towards true
alignment across programs.
Departments' Response: The Departments decline to make a change to
the WIOA State Plan ICR because the comment did not suggest one.
Comments: A commenter stated that the draft instrument responds to
many of its concerns, but expressed continued reservations that certain
State Plan elements may not truly reflect the experiences of, or
respond to the needs of, individuals with disabilities.
Departments' Response: The Departments decline to make a change to
the WIOA State Plan ICR in response to the comment because the comment
did not suggest one.
Comments: Another commenter commended the Departments'
collaboration on the instrument but also urged the inclusion of
entities that serve individuals with barriers to employment, including
immigrants, in outreach and technical assistance efforts.
[[Page 55996]]
Departments' Response: The Departments decline to make a change to
the WIOA State Plan ICR in response to the comment because the comment
did not suggest one.
Comments: A commenter appreciated several elements of the WIOA
legislation (e.g., adding adult education as a core program, the bill's
emphasis on college and career readiness) and asserted that the need
for additional funding has never been greater.
Departments' Response: The Departments decline to make a change to
the WIOA State Plan ICR in response to the comment because the comment
did not suggest one.
Comments: Another commenter opposed ``the program'' in general.
Departments' Response: The Departments decline to make a change to
the WIOA State Plan ICR in response to the comment because the comment
did not suggest one.
Comments: A commenter recommended that certain pages of the SCSEP
component related to SCSEP operations be deleted from the SCSEP
Combined State Plan requirements.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment. The Departments are not
seeking comment on these data elements since they are covered by a
separate collection number governing the SCSEP data collection.
Comments: A comment that was submitted through the NPRM stated that
the State Plan should require evidence-based strategies as outlined in
the Job-Driven Training reports.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment since the instrument already
reflects the content of the job-driven report.
Comments: Another comment that was submitted through the NPRM
recommended requiring States to include in the State Plan how they will
use measurable skill gains and a list of the measurable skill gains
they will use.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment since measurable skill gains
are addressed in the WIOA Joint Performance ICR.
Comments: The final comment that was submitted through the NPRM
requested guidance on the burden of technology upgrades.
Departments' Response: The Departments decline to change the WIOA
State Plan ICR in response to this comment but will take it into
account for future guidance or technical assistance.
To see a more detailed view of the responses to public comments,
refer to item 8 of the supporting statements of the information
collections.
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 Departments have
reviewed the Joint WIOA Final Rule in light of these requirements and
have concluded that, with the enactment of WIOA and its clear
requirement to publish national implementing regulations, E.O. sec.
3(b) has been reviewed and its requirement satisfied.
Accordingly, the Departments have reviewed this WIOA-required Joint
Final Rule and have concluded that the rulemaking has no Federalism
implications. The Joint 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. Therefore, the
Departments have concluded 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
Comments: In response to the NPRM, the Departments received some
comments that addressed unfunded mandates. A few commenters asserted
that the requirements to collect data and to report performance are
unfunded mandates. One of the commenters asserted that the cost in
terms of time and technology for integrating individual records across
multiple data systems at the State level is very high. Another one of
the commenters suggested that the rule included other unfunded
mandates, such as sub-minimum wage tracking and pre-employment
transition services set-asides. One commenter added that although grant
funding will be provided by the Federal government, in some States the
grant funds provided for implementation are insufficient to reimburse
the States.
Departments' Response: The Departments acknowledge the commenters'
concerns and detail the cost burden associated with this Joint WIOA
Final Rule in Section V.A (Rulemaking Analyses and Notices). 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.
With respect to the comments pertaining to requirements under the
VR program for the VR agencies to report data regarding individuals
employed at subminimum wage and for States to reserve at least 15
percent of their VR allotment to provide pre-employment transition
services to students with disabilities, ED provides descriptions of
these cost burdens in the RIA of the VR program-specific Final Rule
published elsewhere in this issue of the Federal Register.
The Unfunded Mandates Reform Act of 1995 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 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 was 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 Final Rule.
[[Page 55997]]
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 Departments concluded
that the Joint WIOA Final Rule contained 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: An individual had difficulty understanding many of the
provisions of the proposal and said that the definitions sounded like
the ``fine print'' of a contract.
Departments' Response: The overall format of these WIOA regulations
reflects the Departments' commitment to writing regulations that are
reader-friendly. The Departments have 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 Departments have concluded that the
Departments have drafted this Joint WIOA 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 Departments
have assessed this Joint WIOA Final Rule in light of this requirement
and concluded that the Joint Final Rule will not have a negative effect
on families.
I. Executive Order 13175 (Indian Tribal Governments)
The Departments reviewed the Joint WIOA Final Rule under the terms
of E.O. 13175 and DOL's Tribal Consultation Policy and have concluded
the final regulation would 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. Therefore, as described in the
preamble to the NPRM, the Departments carried out several consultations
with tribal institutions, including tribal officials, which allowed the
tribal officials to provide meaningful and timely input into the
Departments' proposals. Additionally, through the Notice and Comment
rulemaking process, the Departments received comments on the programs
and provisions in WIOA that have tribal implications and the
Departments have responded to these comments throughout the preamble to
the Final Joint and DOL-only regulations.
In addition to the comments received through its Notice and Comment
rulemaking process, the Department of Labor received feedback from the
INA community and the public prior to the publication of the NPRM. This
feedback was summarized in the NPRM at 80 FR 20626-28.
J. Executive Order 12630 (Government Actions and Interference With
Constitutionally Protected Property Rights)
The Departments have concluded that this Joint WIOA 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 Joint WIOA Final Rule was drafted and reviewed in accordance
with E.O. 12988, Civil Justice Reform, and the Departments have
concluded that the Joint Final Rule will not unduly burden the Federal
court system. The Joint WIOA Final Rule was written to minimize
litigation and, to the extent feasible, provide a clear legal standard
for affected conduct. In addition, the Joint WIOA Final Rule has been
reviewed to eliminate drafting errors and ambiguities.
L. Executive Order 13211 (Energy Supply)
This Joint WIOA Final Rule was drafted and reviewed in accordance
with E.O. 13211, Energy Supply. The Departments have concluded the
Joint WIOA 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 Parts 676, 677, and 678
Employment, Grant programs--labor.
34 CFR Part 361
Administrative practice and procedure, Grant programs--education,
Grant programs--social programs, Reporting and recordkeeping
requirements, Vocational rehabilitation.
34 CFR Part 463
Adult education, Grant programs--education, Reporting and
recordkeeping requirements.
Department of Labor
Employment and Training Administration
20 CFR Chapter V
For the reasons stated in the preamble, ETA amends 20 CFR chapter V
as follows:
0
1. Add part 676 to read as follows:
PART 676--UNIFIED AND COMBINED STATE PLANS UNDER TITLE I OF THE
WORKFORCE INNOVATION AND OPPORTUNITY ACT
Sec.
676.100 What are the purposes of the Unified and Combined State
Plans?
676.105 What are the general requirements for the Unified State
Plan?
676.110 What are the program-specific requirements in the Unified
State Plan for the adult, dislocated worker, and youth programs
authorized under Workforce Innovation and Opportunity Act title I?
676.115 What are the program-specific requirements in the Unified
State Plan for the Adult Education and Family Literacy Act program
authorized under Workforce Innovation and Opportunity Act title II?
676.120 What are the program-specific requirements in the Unified
State Plan for the Employment Service program authorized under the
Wagner-Peyser Act, as amended by Workforce Innovation and
Opportunity Act title III?
676.125 What are the program-specific requirements in the Unified
State Plan for the State Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as
amended by Workforce Innovation and Opportunity Act title IV?
[[Page 55998]]
676.130 What is the development, submission, and approval process of
the Unified State Plan?
676.135 What are the requirements for modification of the Unified
State Plan?
676.140 What are the general requirements for submitting a Combined
State Plan?
676.143 What is the development, submission, and approval process of
the Combined State Plan?
676.145 What are the requirements for modifications of the Combined
State Plan?
Authority: Secs. 102, 103, and 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Sec. 676.100 What are the purposes of the Unified and Combined State
Plans?
(a) The Unified and Combined State Plans provide the framework for
States to outline a strategic vision of, and goals for, how their
workforce development systems will achieve the purposes of the
Workforce Innovation and Opportunity Act (WIOA).
(b) The Unified and Combined State Plans serve as 4-year action
plans to develop, align, and integrate the State's systems and provide
a platform to achieve the State's vision and strategic and operational
goals. A Unified or Combined State Plan is intended to:
(1) Align, in strategic coordination, the six core programs
required in the Unified State Plan pursuant to Sec. 676.105(b), and
additional Combined State Plan partner programs that may be part of the
Combined State Plan pursuant to Sec. 676.140;
(2) 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;
(3) Apply strategies for job-driven training consistently across
Federal programs; and
(4) Enable economic, education, and workforce partners to build a
skilled workforce through innovation in, and alignment of, employment,
training, and education programs.
Sec. 676.105 What are the general requirements for the Unified State
Plan?
(a) The Unified State Plan must be submitted in accordance with
Sec. 676.130 and WIOA sec. 102(c), as explained in joint planning
guidelines issued by the Secretaries of Labor and Education.
(b) The Governor of each State must submit, at a minimum, in
accordance with Sec. 676.130, a Unified State Plan to the Secretary of
Labor to be eligible to receive funding for the workforce development
system's six core programs:
(1) The adult, dislocated worker, and youth programs authorized
under subtitle B of title I of WIOA and administered by the U.S.
Department of Labor (DOL);
(2) The Adult Education and Family Literacy Act (AEFLA) program
authorized under title II of WIOA and administered by the U.S.
Department of Education (ED);
(3) The Employment Service program authorized under the Wagner-
Peyser Act of 1933, as amended by WIOA title III and administered by
DOL; and
(4) The Vocational Rehabilitation program authorized under title I
of the Rehabilitation Act of 1973, as amended by title IV of WIOA and
administered by ED.
(c) The Unified State Plan must outline the State's 4-year strategy
for the core programs described in paragraph (b) of this section and
meet the requirements of sec. 102(b) of WIOA, as explained in the joint
planning guidelines issued by the Secretaries of Labor and Education.
(d) The Unified State Plan must include strategic and operational
planning elements to facilitate the development of an aligned,
coordinated, and comprehensive workforce development system. The
Unified State Plan must include:
(1) Strategic planning elements that describe the State's strategic
vision and goals for preparing an educated and skilled workforce under
sec. 102(b)(1) of WIOA. The strategic planning elements must be
informed by and include an analysis of the State's economic conditions
and employer and workforce needs, including education and skill needs.
(2) Strategies for aligning the core programs and Combined State
Plan partner programs as described in Sec. 676.140(d), as well as
other resources available to the State, to achieve the strategic vision
and goals in accordance with sec. 102(b)(1)(E) of WIOA.
(3) Operational planning elements in accordance with sec. 102(b)(2)
of WIOA that support the strategies for aligning the core programs and
other resources available to the State to achieve the State's vision
and goals and a description of how the State Workforce Development
Board (WDB) will implement its functions, in accordance with sec.
101(d) of WIOA. Operational planning elements must include:
(i) A description of how the State strategy will be implemented by
each core program's lead State agency;
(ii) State operating systems, including data systems, and policies
that will support the implementation of the State's strategy identified
in paragraph (d)(1) of this section;
(iii) Program-specific requirements for the core programs required
by WIOA sec. 102(b)(2)(D);
(iv) Assurances required by sec. 102(b)(2)(E) of WIOA, including an
assurance that the lead State agencies responsible for the
administration of the core programs reviewed and commented on the
appropriate operational planning of the Unified State Plan and approved
the elements as serving the needs of the population served by such
programs, and other assurances deemed necessary by the Secretaries of
Labor and Education under sec. 102(b)(2)(E)(x) of WIOA;
(v) A description of joint planning and coordination across core
programs, required one-stop partner programs, and other programs and
activities in the Unified State Plan; and
(vi) Any additional operational planning requirements imposed by
the Secretary of Labor or the Secretary of Education under sec.
102(b)(2)(C)(viii) of WIOA.
(e) All of the requirements in this part that apply to States also
apply to outlying areas.
Sec. 676.110 What are the program-specific requirements in the
Unified State Plan for the adult, dislocated worker, and youth programs
authorized under Workforce Innovation and Opportunity Act title I?
The program-specific requirements for the adult, dislocated worker,
and youth programs that must be included in the Unified State Plan are
described in sec. 102(b)(2)(D) of WIOA. Additional planning
requirements may be explained in joint planning guidelines issued by
the Secretaries of Labor and Education.
Sec. 676.115 What are the program-specific requirements in the
Unified State Plan for the Adult Education and Family Literacy Act
program authorized under Workforce Innovation and Opportunity Act title
II?
The program-specific requirements for the AEFLA program in title II
that must be included in the Unified State Plan are described in secs.
102(b)(2)(C) and 102(b)(2)(D)(ii) of WIOA.
(a) With regard to the description required in sec.
102(b)(2)(D)(ii)(I) of WIOA pertaining to content standards, the
Unified State Plan must describe how the eligible agency will, by July
1, 2016, align its content standards for adult education with State-
adopted challenging academic content standards under the Elementary and
Secondary Education Act of 1965, as amended.
(b) With regard to the description required in sec.
102(b)(2)(C)(iv) of WIOA pertaining to the methods and
[[Page 55999]]
factors the State will use to distribute funds under the core programs,
for title II of WIOA, the Unified State Plan must include--
(1) How the eligible agency will award multi-year grants on a
competitive basis to eligible providers in the State; and
(2) How the eligible agency will provide direct and equitable
access to funds using the same grant or contract announcement and
application procedure.
Sec. 676.120 What are the program-specific requirements in the
Unified State Plan for the Employment Service program authorized under
the Wagner-Peyser Act, as amended by Workforce Innovation and
Opportunity Act title III?
The Employment Service program authorized under the Wagner-Peyser
Act of 1933, as amended by WIOA title III, is subject to requirements
in sec. 102(b) of WIOA, including any additional requirements imposed
by the Secretary of Labor under secs. 102(b)(2)(C)(viii) and
102(b)(2)(D)(iv) of WIOA, as explained in joint planning guidelines
issued by the Secretaries of Labor and Education.
Sec. 676.125 What are the program-specific requirements in the
Unified State Plan for the State Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by Workforce Innovation and Opportunity Act title IV?
The program specific-requirements for the vocational rehabilitation
services portion of the Unified or Combined State Plan are set forth in
sec. 101(a) of the Rehabilitation Act of 1973, as amended. All
submission requirements for the vocational rehabilitation services
portion of the Unified or Combined State Plan are in addition to the
jointly developed strategic and operational content requirements
prescribed by sec. 102(b) of WIOA.
Sec. 676.130 What is the development, submission, and approval
process of the Unified State Plan?
(a) The Unified State Plan described in Sec. 676.105 must be
submitted in accordance with WIOA sec. 102(c), as explained in joint
planning guidelines issued jointly by the Secretaries of Labor and
Education.
(b) A State must submit its Unified State Plan to the Secretary of
Labor pursuant to a process identified by the Secretary.
(1) The initial Unified State Plan must be submitted no later than
120 days prior to the commencement of the second full program year of
WIOA.
(2) Subsequent Unified State Plans must be submitted no later than
120 days prior to the end of the 4-year period covered by a preceding
Unified State Plan.
(3) For purposes of paragraph (b) of this section, ``program year''
means July 1 through June 30 of any year.
(c) The Unified State Plan must be developed with the assistance of
the State WDB, as required by Sec. 679.130(a) of this chapter and WIOA
sec. 101(d), and must be developed in coordination with administrators
with optimum policy-making authority for the core programs and required
one-stop partners.
(d) The State must provide an opportunity for public comment on and
input into the development of the Unified State Plan prior to its
submission.
(1) The opportunity for public comment must include an opportunity
for comment by representatives of Local WDBs and chief elected
officials, businesses, representatives of labor organizations,
community-based organizations, adult education providers, institutions
of higher education, other stakeholders with an interest in the
services provided by the six core programs, and the general public,
including individuals with disabilities.
(2) Consistent with the ``Sunshine Provision'' of WIOA in sec.
101(g), the State WDB must make information regarding the Unified State
Plan available to the public through electronic means and regularly
occurring open meetings in accordance with State law. The Unified State
Plan must describe the State's process and timeline for ensuring a
meaningful opportunity for public comment.
(e) Upon receipt of the Unified State Plan from the State, the
Secretary of Labor will ensure that the entire Unified State Plan is
submitted to the Secretary of Education pursuant to a process developed
by the Secretaries.
(f) The Unified State Plan is subject to the approval of both the
Secretary of Labor and the Secretary of Education.
(g) Before the Secretaries of Labor and Education approve the
Unified State Plan, the vocational rehabilitation services portion of
the Unified State Plan described in WIOA sec. 102(b)(2)(D)(iii) must be
approved by the Commissioner of the Rehabilitation Services
Administration.
(h) The Secretaries of Labor and Education will review and approve
the Unified State Plan within 90 days of receipt by the Secretary of
Labor, unless the Secretary of Labor or the Secretary of Education
determines in writing within that period that:
(1) The plan is inconsistent with a core program's requirements;
(2) The Unified State Plan is inconsistent with any requirement of
sec. 102 of WIOA; or
(3) The plan is incomplete or otherwise insufficient to determine
whether it is consistent with a core program's requirements or other
requirements of WIOA.
(i) If neither the Secretary of Labor nor the Secretary of
Education makes the written determination described in paragraph (h) of
this section within 90 days of the receipt by the Secretaries, the
Unified State Plan will be considered approved.
Sec. 676.135 What are the requirements for modification of the
Unified State Plan?
(a) In addition to the required modification review set forth in
paragraph (b) of this section, a Governor may submit a modification of
its Unified State Plan at any time during the 4-year period of the
plan.
(b) Modifications are required, at a minimum:
(1) At the end of the first 2-year period of any 4-year State Plan,
wherein the State WDB must review the Unified State Plan, and the
Governor must submit modifications to the plan to reflect changes in
labor market and economic conditions or other factors affecting the
implementation of the Unified State Plan;
(2) When changes in Federal or State law or policy substantially
affect the strategies, goals, and priorities upon which the Unified
State Plan is based;
(3) When there are changes in the statewide vision, strategies,
policies, State negotiated levels of performance as described in Sec.
677.170(b) of this chapter, the methodology used to determine local
allocation of funds, reorganizations that change the working
relationship with system employees, changes in organizational
responsibilities, changes to the membership structure of the State WDB
or alternative entity, and similar substantial changes to the State's
workforce development system.
(c) Modifications to the Unified State Plan are subject to the same
public review and comment requirements in Sec. 676.130(d) that apply
to the development of the original Unified State Plan.
(d) Unified State Plan modifications must be approved by the
Secretaries of Labor and Education, based on the approval standards
applicable to the original Unified State Plan under Sec. 676.130. This
approval must come after the approval of the Commissioner of the
Rehabilitation Services
[[Page 56000]]
Administration for modification of any portion of the plan described in
sec. 102(b)(2)(D)(iii) of WIOA.
Sec. 676.140 What are the general requirements for submitting a
Combined State Plan?
(a) A State may choose to develop and submit a 4-year Combined
State Plan in lieu of the Unified State Plan described in Sec. Sec.
676.105 through 676.125.
(b) A State that submits a Combined State Plan covering an activity
or program described in paragraph (d) of this section that is, in
accordance with WIOA sec. 103(c), approved or deemed complete under the
law relating to the program will not be required to submit any other
plan or application in order to receive Federal funds to carry out the
core programs or the program or activities described under paragraph
(d) of this section that are covered by the Combined State Plan.
(c) If a State develops a Combined State Plan, it must be submitted
in accordance with the process described in Sec. 676.143.
(d) If a State chooses to submit a Combined State Plan, the plan
must include the six core programs and one or more of the Combined
State Plan partner programs and activities described in sec. 103(a)(2)
of WIOA. The Combined State Plan partner programs and activities that
may be included in the Combined State Plan are:
(1) Career and technical education programs authorized under the
Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C.
2301 et seq.);
(2) Temporary Assistance for Needy Families or TANF, authorized
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.);
(3) Employment and training programs authorized under sec. 6(d)(4)
of the Food and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
(4) Work programs authorized under sec. 6(o) of the Food and
Nutrition Act of 2008 (7 U.S.C. 2015(o));
(5) Trade adjustment assistance activities under chapter 2 of title
II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
(6) Services for veterans authorized under chapter 41 of title 38
United States Code;
(7) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law);
(8) Senior Community Service Employment Programs under title V of
the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
(9) Employment and training activities carried out by the
Department of Housing and Urban Development (HUD);
(10) Employment and training activities carried out under the
Community Services Block Grant Act (42 U.S.C. 9901 et seq.); and
(11) Reintegration of offenders programs authorized under sec. 212
of the Second Chance Act of 2007 (42 U.S.C. 17532).
(e) A Combined State Plan must contain:
(1) For the core programs, the information required by sec. 102(b)
of WIOA and Sec. Sec. 676.105 through 676.125, as explained in the
joint planning guidelines issued by the Secretaries;
(2) For the Combined State Plan partner programs and activities,
except as described in paragraph (h) of this section, the information
required by the law authorizing and governing that program to be
submitted to the appropriate Secretary, any other applicable legal
requirements, and any common planning requirements described in sec.
102(b) of WIOA, as explained in the joint planning guidelines issued by
the Secretaries;
(3) A description of the methods used for joint planning and
coordination among the core programs, and with the required one-stop
partner programs and other programs and activities included in the
State Plan; and
(4) An assurance that all of the entities responsible for planning
or administering the programs described in the Combined State Plan have
had a meaningful opportunity to review and comment on all portions of
the plan.
(f) Each Combined State Plan partner program included in the
Combined State Plan remains subject to the applicable program-specific
requirements of the Federal law and regulations, and any other
applicable legal or program requirements, governing the implementation
and operation of that program.
(g) For purposes of Sec. Sec. 676.140 through 676.145 the term
``appropriate Secretary'' means the head of the Federal agency who
exercises either plan or application approval authority for the program
or activity under the Federal law authorizing the program or activity
or, if there are no planning or application requirements, who exercises
administrative authority over the program or activity under that
Federal law.
(h) States that include employment and training activities carried
out under the Community Services Block Grant (CSBG) Act (42 U.S.C. 9901
et seq.) under a Combined State Plan would submit all other required
elements of a complete CSBG State Plan directly to the Federal agency
that administers the program, according to the requirements of Federal
law and regulations.
(i) States that submit employment and training activities carried
out by HUD under a Combined State Plan would submit any other required
planning documents for HUD programs directly to HUD, according to the
requirements of Federal law and regulations.
Sec. 676.143 What is the development, submission, and approval
process of the Combined State Plan?
(a) For purposes of Sec. 676.140(a), if a State chooses to develop
a Combined State Plan it must submit the Combined State Plan in
accordance with the requirements described below and sec. 103 of WIOA,
as explained in the joint planning guidelines issued by the Secretaries
of Labor and Education.
(b) The Combined State Plan must be developed with the assistance
of the State WDB, as required by Sec. 679.130(a) of this chapter and
WIOA sec. 101(d), and must be developed in coordination with
administrators with optimum policy-making authority for the core
programs and required one-stop partners.
(c) The State must provide an opportunity for public comment on and
input into the development of the Combined State Plan prior to its
submission.
(1) The opportunity for public comment for the portions of the
Combined State Plan that cover the core programs must include an
opportunity for comment by representatives of Local WDBs and chief
elected officials, businesses, representatives of labor organizations,
community-based organizations, adult education providers, institutions
of higher education, other stakeholders with an interest in the
services provided by the six core programs, and the general public,
including individuals with disabilities.
(2) Consistent with the ``Sunshine Provision'' of WIOA in sec.
101(g), the State WDB must make information regarding the Combined
State Plan available to the public through electronic means and
regularly occurring open meetings in accordance with State law. The
Combined State Plan must describe the State's process and timeline for
ensuring a meaningful opportunity for public comment on the portions of
the plan covering core programs.
(3) The portions of the plan that cover the Combined State Plan
partner programs are subject to any public comment requirements
applicable to those programs.
[[Page 56001]]
(d) The State must submit to the Secretaries of Labor and Education
and to the Secretary of the agency with responsibility for approving
the program's plan or deeming it complete under the law governing the
program, as part of its Combined State Plan, any plan, application,
form, or any other similar document that is required as a condition for
the approval of Federal funding under the applicable program or
activity. Such submission must occur in accordance with a process
identified by the relevant Secretaries in paragraph (a) of this
section.
(e) The Combined State Plan will be approved or disapproved in
accordance with the requirements of sec. 103(c) of WIOA.
(1) The portion of the Combined State Plan covering programs
administered by the Departments of Labor and Education must be
reviewed, and approved or disapproved, by the appropriate Secretary
within 90 days beginning on the day the Combined State Plan is received
by the appropriate Secretary from the State, consistent with paragraph
(f) of this section. Before the Secretaries of Labor and Education
approve the Combined State Plan, the vocational rehabilitation services
portion of the Combined State Plan described in WIOA sec.
102(b)(2)(D)(iii) must be approved by the Commissioner of the
Rehabilitation Services Administration.
(2) If an appropriate Secretary other than the Secretary of Labor
or the Secretary of Education has authority to approve or deem complete
a portion of the Combined State Plan for a program or activity
described in Sec. 676.140(d), that portion of the Combined State Plan
must be reviewed, and approved, disapproved, or deemed complete, by the
appropriate Secretary within 120 days beginning on the day the Combined
State Plan is received by the appropriate Secretary from the State
consistent with paragraph (f) of this section.
(f) The appropriate Secretaries will review and approve or deem
complete the Combined State Plan within 90 or 120 days, as appropriate,
as described in paragraph (e) of this section, unless the Secretaries
of Labor and Education or appropriate Secretary have determined in
writing within that period that:
(1) The Combined State Plan is inconsistent with the requirements
of the six core programs or the Federal laws authorizing or applicable
to the program or activity involved, including the criteria for
approval of a plan or application, or deeming the plan complete, if
any, under such law;
(2) The portion of the Combined State Plan describing the six core
programs or the program or activity described in paragraph (a) of this
section involved does not satisfy the criteria as provided in sec. 102
or 103 of WIOA, as applicable; or
(3) The Combined State Plan is incomplete, or otherwise
insufficient to determine whether it is consistent with a core
program's requirements, other requirements of WIOA, or the Federal laws
authorizing, or applicable to, the program or activity described in
Sec. 676.140(d), including the criteria for approval of a plan or
application, if any, under such law.
(g) If the Secretary of Labor, the Secretary of Education, or the
appropriate Secretary does not make the written determination described
in paragraph (f) of this section within the relevant period of time
after submission of the Combined State Plan, that portion of the
Combined State Plan over which the Secretary has jurisdiction will be
considered approved.
(h) The Secretaries of Labor and Education's written determination
of approval or disapproval regarding the portion of the plan for the
six core programs may be separate from the written determination of
approval, disapproval, or completeness of the program-specific
requirements of Combined State Plan partner programs and activities
described in Sec. 676.140(d) and included in the Combined State Plan.
(i) Special rule. In paragraphs (f)(1) and (3) of this section, the
term ``criteria for approval of a plan or application,'' with respect
to a State or a core program or a program under the Carl D. Perkins
Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.),
includes a requirement for agreement between the State and the
appropriate Secretaries regarding State performance measures or State
performance accountability measures, as the case may be, including
levels of performance.
Sec. 676.145 What are the requirements for modifications of the
Combined State Plan?
(a) For the core program portions of the Combined State Plan,
modifications are required, at a minimum:
(1) By the end of the first 2-year period of any 4-year State Plan.
The State WDB must review the Combined State Plan, and the Governor
must submit modifications to the Combined State Plan to reflect changes
in labor market and economic conditions or other factors affecting the
implementation of the Combined State Plan;
(2) When changes in Federal or State law or policy substantially
affect the strategies, goals, and priorities upon which the Combined
State Plan is based;
(3) When there are changes in the statewide vision, strategies,
policies, State negotiated levels of performance as described in Sec.
677.170(b) of this chapter, the methodology used to determine local
allocation of funds, reorganizations that change the working
relationship with system employees, changes in organizational
responsibilities, changes to the membership structure of the State WDB
or alternative entity, and similar substantial changes to the State's
workforce development system.
(b) In addition to the required modification review described in
paragraph (a)(1) of this section, a State may submit a modification of
its Combined State Plan at any time during the 4-year period of the
plan.
(c) For any Combined State Plan partner programs and activities
described in Sec. 676.140(d) that are included in a State's Combined
State Plan, the State--
(1) May decide if the modification requirements under WIOA sec.
102(c)(3) that apply to the core programs will apply to the Combined
State Plan partner programs, as long as consistent with any other
modification requirements for the programs, or may comply with the
requirements applicable to only the particular program or activity; and
(2) Must submit, in accordance with the procedure described in
Sec. 676.143, any modification, amendment, or revision required by the
Federal law authorizing, or applicable to, the Combined State Plan
partner program or activity.
(i) If the underlying programmatic requirements change (e.g., the
authorizing statute is reauthorized) for Federal laws authorizing such
programs, a State must either modify its Combined State Plan or submit
a separate plan to the appropriate Federal agency in accordance with
the new Federal law authorizing the Combined State Plan partner program
or activity and other legal requirements applicable to such program or
activity.
(ii) If the modification, amendment, or revision affects the
administration of only that particular Combined State Plan partner
program and has no impact on the Combined State Plan as a whole or the
integration and administration of the core and other Combined State
Plan partner programs at the State level, modifications must be
submitted for approval to only the appropriate
[[Page 56002]]
Secretary, based on the approval standards applicable to the original
Combined State Plan under Sec. 676.143, if the State elects, or in
accordance with the procedures and requirements applicable to the
particular Combined State Plan partner program.
(3) A State also may amend its Combined State Plan to add a
Combined State Plan partner program or activity described in Sec.
676.140(d).
(d) Modifications of the Combined State Plan are subject to the
same public review and comment requirements that apply to the
development of the original Combined State Plan as described in Sec.
676.143(c) except that, if the modification, amendment, or revision
affects the administration of a particular Combined State Plan partner
program and has no impact on the Combined State Plan as a whole or the
integration and administration of the core and other Combined State
Plan partner programs at the State level, a State may comply instead
with the procedures and requirements applicable to the particular
Combined State Plan partner program.
(e) Modifications for the core program portions of the Combined
State Plan must be approved by the Secretaries of Labor and Education,
based on the approval standards applicable to the original Combined
State Plan under Sec. 676.143. This approval must come after the
approval of the Commissioner of the Rehabilitation Services
Administration for modification of any portion of the Combined State
Plan described in sec. 102(b)(2)(D)(iii) of WIOA.
0
2. Add part 677 to read as follows:
PART 677--PERFORMANCE ACCOUNTABILITY UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Sec.
677.150 What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?
Subpart A--State Indicators of Performance for Core Programs
677.155 What are the primary indicators of performance under the
Workforce Innovation and Opportunity Act?
677.160 What information is required for State performance reports?
677.165 May a State establish additional indicators of performance?
677.170 How are State levels of performance for primary indicators
established?
677.175 What responsibility do States have to use quarterly wage
record information for performance accountability?
Subpart B--Sanctions for State Performance and the Provision of
Technical Assistance
677.180 When is a State subject to a financial sanction under the
Workforce Innovation and Opportunity Act?
677.185 When are sanctions applied for a State's failure to submit
an annual performance report?
677.190 When are sanctions applied for failure to achieve adjusted
levels of performance?
677.195 What should States expect when a sanction is applied to the
Governor's Reserve Allotment?
677.200 What other administrative actions will be applied to States'
performance requirements?
Subpart C--Local Performance Accountability for Workforce Innovation
and Opportunity Act Title I Programs
677.205 What performance indicators apply to local areas and what
information must be included in local area performance reports?
677.210 How are local performance levels established?
Subpart D--Incentives and Sanctions for Local Performance for Workforce
Innovation and Opportunity Act Title I Programs
677.215 Under what circumstances are local areas eligible for State
Incentive Grants?
677.220 Under what circumstances may a corrective action or sanction
be applied to local areas for poor performance?
677.225 Under what circumstances may local areas appeal a
reorganization plan?
Subpart E--Eligible Training Provider Performance for Workforce
Innovation and Opportunity Act Title I Programs
677.230 What information is required for the eligible training
provider performance reports?
Subpart F--Performance Reporting Administrative Requirements
677.235 What are the reporting requirements for individual records
for core Workforce Innovation and Opportunity Act (WIOA) title I
programs; the Wagner-Peyser Act Employment Service program, as
amended by WIOA title III; and the Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV?
677.240 What are the requirements for data validation of State
annual performance reports?
Authority: Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Sec. 677.150 What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?
(a) Participant. A reportable individual who has received services
other than the services described in paragraph (a)(3) of this section,
after satisfying all applicable programmatic requirements for the
provision of services, such as eligibility determination.
(1) For the Vocational Rehabilitation (VR) program, a participant
is a reportable individual who has an approved and signed
Individualized Plan for Employment (IPE) and has begun to receive
services.
(2) For the Workforce Innovation and Opportunity Act (WIOA) title I
youth program, a participant is a reportable individual who has
satisfied all applicable program requirements for the provision of
services, including eligibility determination, an objective assessment,
and development of an individual service strategy, and received 1 of
the 14 WIOA youth program elements identified in sec. 129(c)(2) of
WIOA.
(3) The following individuals are not participants:
(i) Individuals in an Adult Education and Family Literacy Act
(AEFLA) program who have not completed at least 12 contact hours;
(ii) Individuals who only use the self-service system.
(A) Subject to paragraph (a)(3)(ii)(B) of this section, self-
service occurs when individuals independently access any workforce
development system program's information and activities in either a
physical location, such as a one-stop center resource room or partner
agency, or remotely via the use of electronic technologies.
(B) Self-service does not uniformly apply to all virtually accessed
services. For example, virtually accessed services that provide a level
of support beyond independent job or information seeking on the part of
an individual would not qualify as self-service.
(iii) Individuals who receive information-only services or
activities, which provide readily available information that does not
require an assessment by a staff member of the individual's skills,
education, or career objectives.
(4) Programs must include participants in their performance
calculations.
(b) Reportable individual. An individual who has taken action that
demonstrates an intent to use program services and who meets specific
reporting criteria of the program, 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.
(c) Exit. As defined for the purpose of performance calculations,
exit is the
[[Page 56003]]
point after which a participant who has received services through any
program meets the following criteria:
(1) For the adult, dislocated worker, and youth programs authorized
under WIOA title I, the AEFLA program authorized under WIOA title II,
and the Employment Service program authorized under the Wagner-Peyser
Act, as amended by WIOA title III, exit date is the last date of
service.
(i) The last day of service cannot be determined until at least 90
days have elapsed since the participant last received services;
services do not include self-service, information-only services or
activities, or follow-up services. This also requires that there are no
plans to provide the participant with future services.
(ii) [Reserved].
(2)(i) For the VR program authorized under title I of the
Rehabilitation Act of 1973, as amended by WIOA title IV (VR program):
(A) The participant's record of service is closed in accordance
with 34 CFR 361.56 because the participant has achieved an employment
outcome; or
(B) The participant's service record is closed because the
individual has not achieved an employment outcome or the individual has
been determined ineligible after receiving services in accordance with
34 CFR 361.43.
(ii) Notwithstanding any other provision of this section, a
participant will not be considered as meeting the definition of exit
from the VR program if the participant's service record is closed
because the participant has achieved a supported employment outcome in
an integrated setting but not in competitive integrated employment.
(3)(i) A State may implement a common exit policy for all or some
of the core programs in WIOA title I and the Employment Service program
authorized under the Wagner-Peyser Act, as amended by WIOA title III,
and any additional required partner program(s) listed in sec.
121(b)(1)(B) of WIOA that is under the authority of the U.S. Department
of Labor (DOL).
(ii) If a State chooses to implement a common exit policy, the
policy must require that a participant is exited only when all of the
criteria in paragraph (c)(1) of this section are met for the WIOA title
I core programs and the Employment Service program authorized under the
Wagner-Peyser Act, as amended by WIOA title III, as well as any
additional required partner programs listed in sec. 121(b)(1)(B) of
WIOA under the authority of DOL to which the common exit policy applies
in which the participant is enrolled.
(d) State. For purposes of this part, other than in regard to
sanctions or the statistical adjustment model, all references to
``State'' include the outlying areas of American Samoa, Guam,
Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands,
and, as applicable, the Republic of Palau.
Subpart A--State Indicators of Performance for Core Programs
Sec. 677.155 What are the primary indicators of performance under the
Workforce Innovation and Opportunity Act?
(a) All States submitting either a Unified or Combined State Plan
under Sec. Sec. 676.130 and 676.143 of this chapter, must propose
expected levels of performance for each of the primary indicators of
performance for the adult, dislocated worker, and youth programs
authorized under WIOA title I; the AEFLA program authorized under WIOA
title II; the Employment Service program authorized under the Wagner-
Peyser Act, as amended by WIOA title III; and the VR program authorized
under title I of the Rehabilitation Act of 1973, as amended by WIOA
title IV.
(1) Primary indicators of performance. The six primary indicators
of performance for the adult and dislocated worker programs, the AEFLA
program, and the VR program are:
(i) The percentage of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(ii) The percentage of participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(iii) Median earnings of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(iv)(A) The percentage of those participants enrolled in an
education or training program (excluding those in on-the-job training
[OJT] and customized training) who attained 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.
(B) A participant who has attained a secondary school diploma or
its recognized equivalent is included in the percentage of participants
who have attained a secondary school diploma or recognized equivalent
only if the participant also is employed or is enrolled in an education
or training program leading to a recognized postsecondary credential
within 1 year after exit from the program;
(v) The percentage of 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, defined as documented academic, technical, occupational,
or other forms of progress, towards such a credential or employment.
Depending upon the type of education or training program, documented
progress is defined as one of the following:
(A) Documented achievement of at least one educational functioning
level of a participant who is receiving instruction below the
postsecondary education level;
(B) Documented attainment of a secondary school diploma or its
recognized equivalent;
(C) Secondary or postsecondary transcript or report card for a
sufficient number of credit hours that shows a participant is meeting
the State unit's academic standards;
(D) Satisfactory or better progress report, towards established
milestones, such as completion of OJT or completion of 1 year of an
apprenticeship program or similar milestones, from an employer or
training provider who is providing training; or
(E) Successful passage of an exam that is required for a particular
occupation or progress in attaining technical or occupational skills as
evidenced by trade-related benchmarks such as knowledge-based exams.
(vi) Effectiveness in serving employers.
(2) Participants. For purposes of the primary indicators of
performance in paragraph (a)(1) of this section, ``participant'' will
have the meaning given to it in Sec. 677.150(a), except that--
(i) For purposes of determining program performance levels under
indicators set forth in paragraphs (a)(1)(i) through (iv) and (vi) of
this section, a ``participant'' does not include a participant who
received services under sec. 225 of WIOA and exits such program while
still in a correctional institution as defined in sec. 225(e)(1) of
WIOA; and
(ii) The Secretaries of Labor and Education may, as needed and
consistent with the Paperwork Reduction Act (PRA), make further
determinations as to the participants to be included in calculating
program performance levels for purposes of any of the performance
indicators set forth in paragraph (a)(1) of this section.
(b) The primary indicators in paragraphs (a)(1)(i) through (iii)
and (vi) of this section apply to the Employment
[[Page 56004]]
Service program authorized under the Wagner-Peyser Act, as amended by
WIOA title III.
(c) For the youth program authorized under WIOA title I, the
primary indicators are:
(1) Percentage of participants who are in education or training
activities, or in unsubsidized employment, during the second quarter
after exit from the program;
(2) Percentage of participants in education or training activities,
or in unsubsidized employment, during the fourth quarter after exit
from the program;
(3) Median earnings of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(4) The percentage of those participants enrolled in an education
or training program (excluding those in OJT and customized training)
who obtained 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, except that a participant
who has attained a secondary school diploma or its recognized
equivalent is included as having attained a secondary school diploma or
recognized equivalent only if the participant is also employed or is
enrolled in an education or training program leading to a recognized
postsecondary credential within 1 year from program exit;
(5) The percentage of 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, defined as documented academic, technical, occupational or
other forms of progress towards such a credential or employment.
Depending upon the type of education or training program, documented
progress is defined as one of the following:
(i) Documented achievement of at least one educational functioning
level of a participant who is receiving instruction below the
postsecondary education level;
(ii) Documented attainment of a secondary school diploma or its
recognized equivalent;
(iii) Secondary or postsecondary transcript or report card for a
sufficient number of credit hours that shows a participant is achieving
the State unit's academic standards;
(iv) Satisfactory or better progress report, towards established
milestones, such as completion of OJT or completion of 1 year of an
apprenticeship program or similar milestones, from an employer or
training provider who is providing training; or
(v) Successful passage of an exam that is required for a particular
occupation or progress in attaining technical or occupational skills as
evidenced by trade-related benchmarks such as knowledge-based exams.
(6) Effectiveness in serving employers.
Sec. 677.160 What information is required for State performance
reports?
(a) The State performance report required by sec. 116(d)(2) of WIOA
must be submitted annually using a template the Departments of Labor
and Education will disseminate, and must provide, at a minimum,
information on the actual performance levels achieved consistent with
Sec. 677.175 with respect to:
(1) The total number of participants served, and the total number
of participants who exited each of the core programs identified in sec.
116(b)(3)(A)(ii) of WIOA, including disaggregated counts of those who
participated in and exited a core program, by:
(i) Individuals with barriers to employment as defined in WIOA sec.
3(24); and
(ii) Co-enrollment in any of the programs in WIOA sec.
116(b)(3)(A)(ii).
(2) Information on the performance levels achieved for the primary
indicators of performance for all of the core programs identified in
Sec. 677.155 including disaggregated levels for:
(i) Individuals with barriers to employment as defined in WIOA sec.
3(24);
(ii) Age;
(iii) Sex; and
(iv) Race and ethnicity.
(3) The total number of participants who received career services
and the total number of participants who exited from career services
for the most recent program year and the 3 preceding program years, and
the total number of participants who received training services and the
total number of participants who exited from training services for the
most recent program year and the 3 preceding program years, as
applicable to the program;
(4) Information on the performance levels achieved for the primary
indicators of performance consistent with Sec. 677.155 for career
services and training services for the most recent program year and the
3 preceding program years, as applicable to the program;
(5) The percentage of participants in a program who attained
unsubsidized employment related to the training received (often
referred to as training-related employment) through WIOA title I,
subtitle B programs;
(6) The amount of funds spent on career services and the amount of
funds spent on training services for the most recent program year and
the 3 preceding program years, as applicable to the program;
(7) The average cost per participant for those participants who
received career services and training services, respectively, during
the most recent program year and the 3 preceding program years, as
applicable to the program;
(8) The percentage of a State's annual allotment under WIOA sec.
132(b) that the State spent on administrative costs; and
(9) Information that facilitates comparisons of programs with
programs in other States.
(10) For WIOA title I programs, a State performance narrative,
which, for States in which a local area is implementing a pay-for-
performance contracting strategy, at a minimum provides:
(i) A description of pay-for-performance contract strategies being
used for programs;
(ii) The performance of service providers entering into contracts
for such strategies, measured against the levels of performance
specified in the contracts for such strategies; and
(iii) An evaluation of the design of the programs and performance
strategies and, when available, the satisfaction of employers and
participants who received services under such strategies.
(b) The disaggregation of data for the State performance report
must be done in compliance with WIOA sec. 116(d)(6)(C).
(c) The State performance reports must include a mechanism of
electronic access to the State's local area and eligible training
provider (ETP) performance reports.
(d) States must comply with these requirements from sec. 116 of
WIOA as explained in joint guidance issued by the Departments of Labor
and Education, which may include information on reportable individuals
as determined by the Secretaries of Labor and Education.
Sec. 677.165 May a State establish additional indicators of
performance?
States may identify additional indicators of performance for the
six core programs. If a State does so, these indicators must be
included in the Unified or Combined State Plan.
[[Page 56005]]
Sec. 677.170 How are State levels of performance for primary
indicators established?
(a) A State must submit in the State Plan expected levels of
performance on the primary indicators of performance for each core
program as required by sec. 116(b)(3)(A)(iii) of WIOA as explained in
joint guidance issued by the Secretaries of Labor and Education.
(1) The initial State Plan submitted under WIOA must contain
expected levels of performance for the first 2 years of the State Plan.
(2) States must submit expected levels of performance for the third
and fourth year of the State Plan before the third program year
consistent with Sec. Sec. 676.135 and 676.145 of this chapter.
(b) States must reach agreement on levels of performance with the
Secretaries of Labor and Education for each indicator for each core
program. These are the negotiated levels of performance. The negotiated
levels must be based on the following factors:
(1) How the negotiated levels of performance compare with State
levels of performance established for other States;
(2) The application of an objective statistical model established
by the Secretaries of Labor and Education, subject to paragraph (d) of
this section;
(3) How the negotiated levels promote continuous improvement in
performance based on the primary indicators and ensure optimal return
on investment of Federal funds; and
(4) The extent to which the negotiated levels assist the State in
meeting the performance goals established by the Secretaries of Labor
and Education for the core programs in accordance with the Government
Performance and Results Act of 1993, as amended.
(c) An objective statistical adjustment model will be developed and
disseminated by the Secretaries of Labor and Education. The model will
be based on:
(1) Differences among States in actual economic conditions,
including but not limited to unemployment rates and job losses or gains
in particular industries; and
(2) The characteristics of participants, including but not limited
to:
(i) Indicators of poor work history;
(ii) Lack of work experience;
(iii) Lack of educational or occupational skills attainment;
(iv) Dislocation from high-wage and high-benefit employment;
(v) Low levels of literacy;
(vi) Low levels of English proficiency;
(vii) Disability status;
(viii) Homelessness;
(ix) Ex-offender status; and
(x) Welfare dependency.
(d) The objective statistical adjustment model developed under
paragraph (c) of this section will be:
(1) Applied to the core programs' primary indicators upon
availability of data which are necessary to populate the model and
apply the model to the local core programs;
(2) Subject to paragraph (d)(1) of this section, used before the
beginning of a program year in order to reach agreement on State
negotiated levels for the upcoming program year; and
(3) Subject to paragraph (d)(1) of this section, used to revise
negotiated levels at the end of a program year based on actual economic
conditions and characteristics of participants served, consistent with
sec. 116(b)(3)(A)(vii) of WIOA.
(e) The negotiated levels revised at the end of the program year,
based on the statistical adjustment model, are the adjusted levels of
performance.
(f) States must comply with these requirements from sec. 116 of
WIOA as explained in joint guidance issued by the Departments of Labor
and Education.
Sec. 677.175 What responsibility do States have to use quarterly wage
record information for performance accountability?
(a)(1) States must, consistent with State laws, use quarterly wage
record information in measuring a State's performance on the primary
indicators of performance outlined in Sec. 677.155 and a local area's
performance on the primary indicators of performance identified in
Sec. 677.205.
(2) The use of social security numbers from participants and such
other information as is necessary to measure the progress of those
participants through quarterly wage record information is authorized.
(3) To the extent that quarterly wage records are not available for
a participant, States may use other information as is necessary to
measure the progress of those participants through methods other than
quarterly wage record information.
(b) ``Quarterly wage record information'' means intrastate and
interstate wages paid to an individual, the social security number (or
numbers, if more than one) of the individual, and the name, address,
State, and the Federal employer identification number of the employer
paying the wages to the individual.
(c) The Governor may designate a State agency (or appropriate State
entity) to assist in carrying out the performance reporting
requirements for WIOA core programs and ETPs. The Governor or such
agency (or appropriate State entity) is responsible for:
(1) Facilitating data matches;
(2) Data quality reliability; and
(3) Protection against disaggregation that would violate applicable
privacy standards.
Subpart B--Sanctions for State Performance and the Provision of
Technical Assistance
Sec. 677.180 When is a State subject to a financial sanction under
the Workforce Innovation and Opportunity Act?
A State will be subject to financial sanction under WIOA sec.
116(f) if it fails to:
(a) Submit the State annual performance report required under WIOA
sec. 116(d)(2); or
(b) Meet adjusted levels of performance for the primary indicators
of performance in accordance with sec. 116(f) of WIOA.
Sec. 677.185 When are sanctions applied for a State's failure to
submit an annual performance report?
(a) Sanctions will be applied when a State fails to submit the
State annual performance report required under sec. 116(d)(2) of WIOA.
A State fails to report if the State either:
(1) Does not submit a State annual performance report by the date
for timely submission set in performance reporting guidance; or
(2) Submits a State annual performance report by the date for
timely submission, but the report is incomplete.
(b) Sanctions will not be applied if the reporting failure is due
to exceptional circumstances outside of the State's control.
Exceptional circumstances may include, but are not limited to:
(1) Natural disasters;
(2) Unexpected personnel transitions; and
(3) Unexpected technology related issues.
(c) In the event that a State may not be able to submit a complete
and accurate performance report by the deadline for timely reporting:
(1) The State must notify the Secretary of Labor or Secretary of
Education as soon as possible, but no later than 30 days prior to the
established deadline for submission, of a potential impact on the
State's ability to submit its State annual performance report in order
to not be considered failing to report.
(2) In circumstances where unexpected events occur less than 30
days before the established deadline for submission of the State annual
performance reports, the Secretaries of
[[Page 56006]]
Labor and Education will review requests for extending the reporting
deadline in accordance with the Departments of Labor and Education's
procedures that will be established in guidance.
Sec. 677.190 When are sanctions applied for failure to achieve
adjusted levels of performance?
(a) States' negotiated levels of performance will be adjusted
through the application of the statistical adjustment model established
under Sec. 677.170 to account for actual economic conditions
experienced during a program year and characteristics of participants,
annually at the close of each program year.
(b) Any State that fails to meet adjusted levels of performance for
the primary indicators of performance outlined in Sec. 677.155 for any
year will receive technical assistance, including assistance in the
development of a performance improvement plan provided by the Secretary
of Labor or Secretary of Education.
(c) Whether a State has failed to meet adjusted levels of
performance will be determined using the following three criteria:
(1) The overall State program score, which is expressed as the
percent achieved, compares the actual results achieved by a core
program on the primary indicators of performance to the adjusted levels
of performance for that core program. The average of the percentages
achieved of the adjusted level of performance for each of the primary
indicators by a core program will constitute the overall State program
score.
(2) However, until all indicators for the core program have at
least 2 years of complete data, the overall State program score will be
based on a comparison of the actual results achieved to the adjusted
level of performance for each of the primary indicators that have at
least 2 years of complete data for that program;
(3) The overall State indicator score, which is expressed as the
percent achieved, compares the actual results achieved on a primary
indicator of performance by all core programs in a State to the
adjusted levels of performance for that primary indicator. The average
of the percentages achieved of the adjusted level of performance by all
of the core programs on that indicator will constitute the overall
State indicator score.
(4) However, until all indicators for the State have at least 2
years of complete data, the overall State indicator score will be based
on a comparison of the actual results achieved to the adjusted level of
performance for each of the primary indicators that have at least 2
years of complete data in a State.
(5) The individual indicator score, which is expressed as the
percent achieved, compares the actual results achieved by each core
program on each of the individual primary indicators to the adjusted
levels of performance for each of the program's primary indicators of
performance.
(d) A performance failure occurs when:
(1) Any overall State program score or overall State indicator
score falls below 90 percent for the program year; or
(2) Any of the States' individual indicator scores fall below 50
percent for the program year.
(e) Sanctions based on performance failure will be applied to
States if, for 2 consecutive years, the State fails to meet:
(1) 90 percent of the overall State program score for the same core
program;
(2) 90 percent of the overall State indicator score for the same
primary indicator; or
(3) 50 percent of the same indicator score for the same program.
Sec. 677.195 What should States expect when a sanction is applied to
the Governor's Reserve Allotment?
(a) The Secretaries of Labor and Education will reduce the
Governor's Reserve Allotment by five percent of the maximum available
amount for the immediately succeeding program year if:
(1) The State fails to submit the State annual performance reports
as required under WIOA sec. 116(d)(2), as defined in Sec. 677.185;
(2) The State fails to meet State adjusted levels of performance
for the same primary performance indicator(s) under either Sec.
677.190(d)(1) for the second consecutive year as defined in Sec.
677.190; or
(3) The State's score on the same indicator for the same program
falls below 50 percent under Sec. 677.190(d)(2) for the second
consecutive year as defined in Sec. 677.190.
(b) If the State fails under paragraphs (a)(1) and either (a)(2) or
(3) of this section in the same program year, the Secretaries of Labor
and Education will reduce the Governor's Reserve Allotment by 10
percent of the maximum available amount for the immediately succeeding
program year.
(c) If a State's Governor's Reserve Allotment is reduced:
(1) The reduced amount will not be returned to the State in the
event that the State later improves performance or submits its annual
performance report; and
(2) The Governor's Reserve will continue to be set at the reduced
level in each subsequent year until the Secretary of Labor or the
Secretary of Education, depending on which program is impacted,
determines that the State met the State adjusted levels of performance
for the applicable primary performance indicators and has submitted all
of the required performance reports.
(d) A State may request review of a sanction the Secretary of Labor
imposes in accordance with the provisions of Sec. 683.800 of this
chapter.
Sec. 677.200 What other administrative actions will be applied to
States' performance requirements?
(a) In addition to sanctions for failure to report or failure to
meet adjusted levels of performance, States will be subject to
administrative actions in the case of poor performance.
(b) States' performance achievement on the individual primary
indicators will be assessed in addition to the overall State program
score and overall State indicator score. Based on this assessment, as
clarified and explained in guidance, for performance on any individual
primary indicator, the Secretary of Labor or the Secretary of Education
will require the State to establish a performance risk plan to address
continuous improvement on the individual primary indicator.
Subpart C--Local Performance Accountability for Workforce
Innovation and Opportunity Act Title I Programs
Sec. 677.205 What performance indicators apply to local areas and
what information must be included in local area performance reports?
(a) Each local area in a State under WIOA title I is subject to the
same primary indicators of performance for the core programs for WIOA
title I under Sec. 677.155(a)(1) and (c) that apply to the State.
(b) In addition to the indicators described in paragraph (a) of
this section, under Sec. 677.165, the Governor may apply additional
indicators of performance to local areas in the State.
(c) States must annually make local area performance reports
available to the public using a template that the Departments of Labor
and Education will disseminate in guidance, including by electronic
means. The State must provide electronic access to the public local
area performance report in its annual State performance report.
[[Page 56007]]
(d) The local area performance report must include:
(1) The actual results achieved under Sec. 677.155 and the
information required under Sec. 677.160(a);
(2) The percentage of a local area's allotment under WIOA secs.
128(b) and 133(b) that the local area spent on administrative costs;
and
(3) Other information that facilitates comparisons of programs with
programs in other local areas (or planning regions if the local area is
part of a planning region).
(e) The disaggregation of data for the local area performance
report must be done in compliance with WIOA sec. 116(d)(6)(C).
(f) States must comply with any requirements from sec. 116(d)(3) of
WIOA as explained in guidance, including the use of the performance
reporting template, issued by DOL.
Sec. 677.210 How are local performance levels established?
(a) The objective statistical adjustment model required under sec.
116(b)(3)(A)(viii) of WIOA and described in Sec. 677.170(c) must be:
(1) Applied to the core programs' primary indicators upon
availability of data which are necessary to populate the model and
apply the model to the local core programs;
(2) Used in order to reach agreement on local negotiated levels of
performance for the upcoming program year; and
(3) Used to establish adjusted levels of performance at the end of
a program year based on actual conditions, consistent with WIOA sec.
116(c)(3).
(b) Until all indicators for the core program in a local area have
at least 2 years of complete data, the comparison of the actual results
achieved to the adjusted levels of performance for each of the primary
indicators only will be applied where there are at least 2 years of
complete data for that program.
(c) The Governor, Local Workforce Development Board (WDB), and
chief elected official must reach agreement on local negotiated levels
of performance based on a negotiations process before the start of a
program year with the use of the objective statistical model described
in paragraph (a) of this section. The negotiations will include a
discussion of circumstances not accounted for in the model and will
take into account the extent to which the levels promote continuous
improvement. The objective statistical model will be applied at the end
of the program year based on actual economic conditions and
characteristics of the participants served.
(d) The negotiations process described in paragraph (c) of this
section must be developed by the Governor and disseminated to all Local
WDBs and chief elected officials.
(e) The Local WDBs may apply performance measures to service
providers that differ from the performance indicators that apply to the
local area. These performance measures must be established after
considering:
(1) The established local negotiated levels;
(2) The services provided by each provider; and
(3) The populations the service providers are intended to serve.
Subpart D--Incentives and Sanctions for Local Performance for
Workforce Innovation and Opportunity Act Title I Programs
Sec. 677.215 Under what circumstances are local areas eligible for
State Incentive Grants?
(a) The Governor is not required to award local incentive funds,
but is authorized to provide incentive grants to local areas for
performance on the primary indicators of performance consistent with
WIOA sec. 134(a)(3)(A)(xi).
(b) The Governor may use non-Federal funds to create incentives for
the Local WDBs to implement pay-for-performance contract strategies for
the delivery of training services described in WIOA sec. 134(c)(3) or
activities described in WIOA sec. 129(c)(2) in the local areas served
by the Local WDBs. Pay-for-performance contract strategies must be
implemented in accordance with part 683, subpart E of this chapter and
Sec. 677.160.
Sec. 677.220 Under what circumstances may a corrective action or
sanction be applied to local areas for poor performance?
(a) If a local area fails to meet the adjusted levels of
performance agreed to under Sec. 677.210 for the primary indicators of
performance in the adult, dislocated worker, and youth programs
authorized under WIOA title I in any program year, technical assistance
must be provided by the Governor or, upon the Governor's request, by
the Secretary of Labor.
(1) A State must establish the threshold for failure to meet
adjusted levels of performance for a local area before coming to
agreement on the negotiated levels of performance for the local area.
(i) A State must establish the adjusted level of performance for a
local area, using the statistical adjustment model described in Sec.
677.170(c).
(ii) At least 2 years of complete data on any indicator for any
local core program are required in order to establish adjusted levels
of performance for a local area.
(2) The technical assistance may include:
(i) Assistance in the development of a performance improvement
plan;
(ii) The development of a modified local or regional plan; or
(iii) Other actions designed to assist the local area in improving
performance.
(b) If a local area fails to meet the adjusted levels of
performance agreed to under Sec. 677.210 for the same primary
indicators of performance for the same core program authorized under
WIOA title I for a third consecutive program year, the Governor must
take corrective actions. The corrective actions must include the
development of a reorganization plan under which the Governor:
(1) Requires the appointment and certification of a new Local WDB,
consistent with the criteria established under Sec. 679.350 of this
chapter;
(2) Prohibits the use of eligible providers and one-stop partners
that have been identified as achieving poor levels of performance; or
(3) Takes such other significant actions as the Governor determines
are appropriate.
Sec. 677.225 Under what circumstances may local areas appeal a
reorganization plan?
(a) The Local WDB and chief elected official for a local area that
is subject to a reorganization plan under WIOA sec. 116(g)(2)(A) may
appeal to the Governor to rescind or revise the reorganization plan not
later than 30 days after receiving notice of the reorganization plan.
The Governor must make a final decision within 30 days after receipt of
the appeal.
(b) The Local WDB and chief elected official may appeal the final
decision of the Governor to the Secretary of Labor not later than 30
days after receiving the decision from the Governor. Any appeal of the
Governor's final decision must be:
(1) Appealed jointly by the Local WDB and chief elected official to
the Secretary of Labor under Sec. 683.650 of this chapter; and
(2) Must be submitted by certified mail, return receipt requested,
to the Secretary of Labor, 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.
(c) Upon receipt of the joint appeal from the Local WDB and chief
elected
[[Page 56008]]
official, the Secretary of Labor must make a final decision within 30
days. In making this determination the Secretary of Labor may consider
any comments submitted by the Governor in response to the appeals.
(d) The decision by the Governor on the appeal becomes effective at
the time it is issued and remains effective unless the Secretary of
Labor rescinds or revises the reorganization plan under WIOA sec.
116(g)(2)(C).
Subpart E--Eligible Training Provider Performance for Workforce
Innovation and Opportunity Act Title I Programs
Sec. 677.230 What information is required for the eligible training
provider performance reports?
(a) States are required to make available and publish annually
using a template the Departments of Labor and Education will
disseminate including through electronic means, the ETP performance
reports for ETPs who provide services under sec. 122 of WIOA that are
described in Sec. Sec. 680.400 through 680.530 of this chapter. These
reports at a minimum must include, consistent with Sec. 677.175 and
with respect to each program of study that is eligible to receive funds
under WIOA:
(1) The total number of participants as defined by Sec. 677.150(a)
who received training services under the adult and dislocated worker
programs authorized under WIOA title I for the most recent year and the
3 preceding program years, including:
(i) The number of participants under the adult and dislocated
worker programs disaggregated by barriers to employment;
(ii) The number of participants under the adult and dislocated
worker programs disaggregated by race, ethnicity, sex, and age;
(iii) The number of participants under the adult and dislocated
worker programs disaggregated by the type of training entity for the
most recent program year and the 3 preceding program years;
(2) The total number of participants who exit a program of study or
its equivalent, including disaggregate counts by the type of training
entity during the most recent program year and the 3 preceding program
years;
(3) The average cost-per-participant for participants who received
training services for the most recent program year and the 3 preceding
program years disaggregated by type of training entity;
(4) The total number of individuals exiting from the program of
study (or the equivalent) with respect to all individuals engaging in
the program of study (or the equivalent); and
(5) The levels of performance achieved for the primary indicators
of performance identified in Sec. 677.155(a)(1)(i) through (iv) with
respect to all individuals engaging in a program of study (or the
equivalent).
(b) Apprenticeship programs registered under the National
Apprenticeship Act are not required to submit ETP performance
information. If a registered apprenticeship program voluntarily submits
performance information to a State, the State must include this
information in the report.
(c) The State must provide a mechanism of electronic access to the
public ETP performance report in its annual State performance report.
(d) States must comply with any requirements from sec. 116(d)(4) of
WIOA as explained in guidance issued by DOL.
(e) The Governor may designate one or more State agencies such as a
State Education Agency or other State Educational Authority to assist
in overseeing ETP performance and facilitating the production and
dissemination of ETP performance reports. These agencies may be the
same agencies that are designated as responsible for administering the
ETP list as provided under Sec. 680.500 of this chapter. The Governor
or such agencies, or authorities, is responsible for:
(1) Facilitating data matches between ETP records and unemployment
insurance (UI) wage data in order to produce the report;
(2) The creation and dissemination of the reports as described in
paragraphs (a) through (d) of this section;
(3) Coordinating the dissemination of the performance reports with
the ETP list and the information required to accompany the list, as
provided in Sec. 680.500 of this chapter.
Subpart F--Performance Reporting Administrative Requirements
Sec. 677.235 What are the reporting requirements for individual
records for core Workforce Innovation and Opportunity Act (WIOA) title
I programs; the Wagner-Peyser Act Employment Service program, as
amended by WIOA title III; and the Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by WIOA title IV?
(a) On a quarterly basis, each State must submit to the Secretary
of Labor or the Secretary of Education, as appropriate, individual
records that include demographic information, information on services
received, and information on resulting outcomes, as appropriate, for
each reportable individual in either of the following programs
administered by the Secretary of Labor or Secretary of Education: A
WIOA title I core program; the Employment Service program authorized
under the Wagner-Peyser Act, as amended by WIOA title III; or the VR
program authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV.
(b) For individual records submitted to the Secretary of Labor,
those records may be required to be integrated across all programs
administered by the Secretary of Labor in one single file.
(c) States must comply with the requirements of sec. 116(d)(2) of
WIOA as explained in guidance issued by the Departments of Labor and
Education.
Sec. 677.240 What are the requirements for data validation of State
annual performance reports?
(a) States must establish procedures, consistent with guidelines
issued by the Secretary of Labor or the Secretary of Education, to
ensure that they submit complete annual performance reports that
contain information that is valid and reliable, as required by WIOA
sec. 116(d)(5).
(b) If a State fails to meet standards in paragraph (a) of this
section as determined by the Secretary of Labor or the Secretary of
Education, the appropriate Secretary will provide technical assistance
and may require the State to develop and implement corrective actions,
which may require the State to provide training for its subrecipients.
(c) The Secretaries of Labor and Education will provide training
and technical assistance to States in order to implement this section.
States must comply with the requirements of sec. 116(d)(5) of WIOA as
explained in guidance.
0
3. Add part 678 to read as follows:
PART 678--DESCRIPTION OF THE ONE-STOP DELIVERY SYSTEM UNDER TITLE I
OF THE WORKFORCE INNOVATION AND OPPORTUNITY ACT
Subpart A--General Description of the One-Stop Delivery System
Sec.
678.300 What is the one-stop delivery system?
678.305 What is a comprehensive one-stop center and what must be
provided there?
678.310 What is an affiliated site and what must be provided there?
678.315 Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?
678.320 Are there any requirements for networks of eligible one-stop
partners or specialized centers?
[[Page 56009]]
Subpart B--One-Stop Partners and the Responsibilities of Partners
678.400 Who are the required one-stop partners?
678.405 Is Temporary Assistance for Needy Families a required one-
stop partner?
678.410 What other entities may serve as one-stop partners?
678.415 What entity serves as the one-stop partner for a particular
program in the local area?
678.420 What are the roles and responsibilities of the required one-
stop partners?
678.425 What are the applicable career services that must be
provided through the one-stop delivery system by required one-stop
partners?
678.430 What are career services?
678.435 What are the business services provided through the one-stop
delivery system, and how are they provided?
678.440 When may a fee be charged for the business services in this
subpart?
Subpart C--Memorandum of Understanding for the One-Stop Delivery System
678.500 What is the Memorandum of Understanding for the one-stop
delivery system and what must be included in the Memorandum of
Understanding?
678.505 Is there a single Memorandum of Understanding for the local
area, or must there be different Memoranda of Understanding between
the Local Workforce Development Board and each partner?
678.510 How must the Memorandum of Understanding be negotiated?
Subpart D--One-Stop Operators
678.600 Who may operate one-stop centers?
678.605 How is the one-stop operator selected?
678.610 When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?
678.615 May an entity currently serving as one-stop operator compete
to be a one-stop operator under the procurement requirements of this
subpart?
678.620 What is the one-stop operator's role?
678.625 Can a one-stop operator also be a service provider?
678.630 Can State merit staff still work in a one-stop center where
the operator is not a governmental entity?
678.635 What is the compliance date of the provisions of this
subpart?
Subpart E--One-Stop Operating Costs
678.700 What are the one-stop infrastructure costs?
678.705 What guidance must the Governor issue regarding one-stop
infrastructure funding?
678.710 How are infrastructure costs funded?
678.715 How are one-stop infrastructure costs funded in the local
funding mechanism?
678.720 What funds are used to pay for infrastructure costs in the
local one-stop infrastructure funding mechanism?
678.725 What happens if consensus on infrastructure funding is not
reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?
678.730 What is the State one-stop infrastructure funding mechanism?
678.731 What are the steps to determine the amount to be paid under
the State one-stop infrastructure funding mechanism?
678.735 How are infrastructure cost budgets for the one-stop centers
in a local area determined in the State one-stop infrastructure
funding mechanism?
678.736 How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs'
proportionate shares of infrastructure costs under the State one-
stop infrastructure funding mechanism?
678.737 How are one-stop partner programs' proportionate shares of
infrastructure costs determined under the State one-stop
infrastructure funding mechanism?
678.738 How are statewide caps on the contributions for one-stop
infrastructure funding determined in the State one-stop
infrastructure funding mechanism?
678.740 What funds are used to pay for infrastructure costs in the
State one-stop infrastructure funding mechanism?
678.745 What factors does the State Workforce Development Board use
to develop the formula described in Workforce Innovation and
Opportunity Act, which is used by the Governor to determine the
appropriate one-stop infrastructure budget for each local area
operating under the State infrastructure funding mechanism, if no
reasonably implementable locally negotiated budget exists?
678.750 When and how can a one-stop partner appeal a one-stop
infrastructure amount designated by the State under the State
infrastructure funding mechanism?
678.755 What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of
Understanding?
678.760 How do one-stop partners jointly fund other shared costs
under the Memorandum of Understanding?
Subpart F--One-Stop Certification
678.800 How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic
accessibility, and continuous improvement?
Subpart G--Common Identifier
678.900 What is the common identifier to be used by each one-stop
delivery system?
Authority: Secs. 503, 107, 121, 134, 189, Pub. L. 113-128, 128
Stat. 1425 (Jul. 22, 2014).
Subpart A--General Description of the One-Stop Delivery System
Sec. 678.300 What is the one-stop delivery system?
(a) The one-stop delivery system brings together workforce
development, educational, and other human resource services in a
seamless customer-focused service delivery network that enhances access
to the programs' services and improves long-term employment outcomes
for individuals receiving assistance. One-stop partners administer
separately funded programs as a set of integrated streamlined services
to customers.
(b) Title I of the Workforce Innovation and Opportunity Act (WIOA)
assigns responsibilities at the local, State, and Federal level to
ensure the creation and maintenance of a one-stop delivery system that
enhances the range and quality of education and workforce development
services that employers and individual customers can access.
(c) The system must include at least one comprehensive physical
center in each local area as described in Sec. 678.305.
(d) The system may also have additional arrangements to supplement
the comprehensive center. These arrangements include:
(1) An affiliated site or a network of affiliated sites, where one
or more partners make programs, services, and activities available, as
described in Sec. 678.310;
(2) A network of eligible one-stop partners, as described in
Sec. Sec. 678.400 through 678.410, through which each partner provides
one or more of the programs, services, and activities that are linked,
physically or technologically, to an affiliated site or access point
that assures customers are provided information on the availability of
career services, as well as other program services and activities,
regardless of where they initially enter the public workforce system in
the local area; and
(3) Specialized centers that address specific needs, including
those of dislocated workers, youth, or key industry sectors, or
clusters.
(e) Required one-stop partner programs must provide access to
programs, services, and activities through electronic means if
applicable and practicable. This is in addition to providing access to
services through the mandatory comprehensive physical one-stop center
and any affiliated sites or specialized centers. The provision of
programs and services by electronic methods such as Web sites,
telephones, or other means must improve the efficiency, coordination,
and quality of one-stop partner services. Electronic delivery must not
replace access to such services at a comprehensive one-stop center or
be a substitute to making services available at an affiliated site if
the partner is participating in an
[[Page 56010]]
affiliated site. Electronic delivery systems must be in compliance with
the nondiscrimination and equal opportunity provisions of WIOA sec. 188
and its implementing regulations at 29 CFR part 38.
(f) The design of the local area's one-stop delivery system must be
described in the Memorandum of Understanding (MOU) executed with the
one-stop partners, described in Sec. 678.500.
Sec. 678.305 What is a comprehensive one-stop center and what must be
provided there?
(a) A comprehensive one-stop center is a physical location where
job seeker and employer customers can access the programs, services,
and activities of all required one-stop partners. A comprehensive one-
stop center must have at least one title I staff person physically
present.
(b) The comprehensive one-stop center must provide:
(1) Career services, described in Sec. 678.430;
(2) Access to training services described in Sec. 680.200 of this
chapter;
(3) Access to any employment and training activities carried out
under sec. 134(d) of WIOA;
(4) Access to programs and activities carried out by one-stop
partners listed in Sec. Sec. 678.400 through 678.410, including the
Employment Service program authorized under the Wagner-Peyser Act, as
amended by WIOA title III (Wagner-Peyser Act Employment Service
program); and
(5) Workforce and labor market information.
(c) Customers must have access to these programs, services, and
activities during regular business days at a comprehensive one-stop
center. The Local Workforce Development Board (WDB) may establish other
service hours at other times to accommodate the schedules of
individuals who work on regular business days. The State WDB will
evaluate the hours of access to service as part of the evaluation of
effectiveness in the one-stop certification process described in Sec.
678.800(b).
(d) ``Access'' to each partner program and its services means:
(1) Having a program staff member physically present at the one-
stop center;
(2) Having a staff member from a different partner program
physically present at the one-stop center appropriately trained to
provide information to customers about the programs, services, and
activities available through partner programs; or
(3) Making available a direct linkage through technology to program
staff who can provide meaningful information or services.
(i) A ``direct linkage'' means providing direct connection at the
one-stop center, within a reasonable time, by phone or through a real-
time Web-based communication to a program staff member who can provide
program information or services to the customer.
(ii) A ``direct linkage'' cannot exclusively be providing a phone
number or computer Web site or providing information, pamphlets, or
materials.
(e) All comprehensive one-stop centers must be physically and
programmatically accessible to individuals with disabilities, as
described in 29 CFR part 38, the implementing regulations of WIOA sec.
188.
Sec. 678.310 What is an affiliated site and what must be provided
there?
(a) An affiliated site, or affiliate one-stop center, is a site
that makes available to job seeker and employer customers one or more
of the one-stop partners' programs, services, and activities. An
affiliated site does not need to provide access to every required one-
stop partner program. The frequency of program staff's physical
presence in the affiliated site will be determined at the local level.
Affiliated sites are access points in addition to the comprehensive
one-stop center(s) in each local area. If used by local areas as a part
of the service delivery strategy, affiliate sites must be implemented
in a manner that supplements and enhances customer access to services.
(b) As described in Sec. 678.315, Wagner-Peyser Act employment
services cannot be a stand-alone affiliated site.
(c) States, in conjunction with the Local WDBs, must examine lease
agreements and property holdings throughout the one-stop delivery
system in order to use property in an efficient and effective way.
Where necessary and appropriate, States and Local WDBs must take
expeditious steps to align lease expiration dates with efforts to
consolidate one-stop operations into service points where Wagner-Peyser
Act employment services are colocated as soon as reasonably possible.
These steps must be included in the State Plan.
(d) All affiliated sites must be physically and programmatically
accessible to individuals with disabilities, as described in 29 CFR
part 38, the implementing regulations of WIOA sec. 188.
Sec. 678.315 Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?
(a) Separate stand-alone Wagner-Peyser Act Employment Service
offices are not permitted under WIOA, as also described in Sec.
652.202 of this chapter.
(b) If Wagner-Peyser Act employment services are provided at an
affiliated site, there must be at least one or more other partners in
the affiliated site with a physical presence of combined staff more
than 50 percent of the time the center is open. Additionally, the other
partner must not be the partner administering local veterans'
employment representatives, disabled veterans' outreach program
specialists, or unemployment compensation programs. If Wagner-Peyser
Act employment services and any of these 3 programs are provided at an
affiliated site, an additional partner or partners must have a presence
of combined staff in the center more than 50 percent of the time the
center is open.
Sec. 678.320 Are there any requirements for networks of eligible one-
stop partners or specialized centers?
Any network of one-stop partners or specialized centers, as
described in Sec. 678.300(d)(3), must be connected to the
comprehensive one-stop center and any appropriate affiliate one-stop
centers, for example, by having processes in place to make referrals to
these centers and the partner programs located in them. Wagner-Peyser
Act employment services cannot stand alone in a specialized center.
Just as described in Sec. 678.315 for an affiliated site, a
specialized center must include other programs besides Wagner-Peyser
Act employment services, local veterans' employment representatives,
disabled veterans' outreach program specialists, and unemployment
compensation.
Subpart B--One-Stop Partners and the Responsibilities of Partners
Sec. 678.400 Who are the required one-stop partners?
(a) Section 121(b)(1)(B) of WIOA identifies the entities that are
required partners in the local one-stop delivery systems.
(b) The required partners are the entities responsible for
administering the following programs and activities in the local area:
(1) Programs authorized under title I of WIOA, including:
(i) Adults;
(ii) Dislocated workers;
(iii) Youth;
(iv) Job Corps;
(v) YouthBuild;
(vi) Native American programs; and
[[Page 56011]]
(vii) Migrant and seasonal farmworker programs;
(2) The Wagner-Peyser Act Employment Service program authorized
under the Wagner-Peyser Act (29 U.S.C. 49 et seq.), as amended by WIOA
title III;
(3) The Adult Education and Family Literacy Act (AEFLA) program
authorized under title II of WIOA;
(4) The Vocational Rehabilitation (VR) program authorized under
title I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.), as
amended by WIOA title IV;
(5) The Senior Community Service Employment Program authorized
under title V of the Older Americans Act of 1965 (42 U.S.C. 3056 et
seq.);
(6) Career and technical education programs at the postsecondary
level authorized under the Carl D. Perkins Career and Technical
Education Act of 2006 (20 U.S.C. 2301 et seq.);
(7) Trade Adjustment Assistance activities authorized under chapter
2 of title II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
(8) Jobs for Veterans State Grants programs authorized under
chapter 41 of title 38, U.S.C.;
(9) Employment and training activities carried out under the
Community Services Block Grant (42 U.S.C. 9901 et seq.);
(10) Employment and training activities carried out by the
Department of Housing and Urban Development;
(11) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law);
(12) Programs authorized under sec. 212 of the Second Chance Act of
2007 (42 U.S.C. 17532); and
(13) Temporary Assistance for Needy Families (TANF) authorized
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.), unless exempted by the Governor under Sec. 678.405(b).
Sec. 678.405 Is Temporary Assistance for Needy Families a required
one-stop partner?
(a) Yes, TANF, authorized under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.), is a required partner.
(b) The Governor may determine that TANF will not be a required
partner in the State, or within some specific local areas in the State.
In this instance, the Governor must notify the Secretaries of the U.S.
Departments of Labor and Health and Human Services in writing of this
determination.
(c) In States, or local areas within a State, where the Governor
has determined that TANF is not required to be a partner, local TANF
programs may still work in collaboration or partnership with the local
one-stop centers to deliver employment and training services to the
TANF population unless inconsistent with the Governor's direction.
Sec. 678.410 What other entities may serve as one-stop partners?
(a) Other entities that carry out a workforce development program,
including Federal, State, or local programs and programs in the private
sector, may serve as additional partners in the one-stop delivery
system if the Local WDB and chief elected official(s) approve the
entity's participation.
(b) Additional partners may include, but are not limited to:
(1) Employment and training programs administered by the Social
Security Administration, including the Ticket to Work and Self-
Sufficiency Program established under sec. 1148 of the Social Security
Act (42 U.S.C. 1320b-19);
(2) Employment and training programs carried out by the Small
Business Administration;
(3) Supplemental Nutrition Assistance Program (SNAP) employment and
training programs, authorized under secs. 6(d)(4) and 6(o) of the Food
and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
(4) Client Assistance Program authorized under sec. 112 of the
Rehabilitation Act of 1973 (29 U.S.C. 732);
(5) Programs authorized under the National and Community Service
Act of 1990 (42 U.S.C. 12501 et seq.); and
(6) Other appropriate Federal, State or local programs, including,
but not limited to, employment, education, and training programs
provided by public libraries or in the private sector.
Sec. 678.415 What entity serves as the one-stop partner for a
particular program in the local area?
(a) The entity that carries out the program and activities listed
in Sec. 678.400 or Sec. 678.410, and therefore serves as the one-stop
partner, is the grant recipient, administrative entity, or organization
responsible for administering the funds of the specified program in the
local area. The term ``entity'' does not include the service providers
that contract with, or are subrecipients of, the local administrative
entity. For programs that do not include local administrative entities,
the responsible State agency must be the partner. Specific entities for
particular programs are identified in paragraphs (b) through (e) of
this section. If a program or activity listed in Sec. 678.400 is not
carried out in a local area, the requirements relating to a required
one-stop partner are not applicable to such program or activity in that
local one-stop delivery system.
(b) For title II of WIOA, the entity or agency that carries out the
program for the purposes of paragraph (a) of this section is the sole
entity or agency in the State or outlying area responsible for
administering or supervising policy for adult education and literacy
activities in the State or outlying area. The State eligible entity or
agency may delegate its responsibilities under paragraph (a) of this
section to one or more eligible providers or consortium of eligible
providers.
(c) For the VR program, authorized under title I of the
Rehabilitation Act of 1973, as amended by WIOA title IV, the entity
that carries out the program for the purposes of paragraph (a) of this
section is the designated State agencies or designated State units
specified under sec. 101(a)(2) of the Rehabilitation Act that is
primarily concerned with vocational rehabilitation, or vocational and
other rehabilitation, of individuals with disabilities.
(d) Under WIOA title I, the national programs, including Job Corps,
the Native American program, YouthBuild, and Migrant and Seasonal
Farmworker programs are required one-stop partners. The entity for the
Native American program, YouthBuild, and Migrant and Seasonal
Farmworker programs is the grantee of those respective programs. The
entity for Job Corps is the Job Corps center.
(e) For the Carl D. Perkins Career and Technical Education Act of
2006, the entity that carries out the program for the purposes of
paragraph (a) of this section is the eligible recipient or recipients
at the postsecondary level, or a consortium of eligible recipients at
the postsecondary level in the local area. The eligible recipient at
the postsecondary level may also request assistance from the State
eligible agency in completing its responsibilities under paragraph (a)
of this section.
Sec. 678.420 What are the roles and responsibilities of the required
one-stop partners?
Each required partner must:
(a) Provide access to its programs or activities through the one-
stop delivery system, in addition to any other appropriate locations;
(b) Use a portion of funds made available to the partner's program,
to the extent consistent with the Federal law authorizing the partner's
program and
[[Page 56012]]
with Federal cost principles in 2 CFR parts 200 and 2900 (requiring,
among other things, that costs are allowable, reasonable, necessary,
and allocable), to:
(1) Provide applicable career services; and
(2) Work collaboratively with the State and Local WDBs to establish
and maintain the one-stop delivery system. This includes jointly
funding the one-stop infrastructure through partner contributions that
are based upon:
(i) A reasonable cost allocation methodology by which
infrastructure costs are charged to each partner based on proportionate
use and relative benefit received;
(ii) Federal cost principles; and
(iii) Any local administrative cost requirements in the Federal law
authorizing the partner's program. (This is further described in Sec.
678.700.)
(c) Enter into an MOU with the Local WDB relating to the operation
of the one-stop delivery system that meets the requirements of Sec.
678.500(b);
(d) Participate in the operation of the one-stop delivery system
consistent with the terms of the MOU, requirements of authorizing laws,
the Federal cost principles, and all other applicable legal
requirements; and
(e) Provide representation on the State and Local WDBs as required
and participate in Board committees as needed.
Sec. 678.425 What are the applicable career services that must be
provided through the one-stop delivery system by required one-stop
partners?
(a) The applicable career services to be delivered by required one-
stop partners are those services listed in Sec. 678.430 that are
authorized to be provided under each partner's program.
(b) One-stop centers provide services to individual customers based
on individual needs, including the seamless delivery of multiple
services to individual customers. There is no required sequence of
services.
Sec. 678.430 What are career services?
Career services, as identified in sec. 134(c)(2) of WIOA, consist
of three types:
(a) Basic career services must be made available and, at a minimum,
must include the following services, as consistent with allowable
program activities and Federal cost principles:
(1) Determinations of whether the individual is eligible to receive
assistance from the adult, dislocated worker, or youth programs;
(2) Outreach, intake (including worker profiling), and orientation
to information and other services available through the one-stop
delivery system. For the TANF program, States must provide individuals
with the opportunity to initiate an application for TANF assistance and
non-assistance benefits and services, which could be implemented
through the provision of paper application forms or links to the
application Web site;
(3) Initial assessment of skill levels including literacy,
numeracy, and English language proficiency, as well as aptitudes,
abilities (including skills gaps), and supportive services needs;
(4) Labor exchange services, including--
(i) Job search and placement assistance, and, when needed by an
individual, career counseling, including--
(A) Provision of information on in-demand industry sectors and
occupations (as defined in sec. 3(23) of WIOA); and
(B) Provision of information on nontraditional employment; and
(ii) Appropriate recruitment and other business services on behalf
of employers, including information and referrals to specialized
business services other than those traditionally offered through the
one-stop delivery system;
(5) Provision of referrals to and coordination of activities with
other programs and services, including programs and services within the
one-stop delivery system and, when appropriate, other workforce
development programs;
(6) Provision of workforce and labor market employment statistics
information, including the provision of accurate information relating
to local, regional, and national labor market areas, including--
(i) Job vacancy listings in labor market areas;
(ii) Information on job skills necessary to obtain the vacant jobs
listed; and
(iii) Information relating to local occupations in demand and the
earnings, skill requirements, and opportunities for advancement for
those jobs;
(7) Provision of performance information and program cost
information on eligible providers of education, training, and workforce
services by program and type of providers;
(8) Provision of information, in usable and understandable formats
and languages, about how the local area is performing on local
performance accountability measures, as well as any additional
performance information relating to the area's one-stop delivery
system;
(9) Provision of information, in usable and understandable formats
and languages, relating to the availability of supportive services or
assistance, and appropriate referrals to those services and assistance,
including: Child care; child support; medical or child health
assistance available through the State's Medicaid program and
Children's Health Insurance Program; benefits under SNAP; assistance
through the earned income tax credit; and assistance under a State
program for TANF, and other supportive services and transportation
provided through that program;
(10) Provision of information and meaningful assistance to
individuals seeking assistance in filing a claim for unemployment
compensation.
(i) ``Meaningful assistance'' means:
(A) Providing assistance on-site using staff who are well-trained
in unemployment compensation claims filing and the rights and
responsibilities of claimants; or
(B) Providing assistance by phone or via other technology, as long
as the assistance is provided by trained and available staff and within
a reasonable time.
(ii) The costs associated in providing this assistance may be paid
for by the State's unemployment insurance program, or the WIOA adult or
dislocated worker programs, or some combination thereof.
(11) Assistance in establishing eligibility for programs of
financial aid assistance for training and education programs not
provided under WIOA.
(b) Individualized career services must be made available if
determined to be appropriate in order for an individual to obtain or
retain employment. These services include the following services, as
consistent with program requirements and Federal cost principles:
(1) Comprehensive and specialized assessments of the skill levels
and service needs of adults and dislocated workers, which may include--
(i) Diagnostic testing and use of other assessment tools; and
(ii) In-depth interviewing and evaluation to identify employment
barriers and appropriate employment goals;
(2) Development of an individual employment plan, to identify the
employment goals, appropriate achievement objectives, and appropriate
combination of services for the participant to achieve his or her
employment goals, including the list of, and information about, the
eligible training providers (as described in Sec. 680.180 of this
chapter);
[[Page 56013]]
(3) Group counseling;
(4) Individual counseling;
(5) Career planning;
(6) Short-term pre-vocational services including development of
learning skills, communication skills, interviewing skills,
punctuality, personal maintenance skills, and professional conduct
services to prepare individuals for unsubsidized employment or
training;
(7) Internships and work experiences that are linked to careers (as
described in Sec. 680.170 of this chapter);
(8) Workforce preparation activities;
(9) Financial literacy services as described in sec. 129(b)(2)(D)
of WIOA and Sec. 681.500 of this chapter;
(10) Out-of-area job search assistance and relocation assistance;
and
(11) English language acquisition and integrated education and
training programs.
(c) Follow-up services must be provided, as appropriate, including:
Counseling regarding the workplace, for participants in adult or
dislocated worker workforce investment activities who are placed in
unsubsidized employment, for up to 12 months after the first day of
employment.
(d) In addition to the requirements in paragraph (a)(2) of this
section, TANF agencies must identify employment services and related
support being provided by the TANF program (within the local area) that
qualify as career services and ensure access to them via the local one-
stop delivery system.
Sec. 678.435 What are the business services provided through the one-
stop delivery system, and how are they provided?
(a) Certain career services must be made available to local
employers, specifically labor exchange activities and labor market
information described in Sec. 678.430(a)(4)(ii) and (a)(6). Local
areas must establish and develop relationships and networks with large
and small employers and their intermediaries. Local areas also must
develop, convene, or implement industry or sector partnerships.
(b) Customized business services may be provided to employers,
employer associations, or other such organizations. These services are
tailored for specific employers and may include:
(1) Customized screening and referral of qualified participants in
training services to employers;
(2) Customized services to employers, employer associations, or
other such organizations, on employment-related issues;
(3) Customized recruitment events and related services for
employers including targeted job fairs;
(4) Human resource consultation services, including but not limited
to assistance with:
(i) Writing/reviewing job descriptions and employee handbooks;
(ii) Developing performance evaluation and personnel policies;
(iii) Creating orientation sessions for new workers;
(iv) Honing job interview techniques for efficiency and compliance;
(v) Analyzing employee turnover;
(vi) Creating job accommodations and using assistive technologies;
or
(vii) Explaining labor and employment laws to help employers comply
with discrimination, wage/hour, and safety/health regulations;
(5) Customized labor market information for specific employers,
sectors, industries or clusters; and
(6) Other similar customized services.
(c) Local areas may also provide other business services and
strategies that meet the workforce investment needs of area employers,
in accordance with partner programs' statutory requirements and
consistent with Federal cost principles. These business services may be
provided through effective business intermediaries working in
conjunction with the Local WDB, or through the use of economic
development, philanthropic, and other public and private resources in a
manner determined appropriate by the Local WDB and in cooperation with
the State. Allowable activities, consistent with each partner's
authorized activities, include, but are not limited to:
(1) Developing and implementing industry sector strategies
(including strategies involving industry partnerships, regional skills
alliances, industry skill panels, and sectoral skills partnerships);
(2) Customized assistance or referral for assistance in the
development of a registered apprenticeship program;
(3) Developing and delivering innovative workforce investment
services and strategies for area employers, which may include career
pathways, skills upgrading, skill standard development and
certification for recognized postsecondary credential or other employer
use, and other effective initiatives for meeting the workforce
investment needs of area employers and workers;
(4) Assistance to area employers in managing reductions in force in
coordination with rapid response activities and with strategies for the
aversion of layoffs, which may include strategies such as early
identification of firms at risk of layoffs, use of feasibility studies
to assess the needs of and options for at-risk firms, and the delivery
of employment and training activities to address risk factors;
(5) The marketing of business services to appropriate area
employers, including small and mid-sized employers; and
(6) Assisting employers with accessing local, State, and Federal
tax credits.
(d) All business services and strategies must be reflected in the
local plan, described in Sec. 679.560(b)(3) of this chapter.
Sec. 678.440 When may a fee be charged for the business services in
this subpart?
(a) There is no requirement that a fee-for-service be charged to
employers.
(b) No fee may be charged for services provided in Sec.
678.435(a).
(c) A fee may be charged for services provided under Sec.
678.435(b) and (c). Services provided under Sec. 678.435(c) may be
provided through effective business intermediaries working in
conjunction with the Local WDB and may also be provided on a fee-for-
service basis or through the leveraging of economic development,
philanthropic, and other public and private resources in a manner
determined appropriate by the Local WDB. The Local WDB may examine the
services provided compared with the assets and resources available
within the local one-stop delivery system and through its partners to
determine an appropriate cost structure for services, if any.
(d) Any fees earned are recognized as program income and must be
expended by the partner in accordance with the partner program's
authorizing statute, implementing regulations, and Federal cost
principles identified in Uniform Guidance.
Subpart C--Memorandum of Understanding for the One-Stop Delivery
System
Sec. 678.500 What is the Memorandum of Understanding for the one-stop
delivery system and what must be included in the Memorandum of
Understanding?
(a) The MOU is the product of local discussion and negotiation, and
is an agreement developed and executed between the Local WDB and the
one-stop partners, with the agreement of the chief elected official and
the one-stop partners, relating to the operation of the one-stop
delivery system in the local area. Two or more local areas in a region
may develop a single joint MOU, if they are in a region that has
submitted a regional plan under sec. 106 of WIOA.
(b) The MOU must include:
[[Page 56014]]
(1) A description of services to be provided through the one-stop
delivery system, including the manner in which the services will be
coordinated and delivered through the system;
(2) Agreement on funding the costs of the services and the
operating costs of the system, including:
(i) Funding of infrastructure costs of one-stop centers in
accordance with Sec. Sec. 678.700 through 678.755; and
(ii) Funding of the shared services and operating costs of the one-
stop delivery system described in Sec. 678.760;
(3) Methods for referring individuals between the one-stop
operators and partners for appropriate services and activities;
(4) Methods to ensure that the needs of workers, youth, and
individuals with barriers to employment, including individuals with
disabilities, are addressed in providing access to services, including
access to technology and materials that are available through the one-
stop delivery system;
(5) The duration of the MOU and procedures for amending it; and
(6) Assurances that each MOU will be reviewed, and if substantial
changes have occurred, renewed, not less than once every 3-year period
to ensure appropriate funding and delivery of services.
(c) The MOU may contain any other provisions agreed to by the
parties that are consistent with WIOA title I, the authorizing statutes
and regulations of one-stop partner programs, and the WIOA regulations.
(d) When fully executed, the MOU must contain the signatures of the
Local WDB, one-stop partners, the chief elected official(s), and the
time period in which the agreement is effective. The MOU must be
updated not less than every 3 years to reflect any changes in the
signatory official of the Board, one-stop partners, and chief elected
officials, or one-stop infrastructure funding.
(e) If a one-stop partner appeal to the State regarding
infrastructure costs, using the process described in Sec. 678.750,
results in a change to the one-stop partner's infrastructure cost
contributions, the MOU must be updated to reflect the final one-stop
partner infrastructure cost contributions.
Sec. 678.505 Is there a single Memorandum of Understanding for the
local area, or must there be different Memoranda of Understanding
between the Local Workforce Development Board and each partner?
(a) A single ``umbrella'' MOU may be developed that addresses the
issues relating to the local one-stop delivery system for the Local
WDB, chief elected official and all partners. Alternatively, the Local
WDB (with agreement of chief elected official) may enter into separate
agreements between each partner or groups of partners.
(b) Under either approach, the requirements described in Sec.
678.500 apply. Since funds are generally appropriated annually, the
Local WDB may negotiate financial agreements with each partner annually
to update funding of services and operating costs of the system under
the MOU.
Sec. 678.510 How must the Memorandum of Understanding be negotiated?
(a) WIOA emphasizes full and effective partnerships between Local
WDBs, chief elected officials, and one-stop partners. Local WDBs and
partners must enter into good-faith negotiations. Local WDBs, chief
elected officials, and one-stop partners may also request assistance
from a State agency responsible for administering the partner program,
the Governor, State WDB, or other appropriate parties on other aspects
of the MOU.
(b) Local WDBs and one-stop partners must establish, in the MOU,
how they will fund the infrastructure costs and other shared costs of
the one-stop centers. If agreement regarding infrastructure costs is
not reached when other sections of the MOU are ready, an interim
infrastructure funding agreement may be included instead, as described
in Sec. 678.715(c). Once agreement on infrastructure funding is
reached, the Local WDB and one-stop partners must amend the MOU to
include the infrastructure funding of the one-stop centers.
Infrastructure funding is described in detail in subpart E of this
part.
(c) The Local WDB must report to the State WDB, Governor, and
relevant State agency when MOU negotiations with one-stop partners have
reached an impasse.
(1) The Local WDB and partners must document the negotiations and
efforts that have taken place in the MOU. The State WDB, one-stop
partner programs, and the Governor may consult with the appropriate
Federal agencies to address impasse situations related to issues other
than infrastructure funding after attempting to address the impasse.
Impasses related to infrastructure cost funding must be resolved using
the State infrastructure cost funding mechanism described in Sec.
678.730.
(2) The Local WDB must report failure to execute an MOU with a
required partner to the Governor, State WDB, and the State agency
responsible for administering the partner's program. Additionally, if
the State cannot assist the Local WDB in resolving the impasse, the
Governor or the State WDB must report the failure to the Secretary of
Labor and to the head of any other Federal agency with responsibility
for oversight of a partner's program.
Subpart D--One-Stop Operators
Sec. 678.600 Who may operate one-stop centers?
(a) One-stop operators may be a single entity (public, private, or
nonprofit) or a consortium of entities. If the consortium of entities
is one of one-stop partners, it must include a minimum of three of the
one-stop partners described in Sec. 678.400.
(b) The one-stop operator may operate one or more one-stop centers.
There may be more than one one-stop operator in a local area.
(c) The types of entities that may be a one-stop operator include:
(1) An institution of higher education;
(2) An Employment Service State agency 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 chief elected official
and the Governor; or
(7) Another interested organization or entity, which is capable of
carrying out the duties of the one-stop operator. Examples may include
a local chamber of commerce or other business organization, or a labor
organization.
(d) Elementary schools and secondary schools are not eligible as
one-stop operators, except that a nontraditional public secondary
school such as a night school, adult school, or an area career and
technical education school may be selected.
(e) The State and Local WDBs must ensure that, in carrying out WIOA
programs and activities, one-stop operators:
(1) Disclose any potential conflicts of interest arising from the
relationships of the operators with particular training service
providers or other service providers (further discussed in Sec.
679.430 of this chapter);
(2) Do not establish practices that create disincentives to
providing services to individuals with barriers to employment who may
require longer-term career and training services; and
(3) Comply with Federal regulations and procurement policies
relating to the calculation and use of profits, including those at
Sec. 683.295 of this chapter, the
[[Page 56015]]
Uniform Guidance at 2 CFR part 200, and other applicable regulations
and policies.
Sec. 678.605 How is the one-stop operator selected?
(a) Consistent with paragraphs (b) and (c) of this section, the
Local WDB must select the one-stop operator through a competitive
process, as required by sec. 121(d)(2)(A) of WIOA, at least once every
4 years. A State may require, or a Local WDB may choose to implement, a
competitive selection process more than once every 4 years.
(b) In instances in which a State is conducting the competitive
process described in paragraph (a) of this section, the State must
follow the same policies and procedures it uses for procurement with
non-Federal funds.
(c) All other non-Federal entities, including subrecipients of a
State (such as local areas), must use a competitive process based on
local procurement policies and procedures and the principles of
competitive procurement in the Uniform Guidance set out at 2 CFR
200.318 through 200.326. All references to ``noncompetitive proposals''
in the Uniform Guidance at 2 CFR 200.320(f) will be read as ``sole
source procurement'' for the purposes of implementing this section.
(d) Entities must prepare written documentation explaining the
determination concerning the nature of the competitive process to be
followed in selecting a one-stop operator.
Sec. 678.610 When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?
(a) States may select a one-stop operator through sole source
selection when allowed under the same policies and procedures used for
competitive procurement with non-Federal funds, while other non-Federal
entities including subrecipients of a State (such as local areas) may
select a one-stop operator through sole selection when consistent with
local procurement policies and procedures and the Uniform Guidance set
out at 2 CFR 200.320.
(b) In the event that sole source procurement is determined
necessary and reasonable, in accordance with Sec. 678.605(c), written
documentation must be prepared and maintained concerning the entire
process of making such a selection.
(c) Such sole source procurement must include appropriate conflict
of interest policies and procedures. These policies and procedures must
conform to the specifications in Sec. 679.430 of this chapter for
demonstrating internal controls and preventing conflict of interest.
(d) A Local WDB may be selected as a one-stop operator through sole
source procurement only with agreement of the chief elected official in
the local area and the Governor. The Local WDB must establish
sufficient conflict of interest policies and procedures and these
policies and procedures must be approved by the Governor.
Sec. 678.615 May an entity currently serving as one-stop operator
compete to be a one-stop operator under the procurement requirements of
this subpart?
(a) Local WDBs may compete for and be selected as one-stop
operators, as long as appropriate firewalls and conflict of interest
policies and procedures are in place. These policies and procedures
must conform to the specifications in Sec. 679.430 of this chapter for
demonstrating internal controls and preventing conflict of interest.
(b) State and local agencies may compete for and be selected as
one-stop operators by the Local WDB, as long as appropriate firewalls
and conflict of interest policies and procedures are in place. These
policies and procedures must conform to the specifications in Sec.
679.430 of this chapter for demonstrating internal controls and
preventing conflict of interest.
(c) In the case of single-area States where the State WDB serves as
the Local WDB, the State agency is eligible to compete for and be
selected as operator as long as appropriate firewalls and conflict of
interest policies are in place and followed for the competition. These
policies and procedures must conform to the specifications in Sec.
679.430 of this chapter for demonstrating internal controls and
preventing conflicts of interest.
Sec. 678.620 What is the one-stop operator's role?
(a) At a minimum, the one-stop operator must coordinate the service
delivery of required one-stop partners and service providers. Local
WDBs may establish additional roles of one-stop operator, including,
but not limited to: Coordinating service providers across the one-stop
delivery system, being the primary provider of services within the
center, providing some of the services within the center, or
coordinating service delivery in a multi-center area, which may include
affiliated sites. The competition for a one-stop operator must clearly
articulate the role of the one-stop operator.
(b)(1) Subject to paragraph (b)(2) of this section, a one-stop
operator may not perform the following functions: Convene system
stakeholders to assist in the development of the local plan; prepare
and submit local plans (as required under sec. 107 of WIOA); be
responsible for oversight of itself; manage or significantly
participate in the competitive selection process for one-stop
operators; select or terminate one-stop operators, career services, and
youth providers; negotiate local performance accountability measures;
or develop and submit budget for activities of the Local WDB in the
local area.
(2) An entity serving as a one-stop operator, that also serves a
different role within the one-stop delivery system, may perform some or
all of these functions when it is acting in its other role, if it has
established sufficient firewalls and conflict of interest policies and
procedures. The policies and procedures must conform to the
specifications in Sec. 679.430 of this chapter for demonstrating
internal controls and preventing conflict of interest.
Sec. 678.625 Can a one-stop operator also be a service provider?
Yes, but there must be appropriate firewalls in place in regards to
the competition, and subsequent oversight, monitoring, and evaluation
of performance of the service provider. The operator cannot develop,
manage, or conduct the competition of a service provider in which it
intends to compete. In cases where an operator is also a service
provider, there must be firewalls and internal controls within the
operator-service provider entity, as well as specific policies and
procedures at the Local WDB level regarding oversight, monitoring, and
evaluation of performance of the service provider. The firewalls must
conform to the specifications in Sec. 679.430 of this chapter for
demonstrating internal controls and preventing conflicts of interest.
Sec. 678.630 Can State merit staff still work in a one-stop center
where the operator is not a governmental entity?
Yes. State merit staff can continue to perform functions and
activities in the one-stop center. The Local WDB and one-stop operator
must establish a system for management of merit staff in accordance
with State policies and procedures. Continued use of State merit staff
for the provision of Wagner-Peyser Act services or services from other
programs with merit staffing requirements must be included in the
competition for and final contract with the one-stop operator when
Wagner-Peyser Act services or services from
[[Page 56016]]
other programs with merit staffing requirements are being provided.
Sec. 678.635 What is the compliance date of the provisions of this
subpart?
(a) No later than July 1, 2017, one-stop operators selected under
the competitive process described in this subpart must be in place and
operating the one-stop center.
(b) By November 17, 2016, every Local WDB must demonstrate it is
taking steps to prepare for competition of its one-stop operator. This
demonstration may include, but is not limited to, market research,
requests for information, and conducting a cost and price analysis.
Subpart E--One-Stop Operating Costs
Sec. 678.700 What are the one-stop infrastructure costs?
(a) Infrastructure costs of one-stop centers are nonpersonnel costs
that are necessary for the general operation of the one-stop center,
including:
(1) Rental of the facilities;
(2) Utilities and maintenance;
(3) Equipment (including assessment-related products and assistive
technology for individuals with disabilities); and
(4) Technology to facilitate access to the one-stop center,
including technology used for the center's planning and outreach
activities.
(b) Local WDBs may consider common identifier costs as costs of
one-stop infrastructure.
(c) Each entity that carries out a program or activities in a local
one-stop center, described in Sec. Sec. 678.400 through 678.410, must
use a portion of the funds available for the program and activities to
maintain the one-stop delivery system, including payment of the
infrastructure costs of one-stop centers. These payments must be in
accordance with this subpart; Federal cost principles, which require
that all costs must be allowable, reasonable, necessary, and allocable
to the program; and all other applicable legal requirements.
Sec. 678.705 What guidance must the Governor issue regarding one-stop
infrastructure funding?
(a) The Governor, after consultation with chief elected officials,
the State WDB, and Local WDBs, and consistent with guidance and
policies provided by the State WDB, must develop and issue guidance for
use by local areas, specifically:
(1) Guidelines for State-administered one-stop partner programs for
determining such programs' contributions to a one-stop delivery system,
based on such programs' proportionate use of such system, and relative
benefit received, consistent with Office of Management and Budget (OMB)
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards in 2 CFR part 200, including
determining funding for the costs of infrastructure; and
(2) Guidance to assist Local WDBs, chief elected officials, and
one-stop partners in local areas in determining equitable and stable
methods of funding the costs of infrastructure at one-stop centers
based on proportionate use and relative benefit received, and
consistent with Federal cost principles contained in the Uniform
Guidance at 2 CFR part 200.
(b) The guidance must include:
(1) The appropriate roles of the one-stop partner programs in
identifying one-stop infrastructure costs;
(2) Approaches to facilitate equitable and efficient cost
allocation that results in a reasonable cost allocation methodology
where infrastructure costs are charged to each partner based on its
proportionate use of the one-stop centers and relative benefit
received, consistent with Federal cost principles at 2 CFR part 200;
and
(3) The timelines regarding notification to the Governor for not
reaching local agreement and triggering the State funding mechanism
described in Sec. 678.730, and timelines for a one-stop partner to
submit an appeal in the State funding mechanism.
Sec. 678.710 How are infrastructure costs funded?
Infrastructure costs are funded either through the local funding
mechanism described in Sec. 678.715 or through the State funding
mechanism described in Sec. 678.730.
Sec. 678.715 How are one-stop infrastructure costs funded in the
local funding mechanism?
(a) In the local funding mechanism, the Local WDB, chief elected
officials, and one-stop partners agree to amounts and methods of
calculating amounts each partner will contribute for one-stop
infrastructure funding, include the infrastructure funding terms in the
MOU, and sign the MOU. The local funding mechanism must meet all of the
following requirements:
(1) The infrastructure costs are funded through cash and fairly
evaluated non-cash and third-party in-kind partner contributions and
include any funding from philanthropic organizations or other private
entities, or through other alternative financing options, to provide a
stable and equitable funding stream for ongoing one-stop delivery
system operations;
(2) Contributions must be negotiated between one-stop partners,
chief elected officials, and the Local WDB and the amount to be
contributed must be included in the MOU;
(3) The one-stop partner program's proportionate share of funding
must be calculated in accordance with the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards in 2 CFR part 200 based upon a reasonable cost allocation
methodology whereby infrastructure costs are charged to each partner in
proportion to its use of the one-stop center, relative to benefits
received. Such costs must also be allowable, reasonable, necessary, and
allocable;
(4) Partner shares must be periodically reviewed and reconciled
against actual costs incurred, and adjusted to ensure that actual costs
charged to any one-stop partners are proportionate to the use of the
one-stop center and relative to the benefit received by the one-stop
partners and their respective programs or activities.
(b) In developing the section of the MOU on one-stop infrastructure
funding described in Sec. 678.755, the Local WDB and chief elected
officials will:
(1) Ensure that the one-stop partners adhere to the guidance
identified in Sec. 678.705 on one-stop delivery system infrastructure
costs.
(2) Work with one-stop partners to achieve consensus and informally
mediate any possible conflicts or disagreements among one-stop
partners.
(3) Provide technical assistance to new one-stop partners and local
grant recipients to ensure that those entities are informed and
knowledgeable of the elements contained in the MOU and the one-stop
infrastructure costs arrangement.
(c) The MOU may include an interim infrastructure funding
agreement, including as much detail as the Local WDB has negotiated
with one-stop partners, if all other parts of the MOU have been
negotiated, in order to allow the partner programs to operate in the
one-stop centers. The interim infrastructure funding agreement must be
finalized within 6 months of when the MOU is signed. If the interim
infrastructure funding agreement is not finalized within that
timeframe, the Local WDB must notify the Governor, as described in
Sec. 678.725.
[[Page 56017]]
Sec. 678.720 What funds are used to pay for infrastructure costs in
the local one-stop infrastructure funding mechanism?
(a) In the local funding mechanism, one-stop partner programs may
determine what funds they will use to pay for infrastructure costs. The
use of these funds must be in accordance with the requirements in this
subpart, and with the relevant partner's authorizing statutes and
regulations, including, for example, prohibitions against supplanting
non-Federal resources, statutory limitations on administrative costs,
and all other applicable legal requirements. In the case of partners
administering programs authorized by title I of WIOA, these
infrastructure costs may be considered program costs. In the case of
partners administering adult education and literacy programs authorized
by title II of WIOA, these funds must include Federal funds made
available for the local administration of adult education and literacy
programs authorized by title II of WIOA. These funds may also include
non-Federal resources that are cash, in-kind or third-party
contributions. In the case of partners administering the Carl D.
Perkins Career and Technical Education Act of 2006, funds used to pay
for infrastructure costs may include funds available for local
administrative expenses, non-Federal resources that are cash, in-kind
or third-party contributions, and may include other funds made
available by the State.
(b) There are no specific caps on the amount or percent of overall
funding a one-stop partner may contribute to fund infrastructure costs
under the local funding mechanism, except that contributions for
administrative costs may not exceed the amount available for
administrative costs under the authorizing statute of the partner
program. However, amounts contributed for infrastructure costs must be
allowable and based on proportionate use of the one-stop centers and
relative benefit received by the partner program, taking into account
the total cost of the one-stop infrastructure as well as alternate
financing options, and must be consistent with 2 CFR part 200,
including the Federal cost principles.
(c) Cash, non-cash, and third-party in-kind contributions may be
provided by one-stop partners to cover their proportionate share of
infrastructure costs.
(1) Cash contributions are cash funds provided to the Local WDB or
its designee by one-stop partners, either directly or by an interagency
transfer.
(2) Non-cash contributions are comprised of--
(i) Expenditures incurred by one-stop partners on behalf of the
one-stop center; and
(ii) Non-cash contributions or goods or services contributed by a
partner program and used by the one-stop center.
(3) Non-cash contributions, especially those set forth in paragraph
(c)(2)(ii) of this section, must be valued consistent with 2 CFR
200.306 to ensure they are fairly evaluated and meet the partners'
proportionate share.
(4) Third-party in-kind contributions are:
(i) Contributions of space, equipment, technology, non-personnel
services, or other like items to support the infrastructure costs
associated with one-stop operations, by a non-one-stop partner to
support the one-stop center in general, not a specific partner; or
(ii) Contributions by a non-one-stop partner of space, equipment,
technology, non-personnel services, or other like items to support the
infrastructure costs associated with one-stop operations, to a one-stop
partner to support its proportionate share of one-stop infrastructure
costs.
(iii) In-kind contributions described in paragraphs (c)(4)(i) and
(ii) of this section must be valued consistent with 2 CFR 200.306 and
reconciled on a regular basis to ensure they are fairly evaluated and
meet the proportionate share of the partner.
(5) All partner contributions, regardless of the type, must be
reconciled on a regular basis (i.e., monthly or quarterly), comparing
actual expenses incurred to relative benefits received, to ensure each
partner program is contributing its proportionate share in accordance
with the terms of the MOU.
Sec. 678.725 What happens if consensus on infrastructure funding is
not reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?
With regard to negotiations for infrastructure funding for Program
Year (PY) 2017 and for each subsequent program year thereafter, if the
Local WDB, chief elected officials, and one-stop partners do not reach
consensus on methods of sufficiently funding local infrastructure
through the local funding mechanism in accordance with the Governor's
guidance issued under Sec. 678.705 and consistent with the regulations
in Sec. Sec. 678.715 and 678.720, and include that consensus agreement
in the signed MOU, then the Local WDB must notify the Governor by the
deadline established by the Governor under Sec. 678.705(b)(3). Once
notified, the Governor must administer funding through the State
funding mechanism, as described in Sec. Sec. 678.730 through 678.738,
for the program year impacted by the local area's failure to reach
consensus.
Sec. 678.730 What is the State one-stop infrastructure funding
mechanism?
(a) Consistent with sec. 121(h)(1)(A)(i)(II) of WIOA, if the Local
WDB, chief elected official, and one-stop partners in a local area do
not reach consensus agreement on methods of sufficiently funding the
costs of infrastructure of one-stop centers for a program year, the
State funding mechanism is applicable to the local area for that
program year.
(b) In the State funding mechanism, the Governor, subject to the
limitations in paragraph (c) of this section, determines one-stop
partner contributions after consultation with the chief elected
officials, Local WDBs, and the State WDB. This determination involves:
(1) The application of a budget for one-stop infrastructure costs
as described in Sec. 678.735, based on either agreement reached in the
local area negotiations or the State WDB formula outlined in Sec.
678.745;
(2) The determination of each local one-stop partner program's
proportionate use of the one-stop delivery system and relative benefit
received, consistent with the Uniform Guidance at 2 CFR part 200,
including the Federal cost principles, the partner programs'
authorizing laws and regulations, and other applicable legal
requirements described in Sec. 678.736; and
(3) The calculation of required statewide program caps on
contributions to infrastructure costs from one-stop partner programs in
areas operating under the State funding mechanism as described in Sec.
678.738.
(c) In certain situations, the Governor does not determine the
infrastructure cost contributions for some one-stop partner programs
under the State funding mechanism.
(1) The Governor will not determine the contribution amounts for
infrastructure funds for Native American program grantees described in
part 684 of this chapter. The appropriate portion of funds to be
provided by Native American program grantees to pay for one-stop
infrastructure must be determined as part of the development of the MOU
described in Sec. 678.500 and specified in that MOU.
(2) In States in which the policy-making authority is placed in an
entity or official that is independent of the
[[Page 56018]]
authority of the Governor with respect to the funds provided for adult
education and literacy activities authorized under title II of WIOA,
postsecondary career and technical education activities authorized
under the Carl D. Perkins Career and Technical Education Act of 2006,
or VR services authorized under title I of the Rehabilitation Act of
1973 (other than sec. 112 or part C), as amended by WIOA title IV, the
determination of the amount each of the applicable partners must
contribute to assist in paying the infrastructure costs of one-stop
centers must be made by the official or chief officer of the entity
with such authority, in consultation with the Governor.
(d) Any duty, ability, choice, responsibility, or other action
otherwise related to the determination of infrastructure costs
contributions that is assigned to the Governor in Sec. Sec. 678.730
through 678.745 also applies to this decision-making process performed
by the official or chief officer described in paragraph (c)(2) of this
section.
Sec. 678.731 What are the steps to determine the amount to be paid
under the State one-stop infrastructure funding mechanism?
(a) To initiate the State funding mechanism, a Local WDB that has
not reached consensus on methods of sufficiently funding local
infrastructure through the local funding mechanism as provided in Sec.
678.725 must notify the Governor by the deadline established by the
Governor under Sec. 678.705(b)(3).
(b) Once a Local WDB has informed the Governor that no consensus
has been reached:
(1) The Local WDB must provide the Governor with local negotiation
materials in accordance with Sec. 678.735(a).
(2) The Governor must determine the one-stop center budget by
either:
(i) Accepting a budget previously agreed upon by partner programs
in the local negotiations, in accordance with Sec. 678.735(b)(1); or
(ii) Creating a budget for the one-stop center using the State WDB
formula (described in Sec. 678.745) in accordance with Sec.
678.735(b)(3).
(3) The Governor then must establish a cost allocation methodology
to determine the one-stop partner programs' proportionate shares of
infrastructure costs, in accordance with Sec. 678.736.
(4)(i) Using the methodology established under paragraph (b)(2)(ii)
of this section, and taking into consideration the factors concerning
individual partner programs listed in Sec. 678.737(b)(2), the Governor
must determine each partner's proportionate share of the infrastructure
costs, in accordance with Sec. 678.737(b)(1), and
(ii) In accordance with Sec. 678.730(c), in some instances, the
Governor does not determine a partner program's proportionate share of
infrastructure funding costs, in which case it must be determined by
the entities named in Sec. 678.730(c)(1) and (2).
(5) The Governor must then calculate the statewide caps on the
amounts that partner programs may be required to contribute toward
infrastructure funding, according to the steps found at Sec.
678.738(a)(1) through (4).
(6) The Governor must ensure that the aggregate total of the
infrastructure contributions according to proportionate share required
of all local partner programs in local areas under the State funding
mechanism do not exceed the cap for that particular program, in
accordance with Sec. 678.738(b)(1). If the total does not exceed the
cap, the Governor must direct each one-stop partner program to pay the
amount determined under Sec. 678.737(a) toward the infrastructure
funding costs of the one-stop center. If the total does exceed the cap,
then to determine the amount to direct each one-stop program to pay,
the Governor may:
(i) Ascertain, in accordance with Sec. 678.738(b)(2)(i), whether
the local partner or partners whose proportionate shares are calculated
above the individual program caps are willing to voluntarily contribute
above the capped amount to equal that program's proportionate share; or
(ii) Choose from the options provided in Sec. 678.738(b)(2)(ii),
including having the local area re-enter negotiations to reassess each
one-stop partner's proportionate share and make adjustments or identify
alternate sources of funding to make up the difference between the
capped amount and the proportionate share of infrastructure funding of
the one-stop partner.
(7) If none of the solutions given in paragraphs (b)(6)(i) and (ii)
of this section prove to be viable, the Governor must reassess the
proportionate shares of each one-stop partner so that the aggregate
amount attributable to the local partners for each program is less than
that program's cap amount. Upon such reassessment, the Governor must
direct each one-stop partner program to pay the reassessed amount
toward the infrastructure funding costs of the one-stop center.
Sec. 678.735 How are infrastructure cost budgets for the one-stop
centers in a local area determined in the State one-stop infrastructure
funding mechanism?
(a) Local WDBs must provide to the Governor appropriate and
relevant materials and documents used in the negotiations under the
local funding mechanism, including but not limited to: The local WIOA
plan, the cost allocation method or methods proposed by the partners to
be used in determining proportionate share, the proposed amounts or
budget to fund infrastructure, the amount of total partner funds
included, the type of funds or non-cash contributions, proposed one-
stop center budgets, and any agreed upon or proposed MOUs.
(b)(1) If a local area has reached agreement as to the
infrastructure budget for the one-stop centers in the local area, it
must provide this budget to the Governor as required by paragraph (a)
of this section. If, as a result of the agreed upon infrastructure
budget, only the individual programmatic contributions to
infrastructure funding based upon proportionate use of the one-stop
centers and relative benefit received are at issue, the Governor may
accept the budget, from which the Governor must calculate each
partner's contribution consistent with the cost allocation
methodologies contained in the Uniform Guidance found in 2 CFR part
200, as described in Sec. 678.736.
(2) The Governor may also take into consideration the extent to
which the partners in the local area have agreed in determining the
proportionate shares, including any agreements reached at the local
level by one or more partners, as well as any other element or product
of the negotiating process provided to the Governor as required by
paragraph (a) of this section.
(3) If a local area has not reached agreement as to the
infrastructure budget for the one-stop centers in the local area, or if
the Governor determines that the agreed upon budget does not adequately
meet the needs of the local area or does not reasonably work within the
confines of the local area's resources in accordance with the
Governor's one-stop budget guidance (which is required to be issued by
WIOA sec. 121(h)(1)(B) and under Sec. 678.705), then, in accordance
with Sec. 678.745, the Governor must use the formula developed by the
State WDB based on at least the factors required under Sec. 678.745,
and any associated weights to determine the local area budget.
[[Page 56019]]
Sec. 678.736 How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs'
proportionate shares of infrastructure costs under the State one-stop
infrastructure funding mechanism?
Once the appropriate budget is determined for a local area through
either method described in Sec. 678.735 (by acceptance of a budget
agreed upon in local negotiation or by the Governor applying the
formula detailed in Sec. 678.745), the Governor must determine the
appropriate cost allocation methodology to be applied to the one-stop
partners in such local area, consistent with the Federal cost
principles permitted under 2 CFR part 200, to fund the infrastructure
budget.
Sec. 678.737 How are one-stop partner programs' proportionate shares
of infrastructure costs determined under the State one-stop
infrastructure funding mechanism?
(a) The Governor must direct the one-stop partners in each local
area that have not reached agreement under the local funding mechanism
to pay what the Governor determines is each partner program's
proportionate share of infrastructure funds for that area, subject to
the application of the caps described in Sec. 678.738.
(b)(1) The Governor must use the cost allocation methodology--as
determined under Sec. 678.736--to determine each partner's
proportionate share of the infrastructure costs under the State funding
mechanism, subject to considering the factors described in paragraph
(b)(2) of this section.
(2) In determining each partner program's proportionate share of
infrastructure costs, the Governor must take into account the costs of
administration of the one-stop delivery system for purposes not related
to one-stop centers for each partner (such as costs associated with
maintaining the Local WDB or information technology systems), as well
as the statutory requirements for each partner program, the partner
program's ability to fulfill such requirements, and all other
applicable legal requirements. The Governor may also take into
consideration the extent to which the partners in the local area have
agreed in determining the proportionate shares, including any
agreements reached at the local level by one or more partners, as well
as any other materials or documents of the negotiating process, which
must be provided to the Governor by the Local WDB and described in
Sec. 678.735(a).
Sec. 678.738 How are statewide caps on the contributions for one-stop
infrastructure funding determined in the State one-stop infrastructure
funding mechanism?
(a) The Governor must calculate the statewide cap on the
contributions for one-stop infrastructure funding required to be
provided by each one-stop partner program for those local areas that
have not reached agreement. The cap is the amount determined under
paragraph (a)(4) of this section, which the Governor derives by:
(1) First, determining the amount resulting from applying the
percentage for the corresponding one-stop partner program provided in
paragraph (d) of this section to the amount of Federal funds provided
to carry out the one-stop partner program in the State for the
applicable fiscal year;
(2) Second, selecting a factor (or factors) that reasonably
indicates the use of one-stop centers in the State, applying such
factor(s) to all local areas in the State, and determining the
percentage of such factor(s) applicable to the local areas that reached
agreement under the local funding mechanism in the State;
(3) Third, determining the amount resulting from applying the
percentage determined in paragraph (a)(2) of this section to the amount
determined under paragraph (a)(1) of this section for the one-stop
partner program; and
(4) Fourth, determining the amount that results from subtracting
the amount determined under paragraph (a)(3) of this section from the
amount determined under paragraph (a)(1) of this section. The outcome
of this final calculation results in the partner program's cap.
(b)(1) The Governor must ensure that the funds required to be
contributed by each partner program in the local areas in the State
under the State funding mechanism, in aggregate, do not exceed the
statewide cap for each program as determined under paragraph (a) of
this section.
(2) If the contributions initially determined under Sec. 678.737
would exceed the applicable cap determined under paragraph (a) of this
section, the Governor may:
(i) Ascertain if the one-stop partner whose contribution would
otherwise exceed the cap determined under paragraph (a) of this section
will voluntarily contribute above the capped amount, so that the total
contributions equal that partner's proportionate share. The one-stop
partner's contribution must still be consistent with the program's
authorizing laws and regulations, the Federal cost principles in 2 CFR
part 200, and other applicable legal requirements; or
(ii) Direct or allow the Local WDB, chief elected officials, and
one-stop partners to: Re-enter negotiations, as necessary; reduce the
infrastructure costs to reflect the amount of funds that are available
for such costs without exceeding the cap levels; reassess the
proportionate share of each one-stop partner; or identify alternative
sources of financing for one-stop infrastructure funding, consistent
with the requirement that each one-stop partner pay an amount that is
consistent with the proportionate use of the one-stop center and
relative benefit received by the partner, the program's authorizing
laws and regulations, the Federal cost principles in 2 CFR part 200,
and other applicable legal requirements.
(3) If applicable under paragraph (b)(2)(ii) of this section, the
Local WDB, chief elected officials, and one-stop partners, after
renegotiation, may come to agreement, sign an MOU, and proceed under
the local funding mechanism. Such actions do not require the
redetermination of the applicable caps under paragraph (a) of this
section.
(4) If, after renegotiation, agreement among partners still cannot
be reached or alternate financing cannot be identified, the Governor
may adjust the specified allocation, in accordance with the amounts
available and the limitations described in paragraph (d) of this
section. In determining these adjustments, the Governor may take into
account information relating to the renegotiation as well as the
information described in Sec. 678.735(a).
(c) Limitations. Subject to paragraph (a) of this section and in
accordance with WIOA sec. 121(h)(2)(D), the following limitations apply
to the Governor's calculations of the amount that one-stop partners in
local areas that have not reached agreement under the local funding
mechanism may be required under Sec. 678.736 to contribute to one-stop
infrastructure funding:
(1) WIOA formula programs and Wagner-Peyser Act Employment Service.
The portion of funds required to be contributed under the WIOA youth,
adult, or dislocated worker programs, or under the Wagner-Peyser Act
(29 U.S.C. 49 et seq.) must not exceed three percent of the amount of
the program in the State for a program year.
(2) Other one-stop partners. For required one-stop partners other
than those specified in paragraphs (c)(1), (3), (5), and (6) of this
section, the portion of funds required to be contributed must not
exceed 1.5 percent of the amount of Federal funds provided to carry out
that program in the State for a fiscal year.
[[Page 56020]]
For purposes of the Carl D. Perkins Career and Technical Education Act
of 2006, the cap on contributions is determined based on the funds made
available by the State for postsecondary level programs and activities
under sec. 132 of the Carl D. Perkins Career and Technical Education
Act and the amount of funds used by the State under sec. 112(a)(3) of
the Perkins Act during the prior year to administer postsecondary level
programs and activities, as applicable.
(3) Vocational rehabilitation. (i) Within a State, for the entity
or entities administering the programs described in WIOA sec.
121(b)(1)(B)(iv) and Sec. 678.400, the allotment is based on the one
State Federal fiscal year allotment, even in instances where that
allotment is shared between two State agencies, and the cumulative
portion of funds required to be contributed must not exceed--
(A) 0.75 percent of the amount of Federal funds provided to carry
out such program in the State for Fiscal Year 2016 for purposes of
applicability of the State funding mechanism for PY 2017;
(B) 1.0 percent of the amount provided to carry out such program in
the State for Fiscal Year 2017 for purposes of applicability of the
State funding mechanism for PY 2018;
(C) 1.25 percent of the amount provided to carry out such program
in the State for Fiscal Year 2018 for purposes of applicability of the
State funding mechanism for PY 2019;
(D) 1.5 percent of the amount provided to carry out such program in
the State for Fiscal Year 2019 and following years for purposes of
applicability of the State funding mechanism for PY 2020 and subsequent
years.
(ii) The limitations set forth in paragraph (d)(3)(i) of this
section for any given fiscal year must be based on the final VR
allotment to the State in the applicable Federal fiscal year.
(4) Federal direct spending programs. For local areas that have not
reached a one-stop infrastructure funding agreement by consensus, an
entity administering a program funded with direct Federal spending, as
defined in sec. 250(c)(8) of the Balanced Budget and Emergency Deficit
Control Act of 1985, as in effect on February 15, 2014 (2 U.S.C.
900(c)(8)), must not be required to provide more for infrastructure
costs than the amount that the Governor determined (as described in
Sec. 678.737).
(5) TANF programs. For purposes of TANF, the cap on contributions
is determined based on the total Federal TANF funds expended by the
State for work, education, and training activities during the prior
Federal fiscal year (as reported to the Department of Health and Human
Services (HHS) on the quarterly TANF Financial Report form), plus any
additional amount of Federal TANF funds that the State TANF agency
reasonably determines was expended for administrative costs in
connection with these activities but that was separately reported to
HHS as an administrative cost. The State's contribution to the one-stop
infrastructure must not exceed 1.5 percent of these combined
expenditures.
(6) Community Services Block Grant (CSBG) programs. For purposes of
CSBG, the cap on contributions will be based on the total amount of
CSBG funds determined by the State to have been expended by local CSBG-
eligible entities for the provision of employment and training
activities during the prior Federal fiscal year for which information
is available (as reported to HHS on the CSBG Annual Report) and any
additional amount that the State CSBG agency reasonably determines was
expended for administrative purposes in connection with these
activities and was separately reported to HHS as an administrative
cost. The State's contribution must not exceed 1.5 percent of these
combined expenditures.
(d) For programs for which it is not otherwise feasible to
determine the amount of Federal funding used by the program until the
end of that program's operational year--because, for example, the
funding available for education, employment, and training activities is
included within funding for the program that may also be used for other
unrelated activities--the determination of the Federal funds provided
to carry out the program for a fiscal year under paragraph (a)(1) of
this section may be determined by:
(1) The percentage of Federal funds available to the one-stop
partner program that were used by the one-stop partner program for
education, employment, and training activities in the previous fiscal
year for which data are available; and
(2) Applying the percentage determined under paragraph (d)(1) of
this section to the total amount of Federal funds available to the one-
stop partner program for the fiscal year for which the determination
under paragraph (a)(1) of this section applies.
Sec. 678.740 What funds are used to pay for infrastructure costs in
the State one-stop infrastructure funding mechanism?
(a) In the State funding mechanism, infrastructure costs for WIOA
title I programs, including Native American Programs described in part
684 of this chapter, may be paid using program funds, administrative
funds, or both. Infrastructure costs for the Senior Community Service
Employment Program under title V of the Older Americans Act (42 U.S.C.
3056 et seq.) may also be paid using program funds, administrative
funds, or both.
(b) In the State funding mechanism, infrastructure costs for other
required one-stop partner programs (listed in Sec. Sec. 678.400
through 678.410) are limited to the program's administrative funds, as
appropriate.
(c) In the State funding mechanism, infrastructure costs for the
adult education program authorized by title II of WIOA must be paid
from the funds that are available for local administration and may be
paid from funds made available by the State or non-Federal resources
that are cash, in-kind, or third-party contributions.
(d) In the State funding mechanism, infrastructure costs for the
Carl D. Perkins Career and Technical Education Act of 2006 must be paid
from funds available for local administration of postsecondary level
programs and activities to eligible recipients or consortia of eligible
recipients and may be paid from funds made available by the State or
non-Federal resources that are cash, in-kind, or third-party
contributions.
Sec. 678.745 What factors does the State Workforce Development Board
use to develop the formula described in Workforce Innovation and
Opportunity Act, which is used by the Governor to determine the
appropriate one-stop infrastructure budget for each local area
operating under the State infrastructure funding mechanism, if no
reasonably implementable locally negotiated budget exists?
The State WDB must develop a formula, as described in WIOA sec.
121(h)(3)(B), to be used by the Governor under Sec. 678.735(b)(3) in
determining the appropriate budget for the infrastructure costs of one-
stop centers in the local areas that do not reach agreement under the
local funding mechanism and are, therefore, subject to the State
funding mechanism. The formula identifies the factors and corresponding
weights for each factor that the Governor must use, which must include:
The number of one-stop centers in a local area; the population served
by such centers; the services provided by such centers; and any factors
relating to the operations of such centers in the local area that the
State WDB determines are appropriate. As indicated in Sec.
678.735(b)(1), if the local area has agreed on such a budget,
[[Page 56021]]
the Governor may accept that budget in lieu of applying the formula
factors.
Sec. 678.750 When and how can a one-stop partner appeal a one-stop
infrastructure amount designated by the State under the State
infrastructure funding mechanism?
(a) The Governor must establish a process, described under sec.
121(h)(2)(E) of WIOA, for a one-stop partner administering a program
described in Sec. Sec. 678.400 through 678.410 to appeal the
Governor's determination regarding the one-stop partner's portion of
funds to be provided for one-stop infrastructure costs. This appeal
process must be described in the Unified State Plan.
(b) The appeal may be made on the ground that the Governor's
determination is inconsistent with proportionate share requirements in
Sec. 678.735(a), the cost contribution limitations in Sec.
678.735(b), the cost contribution caps in Sec. 678.738, consistent
with the process described in the State Plan.
(c) The process must ensure prompt resolution of the appeal in
order to ensure the funds are distributed in a timely manner,
consistent with the requirements of Sec. 683.630 of this chapter.
(d) The one-stop partner must submit an appeal in accordance with
State's deadlines for appeals specified in the guidance issued under
Sec. 678.705(b)(3), or if the State has not set a deadline, within 21
days from the Governor's determination.
Sec. 678.755 What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of
Understanding?
The MOU, fully described in Sec. 678.500, must contain the
following information whether the local areas use either the local one-
stop or the State funding method:
(a) The period of time in which this infrastructure funding
agreement is effective. This may be a different time period than the
duration of the MOU.
(b) Identification of an infrastructure and shared services budget
that will be periodically reconciled against actual costs incurred and
adjusted accordingly to ensure that it reflects a cost allocation
methodology that demonstrates how infrastructure costs are charged to
each partner in proportion to its use of the one-stop center and
relative benefit received, and that complies with 2 CFR part 200 (or
any corresponding similar regulation or ruling).
(c) Identification of all one-stop partners, chief elected
officials, and Local WDB participating in the infrastructure funding
arrangement.
(d) Steps the Local WDB, chief elected officials, and one-stop
partners used to reach consensus or an assurance that the local area
followed the guidance for the State funding process.
(e) Description of the process to be used among partners to resolve
issues during the MOU duration period when consensus cannot be reached.
(f) Description of the periodic modification and review process to
ensure equitable benefit among one-stop partners.
Sec. 678.760 How do one-stop partners jointly fund other shared costs
under the Memorandum of Understanding?
(a) In addition to jointly funding infrastructure costs, one-stop
partners listed in Sec. Sec. 678.400 through 678.410 must use a
portion of funds made available under their programs' authorizing
Federal law (or fairly evaluated in-kind contributions) to pay the
additional costs relating to the operation of the one-stop delivery
system. These other costs must include applicable career services and
may include other costs, including shared services.
(b) For the purposes of paragraph (a) of this section, shared
services' costs may include the costs of shared services that are
authorized for and may be commonly provided through the one-stop
partner programs to any individual, such as initial intake, assessment
of needs, appraisal of basic skills, identification of appropriate
services to meet such needs, referrals to other one-stop partners, and
business services. Shared operating costs may also include shared costs
of the Local WDB's functions.
(c) Contributions to the additional costs related to operation of
the one-stop delivery system may be cash, non-cash, or third-party in-
kind contributions, consistent with how these are described in Sec.
678.720(c).
(d) The shared costs described in paragraph (a) of this section
must be allocated according to the proportion of benefit received by
each of the partners, consistent with the Federal law authorizing the
partner's program, and consistent with all other applicable legal
requirements, including Federal cost principles in 2 CFR part 200 (or
any corresponding similar regulation or ruling) requiring that costs
are allowable, reasonable, necessary, and allocable.
(e) Any shared costs agreed upon by the one-stop partners must be
included in the MOU.
Subpart F--One-Stop Certification
Sec. 678.800 How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic accessibility,
and continuous improvement?
(a) The State WDB, in consultation with chief elected officials and
Local WDBs, must establish objective criteria and procedures for Local
WDBs to use when certifying one-stop centers.
(1) The State WDB, in consultation with chief elected officials and
Local WDBs, must review and update the criteria every 2 years as part
of the review and modification of State Plans pursuant to Sec. 676.135
of this chapter.
(2) The criteria must be consistent with the Governor's and State
WDB's guidelines, guidance, and policies on infrastructure funding
decisions, described in Sec. 678.705. The criteria must evaluate the
one-stop centers and one-stop delivery system for effectiveness,
including customer satisfaction, physical and programmatic
accessibility, and continuous improvement.
(3) When the Local WDB is the one-stop operator as described in
Sec. 679.410 of this chapter, the State WDB must certify the one-stop
center.
(b) Evaluations of effectiveness must include how well the one-stop
center integrates available services for participants and businesses,
meets the workforce development needs of participants and the
employment needs of local employers, operates in a cost-efficient
manner, coordinates services among the one-stop partner programs, and
provides access to partner program services to the maximum extent
practicable, including providing services outside of regular business
hours where there is a workforce need, as identified by the Local WDB.
These evaluations must take into account feedback from one-stop
customers. They must also include evaluations of how well the one-stop
center ensures equal opportunity for individuals with disabilities to
participate in or benefit from one-stop center services. These
evaluations must include criteria evaluating how well the centers and
delivery systems take actions to comply with the disability-related
regulations implementing WIOA sec. 188, set forth at 29 CFR part 38.
Such actions include, but are not limited to:
(1) Providing reasonable accommodations for individuals with
disabilities;
(2) Making reasonable modifications to policies, practices, and
procedures where necessary to avoid discrimination against persons with
disabilities;
[[Page 56022]]
(3) Administering programs in the most integrated setting
appropriate;
(4) Communicating with persons with disabilities as effectively as
with others;
(5) Providing appropriate auxiliary aids and services, including
assistive technology devices and services, where necessary to afford
individuals with disabilities an equal opportunity to participate in,
and enjoy the benefits of, the program or activity; and
(6) Providing for the physical accessibility of the one-stop center
to individuals with disabilities.
(c) Evaluations of continuous improvement must include how well the
one-stop center supports the achievement of the negotiated local levels
of performance for the indicators of performance for the local area
described in sec. 116(b)(2) of WIOA and part 677 of this chapter. Other
continuous improvement factors may include a regular process for
identifying and responding to technical assistance needs, a regular
system of continuing professional staff development, and having systems
in place to capture and respond to specific customer feedback.
(d) Local WDBs must assess at least once every 3 years the
effectiveness, physical and programmatic accessibility, and continuous
improvement of one-stop centers and the one-stop delivery systems using
the criteria and procedures developed by the State WDB. The Local WDB
may establish additional criteria, or set higher standards for service
coordination, than those set by the State criteria. Local WDBs must
review and update the criteria every 2 years as part of the Local Plan
update process described in Sec. 676.580 of this chapter. Local WDBs
must certify one-stop centers in order to be eligible to use
infrastructure funds in the State funding mechanism described in Sec.
678.730.
(e) All one-stop centers must comply with applicable physical and
programmatic accessibility requirements, as set forth in 29 CFR part
38, the implementing regulations of WIOA sec. 188.
Subpart G--Common Identifier
Sec. 678.900 What is the common identifier to be used by each one-
stop delivery system?
(a) The common one-stop delivery system identifier is ``American
Job Center.''
(b) As of November 17, 2016, each one-stop delivery system must
include the ``American Job Center'' identifier or ``a proud partner of
the American Job Center network'' on all primary electronic resources
used by the one-stop delivery system, and on any newly printed,
purchased, or created materials.
(c) As of July 1, 2017, each one-stop delivery system must include
the ``American Job Center'' identifier or ``a proud partner of the
American Job Center network'' on all products, programs, activities,
services, electronic resources, facilities, and related property and
new materials used in the one-stop delivery system.
(d) One-stop partners, States, or local areas may use additional
identifiers on their products, programs, activities, services,
facilities, and related property and materials.
Department of Education
34 CFR Chapters III and IV
For the reasons stated in the preamble, the Department of Education
amends 34 CFR chapters III and IV as follows:
PART 361--STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
0
4. The authority citation for part 361 continues to read as follows:
Authority: 29 U.S.C. 709(c), unless otherwise noted.
0
5. Add subpart D to part 361 to read as follows:
Subpart D--Unified and Combined State Plans Under Title I of the
Workforce Innovation and Opportunity Act
Sec.
361.100 What are the purposes of the Unified and Combined State
Plans?
361.105 What are the general requirements for the Unified State
Plan?
361.110 What are the program-specific requirements in the Unified
State Plan for the adult, dislocated worker, and youth programs
authorized under Workforce Innovation and Opportunity Act title I?
361.115 What are the program-specific requirements in the Unified
State Plan for the Adult Education and Family Literacy Act program
authorized under Workforce Innovation and Opportunity Act title II?
361.120 What are the program-specific requirements in the Unified
State Plan for the Employment Service program authorized under the
Wagner-Peyser Act, as amended by Workforce Innovation and
Opportunity Act title III?
361.125 What are the program-specific requirements in the Unified
State Plan for the State Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as
amended by Workforce Innovation and Opportunity Act title IV?
361.130 What is the development, submission, and approval process of
the Unified State Plan?
361.135 What are the requirements for modification of the Unified
State Plan?
361.140 What are the general requirements for submitting a Combined
State Plan?
361.143 What is the development, submission, and approval process of
the Combined State Plan?
361.145 What are the requirements for modifications of the Combined
State Plan?
Authority: Secs. 102, 103, and 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart D--Unified and Combined State Plans Under Title I of the
Workforce Innovation and Opportunity Act
Sec. 361.100 What are the purposes of the Unified and Combined State
Plans?
(a) The Unified and Combined State Plans provide the framework for
States to outline a strategic vision of, and goals for, how their
workforce development systems will achieve the purposes of the
Workforce Innovation and Opportunity Act (WIOA).
(b) The Unified and Combined State Plans serve as 4-year action
plans to develop, align, and integrate the State's systems and provide
a platform to achieve the State's vision and strategic and operational
goals. A Unified or Combined State Plan is intended to:
(1) Align, in strategic coordination, the six core programs
required in the Unified State Plan pursuant to Sec. 361.105(b), and
additional Combined State Plan partner programs that may be part of the
Combined State Plan pursuant to Sec. 361.140;
(2) 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;
(3) Apply strategies for job-driven training consistently across
Federal programs; and
(4) Enable economic, education, and workforce partners to build a
skilled workforce through innovation in, and alignment of, employment,
training, and education programs.
Sec. 361.105 What are the general requirements for the Unified State
Plan?
(a) The Unified State Plan must be submitted in accordance with
Sec. 361.130 and WIOA sec. 102(c), as explained in joint planning
guidelines issued by the Secretaries of Labor and Education.
(b) The Governor of each State must submit, at a minimum, in
accordance with Sec. 361.130, a Unified State Plan to the Secretary of
Labor to be eligible to receive funding for the workforce
[[Page 56023]]
development system's six core programs:
(1) The adult, dislocated worker, and youth programs authorized
under subtitle B of title I of WIOA and administered by the U.S.
Department of Labor (DOL);
(2) The Adult Education and Family Literacy Act (AEFLA) program
authorized under title II of WIOA and administered by the U.S.
Department of Education (ED);
(3) The Employment Service program authorized under the Wagner-
Peyser Act of 1933, as amended by WIOA title III and administered by
DOL; and
(4) The Vocational Rehabilitation program authorized under title I
of the Rehabilitation Act of 1973, as amended by title IV of WIOA and
administered by ED.
(c) The Unified State Plan must outline the State's 4-year strategy
for the core programs described in paragraph (b) of this section and
meet the requirements of sec. 102(b) of WIOA, as explained in the joint
planning guidelines issued by the Secretaries of Labor and Education.
(d) The Unified State Plan must include strategic and operational
planning elements to facilitate the development of an aligned,
coordinated, and comprehensive workforce development system. The
Unified State Plan must include:
(1) Strategic planning elements that describe the State's strategic
vision and goals for preparing an educated and skilled workforce under
sec. 102(b)(1) of WIOA. The strategic planning elements must be
informed by and include an analysis of the State's economic conditions
and employer and workforce needs, including education and skill needs.
(2) Strategies for aligning the core programs and Combined State
Plan partner programs as described in Sec. 361.140(d), as well as
other resources available to the State, to achieve the strategic vision
and goals in accordance with sec. 102(b)(1)(E) of WIOA.
(3) Operational planning elements in accordance with sec. 102(b)(2)
of WIOA that support the strategies for aligning the core programs and
other resources available to the State to achieve the State's vision
and goals and a description of how the State Workforce Development
Board (WDB) will implement its functions, in accordance with sec.
101(d) of WIOA. Operational planning elements must include:
(i) A description of how the State strategy will be implemented by
each core program's lead State agency;
(ii) State operating systems, including data systems, and policies
that will support the implementation of the State's strategy identified
in paragraph (d)(1) of this section;
(iii) Program-specific requirements for the core programs required
by WIOA sec. 102(b)(2)(D);
(iv) Assurances required by sec. 102(b)(2)(E) of WIOA, including an
assurance that the lead State agencies responsible for the
administration of the core programs reviewed and commented on the
appropriate operational planning of the Unified State Plan and approved
the elements as serving the needs of the population served by such
programs, and other assurances deemed necessary by the Secretaries of
Labor and Education under sec. 102(b)(2)(E)(x) of WIOA;
(v) A description of joint planning and coordination across core
programs, required one-stop partner programs, and other programs and
activities in the Unified State Plan; and
(vi) Any additional operational planning requirements imposed by
the Secretary of Labor or the Secretary of Education under sec.
102(b)(2)(C)(viii) of WIOA.
(e) All of the requirements in this subpart that apply to States
also apply to outlying areas.
Sec. 361.110 What are the program-specific requirements in the
Unified State Plan for the adult, dislocated worker, and youth programs
authorized under Workforce Innovation and Opportunity Act title I?
The program-specific requirements for the adult, dislocated worker,
and youth programs that must be included in the Unified State Plan are
described in sec. 102(b)(2)(D) of WIOA. Additional planning
requirements may be explained in joint planning guidelines issued by
the Secretaries of Labor and Education.
Sec. 361.115 What are the program-specific requirements in the
Unified State Plan for the Adult Education and Family Literacy Act
program authorized under Workforce Innovation and Opportunity Act title
II?
The program-specific requirements for the AEFLA program in title II
that must be included in the Unified State Plan are described in secs.
102(b)(2)(C) and 102(b)(2)(D)(ii) of WIOA.
(a) With regard to the description required in sec.
102(b)(2)(D)(ii)(I) of WIOA pertaining to content standards, the
Unified State Plan must describe how the eligible agency will, by July
1, 2016, align its content standards for adult education with State-
adopted challenging academic content standards under the Elementary and
Secondary Education Act of 1965, as amended.
(b) With regard to the description required in sec.
102(b)(2)(C)(iv) of WIOA pertaining to the methods and factors the
State will use to distribute funds under the core programs, for title
II of WIOA, the Unified State Plan must include--
(1) How the eligible agency will award multi-year grants on a
competitive basis to eligible providers in the State; and
(2) How the eligible agency will provide direct and equitable
access to funds using the same grant or contract announcement and
application procedure.
Sec. 361.120 What are the program-specific requirements in the
Unified State Plan for the Employment Service program authorized under
the Wagner-Peyser Act, as amended by Workforce Innovation and
Opportunity Act title III?
The Employment Service program authorized under the Wagner-Peyser
Act of 1933, as amended by WIOA title III, is subject to requirements
in sec. 102(b) of WIOA, including any additional requirements imposed
by the Secretary of Labor under secs. 102(b)(2)(C)(viii) and
102(b)(2)(D)(iv) of WIOA, as explained in joint planning guidelines
issued by the Secretaries of Labor and Education.
Sec. 361.125 What are the program-specific requirements in the
Unified State Plan for the State Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by Workforce Innovation and Opportunity Act title IV?
The program specific-requirements for the vocational rehabilitation
services portion of the Unified or Combined State Plan are set forth in
sec. 101(a) of the Rehabilitation Act of 1973, as amended. All
submission requirements for the vocational rehabilitation services
portion of the Unified or Combined State Plan are in addition to the
jointly developed strategic and operational content requirements
prescribed by sec. 102(b) of WIOA.
Sec. 361.130 What is the development, submission, and approval
process of the Unified State Plan?
(a) The Unified State Plan described in Sec. 361.105 must be
submitted in accordance with WIOA sec. 102(c), as explained in joint
planning guidelines issued jointly by the Secretaries of Labor and
Education.
(b) A State must submit its Unified State Plan to the Secretary of
Labor pursuant to a process identified by the Secretary.
(1) The initial Unified State Plan must be submitted no later than
120 days prior to the commencement of the second full program year of
WIOA.
(2) Subsequent Unified State Plans must be submitted no later than
120
[[Page 56024]]
days prior to the end of the 4-year period covered by a preceding
Unified State Plan.
(3) For purposes of paragraph (b) of this section, ``program year''
means July 1 through June 30 of any year.
(c) The Unified State Plan must be developed with the assistance of
the State WDB, as required by 20 CFR 679.130(a) and WIOA sec. 101(d),
and must be developed in coordination with administrators with optimum
policy-making authority for the core programs and required one-stop
partners.
(d) The State must provide an opportunity for public comment on and
input into the development of the Unified State Plan prior to its
submission.
(1) The opportunity for public comment must include an opportunity
for comment by representatives of Local WDBs and chief elected
officials, businesses, representatives of labor organizations,
community-based organizations, adult education providers, institutions
of higher education, other stakeholders with an interest in the
services provided by the six core programs, and the general public,
including individuals with disabilities.
(2) Consistent with the ``Sunshine Provision'' of WIOA in sec.
101(g), the State WDB must make information regarding the Unified State
Plan available to the public through electronic means and regularly
occurring open meetings in accordance with State law. The Unified State
Plan must describe the State's process and timeline for ensuring a
meaningful opportunity for public comment.
(e) Upon receipt of the Unified State Plan from the State, the
Secretary of Labor will ensure that the entire Unified State Plan is
submitted to the Secretary of Education pursuant to a process developed
by the Secretaries.
(f) The Unified State Plan is subject to the approval of both the
Secretary of Labor and the Secretary of Education.
(g) Before the Secretaries of Labor and Education approve the
Unified State Plan, the vocational rehabilitation services portion of
the Unified State Plan described in WIOA sec. 102(b)(2)(D)(iii) must be
approved by the Commissioner of the Rehabilitation Services
Administration.
(h) The Secretaries of Labor and Education will review and approve
the Unified State Plan within 90 days of receipt by the Secretary of
Labor, unless the Secretary of Labor or the Secretary of Education
determines in writing within that period that:
(1) The plan is inconsistent with a core program's requirements;
(2) The Unified State Plan is inconsistent with any requirement of
sec. 102 of WIOA; or
(3) The plan is incomplete or otherwise insufficient to determine
whether it is consistent with a core program's requirements or other
requirements of WIOA.
(i) If neither the Secretary of Labor nor the Secretary of
Education makes the written determination described in paragraph (h) of
this section within 90 days of the receipt by the Secretaries, the
Unified State Plan will be considered approved.
Sec. 361.135 What are the requirements for modification of the
Unified State Plan?
(a) In addition to the required modification review set forth in
paragraph (b) of this section, a Governor may submit a modification of
its Unified State Plan at any time during the 4-year period of the
plan.
(b) Modifications are required, at a minimum:
(1) At the end of the first 2-year period of any 4-year State Plan,
wherein the State WDB must review the Unified State Plan, and the
Governor must submit modifications to the plan to reflect changes in
labor market and economic conditions or other factors affecting the
implementation of the Unified State Plan;
(2) When changes in Federal or State law or policy substantially
affect the strategies, goals, and priorities upon which the Unified
State Plan is based;
(3) When there are changes in the statewide vision, strategies,
policies, State negotiated levels of performance as described in Sec.
361.170(b), the methodology used to determine local allocation of
funds, reorganizations that change the working relationship with system
employees, changes in organizational responsibilities, changes to the
membership structure of the State WDB or alternative entity, and
similar substantial changes to the State's workforce development
system.
(c) Modifications to the Unified State Plan are subject to the same
public review and comment requirements in Sec. 361.130(d) that apply
to the development of the original Unified State Plan.
(d) Unified State Plan modifications must be approved by the
Secretaries of Labor and Education, based on the approval standards
applicable to the original Unified State Plan under Sec. 361.130. This
approval must come after the approval of the Commissioner of the
Rehabilitation Services Administration for modification of any portion
of the plan described in sec. 102(b)(2)(D)(iii) of WIOA.
Sec. 361.140 What are the general requirements for submitting a
Combined State Plan?
(a) A State may choose to develop and submit a 4-year Combined
State Plan in lieu of the Unified State Plan described in Sec. Sec.
361.105 through 361.125.
(b) A State that submits a Combined State Plan covering an activity
or program described in paragraph (d) of this section that is, in
accordance with WIOA sec. 103(c), approved or deemed complete under the
law relating to the program will not be required to submit any other
plan or application in order to receive Federal funds to carry out the
core programs or the program or activities described under paragraph
(d) of this section that are covered by the Combined State Plan.
(c) If a State develops a Combined State Plan, it must be submitted
in accordance with the process described in Sec. 361.143.
(d) If a State chooses to submit a Combined State Plan, the plan
must include the six core programs and one or more of the Combined
State Plan partner programs and activities described in sec. 103(a)(2)
of WIOA. The Combined State Plan partner programs and activities that
may be included in the Combined State Plan are:
(1) Career and technical education programs authorized under the
Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C.
2301 et seq.);
(2) Temporary Assistance for Needy Families or TANF, authorized
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.);
(3) Employment and training programs authorized under sec. 6(d)(4)
of the Food and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
(4) Work programs authorized under sec. 6(o) of the Food and
Nutrition Act of 2008 (7 U.S.C. 2015(o));
(5) Trade adjustment assistance activities under chapter 2 of title
II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
(6) Services for veterans authorized under chapter 41 of title 38
United States Code;
(7) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law);
(8) Senior Community Service Employment Programs under title V of
the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
(9) Employment and training activities carried out by the
Department of Housing and Urban Development (HUD);
(10) Employment and training activities carried out under the
[[Page 56025]]
Community Services Block Grant Act (42 U.S.C. 9901 et seq.); and
(11) Reintegration of offenders programs authorized under sec. 212
of the Second Chance Act of 2007 (42 U.S.C. 17532).
(e) A Combined State Plan must contain:
(1) For the core programs, the information required by sec. 102(b)
of WIOA and Sec. Sec. 361.105 through 361.125, as explained in the
joint planning guidelines issued by the Secretaries;
(2) For the Combined State Plan partner programs and activities,
except as described in paragraph (h) of this section, the information
required by the law authorizing and governing that program to be
submitted to the appropriate Secretary, any other applicable legal
requirements, and any common planning requirements described in sec.
102(b) of WIOA, as explained in the joint planning guidelines issued by
the Secretaries;
(3) A description of the methods used for joint planning and
coordination among the core programs, and with the required one-stop
partner programs and other programs and activities included in the
State Plan; and
(4) An assurance that all of the entities responsible for planning
or administering the programs described in the Combined State Plan have
had a meaningful opportunity to review and comment on all portions of
the plan.
(f) Each Combined State Plan partner program included in the
Combined State Plan remains subject to the applicable program-specific
requirements of the Federal law and regulations, and any other
applicable legal or program requirements, governing the implementation
and operation of that program.
(g) For purposes of Sec. Sec. 361.140 through 361.145 the term
``appropriate Secretary'' means the head of the Federal agency who
exercises either plan or application approval authority for the program
or activity under the Federal law authorizing the program or activity
or, if there are no planning or application requirements, who exercises
administrative authority over the program or activity under that
Federal law.
(h) States that include employment and training activities carried
out under the Community Services Block Grant (CSBG) Act (42 U.S.C. 9901
et seq.) under a Combined State Plan would submit all other required
elements of a complete CSBG State Plan directly to the Federal agency
that administers the program, according to the requirements of Federal
law and regulations.
(i) States that submit employment and training activities carried
out by HUD under a Combined State Plan would submit any other required
planning documents for HUD programs directly to HUD, according to the
requirements of Federal law and regulations.
Sec. 361.143 What is the development, submission, and approval
process of the Combined State Plan?
(a) For purposes of Sec. 361.140(a), if a State chooses to develop
a Combined State Plan it must submit the Combined State Plan in
accordance with the requirements described below and sec. 103 of WIOA,
as explained in the joint planning guidelines issued by the Secretaries
of Labor and Education.
(b) The Combined State Plan must be developed with the assistance
of the State WDB, as required by 20 CFR 679.130(a) and WIOA sec.
101(d), and must be developed in coordination with administrators with
optimum policy-making authority for the core programs and required one-
stop partners.
(c) The State must provide an opportunity for public comment on and
input into the development of the Combined State Plan prior to its
submission.
(1) The opportunity for public comment for the portions of the
Combined State Plan that cover the core programs must include an
opportunity for comment by representatives of Local WDBs and chief
elected officials, businesses, representatives of labor organizations,
community-based organizations, adult education providers, institutions
of higher education, other stakeholders with an interest in the
services provided by the six core programs, and the general public,
including individuals with disabilities.
(2) Consistent with the ``Sunshine Provision'' of WIOA in sec.
101(g), the State WDB must make information regarding the Combined
State Plan available to the public through electronic means and
regularly occurring open meetings in accordance with State law. The
Combined State Plan must describe the State's process and timeline for
ensuring a meaningful opportunity for public comment on the portions of
the plan covering core programs.
(3) The portions of the plan that cover the Combined State Plan
partner programs are subject to any public comment requirements
applicable to those programs.
(d) The State must submit to the Secretaries of Labor and Education
and to the Secretary of the agency with responsibility for approving
the program's plan or deeming it complete under the law governing the
program, as part of its Combined State Plan, any plan, application,
form, or any other similar document that is required as a condition for
the approval of Federal funding under the applicable program or
activity. Such submission must occur in accordance with a process
identified by the relevant Secretaries in paragraph (a) of this
section.
(e) The Combined State Plan will be approved or disapproved in
accordance with the requirements of sec. 103(c) of WIOA.
(1) The portion of the Combined State Plan covering programs
administered by the Departments of Labor and Education must be
reviewed, and approved or disapproved, by the appropriate Secretary
within 90 days beginning on the day the Combined State Plan is received
by the appropriate Secretary from the State, consistent with paragraph
(f) of this section. Before the Secretaries of Labor and Education
approve the Combined State Plan, the vocational rehabilitation services
portion of the Combined State Plan described in WIOA sec.
102(b)(2)(D)(iii) must be approved by the Commissioner of the
Rehabilitation Services Administration.
(2) If an appropriate Secretary other than the Secretary of Labor
or the Secretary of Education has authority to approve or deem complete
a portion of the Combined State Plan for a program or activity
described in Sec. 361.140(d), that portion of the Combined State Plan
must be reviewed, and approved, disapproved, or deemed complete, by the
appropriate Secretary within 120 days beginning on the day the Combined
State Plan is received by the appropriate Secretary from the State
consistent with paragraph (f) of this section.
(f) The appropriate Secretaries will review and approve or deem
complete the Combined State Plan within 90 or 120 days, as appropriate,
as described in paragraph (e) of this section, unless the Secretaries
of Labor and Education or appropriate Secretary have determined in
writing within that period that:
(1) The Combined State Plan is inconsistent with the requirements
of the six core programs or the Federal laws authorizing or applicable
to the program or activity involved, including the criteria for
approval of a plan or application, or deeming the plan complete, if
any, under such law;
(2) The portion of the Combined State Plan describing the six core
programs or the program or activity described in paragraph (a) of this
section involved does not satisfy the criteria as provided
[[Page 56026]]
in sec. 102 or 103 of WIOA, as applicable; or
(3) The Combined State Plan is incomplete, or otherwise
insufficient to determine whether it is consistent with a core
program's requirements, other requirements of WIOA, or the Federal laws
authorizing, or applicable to, the program or activity described in
Sec. 361.140(d), including the criteria for approval of a plan or
application, if any, under such law.
(g) If the Secretary of Labor, the Secretary of Education, or the
appropriate Secretary does not make the written determination described
in paragraph (f) of this section within the relevant period of time
after submission of the Combined State Plan, that portion of the
Combined State Plan over which the Secretary has jurisdiction will be
considered approved.
(h) The Secretaries of Labor and Education's written determination
of approval or disapproval regarding the portion of the plan for the
six core programs may be separate from the written determination of
approval, disapproval, or completeness of the program-specific
requirements of Combined State Plan partner programs and activities
described in Sec. 361.140(d) and included in the Combined State Plan.
(i) Special rule. In paragraphs (f)(1) and (3) of this section, the
term ``criteria for approval of a plan or application,'' with respect
to a State or a core program or a program under the Carl D. Perkins
Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.),
includes a requirement for agreement between the State and the
appropriate Secretaries regarding State performance measures or State
performance accountability measures, as the case may be, including
levels of performance.
Sec. 361.145 What are the requirements for modifications of the
Combined State Plan?
(a) For the core program portions of the Combined State Plan,
modifications are required, at a minimum:
(1) By the end of the first 2-year period of any 4-year State Plan.
The State WDB must review the Combined State Plan, and the Governor
must submit modifications to the Combined State Plan to reflect changes
in labor market and economic conditions or other factors affecting the
implementation of the Combined State Plan;
(2) When changes in Federal or State law or policy substantially
affect the strategies, goals, and priorities upon which the Combined
State Plan is based;
(3) When there are changes in the statewide vision, strategies,
policies, State negotiated levels of performance as described in Sec.
361.170(b), the methodology used to determine local allocation of
funds, reorganizations that change the working relationship with system
employees, changes in organizational responsibilities, changes to the
membership structure of the State WDB or alternative entity, and
similar substantial changes to the State's workforce development
system.
(b) In addition to the required modification review described in
paragraph (a)(1) of this section, a State may submit a modification of
its Combined State Plan at any time during the 4-year period of the
plan.
(c) For any Combined State Plan partner programs and activities
described in Sec. 361.140(d) that are included in a State's Combined
State Plan, the State--
(1) May decide if the modification requirements under WIOA sec.
102(c)(3) that apply to the core programs will apply to the Combined
State Plan partner programs, as long as consistent with any other
modification requirements for the programs, or may comply with the
requirements applicable to only the particular program or activity; and
(2) Must submit, in accordance with the procedure described in
Sec. 361.143, any modification, amendment, or revision required by the
Federal law authorizing, or applicable to, the Combined State Plan
partner program or activity.
(i) If the underlying programmatic requirements change (e.g., the
authorizing statute is reauthorized) for Federal laws authorizing such
programs, a State must either modify its Combined State Plan or submit
a separate plan to the appropriate Federal agency in accordance with
the new Federal law authorizing the Combined State Plan partner program
or activity and other legal requirements applicable to such program or
activity.
(ii) If the modification, amendment, or revision affects the
administration of only that particular Combined State Plan partner
program and has no impact on the Combined State Plan as a whole or the
integration and administration of the core and other Combined State
Plan partner programs at the State level, modifications must be
submitted for approval to only the appropriate Secretary, based on the
approval standards applicable to the original Combined State Plan under
Sec. 361.143, if the State elects, or in accordance with the
procedures and requirements applicable to the particular Combined State
Plan partner program.
(3) A State also may amend its Combined State Plan to add a
Combined State Plan partner program or activity described in Sec.
361.140(d).
(d) Modifications of the Combined State Plan are subject to the
same public review and comment requirements that apply to the
development of the original Combined State Plan as described in Sec.
361.143(c) except that, if the modification, amendment, or revision
affects the administration of a particular Combined State Plan partner
program and has no impact on the Combined State Plan as a whole or the
integration and administration of the core and other Combined State
Plan partner programs at the State level, a State may comply instead
with the procedures and requirements applicable to the particular
Combined State Plan partner program.
(e) Modifications for the core program portions of the Combined
State Plan must be approved by the Secretaries of Labor and Education,
based on the approval standards applicable to the original Combined
State Plan under Sec. 361.143. This approval must come after the
approval of the Commissioner of the Rehabilitation Services
Administration for modification of any portion of the Combined State
Plan described in sec. 102(b)(2)(D)(iii) of WIOA.
0
6. Revise subpart E of part 361 to read as follows:
Subpart E--Performance Accountability Under Title I of the Workforce
Innovation and Opportunity Act
Sec.
361.150 What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?
361.155 What are the primary indicators of performance under the
Workforce Innovation and Opportunity Act?
361.160 What information is required for State performance reports?
361.165 May a State establish additional indicators of performance?
361.170 How are State levels of performance for primary indicators
established?
361.175 What responsibility do States have to use quarterly wage
record information for performance accountability?
361.180 When is a State subject to a financial sanction under the
Workforce Innovation and Opportunity Act?
361.185 When are sanctions applied for a State's failure to submit
an annual performance report?
361.190 When are sanctions applied for failure to achieve adjusted
levels of performance?
[[Page 56027]]
361.195 What should States expect when a sanction is applied to the
Governor's Reserve Allotment?
361.200 What other administrative actions will be applied to States'
performance requirements?
361.205 What performance indicators apply to local areas and what
information must be included in local area performance reports?
361.210 How are local performance levels established?
361.215 Under what circumstances are local areas eligible for State
Incentive Grants?
361.220 Under what circumstances may a corrective action or sanction
be applied to local areas for poor performance?
361.225 Under what circumstances may local areas appeal a
reorganization plan?
361.230 What information is required for the eligible training
provider performance reports?
361.235 What are the reporting requirements for individual records
for core Workforce Innovation and Opportunity Act (WIOA) title I
programs; the Wagner-Peyser Act Employment Service program, as
amended by WIOA title III; and the Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV?
361.240 What are the requirements for data validation of State
annual performance reports?
Authority: Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart E--Performance Accountability Under Title I of the
Workforce Innovation and Opportunity Act
Sec. 361.150 What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?
(a) Participant. A reportable individual who has received services
other than the services described in paragraph (a)(3) of this section,
after satisfying all applicable programmatic requirements for the
provision of services, such as eligibility determination.
(1) For the Vocational Rehabilitation (VR) program, a participant
is a reportable individual who has an approved and signed
Individualized Plan for Employment (IPE) and has begun to receive
services.
(2) For the Workforce Innovation and Opportunity Act (WIOA) title I
youth program, a participant is a reportable individual who has
satisfied all applicable program requirements for the provision of
services, including eligibility determination, an objective assessment,
and development of an individual service strategy, and received 1 of
the 14 WIOA youth program elements identified in sec. 129(c)(2) of
WIOA.
(3) The following individuals are not participants:
(i) Individuals in an Adult Education and Family Literacy Act
(AEFLA) program who have not completed at least 12 contact hours;
(ii) Individuals who only use the self-service system.
(A) Subject to paragraph (a)(3)(ii)(B) of this section, self-
service occurs when individuals independently access any workforce
development system program's information and activities in either a
physical location, such as a one-stop center resource room or partner
agency, or remotely via the use of electronic technologies.
(B) Self-service does not uniformly apply to all virtually accessed
services. For example, virtually accessed services that provide a level
of support beyond independent job or information seeking on the part of
an individual would not qualify as self-service.
(iii) Individuals who receive information-only services or
activities, which provide readily available information that does not
require an assessment by a staff member of the individual's skills,
education, or career objectives.
(4) Programs must include participants in their performance
calculations.
(b) Reportable individual. An individual who has taken action that
demonstrates an intent to use program services and who meets specific
reporting criteria of the program, 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.
(c) Exit. As defined for the purpose of performance calculations,
exit is the point after which a participant who has received services
through any program meets the following criteria:
(1) For the adult, dislocated worker, and youth programs authorized
under WIOA title I, the AEFLA program authorized under WIOA title II,
and the Employment Service program authorized under the Wagner-Peyser
Act, as amended by WIOA title III, exit date is the last date of
service.
(i) The last day of service cannot be determined until at least 90
days have elapsed since the participant last received services;
services do not include self-service, information-only services or
activities, or follow-up services. This also requires that there are no
plans to provide the participant with future services.
(ii) [Reserved].
(2)(i) For the VR program authorized under title I of the
Rehabilitation Act of 1973, as amended by WIOA title IV (VR program):
(A) The participant's record of service is closed in accordance
with Sec. 361.56 because the participant has achieved an employment
outcome; or
(B) The participant's service record is closed because the
individual has not achieved an employment outcome or the individual has
been determined ineligible after receiving services in accordance with
Sec. 361.43.
(ii) Notwithstanding any other provision of this section, a
participant will not be considered as meeting the definition of exit
from the VR program if the participant's service record is closed
because the participant has achieved a supported employment outcome in
an integrated setting but not in competitive integrated employment.
(3)(i) A State may implement a common exit policy for all or some
of the core programs in WIOA title I and the Employment Service program
authorized under the Wagner-Peyser Act, as amended by WIOA title III,
and any additional required partner program(s) listed in sec.
121(b)(1)(B) of WIOA that is under the authority of the U.S. Department
of Labor (DOL).
(ii) If a State chooses to implement a common exit policy, the
policy must require that a participant is exited only when all of the
criteria in paragraph (c)(1) of this section are met for the WIOA title
I core programs and the Employment Service program authorized under the
Wagner-Peyser Act, as amended by WIOA title III, as well as any
additional required partner programs listed in sec. 121(b)(1)(B) of
WIOA under the authority of DOL to which the common exit policy applies
in which the participant is enrolled.
(d) State. For purposes of this part, other than in regard to
sanctions or the statistical adjustment model, all references to
``State'' include the outlying areas of American Samoa, Guam,
Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands,
and, as applicable, the Republic of Palau.
Sec. 361.155 What are the primary indicators of performance under the
Workforce Innovation and Opportunity Act?
(a) All States submitting either a Unified or Combined State Plan
under Sec. Sec. 361.130 and 361.143, must propose expected levels of
performance for each of the primary indicators of performance for the
adult, dislocated worker, and youth programs authorized under WIOA
title I; the AEFLA program authorized under WIOA title II; the
Employment
[[Page 56028]]
Service program authorized under the Wagner-Peyser Act, as amended by
WIOA title III; and the VR program authorized under title I of the
Rehabilitation Act of 1973, as amended by WIOA title IV.
(1) Primary indicators of performance. The six primary indicators
of performance for the adult and dislocated worker programs, the AEFLA
program, and the VR program are:
(i) The percentage of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(ii) The percentage of participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(iii) Median earnings of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(iv)(A) The percentage of those participants enrolled in an
education or training program (excluding those in on-the-job training
[OJT] and customized training) who attained 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.
(B) A participant who has attained a secondary school diploma or
its recognized equivalent is included in the percentage of participants
who have attained a secondary school diploma or recognized equivalent
only if the participant also is employed or is enrolled in an education
or training program leading to a recognized postsecondary credential
within 1 year after exit from the program;
(v) The percentage of 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, defined as documented academic, technical, occupational,
or other forms of progress, towards such a credential or employment.
Depending upon the type of education or training program, documented
progress is defined as one of the following:
(A) Documented achievement of at least one educational functioning
level of a participant who is receiving instruction below the
postsecondary education level;
(B) Documented attainment of a secondary school diploma or its
recognized equivalent;
(C) Secondary or postsecondary transcript or report card for a
sufficient number of credit hours that shows a participant is meeting
the State unit's academic standards;
(D) Satisfactory or better progress report, towards established
milestones, such as completion of OJT or completion of 1 year of an
apprenticeship program or similar milestones, from an employer or
training provider who is providing training; or
(E) Successful passage of an exam that is required for a particular
occupation or progress in attaining technical or occupational skills as
evidenced by trade-related benchmarks such as knowledge-based exams.
(vi) Effectiveness in serving employers.
(2) Participants. For purposes of the primary indicators of
performance in paragraph (a)(1) of this section, ``participant'' will
have the meaning given to it in Sec. 361.150(a), except that--
(i) For purposes of determining program performance levels under
indicators set forth in paragraphs (a)(1)(i) through (iv) and (vi) of
this section, a ``participant'' does not include a participant who
received services under sec. 225 of WIOA and exits such program while
still in a correctional institution as defined in sec. 225(e)(1) of
WIOA; and
(ii) The Secretaries of Labor and Education may, as needed and
consistent with the Paperwork Reduction Act (PRA), make further
determinations as to the participants to be included in calculating
program performance levels for purposes of any of the performance
indicators set forth in paragraph (a)(1) of this section.
(b) The primary indicators in paragraphs (a)(1)(i) through (iii)
and (vi) of this section apply to the Employment Service program
authorized under the Wagner-Peyser Act, as amended by WIOA title III.
(c) For the youth program authorized under WIOA title I, the
primary indicators are:
(1) Percentage of participants who are in education or training
activities, or in unsubsidized employment, during the second quarter
after exit from the program;
(2) Percentage of participants in education or training activities,
or in unsubsidized employment, during the fourth quarter after exit
from the program;
(3) Median earnings of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(4) The percentage of those participants enrolled in an education
or training program (excluding those in OJT and customized training)
who obtained 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, except that a participant
who has attained a secondary school diploma or its recognized
equivalent is included as having attained a secondary school diploma or
recognized equivalent only if the participant is also employed or is
enrolled in an education or training program leading to a recognized
postsecondary credential within 1 year from program exit;
(5) The percentage of 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, defined as documented academic, technical, occupational or
other forms of progress towards such a credential or employment.
Depending upon the type of education or training program, documented
progress is defined as one of the following:
(i) Documented achievement of at least one educational functioning
level of a participant who is receiving instruction below the
postsecondary education level;
(ii) Documented attainment of a secondary school diploma or its
recognized equivalent;
(iii) Secondary or postsecondary transcript or report card for a
sufficient number of credit hours that shows a participant is achieving
the State unit's academic standards;
(iv) Satisfactory or better progress report, towards established
milestones, such as completion of OJT or completion of 1 year of an
apprenticeship program or similar milestones, from an employer or
training provider who is providing training; or
(v) Successful passage of an exam that is required for a particular
occupation or progress in attaining technical or occupational skills as
evidenced by trade-related benchmarks such as knowledge-based exams.
(6) Effectiveness in serving employers.
Sec. 361.160 What information is required for State performance
reports?
(a) The State performance report required by sec. 116(d)(2) of WIOA
must be submitted annually using a template the Departments of Labor
and Education will disseminate, and must provide, at a minimum,
information on the actual performance levels achieved consistent with
Sec. 361.175 with respect to:
(1) The total number of participants served, and the total number
of
[[Page 56029]]
participants who exited each of the core programs identified in sec.
116(b)(3)(A)(ii) of WIOA, including disaggregated counts of those who
participated in and exited a core program, by:
(i) Individuals with barriers to employment as defined in WIOA sec.
3(24); and
(ii) Co-enrollment in any of the programs in WIOA sec.
116(b)(3)(A)(ii).
(2) Information on the performance levels achieved for the primary
indicators of performance for all of the core programs identified in
Sec. 361.155 including disaggregated levels for:
(i) Individuals with barriers to employment as defined in WIOA sec.
3(24);
(ii) Age;
(iii) Sex; and
(iv) Race and ethnicity.
(3) The total number of participants who received career services
and the total number of participants who exited from career services
for the most recent program year and the 3 preceding program years, and
the total number of participants who received training services and the
total number of participants who exited from training services for the
most recent program year and the 3 preceding program years, as
applicable to the program;
(4) Information on the performance levels achieved for the primary
indicators of performance consistent with Sec. 361.155 for career
services and training services for the most recent program year and the
3 preceding program years, as applicable to the program;
(5) The percentage of participants in a program who attained
unsubsidized employment related to the training received (often
referred to as training-related employment) through WIOA title I,
subtitle B programs;
(6) The amount of funds spent on career services and the amount of
funds spent on training services for the most recent program year and
the 3 preceding program years, as applicable to the program;
(7) The average cost per participant for those participants who
received career services and training services, respectively, during
the most recent program year and the 3 preceding program years, as
applicable to the program;
(8) The percentage of a State's annual allotment under WIOA sec.
132(b) that the State spent on administrative costs; and
(9) Information that facilitates comparisons of programs with
programs in other States.
(10) For WIOA title I programs, a State performance narrative,
which, for States in which a local area is implementing a pay-for-
performance contracting strategy, at a minimum provides:
(i) A description of pay-for-performance contract strategies being
used for programs;
(ii) The performance of service providers entering into contracts
for such strategies, measured against the levels of performance
specified in the contracts for such strategies; and
(iii) An evaluation of the design of the programs and performance
strategies and, when available, the satisfaction of employers and
participants who received services under such strategies.
(b) The disaggregation of data for the State performance report
must be done in compliance with WIOA sec. 116(d)(6)(C).
(c) The State performance reports must include a mechanism of
electronic access to the State's local area and eligible training
provider (ETP) performance reports.
(d) States must comply with these requirements from sec. 116 of
WIOA as explained in joint guidance issued by the Departments of Labor
and Education, which may include information on reportable individuals
as determined by the Secretaries of Labor and Education.
Sec. 361.165 May a State establish additional indicators of
performance?
States may identify additional indicators of performance for the
six core programs. If a State does so, these indicators must be
included in the Unified or Combined State Plan.
Sec. 361.170 How are State levels of performance for primary
indicators established?
(a) A State must submit in the State Plan expected levels of
performance on the primary indicators of performance for each core
program as required by sec. 116(b)(3)(A)(iii) of WIOA as explained in
joint guidance issued by the Secretaries of Labor and Education.
(1) The initial State Plan submitted under WIOA must contain
expected levels of performance for the first 2 years of the State Plan.
(2) States must submit expected levels of performance for the third
and fourth year of the State Plan before the third program year
consistent with Sec. Sec. 361.135 and 361.145.
(b) States must reach agreement on levels of performance with the
Secretaries of Labor and Education for each indicator for each core
program. These are the negotiated levels of performance. The negotiated
levels must be based on the following factors:
(1) How the negotiated levels of performance compare with State
levels of performance established for other States;
(2) The application of an objective statistical model established
by the Secretaries of Labor and Education, subject to paragraph (d) of
this section;
(3) How the negotiated levels promote continuous improvement in
performance based on the primary indicators and ensure optimal return
on investment of Federal funds; and
(4) The extent to which the negotiated levels assist the State in
meeting the performance goals established by the Secretaries of Labor
and Education for the core programs in accordance with the Government
Performance and Results Act of 1993, as amended.
(c) An objective statistical adjustment model will be developed and
disseminated by the Secretaries of Labor and Education. The model will
be based on:
(1) Differences among States in actual economic conditions,
including but not limited to unemployment rates and job losses or gains
in particular industries; and
(2) The characteristics of participants, including but not limited
to:
(i) Indicators of poor work history;
(ii) Lack of work experience;
(iii) Lack of educational or occupational skills attainment;
(iv) Dislocation from high-wage and high-benefit employment;
(v) Low levels of literacy;
(vi) Low levels of English proficiency;
(vii) Disability status;
(viii) Homelessness;
(ix) Ex-offender status; and
(x) Welfare dependency.
(d) The objective statistical adjustment model developed under
paragraph (c) of this section will be:
(1) Applied to the core programs' primary indicators upon
availability of data which are necessary to populate the model and
apply the model to the local core programs;
(2) Subject to paragraph (d)(1) of this section, used before the
beginning of a program year in order to reach agreement on State
negotiated levels for the upcoming program year; and
(3) Subject to paragraph (d)(1) of this section, used to revise
negotiated levels at the end of a program year based on actual economic
conditions and characteristics of participants served, consistent with
sec. 116(b)(3)(A)(vii) of WIOA.
(e) The negotiated levels revised at the end of the program year,
based on the statistical adjustment model, are the adjusted levels of
performance.
(f) States must comply with these requirements from sec. 116 of
WIOA as
[[Page 56030]]
explained in joint guidance issued by the Departments of Labor and
Education.
Sec. 361.175 What responsibility do States have to use quarterly wage
record information for performance accountability?
(a)(1) States must, consistent with State laws, use quarterly wage
record information in measuring a State's performance on the primary
indicators of performance outlined in Sec. 361.155 and a local area's
performance on the primary indicators of performance identified in
Sec. 361.205.
(2) The use of social security numbers from participants and such
other information as is necessary to measure the progress of those
participants through quarterly wage record information is authorized.
(3) To the extent that quarterly wage records are not available for
a participant, States may use other information as is necessary to
measure the progress of those participants through methods other than
quarterly wage record information.
(b) ``Quarterly wage record information'' means intrastate and
interstate wages paid to an individual, the social security number (or
numbers, if more than one) of the individual, and the name, address,
State, and the Federal employer identification number of the employer
paying the wages to the individual.
(c) The Governor may designate a State agency (or appropriate State
entity) to assist in carrying out the performance reporting
requirements for WIOA core programs and ETPs. The Governor or such
agency (or appropriate State entity) is responsible for:
(1) Facilitating data matches;
(2) Data quality reliability; and
(3) Protection against disaggregation that would violate applicable
privacy standards.
Sec. 361.180 When is a State subject to a financial sanction under
the Workforce Innovation and Opportunity Act?
A State will be subject to financial sanction under WIOA sec.
116(f) if it fails to:
(a) Submit the State annual performance report required under WIOA
sec. 116(d)(2); or
(b) Meet adjusted levels of performance for the primary indicators
of performance in accordance with sec. 116(f) of WIOA.
Sec. 361.185 When are sanctions applied for a State's failure to
submit an annual performance report?
(a) Sanctions will be applied when a State fails to submit the
State annual performance report required under sec. 116(d)(2) of WIOA.
A State fails to report if the State either:
(1) Does not submit a State annual performance report by the date
for timely submission set in performance reporting guidance; or
(2) Submits a State annual performance report by the date for
timely submission, but the report is incomplete.
(b) Sanctions will not be applied if the reporting failure is due
to exceptional circumstances outside of the State's control.
Exceptional circumstances may include, but are not limited to:
(1) Natural disasters;
(2) Unexpected personnel transitions; and
(3) Unexpected technology related issues.
(c) In the event that a State may not be able to submit a complete
and accurate performance report by the deadline for timely reporting:
(1) The State must notify the Secretary of Labor or Secretary of
Education as soon as possible, but no later than 30 days prior to the
established deadline for submission, of a potential impact on the
State's ability to submit its State annual performance report in order
to not be considered failing to report.
(2) In circumstances where unexpected events occur less than 30
days before the established deadline for submission of the State annual
performance reports, the Secretaries of Labor and Education will review
requests for extending the reporting deadline in accordance with the
Departments of Labor and Education's procedures that will be
established in guidance.
Sec. 361.190 When are sanctions applied for failure to achieve
adjusted levels of performance?
(a) States' negotiated levels of performance will be adjusted
through the application of the statistical adjustment model established
under Sec. 361.170 to account for actual economic conditions
experienced during a program year and characteristics of participants,
annually at the close of each program year.
(b) Any State that fails to meet adjusted levels of performance for
the primary indicators of performance outlined in Sec. 361.155 for any
year will receive technical assistance, including assistance in the
development of a performance improvement plan provided by the Secretary
of Labor or Secretary of Education.
(c) Whether a State has failed to meet adjusted levels of
performance will be determined using the following three criteria:
(1) The overall State program score, which is expressed as the
percent achieved, compares the actual results achieved by a core
program on the primary indicators of performance to the adjusted levels
of performance for that core program. The average of the percentages
achieved of the adjusted level of performance for each of the primary
indicators by a core program will constitute the overall State program
score.
(2) However, until all indicators for the core program have at
least 2 years of complete data, the overall State program score will be
based on a comparison of the actual results achieved to the adjusted
level of performance for each of the primary indicators that have at
least 2 years of complete data for that program;
(3) The overall State indicator score, which is expressed as the
percent achieved, compares the actual results achieved on a primary
indicator of performance by all core programs in a State to the
adjusted levels of performance for that primary indicator. The average
of the percentages achieved of the adjusted level of performance by all
of the core programs on that indicator will constitute the overall
State indicator score.
(4) However, until all indicators for the State have at least 2
years of complete data, the overall State indicator score will be based
on a comparison of the actual results achieved to the adjusted level of
performance for each of the primary indicators that have at least 2
years of complete data in a State.
(5) The individual indicator score, which is expressed as the
percent achieved, compares the actual results achieved by each core
program on each of the individual primary indicators to the adjusted
levels of performance for each of the program's primary indicators of
performance.
(d) A performance failure occurs when:
(1) Any overall State program score or overall State indicator
score falls below 90 percent for the program year; or
(2) Any of the States' individual indicator scores fall below 50
percent for the program year.
(e) Sanctions based on performance failure will be applied to
States if, for 2 consecutive years, the State fails to meet:
(1) 90 percent of the overall State program score for the same core
program;
(2) 90 percent of the overall State indicator score for the same
primary indicator; or
[[Page 56031]]
(3) 50 percent of the same indicator score for the same program.
Sec. 361.195 What should States expect when a sanction is applied to
the Governor's Reserve Allotment?
(a) The Secretaries of Labor and Education will reduce the
Governor's Reserve Allotment by five percent of the maximum available
amount for the immediately succeeding program year if:
(1) The State fails to submit the State annual performance reports
as required under WIOA sec. 116(d)(2), as defined in Sec. 361.185;
(2) The State fails to meet State adjusted levels of performance
for the same primary performance indicator(s) under either Sec.
361.190(d)(1) for the second consecutive year as defined in Sec.
361.190; or
(3) The State's score on the same indicator for the same program
falls below 50 percent under Sec. 361.190(d)(2) for the second
consecutive year as defined in Sec. 361.190.
(b) If the State fails under paragraphs (a)(1) and either (a)(2) or
(3) of this section in the same program year, the Secretaries of Labor
and Education will reduce the Governor's Reserve Allotment by 10
percent of the maximum available amount for the immediately succeeding
program year.
(c) If a State's Governor's Reserve Allotment is reduced:
(1) The reduced amount will not be returned to the State in the
event that the State later improves performance or submits its annual
performance report; and
(2) The Governor's Reserve will continue to be set at the reduced
level in each subsequent year until the Secretary of Labor or the
Secretary of Education, depending on which program is impacted,
determines that the State met the State adjusted levels of performance
for the applicable primary performance indicators and has submitted all
of the required performance reports.
(d) A State may request review of a sanction the Secretary of Labor
imposes in accordance with the provisions of 20 CFR 683.800.
Sec. 361.200 What other administrative actions will be applied to
States' performance requirements?
(a) In addition to sanctions for failure to report or failure to
meet adjusted levels of performance, States will be subject to
administrative actions in the case of poor performance.
(b) States' performance achievement on the individual primary
indicators will be assessed in addition to the overall State program
score and overall State indicator score. Based on this assessment, as
clarified and explained in guidance, for performance on any individual
primary indicator, the Secretary of Labor or the Secretary of Education
will require the State to establish a performance risk plan to address
continuous improvement on the individual primary indicator.
Sec. 361.205 What performance indicators apply to local areas and
what information must be included in local area performance reports?
(a) Each local area in a State under WIOA title I is subject to the
same primary indicators of performance for the core programs for WIOA
title I under Sec. 361.155(a)(1) and (c) that apply to the State.
(b) In addition to the indicators described in paragraph (a) of
this section, under Sec. 361.165, the Governor may apply additional
indicators of performance to local areas in the State.
(c) States must annually make local area performance reports
available to the public using a template that the Departments of Labor
and Education will disseminate in guidance, including by electronic
means. The State must provide electronic access to the public local
area performance report in its annual State performance report.
(d) The local area performance report must include:
(1) The actual results achieved under Sec. 361.155 and the
information required under Sec. 361.160(a);
(2) The percentage of a local area's allotment under WIOA secs.
128(b) and 133(b) that the local area spent on administrative costs;
and
(3) Other information that facilitates comparisons of programs with
programs in other local areas (or planning regions if the local area is
part of a planning region).
(e) The disaggregation of data for the local area performance
report must be done in compliance with WIOA sec. 116(d)(6)(C).
(f) States must comply with any requirements from sec. 116(d)(3) of
WIOA as explained in guidance, including the use of the performance
reporting template, issued by DOL.
Sec. 361.210 How are local performance levels established?
(a) The objective statistical adjustment model required under sec.
116(b)(3)(A)(viii) of WIOA and described in Sec. 361.170(c) must be:
(1) Applied to the core programs' primary indicators upon
availability of data which are necessary to populate the model and
apply the model to the local core programs;
(2) Used in order to reach agreement on local negotiated levels of
performance for the upcoming program year; and
(3) Used to establish adjusted levels of performance at the end of
a program year based on actual conditions, consistent with WIOA sec.
116(c)(3).
(b) Until all indicators for the core program in a local area have
at least 2 years of complete data, the comparison of the actual results
achieved to the adjusted levels of performance for each of the primary
indicators only will be applied where there are at least 2 years of
complete data for that program.
(c) The Governor, Local Workforce Development Board (WDB), and
chief elected official must reach agreement on local negotiated levels
of performance based on a negotiations process before the start of a
program year with the use of the objective statistical model described
in paragraph (a) of this section. The negotiations will include a
discussion of circumstances not accounted for in the model and will
take into account the extent to which the levels promote continuous
improvement. The objective statistical model will be applied at the end
of the program year based on actual economic conditions and
characteristics of the participants served.
(d) The negotiations process described in paragraph (c) of this
section must be developed by the Governor and disseminated to all Local
WDBs and chief elected officials.
(e) The Local WDBs may apply performance measures to service
providers that differ from the performance indicators that apply to the
local area. These performance measures must be established after
considering:
(1) The established local negotiated levels;
(2) The services provided by each provider; and
(3) The populations the service providers are intended to serve.
Sec. 361.215 Under what circumstances are local areas eligible for
State Incentive Grants?
(a) The Governor is not required to award local incentive funds,
but is authorized to provide incentive grants to local areas for
performance on the primary indicators of performance consistent with
WIOA sec. 134(a)(3)(A)(xi).
(b) The Governor may use non-Federal funds to create incentives for
the Local WDBs to implement pay-for-performance contract strategies for
the delivery of training services described in WIOA sec. 134(c)(3) or
activities described in WIOA sec. 129(c)(2) in the
[[Page 56032]]
local areas served by the Local WDBs. Pay-for-performance contract
strategies must be implemented in accordance with 20 CFR part 683,
subpart E and Sec. 361.160.
Sec. 361.220 Under what circumstances may a corrective action or
sanction be applied to local areas for poor performance?
(a) If a local area fails to meet the adjusted levels of
performance agreed to under Sec. 361.210 for the primary indicators of
performance in the adult, dislocated worker, and youth programs
authorized under WIOA title I in any program year, technical assistance
must be provided by the Governor or, upon the Governor's request, by
the Secretary of Labor.
(1) A State must establish the threshold for failure to meet
adjusted levels of performance for a local area before coming to
agreement on the negotiated levels of performance for the local area.
(i) A State must establish the adjusted level of performance for a
local area, using the statistical adjustment model described in Sec.
361.170(c).
(ii) At least 2 years of complete data on any indicator for any
local core program are required in order to establish adjusted levels
of performance for a local area.
(2) The technical assistance may include:
(i) Assistance in the development of a performance improvement
plan;
(ii) The development of a modified local or regional plan; or
(iii) Other actions designed to assist the local area in improving
performance.
(b) If a local area fails to meet the adjusted levels of
performance agreed to under Sec. 361.210 for the same primary
indicators of performance for the same core program authorized under
WIOA title I for a third consecutive program year, the Governor must
take corrective actions. The corrective actions must include the
development of a reorganization plan under which the Governor:
(1) Requires the appointment and certification of a new Local WDB,
consistent with the criteria established under 20 CFR 679.350;
(2) Prohibits the use of eligible providers and one-stop partners
that have been identified as achieving poor levels of performance; or
(3) Takes such other significant actions as the Governor determines
are appropriate.
Sec. 361.225 Under what circumstances may local areas appeal a
reorganization plan?
(a) The Local WDB and chief elected official for a local area that
is subject to a reorganization plan under WIOA sec. 116(g)(2)(A) may
appeal to the Governor to rescind or revise the reorganization plan not
later than 30 days after receiving notice of the reorganization plan.
The Governor must make a final decision within 30 days after receipt of
the appeal.
(b) The Local WDB and chief elected official may appeal the final
decision of the Governor to the Secretary of Labor not later than 30
days after receiving the decision from the Governor. Any appeal of the
Governor's final decision must be:
(1) Appealed jointly by the Local WDB and chief elected official to
the Secretary of Labor under 20 CFR 683.650; and
(2) Must be submitted by certified mail, return receipt requested,
to the Secretary of Labor, 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.
(c) Upon receipt of the joint appeal from the Local WDB and chief
elected official, the Secretary of Labor must make a final decision
within 30 days. In making this determination the Secretary of Labor may
consider any comments submitted by the Governor in response to the
appeals.
(d) The decision by the Governor on the appeal becomes effective at
the time it is issued and remains effective unless the Secretary of
Labor rescinds or revises the reorganization plan under WIOA sec.
116(g)(2)(C).
Sec. 361.230 What information is required for the eligible training
provider performance reports?
(a) States are required to make available and publish annually
using a template the Departments of Labor and Education will
disseminate including through electronic means, the ETP performance
reports for ETPs who provide services under sec. 122 of WIOA that are
described in 20 CFR 680.400 through 680.530. These reports at a minimum
must include, consistent with Sec. 361.175 and with respect to each
program of study that is eligible to receive funds under WIOA:
(1) The total number of participants as defined by Sec. 361.150(a)
who received training services under the adult and dislocated worker
programs authorized under WIOA title I for the most recent year and the
3 preceding program years, including:
(i) The number of participants under the adult and dislocated
worker programs disaggregated by barriers to employment;
(ii) The number of participants under the adult and dislocated
worker programs disaggregated by race, ethnicity, sex, and age;
(iii) The number of participants under the adult and dislocated
worker programs disaggregated by the type of training entity for the
most recent program year and the 3 preceding program years;
(2) The total number of participants who exit a program of study or
its equivalent, including disaggregate counts by the type of training
entity during the most recent program year and the 3 preceding program
years;
(3) The average cost-per-participant for participants who received
training services for the most recent program year and the 3 preceding
program years disaggregated by type of training entity;
(4) The total number of individuals exiting from the program of
study (or the equivalent) with respect to all individuals engaging in
the program of study (or the equivalent); and
(5) The levels of performance achieved for the primary indicators
of performance identified in Sec. 361.155(a)(1)(i) through (iv) with
respect to all individuals engaging in a program of study (or the
equivalent).
(b) Apprenticeship programs registered under the National
Apprenticeship Act are not required to submit ETP performance
information. If a registered apprenticeship program voluntarily submits
performance information to a State, the State must include this
information in the report.
(c) The State must provide a mechanism of electronic access to the
public ETP performance report in its annual State performance report.
(d) States must comply with any requirements from sec. 116(d)(4) of
WIOA as explained in guidance issued by DOL.
(e) The Governor may designate one or more State agencies such as a
State Education Agency or other State Educational Authority to assist
in overseeing ETP performance and facilitating the production and
dissemination of ETP performance reports. These agencies may be the
same agencies that are designated as responsible for administering the
ETP list as provided under 20 CFR 680.500. The Governor or such
agencies, or authorities, is responsible for:
(1) Facilitating data matches between ETP records and unemployment
insurance (UI) wage data in order to produce the report;
(2) The creation and dissemination of the reports as described in
paragraphs (a) through (d) of this section;
[[Page 56033]]
(3) Coordinating the dissemination of the performance reports with
the ETP list and the information required to accompany the list, as
provided in 20 CFR 680.500.
Sec. 361.235 What are the reporting requirements for individual
records for core Workforce Innovation and Opportunity Act (WIOA) title
I programs; the Wagner-Peyser Act Employment Service program, as
amended by WIOA title III; and the Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by WIOA title IV?
(a) On a quarterly basis, each State must submit to the Secretary
of Labor or the Secretary of Education, as appropriate, individual
records that include demographic information, information on services
received, and information on resulting outcomes, as appropriate, for
each reportable individual in either of the following programs
administered by the Secretary of Labor or Secretary of Education: A
WIOA title I core program; the Employment Service program authorized
under the Wagner-Peyser Act, as amended by WIOA title III; or the VR
program authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV.
(b) For individual records submitted to the Secretary of Labor,
those records may be required to be integrated across all programs
administered by the Secretary of Labor in one single file.
(c) States must comply with the requirements of sec. 116(d)(2) of
WIOA as explained in guidance issued by the Departments of Labor and
Education.
Sec. 361.240 What are the requirements for data validation of State
annual performance reports?
(a) States must establish procedures, consistent with guidelines
issued by the Secretary of Labor or the Secretary of Education, to
ensure that they submit complete annual performance reports that
contain information that is valid and reliable, as required by WIOA
sec. 116(d)(5).
(b) If a State fails to meet standards in paragraph (a) of this
section as determined by the Secretary of Labor or the Secretary of
Education, the appropriate Secretary will provide technical assistance
and may require the State to develop and implement corrective actions,
which may require the State to provide training for its subrecipients.
(c) The Secretaries of Labor and Education will provide training
and technical assistance to States in order to implement this section.
States must comply with the requirements of sec. 116(d)(5) of WIOA as
explained in guidance.
0
7. Add subpart F to part 361 to read as follows:
Subpart F--Description of the One-Stop Delivery System Under Title I of
the Workforce Innovation and Opportunity Act
Sec.
361.300 What is the one-stop delivery system?
361.305 What is a comprehensive one-stop center and what must be
provided there?
361.310 What is an affiliated site and what must be provided there?
361.315 Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?
361.320 Are there any requirements for networks of eligible one-stop
partners or specialized centers?
361.400 Who are the required one-stop partners?
361.405 Is Temporary Assistance for Needy Families a required one-
stop partner?
361.410 What other entities may serve as one-stop partners?
361.415 What entity serves as the one-stop partner for a particular
program in the local area?
361.420 What are the roles and responsibilities of the required one-
stop partners?
361.425 What are the applicable career services that must be
provided through the one-stop delivery system by required one-stop
partners?
361.430 What are career services?
361.435 What are the business services provided through the one-stop
delivery system, and how are they provided?
361.440 When may a fee be charged for the business services in this
subpart?
361.500 What is the Memorandum of Understanding for the one-stop
delivery system and what must be included in the Memorandum of
Understanding?
361.505 Is there a single Memorandum of Understanding for the local
area, or must there be different Memoranda of Understanding between
the Local Workforce Development Board and each partner?
361.510 How must the Memorandum of Understanding be negotiated?
361.600 Who may operate one-stop centers?
361.605 How is the one-stop operator selected?
361.610 When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?
361.615 May an entity currently serving as one-stop operator compete
to be a one-stop operator under the procurement requirements of this
subpart?
361.620 What is the one-stop operator's role?
361.625 Can a one-stop operator also be a service provider?
361.630 Can State merit staff still work in a one-stop center where
the operator is not a governmental entity?
361.635 What is the compliance date of the provisions of this
subpart?
361.700 What are the one-stop infrastructure costs?
361.705 What guidance must the Governor issue regarding one-stop
infrastructure funding?
361.710 How are infrastructure costs funded?
361.715 How are one-stop infrastructure costs funded in the local
funding mechanism?
361.720 What funds are used to pay for infrastructure costs in the
local one-stop infrastructure funding mechanism?
361.725 What happens if consensus on infrastructure funding is not
reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?
361.730 What is the State one-stop infrastructure funding mechanism?
361.731 What are the steps to determine the amount to be paid under
the State one-stop infrastructure funding mechanism?
361.735 How are infrastructure cost budgets for the one-stop centers
in a local area determined in the State one-stop infrastructure
funding mechanism?
361.736 How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs'
proportionate shares of infrastructure costs under the State one-
stop infrastructure funding mechanism?
361.737 How are one-stop partner programs' proportionate shares of
infrastructure costs determined under the State one-stop
infrastructure funding mechanism?
361.738 How are statewide caps on the contributions for one-stop
infrastructure funding determined in the State one-stop
infrastructure funding mechanism?
361.740 What funds are used to pay for infrastructure costs in the
State one-stop infrastructure funding mechanism?
361.745 What factors does the State Workforce Development Board use
to develop the formula described in Workforce Innovation and
Opportunity Act, which is used by the Governor to determine the
appropriate one-stop infrastructure budget for each local area
operating under the State infrastructure funding mechanism, if no
reasonably implementable locally negotiated budget exists?
361.750 When and how can a one-stop partner appeal a one-stop
infrastructure amount designated by the State under the State
infrastructure funding mechanism?
361.755 What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of
Understanding?
361.760 How do one-stop partners jointly fund other shared costs
under the Memorandum of Understanding?
361.800 How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic
accessibility, and continuous improvement?
361.900 What is the common identifier to be used by each one-stop
delivery system?
Authority: Secs. 503, 107, 121, 134, 189, Pub. L. 113-128, 128
Stat. 1425 (Jul. 22, 2014).
[[Page 56034]]
Subpart F--Description of the One-Stop Delivery System Under Title
I of the Workforce Innovation and Opportunity Act
Sec. 361.300 What is the one-stop delivery system?
(a) The one-stop delivery system brings together workforce
development, educational, and other human resource services in a
seamless customer-focused service delivery network that enhances access
to the programs' services and improves long-term employment outcomes
for individuals receiving assistance. One-stop partners administer
separately funded programs as a set of integrated streamlined services
to customers.
(b) Title I of the Workforce Innovation and Opportunity Act (WIOA)
assigns responsibilities at the local, State, and Federal level to
ensure the creation and maintenance of a one-stop delivery system that
enhances the range and quality of education and workforce development
services that employers and individual customers can access.
(c) The system must include at least one comprehensive physical
center in each local area as described in Sec. 361.305.
(d) The system may also have additional arrangements to supplement
the comprehensive center. These arrangements include:
(1) An affiliated site or a network of affiliated sites, where one
or more partners make programs, services, and activities available, as
described in Sec. 361.310;
(2) A network of eligible one-stop partners, as described in
Sec. Sec. 361.400 through 361.410, through which each partner provides
one or more of the programs, services, and activities that are linked,
physically or technologically, to an affiliated site or access point
that assures customers are provided information on the availability of
career services, as well as other program services and activities,
regardless of where they initially enter the public workforce system in
the local area; and
(3) Specialized centers that address specific needs, including
those of dislocated workers, youth, or key industry sectors, or
clusters.
(e) Required one-stop partner programs must provide access to
programs, services, and activities through electronic means if
applicable and practicable. This is in addition to providing access to
services through the mandatory comprehensive physical one-stop center
and any affiliated sites or specialized centers. The provision of
programs and services by electronic methods such as Web sites,
telephones, or other means must improve the efficiency, coordination,
and quality of one-stop partner services. Electronic delivery must not
replace access to such services at a comprehensive one-stop center or
be a substitute to making services available at an affiliated site if
the partner is participating in an affiliated site. Electronic delivery
systems must be in compliance with the nondiscrimination and equal
opportunity provisions of WIOA sec. 188 and its implementing
regulations at 29 CFR part 38.
(f) The design of the local area's one-stop delivery system must be
described in the Memorandum of Understanding (MOU) executed with the
one-stop partners, described in Sec. 361.500.
Sec. 361.305 What is a comprehensive one-stop center and what must be
provided there?
(a) A comprehensive one-stop center is a physical location where
job seeker and employer customers can access the programs, services,
and activities of all required one-stop partners. A comprehensive one-
stop center must have at least one title I staff person physically
present.
(b) The comprehensive one-stop center must provide:
(1) Career services, described in Sec. 361.430;
(2) Access to training services described in 20 CFR 680.200;
(3) Access to any employment and training activities carried out
under sec. 134(d) of WIOA;
(4) Access to programs and activities carried out by one-stop
partners listed in Sec. Sec. 361.400 through 361.410, including the
Employment Service program authorized under the Wagner-Peyser Act, as
amended by WIOA title III (Wagner-Peyser Act Employment Service
program); and
(5) Workforce and labor market information.
(c) Customers must have access to these programs, services, and
activities during regular business days at a comprehensive one-stop
center. The Local Workforce Development Board (WDB) may establish other
service hours at other times to accommodate the schedules of
individuals who work on regular business days. The State WDB will
evaluate the hours of access to service as part of the evaluation of
effectiveness in the one-stop certification process described in Sec.
361.800(b).
(d) ``Access'' to each partner program and its services means:
(1) Having a program staff member physically present at the one-
stop center;
(2) Having a staff member from a different partner program
physically present at the one-stop center appropriately trained to
provide information to customers about the programs, services, and
activities available through partner programs; or
(3) Making available a direct linkage through technology to program
staff who can provide meaningful information or services.
(i) A ``direct linkage'' means providing direct connection at the
one-stop center, within a reasonable time, by phone or through a real-
time Web-based communication to a program staff member who can provide
program information or services to the customer.
(ii) A ``direct linkage'' cannot exclusively be providing a phone
number or computer Web site or providing information, pamphlets, or
materials.
(e) All comprehensive one-stop centers must be physically and
programmatically accessible to individuals with disabilities, as
described in 29 CFR part 38, the implementing regulations of WIOA sec.
188.
Sec. 361.310 What is an affiliated site and what must be provided
there?
(a) An affiliated site, or affiliate one-stop center, is a site
that makes available to job seeker and employer customers one or more
of the one-stop partners' programs, services, and activities. An
affiliated site does not need to provide access to every required one-
stop partner program. The frequency of program staff's physical
presence in the affiliated site will be determined at the local level.
Affiliated sites are access points in addition to the comprehensive
one-stop center(s) in each local area. If used by local areas as a part
of the service delivery strategy, affiliate sites must be implemented
in a manner that supplements and enhances customer access to services.
(b) As described in Sec. 361.315, Wagner-Peyser Act employment
services cannot be a stand-alone affiliated site.
(c) States, in conjunction with the Local WDBs, must examine lease
agreements and property holdings throughout the one-stop delivery
system in order to use property in an efficient and effective way.
Where necessary and appropriate, States and Local WDBs must take
expeditious steps to align lease expiration dates with efforts to
consolidate one-stop operations into service points where Wagner-Peyser
Act employment services are colocated as soon as reasonably possible.
These steps must be included in the State Plan.
[[Page 56035]]
(d) All affiliated sites must be physically and programmatically
accessible to individuals with disabilities, as described in 29 CFR
part 38, the implementing regulations of WIOA sec. 188.
Sec. 361.315 Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?
(a) Separate stand-alone Wagner-Peyser Act Employment Service
offices are not permitted under WIOA, as also described in 20 CFR
652.202.
(b) If Wagner-Peyser Act employment services are provided at an
affiliated site, there must be at least one or more other partners in
the affiliated site with a physical presence of combined staff more
than 50 percent of the time the center is open. Additionally, the other
partner must not be the partner administering local veterans'
employment representatives, disabled veterans' outreach program
specialists, or unemployment compensation programs. If Wagner-Peyser
Act employment services and any of these 3 programs are provided at an
affiliated site, an additional partner or partners must have a presence
of combined staff in the center more than 50 percent of the time the
center is open.
Sec. 361.320 Are there any requirements for networks of eligible one-
stop partners or specialized centers?
Any network of one-stop partners or specialized centers, as
described in Sec. 361.300(d)(3), must be connected to the
comprehensive one-stop center and any appropriate affiliate one-stop
centers, for example, by having processes in place to make referrals to
these centers and the partner programs located in them. Wagner-Peyser
Act employment services cannot stand alone in a specialized center.
Just as described in Sec. 361.315 for an affiliated site, a
specialized center must include other programs besides Wagner-Peyser
Act employment services, local veterans' employment representatives,
disabled veterans' outreach program specialists, and unemployment
compensation.
Sec. 361.400 Who are the required one-stop partners?
(a) Section 121(b)(1)(B) of WIOA identifies the entities that are
required partners in the local one-stop delivery systems.
(b) The required partners are the entities responsible for
administering the following programs and activities in the local area:
(1) Programs authorized under title I of WIOA, including:
(i) Adults;
(ii) Dislocated workers;
(iii) Youth;
(iv) Job Corps;
(v) YouthBuild;
(vi) Native American programs; and
(vii) Migrant and seasonal farmworker programs;
(2) The Wagner-Peyser Act Employment Service program authorized
under the Wagner-Peyser Act (29 U.S.C. 49 et seq.), as amended by WIOA
title III;
(3) The Adult Education and Family Literacy Act (AEFLA) program
authorized under title II of WIOA;
(4) The Vocational Rehabilitation (VR) program authorized under
title I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.), as
amended by WIOA title IV;
(5) The Senior Community Service Employment Program authorized
under title V of the Older Americans Act of 1965 (42 U.S.C. 3056 et
seq.);
(6) Career and technical education programs at the postsecondary
level authorized under the Carl D. Perkins Career and Technical
Education Act of 2006 (20 U.S.C. 2301 et seq.);
(7) Trade Adjustment Assistance activities authorized under chapter
2 of title II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
(8) Jobs for Veterans State Grants programs authorized under
chapter 41 of title 38, U.S.C.;
(9) Employment and training activities carried out under the
Community Services Block Grant (42 U.S.C. 9901 et seq.);
(10) Employment and training activities carried out by the
Department of Housing and Urban Development;
(11) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law);
(12) Programs authorized under sec. 212 of the Second Chance Act of
2007 (42 U.S.C. 17532); and
(13) Temporary Assistance for Needy Families (TANF) authorized
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.), unless exempted by the Governor under Sec. 361.405(b).
Sec. 361.405 Is Temporary Assistance for Needy Families a required
one-stop partner?
(a) Yes, TANF, authorized under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.), is a required partner.
(b) The Governor may determine that TANF will not be a required
partner in the State, or within some specific local areas in the State.
In this instance, the Governor must notify the Secretaries of the U.S.
Departments of Labor and Health and Human Services in writing of this
determination.
(c) In States, or local areas within a State, where the Governor
has determined that TANF is not required to be a partner, local TANF
programs may still work in collaboration or partnership with the local
one-stop centers to deliver employment and training services to the
TANF population unless inconsistent with the Governor's direction.
Sec. 361.410 What other entities may serve as one-stop partners?
(a) Other entities that carry out a workforce development program,
including Federal, State, or local programs and programs in the private
sector, may serve as additional partners in the one-stop delivery
system if the Local WDB and chief elected official(s) approve the
entity's participation.
(b) Additional partners may include, but are not limited to:
(1) Employment and training programs administered by the Social
Security Administration, including the Ticket to Work and Self-
Sufficiency Program established under sec. 1148 of the Social Security
Act (42 U.S.C. 1320b-19);
(2) Employment and training programs carried out by the Small
Business Administration;
(3) Supplemental Nutrition Assistance Program (SNAP) employment and
training programs, authorized under secs. 6(d)(4) and 6(o) of the Food
and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
(4) Client Assistance Program authorized under sec. 112 of the
Rehabilitation Act of 1973 (29 U.S.C. 732);
(5) Programs authorized under the National and Community Service
Act of 1990 (42 U.S.C. 12501 et seq.); and
(6) Other appropriate Federal, State or local programs, including,
but not limited to, employment, education, and training programs
provided by public libraries or in the private sector.
Sec. 361.415 What entity serves as the one-stop partner for a
particular program in the local area?
(a) The entity that carries out the program and activities listed
in Sec. 361.400 or Sec. 361.410, and therefore serves as the one-stop
partner, is the grant recipient, administrative entity, or organization
responsible for administering the funds of the specified program in the
local area. The term ``entity'' does not include the service providers
that contract with, or are subrecipients of, the local administrative
entity. For programs that do not include local administrative entities,
the responsible State agency
[[Page 56036]]
must be the partner. Specific entities for particular programs are
identified in paragraphs (b) through (e) of this section. If a program
or activity listed in Sec. 361.400 is not carried out in a local area,
the requirements relating to a required one-stop partner are not
applicable to such program or activity in that local one-stop delivery
system.
(b) For title II of WIOA, the entity or agency that carries out the
program for the purposes of paragraph (a) of this section is the sole
entity or agency in the State or outlying area responsible for
administering or supervising policy for adult education and literacy
activities in the State or outlying area. The State eligible entity or
agency may delegate its responsibilities under paragraph (a) of this
section to one or more eligible providers or consortium of eligible
providers.
(c) For the VR program, authorized under title I of the
Rehabilitation Act of 1973, as amended by WIOA title IV, the entity
that carries out the program for the purposes of paragraph (a) of this
section is the designated State agencies or designated State units
specified under sec. 101(a)(2) of the Rehabilitation Act that is
primarily concerned with vocational rehabilitation, or vocational and
other rehabilitation, of individuals with disabilities.
(d) Under WIOA title I, the national programs, including Job Corps,
the Native American program, YouthBuild, and Migrant and Seasonal
Farmworker programs are required one-stop partners. The entity for the
Native American program, YouthBuild, and Migrant and Seasonal
Farmworker programs is the grantee of those respective programs. The
entity for Job Corps is the Job Corps center.
(e) For the Carl D. Perkins Career and Technical Education Act of
2006, the entity that carries out the program for the purposes of
paragraph (a) of this section is the eligible recipient or recipients
at the postsecondary level, or a consortium of eligible recipients at
the postsecondary level in the local area. The eligible recipient at
the postsecondary level may also request assistance from the State
eligible agency in completing its responsibilities under paragraph (a)
of this section.
Sec. 361.420 What are the roles and responsibilities of the required
one-stop partners?
Each required partner must:
(a) Provide access to its programs or activities through the one-
stop delivery system, in addition to any other appropriate locations;
(b) Use a portion of funds made available to the partner's program,
to the extent consistent with the Federal law authorizing the partner's
program and with Federal cost principles in 2 CFR parts 200 and 3474
(requiring, among other things, that costs are allowable, reasonable,
necessary, and allocable), to:
(1) Provide applicable career services; and
(2) Work collaboratively with the State and Local WDBs to establish
and maintain the one-stop delivery system. This includes jointly
funding the one-stop infrastructure through partner contributions that
are based upon:
(i) A reasonable cost allocation methodology by which
infrastructure costs are charged to each partner based on proportionate
use and relative benefit received;
(ii) Federal cost principles; and
(iii) Any local administrative cost requirements in the Federal law
authorizing the partner's program. (This is further described in Sec.
361.700.)
(c) Enter into an MOU with the Local WDB relating to the operation
of the one-stop delivery system that meets the requirements of Sec.
361.500(b);
(d) Participate in the operation of the one-stop delivery system
consistent with the terms of the MOU, requirements of authorizing laws,
the Federal cost principles, and all other applicable legal
requirements; and
(e) Provide representation on the State and Local WDBs as required
and participate in Board committees as needed.
Sec. 361.425 What are the applicable career services that must be
provided through the one-stop delivery system by required one-stop
partners?
(a) The applicable career services to be delivered by required one-
stop partners are those services listed in Sec. 361.430 that are
authorized to be provided under each partner's program.
(b) One-stop centers provide services to individual customers based
on individual needs, including the seamless delivery of multiple
services to individual customers. There is no required sequence of
services.
Sec. 361.430 What are career services?
Career services, as identified in sec. 134(c)(2) of WIOA, consist
of three types:
(a) Basic career services must be made available and, at a minimum,
must include the following services, as consistent with allowable
program activities and Federal cost principles:
(1) Determinations of whether the individual is eligible to receive
assistance from the adult, dislocated worker, or youth programs;
(2) Outreach, intake (including worker profiling), and orientation
to information and other services available through the one-stop
delivery system. For the TANF program, States must provide individuals
with the opportunity to initiate an application for TANF assistance and
non-assistance benefits and services, which could be implemented
through the provision of paper application forms or links to the
application Web site;
(3) Initial assessment of skill levels including literacy,
numeracy, and English language proficiency, as well as aptitudes,
abilities (including skills gaps), and supportive services needs;
(4) Labor exchange services, including--
(i) Job search and placement assistance, and, when needed by an
individual, career counseling, including--
(A) Provision of information on in-demand industry sectors and
occupations (as defined in sec. 3(23) of WIOA); and
(B) Provision of information on nontraditional employment; and
(ii) Appropriate recruitment and other business services on behalf
of employers, including information and referrals to specialized
business services other than those traditionally offered through the
one-stop delivery system;
(5) Provision of referrals to and coordination of activities with
other programs and services, including programs and services within the
one-stop delivery system and, when appropriate, other workforce
development programs;
(6) Provision of workforce and labor market employment statistics
information, including the provision of accurate information relating
to local, regional, and national labor market areas, including--
(i) Job vacancy listings in labor market areas;
(ii) Information on job skills necessary to obtain the vacant jobs
listed; and
(iii) Information relating to local occupations in demand and the
earnings, skill requirements, and opportunities for advancement for
those jobs;
(7) Provision of performance information and program cost
information on eligible providers of education, training, and workforce
services by program and type of providers;
(8) Provision of information, in usable and understandable formats
and languages, about how the local area is performing on local
performance accountability measures, as well as any additional
performance information
[[Page 56037]]
relating to the area's one-stop delivery system;
(9) Provision of information, in usable and understandable formats
and languages, relating to the availability of supportive services or
assistance, and appropriate referrals to those services and assistance,
including: Child care; child support; medical or child health
assistance available through the State's Medicaid program and
Children's Health Insurance Program; benefits under SNAP; assistance
through the earned income tax credit; and assistance under a State
program for TANF, and other supportive services and transportation
provided through that program;
(10) Provision of information and meaningful assistance to
individuals seeking assistance in filing a claim for unemployment
compensation.
(i) ``Meaningful assistance'' means:
(A) Providing assistance on-site using staff who are well-trained
in unemployment compensation claims filing and the rights and
responsibilities of claimants; or
(B) Providing assistance by phone or via other technology, as long
as the assistance is provided by trained and available staff and within
a reasonable time.
(ii) The costs associated in providing this assistance may be paid
for by the State's unemployment insurance program, or the WIOA adult or
dislocated worker programs, or some combination thereof.
(11) Assistance in establishing eligibility for programs of
financial aid assistance for training and education programs not
provided under WIOA.
(b) Individualized career services must be made available if
determined to be appropriate in order for an individual to obtain or
retain employment. These services include the following services, as
consistent with program requirements and Federal cost principles:
(1) Comprehensive and specialized assessments of the skill levels
and service needs of adults and dislocated workers, which may include--
(i) Diagnostic testing and use of other assessment tools; and
(ii) In-depth interviewing and evaluation to identify employment
barriers and appropriate employment goals;
(2) Development of an individual employment plan, to identify the
employment goals, appropriate achievement objectives, and appropriate
combination of services for the participant to achieve his or her
employment goals, including the list of, and information about, the
eligible training providers (as described in 20 CFR 680.180);
(3) Group counseling;
(4) Individual counseling;
(5) Career planning;
(6) Short-term pre-vocational services including development of
learning skills, communication skills, interviewing skills,
punctuality, personal maintenance skills, and professional conduct
services to prepare individuals for unsubsidized employment or
training;
(7) Internships and work experiences that are linked to careers (as
described in 20 CFR 680.170);
(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.
(c) Follow-up services must be provided, as appropriate, including:
Counseling regarding the workplace, for participants in adult or
dislocated worker workforce investment activities who are placed in
unsubsidized employment, for up to 12 months after the first day of
employment.
(d) In addition to the requirements in paragraph (a)(2) of this
section, TANF agencies must identify employment services and related
support being provided by the TANF program (within the local area) that
qualify as career services and ensure access to them via the local one-
stop delivery system.
Sec. 361.435 What are the business services provided through the one-
stop delivery system, and how are they provided?
(a) Certain career services must be made available to local
employers, specifically labor exchange activities and labor market
information described in Sec. 361.430(a)(4)(ii) and (a)(6). Local
areas must establish and develop relationships and networks with large
and small employers and their intermediaries. Local areas also must
develop, convene, or implement industry or sector partnerships.
(b) Customized business services may be provided to employers,
employer associations, or other such organizations. These services are
tailored for specific employers and may include:
(1) Customized screening and referral of qualified participants in
training services to employers;
(2) Customized services to employers, employer associations, or
other such organizations, on employment-related issues;
(3) Customized recruitment events and related services for
employers including targeted job fairs;
(4) Human resource consultation services, including but not limited
to assistance with:
(i) Writing/reviewing job descriptions and employee handbooks;
(ii) Developing performance evaluation and personnel policies;
(iii) Creating orientation sessions for new workers;
(iv) Honing job interview techniques for efficiency and compliance;
(v) Analyzing employee turnover;
(vi) Creating job accommodations and using assistive technologies;
or
(vii) Explaining labor and employment laws to help employers comply
with discrimination, wage/hour, and safety/health regulations;
(5) Customized labor market information for specific employers,
sectors, industries or clusters; and
(6) Other similar customized services.
(c) Local areas may also provide other business services and
strategies that meet the workforce investment needs of area employers,
in accordance with partner programs' statutory requirements and
consistent with Federal cost principles. These business services may be
provided through effective business intermediaries working in
conjunction with the Local WDB, or through the use of economic
development, philanthropic, and other public and private resources in a
manner determined appropriate by the Local WDB and in cooperation with
the State. Allowable activities, consistent with each partner's
authorized activities, include, but are not limited to:
(1) Developing and implementing industry sector strategies
(including strategies involving industry partnerships, regional skills
alliances, industry skill panels, and sectoral skills partnerships);
(2) Customized assistance or referral for assistance in the
development of a registered apprenticeship program;
(3) Developing and delivering innovative workforce investment
services and strategies for area employers, which may include career
pathways, skills upgrading, skill standard development and
certification for recognized postsecondary credential or other employer
use, and other effective initiatives for meeting the workforce
investment needs of area employers and workers;
(4) Assistance to area employers in managing reductions in force in
coordination with rapid response activities and with strategies for the
aversion of layoffs, which may include
[[Page 56038]]
strategies such as early identification of firms at risk of layoffs,
use of feasibility studies to assess the needs of and options for at-
risk firms, and the delivery of employment and training activities to
address risk factors;
(5) The marketing of business services to appropriate area
employers, including small and mid-sized employers; and
(6) Assisting employers with accessing local, State, and Federal
tax credits.
(d) All business services and strategies must be reflected in the
local plan, described in 20 CFR 679.560(b)(3).
Sec. 361.440 When may a fee be charged for the business services in
this subpart?
(a) There is no requirement that a fee-for-service be charged to
employers.
(b) No fee may be charged for services provided in Sec.
361.435(a).
(c) A fee may be charged for services provided under Sec.
361.435(b) and (c). Services provided under Sec. 361.435(c) may be
provided through effective business intermediaries working in
conjunction with the Local WDB and may also be provided on a fee-for-
service basis or through the leveraging of economic development,
philanthropic, and other public and private resources in a manner
determined appropriate by the Local WDB. The Local WDB may examine the
services provided compared with the assets and resources available
within the local one-stop delivery system and through its partners to
determine an appropriate cost structure for services, if any.
(d) Any fees earned are recognized as program income and must be
expended by the partner in accordance with the partner program's
authorizing statute, implementing regulations, and Federal cost
principles identified in Uniform Guidance.
Sec. 361.500 What is the Memorandum of Understanding for the one-stop
delivery system and what must be included in the Memorandum of
Understanding?
(a) The MOU is the product of local discussion and negotiation, and
is an agreement developed and executed between the Local WDB and the
one-stop partners, with the agreement of the chief elected official and
the one-stop partners, relating to the operation of the one-stop
delivery system in the local area. Two or more local areas in a region
may develop a single joint MOU, if they are in a region that has
submitted a regional plan under sec. 106 of WIOA.
(b) The MOU must include:
(1) A description of services to be provided through the one-stop
delivery system, including the manner in which the services will be
coordinated and delivered through the system;
(2) Agreement on funding the costs of the services and the
operating costs of the system, including:
(i) Funding of infrastructure costs of one-stop centers in
accordance with Sec. Sec. 361.700 through 361.755; and
(ii) Funding of the shared services and operating costs of the one-
stop delivery system described in Sec. 361.760;
(3) Methods for referring individuals between the one-stop
operators and partners for appropriate services and activities;
(4) Methods to ensure that the needs of workers, youth, and
individuals with barriers to employment, including individuals with
disabilities, are addressed in providing access to services, including
access to technology and materials that are available through the one-
stop delivery system;
(5) The duration of the MOU and procedures for amending it; and
(6) Assurances that each MOU will be reviewed, and if substantial
changes have occurred, renewed, not less than once every 3-year period
to ensure appropriate funding and delivery of services.
(c) The MOU may contain any other provisions agreed to by the
parties that are consistent with WIOA title I, the authorizing statutes
and regulations of one-stop partner programs, and the WIOA regulations.
(d) When fully executed, the MOU must contain the signatures of the
Local WDB, one-stop partners, the chief elected official(s), and the
time period in which the agreement is effective. The MOU must be
updated not less than every 3 years to reflect any changes in the
signatory official of the Board, one-stop partners, and chief elected
officials, or one-stop infrastructure funding.
(e) If a one-stop partner appeal to the State regarding
infrastructure costs, using the process described in Sec. 361.750,
results in a change to the one-stop partner's infrastructure cost
contributions, the MOU must be updated to reflect the final one-stop
partner infrastructure cost contributions.
Sec. 361.505 Is there a single Memorandum of Understanding for the
local area, or must there be different Memoranda of Understanding
between the Local Workforce Development Board and each partner?
(a) A single ``umbrella'' MOU may be developed that addresses the
issues relating to the local one-stop delivery system for the Local
WDB, chief elected official and all partners. Alternatively, the Local
WDB (with agreement of chief elected official) may enter into separate
agreements between each partner or groups of partners.
(b) Under either approach, the requirements described in Sec.
361.500 apply. Since funds are generally appropriated annually, the
Local WDB may negotiate financial agreements with each partner annually
to update funding of services and operating costs of the system under
the MOU.
Sec. 361.510 How must the Memorandum of Understanding be negotiated?
(a) WIOA emphasizes full and effective partnerships between Local
WDBs, chief elected officials, and one-stop partners. Local WDBs and
partners must enter into good-faith negotiations. Local WDBs, chief
elected officials, and one-stop partners may also request assistance
from a State agency responsible for administering the partner program,
the Governor, State WDB, or other appropriate parties on other aspects
of the MOU.
(b) Local WDBs and one-stop partners must establish, in the MOU,
how they will fund the infrastructure costs and other shared costs of
the one-stop centers. If agreement regarding infrastructure costs is
not reached when other sections of the MOU are ready, an interim
infrastructure funding agreement may be included instead, as described
in Sec. 361.715(c). Once agreement on infrastructure funding is
reached, the Local WDB and one-stop partners must amend the MOU to
include the infrastructure funding of the one-stop centers.
Infrastructure funding is described in detail in Sec. Sec. 361.700
through 361.760.
(c) The Local WDB must report to the State WDB, Governor, and
relevant State agency when MOU negotiations with one-stop partners have
reached an impasse.
(1) The Local WDB and partners must document the negotiations and
efforts that have taken place in the MOU. The State WDB, one-stop
partner programs, and the Governor may consult with the appropriate
Federal agencies to address impasse situations related to issues other
than infrastructure funding after attempting to address the impasse.
Impasses related to infrastructure cost funding must be resolved using
the State infrastructure cost funding mechanism described in Sec.
361.730.
(2) The Local WDB must report failure to execute an MOU with a
required partner to the Governor, State WDB, and the State agency
responsible for administering the partner's program. Additionally, if
the State cannot assist the Local WDB in resolving the impasse,
[[Page 56039]]
the Governor or the State WDB must report the failure to the Secretary
of Labor and to the head of any other Federal agency with
responsibility for oversight of a partner's program.
Sec. 361.600 Who may operate one-stop centers?
(a) One-stop operators may be a single entity (public, private, or
nonprofit) or a consortium of entities. If the consortium of entities
is one of one-stop partners, it must include a minimum of three of the
one-stop partners described in Sec. 361.400.
(b) The one-stop operator may operate one or more one-stop centers.
There may be more than one one-stop operator in a local area.
(c) The types of entities that may be a one-stop operator include:
(1) An institution of higher education;
(2) An Employment Service State agency 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 chief elected official
and the Governor; or
(7) Another interested organization or entity, which is capable of
carrying out the duties of the one-stop operator. Examples may include
a local chamber of commerce or other business organization, or a labor
organization.
(d) Elementary schools and secondary schools are not eligible as
one-stop operators, except that a nontraditional public secondary
school such as a night school, adult school, or an area career and
technical education school may be selected.
(e) The State and Local WDBs must ensure that, in carrying out WIOA
programs and activities, one-stop operators:
(1) Disclose any potential conflicts of interest arising from the
relationships of the operators with particular training service
providers or other service providers (further discussed in 20 CFR
679.430);
(2) Do not establish practices that create disincentives to
providing services to individuals with barriers to employment who may
require longer-term career and training services; and
(3) Comply with Federal regulations and procurement policies
relating to the calculation and use of profits, including those at 20
CFR 683.295, the Uniform Guidance at 2 CFR part 200, and other
applicable regulations and policies.
Sec. 361.605 How is the one-stop operator selected?
(a) Consistent with paragraphs (b) and (c) of this section, the
Local WDB must select the one-stop operator through a competitive
process, as required by sec. 121(d)(2)(A) of WIOA, at least once every
4 years. A State may require, or a Local WDB may choose to implement, a
competitive selection process more than once every 4 years.
(b) In instances in which a State is conducting the competitive
process described in paragraph (a) of this section, the State must
follow the same policies and procedures it uses for procurement with
non-Federal funds.
(c) All other non-Federal entities, including subrecipients of a
State (such as local areas), must use a competitive process based on
local procurement policies and procedures and the principles of
competitive procurement in the Uniform Guidance set out at 2 CFR
200.318 through 200.326. All references to ``noncompetitive proposals''
in the Uniform Guidance at 2 CFR 200.320(f) will be read as ``sole
source procurement'' for the purposes of implementing this section.
(d) Entities must prepare written documentation explaining the
determination concerning the nature of the competitive process to be
followed in selecting a one-stop operator.
Sec. 361.610 When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?
(a) States may select a one-stop operator through sole source
selection when allowed under the same policies and procedures used for
competitive procurement with non-Federal funds, while other non-Federal
entities including subrecipients of a State (such as local areas) may
select a one-stop operator through sole selection when consistent with
local procurement policies and procedures and the Uniform Guidance set
out at 2 CFR 200.320.
(b) In the event that sole source procurement is determined
necessary and reasonable, in accordance with Sec. 361.605(c), written
documentation must be prepared and maintained concerning the entire
process of making such a selection.
(c) Such sole source procurement must include appropriate conflict
of interest policies and procedures. These policies and procedures must
conform to the specifications in 20 CFR 679.430 for demonstrating
internal controls and preventing conflict of interest.
(d) A Local WDB may be selected as a one-stop operator through sole
source procurement only with agreement of the chief elected official in
the local area and the Governor. The Local WDB must establish
sufficient conflict of interest policies and procedures and these
policies and procedures must be approved by the Governor.
Sec. 361.615 May an entity currently serving as one-stop operator
compete to be a one-stop operator under the procurement requirements of
this subpart?
(a) Local WDBs may compete for and be selected as one-stop
operators, as long as appropriate firewalls and conflict of interest
policies and procedures are in place. These policies and procedures
must conform to the specifications in 20 CFR 679.430 for demonstrating
internal controls and preventing conflict of interest.
(b) State and local agencies may compete for and be selected as
one-stop operators by the Local WDB, as long as appropriate firewalls
and conflict of interest policies and procedures are in place. These
policies and procedures must conform to the specifications in 20 CFR
679.430 for demonstrating internal controls and preventing conflict of
interest.
(c) In the case of single-area States where the State WDB serves as
the Local WDB, the State agency is eligible to compete for and be
selected as operator as long as appropriate firewalls and conflict of
interest policies are in place and followed for the competition. These
policies and procedures must conform to the specifications in 20 CFR
679.430 for demonstrating internal controls and preventing conflicts of
interest.
Sec. 361.620 What is the one-stop operator's role?
(a) At a minimum, the one-stop operator must coordinate the service
delivery of required one-stop partners and service providers. Local
WDBs may establish additional roles of one-stop operator, including,
but not limited to: Coordinating service providers across the one-stop
delivery system, being the primary provider of services within the
center, providing some of the services within the center, or
coordinating service delivery in a multi-center area, which may include
affiliated sites. The competition for a one-stop operator must clearly
articulate the role of the one-stop operator.
(b)(1) Subject to paragraph (b)(2) of this section, a one-stop
operator may not perform the following functions: Convene system
stakeholders to assist in the development of the local plan; prepare
and submit local plans (as required under sec. 107 of WIOA); be
responsible for oversight of itself; manage or significantly
participate in
[[Page 56040]]
the competitive selection process for one-stop operators; select or
terminate one-stop operators, career services, and youth providers;
negotiate local performance accountability measures; or develop and
submit budget for activities of the Local WDB in the local area.
(2) An entity serving as a one-stop operator, that also serves a
different role within the one-stop delivery system, may perform some or
all of these functions when it is acting in its other role, if it has
established sufficient firewalls and conflict of interest policies and
procedures. The policies and procedures must conform to the
specifications in 20 CFR 679.430 for demonstrating internal controls
and preventing conflict of interest.
Sec. 361.625 Can a one-stop operator also be a service provider?
Yes, but there must be appropriate firewalls in place in regards to
the competition, and subsequent oversight, monitoring, and evaluation
of performance of the service provider. The operator cannot develop,
manage, or conduct the competition of a service provider in which it
intends to compete. In cases where an operator is also a service
provider, there must be firewalls and internal controls within the
operator-service provider entity, as well as specific policies and
procedures at the Local WDB level regarding oversight, monitoring, and
evaluation of performance of the service provider. The firewalls must
conform to the specifications in 20 CFR 679.430 for demonstrating
internal controls and preventing conflicts of interest.
Sec. 361.630 Can State merit staff still work in a one-stop center
where the operator is not a governmental entity?
Yes. State merit staff can continue to perform functions and
activities in the one-stop center. The Local WDB and one-stop operator
must establish a system for management of merit staff in accordance
with State policies and procedures. Continued use of State merit staff
for the provision of Wagner-Peyser Act services or services from other
programs with merit staffing requirements must be included in the
competition for and final contract with the one-stop operator when
Wagner-Peyser Act services or services from other programs with merit
staffing requirements are being provided.
Sec. 361.635 What is the compliance date of the provisions of this
subpart?
(a) No later than July 1, 2017, one-stop operators selected under
the competitive process described in this subpart must be in place and
operating the one-stop center.
(b) By November 17, 2016, every Local WDB must demonstrate it is
taking steps to prepare for competition of its one-stop operator. This
demonstration may include, but is not limited to, market research,
requests for information, and conducting a cost and price analysis.
Sec. 361.700 What are the one-stop infrastructure costs?
(a) Infrastructure costs of one-stop centers are nonpersonnel costs
that are necessary for the general operation of the one-stop center,
including:
(1) Rental of the facilities;
(2) Utilities and maintenance;
(3) Equipment (including assessment-related products and assistive
technology for individuals with disabilities); and
(4) Technology to facilitate access to the one-stop center,
including technology used for the center's planning and outreach
activities.
(b) Local WDBs may consider common identifier costs as costs of
one-stop infrastructure.
(c) Each entity that carries out a program or activities in a local
one-stop center, described in Sec. Sec. 361.400 through 361.410, must
use a portion of the funds available for the program and activities to
maintain the one-stop delivery system, including payment of the
infrastructure costs of one-stop centers. These payments must be in
accordance with this subpart; Federal cost principles, which require
that all costs must be allowable, reasonable, necessary, and allocable
to the program; and all other applicable legal requirements.
Sec. 361.705 What guidance must the Governor issue regarding one-stop
infrastructure funding?
(a) The Governor, after consultation with chief elected officials,
the State WDB, and Local WDBs, and consistent with guidance and
policies provided by the State WDB, must develop and issue guidance for
use by local areas, specifically:
(1) Guidelines for State-administered one-stop partner programs for
determining such programs' contributions to a one-stop delivery system,
based on such programs' proportionate use of such system, and relative
benefit received, consistent with Office of Management and Budget (OMB)
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards in 2 CFR part 200, including
determining funding for the costs of infrastructure; and
(2) Guidance to assist Local WDBs, chief elected officials, and
one-stop partners in local areas in determining equitable and stable
methods of funding the costs of infrastructure at one-stop centers
based on proportionate use and relative benefit received, and
consistent with Federal cost principles contained in the Uniform
Guidance at 2 CFR part 200.
(b) The guidance must include:
(1) The appropriate roles of the one-stop partner programs in
identifying one-stop infrastructure costs;
(2) Approaches to facilitate equitable and efficient cost
allocation that results in a reasonable cost allocation methodology
where infrastructure costs are charged to each partner based on its
proportionate use of the one-stop centers and relative benefit
received, consistent with Federal cost principles at 2 CFR part 200;
and
(3) The timelines regarding notification to the Governor for not
reaching local agreement and triggering the State funding mechanism
described in Sec. 361.730, and timelines for a one-stop partner to
submit an appeal in the State funding mechanism.
Sec. 361.710 How are infrastructure costs funded?
Infrastructure costs are funded either through the local funding
mechanism described in Sec. 361.715 or through the State funding
mechanism described in Sec. 361.730.
Sec. 361.715 How are one-stop infrastructure costs funded in the
local funding mechanism?
(a) In the local funding mechanism, the Local WDB, chief elected
officials, and one-stop partners agree to amounts and methods of
calculating amounts each partner will contribute for one-stop
infrastructure funding, include the infrastructure funding terms in the
MOU, and sign the MOU. The local funding mechanism must meet all of the
following requirements:
(1) The infrastructure costs are funded through cash and fairly
evaluated non-cash and third-party in-kind partner contributions and
include any funding from philanthropic organizations or other private
entities, or through other alternative financing options, to provide a
stable and equitable funding stream for ongoing one-stop delivery
system operations;
(2) Contributions must be negotiated between one-stop partners,
chief elected officials, and the Local WDB and the amount to be
contributed must be included in the MOU;
(3) The one-stop partner program's proportionate share of funding
must be calculated in accordance with the Uniform Administrative
Requirements,
[[Page 56041]]
Cost Principles, and Audit Requirements for Federal Awards in 2 CFR
part 200 based upon a reasonable cost allocation methodology whereby
infrastructure costs are charged to each partner in proportion to its
use of the one-stop center, relative to benefits received. Such costs
must also be allowable, reasonable, necessary, and allocable;
(4) Partner shares must be periodically reviewed and reconciled
against actual costs incurred, and adjusted to ensure that actual costs
charged to any one-stop partners are proportionate to the use of the
one-stop center and relative to the benefit received by the one-stop
partners and their respective programs or activities.
(b) In developing the section of the MOU on one-stop infrastructure
funding described in Sec. 361.755, the Local WDB and chief elected
officials will:
(1) Ensure that the one-stop partners adhere to the guidance
identified in Sec. 361.705 on one-stop delivery system infrastructure
costs.
(2) Work with one-stop partners to achieve consensus and informally
mediate any possible conflicts or disagreements among one-stop
partners.
(3) Provide technical assistance to new one-stop partners and local
grant recipients to ensure that those entities are informed and
knowledgeable of the elements contained in the MOU and the one-stop
infrastructure costs arrangement.
(c) The MOU may include an interim infrastructure funding
agreement, including as much detail as the Local WDB has negotiated
with one-stop partners, if all other parts of the MOU have been
negotiated, in order to allow the partner programs to operate in the
one-stop centers. The interim infrastructure funding agreement must be
finalized within 6 months of when the MOU is signed. If the interim
infrastructure funding agreement is not finalized within that
timeframe, the Local WDB must notify the Governor, as described in
Sec. 361.725.
Sec. 361.720 What funds are used to pay for infrastructure costs in
the local one-stop infrastructure funding mechanism?
(a) In the local funding mechanism, one-stop partner programs may
determine what funds they will use to pay for infrastructure costs. The
use of these funds must be in accordance with the requirements in this
subpart, and with the relevant partner's authorizing statutes and
regulations, including, for example, prohibitions against supplanting
non-Federal resources, statutory limitations on administrative costs,
and all other applicable legal requirements. In the case of partners
administering programs authorized by title I of WIOA, these
infrastructure costs may be considered program costs. In the case of
partners administering adult education and literacy programs authorized
by title II of WIOA, these funds must include Federal funds made
available for the local administration of adult education and literacy
programs authorized by title II of WIOA. These funds may also include
non-Federal resources that are cash, in-kind or third-party
contributions. In the case of partners administering the Carl D.
Perkins Career and Technical Education Act of 2006, funds used to pay
for infrastructure costs may include funds available for local
administrative expenses, non-Federal resources that are cash, in-kind
or third-party contributions, and may include other funds made
available by the State.
(b) There are no specific caps on the amount or percent of overall
funding a one-stop partner may contribute to fund infrastructure costs
under the local funding mechanism, except that contributions for
administrative costs may not exceed the amount available for
administrative costs under the authorizing statute of the partner
program. However, amounts contributed for infrastructure costs must be
allowable and based on proportionate use of the one-stop centers and
relative benefit received by the partner program, taking into account
the total cost of the one-stop infrastructure as well as alternate
financing options, and must be consistent with 2 CFR part 200,
including the Federal cost principles.
(c) Cash, non-cash, and third-party in-kind contributions may be
provided by one-stop partners to cover their proportionate share of
infrastructure costs.
(1) Cash contributions are cash funds provided to the Local WDB or
its designee by one-stop partners, either directly or by an interagency
transfer.
(2) Non-cash contributions are comprised of--
(i) Expenditures incurred by one-stop partners on behalf of the
one-stop center; and
(ii) Non-cash contributions or goods or services contributed by a
partner program and used by the one-stop center.
(3) Non-cash contributions, especially those set forth in paragraph
(c)(2)(ii) of this section, must be valued consistent with 2 CFR
200.306 to ensure they are fairly evaluated and meet the partners'
proportionate share.
(4) Third-party in-kind contributions are:
(i) Contributions of space, equipment, technology, non-personnel
services, or other like items to support the infrastructure costs
associated with one-stop operations, by a non-one-stop partner to
support the one-stop center in general, not a specific partner; or
(ii) Contributions by a non-one-stop partner of space, equipment,
technology, non-personnel services, or other like items to support the
infrastructure costs associated with one-stop operations, to a one-stop
partner to support its proportionate share of one-stop infrastructure
costs.
(iii) In-kind contributions described in paragraphs (c)(4)(i) and
(ii) of this section must be valued consistent with 2 CFR 200.306 and
reconciled on a regular basis to ensure they are fairly evaluated and
meet the proportionate share of the partner.
(5) All partner contributions, regardless of the type, must be
reconciled on a regular basis (i.e., monthly or quarterly), comparing
actual expenses incurred to relative benefits received, to ensure each
partner program is contributing its proportionate share in accordance
with the terms of the MOU.
Sec. 361.725 What happens if consensus on infrastructure funding is
not reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?
With regard to negotiations for infrastructure funding for Program
Year (PY) 2017 and for each subsequent program year thereafter, if the
Local WDB, chief elected officials, and one-stop partners do not reach
consensus on methods of sufficiently funding local infrastructure
through the local funding mechanism in accordance with the Governor's
guidance issued under Sec. 361.705 and consistent with the regulations
in Sec. Sec. 361.715 and 361.720, and include that consensus agreement
in the signed MOU, then the Local WDB must notify the Governor by the
deadline established by the Governor under Sec. 361.705(b)(3). Once
notified, the Governor must administer funding through the State
funding mechanism, as described in Sec. Sec. 361.730 through 361.738,
for the program year impacted by the local area's failure to reach
consensus.
Sec. 361.730 What is the State one-stop infrastructure funding
mechanism?
(a) Consistent with sec. 121(h)(1)(A)(i)(II) of WIOA, if the Local
WDB, chief elected official, and one-stop partners in a local area do
not reach consensus agreement on methods of sufficiently funding the
costs of infrastructure of one-stop centers for a
[[Page 56042]]
program year, the State funding mechanism is applicable to the local
area for that program year.
(b) In the State funding mechanism, the Governor, subject to the
limitations in paragraph (c) of this section, determines one-stop
partner contributions after consultation with the chief elected
officials, Local WDBs, and the State WDB. This determination involves:
(1) The application of a budget for one-stop infrastructure costs
as described in Sec. 361.735, based on either agreement reached in the
local area negotiations or the State WDB formula outlined in Sec.
361.745;
(2) The determination of each local one-stop partner program's
proportionate use of the one-stop delivery system and relative benefit
received, consistent with the Uniform Guidance at 2 CFR part 200,
including the Federal cost principles, the partner programs'
authorizing laws and regulations, and other applicable legal
requirements described in Sec. 361.736; and
(3) The calculation of required statewide program caps on
contributions to infrastructure costs from one-stop partner programs in
areas operating under the State funding mechanism as described in Sec.
361.738.
(c) In certain situations, the Governor does not determine the
infrastructure cost contributions for some one-stop partner programs
under the State funding mechanism.
(1) The Governor will not determine the contribution amounts for
infrastructure funds for Native American program grantees described in
20 CFR part 684. The appropriate portion of funds to be provided by
Native American program grantees to pay for one-stop infrastructure
must be determined as part of the development of the MOU described in
Sec. 361.500 and specified in that MOU.
(2) In States in which the policy-making authority is placed in an
entity or official that is independent of the authority of the Governor
with respect to the funds provided for adult education and literacy
activities authorized under title II of WIOA, postsecondary career and
technical education activities authorized under the Carl D. Perkins
Career and Technical Education Act of 2006, or VR services authorized
under title I of the Rehabilitation Act of 1973 (other than sec. 112 or
part C), as amended by WIOA title IV, the determination of the amount
each of the applicable partners must contribute to assist in paying the
infrastructure costs of one-stop centers must be made by the official
or chief officer of the entity with such authority, in consultation
with the Governor.
(d) Any duty, ability, choice, responsibility, or other action
otherwise related to the determination of infrastructure costs
contributions that is assigned to the Governor in Sec. Sec. 361.730
through 361.745 also applies to this decision-making process performed
by the official or chief officer described in paragraph (c)(2) of this
section.
Sec. 361.731 What are the steps to determine the amount to be paid
under the State one-stop infrastructure funding mechanism?
(a) To initiate the State funding mechanism, a Local WDB that has
not reached consensus on methods of sufficiently funding local
infrastructure through the local funding mechanism as provided in Sec.
361.725 must notify the Governor by the deadline established by the
Governor under Sec. 361.705(b)(3).
(b) Once a Local WDB has informed the Governor that no consensus
has been reached:
(1) The Local WDB must provide the Governor with local negotiation
materials in accordance with Sec. 361.735(a).
(2) The Governor must determine the one-stop center budget by
either:
(i) Accepting a budget previously agreed upon by partner programs
in the local negotiations, in accordance with Sec. 361.735(b)(1); or
(ii) Creating a budget for the one-stop center using the State WDB
formula (described in Sec. 361.745) in accordance with Sec.
361.735(b)(3).
(3) The Governor then must establish a cost allocation methodology
to determine the one-stop partner programs' proportionate shares of
infrastructure costs, in accordance with Sec. 361.736.
(4)(i) Using the methodology established under paragraph (b)(2)(ii)
of this section, and taking into consideration the factors concerning
individual partner programs listed in Sec. 361.737(b)(2), the Governor
must determine each partner's proportionate share of the infrastructure
costs, in accordance with Sec. 361.737(b)(1), and
(ii) In accordance with Sec. 361.730(c), in some instances, the
Governor does not determine a partner program's proportionate share of
infrastructure funding costs, in which case it must be determined by
the entities named in Sec. 361.730(c)(1) and (2).
(5) The Governor must then calculate the statewide caps on the
amounts that partner programs may be required to contribute toward
infrastructure funding, according to the steps found at Sec.
361.738(a)(1) through (4).
(6) The Governor must ensure that the aggregate total of the
infrastructure contributions according to proportionate share required
of all local partner programs in local areas under the State funding
mechanism do not exceed the cap for that particular program, in
accordance with Sec. 361.738(b)(1). If the total does not exceed the
cap, the Governor must direct each one-stop partner program to pay the
amount determined under Sec. 361.737(a) toward the infrastructure
funding costs of the one-stop center. If the total does exceed the cap,
then to determine the amount to direct each one-stop program to pay,
the Governor may:
(i) Ascertain, in accordance with Sec. 361.738(b)(2)(i), whether
the local partner or partners whose proportionate shares are calculated
above the individual program caps are willing to voluntarily contribute
above the capped amount to equal that program's proportionate share; or
(ii) Choose from the options provided in Sec. 361.738(b)(2)(ii),
including having the local area re-enter negotiations to reassess each
one-stop partner's proportionate share and make adjustments or identify
alternate sources of funding to make up the difference between the
capped amount and the proportionate share of infrastructure funding of
the one-stop partner.
(7) If none of the solutions given in paragraphs (b)(6)(i) and (ii)
of this section prove to be viable, the Governor must reassess the
proportionate shares of each one-stop partner so that the aggregate
amount attributable to the local partners for each program is less than
that program's cap amount. Upon such reassessment, the Governor must
direct each one-stop partner program to pay the reassessed amount
toward the infrastructure funding costs of the one-stop center.
Sec. 361.735 How are infrastructure cost budgets for the one-stop
centers in a local area determined in the State one-stop infrastructure
funding mechanism?
(a) Local WDBs must provide to the Governor appropriate and
relevant materials and documents used in the negotiations under the
local funding mechanism, including but not limited to: the local WIOA
plan, the cost allocation method or methods proposed by the partners to
be used in determining proportionate share, the proposed amounts or
budget to fund infrastructure, the amount of total partner funds
included, the type of funds or non-cash contributions, proposed one-
stop center budgets, and any agreed upon or proposed MOUs.
(b)(1) If a local area has reached agreement as to the
infrastructure budget for the one-stop centers in the
[[Page 56043]]
local area, it must provide this budget to the Governor as required by
paragraph (a) of this section. If, as a result of the agreed upon
infrastructure budget, only the individual programmatic contributions
to infrastructure funding based upon proportionate use of the one-stop
centers and relative benefit received are at issue, the Governor may
accept the budget, from which the Governor must calculate each
partner's contribution consistent with the cost allocation
methodologies contained in the Uniform Guidance found in 2 CFR part
200, as described in Sec. 361.736.
(2) The Governor may also take into consideration the extent to
which the partners in the local area have agreed in determining the
proportionate shares, including any agreements reached at the local
level by one or more partners, as well as any other element or product
of the negotiating process provided to the Governor as required by
paragraph (a) of this section.
(3) If a local area has not reached agreement as to the
infrastructure budget for the one-stop centers in the local area, or if
the Governor determines that the agreed upon budget does not adequately
meet the needs of the local area or does not reasonably work within the
confines of the local area's resources in accordance with the
Governor's one-stop budget guidance (which is required to be issued by
WIOA sec. 121(h)(1)(B) and under Sec. 361.705), then, in accordance
with Sec. 361.745, the Governor must use the formula developed by the
State WDB based on at least the factors required under Sec. 361.745,
and any associated weights to determine the local area budget.
Sec. 361.736 How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs'
proportionate shares of infrastructure costs under the State one-stop
infrastructure funding mechanism?
Once the appropriate budget is determined for a local area through
either method described in Sec. 361.735 (by acceptance of a budget
agreed upon in local negotiation or by the Governor applying the
formula detailed in Sec. 361.745), the Governor must determine the
appropriate cost allocation methodology to be applied to the one-stop
partners in such local area, consistent with the Federal cost
principles permitted under 2 CFR part 200, to fund the infrastructure
budget.
Sec. 361.737 How are one-stop partner programs' proportionate shares
of infrastructure costs determined under the State one-stop
infrastructure funding mechanism?
(a) The Governor must direct the one-stop partners in each local
area that have not reached agreement under the local funding mechanism
to pay what the Governor determines is each partner program's
proportionate share of infrastructure funds for that area, subject to
the application of the caps described in Sec. 361.738.
(b)(1) The Governor must use the cost allocation methodology--as
determined under Sec. 361.736--to determine each partner's
proportionate share of the infrastructure costs under the State funding
mechanism, subject to considering the factors described in paragraph
(b)(2) of this section.
(2) In determining each partner program's proportionate share of
infrastructure costs, the Governor must take into account the costs of
administration of the one-stop delivery system for purposes not related
to one-stop centers for each partner (such as costs associated with
maintaining the Local WDB or information technology systems), as well
as the statutory requirements for each partner program, the partner
program's ability to fulfill such requirements, and all other
applicable legal requirements. The Governor may also take into
consideration the extent to which the partners in the local area have
agreed in determining the proportionate shares, including any
agreements reached at the local level by one or more partners, as well
as any other materials or documents of the negotiating process, which
must be provided to the Governor by the Local WDB and described in
Sec. 361.735(a).
Sec. 361.738 How are statewide caps on the contributions for one-
stop infrastructure funding determined in the State one-stop
infrastructure funding mechanism?
(a) The Governor must calculate the statewide cap on the
contributions for one-stop infrastructure funding required to be
provided by each one-stop partner program for those local areas that
have not reached agreement. The cap is the amount determined under
paragraph (a)(4) of this section, which the Governor derives by:
(1) First, determining the amount resulting from applying the
percentage for the corresponding one-stop partner program provided in
paragraph (d) of this section to the amount of Federal funds provided
to carry out the one-stop partner program in the State for the
applicable fiscal year;
(2) Second, selecting a factor (or factors) that reasonably
indicates the use of one-stop centers in the State, applying such
factor(s) to all local areas in the State, and determining the
percentage of such factor(s) applicable to the local areas that reached
agreement under the local funding mechanism in the State;
(3) Third, determining the amount resulting from applying the
percentage determined in paragraph (a)(2) of this section to the amount
determined under paragraph (a)(1) of this section for the one-stop
partner program; and
(4) Fourth, determining the amount that results from subtracting
the amount determined under paragraph (a)(3) of this section from the
amount determined under paragraph (a)(1) of this section. The outcome
of this final calculation results in the partner program's cap.
(b)(1) The Governor must ensure that the funds required to be
contributed by each partner program in the local areas in the State
under the State funding mechanism, in aggregate, do not exceed the
statewide cap for each program as determined under paragraph (a) of
this section.
(2) If the contributions initially determined under Sec. 361.737
would exceed the applicable cap determined under paragraph (a) of this
section, the Governor may:
(i) Ascertain if the one-stop partner whose contribution would
otherwise exceed the cap determined under paragraph (a) of this section
will voluntarily contribute above the capped amount, so that the total
contributions equal that partner's proportionate share. The one-stop
partner's contribution must still be consistent with the program's
authorizing laws and regulations, the Federal cost principles in 2 CFR
part 200, and other applicable legal requirements; or
(ii) Direct or allow the Local WDB, chief elected officials, and
one-stop partners to: Re-enter negotiations, as necessary; reduce the
infrastructure costs to reflect the amount of funds that are available
for such costs without exceeding the cap levels; reassess the
proportionate share of each one-stop partner; or identify alternative
sources of financing for one-stop infrastructure funding, consistent
with the requirement that each one-stop partner pay an amount that is
consistent with the proportionate use of the one-stop center and
relative benefit received by the partner, the program's authorizing
laws and regulations, the Federal cost principles in 2 CFR part 200,
and other applicable legal requirements.
[[Page 56044]]
(3) If applicable under paragraph (b)(2)(ii) of this section, the
Local WDB, chief elected officials, and one-stop partners, after
renegotiation, may come to agreement, sign an MOU, and proceed under
the local funding mechanism. Such actions do not require the
redetermination of the applicable caps under paragraph (a) of this
section.
(4) If, after renegotiation, agreement among partners still cannot
be reached or alternate financing cannot be identified, the Governor
may adjust the specified allocation, in accordance with the amounts
available and the limitations described in paragraph (d) of this
section. In determining these adjustments, the Governor may take into
account information relating to the renegotiation as well as the
information described in Sec. 361.735(a).
(c) Limitations. Subject to paragraph (a) of this section and in
accordance with WIOA sec. 121(h)(2)(D), the following limitations apply
to the Governor's calculations of the amount that one-stop partners in
local areas that have not reached agreement under the local funding
mechanism may be required under Sec. 361.736 to contribute to one-stop
infrastructure funding:
(1) WIOA formula programs and Wagner-Peyser Act Employment Service.
The portion of funds required to be contributed under the WIOA youth,
adult, or dislocated worker programs, or under the Wagner-Peyser Act
(29 U.S.C. 49 et seq.) must not exceed three percent of the amount of
the program in the State for a program year.
(2) Other one-stop partners. For required one-stop partners other
than those specified in paragraphs (c)(1), (3), (5), and (6) of this
section, the portion of funds required to be contributed must not
exceed 1.5 percent of the amount of Federal funds provided to carry out
that program in the State for a fiscal year. For purposes of the Carl
D. Perkins Career and Technical Education Act of 2006, the cap on
contributions is determined based on the funds made available by the
State for postsecondary level programs and activities under sec. 132 of
the Carl D. Perkins Career and Technical Education Act and the amount
of funds used by the State under sec. 112(a)(3) of the Perkins Act
during the prior year to administer postsecondary level programs and
activities, as applicable.
(3) Vocational rehabilitation. (i) Within a State, for the entity
or entities administering the programs described in WIOA sec.
121(b)(1)(B)(iv) and Sec. 361.400, the allotment is based on the one
State Federal fiscal year allotment, even in instances where that
allotment is shared between two State agencies, and the cumulative
portion of funds required to be contributed must not exceed--
(A) 0.75 percent of the amount of Federal funds provided to carry
out such program in the State for Fiscal Year 2016 for purposes of
applicability of the State funding mechanism for PY 2017;
(B) 1.0 percent of the amount provided to carry out such program in
the State for Fiscal Year 2017 for purposes of applicability of the
State funding mechanism for PY 2018;
(C) 1.25 percent of the amount provided to carry out such program
in the State for Fiscal Year 2018 for purposes of applicability of the
State funding mechanism for PY 2019;
(D) 1.5 percent of the amount provided to carry out such program in
the State for Fiscal Year 2019 and following years for purposes of
applicability of the State funding mechanism for PY 2020 and subsequent
years.
(ii) The limitations set forth in paragraph (d)(3)(i) of this
section for any given fiscal year must be based on the final VR
allotment to the State in the applicable Federal fiscal year.
(4) Federal direct spending programs. For local areas that have not
reached a one-stop infrastructure funding agreement by consensus, an
entity administering a program funded with direct Federal spending, as
defined in sec. 250(c)(8) of the Balanced Budget and Emergency Deficit
Control Act of 1985, as in effect on February 15, 2014 (2 U.S.C.
900(c)(8)), must not be required to provide more for infrastructure
costs than the amount that the Governor determined (as described in
Sec. 361.737).
(5) TANF programs. For purposes of TANF, the cap on contributions
is determined based on the total Federal TANF funds expended by the
State for work, education, and training activities during the prior
Federal fiscal year (as reported to the Department of Health and Human
Services (HHS) on the quarterly TANF Financial Report form), plus any
additional amount of Federal TANF funds that the State TANF agency
reasonably determines was expended for administrative costs in
connection with these activities but that was separately reported to
HHS as an administrative cost. The State's contribution to the one-stop
infrastructure must not exceed 1.5 percent of these combined
expenditures.
(6) Community Services Block Grant (CSBG) programs. For purposes of
CSBG, the cap on contributions will be based on the total amount of
CSBG funds determined by the State to have been expended by local CSBG-
eligible entities for the provision of employment and training
activities during the prior Federal fiscal year for which information
is available (as reported to HHS on the CSBG Annual Report) and any
additional amount that the State CSBG agency reasonably determines was
expended for administrative purposes in connection with these
activities and was separately reported to HHS as an administrative
cost. The State's contribution must not exceed 1.5 percent of these
combined expenditures.
(d) For programs for which it is not otherwise feasible to
determine the amount of Federal funding used by the program until the
end of that program's operational year--because, for example, the
funding available for education, employment, and training activities is
included within funding for the program that may also be used for other
unrelated activities--the determination of the Federal funds provided
to carry out the program for a fiscal year under paragraph (a)(1) of
this section may be determined by:
(1) The percentage of Federal funds available to the one-stop
partner program that were used by the one-stop partner program for
education, employment, and training activities in the previous fiscal
year for which data are available; and
(2) Applying the percentage determined under paragraph (d)(1) of
this section to the total amount of Federal funds available to the one-
stop partner program for the fiscal year for which the determination
under paragraph (a)(1) of this section applies.
Sec. 361.740 What funds are used to pay for infrastructure costs in
the State one-stop infrastructure funding mechanism?
(a) In the State funding mechanism, infrastructure costs for WIOA
title I programs, including Native American Programs described in 20
CFR part 684, may be paid using program funds, administrative funds, or
both. Infrastructure costs for the Senior Community Service Employment
Program under title V of the Older Americans Act (42 U.S.C. 3056 et
seq.) may also be paid using program funds, administrative funds, or
both.
(b) In the State funding mechanism, infrastructure costs for other
required one-stop partner programs (listed in Sec. Sec. 361.400
through 361.410) are limited to the program's administrative funds, as
appropriate.
(c) In the State funding mechanism, infrastructure costs for the
adult education program authorized by title II of WIOA must be paid
from the funds that are available for local
[[Page 56045]]
administration and may be paid from funds made available by the State
or non-Federal resources that are cash, in-kind, or third-party
contributions.
(d) In the State funding mechanism, infrastructure costs for the
Carl D. Perkins Career and Technical Education Act of 2006 must be paid
from funds available for local administration of postsecondary level
programs and activities to eligible recipients or consortia of eligible
recipients and may be paid from funds made available by the State or
non-Federal resources that are cash, in-kind, or third-party
contributions.
Sec. 361.745 What factors does the State Workforce Development Board
use to develop the formula described in Workforce Innovation and
Opportunity Act, which is used by the Governor to determine the
appropriate one-stop infrastructure budget for each local area
operating under the State infrastructure funding mechanism, if no
reasonably implementable locally negotiated budget exists?
The State WDB must develop a formula, as described in WIOA sec.
121(h)(3)(B), to be used by the Governor under Sec. 361.735(b)(3) in
determining the appropriate budget for the infrastructure costs of one-
stop centers in the local areas that do not reach agreement under the
local funding mechanism and are, therefore, subject to the State
funding mechanism. The formula identifies the factors and corresponding
weights for each factor that the Governor must use, which must include:
The number of one-stop centers in a local area; the population served
by such centers; the services provided by such centers; and any factors
relating to the operations of such centers in the local area that the
State WDB determines are appropriate. As indicated in Sec.
361.735(b)(1), if the local area has agreed on such a budget, the
Governor may accept that budget in lieu of applying the formula
factors.
Sec. 361.750 When and how can a one-stop partner appeal a one-stop
infrastructure amount designated by the State under the State
infrastructure funding mechanism?
(a) The Governor must establish a process, described under sec.
121(h)(2)(E) of WIOA, for a one-stop partner administering a program
described in Sec. Sec. 361.400 through 361.410 to appeal the
Governor's determination regarding the one-stop partner's portion of
funds to be provided for one-stop infrastructure costs. This appeal
process must be described in the Unified State Plan.
(b) The appeal may be made on the ground that the Governor's
determination is inconsistent with proportionate share requirements in
Sec. 361.735(a), the cost contribution limitations in Sec.
361.735(b), the cost contribution caps in Sec. 361.738, consistent
with the process described in the State Plan.
(c) The process must ensure prompt resolution of the appeal in
order to ensure the funds are distributed in a timely manner,
consistent with the requirements of 20 CFR 683.630.
(d) The one-stop partner must submit an appeal in accordance with
State's deadlines for appeals specified in the guidance issued under
Sec. 361.705(b)(3), or if the State has not set a deadline, within 21
days from the Governor's determination.
Sec. 361.755 What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of
Understanding?
The MOU, fully described in Sec. 361.500, must contain the
following information whether the local areas use either the local one-
stop or the State funding method:
(a) The period of time in which this infrastructure funding
agreement is effective. This may be a different time period than the
duration of the MOU.
(b) Identification of an infrastructure and shared services budget
that will be periodically reconciled against actual costs incurred and
adjusted accordingly to ensure that it reflects a cost allocation
methodology that demonstrates how infrastructure costs are charged to
each partner in proportion to its use of the one-stop center and
relative benefit received, and that complies with 2 CFR part 200 (or
any corresponding similar regulation or ruling).
(c) Identification of all one-stop partners, chief elected
officials, and Local WDB participating in the infrastructure funding
arrangement.
(d) Steps the Local WDB, chief elected officials, and one-stop
partners used to reach consensus or an assurance that the local area
followed the guidance for the State funding process.
(e) Description of the process to be used among partners to resolve
issues during the MOU duration period when consensus cannot be reached.
(f) Description of the periodic modification and review process to
ensure equitable benefit among one-stop partners.
Sec. 361.760 How do one-stop partners jointly fund other shared costs
under the Memorandum of Understanding?
(a) In addition to jointly funding infrastructure costs, one-stop
partners listed in Sec. Sec. 361.400 through 361.410 must use a
portion of funds made available under their programs' authorizing
Federal law (or fairly evaluated in-kind contributions) to pay the
additional costs relating to the operation of the one-stop delivery
system. These other costs must include applicable career services and
may include other costs, including shared services.
(b) For the purposes of paragraph (a) of this section, shared
services' costs may include the costs of shared services that are
authorized for and may be commonly provided through the one-stop
partner programs to any individual, such as initial intake, assessment
of needs, appraisal of basic skills, identification of appropriate
services to meet such needs, referrals to other one-stop partners, and
business services. Shared operating costs may also include shared costs
of the Local WDB's functions.
(c) Contributions to the additional costs related to operation of
the one-stop delivery system may be cash, non-cash, or third-party in-
kind contributions, consistent with how these are described in Sec.
361.720(c).
(d) The shared costs described in paragraph (a) of this section
must be allocated according to the proportion of benefit received by
each of the partners, consistent with the Federal law authorizing the
partner's program, and consistent with all other applicable legal
requirements, including Federal cost principles in 2 CFR part 200 (or
any corresponding similar regulation or ruling) requiring that costs
are allowable, reasonable, necessary, and allocable.
(e) Any shared costs agreed upon by the one-stop partners must be
included in the MOU.
Sec. 361.800 How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic accessibility,
and continuous improvement?
(a) The State WDB, in consultation with chief elected officials and
Local WDBs, must establish objective criteria and procedures for Local
WDBs to use when certifying one-stop centers.
(1) The State WDB, in consultation with chief elected officials and
Local WDBs, must review and update the criteria every 2 years as part
of the review and modification of State Plans pursuant to Sec.
361.135.
(2) The criteria must be consistent with the Governor's and State
WDB's guidelines, guidance, and policies on infrastructure funding
decisions, described in Sec. 361.705. The criteria must evaluate the
one-stop centers and one-stop delivery system for effectiveness,
including customer satisfaction, physical and programmatic
[[Page 56046]]
accessibility, and continuous improvement.
(3) When the Local WDB is the one-stop operator as described in 20
CFR 679.410, the State WDB must certify the one-stop center.
(b) Evaluations of effectiveness must include how well the one-stop
center integrates available services for participants and businesses,
meets the workforce development needs of participants and the
employment needs of local employers, operates in a cost-efficient
manner, coordinates services among the one-stop partner programs, and
provides access to partner program services to the maximum extent
practicable, including providing services outside of regular business
hours where there is a workforce need, as identified by the Local WDB.
These evaluations must take into account feedback from one-stop
customers. They must also include evaluations of how well the one-stop
center ensures equal opportunity for individuals with disabilities to
participate in or benefit from one-stop center services. These
evaluations must include criteria evaluating how well the centers and
delivery systems take actions to comply with the disability-related
regulations implementing WIOA sec. 188, set forth at 29 CFR part 38.
Such actions include, but are not limited to:
(1) Providing reasonable accommodations for individuals with
disabilities;
(2) Making reasonable modifications to policies, practices, and
procedures where necessary to avoid discrimination against persons with
disabilities;
(3) Administering programs in the most integrated setting
appropriate;
(4) Communicating with persons with disabilities as effectively as
with others;
(5) Providing appropriate auxiliary aids and services, including
assistive technology devices and services, where necessary to afford
individuals with disabilities an equal opportunity to participate in,
and enjoy the benefits of, the program or activity; and
(6) Providing for the physical accessibility of the one-stop center
to individuals with disabilities.
(c) Evaluations of continuous improvement must include how well the
one-stop center supports the achievement of the negotiated local levels
of performance for the indicators of performance for the local area
described in sec. 116(b)(2) of WIOA and part 361. Other continuous
improvement factors may include a regular process for identifying and
responding to technical assistance needs, a regular system of
continuing professional staff development, and having systems in place
to capture and respond to specific customer feedback.
(d) Local WDBs must assess at least once every 3 years the
effectiveness, physical and programmatic accessibility, and continuous
improvement of one-stop centers and the one-stop delivery systems using
the criteria and procedures developed by the State WDB. The Local WDB
may establish additional criteria, or set higher standards for service
coordination, than those set by the State criteria. Local WDBs must
review and update the criteria every 2 years as part of the Local Plan
update process described in Sec. 361.580. Local WDBs must certify one-
stop centers in order to be eligible to use infrastructure funds in the
State funding mechanism described in Sec. 361.730.
(e) All one-stop centers must comply with applicable physical and
programmatic accessibility requirements, as set forth in 29 CFR part
38, the implementing regulations of WIOA sec. 188.
Sec. 361.900 What is the common identifier to be used by each one-
stop delivery system?
(a) The common one-stop delivery system identifier is ``American
Job Center.''
(b) As of November 17, 2016, each one-stop delivery system must
include the ``American Job Center'' identifier or ``a proud partner of
the American Job Center network'' on all primary electronic resources
used by the one-stop delivery system, and on any newly printed,
purchased, or created materials.
(c) As of July 1, 2017, each one-stop delivery system must include
the ``American Job Center'' identifier or ``a proud partner of the
American Job Center network'' on all products, programs, activities,
services, electronic resources, facilities, and related property and
new materials used in the one-stop delivery system.
(d) One-stop partners, States, or local areas may use additional
identifiers on their products, programs, activities, services,
facilities, and related property and materials.
PART 463--ADULT EDUCATION AND FAMILY LITERACY ACT
0
8. The authority citation for part 463 continues to read as follows:
Authority: 29 U.S.C. 102 and 103, unless otherwise noted.
0
9. Add subpart H to part 463, as added elsewhere in this issue of the
Federal Register, to read as follows:
Subpart H--Unified and Combined State Plans Under Title I of the
Workforce Innovation and Opportunity Act
Sec.
463.100 What are the purposes of the Unified and Combined State
Plans?
463.105 What are the general requirements for the Unified State
Plan?
463.110 What are the program-specific requirements in the Unified
State Plan for the adult, dislocated worker, and youth programs
authorized under Workforce Innovation and Opportunity Act title I?
463.115 What are the program-specific requirements in the Unified
State Plan for the Adult Education and Family Literacy Act program
authorized under Workforce Innovation and Opportunity Act title II?
463.120 What are the program-specific requirements in the Unified
State Plan for the Employment Service program authorized under the
Wagner-Peyser Act, as amended by Workforce Innovation and
Opportunity Act title III?
463.125 What are the program-specific requirements in the Unified
State Plan for the State Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as
amended by Workforce Innovation and Opportunity Act title IV?
463.130 What is the development, submission, and approval process of
the Unified State Plan?
463.135 What are the requirements for modification of the Unified
State Plan?
463.140 What are the general requirements for submitting a Combined
State Plan?
463.143 What is the development, submission, and approval process of
the Combined State Plan?
463.145 What are the requirements for modifications of the Combined
State Plan?
Authority: Secs. 102, 103, and 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart H--Unified and Combined State Plans Under Title I of the
Workforce Innovation and Opportunity Act
Sec. 463.100 What are the purposes of the Unified and Combined State
Plans?
(a) The Unified and Combined State Plans provide the framework for
States to outline a strategic vision of, and goals for, how their
workforce development systems will achieve the purposes of the
Workforce Innovation and Opportunity Act (WIOA).
(b) The Unified and Combined State Plans serve as 4-year action
plans to develop, align, and integrate the State's systems and provide
a platform to achieve the State's vision and strategic and operational
goals. A Unified or Combined State Plan is intended to:
(1) Align, in strategic coordination, the six core programs
required in the Unified State Plan pursuant to
[[Page 56047]]
Sec. 463.105(b), and additional Combined State Plan partner programs
that may be part of the Combined State Plan pursuant to Sec. 463.140;
(2) 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;
(3) Apply strategies for job-driven training consistently across
Federal programs; and
(4) Enable economic, education, and workforce partners to build a
skilled workforce through innovation in, and alignment of, employment,
training, and education programs.
Sec. 463.105 What are the general requirements for the Unified State
Plan?
(a) The Unified State Plan must be submitted in accordance with
Sec. 463.130 and WIOA sec. 102(c), as explained in joint planning
guidelines issued by the Secretaries of Labor and Education.
(b) The Governor of each State must submit, at a minimum, in
accordance with Sec. 463.130, a Unified State Plan to the Secretary of
Labor to be eligible to receive funding for the workforce development
system's six core programs:
(1) The adult, dislocated worker, and youth programs authorized
under subtitle B of title I of WIOA and administered by the U.S.
Department of Labor (DOL);
(2) The Adult Education and Family Literacy Act (AEFLA) program
authorized under title II of WIOA and administered by the U.S.
Department of Education (ED);
(3) The Employment Service program authorized under the Wagner-
Peyser Act of 1933, as amended by WIOA title III and administered by
DOL; and
(4) The Vocational Rehabilitation program authorized under title I
of the Rehabilitation Act of 1973, as amended by title IV of WIOA and
administered by ED.
(c) The Unified State Plan must outline the State's 4-year strategy
for the core programs described in paragraph (b) of this section and
meet the requirements of sec. 102(b) of WIOA, as explained in the joint
planning guidelines issued by the Secretaries of Labor and Education.
(d) The Unified State Plan must include strategic and operational
planning elements to facilitate the development of an aligned,
coordinated, and comprehensive workforce development system. The
Unified State Plan must include:
(1) Strategic planning elements that describe the State's strategic
vision and goals for preparing an educated and skilled workforce under
sec. 102(b)(1) of WIOA. The strategic planning elements must be
informed by and include an analysis of the State's economic conditions
and employer and workforce needs, including education and skill needs.
(2) Strategies for aligning the core programs and Combined State
Plan partner programs as described in Sec. 463.140(d), as well as
other resources available to the State, to achieve the strategic vision
and goals in accordance with sec. 102(b)(1)(E) of WIOA.
(3) Operational planning elements in accordance with sec. 102(b)(2)
of WIOA that support the strategies for aligning the core programs and
other resources available to the State to achieve the State's vision
and goals and a description of how the State Workforce Development
Board (WDB) will implement its functions, in accordance with sec.
101(d) of WIOA. Operational planning elements must include:
(i) A description of how the State strategy will be implemented by
each core program's lead State agency;
(ii) State operating systems, including data systems, and policies
that will support the implementation of the State's strategy identified
in paragraph (d)(1) of this section;
(iii) Program-specific requirements for the core programs required
by WIOA sec. 102(b)(2)(D);
(iv) Assurances required by sec. 102(b)(2)(E) of WIOA, including an
assurance that the lead State agencies responsible for the
administration of the core programs reviewed and commented on the
appropriate operational planning of the Unified State Plan and approved
the elements as serving the needs of the population served by such
programs, and other assurances deemed necessary by the Secretaries of
Labor and Education under sec. 102(b)(2)(E)(x) of WIOA;
(v) A description of joint planning and coordination across core
programs, required one-stop partner programs, and other programs and
activities in the Unified State Plan; and
(vi) Any additional operational planning requirements imposed by
the Secretary of Labor or the Secretary of Education under sec.
102(b)(2)(C)(viii) of WIOA.
(e) All of the requirements in this subpart that apply to States
also apply to outlying areas.
Sec. 463.110 What are the program-specific requirements in the
Unified State Plan for the adult, dislocated worker, and youth programs
authorized under Workforce Innovation and Opportunity Act title I?
The program-specific requirements for the adult, dislocated worker,
and youth programs that must be included in the Unified State Plan are
described in sec. 102(b)(2)(D) of WIOA. Additional planning
requirements may be explained in joint planning guidelines issued by
the Secretaries of Labor and Education.
Sec. 463.115 What are the program-specific requirements in the
Unified State Plan for the Adult Education and Family Literacy Act
program authorized under Workforce Innovation and Opportunity Act title
II?
The program-specific requirements for the AEFLA program in title II
that must be included in the Unified State Plan are described in secs.
102(b)(2)(C) and 102(b)(2)(D)(ii) of WIOA.
(a) With regard to the description required in sec.
102(b)(2)(D)(ii)(I) of WIOA pertaining to content standards, the
Unified State Plan must describe how the eligible agency will, by July
1, 2016, align its content standards for adult education with State-
adopted challenging academic content standards under the Elementary and
Secondary Education Act of 1965, as amended.
(b) With regard to the description required in sec.
102(b)(2)(C)(iv) of WIOA pertaining to the methods and factors the
State will use to distribute funds under the core programs, for title
II of WIOA, the Unified State Plan must include--
(1) How the eligible agency will award multi-year grants on a
competitive basis to eligible providers in the State; and
(2) How the eligible agency will provide direct and equitable
access to funds using the same grant or contract announcement and
application procedure.
Sec. 463.120 What are the program-specific requirements in the
Unified State Plan for the Employment Service program authorized under
the Wagner-Peyser Act, as amended by Workforce Innovation and
Opportunity Act title III?
The Employment Service program authorized under the Wagner-Peyser
Act of 1933, as amended by WIOA title III, is subject to requirements
in sec. 102(b) of WIOA, including any additional requirements imposed
by the Secretary of Labor under secs. 102(b)(2)(C)(viii) and
102(b)(2)(D)(iv) of WIOA, as explained in joint planning guidelines
issued by the Secretaries of Labor and Education.
[[Page 56048]]
Sec. 463.125 What are the program-specific requirements in the
Unified State Plan for the State Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by Workforce Innovation and Opportunity Act title IV?
The program specific-requirements for the vocational rehabilitation
services portion of the Unified or Combined State Plan are set forth in
sec. 101(a) of the Rehabilitation Act of 1973, as amended. All
submission requirements for the vocational rehabilitation services
portion of the Unified or Combined State Plan are in addition to the
jointly developed strategic and operational content requirements
prescribed by sec. 102(b) of WIOA.
Sec. 463.130 What is the development, submission, and approval
process of the Unified State Plan?
(a) The Unified State Plan described in Sec. 463.105 must be
submitted in accordance with WIOA sec. 102(c), as explained in joint
planning guidelines issued jointly by the Secretaries of Labor and
Education.
(b) A State must submit its Unified State Plan to the Secretary of
Labor pursuant to a process identified by the Secretary.
(1) The initial Unified State Plan must be submitted no later than
120 days prior to the commencement of the second full program year of
WIOA.
(2) Subsequent Unified State Plans must be submitted no later than
120 days prior to the end of the 4-year period covered by a preceding
Unified State Plan.
(3) For purposes of paragraph (b) of this section, ``program year''
means July 1 through June 30 of any year.
(c) The Unified State Plan must be developed with the assistance of
the State WDB, as required by 20 CFR 679.130(a) and WIOA sec. 101(d),
and must be developed in coordination with administrators with optimum
policy-making authority for the core programs and required one-stop
partners.
(d) The State must provide an opportunity for public comment on and
input into the development of the Unified State Plan prior to its
submission.
(1) The opportunity for public comment must include an opportunity
for comment by representatives of Local WDBs and chief elected
officials, businesses, representatives of labor organizations,
community-based organizations, adult education providers, institutions
of higher education, other stakeholders with an interest in the
services provided by the six core programs, and the general public,
including individuals with disabilities.
(2) Consistent with the ``Sunshine Provision'' of WIOA in sec.
101(g), the State WDB must make information regarding the Unified State
Plan available to the public through electronic means and regularly
occurring open meetings in accordance with State law. The Unified State
Plan must describe the State's process and timeline for ensuring a
meaningful opportunity for public comment.
(e) Upon receipt of the Unified State Plan from the State, the
Secretary of Labor will ensure that the entire Unified State Plan is
submitted to the Secretary of Education pursuant to a process developed
by the Secretaries.
(f) The Unified State Plan is subject to the approval of both the
Secretary of Labor and the Secretary of Education.
(g) Before the Secretaries of Labor and Education approve the
Unified State Plan, the vocational rehabilitation services portion of
the Unified State Plan described in WIOA sec. 102(b)(2)(D)(iii) must be
approved by the Commissioner of the Rehabilitation Services
Administration.
(h) The Secretaries of Labor and Education will review and approve
the Unified State Plan within 90 days of receipt by the Secretary of
Labor, unless the Secretary of Labor or the Secretary of Education
determines in writing within that period that:
(1) The plan is inconsistent with a core program's requirements;
(2) The Unified State Plan is inconsistent with any requirement of
sec. 102 of WIOA; or
(3) The plan is incomplete or otherwise insufficient to determine
whether it is consistent with a core program's requirements or other
requirements of WIOA.
(i) If neither the Secretary of Labor nor the Secretary of
Education makes the written determination described in paragraph (h) of
this section within 90 days of the receipt by the Secretaries, the
Unified State Plan will be considered approved.
Sec. 463.135 What are the requirements for modification of the
Unified State Plan?
(a) In addition to the required modification review set forth in
paragraph (b) of this section, a Governor may submit a modification of
its Unified State Plan at any time during the 4-year period of the
plan.
(b) Modifications are required, at a minimum:
(1) At the end of the first 2-year period of any 4-year State Plan,
wherein the State WDB must review the Unified State Plan, and the
Governor must submit modifications to the plan to reflect changes in
labor market and economic conditions or other factors affecting the
implementation of the Unified State Plan;
(2) When changes in Federal or State law or policy substantially
affect the strategies, goals, and priorities upon which the Unified
State Plan is based;
(3) When there are changes in the statewide vision, strategies,
policies, State negotiated levels of performance as described in Sec.
463.170(b), the methodology used to determine local allocation of
funds, reorganizations that change the working relationship with system
employees, changes in organizational responsibilities, changes to the
membership structure of the State WDB or alternative entity, and
similar substantial changes to the State's workforce development
system.
(c) Modifications to the Unified State Plan are subject to the same
public review and comment requirements in Sec. 463.130(d) that apply
to the development of the original Unified State Plan.
(d) Unified State Plan modifications must be approved by the
Secretaries of Labor and Education, based on the approval standards
applicable to the original Unified State Plan under Sec. 463.130. This
approval must come after the approval of the Commissioner of the
Rehabilitation Services Administration for modification of any portion
of the plan described in sec. 102(b)(2)(D)(iii) of WIOA.
Sec. 463.140 What are the general requirements for submitting a
Combined State Plan?
(a) A State may choose to develop and submit a 4-year Combined
State Plan in lieu of the Unified State Plan described in Sec. Sec.
463.105 through 463.125.
(b) A State that submits a Combined State Plan covering an activity
or program described in paragraph (d) of this section that is, in
accordance with WIOA sec. 103(c), approved or deemed complete under the
law relating to the program will not be required to submit any other
plan or application in order to receive Federal funds to carry out the
core programs or the program or activities described under paragraph
(d) of this section that are covered by the Combined State Plan.
(c) If a State develops a Combined State Plan, it must be submitted
in accordance with the process described in Sec. 463.143.
(d) If a State chooses to submit a Combined State Plan, the plan
must include the six core programs and one or more of the Combined
State Plan partner programs and activities described in sec. 103(a)(2)
of WIOA. The Combined State Plan partner programs
[[Page 56049]]
and activities that may be included in the Combined State Plan are:
(1) Career and technical education programs authorized under the
Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C.
2301 et seq.);
(2) Temporary Assistance for Needy Families or TANF, authorized
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.);
(3) Employment and training programs authorized under sec. 6(d)(4)
of the Food and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
(4) Work programs authorized under sec. 6(o) of the Food and
Nutrition Act of 2008 (7 U.S.C. 2015(o));
(5) Trade adjustment assistance activities under chapter 2 of title
II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
(6) Services for veterans authorized under chapter 41 of title 38
United States Code;
(7) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law);
(8) Senior Community Service Employment Programs under title V of
the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
(9) Employment and training activities carried out by the
Department of Housing and Urban Development (HUD);
(10) Employment and training activities carried out under the
Community Services Block Grant Act (42 U.S.C. 9901 et seq.); and
(11) Reintegration of offenders programs authorized under sec. 212
of the Second Chance Act of 2007 (42 U.S.C. 17532).
(e) A Combined State Plan must contain:
(1) For the core programs, the information required by sec. 102(b)
of WIOA and Sec. Sec. 463.105 through 463.125, as explained in the
joint planning guidelines issued by the Secretaries;
(2) For the Combined State Plan partner programs and activities,
except as described in paragraph (h) of this section, the information
required by the law authorizing and governing that program to be
submitted to the appropriate Secretary, any other applicable legal
requirements, and any common planning requirements described in sec.
102(b) of WIOA, as explained in the joint planning guidelines issued by
the Secretaries;
(3) A description of the methods used for joint planning and
coordination among the core programs, and with the required one-stop
partner programs and other programs and activities included in the
State Plan; and
(4) An assurance that all of the entities responsible for planning
or administering the programs described in the Combined State Plan have
had a meaningful opportunity to review and comment on all portions of
the plan.
(f) Each Combined State Plan partner program included in the
Combined State Plan remains subject to the applicable program-specific
requirements of the Federal law and regulations, and any other
applicable legal or program requirements, governing the implementation
and operation of that program.
(g) For purposes of Sec. Sec. 463.140 through 463.145 the term
``appropriate Secretary'' means the head of the Federal agency who
exercises either plan or application approval authority for the program
or activity under the Federal law authorizing the program or activity
or, if there are no planning or application requirements, who exercises
administrative authority over the program or activity under that
Federal law.
(h) States that include employment and training activities carried
out under the Community Services Block Grant (CSBG) Act (42 U.S.C. 9901
et seq.) under a Combined State Plan would submit all other required
elements of a complete CSBG State Plan directly to the Federal agency
that administers the program, according to the requirements of Federal
law and regulations.
(i) States that submit employment and training activities carried
out by HUD under a Combined State Plan would submit any other required
planning documents for HUD programs directly to HUD, according to the
requirements of Federal law and regulations.
Sec. 463.143 What is the development, submission, and approval
process of the Combined State Plan?
(a) For purposes of Sec. 463.140(a), if a State chooses to develop
a Combined State Plan it must submit the Combined State Plan in
accordance with the requirements described below and sec. 103 of WIOA,
as explained in the joint planning guidelines issued by the Secretaries
of Labor and Education.
(b) The Combined State Plan must be developed with the assistance
of the State WDB, as required by 20 CFR 679.130(a) and WIOA sec.
101(d), and must be developed in coordination with administrators with
optimum policy-making authority for the core programs and required one-
stop partners.
(c) The State must provide an opportunity for public comment on and
input into the development of the Combined State Plan prior to its
submission.
(1) The opportunity for public comment for the portions of the
Combined State Plan that cover the core programs must include an
opportunity for comment by representatives of Local WDBs and chief
elected officials, businesses, representatives of labor organizations,
community-based organizations, adult education providers, institutions
of higher education, other stakeholders with an interest in the
services provided by the six core programs, and the general public,
including individuals with disabilities.
(2) Consistent with the ``Sunshine Provision'' of WIOA in sec.
101(g), the State WDB must make information regarding the Combined
State Plan available to the public through electronic means and
regularly occurring open meetings in accordance with State law. The
Combined State Plan must describe the State's process and timeline for
ensuring a meaningful opportunity for public comment on the portions of
the plan covering core programs.
(3) The portions of the plan that cover the Combined State Plan
partner programs are subject to any public comment requirements
applicable to those programs.
(d) The State must submit to the Secretaries of Labor and Education
and to the Secretary of the agency with responsibility for approving
the program's plan or deeming it complete under the law governing the
program, as part of its Combined State Plan, any plan, application,
form, or any other similar document that is required as a condition for
the approval of Federal funding under the applicable program or
activity. Such submission must occur in accordance with a process
identified by the relevant Secretaries in paragraph (a) of this
section.
(e) The Combined State Plan will be approved or disapproved in
accordance with the requirements of sec. 103(c) of WIOA.
(1) The portion of the Combined State Plan covering programs
administered by the Departments of Labor and Education must be
reviewed, and approved or disapproved, by the appropriate Secretary
within 90 days beginning on the day the Combined State Plan is received
by the appropriate Secretary from the State, consistent with paragraph
(f) of this section. Before the Secretaries of Labor and Education
approve the Combined State Plan, the vocational rehabilitation services
portion of the Combined State Plan described in WIOA sec.
102(b)(2)(D)(iii) must be approved by the Commissioner
[[Page 56050]]
of the Rehabilitation Services Administration.
(2) If an appropriate Secretary other than the Secretary of Labor
or the Secretary of Education has authority to approve or deem complete
a portion of the Combined State Plan for a program or activity
described in Sec. 463.140(d), that portion of the Combined State Plan
must be reviewed, and approved, disapproved, or deemed complete, by the
appropriate Secretary within 120 days beginning on the day the Combined
State Plan is received by the appropriate Secretary from the State
consistent with paragraph (f) of this section.
(f) The appropriate Secretaries will review and approve or deem
complete the Combined State Plan within 90 or 120 days, as appropriate,
as described in paragraph (e) of this section, unless the Secretaries
of Labor and Education or appropriate Secretary have determined in
writing within that period that:
(1) The Combined State Plan is inconsistent with the requirements
of the six core programs or the Federal laws authorizing or applicable
to the program or activity involved, including the criteria for
approval of a plan or application, or deeming the plan complete, if
any, under such law;
(2) The portion of the Combined State Plan describing the six core
programs or the program or activity described in paragraph (a) of this
section involved does not satisfy the criteria as provided in sec. 102
or 103 of WIOA, as applicable; or
(3) The Combined State Plan is incomplete, or otherwise
insufficient to determine whether it is consistent with a core
program's requirements, other requirements of WIOA, or the Federal laws
authorizing, or applicable to, the program or activity described in
Sec. 463.140(d), including the criteria for approval of a plan or
application, if any, under such law.
(g) If the Secretary of Labor, the Secretary of Education, or the
appropriate Secretary does not make the written determination described
in paragraph (f) of this section within the relevant period of time
after submission of the Combined State Plan, that portion of the
Combined State Plan over which the Secretary has jurisdiction will be
considered approved.
(h) The Secretaries of Labor and Education's written determination
of approval or disapproval regarding the portion of the plan for the
six core programs may be separate from the written determination of
approval, disapproval, or completeness of the program-specific
requirements of Combined State Plan partner programs and activities
described in Sec. 463.140(d) and included in the Combined State Plan.
(i) Special rule. In paragraphs (f)(1) and (3) of this section, the
term ``criteria for approval of a plan or application,'' with respect
to a State or a core program or a program under the Carl D. Perkins
Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.),
includes a requirement for agreement between the State and the
appropriate Secretaries regarding State performance measures or State
performance accountability measures, as the case may be, including
levels of performance.
Sec. 463.145 What are the requirements for modifications of the
Combined State Plan?
(a) For the core program portions of the Combined State Plan,
modifications are required, at a minimum:
(1) By the end of the first 2-year period of any 4-year State Plan.
The State WDB must review the Combined State Plan, and the Governor
must submit modifications to the Combined State Plan to reflect changes
in labor market and economic conditions or other factors affecting the
implementation of the Combined State Plan;
(2) When changes in Federal or State law or policy substantially
affect the strategies, goals, and priorities upon which the Combined
State Plan is based;
(3) When there are changes in the statewide vision, strategies,
policies, State negotiated levels of performance as described in Sec.
463.170(b), the methodology used to determine local allocation of
funds, reorganizations that change the working relationship with system
employees, changes in organizational responsibilities, changes to the
membership structure of the State WDB or alternative entity, and
similar substantial changes to the State's workforce development
system.
(b) In addition to the required modification review described in
paragraph (a)(1) of this section, a State may submit a modification of
its Combined State Plan at any time during the 4-year period of the
plan.
(c) For any Combined State Plan partner programs and activities
described in Sec. 463.140(d) that are included in a State's Combined
State Plan, the State--
(1) May decide if the modification requirements under WIOA sec.
102(c)(3) that apply to the core programs will apply to the Combined
State Plan partner programs, as long as consistent with any other
modification requirements for the programs, or may comply with the
requirements applicable to only the particular program or activity; and
(2) Must submit, in accordance with the procedure described in
Sec. 463.143, any modification, amendment, or revision required by the
Federal law authorizing, or applicable to, the Combined State Plan
partner program or activity.
(i) If the underlying programmatic requirements change (e.g., the
authorizing statute is reauthorized) for Federal laws authorizing such
programs, a State must either modify its Combined State Plan or submit
a separate plan to the appropriate Federal agency in accordance with
the new Federal law authorizing the Combined State Plan partner program
or activity and other legal requirements applicable to such program or
activity.
(ii) If the modification, amendment, or revision affects the
administration of only that particular Combined State Plan partner
program and has no impact on the Combined State Plan as a whole or the
integration and administration of the core and other Combined State
Plan partner programs at the State level, modifications must be
submitted for approval to only the appropriate Secretary, based on the
approval standards applicable to the original Combined State Plan under
Sec. 463.143, if the State elects, or in accordance with the
procedures and requirements applicable to the particular Combined State
Plan partner program.
(3) A State also may amend its Combined State Plan to add a
Combined State Plan partner program or activity described in Sec.
463.140(d).
(d) Modifications of the Combined State Plan are subject to the
same public review and comment requirements that apply to the
development of the original Combined State Plan as described in Sec.
463.143(c) except that, if the modification, amendment, or revision
affects the administration of a particular Combined State Plan partner
program and has no impact on the Combined State Plan as a whole or the
integration and administration of the core and other Combined State
Plan partner programs at the State level, a State may comply instead
with the procedures and requirements applicable to the particular
Combined State Plan partner program.
(e) Modifications for the core program portions of the Combined
State Plan must be approved by the Secretaries of Labor and Education,
based on the approval standards applicable to the original Combined
State Plan under Sec. 463.143. This approval must come after the
approval of the Commissioner of the Rehabilitation Services
[[Page 56051]]
Administration for modification of any portion of the Combined State
Plan described in sec. 102(b)(2)(D)(iii) of WIOA.
0
10. Add subpart I to part 463, as added elsewhere in this issue of the
Federal Register, to read as follows:
Subpart I--Performance Accountability Under Title I of the Workforce
Innovation and Opportunity Act
Sec.
463.150 What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?
463.155 What are the primary indicators of performance under the
Workforce Innovation and Opportunity Act?
463.160 What information is required for State performance reports?
463.165 May a State establish additional indicators of performance?
463.170 How are State levels of performance for primary indicators
established?
463.175 What responsibility do States have to use quarterly wage
record information for performance accountability?
463.180 When is a State subject to a financial sanction under the
Workforce Innovation and Opportunity Act?
463.185 When are sanctions applied for a State's failure to submit
an annual performance report?
463.190 When are sanctions applied for failure to achieve adjusted
levels of performance?
463.195 What should States expect when a sanction is applied to the
Governor's Reserve Allotment?
463.200 What other administrative actions will be applied to States'
performance requirements?
463.205 What performance indicators apply to local areas and what
information must be included in local area performance reports?
463.210 How are local performance levels established?
463.215 Under what circumstances are local areas eligible for State
Incentive Grants?
463.220 Under what circumstances may a corrective action or sanction
be applied to local areas for poor performance?
463.225 Under what circumstances may local areas appeal a
reorganization plan?
463.230 What information is required for the eligible training
provider performance reports?
463.235 What are the reporting requirements for individual records
for core Workforce Innovation and Opportunity Act (WIOA) title I
programs; the Wagner-Peyser Act Employment Service program, as
amended by WIOA title III; and the Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV?
463.240 What are the requirements for data validation of State
annual performance reports?
Authority: Secs. 116, 189, and 503 of Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart I--Performance Accountability Under Title I of the
Workforce Innovation and Opportunity Act
Sec. 463.150 What definitions apply to Workforce Innovation and
Opportunity Act performance accountability provisions?
(a) Participant. A reportable individual who has received services
other than the services described in paragraph (a)(3) of this section,
after satisfying all applicable programmatic requirements for the
provision of services, such as eligibility determination.
(1) For the Vocational Rehabilitation (VR) program, a participant
is a reportable individual who has an approved and signed
Individualized Plan for Employment (IPE) and has begun to receive
services.
(2) For the Workforce Innovation and Opportunity Act (WIOA) title I
youth program, a participant is a reportable individual who has
satisfied all applicable program requirements for the provision of
services, including eligibility determination, an objective assessment,
and development of an individual service strategy, and received 1 of
the 14 WIOA youth program elements identified in sec. 129(c)(2) of
WIOA.
(3) The following individuals are not participants:
(i) Individuals in an Adult Education and Family Literacy Act
(AEFLA) program who have not completed at least 12 contact hours;
(ii) Individuals who only use the self-service system.
(A) Subject to paragraph (a)(3)(ii)(B) of this section, self-
service occurs when individuals independently access any workforce
development system program's information and activities in either a
physical location, such as a one-stop center resource room or partner
agency, or remotely via the use of electronic technologies.
(B) Self-service does not uniformly apply to all virtually accessed
services. For example, virtually accessed services that provide a level
of support beyond independent job or information seeking on the part of
an individual would not qualify as self-service.
(iii) Individuals who receive information-only services or
activities, which provide readily available information that does not
require an assessment by a staff member of the individual's skills,
education, or career objectives.
(4) Programs must include participants in their performance
calculations.
(b) Reportable individual. An individual who has taken action that
demonstrates an intent to use program services and who meets specific
reporting criteria of the program, 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.
(c) Exit. As defined for the purpose of performance calculations,
exit is the point after which a participant who has received services
through any program meets the following criteria:
(1) For the adult, dislocated worker, and youth programs authorized
under WIOA title I, the AEFLA program authorized under WIOA title II,
and the Employment Service program authorized under the Wagner-Peyser
Act, as amended by WIOA title III, exit date is the last date of
service.
(i) The last day of service cannot be determined until at least 90
days have elapsed since the participant last received services;
services do not include self-service, information-only services or
activities, or follow-up services. This also requires that there are no
plans to provide the participant with future services.
(ii) [Reserved].
(2)(i) For the VR program authorized under title I of the
Rehabilitation Act of 1973, as amended by WIOA title IV (VR program):
(A) The participant's record of service is closed in accordance
with Sec. 463.56 because the participant has achieved an employment
outcome; or
(B) The participant's service record is closed because the
individual has not achieved an employment outcome or the individual has
been determined ineligible after receiving services in accordance with
Sec. 463.43.
(ii) Notwithstanding any other provision of this section, a
participant will not be considered as meeting the definition of exit
from the VR program if the participant's service record is closed
because the participant has achieved a supported employment outcome in
an integrated setting but not in competitive integrated employment.
(3)(i) A State may implement a common exit policy for all or some
of the core programs in WIOA title I and the Employment Service program
authorized under the Wagner-Peyser Act, as amended by WIOA title III,
and any additional required partner program(s) listed in sec.
121(b)(1)(B) of WIOA that is under the authority of the U.S. Department
of Labor (DOL).
(ii) If a State chooses to implement a common exit policy, the
policy must require that a participant is exited only
[[Page 56052]]
when all of the criteria in paragraph (c)(1) of this section are met
for the WIOA title I core programs and the Employment Service program
authorized under the Wagner-Peyser Act, as amended by WIOA title III,
as well as any additional required partner programs listed in sec.
121(b)(1)(B) of WIOA under the authority of DOL to which the common
exit policy applies in which the participant is enrolled.
(d) State. For purposes of this part, other than in regard to
sanctions or the statistical adjustment model, all references to
``State'' include the outlying areas of American Samoa, Guam,
Commonwealth of the Northern Mariana Islands, the U.S. Virgin Islands,
and, as applicable, the Republic of Palau.
Sec. 463.155 What are the primary indicators of performance under the
Workforce Innovation and Opportunity Act?
(a) All States submitting either a Unified or Combined State Plan
under Sec. Sec. 463.130 and 463.143, must propose expected levels of
performance for each of the primary indicators of performance for the
adult, dislocated worker, and youth programs authorized under WIOA
title I; the AEFLA program authorized under WIOA title II; the
Employment Service program authorized under the Wagner-Peyser Act, as
amended by WIOA title III; and the VR program authorized under title I
of the Rehabilitation Act of 1973, as amended by WIOA title IV.
(1) Primary indicators of performance. The six primary indicators
of performance for the adult and dislocated worker programs, the AEFLA
program, and the VR program are:
(i) The percentage of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(ii) The percentage of participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(iii) Median earnings of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(iv)(A) The percentage of those participants enrolled in an
education or training program (excluding those in on-the-job training
[OJT] and customized training) who attained 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.
(B) A participant who has attained a secondary school diploma or
its recognized equivalent is included in the percentage of participants
who have attained a secondary school diploma or recognized equivalent
only if the participant also is employed or is enrolled in an education
or training program leading to a recognized postsecondary credential
within 1 year after exit from the program;
(v) The percentage of 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, defined as documented academic, technical, occupational,
or other forms of progress, towards such a credential or employment.
Depending upon the type of education or training program, documented
progress is defined as one of the following:
(A) Documented achievement of at least one educational functioning
level of a participant who is receiving instruction below the
postsecondary education level;
(B) Documented attainment of a secondary school diploma or its
recognized equivalent;
(C) Secondary or postsecondary transcript or report card for a
sufficient number of credit hours that shows a participant is meeting
the State unit's academic standards;
(D) Satisfactory or better progress report, towards established
milestones, such as completion of OJT or completion of 1 year of an
apprenticeship program or similar milestones, from an employer or
training provider who is providing training; or
(E) Successful passage of an exam that is required for a particular
occupation or progress in attaining technical or occupational skills as
evidenced by trade-related benchmarks such as knowledge-based exams.
(vi) Effectiveness in serving employers.
(2) Participants. For purposes of the primary indicators of
performance in paragraph (a)(1) of this section, ``participant'' will
have the meaning given to it in Sec. 463.150(a), except that--
(i) For purposes of determining program performance levels under
indicators set forth in paragraphs (a)(1)(i) through (iv) and (vi) of
this section, a ``participant'' does not include a participant who
received services under sec. 225 of WIOA and exits such program while
still in a correctional institution as defined in sec. 225(e)(1) of
WIOA; and
(ii) The Secretaries of Labor and Education may, as needed and
consistent with the Paperwork Reduction Act (PRA), make further
determinations as to the participants to be included in calculating
program performance levels for purposes of any of the performance
indicators set forth in paragraph (a)(1) of this section.
(b) The primary indicators in paragraphs (a)(1)(i) through (iii)
and (vi) of this section apply to the Employment Service program
authorized under the Wagner-Peyser Act, as amended by WIOA title III.
(c) For the youth program authorized under WIOA title I, the
primary indicators are:
(1) Percentage of participants who are in education or training
activities, or in unsubsidized employment, during the second quarter
after exit from the program;
(2) Percentage of participants in education or training activities,
or in unsubsidized employment, during the fourth quarter after exit
from the program;
(3) Median earnings of participants who are in unsubsidized
employment during the second quarter after exit from the program;
(4) The percentage of those participants enrolled in an education
or training program (excluding those in OJT and customized training)
who obtained 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, except that a participant
who has attained a secondary school diploma or its recognized
equivalent is included as having attained a secondary school diploma or
recognized equivalent only if the participant is also employed or is
enrolled in an education or training program leading to a recognized
postsecondary credential within 1 year from program exit;
(5) The percentage of 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, defined as documented academic, technical, occupational or
other forms of progress towards such a credential or employment.
Depending upon the type of education or training program, documented
progress is defined as one of the following:
(i) Documented achievement of at least one educational functioning
level of a participant who is receiving instruction below the
postsecondary education level;
(ii) Documented attainment of a secondary school diploma or its
recognized equivalent;
[[Page 56053]]
(iii) Secondary or postsecondary transcript or report card for a
sufficient number of credit hours that shows a participant is achieving
the State unit's academic standards;
(iv) Satisfactory or better progress report, towards established
milestones, such as completion of OJT or completion of 1 year of an
apprenticeship program or similar milestones, from an employer or
training provider who is providing training; or
(v) Successful passage of an exam that is required for a particular
occupation or progress in attaining technical or occupational skills as
evidenced by trade-related benchmarks such as knowledge-based exams.
(6) Effectiveness in serving employers.
Sec. 463.160 What information is required for State performance
reports?
(a) The State performance report required by sec. 116(d)(2) of WIOA
must be submitted annually using a template the Departments of Labor
and Education will disseminate, and must provide, at a minimum,
information on the actual performance levels achieved consistent with
Sec. 463.175 with respect to:
(1) The total number of participants served, and the total number
of participants who exited each of the core programs identified in sec.
116(b)(3)(A)(ii) of WIOA, including disaggregated counts of those who
participated in and exited a core program, by:
(i) Individuals with barriers to employment as defined in WIOA sec.
3(24); and
(ii) Co-enrollment in any of the programs in WIOA sec.
116(b)(3)(A)(ii).
(2) Information on the performance levels achieved for the primary
indicators of performance for all of the core programs identified in
Sec. 463.155 including disaggregated levels for:
(i) Individuals with barriers to employment as defined in WIOA sec.
3(24);
(ii) Age;
(iii) Sex; and
(iv) Race and ethnicity.
(3) The total number of participants who received career services
and the total number of participants who exited from career services
for the most recent program year and the 3 preceding program years, and
the total number of participants who received training services and the
total number of participants who exited from training services for the
most recent program year and the 3 preceding program years, as
applicable to the program;
(4) Information on the performance levels achieved for the primary
indicators of performance consistent with Sec. 463.155 for career
services and training services for the most recent program year and the
3 preceding program years, as applicable to the program;
(5) The percentage of participants in a program who attained
unsubsidized employment related to the training received (often
referred to as training-related employment) through WIOA title I,
subtitle B programs;
(6) The amount of funds spent on career services and the amount of
funds spent on training services for the most recent program year and
the 3 preceding program years, as applicable to the program;
(7) The average cost per participant for those participants who
received career services and training services, respectively, during
the most recent program year and the 3 preceding program years, as
applicable to the program;
(8) The percentage of a State's annual allotment under WIOA sec.
132(b) that the State spent on administrative costs; and
(9) Information that facilitates comparisons of programs with
programs in other States.
(10) For WIOA title I programs, a State performance narrative,
which, for States in which a local area is implementing a pay-for-
performance contracting strategy, at a minimum provides:
(i) A description of pay-for-performance contract strategies being
used for programs;
(ii) The performance of service providers entering into contracts
for such strategies, measured against the levels of performance
specified in the contracts for such strategies; and
(iii) An evaluation of the design of the programs and performance
strategies and, when available, the satisfaction of employers and
participants who received services under such strategies.
(b) The disaggregation of data for the State performance report
must be done in compliance with WIOA sec. 116(d)(6)(C).
(c) The State performance reports must include a mechanism of
electronic access to the State's local area and eligible training
provider (ETP) performance reports.
(d) States must comply with these requirements from sec. 116 of
WIOA as explained in joint guidance issued by the Departments of Labor
and Education, which may include information on reportable individuals
as determined by the Secretaries of Labor and Education.
Sec. 463.165 May a State establish additional indicators of
performance?
States may identify additional indicators of performance for the
six core programs. If a State does so, these indicators must be
included in the Unified or Combined State Plan.
Sec. 463.170 How are State levels of performance for primary
indicators established?
(a) A State must submit in the State Plan expected levels of
performance on the primary indicators of performance for each core
program as required by sec. 116(b)(3)(A)(iii) of WIOA as explained in
joint guidance issued by the Secretaries of Labor and Education.
(1) The initial State Plan submitted under WIOA must contain
expected levels of performance for the first 2 years of the State Plan.
(2) States must submit expected levels of performance for the third
and fourth year of the State Plan before the third program year
consistent with Sec. Sec. 463.135 and 463.145.
(b) States must reach agreement on levels of performance with the
Secretaries of Labor and Education for each indicator for each core
program. These are the negotiated levels of performance. The negotiated
levels must be based on the following factors:
(1) How the negotiated levels of performance compare with State
levels of performance established for other States;
(2) The application of an objective statistical model established
by the Secretaries of Labor and Education, subject to paragraph (d) of
this section;
(3) How the negotiated levels promote continuous improvement in
performance based on the primary indicators and ensure optimal return
on investment of Federal funds; and
(4) The extent to which the negotiated levels assist the State in
meeting the performance goals established by the Secretaries of Labor
and Education for the core programs in accordance with the Government
Performance and Results Act of 1993, as amended.
(c) An objective statistical adjustment model will be developed and
disseminated by the Secretaries of Labor and Education. The model will
be based on:
(1) Differences among States in actual economic conditions,
including but not limited to unemployment rates and job losses or gains
in particular industries; and
(2) The characteristics of participants, including but not limited
to:
(i) Indicators of poor work history;
(ii) Lack of work experience;
(iii) Lack of educational or occupational skills attainment;
[[Page 56054]]
(iv) Dislocation from high-wage and high-benefit employment;
(v) Low levels of literacy;
(vi) Low levels of English proficiency;
(vii) Disability status;
(viii) Homelessness;
(ix) Ex-offender status; and
(x) Welfare dependency.
(d) The objective statistical adjustment model developed under
paragraph (c) of this section will be:
(1) Applied to the core programs' primary indicators upon
availability of data which are necessary to populate the model and
apply the model to the local core programs;
(2) Subject to paragraph (d)(1) of this section, used before the
beginning of a program year in order to reach agreement on State
negotiated levels for the upcoming program year; and
(3) Subject to paragraph (d)(1) of this section, used to revise
negotiated levels at the end of a program year based on actual economic
conditions and characteristics of participants served, consistent with
sec. 116(b)(3)(A)(vii) of WIOA.
(e) The negotiated levels revised at the end of the program year,
based on the statistical adjustment model, are the adjusted levels of
performance.
(f) States must comply with these requirements from sec. 116 of
WIOA as explained in joint guidance issued by the Departments of Labor
and Education.
Sec. 463.175 What responsibility do States have to use quarterly wage
record information for performance accountability?
(a)(1) States must, consistent with State laws, use quarterly wage
record information in measuring a State's performance on the primary
indicators of performance outlined in Sec. 463.155 and a local area's
performance on the primary indicators of performance identified in
Sec. 463.205.
(2) The use of social security numbers from participants and such
other information as is necessary to measure the progress of those
participants through quarterly wage record information is authorized.
(3) To the extent that quarterly wage records are not available for
a participant, States may use other information as is necessary to
measure the progress of those participants through methods other than
quarterly wage record information.
(b) ``Quarterly wage record information'' means intrastate and
interstate wages paid to an individual, the social security number (or
numbers, if more than one) of the individual, and the name, address,
State, and the Federal employer identification number of the employer
paying the wages to the individual.
(c) The Governor may designate a State agency (or appropriate State
entity) to assist in carrying out the performance reporting
requirements for WIOA core programs and ETPs. The Governor or such
agency (or appropriate State entity) is responsible for:
(1) Facilitating data matches;
(2) Data quality reliability; and
(3) Protection against disaggregation that would violate applicable
privacy standards.
Sec. 463.180 When is a State subject to a financial sanction under
the Workforce Innovation and Opportunity Act?
A State will be subject to financial sanction under WIOA sec.
116(f) if it fails to:
(a) Submit the State annual performance report required under WIOA
sec. 116(d)(2); or
(b) Meet adjusted levels of performance for the primary indicators
of performance in accordance with sec. 116(f) of WIOA.
Sec. 463.185 When are sanctions applied for a State's failure to
submit an annual performance report?
(a) Sanctions will be applied when a State fails to submit the
State annual performance report required under sec. 116(d)(2) of WIOA.
A State fails to report if the State either:
(1) Does not submit a State annual performance report by the date
for timely submission set in performance reporting guidance; or
(2) Submits a State annual performance report by the date for
timely submission, but the report is incomplete.
(b) Sanctions will not be applied if the reporting failure is due
to exceptional circumstances outside of the State's control.
Exceptional circumstances may include, but are not limited to:
(1) Natural disasters;
(2) Unexpected personnel transitions; and
(3) Unexpected technology related issues.
(c) In the event that a State may not be able to submit a complete
and accurate performance report by the deadline for timely reporting:
(1) The State must notify the Secretary of Labor or Secretary of
Education as soon as possible, but no later than 30 days prior to the
established deadline for submission, of a potential impact on the
State's ability to submit its State annual performance report in order
to not be considered failing to report.
(2) In circumstances where unexpected events occur less than 30
days before the established deadline for submission of the State annual
performance reports, the Secretaries of Labor and Education will review
requests for extending the reporting deadline in accordance with the
Departments of Labor and Education's procedures that will be
established in guidance.
Sec. 463.190 When are sanctions applied for failure to achieve
adjusted levels of performance?
(a) States' negotiated levels of performance will be adjusted
through the application of the statistical adjustment model established
under Sec. 463.170 to account for actual economic conditions
experienced during a program year and characteristics of participants,
annually at the close of each program year.
(b) Any State that fails to meet adjusted levels of performance for
the primary indicators of performance outlined in Sec. 463.155 for any
year will receive technical assistance, including assistance in the
development of a performance improvement plan provided by the Secretary
of Labor or Secretary of Education.
(c) Whether a State has failed to meet adjusted levels of
performance will be determined using the following three criteria:
(1) The overall State program score, which is expressed as the
percent achieved, compares the actual results achieved by a core
program on the primary indicators of performance to the adjusted levels
of performance for that core program. The average of the percentages
achieved of the adjusted level of performance for each of the primary
indicators by a core program will constitute the overall State program
score.
(2) However, until all indicators for the core program have at
least 2 years of complete data, the overall State program score will be
based on a comparison of the actual results achieved to the adjusted
level of performance for each of the primary indicators that have at
least 2 years of complete data for that program;
(3) The overall State indicator score, which is expressed as the
percent achieved, compares the actual results achieved on a primary
indicator of performance by all core programs in a State to the
adjusted levels of performance for that primary indicator. The average
of the percentages achieved of the adjusted level of performance by all
of the core programs on that indicator will constitute the overall
State indicator score.
[[Page 56055]]
(4) However, until all indicators for the State have at least 2
years of complete data, the overall State indicator score will be based
on a comparison of the actual results achieved to the adjusted level of
performance for each of the primary indicators that have at least 2
years of complete data in a State.
(5) The individual indicator score, which is expressed as the
percent achieved, compares the actual results achieved by each core
program on each of the individual primary indicators to the adjusted
levels of performance for each of the program's primary indicators of
performance.
(d) A performance failure occurs when:
(1) Any overall State program score or overall State indicator
score falls below 90 percent for the program year; or
(2) Any of the States' individual indicator scores fall below 50
percent for the program year.
(e) Sanctions based on performance failure will be applied to
States if, for 2 consecutive years, the State fails to meet:
(1) 90 percent of the overall State program score for the same core
program;
(2) 90 percent of the overall State indicator score for the same
primary indicator; or
(3) 50 percent of the same indicator score for the same program.
Sec. 463.195 What should States expect when a sanction is applied to
the Governor's Reserve Allotment?
(a) The Secretaries of Labor and Education will reduce the
Governor's Reserve Allotment by five percent of the maximum available
amount for the immediately succeeding program year if:
(1) The State fails to submit the State annual performance reports
as required under WIOA sec. 116(d)(2), as defined in Sec. 463.185;
(2) The State fails to meet State adjusted levels of performance
for the same primary performance indicator(s) under either Sec.
463.190(d)(1) for the second consecutive year as defined in Sec.
463.190; or
(3) The State's score on the same indicator for the same program
falls below 50 percent under Sec. 463.190(d)(2) for the second
consecutive year as defined in Sec. 463.190.
(b) If the State fails under paragraphs (a)(1) and either (a)(2) or
(3) of this section in the same program year, the Secretaries of Labor
and Education will reduce the Governor's Reserve Allotment by 10
percent of the maximum available amount for the immediately succeeding
program year.
(c) If a State's Governor's Reserve Allotment is reduced:
(1) The reduced amount will not be returned to the State in the
event that the State later improves performance or submits its annual
performance report; and
(2) The Governor's Reserve will continue to be set at the reduced
level in each subsequent year until the Secretary of Labor or the
Secretary of Education, depending on which program is impacted,
determines that the State met the State adjusted levels of performance
for the applicable primary performance indicators and has submitted all
of the required performance reports.
(d) A State may request review of a sanction the Secretary of Labor
imposes in accordance with the provisions of 20 CFR 683.800.
Sec. 463.200 What other administrative actions will be applied to
States' performance requirements?
(a) In addition to sanctions for failure to report or failure to
meet adjusted levels of performance, States will be subject to
administrative actions in the case of poor performance.
(b) States' performance achievement on the individual primary
indicators will be assessed in addition to the overall State program
score and overall State indicator score. Based on this assessment, as
clarified and explained in guidance, for performance on any individual
primary indicator, the Secretary of Labor or the Secretary of Education
will require the State to establish a performance risk plan to address
continuous improvement on the individual primary indicator.
Sec. 463.205 What performance indicators apply to local areas and
what information must be included in local area performance reports?
(a) Each local area in a State under WIOA title I is subject to the
same primary indicators of performance for the core programs for WIOA
title I under Sec. 463.155(a)(1) and (c) that apply to the State.
(b) In addition to the indicators described in paragraph (a) of
this section, under Sec. 463.165, the Governor may apply additional
indicators of performance to local areas in the State.
(c) States must annually make local area performance reports
available to the public using a template that the Departments of Labor
and Education will disseminate in guidance, including by electronic
means. The State must provide electronic access to the public local
area performance report in its annual State performance report.
(d) The local area performance report must include:
(1) The actual results achieved under Sec. 463.155 and the
information required under Sec. 463.160(a);
(2) The percentage of a local area's allotment under WIOA secs.
128(b) and 133(b) that the local area spent on administrative costs;
and
(3) Other information that facilitates comparisons of programs with
programs in other local areas (or planning regions if the local area is
part of a planning region).
(e) The disaggregation of data for the local area performance
report must be done in compliance with WIOA sec. 116(d)(6)(C).
(f) States must comply with any requirements from sec. 116(d)(3) of
WIOA as explained in guidance, including the use of the performance
reporting template, issued by DOL.
Sec. 463.210 How are local performance levels established?
(a) The objective statistical adjustment model required under sec.
116(b)(3)(A)(viii) of WIOA and described in Sec. 463.170(c) must be:
(1) Applied to the core programs' primary indicators upon
availability of data which are necessary to populate the model and
apply the model to the local core programs;
(2) Used in order to reach agreement on local negotiated levels of
performance for the upcoming program year; and
(3) Used to establish adjusted levels of performance at the end of
a program year based on actual conditions, consistent with WIOA sec.
116(c)(3).
(b) Until all indicators for the core program in a local area have
at least 2 years of complete data, the comparison of the actual results
achieved to the adjusted levels of performance for each of the primary
indicators only will be applied where there are at least 2 years of
complete data for that program.
(c) The Governor, Local Workforce Development Board (WDB), and
chief elected official must reach agreement on local negotiated levels
of performance based on a negotiations process before the start of a
program year with the use of the objective statistical model described
in paragraph (a) of this section. The negotiations will include a
discussion of circumstances not accounted for in the model and will
take into account the extent to which the levels promote continuous
improvement. The objective statistical model will be applied at the end
of the program year based on actual economic conditions and
characteristics of the participants served.
[[Page 56056]]
(d) The negotiations process described in paragraph (c) of this
section must be developed by the Governor and disseminated to all Local
WDBs and chief elected officials.
(e) The Local WDBs may apply performance measures to service
providers that differ from the performance indicators that apply to the
local area. These performance measures must be established after
considering:
(1) The established local negotiated levels;
(2) The services provided by each provider; and
(3) The populations the service providers are intended to serve.
Sec. 463.215 Under what circumstances are local areas eligible for
State Incentive Grants?
(a) The Governor is not required to award local incentive funds,
but is authorized to provide incentive grants to local areas for
performance on the primary indicators of performance consistent with
WIOA sec. 134(a)(3)(A)(xi).
(b) The Governor may use non-Federal funds to create incentives for
the Local WDBs to implement pay-for-performance contract strategies for
the delivery of training services described in WIOA sec. 134(c)(3) or
activities described in WIOA sec. 129(c)(2) in the local areas served
by the Local WDBs. Pay-for-performance contract strategies must be
implemented in accordance with 20 CFR part 683, subpart E and Sec.
463.160.
Sec. 463.220 Under what circumstances may a corrective action or
sanction be applied to local areas for poor performance?
(a) If a local area fails to meet the adjusted levels of
performance agreed to under Sec. 463.210 for the primary indicators of
performance in the adult, dislocated worker, and youth programs
authorized under WIOA title I in any program year, technical assistance
must be provided by the Governor or, upon the Governor's request, by
the Secretary of Labor.
(1) A State must establish the threshold for failure to meet
adjusted levels of performance for a local area before coming to
agreement on the negotiated levels of performance for the local area.
(i) A State must establish the adjusted level of performance for a
local area, using the statistical adjustment model described in Sec.
463.170(c).
(ii) At least 2 years of complete data on any indicator for any
local core program are required in order to establish adjusted levels
of performance for a local area.
(2) The technical assistance may include:
(i) Assistance in the development of a performance improvement
plan;
(ii) The development of a modified local or regional plan; or
(iii) Other actions designed to assist the local area in improving
performance.
(b) If a local area fails to meet the adjusted levels of
performance agreed to under Sec. 463.210 for the same primary
indicators of performance for the same core program authorized under
WIOA title I for a third consecutive program year, the Governor must
take corrective actions. The corrective actions must include the
development of a reorganization plan under which the Governor:
(1) Requires the appointment and certification of a new Local WDB,
consistent with the criteria established under 20 CFR 679.350;
(2) Prohibits the use of eligible providers and one-stop partners
that have been identified as achieving poor levels of performance; or
(3) Takes such other significant actions as the Governor determines
are appropriate.
Sec. 463.225 Under what circumstances may local areas appeal a
reorganization plan?
(a) The Local WDB and chief elected official for a local area that
is subject to a reorganization plan under WIOA sec. 116(g)(2)(A) may
appeal to the Governor to rescind or revise the reorganization plan not
later than 30 days after receiving notice of the reorganization plan.
The Governor must make a final decision within 30 days after receipt of
the appeal.
(b) The Local WDB and chief elected official may appeal the final
decision of the Governor to the Secretary of Labor not later than 30
days after receiving the decision from the Governor. Any appeal of the
Governor's final decision must be:
(1) Appealed jointly by the Local WDB and chief elected official to
the Secretary of Labor under 20 CFR 683.650; and
(2) Must be submitted by certified mail, return receipt requested,
to the Secretary of Labor, 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.
(c) Upon receipt of the joint appeal from the Local WDB and chief
elected official, the Secretary of Labor must make a final decision
within 30 days. In making this determination the Secretary of Labor may
consider any comments submitted by the Governor in response to the
appeals.
(d) The decision by the Governor on the appeal becomes effective at
the time it is issued and remains effective unless the Secretary of
Labor rescinds or revises the reorganization plan under WIOA sec.
116(g)(2)(C).
Sec. 463.230 What information is required for the eligible training
provider performance reports?
(a) States are required to make available and publish annually
using a template the Departments of Labor and Education will
disseminate including through electronic means, the ETP performance
reports for ETPs who provide services under sec. 122 of WIOA that are
described in 20 CFR 680.400 through 680.530. These reports at a minimum
must include, consistent with Sec. 463.175 and with respect to each
program of study that is eligible to receive funds under WIOA:
(1) The total number of participants as defined by Sec. 463.150(a)
who received training services under the adult and dislocated worker
programs authorized under WIOA title I for the most recent year and the
3 preceding program years, including:
(i) The number of participants under the adult and dislocated
worker programs disaggregated by barriers to employment;
(ii) The number of participants under the adult and dislocated
worker programs disaggregated by race, ethnicity, sex, and age;
(iii) The number of participants under the adult and dislocated
worker programs disaggregated by the type of training entity for the
most recent program year and the 3 preceding program years;
(2) The total number of participants who exit a program of study or
its equivalent, including disaggregate counts by the type of training
entity during the most recent program year and the 3 preceding program
years;
(3) The average cost-per-participant for participants who received
training services for the most recent program year and the 3 preceding
program years disaggregated by type of training entity;
(4) The total number of individuals exiting from the program of
study (or the equivalent) with respect to all individuals engaging in
the program of study (or the equivalent); and
(5) The levels of performance achieved for the primary indicators
of performance identified in Sec. 463.155(a)(1)(i) through (iv) with
respect to all individuals engaging in a program of study (or the
equivalent).
(b) Apprenticeship programs registered under the National
Apprenticeship Act are not required to
[[Page 56057]]
submit ETP performance information. If a registered apprenticeship
program voluntarily submits performance information to a State, the
State must include this information in the report.
(c) The State must provide a mechanism of electronic access to the
public ETP performance report in its annual State performance report.
(d) States must comply with any requirements from sec. 116(d)(4) of
WIOA as explained in guidance issued by DOL.
(e) The Governor may designate one or more State agencies such as a
State Education Agency or other State Educational Authority to assist
in overseeing ETP performance and facilitating the production and
dissemination of ETP performance reports. These agencies may be the
same agencies that are designated as responsible for administering the
ETP list as provided under 20 CFR 680.500. The Governor or such
agencies, or authorities, is responsible for:
(1) Facilitating data matches between ETP records and unemployment
insurance (UI) wage data in order to produce the report;
(2) The creation and dissemination of the reports as described in
paragraphs (a) through (d) of this section;
(3) Coordinating the dissemination of the performance reports with
the ETP list and the information required to accompany the list, as
provided in 20 CFR 680.500.
Sec. 463.235 What are the reporting requirements for individual
records for core Workforce Innovation and Opportunity Act (WIOA) title
I programs; the Wagner-Peyser Act Employment Service program, as
amended by WIOA title III; and the Vocational Rehabilitation program
authorized under title I of the Rehabilitation Act of 1973, as amended
by WIOA title IV?
(a) On a quarterly basis, each State must submit to the Secretary
of Labor or the Secretary of Education, as appropriate, individual
records that include demographic information, information on services
received, and information on resulting outcomes, as appropriate, for
each reportable individual in either of the following programs
administered by the Secretary of Labor or Secretary of Education: A
WIOA title I core program; the Employment Service program authorized
under the Wagner-Peyser Act, as amended by WIOA title III; or the VR
program authorized under title I of the Rehabilitation Act of 1973, as
amended by WIOA title IV.
(b) For individual records submitted to the Secretary of Labor,
those records may be required to be integrated across all programs
administered by the Secretary of Labor in one single file.
(c) States must comply with the requirements of sec. 116(d)(2) of
WIOA as explained in guidance issued by the Departments of Labor and
Education.
Sec. 463.240 What are the requirements for data validation of State
annual performance reports?
(a) States must establish procedures, consistent with guidelines
issued by the Secretary of Labor or the Secretary of Education, to
ensure that they submit complete annual performance reports that
contain information that is valid and reliable, as required by WIOA
sec. 116(d)(5).
(b) If a State fails to meet standards in paragraph (a) of this
section as determined by the Secretary of Labor or the Secretary of
Education, the appropriate Secretary will provide technical assistance
and may require the State to develop and implement corrective actions,
which may require the State to provide training for its subrecipients.
(c) The Secretaries of Labor and Education will provide training
and technical assistance to States in order to implement this section.
States must comply with the requirements of sec. 116(d)(5) of WIOA as
explained in guidance.
0
11. Add subpart J to part 463, as added elsewhere in this issue of the
Federal Register, to read as follows:
Subpart J--Description of the One-Stop Delivery System Under Title I of
the Workforce Innovation and Opportunity Act
Sec.
463.300 What is the one-stop delivery system?
463.305 What is a comprehensive one-stop center and what must be
provided there?
463.310 What is an affiliated site and what must be provided there?
463.315 Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?
463.320 Are there any requirements for networks of eligible one-stop
partners or specialized centers?
463.400 Who are the required one-stop partners?
463.405 Is Temporary Assistance for Needy Families a required one-
stop partner?
463.410 What other entities may serve as one-stop partners?
463.415 What entity serves as the one-stop partner for a particular
program in the local area?
463.420 What are the roles and responsibilities of the required one-
stop partners?
463.425 What are the applicable career services that must be
provided through the one-stop delivery system by required one-stop
partners?
463.430 What are career services?
463.435 What are the business services provided through the one-stop
delivery system, and how are they provided?
463.440 When may a fee be charged for the business services in this
subpart?
463.500 What is the Memorandum of Understanding for the one-stop
delivery system and what must be included in the Memorandum of
Understanding?
463.505 Is there a single Memorandum of Understanding for the local
area, or must there be different Memoranda of Understanding between
the Local Workforce Development Board and each partner?
463.510 How must the Memorandum of Understanding be negotiated?
463.600 Who may operate one-stop centers?
463.605 How is the one-stop operator selected?
463.610 When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?
463.615 May an entity currently serving as one-stop operator compete
to be a one-stop operator under the procurement requirements of this
subpart?
463.620 What is the one-stop operator's role?
463.625 Can a one-stop operator also be a service provider?
463.630 Can State merit staff still work in a one-stop center where
the operator is not a governmental entity?
463.635 What is the compliance date of the provisions of this
subpart?
463.700 What are the one-stop infrastructure costs?
463.705 What guidance must the Governor issue regarding one-stop
infrastructure funding?
463.710 How are infrastructure costs funded?
463.715 How are one-stop infrastructure costs funded in the local
funding mechanism?
463.720 What funds are used to pay for infrastructure costs in the
local one-stop infrastructure funding mechanism?
463.725 What happens if consensus on infrastructure funding is not
reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?
463.730 What is the State one-stop infrastructure funding mechanism?
463.731 What are the steps to determine the amount to be paid under
the State one-stop infrastructure funding mechanism?
463.735 How are infrastructure cost budgets for the one-stop centers
in a local area determined in the State one-stop infrastructure
funding mechanism?
463.736 How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs'
proportionate shares of infrastructure costs under the State one-
stop infrastructure funding mechanism?
463.737 How are one-stop partner programs' proportionate shares of
infrastructure costs determined under the State one-stop
infrastructure funding mechanism?
463.738 How are statewide caps on the contributions for one-stop
infrastructure
[[Page 56058]]
funding determined in the State one-stop infrastructure funding
mechanism?
463.740 What funds are used to pay for infrastructure costs in the
State one-stop infrastructure funding mechanism?
463.745 What factors does the State Workforce Development Board use
to develop the formula described in Workforce Innovation and
Opportunity Act, which is used by the Governor to determine the
appropriate one-stop infrastructure budget for each local area
operating under the State infrastructure funding mechanism, if no
reasonably implementable locally negotiated budget exists?
463.750 When and how can a one-stop partner appeal a one-stop
infrastructure amount designated by the State under the State
infrastructure funding mechanism?
463.755 What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of
Understanding?
463.760 How do one-stop partners jointly fund other shared costs
under the Memorandum of Understanding?
463.800 How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic
accessibility, and continuous improvement?
463.900 What is the common identifier to be used by each one-stop
delivery system?
Authority: Secs. 503, 107, 121, 134, 189, Pub. L. 113-128, 128
Stat. 1425 (Jul. 22, 2014).
Subpart J--Description of the One-Stop Delivery System Under Title
I of the Workforce Innovation and Opportunity Act
Sec. 463.300 What is the one-stop delivery system?
(a) The one-stop delivery system brings together workforce
development, educational, and other human resource services in a
seamless customer-focused service delivery network that enhances access
to the programs' services and improves long-term employment outcomes
for individuals receiving assistance. One-stop partners administer
separately funded programs as a set of integrated streamlined services
to customers.
(b) Title I of the Workforce Innovation and Opportunity Act (WIOA)
assigns responsibilities at the local, State, and Federal level to
ensure the creation and maintenance of a one-stop delivery system that
enhances the range and quality of education and workforce development
services that employers and individual customers can access.
(c) The system must include at least one comprehensive physical
center in each local area as described in Sec. 463.305.
(d) The system may also have additional arrangements to supplement
the comprehensive center. These arrangements include:
(1) An affiliated site or a network of affiliated sites, where one
or more partners make programs, services, and activities available, as
described in Sec. 463.310;
(2) A network of eligible one-stop partners, as described in
Sec. Sec. 463.400 through 463.410, through which each partner provides
one or more of the programs, services, and activities that are linked,
physically or technologically, to an affiliated site or access point
that assures customers are provided information on the availability of
career services, as well as other program services and activities,
regardless of where they initially enter the public workforce system in
the local area; and
(3) Specialized centers that address specific needs, including
those of dislocated workers, youth, or key industry sectors, or
clusters.
(e) Required one-stop partner programs must provide access to
programs, services, and activities through electronic means if
applicable and practicable. This is in addition to providing access to
services through the mandatory comprehensive physical one-stop center
and any affiliated sites or specialized centers. The provision of
programs and services by electronic methods such as Web sites,
telephones, or other means must improve the efficiency, coordination,
and quality of one-stop partner services. Electronic delivery must not
replace access to such services at a comprehensive one-stop center or
be a substitute to making services available at an affiliated site if
the partner is participating in an affiliated site. Electronic delivery
systems must be in compliance with the nondiscrimination and equal
opportunity provisions of WIOA sec. 188 and its implementing
regulations at 29 CFR part 38.
(f) The design of the local area's one-stop delivery system must be
described in the Memorandum of Understanding (MOU) executed with the
one-stop partners, described in Sec. 463.500.
Sec. 463.305 What is a comprehensive one-stop center and what must be
provided there?
(a) A comprehensive one-stop center is a physical location where
job seeker and employer customers can access the programs, services,
and activities of all required one-stop partners. A comprehensive one-
stop center must have at least one title I staff person physically
present.
(b) The comprehensive one-stop center must provide:
(1) Career services, described in Sec. 463.430;
(2) Access to training services described in 20 CFR 680.200;
(3) Access to any employment and training activities carried out
under sec. 134(d) of WIOA;
(4) Access to programs and activities carried out by one-stop
partners listed in Sec. Sec. 463.400 through 463.410, including the
Employment Service program authorized under the Wagner-Peyser Act, as
amended by WIOA title III (Wagner-Peyser Act Employment Service
program); and
(5) Workforce and labor market information.
(c) Customers must have access to these programs, services, and
activities during regular business days at a comprehensive one-stop
center. The Local Workforce Development Board (WDB) may establish other
service hours at other times to accommodate the schedules of
individuals who work on regular business days. The State WDB will
evaluate the hours of access to service as part of the evaluation of
effectiveness in the one-stop certification process described in Sec.
463.800(b).
(d) ``Access'' to each partner program and its services means:
(1) Having a program staff member physically present at the one-
stop center;
(2) Having a staff member from a different partner program
physically present at the one-stop center appropriately trained to
provide information to customers about the programs, services, and
activities available through partner programs; or
(3) Making available a direct linkage through technology to program
staff who can provide meaningful information or services.
(i) A ``direct linkage'' means providing direct connection at the
one-stop center, within a reasonable time, by phone or through a real-
time Web-based communication to a program staff member who can provide
program information or services to the customer.
(ii) A ``direct linkage'' cannot exclusively be providing a phone
number or computer Web site or providing information, pamphlets, or
materials.
(e) All comprehensive one-stop centers must be physically and
programmatically accessible to individuals with disabilities, as
described in 29 CFR part 38, the implementing regulations of WIOA sec.
188.
[[Page 56059]]
Sec. 463.310 What is an affiliated site and what must be provided
there?
(a) An affiliated site, or affiliate one-stop center, is a site
that makes available to job seeker and employer customers one or more
of the one-stop partners' programs, services, and activities. An
affiliated site does not need to provide access to every required one-
stop partner program. The frequency of program staff's physical
presence in the affiliated site will be determined at the local level.
Affiliated sites are access points in addition to the comprehensive
one-stop center(s) in each local area. If used by local areas as a part
of the service delivery strategy, affiliate sites must be implemented
in a manner that supplements and enhances customer access to services.
(b) As described in Sec. 463.315, Wagner-Peyser Act employment
services cannot be a stand-alone affiliated site.
(c) States, in conjunction with the Local WDBs, must examine lease
agreements and property holdings throughout the one-stop delivery
system in order to use property in an efficient and effective way.
Where necessary and appropriate, States and Local WDBs must take
expeditious steps to align lease expiration dates with efforts to
consolidate one-stop operations into service points where Wagner-Peyser
Act employment services are colocated as soon as reasonably possible.
These steps must be included in the State Plan.
(d) All affiliated sites must be physically and programmatically
accessible to individuals with disabilities, as described in 29 CFR
part 38, the implementing regulations of WIOA sec. 188.
Sec. 463.315 Can a stand-alone Wagner-Peyser Act Employment Service
office be designated as an affiliated one-stop site?
(a) Separate stand-alone Wagner-Peyser Act Employment Service
offices are not permitted under WIOA, as also described in 20 CFR
652.202.
(b) If Wagner-Peyser Act employment services are provided at an
affiliated site, there must be at least one or more other partners in
the affiliated site with a physical presence of combined staff more
than 50 percent of the time the center is open. Additionally, the other
partner must not be the partner administering local veterans'
employment representatives, disabled veterans' outreach program
specialists, or unemployment compensation programs. If Wagner-Peyser
Act employment services and any of these 3 programs are provided at an
affiliated site, an additional partner or partners must have a presence
of combined staff in the center more than 50 percent of the time the
center is open.
Sec. 463.320 Are there any requirements for networks of eligible one-
stop partners or specialized centers?
Any network of one-stop partners or specialized centers, as
described in Sec. 463.300(d)(3), must be connected to the
comprehensive one-stop center and any appropriate affiliate one-stop
centers, for example, by having processes in place to make referrals to
these centers and the partner programs located in them. Wagner-Peyser
Act employment services cannot stand alone in a specialized center.
Just as described in Sec. 463.315 for an affiliated site, a
specialized center must include other programs besides Wagner-Peyser
Act employment services, local veterans' employment representatives,
disabled veterans' outreach program specialists, and unemployment
compensation.
Sec. 463.400 Who are the required one-stop partners?
(a) Section 121(b)(1)(B) of WIOA identifies the entities that are
required partners in the local one-stop delivery systems.
(b) The required partners are the entities responsible for
administering the following programs and activities in the local area:
(1) Programs authorized under title I of WIOA, including:
(i) Adults;
(ii) Dislocated workers;
(iii) Youth;
(iv) Job Corps;
(v) YouthBuild;
(vi) Native American programs; and
(vii) Migrant and seasonal farmworker programs;
(2) The Wagner-Peyser Act Employment Service program authorized
under the Wagner-Peyser Act (29 U.S.C. 49 et seq.), as amended by WIOA
title III;
(3) The Adult Education and Family Literacy Act (AEFLA) program
authorized under title II of WIOA;
(4) The Vocational Rehabilitation (VR) program authorized under
title I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et seq.), as
amended by WIOA title IV;
(5) The Senior Community Service Employment Program authorized
under title V of the Older Americans Act of 1965 (42 U.S.C. 3056 et
seq.);
(6) Career and technical education programs at the postsecondary
level authorized under the Carl D. Perkins Career and Technical
Education Act of 2006 (20 U.S.C. 2301 et seq.);
(7) Trade Adjustment Assistance activities authorized under chapter
2 of title II of the Trade Act of 1974 (19 U.S.C. 2271 et seq.);
(8) Jobs for Veterans State Grants programs authorized under
chapter 41 of title 38, U.S.C.;
(9) Employment and training activities carried out under the
Community Services Block Grant (42 U.S.C. 9901 et seq.);
(10) Employment and training activities carried out by the
Department of Housing and Urban Development;
(11) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law);
(12) Programs authorized under sec. 212 of the Second Chance Act of
2007 (42 U.S.C. 17532); and
(13) Temporary Assistance for Needy Families (TANF) authorized
under part A of title IV of the Social Security Act (42 U.S.C. 601 et
seq.), unless exempted by the Governor under Sec. 463.405(b).
Sec. 463.405 Is Temporary Assistance for Needy Families a required
one-stop partner?
(a) Yes, TANF, authorized under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.), is a required partner.
(b) The Governor may determine that TANF will not be a required
partner in the State, or within some specific local areas in the State.
In this instance, the Governor must notify the Secretaries of the U.S.
Departments of Labor and Health and Human Services in writing of this
determination.
(c) In States, or local areas within a State, where the Governor
has determined that TANF is not required to be a partner, local TANF
programs may still work in collaboration or partnership with the local
one-stop centers to deliver employment and training services to the
TANF population unless inconsistent with the Governor's direction.
Sec. 463.410 What other entities may serve as one-stop partners?
(a) Other entities that carry out a workforce development program,
including Federal, State, or local programs and programs in the private
sector, may serve as additional partners in the one-stop delivery
system if the Local WDB and chief elected official(s) approve the
entity's participation.
(b) Additional partners may include, but are not limited to:
(1) Employment and training programs administered by the Social
Security Administration, including the Ticket to Work and Self-
Sufficiency Program established under sec. 1148 of the Social Security
Act (42 U.S.C. 1320b-19);
[[Page 56060]]
(2) Employment and training programs carried out by the Small
Business Administration;
(3) Supplemental Nutrition Assistance Program (SNAP) employment and
training programs, authorized under secs. 6(d)(4) and 6(o) of the Food
and Nutrition Act of 2008 (7 U.S.C. 2015(d)(4));
(4) Client Assistance Program authorized under sec. 112 of the
Rehabilitation Act of 1973 (29 U.S.C. 732);
(5) Programs authorized under the National and Community Service
Act of 1990 (42 U.S.C. 12501 et seq.); and
(6) Other appropriate Federal, State or local programs, including,
but not limited to, employment, education, and training programs
provided by public libraries or in the private sector.
Sec. 463.415 What entity serves as the one-stop partner for a
particular program in the local area?
(a) The entity that carries out the program and activities listed
in Sec. 463.400 or Sec. 463.410, and therefore serves as the one-stop
partner, is the grant recipient, administrative entity, or organization
responsible for administering the funds of the specified program in the
local area. The term ``entity'' does not include the service providers
that contract with, or are subrecipients of, the local administrative
entity. For programs that do not include local administrative entities,
the responsible State agency must be the partner. Specific entities for
particular programs are identified in paragraphs (b) through (e) of
this section. If a program or activity listed in Sec. 463.400 is not
carried out in a local area, the requirements relating to a required
one-stop partner are not applicable to such program or activity in that
local one-stop delivery system.
(b) For title II of WIOA, the entity or agency that carries out the
program for the purposes of paragraph (a) of this section is the sole
entity or agency in the State or outlying area responsible for
administering or supervising policy for adult education and literacy
activities in the State or outlying area. The State eligible entity or
agency may delegate its responsibilities under paragraph (a) of this
section to one or more eligible providers or consortium of eligible
providers.
(c) For the VR program, authorized under title I of the
Rehabilitation Act of 1973, as amended by WIOA title IV, the entity
that carries out the program for the purposes of paragraph (a) of this
section is the designated State agencies or designated State units
specified under sec. 101(a)(2) of the Rehabilitation Act that is
primarily concerned with vocational rehabilitation, or vocational and
other rehabilitation, of individuals with disabilities.
(d) Under WIOA title I, the national programs, including Job Corps,
the Native American program, YouthBuild, and Migrant and Seasonal
Farmworker programs are required one-stop partners. The entity for the
Native American program, YouthBuild, and Migrant and Seasonal
Farmworker programs is the grantee of those respective programs. The
entity for Job Corps is the Job Corps center.
(e) For the Carl D. Perkins Career and Technical Education Act of
2006, the entity that carries out the program for the purposes of
paragraph (a) of this section is the eligible recipient or recipients
at the postsecondary level, or a consortium of eligible recipients at
the postsecondary level in the local area. The eligible recipient at
the postsecondary level may also request assistance from the State
eligible agency in completing its responsibilities under paragraph (a)
of this section.
Sec. 463.420 What are the roles and responsibilities of the required
one-stop partners?
Each required partner must:
(a) Provide access to its programs or activities through the one-
stop delivery system, in addition to any other appropriate locations;
(b) Use a portion of funds made available to the partner's program,
to the extent consistent with the Federal law authorizing the partner's
program and with Federal cost principles in 2 CFR parts 200 and 3474
(requiring, among other things, that costs are allowable, reasonable,
necessary, and allocable), to:
(1) Provide applicable career services; and
(2) Work collaboratively with the State and Local WDBs to establish
and maintain the one-stop delivery system. This includes jointly
funding the one-stop infrastructure through partner contributions that
are based upon:
(i) A reasonable cost allocation methodology by which
infrastructure costs are charged to each partner based on proportionate
use and relative benefit received;
(ii) Federal cost principles; and
(iii) Any local administrative cost requirements in the Federal law
authorizing the partner's program. (This is further described in Sec.
463.700.)
(c) Enter into an MOU with the Local WDB relating to the operation
of the one-stop delivery system that meets the requirements of Sec.
463.500(b);
(d) Participate in the operation of the one-stop delivery system
consistent with the terms of the MOU, requirements of authorizing laws,
the Federal cost principles, and all other applicable legal
requirements; and
(e) Provide representation on the State and Local WDBs as required
and participate in Board committees as needed.
Sec. 463.425 What are the applicable career services that must be
provided through the one-stop delivery system by required one-stop
partners?
(a) The applicable career services to be delivered by required one-
stop partners are those services listed in Sec. 463.430 that are
authorized to be provided under each partner's program.
(b) One-stop centers provide services to individual customers based
on individual needs, including the seamless delivery of multiple
services to individual customers. There is no required sequence of
services.
Sec. 463.430 What are career services?
Career services, as identified in sec. 134(c)(2) of WIOA, consist
of three types:
(a) Basic career services must be made available and, at a minimum,
must include the following services, as consistent with allowable
program activities and Federal cost principles:
(1) Determinations of whether the individual is eligible to receive
assistance from the adult, dislocated worker, or youth programs;
(2) Outreach, intake (including worker profiling), and orientation
to information and other services available through the one-stop
delivery system. For the TANF program, States must provide individuals
with the opportunity to initiate an application for TANF assistance and
non-assistance benefits and services, which could be implemented
through the provision of paper application forms or links to the
application Web site;
(3) Initial assessment of skill levels including literacy,
numeracy, and English language proficiency, as well as aptitudes,
abilities (including skills gaps), and supportive services needs;
(4) Labor exchange services, including--
(i) Job search and placement assistance, and, when needed by an
individual, career counseling, including--
(A) Provision of information on in-demand industry sectors and
occupations (as defined in sec. 3(23) of WIOA); and
(B) Provision of information on nontraditional employment; and
(ii) Appropriate recruitment and other business services on behalf
of
[[Page 56061]]
employers, including information and referrals to specialized business
services other than those traditionally offered through the one-stop
delivery system;
(5) Provision of referrals to and coordination of activities with
other programs and services, including programs and services within the
one-stop delivery system and, when appropriate, other workforce
development programs;
(6) Provision of workforce and labor market employment statistics
information, including the provision of accurate information relating
to local, regional, and national labor market areas, including--
(i) Job vacancy listings in labor market areas;
(ii) Information on job skills necessary to obtain the vacant jobs
listed; and
(iii) Information relating to local occupations in demand and the
earnings, skill requirements, and opportunities for advancement for
those jobs;
(7) Provision of performance information and program cost
information on eligible providers of education, training, and workforce
services by program and type of providers;
(8) Provision of information, in usable and understandable formats
and languages, about how the local area is performing on local
performance accountability measures, as well as any additional
performance information relating to the area's one-stop delivery
system;
(9) Provision of information, in usable and understandable formats
and languages, relating to the availability of supportive services or
assistance, and appropriate referrals to those services and assistance,
including: Child care; child support; medical or child health
assistance available through the State's Medicaid program and
Children's Health Insurance Program; benefits under SNAP; assistance
through the earned income tax credit; and assistance under a State
program for TANF, and other supportive services and transportation
provided through that program;
(10) Provision of information and meaningful assistance to
individuals seeking assistance in filing a claim for unemployment
compensation.
(i) ``Meaningful assistance'' means:
(A) Providing assistance on-site using staff who are well-trained
in unemployment compensation claims filing and the rights and
responsibilities of claimants; or
(B) Providing assistance by phone or via other technology, as long
as the assistance is provided by trained and available staff and within
a reasonable time.
(ii) The costs associated in providing this assistance may be paid
for by the State's unemployment insurance program, or the WIOA adult or
dislocated worker programs, or some combination thereof.
(11) Assistance in establishing eligibility for programs of
financial aid assistance for training and education programs not
provided under WIOA.
(b) Individualized career services must be made available if
determined to be appropriate in order for an individual to obtain or
retain employment. These services include the following services, as
consistent with program requirements and Federal cost principles:
(1) Comprehensive and specialized assessments of the skill levels
and service needs of adults and dislocated workers, which may include--
(i) Diagnostic testing and use of other assessment tools; and
(ii) In-depth interviewing and evaluation to identify employment
barriers and appropriate employment goals;
(2) Development of an individual employment plan, to identify the
employment goals, appropriate achievement objectives, and appropriate
combination of services for the participant to achieve his or her
employment goals, including the list of, and information about, the
eligible training providers (as described in 20 CFR 680.180);
(3) Group counseling;
(4) Individual counseling;
(5) Career planning;
(6) Short-term pre-vocational services including development of
learning skills, communication skills, interviewing skills,
punctuality, personal maintenance skills, and professional conduct
services to prepare individuals for unsubsidized employment or
training;
(7) Internships and work experiences that are linked to careers (as
described in 20 CFR 680.170);
(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.
(c) Follow-up services must be provided, as appropriate, including:
Counseling regarding the workplace, for participants in adult or
dislocated worker workforce investment activities who are placed in
unsubsidized employment, for up to 12 months after the first day of
employment.
(d) In addition to the requirements in paragraph (a)(2) of this
section, TANF agencies must identify employment services and related
support being provided by the TANF program (within the local area) that
qualify as career services and ensure access to them via the local one-
stop delivery system.
Sec. 463.435 What are the business services provided through the one-
stop delivery system, and how are they provided?
(a) Certain career services must be made available to local
employers, specifically labor exchange activities and labor market
information described in Sec. 463.430(a)(4)(ii) and (a)(6). Local
areas must establish and develop relationships and networks with large
and small employers and their intermediaries. Local areas also must
develop, convene, or implement industry or sector partnerships.
(b) Customized business services may be provided to employers,
employer associations, or other such organizations. These services are
tailored for specific employers and may include:
(1) Customized screening and referral of qualified participants in
training services to employers;
(2) Customized services to employers, employer associations, or
other such organizations, on employment-related issues;
(3) Customized recruitment events and related services for
employers including targeted job fairs;
(4) Human resource consultation services, including but not limited
to assistance with:
(i) Writing/reviewing job descriptions and employee handbooks;
(ii) Developing performance evaluation and personnel policies;
(iii) Creating orientation sessions for new workers;
(iv) Honing job interview techniques for efficiency and compliance;
(v) Analyzing employee turnover;
(vi) Creating job accommodations and using assistive technologies;
or
(vii) Explaining labor and employment laws to help employers comply
with discrimination, wage/hour, and safety/health regulations;
(5) Customized labor market information for specific employers,
sectors, industries or clusters; and
(6) Other similar customized services.
(c) Local areas may also provide other business services and
strategies that meet the workforce investment needs of area employers,
in accordance with partner programs' statutory requirements and
consistent with
[[Page 56062]]
Federal cost principles. These business services may be provided
through effective business intermediaries working in conjunction with
the Local WDB, or through the use of economic development,
philanthropic, and other public and private resources in a manner
determined appropriate by the Local WDB and in cooperation with the
State. Allowable activities, consistent with each partner's authorized
activities, include, but are not limited to:
(1) Developing and implementing industry sector strategies
(including strategies involving industry partnerships, regional skills
alliances, industry skill panels, and sectoral skills partnerships);
(2) Customized assistance or referral for assistance in the
development of a registered apprenticeship program;
(3) Developing and delivering innovative workforce investment
services and strategies for area employers, which may include career
pathways, skills upgrading, skill standard development and
certification for recognized postsecondary credential or other employer
use, and other effective initiatives for meeting the workforce
investment needs of area employers and workers;
(4) Assistance to area employers in managing reductions in force in
coordination with rapid response activities and with strategies for the
aversion of layoffs, which may include strategies such as early
identification of firms at risk of layoffs, use of feasibility studies
to assess the needs of and options for at-risk firms, and the delivery
of employment and training activities to address risk factors;
(5) The marketing of business services to appropriate area
employers, including small and mid-sized employers; and
(6) Assisting employers with accessing local, State, and Federal
tax credits.
(d) All business services and strategies must be reflected in the
local plan, described in 20 CFR 679.560(b)(3).
Sec. 463.440 When may a fee be charged for the business services in
this subpart?
(a) There is no requirement that a fee-for-service be charged to
employers.
(b) No fee may be charged for services provided in Sec.
463.435(a).
(c) A fee may be charged for services provided under Sec.
463.435(b) and (c). Services provided under Sec. 463.435(c) may be
provided through effective business intermediaries working in
conjunction with the Local WDB and may also be provided on a fee-for-
service basis or through the leveraging of economic development,
philanthropic, and other public and private resources in a manner
determined appropriate by the Local WDB. The Local WDB may examine the
services provided compared with the assets and resources available
within the local one-stop delivery system and through its partners to
determine an appropriate cost structure for services, if any.
(d) Any fees earned are recognized as program income and must be
expended by the partner in accordance with the partner program's
authorizing statute, implementing regulations, and Federal cost
principles identified in Uniform Guidance.
Sec. 463.500 What is the Memorandum of Understanding for the one-stop
delivery system and what must be included in the Memorandum of
Understanding?
(a) The MOU is the product of local discussion and negotiation, and
is an agreement developed and executed between the Local WDB and the
one-stop partners, with the agreement of the chief elected official and
the one-stop partners, relating to the operation of the one-stop
delivery system in the local area. Two or more local areas in a region
may develop a single joint MOU, if they are in a region that has
submitted a regional plan under sec. 106 of WIOA.
(b) The MOU must include:
(1) A description of services to be provided through the one-stop
delivery system, including the manner in which the services will be
coordinated and delivered through the system;
(2) Agreement on funding the costs of the services and the
operating costs of the system, including:
(i) Funding of infrastructure costs of one-stop centers in
accordance with Sec. Sec. 463.700 through 463.755; and
(ii) Funding of the shared services and operating costs of the one-
stop delivery system described in Sec. 463.760;
(3) Methods for referring individuals between the one-stop
operators and partners for appropriate services and activities;
(4) Methods to ensure that the needs of workers, youth, and
individuals with barriers to employment, including individuals with
disabilities, are addressed in providing access to services, including
access to technology and materials that are available through the one-
stop delivery system;
(5) The duration of the MOU and procedures for amending it; and
(6) Assurances that each MOU will be reviewed, and if substantial
changes have occurred, renewed, not less than once every 3-year period
to ensure appropriate funding and delivery of services.
(c) The MOU may contain any other provisions agreed to by the
parties that are consistent with WIOA title I, the authorizing statutes
and regulations of one-stop partner programs, and the WIOA regulations.
(d) When fully executed, the MOU must contain the signatures of the
Local WDB, one-stop partners, the chief elected official(s), and the
time period in which the agreement is effective. The MOU must be
updated not less than every 3 years to reflect any changes in the
signatory official of the Board, one-stop partners, and chief elected
officials, or one-stop infrastructure funding.
(e) If a one-stop partner appeal to the State regarding
infrastructure costs, using the process described in Sec. 463.750,
results in a change to the one-stop partner's infrastructure cost
contributions, the MOU must be updated to reflect the final one-stop
partner infrastructure cost contributions.
Sec. 463.505 Is there a single Memorandum of Understanding for the
local area, or must there be different Memoranda of Understanding
between the Local Workforce Development Board and each partner?
(a) A single ``umbrella'' MOU may be developed that addresses the
issues relating to the local one-stop delivery system for the Local
WDB, chief elected official and all partners. Alternatively, the Local
WDB (with agreement of chief elected official) may enter into separate
agreements between each partner or groups of partners.
(b) Under either approach, the requirements described in Sec.
463.500 apply. Since funds are generally appropriated annually, the
Local WDB may negotiate financial agreements with each partner annually
to update funding of services and operating costs of the system under
the MOU.
Sec. 463.510 How must the Memorandum of Understanding be negotiated?
(a) WIOA emphasizes full and effective partnerships between Local
WDBs, chief elected officials, and one-stop partners. Local WDBs and
partners must enter into good-faith negotiations. Local WDBs, chief
elected officials, and one-stop partners may also request assistance
from a State agency responsible for administering the partner program,
the Governor, State WDB, or other appropriate parties on other aspects
of the MOU.
(b) Local WDBs and one-stop partners must establish, in the MOU,
how they will fund the infrastructure costs and other shared costs of
the one-stop centers. If agreement regarding infrastructure costs is
not reached when
[[Page 56063]]
other sections of the MOU are ready, an interim infrastructure funding
agreement may be included instead, as described in Sec. 463.715(c).
Once agreement on infrastructure funding is reached, the Local WDB and
one-stop partners must amend the MOU to include the infrastructure
funding of the one-stop centers. Infrastructure funding is described in
detail in Sec. Sec. 463.700 through 463.760.
(c) The Local WDB must report to the State WDB, Governor, and
relevant State agency when MOU negotiations with one-stop partners have
reached an impasse.
(1) The Local WDB and partners must document the negotiations and
efforts that have taken place in the MOU. The State WDB, one-stop
partner programs, and the Governor may consult with the appropriate
Federal agencies to address impasse situations related to issues other
than infrastructure funding after attempting to address the impasse.
Impasses related to infrastructure cost funding must be resolved using
the State infrastructure cost funding mechanism described in Sec.
463.730.
(2) The Local WDB must report failure to execute an MOU with a
required partner to the Governor, State WDB, and the State agency
responsible for administering the partner's program. Additionally, if
the State cannot assist the Local WDB in resolving the impasse, the
Governor or the State WDB must report the failure to the Secretary of
Labor and to the head of any other Federal agency with responsibility
for oversight of a partner's program.
Sec. 463.600 Who may operate one-stop centers?
(a) One-stop operators may be a single entity (public, private, or
nonprofit) or a consortium of entities. If the consortium of entities
is one of one-stop partners, it must include a minimum of three of the
one-stop partners described in Sec. 463.400.
(b) The one-stop operator may operate one or more one-stop centers.
There may be more than one one-stop operator in a local area.
(c) The types of entities that may be a one-stop operator include:
(1) An institution of higher education;
(2) An Employment Service State agency 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 chief elected official
and the Governor; or
(7) Another interested organization or entity, which is capable of
carrying out the duties of the one-stop operator. Examples may include
a local chamber of commerce or other business organization, or a labor
organization.
(d) Elementary schools and secondary schools are not eligible as
one-stop operators, except that a nontraditional public secondary
school such as a night school, adult school, or an area career and
technical education school may be selected.
(e) The State and Local WDBs must ensure that, in carrying out WIOA
programs and activities, one-stop operators:
(1) Disclose any potential conflicts of interest arising from the
relationships of the operators with particular training service
providers or other service providers (further discussed in 20 CFR
679.430);
(2) Do not establish practices that create disincentives to
providing services to individuals with barriers to employment who may
require longer-term career and training services; and
(3) Comply with Federal regulations and procurement policies
relating to the calculation and use of profits, including those at 20
CFR 683.295, the Uniform Guidance at 2 CFR part 200, and other
applicable regulations and policies.
Sec. 463.605 How is the one-stop operator selected?
(a) Consistent with paragraphs (b) and (c) of this section, the
Local WDB must select the one-stop operator through a competitive
process, as required by sec. 121(d)(2)(A) of WIOA, at least once every
4 years. A State may require, or a Local WDB may choose to implement, a
competitive selection process more than once every 4 years.
(b) In instances in which a State is conducting the competitive
process described in paragraph (a) of this section, the State must
follow the same policies and procedures it uses for procurement with
non-Federal funds.
(c) All other non-Federal entities, including subrecipients of a
State (such as local areas), must use a competitive process based on
local procurement policies and procedures and the principles of
competitive procurement in the Uniform Guidance set out at 2 CFR
200.318 through 200.326. All references to ``noncompetitive proposals''
in the Uniform Guidance at 2 CFR 200.320(f) will be read as ``sole
source procurement'' for the purposes of implementing this section.
(d) Entities must prepare written documentation explaining the
determination concerning the nature of the competitive process to be
followed in selecting a one-stop operator.
Sec. 463.610 When is the sole-source selection of one-stop operators
appropriate, and how is it conducted?
(a) States may select a one-stop operator through sole source
selection when allowed under the same policies and procedures used for
competitive procurement with non-Federal funds, while other non-Federal
entities including subrecipients of a State (such as local areas) may
select a one-stop operator through sole selection when consistent with
local procurement policies and procedures and the Uniform Guidance set
out at 2 CFR 200.320.
(b) In the event that sole source procurement is determined
necessary and reasonable, in accordance with Sec. 463.605(c), written
documentation must be prepared and maintained concerning the entire
process of making such a selection.
(c) Such sole source procurement must include appropriate conflict
of interest policies and procedures. These policies and procedures must
conform to the specifications in 20 CFR 679.430 for demonstrating
internal controls and preventing conflict of interest.
(d) A Local WDB may be selected as a one-stop operator through sole
source procurement only with agreement of the chief elected official in
the local area and the Governor. The Local WDB must establish
sufficient conflict of interest policies and procedures and these
policies and procedures must be approved by the Governor.
Sec. 463.615 May an entity currently serving as one-stop operator
compete to be a one-stop operator under the procurement requirements of
this subpart?
(a) Local WDBs may compete for and be selected as one-stop
operators, as long as appropriate firewalls and conflict of interest
policies and procedures are in place. These policies and procedures
must conform to the specifications in 20 CFR 679.430 for demonstrating
internal controls and preventing conflict of interest.
(b) State and local agencies may compete for and be selected as
one-stop operators by the Local WDB, as long as appropriate firewalls
and conflict of interest policies and procedures are in place. These
policies and procedures must conform to the specifications in 20 CFR
679.430 for demonstrating internal controls and preventing conflict of
interest.
(c) In the case of single-area States where the State WDB serves as
the Local WDB, the State agency is eligible to compete for and be
selected as operator
[[Page 56064]]
as long as appropriate firewalls and conflict of interest policies are
in place and followed for the competition. These policies and
procedures must conform to the specifications in 20 CFR 679.430 for
demonstrating internal controls and preventing conflicts of interest.
Sec. 463.620 What is the one-stop operator's role?
(a) At a minimum, the one-stop operator must coordinate the service
delivery of required one-stop partners and service providers. Local
WDBs may establish additional roles of one-stop operator, including,
but not limited to: Coordinating service providers across the one-stop
delivery system, being the primary provider of services within the
center, providing some of the services within the center, or
coordinating service delivery in a multi-center area, which may include
affiliated sites. The competition for a one-stop operator must clearly
articulate the role of the one-stop operator.
(b)(1) Subject to paragraph (b)(2) of this section, a one-stop
operator may not perform the following functions: Convene system
stakeholders to assist in the development of the local plan; prepare
and submit local plans (as required under sec. 107 of WIOA); be
responsible for oversight of itself; manage or significantly
participate in the competitive selection process for one-stop
operators; select or terminate one-stop operators, career services, and
youth providers; negotiate local performance accountability measures;
or develop and submit budget for activities of the Local WDB in the
local area.
(2) An entity serving as a one-stop operator, that also serves a
different role within the one-stop delivery system, may perform some or
all of these functions when it is acting in its other role, if it has
established sufficient firewalls and conflict of interest policies and
procedures. The policies and procedures must conform to the
specifications in 20 CFR 679.430 for demonstrating internal controls
and preventing conflict of interest.
Sec. 463.625 Can a one-stop operator also be a service provider?
Yes, but there must be appropriate firewalls in place in regards to
the competition, and subsequent oversight, monitoring, and evaluation
of performance of the service provider. The operator cannot develop,
manage, or conduct the competition of a service provider in which it
intends to compete. In cases where an operator is also a service
provider, there must be firewalls and internal controls within the
operator-service provider entity, as well as specific policies and
procedures at the Local WDB level regarding oversight, monitoring, and
evaluation of performance of the service provider. The firewalls must
conform to the specifications in 20 CFR 679.430 for demonstrating
internal controls and preventing conflicts of interest.
Sec. 463.630 Can State merit staff still work in a one-stop center
where the operator is not a governmental entity?
Yes. State merit staff can continue to perform functions and
activities in the one-stop center. The Local WDB and one-stop operator
must establish a system for management of merit staff in accordance
with State policies and procedures. Continued use of State merit staff
for the provision of Wagner-Peyser Act services or services from other
programs with merit staffing requirements must be included in the
competition for and final contract with the one-stop operator when
Wagner-Peyser Act services or services from other programs with merit
staffing requirements are being provided.
Sec. 463.635 What is the compliance date of the provisions of this
subpart?
(a) No later than July 1, 2017, one-stop operators selected under
the competitive process described in this subpart must be in place and
operating the one-stop center.
(b) By November 17, 2016, every Local WDB must demonstrate it is
taking steps to prepare for competition of its one-stop operator. This
demonstration may include, but is not limited to, market research,
requests for information, and conducting a cost and price analysis.
Sec. 463.700 What are the one-stop infrastructure costs?
(a) Infrastructure costs of one-stop centers are nonpersonnel costs
that are necessary for the general operation of the one-stop center,
including:
(1) Rental of the facilities;
(2) Utilities and maintenance;
(3) Equipment (including assessment-related products and assistive
technology for individuals with disabilities); and
(4) Technology to facilitate access to the one-stop center,
including technology used for the center's planning and outreach
activities.
(b) Local WDBs may consider common identifier costs as costs of
one-stop infrastructure.
(c) Each entity that carries out a program or activities in a local
one-stop center, described in Sec. Sec. 463.400 through 463.410, must
use a portion of the funds available for the program and activities to
maintain the one-stop delivery system, including payment of the
infrastructure costs of one-stop centers. These payments must be in
accordance with this subpart; Federal cost principles, which require
that all costs must be allowable, reasonable, necessary, and allocable
to the program; and all other applicable legal requirements.
Sec. 463.705 What guidance must the Governor issue regarding one-stop
infrastructure funding?
(a) The Governor, after consultation with chief elected officials,
the State WDB, and Local WDBs, and consistent with guidance and
policies provided by the State WDB, must develop and issue guidance for
use by local areas, specifically:
(1) Guidelines for State-administered one-stop partner programs for
determining such programs' contributions to a one-stop delivery system,
based on such programs' proportionate use of such system, and relative
benefit received, consistent with Office of Management and Budget (OMB)
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards in 2 CFR part 200, including
determining funding for the costs of infrastructure; and
(2) Guidance to assist Local WDBs, chief elected officials, and
one-stop partners in local areas in determining equitable and stable
methods of funding the costs of infrastructure at one-stop centers
based on proportionate use and relative benefit received, and
consistent with Federal cost principles contained in the Uniform
Guidance at 2 CFR part 200.
(b) The guidance must include:
(1) The appropriate roles of the one-stop partner programs in
identifying one-stop infrastructure costs;
(2) Approaches to facilitate equitable and efficient cost
allocation that results in a reasonable cost allocation methodology
where infrastructure costs are charged to each partner based on its
proportionate use of the one-stop centers and relative benefit
received, consistent with Federal cost principles at 2 CFR part 200;
and
(3) The timelines regarding notification to the Governor for not
reaching local agreement and triggering the State funding mechanism
described in Sec. 463.730, and timelines for a one-stop partner to
submit an appeal in the State funding mechanism.
Sec. 463.710 How are infrastructure costs funded?
Infrastructure costs are funded either through the local funding
mechanism
[[Page 56065]]
described in Sec. 463.715 or through the State funding mechanism
described in Sec. 463.730.
Sec. 463.715 How are one-stop infrastructure costs funded in the
local funding mechanism?
(a) In the local funding mechanism, the Local WDB, chief elected
officials, and one-stop partners agree to amounts and methods of
calculating amounts each partner will contribute for one-stop
infrastructure funding, include the infrastructure funding terms in the
MOU, and sign the MOU. The local funding mechanism must meet all of the
following requirements:
(1) The infrastructure costs are funded through cash and fairly
evaluated non-cash and third-party in-kind partner contributions and
include any funding from philanthropic organizations or other private
entities, or through other alternative financing options, to provide a
stable and equitable funding stream for ongoing one-stop delivery
system operations;
(2) Contributions must be negotiated between one-stop partners,
chief elected officials, and the Local WDB and the amount to be
contributed must be included in the MOU;
(3) The one-stop partner program's proportionate share of funding
must be calculated in accordance with the Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards in 2 CFR part 200 based upon a reasonable cost allocation
methodology whereby infrastructure costs are charged to each partner in
proportion to its use of the one-stop center, relative to benefits
received. Such costs must also be allowable, reasonable, necessary, and
allocable;
(4) Partner shares must be periodically reviewed and reconciled
against actual costs incurred, and adjusted to ensure that actual costs
charged to any one-stop partners are proportionate to the use of the
one-stop center and relative to the benefit received by the one-stop
partners and their respective programs or activities.
(b) In developing the section of the MOU on one-stop infrastructure
funding described in Sec. 463.755, the Local WDB and chief elected
officials will:
(1) Ensure that the one-stop partners adhere to the guidance
identified in Sec. 463.705 on one-stop delivery system infrastructure
costs.
(2) Work with one-stop partners to achieve consensus and informally
mediate any possible conflicts or disagreements among one-stop
partners.
(3) Provide technical assistance to new one-stop partners and local
grant recipients to ensure that those entities are informed and
knowledgeable of the elements contained in the MOU and the one-stop
infrastructure costs arrangement.
(c) The MOU may include an interim infrastructure funding
agreement, including as much detail as the Local WDB has negotiated
with one-stop partners, if all other parts of the MOU have been
negotiated, in order to allow the partner programs to operate in the
one-stop centers. The interim infrastructure funding agreement must be
finalized within 6 months of when the MOU is signed. If the interim
infrastructure funding agreement is not finalized within that
timeframe, the Local WDB must notify the Governor, as described in
Sec. 463.725.
Sec. 463.720 What funds are used to pay for infrastructure costs in
the local one-stop infrastructure funding mechanism?
(a) In the local funding mechanism, one-stop partner programs may
determine what funds they will use to pay for infrastructure costs. The
use of these funds must be in accordance with the requirements in this
subpart, and with the relevant partner's authorizing statutes and
regulations, including, for example, prohibitions against supplanting
non-Federal resources, statutory limitations on administrative costs,
and all other applicable legal requirements. In the case of partners
administering programs authorized by title I of WIOA, these
infrastructure costs may be considered program costs. In the case of
partners administering adult education and literacy programs authorized
by title II of WIOA, these funds must include Federal funds made
available for the local administration of adult education and literacy
programs authorized by title II of WIOA. These funds may also include
non-Federal resources that are cash, in-kind or third-party
contributions. In the case of partners administering the Carl D.
Perkins Career and Technical Education Act of 2006, funds used to pay
for infrastructure costs may include funds available for local
administrative expenses, non-Federal resources that are cash, in-kind
or third-party contributions, and may include other funds made
available by the State.
(b) There are no specific caps on the amount or percent of overall
funding a one-stop partner may contribute to fund infrastructure costs
under the local funding mechanism, except that contributions for
administrative costs may not exceed the amount available for
administrative costs under the authorizing statute of the partner
program. However, amounts contributed for infrastructure costs must be
allowable and based on proportionate use of the one-stop centers and
relative benefit received by the partner program, taking into account
the total cost of the one-stop infrastructure as well as alternate
financing options, and must be consistent with 2 CFR part 200,
including the Federal cost principles.
(c) Cash, non-cash, and third-party in-kind contributions may be
provided by one-stop partners to cover their proportionate share of
infrastructure costs.
(1) Cash contributions are cash funds provided to the Local WDB or
its designee by one-stop partners, either directly or by an interagency
transfer.
(2) Non-cash contributions are comprised of--
(i) Expenditures incurred by one-stop partners on behalf of the
one-stop center; and
(ii) Non-cash contributions or goods or services contributed by a
partner program and used by the one-stop center.
(3) Non-cash contributions, especially those set forth in paragraph
(c)(2)(ii) of this section, must be valued consistent with 2 CFR
200.306 to ensure they are fairly evaluated and meet the partners'
proportionate share.
(4) Third-party in-kind contributions are:
(i) Contributions of space, equipment, technology, non-personnel
services, or other like items to support the infrastructure costs
associated with one-stop operations, by a non-one-stop partner to
support the one-stop center in general, not a specific partner; or
(ii) Contributions by a non-one-stop partner of space, equipment,
technology, non-personnel services, or other like items to support the
infrastructure costs associated with one-stop operations, to a one-stop
partner to support its proportionate share of one-stop infrastructure
costs.
(iii) In-kind contributions described in paragraphs (c)(4)(i) and
(ii) of this section must be valued consistent with 2 CFR 200.306 and
reconciled on a regular basis to ensure they are fairly evaluated and
meet the proportionate share of the partner.
(5) All partner contributions, regardless of the type, must be
reconciled on a regular basis (i.e., monthly or quarterly), comparing
actual expenses incurred to relative benefits received, to ensure each
partner program is contributing its proportionate share in accordance
with the terms of the MOU.
[[Page 56066]]
Sec. 463.725 What happens if consensus on infrastructure funding is
not reached at the local level between the Local Workforce Development
Board, chief elected officials, and one-stop partners?
With regard to negotiations for infrastructure funding for Program
Year (PY) 2017 and for each subsequent program year thereafter, if the
Local WDB, chief elected officials, and one-stop partners do not reach
consensus on methods of sufficiently funding local infrastructure
through the local funding mechanism in accordance with the Governor's
guidance issued under Sec. 463.705 and consistent with the regulations
in Sec. Sec. 463.715 and 463.720, and include that consensus agreement
in the signed MOU, then the Local WDB must notify the Governor by the
deadline established by the Governor under Sec. 463.705(b)(3). Once
notified, the Governor must administer funding through the State
funding mechanism, as described in Sec. Sec. 463.730 through 463.738,
for the program year impacted by the local area's failure to reach
consensus.
Sec. 463.730 What is the State one-stop infrastructure funding
mechanism?
(a) Consistent with sec. 121(h)(1)(A)(i)(II) of WIOA, if the Local
WDB, chief elected official, and one-stop partners in a local area do
not reach consensus agreement on methods of sufficiently funding the
costs of infrastructure of one-stop centers for a program year, the
State funding mechanism is applicable to the local area for that
program year.
(b) In the State funding mechanism, the Governor, subject to the
limitations in paragraph (c) of this section, determines one-stop
partner contributions after consultation with the chief elected
officials, Local WDBs, and the State WDB. This determination involves:
(1) The application of a budget for one-stop infrastructure costs
as described in Sec. 463.735, based on either agreement reached in the
local area negotiations or the State WDB formula outlined in Sec.
463.745;
(2) The determination of each local one-stop partner program's
proportionate use of the one-stop delivery system and relative benefit
received, consistent with the Uniform Guidance at 2 CFR part 200,
including the Federal cost principles, the partner programs'
authorizing laws and regulations, and other applicable legal
requirements described in Sec. 463.736; and
(3) The calculation of required statewide program caps on
contributions to infrastructure costs from one-stop partner programs in
areas operating under the State funding mechanism as described in Sec.
463.738.
(c) In certain situations, the Governor does not determine the
infrastructure cost contributions for some one-stop partner programs
under the State funding mechanism.
(1) The Governor will not determine the contribution amounts for
infrastructure funds for Native American program grantees described in
20 CFR part 684. The appropriate portion of funds to be provided by
Native American program grantees to pay for one-stop infrastructure
must be determined as part of the development of the MOU described in
Sec. 463.500 and specified in that MOU.
(2) In States in which the policy-making authority is placed in an
entity or official that is independent of the authority of the Governor
with respect to the funds provided for adult education and literacy
activities authorized under title II of WIOA, postsecondary career and
technical education activities authorized under the Carl D. Perkins
Career and Technical Education Act of 2006, or VR services authorized
under title I of the Rehabilitation Act of 1973 (other than sec. 112 or
part C), as amended by WIOA title IV, the determination of the amount
each of the applicable partners must contribute to assist in paying the
infrastructure costs of one-stop centers must be made by the official
or chief officer of the entity with such authority, in consultation
with the Governor.
(d) Any duty, ability, choice, responsibility, or other action
otherwise related to the determination of infrastructure costs
contributions that is assigned to the Governor in Sec. Sec. 463.730
through 463.745 also applies to this decision-making process performed
by the official or chief officer described in paragraph (c)(2) of this
section.
Sec. 463.731 What are the steps to determine the amount to be paid
under the State one-stop infrastructure funding mechanism?
(a) To initiate the State funding mechanism, a Local WDB that has
not reached consensus on methods of sufficiently funding local
infrastructure through the local funding mechanism as provided in Sec.
463.725 must notify the Governor by the deadline established by the
Governor under Sec. 463.705(b)(3).
(b) Once a Local WDB has informed the Governor that no consensus
has been reached:
(1) The Local WDB must provide the Governor with local negotiation
materials in accordance with Sec. 463.735(a).
(2) The Governor must determine the one-stop center budget by
either:
(i) Accepting a budget previously agreed upon by partner programs
in the local negotiations, in accordance with Sec. 463.735(b)(1); or
(ii) Creating a budget for the one-stop center using the State WDB
formula (described in Sec. 463.745) in accordance with Sec.
463.735(b)(3).
(3) The Governor then must establish a cost allocation methodology
to determine the one-stop partner programs' proportionate shares of
infrastructure costs, in accordance with Sec. 463.736.
(4)(i) Using the methodology established under paragraph (b)(2)(ii)
of this section, and taking into consideration the factors concerning
individual partner programs listed in Sec. 463.737(b)(2), the Governor
must determine each partner's proportionate share of the infrastructure
costs, in accordance with Sec. 463.737(b)(1), and
(ii) In accordance with Sec. 463.730(c), in some instances, the
Governor does not determine a partner program's proportionate share of
infrastructure funding costs, in which case it must be determined by
the entities named in Sec. 463.730(c)(1) and (2).
(5) The Governor must then calculate the statewide caps on the
amounts that partner programs may be required to contribute toward
infrastructure funding, according to the steps found at Sec.
463.738(a)(1) through (4).
(6) The Governor must ensure that the aggregate total of the
infrastructure contributions according to proportionate share required
of all local partner programs in local areas under the State funding
mechanism do not exceed the cap for that particular program, in
accordance with Sec. 463.738(b)(1). If the total does not exceed the
cap, the Governor must direct each one-stop partner program to pay the
amount determined under Sec. 463.737(a) toward the infrastructure
funding costs of the one-stop center. If the total does exceed the cap,
then to determine the amount to direct each one-stop program to pay,
the Governor may:
(i) Ascertain, in accordance with Sec. 463.738(b)(2)(i), whether
the local partner or partners whose proportionate shares are calculated
above the individual program caps are willing to voluntarily contribute
above the capped amount to equal that program's proportionate share; or
(ii) Choose from the options provided in Sec. 463.738(b)(2)(ii),
including having the local area re-enter negotiations to reassess each
one-stop partner's proportionate share and make adjustments or identify
alternate sources
[[Page 56067]]
of funding to make up the difference between the capped amount and the
proportionate share of infrastructure funding of the one-stop partner.
(7) If none of the solutions given in paragraphs (b)(6)(i) and (ii)
of this section prove to be viable, the Governor must reassess the
proportionate shares of each one-stop partner so that the aggregate
amount attributable to the local partners for each program is less than
that program's cap amount. Upon such reassessment, the Governor must
direct each one-stop partner program to pay the reassessed amount
toward the infrastructure funding costs of the one-stop center.
Sec. 463.735 How are infrastructure cost budgets for the one-stop
centers in a local area determined in the State one-stop infrastructure
funding mechanism?
(a) Local WDBs must provide to the Governor appropriate and
relevant materials and documents used in the negotiations under the
local funding mechanism, including but not limited to: The local WIOA
plan, the cost allocation method or methods proposed by the partners to
be used in determining proportionate share, the proposed amounts or
budget to fund infrastructure, the amount of total partner funds
included, the type of funds or non-cash contributions, proposed one-
stop center budgets, and any agreed upon or proposed MOUs.
(b)(1) If a local area has reached agreement as to the
infrastructure budget for the one-stop centers in the local area, it
must provide this budget to the Governor as required by paragraph (a)
of this section. If, as a result of the agreed upon infrastructure
budget, only the individual programmatic contributions to
infrastructure funding based upon proportionate use of the one-stop
centers and relative benefit received are at issue, the Governor may
accept the budget, from which the Governor must calculate each
partner's contribution consistent with the cost allocation
methodologies contained in the Uniform Guidance found in 2 CFR part
200, as described in Sec. 463.736.
(2) The Governor may also take into consideration the extent to
which the partners in the local area have agreed in determining the
proportionate shares, including any agreements reached at the local
level by one or more partners, as well as any other element or product
of the negotiating process provided to the Governor as required by
paragraph (a) of this section.
(3) If a local area has not reached agreement as to the
infrastructure budget for the one-stop centers in the local area, or if
the Governor determines that the agreed upon budget does not adequately
meet the needs of the local area or does not reasonably work within the
confines of the local area's resources in accordance with the
Governor's one-stop budget guidance (which is required to be issued by
WIOA sec. 121(h)(1)(B) and under Sec. 463.705), then, in accordance
with Sec. 463.745, the Governor must use the formula developed by the
State WDB based on at least the factors required under Sec. 463.745,
and any associated weights to determine the local area budget.
Sec. 463.736 How does the Governor establish a cost allocation
methodology used to determine the one-stop partner programs'
proportionate shares of infrastructure costs under the State one-stop
infrastructure funding mechanism?
Once the appropriate budget is determined for a local area through
either method described in Sec. 463.735 (by acceptance of a budget
agreed upon in local negotiation or by the Governor applying the
formula detailed in Sec. 463.745), the Governor must determine the
appropriate cost allocation methodology to be applied to the one-stop
partners in such local area, consistent with the Federal cost
principles permitted under 2 CFR part 200, to fund the infrastructure
budget.
Sec. 463.737 How are one-stop partner programs' proportionate shares
of infrastructure costs determined under the State one-stop
infrastructure funding mechanism?
(a) The Governor must direct the one-stop partners in each local
area that have not reached agreement under the local funding mechanism
to pay what the Governor determines is each partner program's
proportionate share of infrastructure funds for that area, subject to
the application of the caps described in Sec. 463.738.
(b)(1) The Governor must use the cost allocation methodology--as
determined under Sec. 463.736--to determine each partner's
proportionate share of the infrastructure costs under the State funding
mechanism, subject to considering the factors described in paragraph
(b)(2) of this section.
(2) In determining each partner program's proportionate share of
infrastructure costs, the Governor must take into account the costs of
administration of the one-stop delivery system for purposes not related
to one-stop centers for each partner (such as costs associated with
maintaining the Local WDB or information technology systems), as well
as the statutory requirements for each partner program, the partner
program's ability to fulfill such requirements, and all other
applicable legal requirements. The Governor may also take into
consideration the extent to which the partners in the local area have
agreed in determining the proportionate shares, including any
agreements reached at the local level by one or more partners, as well
as any other materials or documents of the negotiating process, which
must be provided to the Governor by the Local WDB and described in
Sec. 463.735(a).
Sec. 463.738 How are statewide caps on the contributions for one-stop
infrastructure funding determined in the State one-stop infrastructure
funding mechanism?
(a) The Governor must calculate the statewide cap on the
contributions for one-stop infrastructure funding required to be
provided by each one-stop partner program for those local areas that
have not reached agreement. The cap is the amount determined under
paragraph (a)(4) of this section, which the Governor derives by:
(1) First, determining the amount resulting from applying the
percentage for the corresponding one-stop partner program provided in
paragraph (d) of this section to the amount of Federal funds provided
to carry out the one-stop partner program in the State for the
applicable fiscal year;
(2) Second, selecting a factor (or factors) that reasonably
indicates the use of one-stop centers in the State, applying such
factor(s) to all local areas in the State, and determining the
percentage of such factor(s) applicable to the local areas that reached
agreement under the local funding mechanism in the State;
(3) Third, determining the amount resulting from applying the
percentage determined in paragraph (a)(2) of this section to the amount
determined under paragraph (a)(1) of this section for the one-stop
partner program; and
(4) Fourth, determining the amount that results from subtracting
the amount determined under paragraph (a)(3) of this section from the
amount determined under paragraph (a)(1) of this section. The outcome
of this final calculation results in the partner program's cap.
(b)(1) The Governor must ensure that the funds required to be
contributed by each partner program in the local areas in the State
under the State funding mechanism, in aggregate, do not exceed the
statewide cap for each program as determined under paragraph (a) of
this section.
(2) If the contributions initially determined under Sec. 463.737
would exceed the applicable cap determined
[[Page 56068]]
under paragraph (a) of this section, the Governor may:
(i) Ascertain if the one-stop partner whose contribution would
otherwise exceed the cap determined under paragraph (a) of this section
will voluntarily contribute above the capped amount, so that the total
contributions equal that partner's proportionate share. The one-stop
partner's contribution must still be consistent with the program's
authorizing laws and regulations, the Federal cost principles in 2 CFR
part 200, and other applicable legal requirements; or
(ii) Direct or allow the Local WDB, chief elected officials, and
one-stop partners to: Re-enter negotiations, as necessary; reduce the
infrastructure costs to reflect the amount of funds that are available
for such costs without exceeding the cap levels; reassess the
proportionate share of each one-stop partner; or identify alternative
sources of financing for one-stop infrastructure funding, consistent
with the requirement that each one-stop partner pay an amount that is
consistent with the proportionate use of the one-stop center and
relative benefit received by the partner, the program's authorizing
laws and regulations, the Federal cost principles in 2 CFR part 200,
and other applicable legal requirements.
(3) If applicable under paragraph (b)(2)(ii) of this section, the
Local WDB, chief elected officials, and one-stop partners, after
renegotiation, may come to agreement, sign an MOU, and proceed under
the local funding mechanism. Such actions do not require the
redetermination of the applicable caps under paragraph (a) of this
section.
(4) If, after renegotiation, agreement among partners still cannot
be reached or alternate financing cannot be identified, the Governor
may adjust the specified allocation, in accordance with the amounts
available and the limitations described in paragraph (d) of this
section. In determining these adjustments, the Governor may take into
account information relating to the renegotiation as well as the
information described in Sec. 463.735(a).
(c) Limitations. Subject to paragraph (a) of this section and in
accordance with WIOA sec. 121(h)(2)(D), the following limitations apply
to the Governor's calculations of the amount that one-stop partners in
local areas that have not reached agreement under the local funding
mechanism may be required under Sec. 463.736 to contribute to one-stop
infrastructure funding:
(1) WIOA formula programs and Wagner-Peyser Act Employment Service.
The portion of funds required to be contributed under the WIOA youth,
adult, or dislocated worker programs, or under the Wagner-Peyser Act
(29 U.S.C. 49 et seq.) must not exceed three percent of the amount of
the program in the State for a program year.
(2) Other one-stop partners. For required one-stop partners other
than those specified in paragraphs (c)(1), (3), (5), and (6) of this
section, the portion of funds required to be contributed must not
exceed 1.5 percent of the amount of Federal funds provided to carry out
that program in the State for a fiscal year. For purposes of the Carl
D. Perkins Career and Technical Education Act of 2006, the cap on
contributions is determined based on the funds made available by the
State for postsecondary level programs and activities under sec. 132 of
the Carl D. Perkins Career and Technical Education Act and the amount
of funds used by the State under sec. 112(a)(3) of the Perkins Act
during the prior year to administer postsecondary level programs and
activities, as applicable.
(3) Vocational Rehabilitation
(i) Within a State, for the entity or entities administering the
programs described in WIOA sec. 121(b)(1)(B)(iv) and Sec. 463.400, the
allotment is based on the one State Federal fiscal year allotment, even
in instances where that allotment is shared between two State agencies,
and the cumulative portion of funds required to be contributed must not
exceed--
(A) 0.75 percent of the amount of Federal funds provided to carry
out such program in the State for Fiscal Year 2016 for purposes of
applicability of the State funding mechanism for PY 2017;
(B) 1.0 percent of the amount provided to carry out such program in
the State for Fiscal Year 2017 for purposes of applicability of the
State funding mechanism for PY 2018;
(C) 1.25 percent of the amount provided to carry out such program
in the State for Fiscal Year 2018 for purposes of applicability of the
State funding mechanism for PY 2019;
(D) 1.5 percent of the amount provided to carry out such program in
the State for Fiscal Year 2019 and following years for purposes of
applicability of the State funding mechanism for PY 2020 and subsequent
years.
(ii) The limitations set forth in paragraph (d)(3)(i) of this
section for any given fiscal year must be based on the final VR
allotment to the State in the applicable Federal fiscal year.
(4) Federal direct spending programs. For local areas that have not
reached a one-stop infrastructure funding agreement by consensus, an
entity administering a program funded with direct Federal spending, as
defined in sec. 250(c)(8) of the Balanced Budget and Emergency Deficit
Control Act of 1985, as in effect on February 15, 2014 (2 U.S.C.
900(c)(8)), must not be required to provide more for infrastructure
costs than the amount that the Governor determined (as described in
Sec. 463.737).
(5) TANF programs. For purposes of TANF, the cap on contributions
is determined based on the total Federal TANF funds expended by the
State for work, education, and training activities during the prior
Federal fiscal year (as reported to the Department of Health and Human
Services (HHS) on the quarterly TANF Financial Report form), plus any
additional amount of Federal TANF funds that the State TANF agency
reasonably determines was expended for administrative costs in
connection with these activities but that was separately reported to
HHS as an administrative cost. The State's contribution to the one-stop
infrastructure must not exceed 1.5 percent of these combined
expenditures.
(6) Community Services Block Grant (CSBG) programs. For purposes of
CSBG, the cap on contributions will be based on the total amount of
CSBG funds determined by the State to have been expended by local CSBG-
eligible entities for the provision of employment and training
activities during the prior Federal fiscal year for which information
is available (as reported to HHS on the CSBG Annual Report) and any
additional amount that the State CSBG agency reasonably determines was
expended for administrative purposes in connection with these
activities and was separately reported to HHS as an administrative
cost. The State's contribution must not exceed 1.5 percent of these
combined expenditures.
(d) For programs for which it is not otherwise feasible to
determine the amount of Federal funding used by the program until the
end of that program's operational year--because, for example, the
funding available for education, employment, and training activities is
included within funding for the program that may also be used for other
unrelated activities--the determination of the Federal funds provided
to carry out the program for a fiscal year under paragraph (a)(1) of
this section may be determined by:
(1) The percentage of Federal funds available to the one-stop
partner program that were used by the one-stop partner program for
education, employment, and training activities in
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the previous fiscal year for which data are available; and
(2) Applying the percentage determined under paragraph (d)(1) of
this section to the total amount of Federal funds available to the one-
stop partner program for the fiscal year for which the determination
under paragraph (a)(1) of this section applies.
Sec. 463.740 What funds are used to pay for infrastructure costs in
the State one-stop infrastructure funding mechanism?
(a) In the State funding mechanism, infrastructure costs for WIOA
title I programs, including Native American Programs described in 20
CFR part 684, may be paid using program funds, administrative funds, or
both. Infrastructure costs for the Senior Community Service Employment
Program under title V of the Older Americans Act (42 U.S.C. 3056 et
seq.) may also be paid using program funds, administrative funds, or
both.
(b) In the State funding mechanism, infrastructure costs for other
required one-stop partner programs (listed in Sec. Sec. 463.400
through 463.410) are limited to the program's administrative funds, as
appropriate.
(c) In the State funding mechanism, infrastructure costs for the
adult education program authorized by title II of WIOA must be paid
from the funds that are available for local administration and may be
paid from funds made available by the State or non-Federal resources
that are cash, in-kind, or third-party contributions.
(d) In the State funding mechanism, infrastructure costs for the
Carl D. Perkins Career and Technical Education Act of 2006 must be paid
from funds available for local administration of postsecondary level
programs and activities to eligible recipients or consortia of eligible
recipients and may be paid from funds made available by the State or
non-Federal resources that are cash, in-kind, or third-party
contributions.
Sec. 463.745 What factors does the State Workforce Development Board
use to develop the formula described in Workforce Innovation and
Opportunity Act, which is used by the Governor to determine the
appropriate one-stop infrastructure budget for each local area
operating under the State infrastructure funding mechanism, if no
reasonably implementable locally negotiated budget exists?
The State WDB must develop a formula, as described in WIOA sec.
121(h)(3)(B), to be used by the Governor under Sec. 463.735(b)(3) in
determining the appropriate budget for the infrastructure costs of one-
stop centers in the local areas that do not reach agreement under the
local funding mechanism and are, therefore, subject to the State
funding mechanism. The formula identifies the factors and corresponding
weights for each factor that the Governor must use, which must include:
the number of one-stop centers in a local area; the population served
by such centers; the services provided by such centers; and any factors
relating to the operations of such centers in the local area that the
State WDB determines are appropriate. As indicated in Sec.
463.735(b)(1), if the local area has agreed on such a budget, the
Governor may accept that budget in lieu of applying the formula
factors.
Sec. 463.750 When and how can a one-stop partner appeal a one-stop
infrastructure amount designated by the State under the State
infrastructure funding mechanism?
(a) The Governor must establish a process, described under sec.
121(h)(2)(E) of WIOA, for a one-stop partner administering a program
described in Sec. Sec. 463.400 through 463.410 to appeal the
Governor's determination regarding the one-stop partner's portion of
funds to be provided for one-stop infrastructure costs. This appeal
process must be described in the Unified State Plan.
(b) The appeal may be made on the ground that the Governor's
determination is inconsistent with proportionate share requirements in
Sec. 463.735(a), the cost contribution limitations in Sec.
463.735(b), the cost contribution caps in Sec. 463.738, consistent
with the process described in the State Plan.
(c) The process must ensure prompt resolution of the appeal in
order to ensure the funds are distributed in a timely manner,
consistent with the requirements of 20 CFR 683.630.
(d) The one-stop partner must submit an appeal in accordance with
State's deadlines for appeals specified in the guidance issued under
Sec. 463.705(b)(3), or if the State has not set a deadline, within 21
days from the Governor's determination.
Sec. 463.755 What are the required elements regarding infrastructure
funding that must be included in the one-stop Memorandum of
Understanding?
The MOU, fully described in Sec. 463.500, must contain the
following information whether the local areas use either the local one-
stop or the State funding method:
(a) The period of time in which this infrastructure funding
agreement is effective. This may be a different time period than the
duration of the MOU.
(b) Identification of an infrastructure and shared services budget
that will be periodically reconciled against actual costs incurred and
adjusted accordingly to ensure that it reflects a cost allocation
methodology that demonstrates how infrastructure costs are charged to
each partner in proportion to its use of the one-stop center and
relative benefit received, and that complies with 2 CFR part 200 (or
any corresponding similar regulation or ruling).
(c) Identification of all one-stop partners, chief elected
officials, and Local WDB participating in the infrastructure funding
arrangement.
(d) Steps the Local WDB, chief elected officials, and one-stop
partners used to reach consensus or an assurance that the local area
followed the guidance for the State funding process.
(e) Description of the process to be used among partners to resolve
issues during the MOU duration period when consensus cannot be reached.
(f) Description of the periodic modification and review process to
ensure equitable benefit among one-stop partners.
Sec. 463.760 How do one-stop partners jointly fund other shared costs
under the Memorandum of Understanding?
(a) In addition to jointly funding infrastructure costs, one-stop
partners listed in Sec. Sec. 463.400 through 463.410 must use a
portion of funds made available under their programs' authorizing
Federal law (or fairly evaluated in-kind contributions) to pay the
additional costs relating to the operation of the one-stop delivery
system. These other costs must include applicable career services and
may include other costs, including shared services.
(b) For the purposes of paragraph (a) of this section, shared
services' costs may include the costs of shared services that are
authorized for and may be commonly provided through the one-stop
partner programs to any individual, such as initial intake, assessment
of needs, appraisal of basic skills, identification of appropriate
services to meet such needs, referrals to other one-stop partners, and
business services. Shared operating costs may also include shared costs
of the Local WDB's functions.
(c) Contributions to the additional costs related to operation of
the one-stop delivery system may be cash, non-cash, or third-party in-
kind contributions, consistent with how these are described in Sec.
463.720(c).
(d) The shared costs described in paragraph (a) of this section
must be allocated according to the proportion of benefit received by
each of the partners, consistent with the Federal law authorizing the
partner's program, and
[[Page 56070]]
consistent with all other applicable legal requirements, including
Federal cost principles in 2 CFR part 200 (or any corresponding similar
regulation or ruling) requiring that costs are allowable, reasonable,
necessary, and allocable.
(e) Any shared costs agreed upon by the one-stop partners must be
included in the MOU.
Sec. 463.800 How are one-stop centers and one-stop delivery systems
certified for effectiveness, physical and programmatic accessibility,
and continuous improvement?
(a) The State WDB, in consultation with chief elected officials and
Local WDBs, must establish objective criteria and procedures for Local
WDBs to use when certifying one-stop centers.
(1) The State WDB, in consultation with chief elected officials and
Local WDBs, must review and update the criteria every 2 years as part
of the review and modification of State Plans pursuant to Sec.
463.135.
(2) The criteria must be consistent with the Governor's and State
WDB's guidelines, guidance, and policies on infrastructure funding
decisions, described in Sec. 463.705. The criteria must evaluate the
one-stop centers and one-stop delivery system for effectiveness,
including customer satisfaction, physical and programmatic
accessibility, and continuous improvement.
(3) When the Local WDB is the one-stop operator as described in 20
CFR 679.410, the State WDB must certify the one-stop center.
(b) Evaluations of effectiveness must include how well the one-stop
center integrates available services for participants and businesses,
meets the workforce development needs of participants and the
employment needs of local employers, operates in a cost-efficient
manner, coordinates services among the one-stop partner programs, and
provides access to partner program services to the maximum extent
practicable, including providing services outside of regular business
hours where there is a workforce need, as identified by the Local WDB.
These evaluations must take into account feedback from one-stop
customers. They must also include evaluations of how well the one-stop
center ensures equal opportunity for individuals with disabilities to
participate in or benefit from one-stop center services. These
evaluations must include criteria evaluating how well the centers and
delivery systems take actions to comply with the disability-related
regulations implementing WIOA sec. 188, set forth at 29 CFR part 38.
Such actions include, but are not limited to:
(1) Providing reasonable accommodations for individuals with
disabilities;
(2) Making reasonable modifications to policies, practices, and
procedures where necessary to avoid discrimination against persons with
disabilities;
(3) Administering programs in the most integrated setting
appropriate;
(4) Communicating with persons with disabilities as effectively as
with others;
(5) Providing appropriate auxiliary aids and services, including
assistive technology devices and services, where necessary to afford
individuals with disabilities an equal opportunity to participate in,
and enjoy the benefits of, the program or activity; and
(6) Providing for the physical accessibility of the one-stop center
to individuals with disabilities.
(c) Evaluations of continuous improvement must include how well the
one-stop center supports the achievement of the negotiated local levels
of performance for the indicators of performance for the local area
described in sec. 116(b)(2) of WIOA and part 463. Other continuous
improvement factors may include a regular process for identifying and
responding to technical assistance needs, a regular system of
continuing professional staff development, and having systems in place
to capture and respond to specific customer feedback.
(d) Local WDBs must assess at least once every 3 years the
effectiveness, physical and programmatic accessibility, and continuous
improvement of one-stop centers and the one-stop delivery systems using
the criteria and procedures developed by the State WDB. The Local WDB
may establish additional criteria, or set higher standards for service
coordination, than those set by the State criteria. Local WDBs must
review and update the criteria every 2 years as part of the Local Plan
update process described in Sec. 463.580. Local WDBs must certify one-
stop centers in order to be eligible to use infrastructure funds in the
State funding mechanism described in Sec. 463.730.
(e) All one-stop centers must comply with applicable physical and
programmatic accessibility requirements, as set forth in 29 CFR part
38, the implementing regulations of WIOA sec. 188.
Sec. 463.900 What is the common identifier to be used by each one-
stop delivery system?
(a) The common one-stop delivery system identifier is ``American
Job Center.''
(b) As of November 17, 2016, each one-stop delivery system must
include the ``American Job Center'' identifier or ``a proud partner of
the American Job Center network'' on all primary electronic resources
used by the one-stop delivery system, and on any newly printed,
purchased, or created materials.
(c) As of July 1, 2017, each one-stop delivery system must include
the ``American Job Center'' identifier or ``a proud partner of the
American Job Center network'' on all products, programs, activities,
services, electronic resources, facilities, and related property and
new materials used in the one-stop delivery system.
(d) One-stop partners, States, or local areas may use additional
identifiers on their products, programs, activities, services,
facilities, and related property and materials.
Signed at Washington, DC, this 29th day of June 2016.
Thomas E. Perez,
Secretary of Labor.
John B. King, Jr.,
Secretary of Education.
[FR Doc. 2016-15977 Filed 8-8-16; 11:15 am]
BILLING CODE 4000-01-P; 4510-FN-P; 4510-FT-P