[Federal Register Volume 83, Number 133 (Wednesday, July 11, 2018)]
[Notices]
[Pages 32151-32155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14747]


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DEPARTMENT OF LABOR

Employment and Training Administration


Employment and Training Administration (ETA) Program Year (PY) 
2018; Workforce Innovation and Opportunity Act (WIOA) Section 167, 
National Farmworker Jobs Program (NFJP) Formula Modifications and 
Allotments

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

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SUMMARY: This Notice announces updates and modifications to the 
allotment formula for the National Farmworker Jobs Program (NFJP), 
authorized under the Workforce Innovation and Opportunity Act (WIOA), 
Section 167, and allotments for Program Year (PY) 2018. These 
allotments are based on the enacted NFJP funding appropriation in the 
Consolidated Appropriation Act, 2018.
    On May 23, 2018, the Employment and Training Administration (ETA) 
published a notice in the Federal Register (83 FR 23937) concerning the 
use of updated data in and proposed modifications to the formula ETA 
uses to distribute funding for NFJP. The notice also presented 
preliminary State planning estimates for PY 2018. Public comments were 
requested at that time. The comment period closed May 30, 2018. This 
notice summarizes and responds to the comments, and publishes the final 
PY 2018 allotments.

DATES: The PY 2018 NFJP allotments cover July 1, 2018 through June 30, 
2019.

ADDRESSES: Questions on this notice can be submitted to [email protected] or 
the Employment and Training Administration, Office of Workforce 
Investment, 200 Constitution Ave. NW, Room C4510, Washington, DC 20210, 
Attention: Laura Iba[ntilde]ez, Unit Chief, (202) 693-3645 or Steven 
Rietzke, Division Chief at (202) 693-3912.

FOR FURTHER INFORMATION CONTACT: Laura Iba[ntilde]ez, Unit Chief, (202) 
693-3645 or Steven Rietzke, Division Chief at (202) 693-3912.

SUPPLEMENTARY INFORMATION: This notice is published pursuant to Section 
182(d) of the WIOA, Prompt Allotment of Funds.

I. Background

    This notice represents the second of a two-stage process. In the 
first stage, ETA solicited and considered public comments regarding the 
use of updated data in and three proposed modifications to the NFJP 
allotment formula. Based on the comments and ETA's consideration of 
them, ETA has applied the updated data to the formula and implemented 
two of the three proposed modifications. In this second stage, the 
final formula modifications are described and the resulting allotments 
are published. The updated data and modifications have been processed 
in accordance with the allotment formula methodology, which was 
described in detail in a notice that was published in the Federal 
Register on May 19, 1999 (64 FR 27390), which is accessible at https://www.federalregister.gov/.
    The formula was developed for the purpose of distributing funds 
geographically by State service area, on the basis of each State 
service area's relative share of persons eligible for the program. New 
data from each of the four data files that have been the basis of the 
formula since 1999 are used to determine the distribution of PY 2018 
funds. In addition, beginning in PY 2018, ETA will implement two 
modifications to the allotment formula, which will result in more 
accurate estimates of each State service area's relative share of 
persons eligible for the program. The modifications are the result of 
ETA's review of the formula in the context of the NFJP-eligible 
population and farm labor market changes, ETA's consideration of public 
comments received in response to the May 23, 2018 Federal Register 
Notice (FRN) (83 FR 23937), and feedback that it received from NFJP 
grantees prior to and following informational webinars that ETA hosted 
on February 23, 2017, and April 27, 2017.
    Section II of this notice reviews the formula updates and 
modifications that were proposed in the May 23, 2018 notice.
    Section III summarizes the comments that ETA received in response 
to the May 23, 2018 notice and ETA's decisions concerning the allotment 
formula based on those comments.
    Section IV describes a hold-harmless provision, which will be put 
into place for the implementation year and the following years. The 
hold-harmless provision is designed to provide a

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staged transition from old to new funding levels for State service 
areas. This was also proposed and discussed in the May 23, 2018 FRN (83 
FR 23937).
    Section V describes minimum funding provisions to address State 
service areas which would receive less than $60,000.
    Section VI describes the application of the formula and the hold-
harmless provision using allotments for PY 2018.

II. Formula Updates and Modifications

    As with all State allotments since 1999, the PY 2018 allotments are 
based on four data sources: (1) State-level, hired farm labor 
expenditure data from the United States Department of Agriculture's 
(USDA) Census of Agriculture (COA); (2) regional-level, average hourly 
earnings data from the USDA's Farm Labor Survey (FLS); (3) regional-
level, demographic data from ETA's National Agricultural Workers Survey 
(NAWS); and, (4) Lower Living Standard Income Level data from the 
United States Census Bureau's American Community Survey (ACS). The PY 
2018 allotments are based on 2012 COA and FLS data, 2006 to 2014 NAWS 
data, and 2010 to 2014 ACS data. A detailed description of how each 
data source is used in the formula is in the May 19, 1999 FRN (64 FR 
27390) on pages 27396 to 27399.
    In addition to populating the formula with new data, two 
modifications have been implemented. Both are ``back-out'' adjustments 
to the COA hired labor expenditures (Wage Bill) to account for: (1) 
Unemployment Insurance (UI) payroll tax payments made on behalf of 
farmworkers; and (2) expenditures on H-2A workers. A third modification 
was proposed to align the allotment formula with the definition of 
dependent under WIOA Section 167(i)(2)(B) and (3)(B) by accounting for 
eligible dependents ages 14 and over of eligible Migrant and Seasonal 
Farmworkers (MSFW) in each State's share of the total eligible 
population. However, based on public comments and ETA's consideration 
of them, the third modification will not be implemented. The rationale 
for not implementing this modification is described in Section III, 
below.
    Modifications 1 and 2 more accurately estimate each State's share 
of the NFJP-eligible population. Modification 1 removes non-wages from 
COA farm labor expenditures. UI payroll tax payments, which vary by 
State, are not wages. Modification 2 removes labor expenditures on H-2A 
workers from COA farm labor expenditures to align the allotment formula 
with the NFJP-eligible population. Therefore, including the UI payroll 
tax payments and labor expenditures on H-2A workers in the formula did 
not accurately count the number of eligible NFJP participants.

III. Response to Public Comments

    ETA received a total of 24 comments from four commenters. Nine 
comments were general in nature, one concerned Modification 1, two 
concerned Modification 2, nine concerned Modification 3, and three 
concerned state-specific issues. The following is a summary of these 
comments and ETA's response.

A. General Comments

    General comments concerned basic elements of the formula, applying 
newer data to and modifying the formula, support for including a hold-
harmless mechanism, and questions about how a hold-harmless works. 
Several of the general comments were supportive of using updated data 
in and modifying the allotment formula. Support for the modifications, 
however, was limited to modifications 1 and 2: Backing out UI and H-2A 
expenditures from the COA Wage Bill, respectively. Two general comments 
concerned the accounting of work-authorized farmworkers in the formula. 
One commenter opined that no modification was made to account for 
farmworkers who do not have authorization to work in the United States, 
and one commenter inquired if ETA used 2013-2014 NAWS data on work 
authorization status to determine the total number of NFJP-eligible 
individuals. One commenter opined that the data used in the formula 
will not fully capture the totality of MSFWs to whom grantees provide 
services, while another opined that the Legal Services Corporation's 
allotment formula is a better representation of the NFJP-eligible 
population. Lastly, there was a general question about how the hold-
harmless mechanism affects grantees' percentage of the allotment.
    ETA used nine years (2006-2014) of regional-level NAWS data to 
determine the share of crop hours in each state that were performed by 
NFJP-eligible crop workers. The eligibility criteria included whether a 
crop worker was authorized to work in the United States. The 
application of NAWS data to the allotment formula is discussed in 
greater detail in the May 19, 1999 FRN (64 FR 27390) on pages 27397 to 
27399. While ETA is aware that the formula does not account for the 
totality of the NFJP-eligible population, it is not aware of data 
sources that could be used to estimate subpopulations of NFJP-eligible 
farmworkers that would meet the requirements for allotment formula of 
accuracy, transparency, and reliance on published data.
    Although there are similarities between the LSC and ETA formula, 
they are different, because they are constructed for different 
purposes. While LSC's formula is designed to estimate the total number 
of agricultural workers and their dependents who are eligible for LSC-
funded services, ETA's formula is concerned with determining each State 
service area's relative share of the NFJP-eligible population. 
Therefore, ETA will not adopt the LSC formula.
    The hold-harmless functions in the following manner. There is a 
limited total amount of funding to be distributed to all of the states. 
For states that would have lost funds based on the formula without the 
hold-harmless, when the hold-harmless is applied, funding must be 
reduced from other states that did not fall below the hold-harmless to 
make up the shortfall. This reduction is implemented by formula 
proportionally across the affected states. In some cases, this can 
result in a state experiencing a reduction in funding with the hold-
harmless provision even though it would have experienced an increase 
without the hold-harmless provision. However, in no instance will a 
state's funding fall below the hold-harmless level.

B. Modification 1 Comment

    One commenter agreed that it was appropriate to remove UI payroll 
tax payments from Census of Agriculture farm labor expenditures 
(Modification 1), noting that UI payments are not wages, and UI rules, 
regulations, and rates vary by State.
    ETA is pleased that it is now possible to back out this number from 
the calculation of the NFJP allotment formula.

C. Modification 2 Comments

    One commenter questioned the backing out of H-2A expenditures from 
COA expenditures (Modification 2) due to: (1) A recent increase in the 
number of foreign-born farmworkers employed through the H-2A program, 
which could create an increase in emergencies for which NFJP grantees 
will be asked to provide assistance; and (2) a greater coordination, 
stemming from the enactment of the WIOA, between State Monitor 
Advocates (SMA) and NFJP grantees regarding the provision of emergency 
services for H-2A farmworkers.
    ETA has determined that Modification 2 is needed to strike a 
balance between ETA policy concerning the utilization of grant funds 
for

[[Page 32153]]

emergency services and the primary purpose of NFJP, which is to 
strengthen the ability of eligible MSFWs and their dependents to obtain 
or retain unsubsidized employment, stabilize their unsubsidized 
employment, and achieve economic self-sufficiency, including upgraded 
employment in agriculture (WIOA 20 CFR 685.100).

D. Modification 3 Comments

    Of the nine comments concerning Modification 3, only one was 
supportive. Generally, commenters expressed concern that Modification 3 
caused big changes in funding levels for some states, particularly 
those in the Midwest that have large numbers of animal agricultural 
workers relative to crop workers. One commenter pointed out that the 
Department was able to estimate the share of animal agricultural 
workers in each state with income below the Lower Living Standard 
Income Level (LLSIL) and inquired if the Department was also able to 
estimate the number of dependents of animal agricultural workers and, 
if not, whether it would be possible to assume animal agricultural and 
crop workers are similar with respect to the number of their offspring. 
Another commenter opined that the Department should either use data on 
crop workers to estimate the number of dependents of animal 
agricultural workers or drop Modification 3. One commenter inquired if 
the Department had used NAWS data to account for eligible dependents of 
eligible MSFWs in each State's share of the total NFJP-eligible 
population and, if so, had it accounted for the fact that some children 
of farmworkers are themselves farmworkers, while another commenter 
opined that the Department triple-counted dependents because some are 
themselves farmworkers and some have two farmworker parents. Lastly, 
one commenter expressed concern that grantees were not given sufficient 
time to comment on Modification 3.
    ETA informed the public through the May 23, 2018 FRN (83 FR 23937) 
of its proposal to use NAWS data to estimate, by region, the average 
number of NFJP-eligible dependents ages 14 and above per MSFW-eligible 
crop worker and, in doing so, accounted for the fact that some 
dependents are themselves farmworkers.
    Based on the public comments received, ETA agrees with the comments 
that states with large numbers of animal agricultural workers relative 
to crop workers would be unfairly impacted by this modification. As 
such, it has not applied Modification 3 to the PY 2018 allotment 
formula. Should survey data on animal agricultural workers, like NAWS 
data on crop workers, become available, ETA would reconsider applying 
this modification to the formula and would give the public an 
opportunity to comment.
    Although in some circumstances it may be appropriate to use 
demographic data collected from crop agricultural workers to estimate 
the characteristics of animal agricultural workers, ETA does not 
believe it would be appropriate to use crop worker data to estimate, by 
region of the country, the average number of NFJP-eligible dependents 
per eligible MSFW employed in animal agriculture. Doing so would 
require ETA to make a large number of assumptions, which would fail to 
adhere to the requirements for allotment formula of accuracy, 
transparency, and reliance on published data.
    Regarding the question and opinion about over-counting dependents 
of crop workers, ETA confirms that it did not over-count these 
dependents. ETA reviewed the analysis program that was used to 
estimate, by region, the average number of eligible dependents ages 14 
and over per eligible MSFW and confirms that dependents who themselves 
worked in agriculture were not included in the analysis. Furthermore, 
crop workers in families where the spouse was also a farmworker were 
weighted appropriately, so that the number of dependents in such 
families was not overestimated.
    ETA will include background analyses steps, such as these, in a 
future FRN concerning changes to the allotment formula involving the 
calculation of dependents, should it ever determine that it is able to 
account for eligible dependents of eligible MSFWs employed in animal 
agriculture in the NFJP allotment formula.

E. State-Specific Comments

    Two commenters inquired how a particular state would be impacted by 
the hold-harmless, and one inquired about the breakdown of funds, 
within a particular state, by grantee.
    ETA would like to clarify that a State's hold-harmless is not based 
on its PY 2018 allotment percentage share without the hold-harmless. 
The calculation is based on 95 percent of its PY 2017 allotment 
percentage share (column 2) as applied to the PY 2018 formula funds 
available.
    Regarding the breakdown of a State's award by grantee within that 
State, ETA will provide this information when it issues its final 
allotment TEGL.

IV. Description of the Hold-Harmless Provision

    For PY 2018, 2019, and 2020, the Department intends to apply a 
hold-harmless provision to the allotment formula in order to allow a 
staged transition from the application of the previous formula to the 
modified formula. The hold-harmless provision provides for a stop loss/
stop gain limit to transition to the use of the updated data. Due to 
the length of time since the data has been updated, it is anticipated 
there may be significant changes for a few states, necessitating the 
stop loss/stop gain approach. The stop loss/stop gain approach is based 
on a State service area's previous year's allotment percentage share, 
which is its relative share of the total formula allotments. The staged 
transition of the hold-harmless provision will be implemented 
specifically as follows:
    (1) In PY 2018, State service areas will receive an amount equal to 
at least 95 percent of their PY 2017 allotment percentage share, as 
applied to the PY 2018 formula funds available;
    (2) In PY 2019, State service areas will receive an amount equal to 
at least 90 percent of their PY 2018 allotment percentage share, as 
applied to the PY 2019 formula funds available;
    (3) In PY 2020, State service areas will receive an amount equal to 
at least 85 percent of their PY 2019 allotment percentage share, as 
applied to the PY 2020 formula funds available.
    In PY 2018, 2019, and 2020, the hold-harmless provision also 
provides that no State service area will receive an amount that is more 
than 150 percent of their previous year's allotment percentage share.
    In PY 2021, since the Department has a responsibility to use the 
most current and reliable data available, amounts for the new awards 
will be based on updated data from the sources described in Section II, 
pending their availability. At that time, the Department will determine 
whether the changes to State allotments are significant enough to 
warrant another hold-harmless provision. Otherwise, allotments to each 
State service area will be for an amount resulting from a direct 
allotment of the proposed funding formula without adjustment.

V. Minimum Funding Provisions

    A State area that would receive less than $60,000 by application of 
the formula will, at the option of the DOL, receive no allotment or, if 
practical, be combined with another adjacent State area. Funding below 
$60,000 is deemed insufficient for sustaining an

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independently administered program. However, if practical, a State 
jurisdiction that would receive less than $60,000 may be combined with 
another adjacent State area.

VI. Program Year 2018 Allotments

    The state allotments set forth in the Table appended to this notice 
reflect the distribution resulting from the allotment formula described 
above. For PY 2017, $81,896,000 was appropriated for migrant and 
seasonal farmworker programs, of which $75,505,575 was allotted on the 
basis of the old formula after $407,010 was set aside for program 
integrity. The remaining $5,489,415 of the PY 2017 appropriation was 
retained to fund housing grants after $27,585 was set aside for program 
integrity, and $494,000 was retained for Training and Technical 
Assistance. The figures in the first numerical column show the actual 
PY 2017 formula allotments to State service areas. The next column 
shows the percentage of each allotment.
    For PY 2018, the funding level provided for in the Consolidated 
Appropriations Act, 2018 for the migrant and seasonal farmworker 
program is $81,203,000 and will be allotted on the basis of the 
formula. For purposes of illustrating the effects of the allotment 
formula, the State service area allotments with the application of the 
first-year (95 percent) hold-harmless and minimum funding provisions, 
followed by the percentages, are shown in columns 3 and 4. The 
difference between PY 2017 and PY 2018 allotments are shown in column 
5. The sixth column of the Table shows the allotments based on the 
formula without the application of the hold-harmless or minimum funding 
provisions. The percentages are reported in column 7.

Rosemary Lahasky,
Deputy Assistant Secretary for Employment and Training, Labor.
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[FR Doc. 2018-14747 Filed 7-10-18; 8:45 am]
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