[Federal Register Volume 87, Number 177 (Wednesday, September 14, 2022)]
[Proposed Rules]
[Pages 56340-56354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19003]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 684, 686, and 688

[Docket No. ETA-2022-0005]
RIN 1205-AC08


Workforce Innovation and Opportunity Act Title I Non-Core 
Programs Effectiveness in Serving Employers Performance Indicator

AGENCY: Employment and Training Administration (ETA), Labor.

ACTION: Proposed rule.

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SUMMARY: The Workforce Innovation and Opportunity Act (WIOA) 
established six primary indicators of performance for certain WIOA-
authorized programs. Currently, the regulations contain definitions for 
five of the six performance indicators. In the final rule implementing 
WIOA, the U.S. Departments of Labor and Education (the Departments) 
indicated that they would initially implement the sixth indicator of 
performance--effectiveness in serving employers--in the form of a pilot 
program to test the feasibility and rigor of three proposed approaches. 
With the pilot completed, the Departments are engaging in a rulemaking 
under RIN 1205-AC01 to incorporate a standard definition of the 
performance indicator for effectiveness in serving employers into the 
implementing regulations for the six WIOA core programs. In this 
related rulemaking, the Department of Labor (DOL or the Department) is 
proposing to incorporate the same definition of the effectiveness in 
serving employers performance indicator into regulations for title I 
non-core programs: the Indian and Native American (INA) programs, the 
Job Corps program, the YouthBuild programs, and the National Farmworker 
Jobs Program (NFJP).

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before November 14, 2022.

ADDRESSES: You may submit comments, identified by Docket No. ETA-2022-
0005 and Regulatory Identification Number (RIN) 1205-AC08, through the 
Federal eRulemaking Portal: https://www.regulations.gov. Search for the 
above-referenced RIN, open the proposed rule, and follow the on-screen 
instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking or ``1205-AC08.'' Because of the 
narrow scope of this proposed regulation, the Department encourages 
commenters to submit, and the Department will consider only comments, 
regarding the definition of the effectiveness in serving employers 
performance indicator for WIOA title I non-core programs as set forth 
herein. The proposed amendments are limited to the sections of the 
regulations detailed in this rulemaking.
    Please be advised that the Department will post all comments 
received that relate to this notice of proposed rulemaking (NPRM) 
without changes to https://www.regulations.gov, including any personal 
information provided. The https://www.regulations.gov website is the 
Federal e-Rulemaking Portal and all

[[Page 56341]]

comments posted there are available and accessible to the public. 
Therefore, the Department recommends that commenters remove personal 
information (either about themselves or others) such as Social Security 
numbers, personal addresses, telephone numbers, and email addresses 
included in their comments, as such information may become easily 
available to the public via the https://www.regulations.gov website. It 
is the responsibility of the commenter to safeguard personal 
information.
    Because of the direct relationship between this proposed rule and 
the Workforce Innovation and Opportunity Act Effectiveness in Serving 
Employers Performance Indicator; Joint proposed rule (RIN 1205-AC01) 
and to ensure that comments are reviewed and considered, the Department 
encourages commenters to submit only comments regarding the proposed 
amendments to the title I non-core program regulations, which are 
limited to the sections of the regulations detailed in this proposed 
rule, to the docket that corresponds to this rulemaking action. 
Comments on other provisions and aspects of the WIOA regulations will 
be considered outside the scope of this rulemaking and will not be 
considered by the Department.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov (search using RIN 
1205-AC08 or Docket No. ETA-2022-0005).
    Comments Under the Paperwork Reduction Act of 1995 (PRA): In 
addition to filing comments on any aspect of this proposed rule with 
the Department, interested parties may submit comments that concern the 
information collection (IC) aspects of this NPRM to the Office of 
Information and Regulatory Affairs (OIRA) at https://www.reginfo.gov/public/do/PRAMain. Find the relevant information collection by 
selecting ``Currently under Review--Open for Public Comments'' or by 
using the search function.

FOR FURTHER INFORMATION CONTACT: Heidi Casta, Acting 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), 1-877-872-5627, or 1-800-326-2577 
(telecommunications device for the deaf).

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Background and Rulemaking Authority
II. Effectiveness in Serving Employers Performance Indicator 
Approaches for WIOA Core Programs, as Relevant to WIOA Non-Core 
Programs
III. Effectiveness in Serving Employers Performance Indicator for 
WIOA Title I Non-Core Programs
    A. Part 684--Indian and Native American Programs
    B. Part 685--National Farmworker Jobs Program
    C. Part 686--Job Corps Program
    D. Part 688--YouthBuild Programs
IV. Regulatory Analysis and Review
    A. Executive Orders 12866 (Regulatory Planning and Review) and 
13563 (Improving Regulation and Regulatory Review)
    B. Regulatory Flexibility Act, Small Business Regulatory 
Enforcement Fairness Act, and Executive Order 13272 (Proper 
Consideration of Small Entities in Agency Rulemaking)
    C. Paperwork Reduction Act
    D. Executive Order 13132 (Federalism)
    E. Unfunded Mandates Reform Act
    F. Executive Order 13175 (Indian Tribal Governments)

Acronyms and Abbreviations

AEFLA Adult Education and Family Literacy Act
CFR Code of Federal Regulations
Departments U.S. Departments of Labor and Education
DOL or Department U.S. Department of Labor
E.O. Executive Order
ES Employment Service
ETA Employment and Training Administration
FR Federal Register
GPMS Grantee Performance Management System
ICR Information Collection Request
INA Indian and Native American
MSFW migrant and seasonal farmworker
NAETC Native American Employment and Training Council
NFJP National Farmworker Jobs Program
NPRM or proposed rule notice of proposed rulemaking
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
PIRL Participant Individual Record Layout
PRA Paperwork Reduction Act of 1995
Pub. L. Public Law
PY Program Year
RFA Regulatory Flexibility Act
RIA Regulatory impact analysis
RIN Regulation Identifier Number
Stat. United States Statutes at Large
UI unemployment insurance
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
TEGL Training and Employment Guidance Letter
VR Vocational Rehabilitation
WIOA Workforce Innovation and Opportunity Act
WIPS Workforce Integrated Performance System

I. Background and Rulemaking Authority

    President Barack Obama signed WIOA into law on July 22, 2014. WIOA, 
the first legislative reform of the public workforce system in more 
than 15 years, superseded the Workforce Investment Act of 1998 and 
amended the Wagner-Peyser Act and the Rehabilitation Act of 1973. WIOA 
reaffirmed the role of the customer-focused one-stop delivery system, a 
cornerstone of the public workforce system, and enhanced and increased 
coordination among several key employment, education, and training 
programs. The law also includes a common performance accountability 
system, consisting of six statutory primary indicators of performance, 
applicable to all WIOA core programs: adult, dislocated worker, and 
youth programs under title I of WIOA; the Adult Education and Family 
Literacy Act (AEFLA) program under title II; the Employment Service 
(ES) program authorized under the Wagner-Peyser Act as amended by WIOA 
title III; and the Vocational Rehabilitation (VR) program authorized 
under title I of the Rehabilitation Act as amended by WIOA title IV. 
WIOA also required that the six statutory primary indicators of 
performance apply to four WIOA title I, DOL-administered non-core 
programs: INA programs (WIOA sec. 166(e)(5)), the NFJP (WIOA sec. 
167(c)(2)(C)), Job Corps (WIOA sec. 159(c)(1)), and YouthBuild (WIOA 
sec. 171(f)) (hereinafter ``title I non-core programs'').
    Other DOL-administered WIOA title I non-core programs and projects 
(e.g., National Dislocated Worker Grants under WIOA sec. 170, the 
Reentry Employment Opportunities grants under WIOA sec. 169 and annual 
appropriations acts) also report on the WIOA sec. 116 primary 
indicators of performance, as directed by Training and Employment 
Guidance Letter (TEGL) No. 14-18, ``Aligning Performance Accountability 
Reporting, Definitions, and Policies Across Workforce Employment and 
Training Programs Administered by the U.S. Department of Labor (DOL),'' 
and the DOL-only performance Information Collection Request (ICR), 
Office of Management and Budget (OMB) Control Number 1205-0521, ``DOL-
Only Performance Accountability, Information, and Reporting System.'' 
However, unlike the other title I non-core programs that are the 
subject of this rulemaking, WIOA did not mandate the use of the sec. 
116 performance indicators for these other title I programs. Those 
programs are not the subject of, or addressed in, this

[[Page 56342]]

rulemaking, but for some of these programs, the Department has chosen 
to apply the sec. 116 primary indicators to assess performance.\1\ For 
those programs, the proposed definition of effectiveness in serving 
employers performance indicator also would be applied.
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    \1\ Pages 2 through 5 of TEGL No. 14-18, ``Aligning Performance 
Accountability Reporting, Definitions, and Policies Across Workforce 
Employment and Training Programs Administered by the U.S. Department 
of Labor (DOL),'' provide the current list of DOL-administered non-
core programs for which DOL has chosen to apply these performance 
reporting requirements, which include programs authorized by WIOA, 
as well as programs authorized by other Federal legislation. TEGL 
No. 14-18, Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611. The list of programs may change to reflect 
policy changes and updates to Federal legislation authorizing DOL's 
non-core programs.
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    In WIOA, Congress directed the Department to issue regulations 
implementing statutory requirements to ensure that the public workforce 
system operates as a comprehensive, integrated, and streamlined system 
in order to provide pathways to prosperity and continuously improve the 
quality and performance of its services to job seekers and employers. 
On August 19, 2016, the Department issued the Workforce Innovation and 
Opportunity Act; Final Rule (DOL WIOA Final Rule) to implement WIOA for 
the title I non-core programs (81 FR 56071). That same day the 
Departments jointly issued the Workforce Innovation and Opportunity 
Act; Joint Rule for Unified and Combined State Plans, Performance 
Accountability, and the One-Stop System Joint Provisions; Final Rule 
(Joint WIOA Final Rule) to implement WIOA for the six core programs (81 
FR 55791).
    Under WIOA, there are six primary indicators of performance that 
apply to the core programs and the title I non-core programs authorized 
under WIOA. The statute defines five of the six performance indicators. 
However, the statute did not specify how effectiveness in serving 
employers should be measured. Instead, WIOA directed the Departments to 
develop a definition for the effectiveness in serving employers 
performance indicator (WIOA sec. 116(b)(2)(A)(iv)).\2\ At that time, 
the Departments concluded that there was not enough evidence to adopt a 
standard definition. Therefore, in the Joint WIOA Final Rule, the 
Departments determined that it was prudent to pilot three definitions 
for the sixth performance indicator to test the feasibility and rigor 
of three approaches to measure a State's effectiveness in serving 
employers through its WIOA-authorized programs. As discussed more fully 
below, during the pilot period the Department, through guidance \3\ and 
the ``DOL-Only Performance Accountability, Information, and Reporting 
System'' ICR, approved under OMB Control Number 1205-0521, required the 
title I non-core programs to report on one of the three definitions 
being piloted.
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    \2\ Section 116(b)(2)(A) of WIOA states the primary indicators 
of performance: (1) the percentage of participants who are employed 
during the second and (2) fourth quarters after exit from the 
program, (3) the median earnings of participants who are employed 
during the second quarter after exit, (4) the percentage of 
participants who obtain a recognized postsecondary credential during 
the program or within 1 year of exit, (5) the percentage of 
participants who achieve measurable skill gains during a program 
year, and (6) ``indicators of effectiveness in serving employers.'' 
This last indicator is the subject of this NPRM. Definitions of the 
others were included in the WIOA regulations promulgated in August 
2016 (81 FR 55791; see 20 CFR 677.155, 34 CFR 361.155, 34 CFR 
463.155).
    \3\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability 
Reporting, Definitions, and Policies Across Workforce Employment and 
Training Programs Administered by the U.S. Department of Labor 
(DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
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    As detailed later in this NPRM, that pilot, as well as a study of 
the results from the pilot, are now complete. The Departments are 
engaging in two rulemakings to incorporate into the WIOA regulations a 
proposed standard definition of the performance indicator for 
effectiveness in serving employers. This proposed definition is meant 
to apply to both WIOA core programs--which are addressed in the 
concurrently published Workforce Innovation and Opportunity Act 
Effectiveness in Serving Employers Performance Indicator; Joint 
proposed rule (RIN 1205-AC01) (herein after referred to as Joint 
Effectiveness in Serving Employers NPRM)--as well as the four title I 
non-core programs, which are addressed in this NPRM.
    WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C) 
(NFJP), and 171(f) (YouthBuild) specify that performance for these 
title I non-core programs must be assessed using the primary indicators 
of performance for WIOA core programs. In this proposed rule, the 
Department is proposing to codify the approach for evaluating a 
program's effectiveness in serving employers. When finalized, this 
rulemaking would result in the codification of all the primary 
performance indicators for these programs--including the effectiveness 
in serving employers indicator--just as with the WIOA core programs.

II. Effectiveness in Serving Employers Performance Indicator Approaches 
for WIOA Core Programs, as Relevant to WIOA Non-Core Programs

    Section 677.155 sets forth the primary indicators by which the 
performance of core programs is evaluated, as required by WIOA sec. 
116(b)(2)(A)(i). These primary indicators of performance apply to the 
core programs described in WIOA sec. 116(b)(3)(A)(ii), as well as to 
the title I non-core programs. These primary indicators of performance 
create a common language shared across the programs' performance 
metrics, support system alignment, enhance programmatic decision 
making, and help participants make informed decisions related to 
training. Sections 116(b)(2)(A)(i)(VI) and (iv) of WIOA require the 
Secretaries of Labor and Education to jointly develop and establish the 
sixth performance indicator--effectiveness in serving employers--after 
consultation with representatives of State and local governments, 
business and industry, and other interested parties.
    In the Joint Effectiveness in Serving Employers NPRM, the 
Departments are proposing to define the effectiveness in serving 
employers performance indicator in Sec.  677.155(a)(1)(vi) as the 
percentage of participants with wage records who exited a program and 
were employed by the same employer in the second and fourth quarters 
after exit and specifies that this is a statewide indicator reported by 
one core program on behalf of all six core programs in the State. The 
Department is proposing this is same language for the WIOA title I non-
core programs in this NPRM; however, the statewide aspect of the 
definition in the proposed Joint Effectiveness in Serving Employers 
NPRM would not apply to WIOA title I non-core programs. The Department 
seeks comment in this NPRM on how the proposed definition of 
effectiveness in serving employers performance indicator would impact 
the title I non-core programs.
    Prior to selecting this single approach to propose, the Departments 
selected three approaches for measuring effectiveness in serving 
employers to be piloted by WIOA core programs. The Departments assessed 
the use of each of the three approaches with a focus on minimizing 
employer burden and using information that would provide an accurate 
picture of how well the public workforce system serves employers.
    Under the guidance of the Departments,\4\ each State piloted its

[[Page 56343]]

choice of any two of three definitions for the effectiveness in serving 
employers performance indicator for WIOA core programs: (1) Retention 
with the Same Employer: Percentage of participants with wage records 
who exited from WIOA core programs and were employed by the same 
employer in the second and fourth quarters after exit; (2) Repeat 
Business Customer: Percentage of employers who have used WIOA core 
program services more than once during the last three reporting 
periods; and (3) Employer Penetration: Percentage of employers using 
WIOA core program services out of all employers in the State.
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    \4\ This joint guidance, ``Performance Accountability Guidance 
for Workforce Innovation and Opportunity Act (WIOA) Title I, Title 
II, Title III, and Title IV Core Programs,'' was concurrently issued 
on December 19, 2016, as TEGL No. 10-16 by the Department of Labor, 
and as Office of Career, Technical, and Adult Education Program 
Memorandum 17-2 and Rehabilitation Services Administration Technical 
Assistance Circular (TAC) TAC-17-01 by the Department of Education.
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    The Departments assessed the pilot through a Department of Labor 
contract that resulted in a final report titled Measuring the 
Effectiveness of Services to Employers: Options for Performance 
Measures under the Workforce Innovation and Opportunity Act.\5\ 
Specifically, the study assessed each approach to defining the 
effectiveness in serving employers performance indicator for validity, 
reliability, practicality, and unintended consequences.\6\ Though the 
study did not definitively recommend one approach, in assessing the 
study's findings for each of the three approaches of the effectiveness 
in serving employers performance indicator, the Departments concluded 
that the Retention with the Same Employer approach provides a valid and 
reliable approach to measuring the indicator, while also placing the 
least amount of burden on States to implement.
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    \5\ S. Spaulding, et al., ``Measuring the Effectiveness of 
Services to Employers: Options for Performance Measures under the 
Workforce Innovation and Opportunity Act,'' Jan. 2021, https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf.
    \6\ See id. at 3-6 (stating that validity ``is used to assess 
whether you are measuring what you intend to measure''; that 
reliability ``refers to the ability to maintain consistency in data 
collection over time and across organizations collecting the data''; 
that practicality means that the measure ``must be relatively 
uncomplicated and simple to administer to avoid threats to 
reliability and validity'' and ``must be practical to use in 
administrating programs''; and that unintended consequences are 
``negative consequences or behaviors that result, like the 
displacement of goals or conflict with other goals.''
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    The study authors identified strengths for the Repeat Business 
Customer approach, including that it serves as a proxy for employer 
satisfaction. In the study, the authors also identified weaknesses in 
the Repeat Business Customer approach, including that it: (1) may 
provide a disincentive to reach out to new employers; (2) is subject to 
variation in industry and sector economic conditions; and (3) may 
require a statistical adjustment model to mitigate the weaknesses and 
improve implementation and interpretation.\7\ The study authors 
identified strengths for the Employer Penetration approach, including 
that the dataset used for this measure is comprehensive, covering more 
than 95 percent of U.S. jobs. The study authors also identified 
weaknesses in the Employer Penetration approach through the study, 
including: (1) emphasis on quantity rather than quality or intensity of 
the employer service provided; (2) reliability issues associated with 
data entry and the process to count unique establishments; (3) 
measurement of program output rather than outcome; (4) potential for 
creation of perverse incentives to prioritize program breadth rather 
than depth in service and delivery; and (5) lack of sensitivity to 
industry sectors targeted by State and local workforce agencies.\8\ The 
Departments considered the study's findings and concurred with its 
conclusions on the Repeat Business Customer and Employer Penetration 
approaches.
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    \7\ S. Spaulding, et al., ``Measuring the Effectiveness of 
Services to Employers: Options for Performance Measures under the 
Workforce Innovation and Opportunity Act,'' Jan. 2021, p. 67, 
https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf.
    \8\ S. Spaulding, et al., ``Measuring the Effectiveness of 
Services to Employers: Options for Performance Measures under the 
Workforce Innovation and Opportunity Act,'' Jan. 2021, p. 68, 
https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf.
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    The study did not identify any significantly advantageous 
alternatives to defining the effectiveness in serving employers 
performance indicator outside of the three proposals (Executive 
Summary, pp. xx-xxi).
    Nevertheless, the Departments identified the following advantages 
regarding the Retention with the Same Employer definition of the 
effectiveness in serving employers performance indicator:
     Demonstration of Effectiveness: Retention with the Same 
Employer demonstrates a continued relationship between the employer and 
participants who have exited WIOA programs. While many circumstances 
affect an employer's retention of employees, an indication that an 
employee maintains employment with the same employer in both the second 
and fourth quarters after exiting from a WIOA program demonstrates a 
level of success for WIOA customers (i.e., successfully preparing 
participants to fill jobs that meet employers' needs). Retention of an 
employee reduces the costs to the employer associated with employee 
turnover and retraining. The other two approaches are based only on 
employer data and fail to capture any level of job match effectiveness.
     Stable Collection Mechanism: Retention with the Same 
Employer uses data already collected in the WIOA Joint Performance ICR 
(OMB Control Number 1205-0526). While not all States selected this 
approach in the pilot, all States collect this information under the 
existing WIOA Joint Performance ICR. In contrast, the Participant 
Individual Record Layout (PIRL) in the WIOA Joint Performance ICR does 
not currently collect data elements used for the Repeat Business 
Customer and Employer Penetration approaches to the performance 
indicator.
     Alignment with Employment Performance Indicators: 
Retention with the Same Employer aligns with the performance indicators 
for employment in the second and fourth quarters after exit, which are 
existing performance indicators that all WIOA core programs already 
report.
    Of the three approaches piloted with the States, Retention with the 
Same Employer is the least burdensome for both States and employers, as 
noted in the Joint WIOA Final Rule regulatory impact analysis (RIA) (81 
FR 55792, 55968). DOL gives particular weight to reporting burden, 
especially for the competitive grantees with generally less reporting 
capacity than States, in order to allow grantees to focus on services 
and improve the accuracy and completeness of the data. However, the 
Department acknowledges that the limitations for Retention with the 
Same Employer could include the unintended consequences that this 
approach may be at odds with an employee seeking a higher paying job or 
employment benefits, and the possibility that the performance outcome 
for this indicator might not be the result of an employer receiving a 
service from the workforce development system. Prioritizing the 
advantages discussed above (i.e., stable data collection mechanism, 
alignment with other employment performance indicators, and 
demonstrating maintained relationships between employers and 
employees), the Department has determined Retention

[[Page 56344]]

with the Same Employer is the preferred approach of measuring 
effectiveness in serving employers and are proposing that approach in 
the Joint Effectiveness in Serving Employers NPRM. For further 
information on the pilot, including the Departments' findings regarding 
the utility of each pilot definition and reasoning for selecting the 
Retention with the Same Employer performance indicator definition, 
please refer to the Joint Effectiveness in Serving Employers NPRM, 
which is published concurrently with this NPRM elsewhere in this issue 
of the Federal Register.

III. Effectiveness in Serving Employers Performance Indicator for WIOA 
Title I Non-Core Programs

    Although the four WIOA title I non-core programs in this 
rulemaking--Job Corps, INA, NFJP, and YouthBuild--did not participate 
in the core program pilot, these title I non-core program fund 
recipients (i.e., Job Corps contractors and INA, NFJP, and YouthBuild 
grantees) were apprised of the three proposed definitions for the 
effectiveness in serving employers performance indicator that the pilot 
studied.\9\ Moreover, the title I non-core program recipients have been 
required to report on Retention with the Same Employer since at least 
2019. In TEGL No. 14-18 the Department implemented WIOA's performance 
reporting requirements by requiring the non-core programs to use the 
Retention with the Same Employer definition of the effectiveness in 
serving employers performance indicator.
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    \9\ See Joint WIOA Final Rule, 81 FR 55791, 55845-55846 
(discussing the pilot and the three proposed definitions for the 
effectiveness in serving employers performance indicator); ETA, TEGL 
No. 10-16, ``Performance Accountability Guidance for Workforce 
Innovation and Opportunity Act (WIOA) Title I, Title II, Title III, 
and Title IV Core Programs,'' Dec. 19, 2016, https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=8226; ETA, TEGL No. 14-18, ``Aligning 
Performance Accountability Reporting, Definitions, and Policies 
Across Workforce Employment and Training Programs Administered by 
the U.S. Department of Labor (DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611 (referring the 
title I non-core programs to TEGL No. 10-16 for a description of the 
pilot).
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    Under this proposed rule, the WIOA title I non-core programs would 
be subject to the same data collection and reporting requirements as 
they have been under TEGL No. 14-18. The TEGL specified that, starting 
in Program Year (PY) 2018 (or the point at which wage matching data 
becomes available to the program), the Job Corps, INA, NFJP, and 
YouthBuild programs were to begin tracking the effectiveness in serving 
employers performance indicator using the Retention with the Same 
Employer definition. Consistent with related guidance issued in PYs 
2016, 2017, and 2018,\10\ these programs were required to use the 
Workforce Integrated Performance System (WIPS), the online performance 
reporting system for the Department's employment and training 
grants,\11\ to submit information that would be used for calculating 
the effectiveness in serving employers performance indicator.\12\ These 
requirements are all included in an existing information collection, 
the WIOA PIRL (ETA 9172), in the ``DOL-Only Performance Accountability, 
Information, and Reporting System'' ICR, approved under OMB Control 
Number 1205-0521. By proposing to use the Retention with the Same 
Employer definition for this indicator, the NPRM would require programs 
to use already-collected data and the existing performance reporting 
system, WIPS. Thus, programs would not have additional burden to 
collect and report on any other type of additional data to calculate 
and report results for other possible approaches to defining this 
performance indicator. Finally, TEGL No. 14-18 also put forth program-
specific timelines for implementation of the WIOA reporting 
requirements factoring in data lags associated with the performance 
indicator as well as known implementation actions such as case 
management system development, which are further detailed below in each 
program-specific section. In summary, for these four title I non-core 
programs (Job Corps, INA, NFJP, and YouthBuild), this NPRM proposes to 
codify in regulation the existing practice of reporting Retention with 
the Same Employer in order to measure a program's effectiveness in 
serving employers.
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    \10\ ETA, Training and Employment Notice (TEN) No. 08-06, 
``Implementation of an Integrated Performance Reporting System for 
Multiple Employment and Training Administration (ETA) and Veterans' 
Employment and Training Service (VETS) Administered Programs,'' Aug. 
24, 2016, https://wdr.doleta.gov/directives/attach/TEN/TEN_08-16.pdf; ETA, TEN 40-16, ``Workforce Integrated Performance System 
(WIPS) User Resource Library Information Page,'' Apr. 11, 2017, 
https://wdr.doleta.gov/directives/attach/TEN/TEN_40-16_Acc.pdf.; 
ETA, TEGL No. 14-18, ``Aligning Performance Accountability 
Reporting, Definitions, and Policies Across Workforce Employment and 
Training Programs Administered by the U.S. Department of Labor 
(DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
    \11\ ETA, ``Workforce Integrated Performance System (WIPS),'' 
https://www.dol.gov/agencies/eta/performance/wips (last visited Jan. 
9, 2022).
    \12\ Specifically, the programs are required to report the wage 
records or supplemental wage information, as directed in program-
specific guidance, which are used to identify whether a program 
participant's employer wage record indicates a match of the same 
establishment identifier (e.g., Federal Employer Identification 
Number or State tax identifier) in the second and fourth quarters 
after exit from the program.
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    As discussed above, the Department has concluded that the benefits 
of this proposed performance indicator definition with regard to the 
core programs--that, among other things, it places a low burden on the 
programs and employers, has a stable method of collection through wage 
records, and demonstrates a level of success for WIOA customers--are 
also applicable to the title I non-core programs. Using the proposed 
Retention with the Same Employer definition of the effectiveness in 
serving employers indicator, which would be the same definition used to 
assess the core programs, has the advantage of assessing performance 
consistently across the WIOA programs. This is consistent with one of 
the central purposes of WIOA: ``[t]o support the alignment of workforce 
investment, education, and economic development systems in support of a 
comprehensive, accessible, and high-quality workforce development 
system in the United States.'' WIOA sec. 2(2). Additionally, because 
WIOA applies the effectiveness in serving employers performance 
indicator to the WIOA core and title I non-core programs, applying the 
same definition of effectiveness in serving employers for all of these 
WIOA programs could allow the Department to build a common body of data 
that can be used to study effectiveness in serving employers across the 
entire workforce system.
    While reporting this performance indicator contributes to the 
holistic data analysis of the workforce system, the Department 
recognizes that drawbacks to this proposed definition exist for the 
title I non-core programs, especially due to the unique nature of 
programs focused on youth and migrant or seasonal workers. 
Nevertheless, the Department believes that the benefits of this 
approach outweigh those drawbacks. Moreover, the Department intends to 
mitigate these drawbacks, if necessary, by exercising its discretion to 
place appropriate weight on the effectiveness in serving employers 
performance indicator. Title I non-core programs that serve youth, for 
example, focus on employment, career readiness, retention in education, 
and life skills to support youth participants in obtaining academic and 
career skills necessary to be successful in the job market, and success 
for youth is more likely to include progression in jobs. Recognizing 
the unique circumstances title I non-core programs may face, the 
Department expects variability in the reported outcomes from program to 
program,

[[Page 56345]]

especially for programs serving youth, and intends to take this 
variability into account when negotiating levels of performance. These 
considerations are consistent with TEGL No. 14-18 guidance for 
applicability of primary performance indicators, which specifies that, 
as a general matter, participants' outcomes on the applicable primary 
indicators of performance may be relevant for negotiating levels of 
performance, decisions related to contract awards and renewal, and the 
award of competitive grants.\13\
---------------------------------------------------------------------------

    \13\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability 
Reporting, Definitions, and Policies Across Workforce Employment and 
Training Programs Administered by the U.S. Department of Labor 
(DOL),'' p. 8, Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
---------------------------------------------------------------------------

    It should be kept in mind that the effectiveness in serving 
employers performance indicator is unique among all other indicators in 
that it is employer-focused. Employers are critical partners with title 
I non-core programs in providing quality services and employment 
opportunities to program participants.
    While WIOA does require an effectiveness in serving employers 
indicator to be applied to the title I non-core programs that are the 
subject of this rulemaking, the Department is soliciting comments to 
better inform implementation of the effectiveness in serving employers 
performance indicator for these programs, particularly those currently 
undergoing transition to the Grantee Performance Management System 
(GPMS). The Department is particularly interested in hearing from the 
regulated community regarding challenges that they might face in 
implementing this proposed definition of the effectiveness in serving 
employers performance indicator; challenges they have faced under TEGL 
No. 14-18, which serves as the basis for how the performance indicator 
is proposed to be defined in this NPRM; experiences they have had in 
considering alternate ways to measure effectiveness in serving 
employers; and other definitions that might be more suitable.

A. Part 684--Indian and Native American Programs

    Part 684 governs the INA programs authorized under WIOA sec. 166, 
including programs for Native American youth (INA Supplemental Youth 
Services). The INA programs are intended to support employment and 
training activities for INA program participants in order to develop 
more fully academic, occupational, and literacy skills and to serve 
unemployed and low-income INA populations seeking to achieve economic 
self-sufficiency consistent with the goals and values of the particular 
communities. Where active, INA programs are required one-stop center 
partners. The Department administers these programs to maximize Federal 
commitment to support the growth and development of INAs and their 
communities as determined by representatives of such communities while 
meeting the applicable statutory and regulatory requirements.
    WIOA sec. 166(h)(2) requires the Department to reach an agreement 
with Tribal Governments--and the respective entities administering the 
programs--as to the levels of performance required for each core 
indicator, including an effectiveness in serving employers performance 
indicator. The Department is also required to work with the Native 
American Employment and Training Council (NAETC) to develop a set of 
performance indicators and standards for the INA adult and youth 
programs in addition to the primary indicators used to measure 
performance (WIOA sec. 166(h)(1)(A)).
    Beginning with PY 2018, ETA has applied the effectiveness in 
serving employers performance indicator to INA adult grants as it is 
described in TEGL No. 14-18, using the Retention with the Same Employer 
definition of the performance indicator. Specifically, on March 25, 
2019, TEGL No. 14-18, Attachment 2 provided that the definition for 
effectiveness in serving employers performance indicator for INA 
program reporting purposes would be consistent with the Retention with 
the Same Employer approach applicable to DOL-administered WIOA title I 
non-core programs and described in Appendix I of the TEGL. On November 
20, 2019, the ICR approved under OMB Control Number 1205-0521 formally 
established for INA programs the calculation of effectiveness in 
serving employers and the collection of required elements for the 
effectiveness in serving employers performance indicator. The cohort of 
INA adult program participants who exited after July 1, 2020, is the 
first that may have effectiveness in serving employers data collected, 
which will be compiled and analyzed in summer 2022.
    For the INA Supplemental Youth Services program, the DOL WIOA Final 
Rule and TEGL No. 14-18 both acknowledged the significant challenges in 
implementing the performance indicators in WIOA sec. 116(b)(2)(A)(ii). 
In implementing these performance indicators in TEGL No. 14-18, the 
Department gave consideration as to how youth performance indicators 
can be implemented in a way that is realistic and feasible for INA 
program grantees while also implementing the requirements in WIOA. INA 
Supplemental Youth Services program participants will be reported once 
the INA youth case management system modernization has been completed, 
at which time it will be at least six additional quarters until the 
first data on effectiveness in serving employers will be available. INA 
grantees will eventually report on this performance indicator, but 
given the complexity of aligning data elements and building new systems 
to report such data, the Department is using the transition authority 
found in WIOA sec. 503(b) to work co-operatively with grant program 
organizations to transition to reporting of the information over 
time.\14\
---------------------------------------------------------------------------

    \14\ ETA, TEN No. 8-16, ``Implementation of an Integrated 
Performance Reporting System for Multiple Employment and Training 
Administration (ETA) and Veterans' Employment and Training Service 
(VETS) Administered Programs,'' Aug. 24, 2016.
---------------------------------------------------------------------------

    In 2021, as part of the development of this proposed rule, the 
Department held two events \15\ to consult with INA program grantees 
and representatives of Tribal institutions about their experiences with 
the implementation and operation of the effectiveness in serving 
employers performance indicator under TEGL No. 14-18. Participants at 
these two events expressed several concerns and questions, including: 
(1) how the Retention with the Same Employer performance indicator 
definition takes into account participants' employer, wage, or position 
changes; (2) how temporary jobs, such as seasonal or contract-based 
employment, would be considered; (3) the impact on performance of 
limited-duration summer employment opportunities for high school 
students within INA youth programs, (4) data collection and reporting 
process for INA youth programs, (5) use of and access to wage records 
that may not account for self-employed participants, and (6) the need 
for consideration of all Tribal communities and their unique needs. 
Other commenters suggested other ways to define the calculation of the

[[Page 56346]]

performance indicator. One commenter asserted that the Department is 
not required to assess INA grantees on their effectiveness in serving 
employers. Section IV.F of this document, which pertains to Executive 
Order (E.O.) 13175 (Indian Tribal Governments), summarizes details from 
these events and requests further comments to provide the Department 
with recommendations and suggestions to address the issues identified 
through this consultation. The concerns raised during the consultation 
process can be classified into several categories: (1) issues focusing 
on services to participants (wages and position changes, temporary or 
contract jobs, and summer employment); (2) administrative and data 
tracking (data collection and use of wage records); (3) the needs of 
the Tribal communities.
---------------------------------------------------------------------------

    \15\ The first event was a town hall discussion on September 21, 
2021. See NAETC, ``41st National Indian and Native American 
Employment and Training Program,'' Sept. 20-23, 2021, http://www.ninaetc.net/41%20NINAETC%20PROGRAM_FINAL.pdf. The second event, 
a consultation webinar, occurred on October 19, 2021. See ``Tribal 
Consultation; Workforce Innovation and Opportunity Act, 
Implementation of the Effectiveness in Serving Employers Performance 
Indicator; Notice of Tribal Consultation; Virtual Meeting,'' 86 FR 
54244 (Sept. 30, 2021).
---------------------------------------------------------------------------

    If this rulemaking is finalized as proposed, the Department intends 
to work with INA program grantees to mitigate these concerns. First, 
INA program grantees' services to participants also are measured and 
assessed through the other five WIOA primary indicators of performance, 
and the Department recognizes the importance of these indicators in 
assessing the performance of INA program grantees. The effectiveness in 
serving employers performance indicator, unlike the other indicators, 
which are focused on program participants, focuses on how the WIOA 
programs are serving employers. As explained above, the proposed 
performance indicator definition of Retention with the Same Employer is 
one metric by which to ascertain how employers are being served by 
these programs. Second, the Department acknowledges and understands the 
challenges related to reporting for INA program grantees and is working 
to ensure that all INA program grantees have the systems and resources 
needed to report the information required for this performance 
indicator. Third, the Department acknowledges the concerns of Tribal 
communities and their unique needs. WIOA makes provision for the 
Department to negotiate additional performance indicators and standards 
taking into account the needs of participants and the economic 
circumstances of the communities INA program grantees serve. See WIOA 
sec. 166(h)(1). The Department will negotiate these additional 
performance indicators keeping these considerations in the forefront of 
the negotiations process. INA program grantee performance also is 
assessed based on these outcomes. Effectiveness in serving employers is 
not the only metric for assessing INA program grantee performance.
    While the Department acknowledges the concerns that have been 
expressed by INA grantees during the Tribal consultation for this 
proposed rule regarding application of the effectiveness in serving 
employers to INA adult and youth programs and will work to mitigate the 
issues such concerns raise, we note that WIOA requires the performance 
of these programs to be measured using the WIOA sec. 116 six statutory 
indicators of performance, including effectiveness in serving 
employers. Specifically, WIOA sec. 166(h)(2) requires the Secretary to 
reach agreement on the levels of performance for each of the primary 
indicators of performance described in WIOA sec. 116(b)(2)(A), which 
includes the effectiveness in serving employers indicator.
    Further, as explained above, the benefits of defining this measure 
using Retention with the Same Employer, including that it minimizes 
reporting burdens for INA program grantees, outweigh the drawbacks, as 
well as providing more benefits than the use of either of the other 
performance indicator definitions piloted by the core programs. To 
fulfill the intent of WIOA's common performance accountability system, 
the Department is proposing to define effectiveness in serving 
employers for the INA programs using the Retention with the Same 
Employer approach so that the Department can measure effectiveness in 
serving employers consistently across core programs and the title I 
non-core programs.
    Additionally, the Department notes that WIOA sec. 166(i)(3) and the 
WIOA regulations at 20 CFR part 684 subpart I allow the Department to 
waive requirements, including performance requirements, that are 
inconsistent with the specific needs of INA grantees. Based on 
consultation with the NAETC, the Department issued guidance TEGL No. 
04-19, ``Waiver Authority for the INA Program and Implementation of 
Additional Indicators of Performance,'' \16\ which provides how INA 
grantees can request waivers of performance indicators, and how 
grantees with waivers can report on alternative performance indicators 
for INA adult and youth programs. As consultation commenters discussed, 
performance reporting can be particularly challenging for smaller 
grantees. Therefore, if this rulemaking is finalized as proposed, 
consistent with this waiver guidance, the Department would accept and 
promptly make determinations on requests submitted by grantees for 
waivers of performance indicators, including effectiveness in serving 
employers, so that grantees can structure their performance indicators 
to best fit the economic circumstances of the communities served and 
improve positive outcomes.
---------------------------------------------------------------------------

    \16\ ETA, TEGL No. 04-19, ``Waiver Authority for the INA Program 
and Implementation of Additional Indicators of Performance,'' Aug. 
29, 2019, https://wdr.doleta.gov/directives/attach/TEGL/TEGL_4-19_acc.pdf.
---------------------------------------------------------------------------

Section 684.460--What performance indicators are applicable to the 
supplemental youth services program?
    Section 684.460(a) sets out the performance indicators that apply 
to INA youth programs, including an indicator of the effectiveness of 
serving employers--specifically in paragraph (a)(6)--as established 
under WIOA sec. 116(b)(2)(A)(iv). This NPRM proposes to change the 
language currently found in paragraph (a)(6) to align with the 
effectiveness in serving employers performance indicator language 
proposed at Sec.  677.155(a)(1)(vi) in the Joint Effectiveness in 
Serving Employers NPRM. Specifically, proposed Sec.  684.460(a)(6) 
would define the required effectiveness in serving employers 
performance indicator as the percentage of participants with wage 
records in the second quarter after exit who were employed by the same 
employer in the second and fourth quarters after exit.
Section 684.620--What performance indicators are in place for the 
Indian and Native American program?
    Section 684.620(a) lists the performance indicators used to 
evaluate the INA programs, including an effectiveness in serving 
employers performance indicator. Like the proposed changes to Sec.  
684.460(a)(6), the Department proposes changing the existing language 
at Sec.  684.620(a)(6) to define the required effectiveness in serving 
employers performance indicator as the percentage of participants with 
wage records in the second quarter after exit who were employed by the 
same employer in the second and fourth quarters after exit. This 
definition of effectiveness in serving employers aligns with the 
effectiveness in serving employers performance indicator language 
proposed at Sec.  677.155(a)(1)(vi) in the Joint Effectiveness in 
Serving Employers NPRM.

[[Page 56347]]

B. Part 685--National Farmworker Jobs Program

    Part 685 establishes regulations for NFJP, authorized in title I, 
subtitle D of WIOA. The NFJP is a nationally directed, locally 
administered program of services for migrant and seasonal farmworkers 
(MSFWs) and their dependents. Grant recipients help program 
participants acquire new skills to either stabilize or advance their 
agricultural careers or obtain employment in a new industry, as well as 
working to meet the critical need of safe and sanitary permanent and 
temporary housing for farmworkers and their families.
    The NFJP would be impacted by the proposed addition of the 
definition of the effectiveness in serving employers performance 
indicator in 20 CFR part 677. Section 167(c)(3) of WIOA (29 U.S.C. 
3222) requires the Department to use the six WIOA primary indicators of 
performance, including the effectiveness in serving employers 
performance indicator, to assess the performance of the NFJP. In the 
DOL WIOA Final Rule, the Department implemented this requirement in 20 
CFR 685.400(a) and (b), which states that NFJP grantees providing 
career services and training use the indicators of performance 
described in WIOA sec. 116(b)(2)(A). NFJP housing grantees, which 
provide housing assistance rather than training and employment 
placement services, are required to report a different set of 
performance indicators as defined in 20 CFR 685.400(c), specifically 
the total number served of eligible MSFWs, other individuals, eligible 
MSFW families, and other families. Therefore, if finalized, the 
proposed definition of the effectiveness in serving employers 
performance indicator in 20 CFR part 677 in the Joint Effectiveness in 
Serving Employers NPRM would apply to NFJP career services grantees but 
not housing grantees, although it would have no noticeable change to 
procedures for career services grantees as they already report this 
information in accordance with TEGL No. 14-18. Beginning with PY 2018, 
NFJP career services grants have applied the effectiveness in serving 
employers performance indicator as it is described in TEGL No. 14-18, 
using the Retention with the Same Employer definition of the 
performance indicator. However, the third quarter of PY 2020 was the 
first quarter where NFJP generated quarterly performance reports in 
WIPS with the effectiveness in serving employers performance indicator. 
No changes to the regulatory text at 20 CFR part 685 are necessary to 
implement this change, as the regulations currently state that the 
Department uses the indicators of performance described in WIOA 
sec.116(b)(2)(A) and do not state a definition directly.

C. Part 686--Job Corps Program

    Part 686 establishes regulations for the Job Corps program, 
authorized in title I, subtitle C of WIOA. Job Corps is a no-cost 
education and career technical training program administered by the 
Department, which includes 121 Job Corps centers across the United 
States. The program aims to help young people--ages 16 to 24--gain 
academic credentials and career technical training skills and secure 
quality employment.
    Job Corps historically has used post-separation surveys to capture 
post-program employment results. Job Corps' current surveys (OMB 
Control Number 1205-0426) are administered to participants immediately 
following the second and fourth quarters after exit and capture 
information related to whether they are employed or in an educational 
or training program during those quarters and if they have attained any 
additional certifications or credentials after exit from the program. 
In PY 2018, Job Corps revised the reporting periods in the post-
separation surveys to replace program-specific definitions of the 
second and fourth quarters after exit with the same definitions used by 
other DOL employment and training programs. This definitional shift 
created alignment with quarterly wage records and facilitated 
calculation of common exit and outcomes across WIOA programs. With this 
change in definition, Job Corps has been able to apply the 
effectiveness in serving employers performance indicator as it is 
described in TEGL No. 14-18, using the Retention with the Same Employer 
definition of the performance indicator. While the post-separation 
surveys are a supplemental data source for reporting on the primary 
indicators of performance, Job Corps did not gain access to wage record 
matches, the primary data source, until the fourth quarter of PY 2020. 
All reported outcomes for Job Corps prior to this period were based 
solely on the supplemental data source. Job Corps began certifying its 
program results in WIPS for all the primary measures of performance, 
including the Retention with the Same Employer indicator, in the first 
quarter of PY 2020. Starting with the fourth quarter of PY 2020, Job 
Corps obtained quarterly wage record matches and, combined with the 
supplemental data from the surveys, has been able to report fully on 
the primary measures of performance, including the Retention with the 
Same Employer indicator.
Section 686.1010--What are the primary indicators of performance for 
Job Corps centers and the Job Corps program?
    Section 686.1010 lists the primary indicators used to measure the 
performance of Job Corps centers, which includes the effectiveness in 
serving employers performance indicator. The effectiveness in serving 
employers performance indicator specifically applies to Job Corps 
center operators and career transition service providers. The 
Department proposes to change the existing language found at Sec.  
686.1010(f) to align with the effectiveness in serving employers 
performance indicator language proposed at Sec.  677.155(a)(1)(vi) in 
the Joint Effectiveness in Serving Employers NPRM. Specifically, 
proposed Sec.  686.1010(f) would define the required effectiveness in 
serving employers performance indicator as the percentage of 
participants with wage records in the second quarter after exit who 
were employed by the same employer in the second and fourth quarters 
after exit.

D. Part 688--YouthBuild Programs

    Part 688 establishes regulations for the YouthBuild programs, 
authorized in title I, subtitle D of WIOA. YouthBuild is a pre-
apprenticeship program that provides educational and job training 
opportunities for at-risk youth (ages 16-24) who have previously 
dropped out of high school. Program participants learn vocational 
skills focused on the construction industry, as well as other in-demand 
industries including healthcare, information technology, and 
hospitality. Participants earn their high school diploma while 
splitting time between the vocational training work site and the 
classroom, as well as preparing for postsecondary training 
opportunities, such as Registered Apprenticeships, college, and 
eventual employment. Community service is required of participants, 
including through construction and rehabilitation of affordable housing 
for low-income and homeless families, often in their own neighborhoods. 
YouthBuild programs include mentoring, follow-up education, employment, 
and personal counseling services as support systems for program 
participants as well. YouthBuild grants include a 4-month planning 
period and run on a cohort model, which spans from 6 to 12 months.
    On March 25, 2019, TEGL No. 14-18, Attachment 11, provided that the 
definition for the effectiveness in serving employers performance

[[Page 56348]]

indicator for YouthBuild reporting purposes would be consistent with 
the Retention with the Same Employer approach generally applicable to 
DOL-administered WIOA programs and described in Appendix I to the TEGL. 
On November 20, 2019, the ICR approved under OMB Control Number 1205-
0521 formally established for YouthBuild programs the calculation of 
effectiveness in serving employers and the collection of required 
elements for effectiveness in serving employers. YouthBuild program 
participants will be reported once the case management system 
modernization is completed, at which time it will be at least an 
additional six quarters until the first data on effectiveness in 
serving employers will be available. The YouthBuild participants from 
the grant class that began on July 1, 2021, is the first that may have 
effectiveness in serving employers data available, which would be 
available in the quarter ending on September 30, 2023.
Section 688.400--What are the performance indicators for YouthBuild 
grants?
    Section 688.400 lists the primary indicators used to measure the 
performance of YouthBuild programs, which also includes a performance 
indicator for effectiveness in serving employers. This NPRM proposes to 
codify current practices by replacing existing language in Sec.  
688.400(f) with language that aligns with the effectiveness in serving 
employers performance indicator language proposed at Sec.  
677.155(a)(1)(vi) in the Joint Effectiveness in Serving Employers NPRM. 
Specifically, proposed Sec.  688.400(f) would define the required 
effectiveness in serving employers performance indicator as the 
percentage of participants with wage records in the second quarter 
after exit who were employed by the same employer in the second and 
fourth quarters after exit.

IV. Regulatory Analysis and Review

A. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    Under E.O. 12866, OIRA determines whether a regulatory action is 
significant and, therefore, subject to the requirements of the E.O. and 
review by OMB. See 58 FR 51735 (Oct. 4, 1993). Section 3(f) of E.O. 
12866 defines a ``significant regulatory action'' as an action that is 
likely to result in a rule that: (1) has an annual effect on the 
economy of $100 million or more, or adversely affects in a material way 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or Tribal 
governments or communities (also referred to as economically 
significant); (2) creates serious inconsistency or otherwise interferes 
with an action taken or planned by another agency; (3) materially 
alters the budgetary impacts of entitlement grants, user fees, or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
raises novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the E.O. Id. 
This proposed rule is a significant regulatory action, although not an 
economically significant regulatory action under sec. 3(f) of E.O. 
12866. Accordingly, OMB reviewed this proposed rule.
    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; the 
regulation is tailored to impose the least burden on society, 
consistent with achieving the regulatory objectives; and in choosing 
among alternative regulatory approaches, the agency has selected those 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
1. Outline of the Analysis
    Section IV.A.2 provides a summary of the results of the RIA. 
Section IV.A.3 describes the need for the proposed rule, and Section 
IV.A.4 describes the process used to estimate the costs and cost 
savings of the proposed rule and the general inputs used, such as wages 
and number of affected entities. Section IV.A.5 explains how the 
provisions of the proposed rule would result in quantifiable costs and 
cost savings and presents the calculations the Department used to 
estimate them. In addition, Section IV.A.5 describes the qualitative 
benefits of the proposed rule. Section IV.A.6 summarizes the estimated 
first-year and 10-year total and annualized costs, cost savings, net 
costs, and transfer payments of the proposed rule. Finally, Section 
IV.A.7 describes the regulatory alternatives considered when developing 
the proposed rule.
2. Analysis Overview
    The Department estimates that the proposed rule would result in 
costs and qualitative benefits. As shown in Exhibit 1, the proposed 
rule is expected to have a one-time cost of $41,551. The Departments 
estimate that the proposed rule would result in an annualized net 
quantifiable cost of $5,916 at a discount rate of 7 percent and 
expressed in 2020 dollars.

        Exhibit 1--Estimated Monetized Costs of the Proposed Rule
                             [2020 dollars]
------------------------------------------------------------------------
                                                               Cost
------------------------------------------------------------------------
10-Year Total with a Discount Rate of 3%................         $41,551
10-Year Total with a Discount Rate of 7%................          41,551
10-Year Average.........................................           4,155
Annualized at a Discount Rate of 3%.....................           4,871
Annualized at a Discount Rate of 7%.....................           5,916
------------------------------------------------------------------------

    The cost of the proposed rule is associated with rule 
familiarization for all 121 Job Corps centers and 1 career transition 
service provider for a total of 122 Job Corps entities, 53 NFJP career 
service and training grantees, 69 INA youth grantees, 104 INA adult 
grantees, and 216 YouthBuild grantees.\17\ See the costs subsections of 
Section IV.A.5 (Subject-by-Subject Analysis) below for a detailed 
explanation.
---------------------------------------------------------------------------

    \17\ The 216 YouthBuild entities consist of grantees within each 
of the three currently active grant classes (67 grantees in the 2020 
class, 68 grantees in the 2019 class, and 81 grantees in the 2018 
class).
---------------------------------------------------------------------------

    The Department cannot quantify the benefits of the proposed rule; 
therefore, Section IV.A.5 (Subject-by-Subject Analysis) describes the 
benefits qualitatively.
3. Need for Regulation
    This proposed rulemaking is necessary to complete implementation of 
the performance accountability requirements as discussed in the Joint 
WIOA Final Rule and required by statute. WIOA included a common 
performance accountability system, consisting of six statutory primary 
indicators of performance, applicable to all WIOA core programs: adult, 
dislocated worker, and youth programs under title I of WIOA; the AEFLA 
program under title II; the ES 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, as amended by WIOA title IV. 
WIOA also required that the six statutory primary indicators of 
performance apply to four WIOA title I, DOL-administered non-core 
programs: INA, NFJP, Job Corps, and YouthBuild (``title I non-core 
programs''). The

[[Page 56349]]

statute defines five of the six performance indicators. However, WIOA 
did not specify how effectiveness in serving employers should be 
measured. Instead, WIOA directed the Departments to develop a 
definition for the effectiveness in serving employers performance 
indicator (WIOA sec. 116(b)(2)(A)(iv)). In the Joint WIOA Final Rule, 
the Departments determined that it was prudent to pilot three 
definitions for the sixth performance indicator, which measures a 
State's effectiveness in serving employers through its WIOA-authorized 
programs. As explained earlier in this proposal, that pilot, as well as 
a study of the results from the pilot, is now complete. The Departments 
are engaging in two rulemakings to incorporate into the WIOA 
regulations a proposed standard definition of the performance indicator 
for effectiveness in serving employers. This proposed performance 
indicator definition is meant to apply to both WIOA core programs--
which are addressed in the concurrently published Joint Effectiveness 
in Serving Employers NPRM--as well as the four title I non-core 
programs, which are addressed in this NPRM. When finalized, this 
rulemaking would codify the use of all the primary performance 
indicators for the evaluation of title I non-core program performance--
including the effectiveness in serving employers indicator--just as 
with the WIOA core programs.
4. Analysis Considerations
a. Baseline for Title I Non-Core Programs: Indian and Native American, 
Job Corps, and YouthBuild
    The Department estimated the costs of the proposed rule relative to 
the existing baseline. The Department determined that the proposed rule 
would result in no change from the baseline for the title I non-core 
programs. As a result, the Department estimates only the costs of rule 
familiarization for the title I non-core programs.
    WIOA secs. 159(c)(1) (Job Corps), 166(e)(5) (INA), 167(c)(2)(C) 
(NFJP), and 171(f) (YouthBuild) specify that performance for these 
title I non-core programs must be assessed using the WIOA sec. 116 
primary indicators of performance for WIOA core programs. In this 
proposed rule, the Department is codifying the approach for evaluating 
a program's effectiveness in serving employers, as put into practice 
through previously issued guidance \18\ and the ``DOL-Only Performance 
Accountability, Information, and Reporting System'' ICR, approved under 
OMB Control Number 1205-0521 for the title I non-core programs.
---------------------------------------------------------------------------

    \18\ ETA, TEGL No. 14-18, ``Aligning Performance Accountability 
Reporting, Definitions, and Policies Across Workforce Employment and 
Training Programs Administered by the U.S. Department of Labor 
(DOL),'' Mar. 25, 2019, https://wdr.doleta.gov/directives/corr_doc.cfm?docn=7611.
---------------------------------------------------------------------------

    All title I non-core programs, except the INA Supplemental Youth 
Services program, are able to report the Retention with the Same 
Employer definition of effectiveness in serving employers performance 
indicator, as required in TEGL No. 14-18, through WIPS or GPMS. Unlike 
the other title I non-core programs, the INA Supplemental Youth 
Services program is not currently reporting, and will not immediately 
be able to report, the effectiveness in serving employers performance 
indicator. The INA Supplemental Youth Services case management system 
modernization has not been completed at the time of this rulemaking; 
therefore, INA youth grantees will, for a period of time, use WIOA 
transition authority with regard to collecting and reporting on WIOA 
performance indicators, including the proposed effectiveness in serving 
employers performance indicator. The Department is planning, 
independent of this rulemaking, to build a new case management system 
for INA youth grantees that will provide for the collection and 
reporting of the effectiveness in serving employers performance 
indicator. Therefore, this proposed rule does not impose any new cost 
associated with the case management system. When the case management 
system is built, the INA youth grantees will use it to collect and 
report the outcomes for the effectiveness in serving employers 
performance indicator. The use of the new system to report the 
effectiveness in serving employers performance indicator would impose a 
de minimis cost for the INA youth grantees. When the INA Supplemental 
Youth Services case management system is complete, the INA youth 
program grantees would face a de minimis cost associated with reporting 
the effectiveness in serving employers performance indicator in the new 
system.
    Exhibit 2 presents the number of entities the Department expects 
the proposed rule to affect. The Department provides these estimates 
and uses them to calculate the cost of rule familiarization for the 
title I non-core programs.

Exhibit 2--Title I Non-Core Programs Number of Affected Entities by Type
------------------------------------------------------------------------
                       Entity type                            Number
------------------------------------------------------------------------
Job Corps:
    Current centers.....................................             121
    Career transition service providers.................               1
NFJP:
    Career services and training grantees...............              53
Indian and Native American:
    Number of INA youth grants awarded under WIOA sec.                69
     166................................................
    Grantees for the Comprehensive Services Program/INA              104
     adult program......................................
YouthBuild:
    Grantees in active grant classes....................             216
------------------------------------------------------------------------

b. Compensation Rates
    In Section IV.A.5 (Subject-by-Subject Analysis), the Department 
presents the costs, including labor, associated with the proposed rule. 
Exhibit 3 presents the hourly compensation rates for the occupational 
categories expected to experience a change in level of effort 
(workload) due to the proposed rule. We use the Bureau of Labor 
Statistics (BLS) mean hourly wage rate for local government 
employees.\19\ To reflect total compensation, wage rates include 
nonwage factors such as overhead and fringe benefits (e.g., health and 
retirement benefits). We use an overhead rate of 17 percent \20\ and a 
fringe benefits rate of 62 percent,\21\ which represents the ratio of 
average total compensation to average wages for State and local 
government workers in March 2021. We then multiply the sum of the 
loaded wage factor and overhead rate by the corresponding occupational 
category wage rate to calculate an hourly compensation rate.
---------------------------------------------------------------------------

    \19\ BLS, ``May 2020 National Industry-Specific Occupational 
Employment and Wage Estimates: NAICS 999300--Local Government, 
excluding schools and hospitals (OEWS Designation),'' https://www.bls.gov/oes/current/naics4_999300.htm (last visited Jan. 9, 
2022).
    \20\ U.S. Environmental Protection Agency, ``Wage Rates for 
Economic Analyses of the Toxics Release Inventory Program,'' June 
10, 2002, https://www.regulations.gov/document/EPA-HQ-OPPT-2018-0321-0046.
    \21\ BLS, ``Employer Costs for Employee Compensation--March 
2021,'' June 17, 2021, Calculated using Table 1. Employer Costs for 
Employee Compensation by ownership, https://www.bls.gov/news.release/archives/ecec_06172021.htm.

[[Page 56350]]



                                                      Exhibit 3--Compensation Rates [2020 Dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Hourly
                           Position                              Grade level      Base hourly    Loaded wage factor    Overhead costs      compensation
                                                                                   wage rate                                                   rate
                                                               ...............             (a)                 (b)                 (c)    d = a + b + c
--------------------------------------------------------------------------------------------------------------------------------------------------------
Management Analyst...........................................             N/A           $41.23    $25.43 ($41.23 x     $7.01 ($41.23 x           $73.67
                                                                                                             0.62)               0.17)
--------------------------------------------------------------------------------------------------------------------------------------------------------

5. Subject-by-Subject Analysis
    The Department's analysis below covers the estimated cost of the 
proposed rule.
c. Costs
    The following sections describe the costs of the proposed rule.
(1) DOL-Only Non-Core Programs Rule Familiarization
    If the proposed rule is finalized, INA, YouthBuild, NFJP, and Job 
Corps programs would need to familiarize themselves with the new 
regulation. Consequently, this would impose a one-time cost in the 
first year.
    To estimate the first-year cost of rule familiarization for INA, 
YouthBuild, NFJP, and Job Corps programs, the Department multiplied the 
estimated number of management analysts (1) by the time required to 
read and review the rule (1 hour), and by the applicable hourly 
compensation rate ($73.67/hour). We multiplied this result by the 
number Job Corps active centers (122), NFJP grantees (53), INA Youth 
program grantees (69), INA Adult program grantees (104), and the number 
of YouthBuild grantees (216). This calculation yields $41,551 in one-
time labor costs for Job Corps, NFJP, INA Youth, and INA Adult programs 
to read and review the rule. Over the 10-year period of analysis, these 
estimated one-time costs result in an average annual cost of $4,155 
undiscounted, or $4,871 and $5,916 at discount rates of 3 and 7 
percent, respectively.
d. Qualitative Benefits Discussion
(1) General Benefits of Measuring Effectiveness in Serving Employers
    The Department cannot quantify the proposed rule's benefits 
associated with improving the title I non-core programs' effectiveness 
in serving employers. Measuring effectiveness in serving employers 
allows title I non-core programs to set goals, monitor, and learn how 
to serve employers more effectively.\22\ Reporting a measure of 
effectiveness in serving employers also helps Federal, State, and local 
policymakers evaluate program performance and inform future policy 
changes to better meet program goals, particularly providing employers 
with skilled workers and other services.
---------------------------------------------------------------------------

    \22\ S. Spaulding, et al., ``Measuring the Effectiveness of 
Services to Employers: Options for Performance Measures under the 
Workforce Innovation and Opportunity Act (Research Report),'' Jan. 
2021, https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf.
---------------------------------------------------------------------------

    The Department cannot quantify these estimated benefits because we 
do not have quantitative data on how the effectiveness in serving 
employers performance indicator has influenced program implementation 
and how much it would influence future policies.
(2) Specific Benefits of Reporting Retention With the Same Employer
    Requiring the calculation and reporting of Retention with the Same 
Employer as the effectiveness in serving employers performance 
indicator would make it easier to compare WIOA title I non-core 
programs' effectiveness in serving employers performance across grant 
programs. Retention with the Same Employer demonstrates a continued 
relationship between the employer and participants who have exited WIOA 
programs. While many circumstances can have an impact on an employer's 
retention of employees, an indication that an employee is still working 
for the same employer in both the second and fourth quarters after 
exiting from a WIOA program demonstrates a level of success for both 
parties, as retention of an employee reduces the costs to the employer 
associated with employee turnover and retraining. Thus, reporting 
Retention with the Same Employer can help inform design and 
implementation of program services to reduce job turnover and improve 
employer-employee match quality. Improved matching and reduced turnover 
allow employees and employers to operate closer to their productive 
potential and can make it more worthwhile for employers to invest in 
training its employees and for employees to invest in learning 
employer-specific skills.
6. Summary of the Analysis
    The Department estimates the total net cost of the proposed rule at 
$41,183 at a discount rate of 7 percent. The Department estimates the 
annualized net cost of the proposed rule at $5,864 at a discount rate 
of 7 percent. Exhibit 4 summarizes the estimated cost of the proposed 
rule over the 10-year analysis period.

        Exhibit 4--Estimated Monetized Costs of the Proposed Rule
                             [2020 dollars]
------------------------------------------------------------------------
                                                               Costs
------------------------------------------------------------------------
2022....................................................         $41,551
2023....................................................               0
2024....................................................               0
2025....................................................               0
2026....................................................               0
2027....................................................               0
2028....................................................               0
2029....................................................               0
2030....................................................               0
2031....................................................               0
10-Year Total with a Discount Rate of 3%................          41,551
10-Year Total with a Discount Rate of 7%................          41,551
10-Year Average.........................................           4,155
Annualized with a Discount Rate of 3%...................           4,871
Annualized with a Discount Rate of 7%...................           5,916
------------------------------------------------------------------------

7. Regulatory Alternatives
    The Department considered two alternatives to the proposed 
definition of the effectiveness in serving employers performance 
indicator. First, the Department considered requiring use of the 
Employer Penetration pilot approach, which reports the percentage of 
employers using services out of all employers in the State. This 
approach would have required counts of services provided to employers 
requiring States and local areas to report unique counts of employer 
establishments receiving services through WIOA's programs. Employer 
Penetration would require a more data-intensive analysis than the 
proposed approach of Retention with the Same Employer. Employer 
Penetration would have the benefit of capturing the extent to which 
employers

[[Page 56351]]

within a State are engaged with WIOA-funded services and would provide 
State programs an incentive to work with additional employers. The 
Department, in an Urban Institute study, found weaknesses in this pilot 
approach including: (1) emphasis on quantity rather than quality or 
intensity of the employer service provided; (2) reliability issues 
associated with data entry and the process to count unique 
establishments; (3) measurement of program output rather than outcome; 
(4) potential for creation of perverse incentives to prioritize program 
breadth rather than depth in service and delivery; and (5) lack of 
sensitivity to industry sectors targeted by State and local workforce 
agencies.\23\
---------------------------------------------------------------------------

    \23\ S. Spaulding, et al., ``Measuring the Effectiveness of 
Services to Employers: Options for Performance Measures under the 
Workforce Innovation and Opportunity Act (Research Report),'' Jan. 
2021, https://www.urban.org/sites/default/files/publication/104160/measuring-the-effectiveness-of-services-to-employers_1_0.pdf.
---------------------------------------------------------------------------

    The Department considered a second regulatory alternative that 
would require the use of the Repeat Business Customer approach to the 
effectiveness in serving employers performance indicator, which reports 
the percentage of employers receiving services in a year who also 
received services within the previous 3 years. This approach to the 
effectiveness in serving employers measure requires counts of services 
provided to employers through WIOA's programs. Repeat Business Customer 
requires a more data-intensive analysis than the proposed approach of 
Retention with the Same Employer. Repeat Business Customer captures the 
extent to which employers within a State can find workers and the 
employer's level of satisfaction with the public workforce system 
services. The Department, in an Urban Institute study, found weaknesses 
in this pilot approach including that it: (1) may provide a 
disincentive to reach out to new employers; (2) is subject to variation 
in industry and sector economic conditions; and (3) may require a 
statistical adjustment model to mitigate the weaknesses and improve 
implementation and interpretation.\24\
---------------------------------------------------------------------------

    \24\ S. Spaulding, et al., ``Measuring the Effectiveness of 
Services to Employers: Options for Performance Measures under the 
Workforce Innovation and Opportunity Act,'' Jan. 2021, https://wdr.doleta.gov/research/FullText_Documents/ETAOP2021-17%20Measures%20of%20Effectiveness%20in%20Serving%20Employers_Final%20Report.pdf.
---------------------------------------------------------------------------

    The Department prefers the proposed approach of requiring the use 
of Retention with the Same Employer because it has data more readily 
available and, therefore, it is less burdensome. The Retention with the 
Same Employer approach better aligns with workforce system goals of 
matching employers with job seekers and reducing turnover without the 
weaknesses associated with the other two approaches to defining the 
effectiveness in serving employers performance indicator. In addition, 
because title I non-core programs are already required to report the 
Retention with the Same Employer measure, the two alternative measures 
would impose new costs to affected entities associated with collecting 
data, calculation of, and reporting the alternative measure.

B. Regulatory Flexibility Act, Small Business Regulatory Enforcement 
Fairness Act, and Executive Order 13272 (Proper Consideration of Small 
Entities in Agency Rulemaking)

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121 (Mar. 29, 1996), requires Federal agencies 
engaged in rulemaking to consider the impact of their proposals on 
small entities, consider alternatives to minimize that impact, and 
solicit public comment on their analyses. The RFA requires the 
assessment of the impact of a regulation on a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions. Agencies must perform a review to 
determine whether a proposed or final rule would have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 603 
and 604.
    The Department finds that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
Based on this determination, the Department certifies that this 
proposed rule does not have a significant economic impact on a 
substantial number of small entities. This finding is supported, in 
large measure, by the fact that small entities are already receiving 
financial assistance under WIOA. In addition, the calculated cost of 
this rulemaking is a one-time per-entity cost of $73.67 associated with 
rule familiarization and would therefore have a de minimis impact on 
any on particular entity.
    This proposed rule can be expected to impact small entities within 
the Job Corps, NFJP, and INA programs. These small entities can be, for 
example, Tribal or non-profit grantees, including regionally focused 
entities. The Department has estimated costs that are new to this 
proposed rule. As discussed in Section IV.A, the calculated cost of 
this rulemaking is a one-time per-entity cost of $73.67 associated with 
rule familiarization and would, therefore, have a de minimis impact on 
any one particular entity. Therefore, the Department certifies that 
this proposed rule does not have a significant economic impact on a 
substantial number of small entities.

C. Paperwork Reduction Act

    The Department previously submitted and received OMB approval for 
the information collection discussed above (OMB Control Number 1205-
0521) in Section I, Background and Rulemaking Authority, and Section 
III, Effectiveness in Serving Employers Performance Indicator for WIOA 
Title I Non-Core Programs. See ICR Reference Number 202104-1205-003 
(OMB Control Number 1205-0521). This NPRM does not modify any of the 
content in the exiting OMB Control Number 1205-0521.

D. Executive Order 13132 (Federalism)

    E.O. 13132 aims to guarantee the division of governmental 
responsibilities between the National Government and the States and to 
further the policies of the Unfunded Mandates Reform Act of 1995 
(UMRA). Accordingly, E.O. 13132 requires executive departments and 
agencies to ensure that the principles of federalism guide them in the 
formulation and implementation of policies. Further, agencies must 
adhere to constitutional principles, examine the constitutional and 
statutory authority supporting a regulation that would limit the 
policymaking discretion of the States, and assess the need for such a 
regulation. To the extent practicable, agencies must consult State and 
local officials before implementing any such regulation.
    E.O. 13132 further provides that agencies must implement a 
regulation that limits the policymaking discretion of the States only 
where there is constitutional and statutory authority for the 
regulation and it addresses a problem of national significance. For a 
regulation administered by the States, the National Government must 
grant the States the maximum administrative discretion possible to 
avoid intrusive Federal oversight of State administration, and agencies 
must adhere to special requirements for a regulation that preempts 
State law. E.O. 13132 also sets forth the procedures that agencies must 
follow for certain regulations with federalism implications, such as 
preparation of a summary impact statement.

[[Page 56352]]

    Accordingly, the Department has reviewed this WIOA-required NPRM 
and has concluded that the rulemaking has no Federalism implications. 
This NPRM 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 Department has concluded that this NPRM does 
not have a sufficient Federalism implication to warrant the preparation 
of a summary impact statement.

E. Unfunded Mandates Reform Act

    UMRA directs agencies to assess the effects of Federal regulatory 
actions on State, local, and Tribal governments, as well as 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.
    Following consideration of the above factors, the Department has 
concluded that this NPRM contains no unfunded Federal mandates, which 
are defined in 2 U.S.C. 658(6) to include either a ``Federal 
intergovernmental mandate'' or a ``Federal private sector mandate.'' No 
additional burden related to reporting the effectiveness in serving 
employers performance indicator is being proposed to be placed on 
State, local, and Tribal governments, as this information already is 
being collected and reported on. Furthermore, the reporting is a 
contingent to receiving Federal program funding. Any associated 
reporting mandate cannot, therefore, be considered ``unfunded.'' 
Because the decision by a private training entity to participate as a 
provider under a WIOA core program is purely voluntary, the information 
collection burden does not impose a duty on the private sector that is 
not voluntarily assumed.

F. Executive Order 13175 (Indian Tribal Governments)

    The Departments of Labor and Education reviewed this proposed rule, 
as well as the Joint Effectiveness in Serving Employers NPRM published 
concurrently with this NPRM elsewhere in this issue of the Federal 
Register, under the terms of E.O. 13175 and DOL's Tribal Consultation 
Policy (77 FR 71833 (Dec. 4, 2012)) and have determined that it would 
have Tribal implications, because the proposed regulations would 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, DOL has prepared a Tribal 
summary impact statement.
    Prior to developing this proposed rule, the Department held two 
events to consult with INA program grantees and representatives of 
Tribal institutions about their experiences with the implementation and 
operation of the effectiveness in serving employers performance 
indicator. These two events consisted of a town hall meeting attended 
both in person and virtually and a formal consultation webinar. The 
town hall, entitled ``Town Hall Discussion: Effectiveness in Serving 
Employers Performance Indicator,'' occurred on September 21, 2021, at 
the 41st National Indian and Native American Employment and Training 
conference.\25\ The consultation webinar, entitled ``Tribal 
Consultation for WIOA Effectiveness in Serving Employers Indicator 
Proposed Rulemaking,'' occurred on October 19, 2021.\26\ At the 
consultation webinar, the Department provided an opportunity for 
stakeholders to submit written feedback through DOL's Tribal 
consultation email account by October 29, 2021.
---------------------------------------------------------------------------

    \25\ NAETC, ``41st National Indian and Native American 
Employment and Training Program,'' Sept. 20-23, 2021, http://www.ninaetc.net/41%20NINAETC%20PROGRAM_FINAL.pdf.
    \26\ DOL, ``Tribal Consultation for WIOA Effectiveness in 
Serving Employers Indicator Proposed Rulemaking,'' https://www.workforcegps.org/events/2021/09/14/13/57/Tribal-Consultation-for-WIOA-Effectiveness-in-Serving-Employers-Indicator-Proposed-Rulemaking (last updated Nov. 3, 2021); see also ``Tribal 
Consultation; Workforce Innovation and Opportunity Act, 
Implementation of the Effectiveness in Serving Employers Performance 
Indicator; Notice of Tribal Consultation; Virtual Meeting,'' 86 FR 
54244 (Sept. 30, 2021).
---------------------------------------------------------------------------

    At the two events, the Department received feedback from the INA 
community and the general public that established several areas of 
interest concerning the definition of the effectiveness in serving 
employers performance indicator for WIOA programs. These areas of 
interest are summarized below. The Department did not receive any 
written feedback through DOL's Tribal consultation email account. The 
Department received one letter after the consultation period that 
raised similar issues to those articulated at the consultation event 
and summarized below. This comment was not considered due to the late 
nature of its submission, though similar comments made during the 
feedback sessions were considered.
Employer, Wage, or Position Changes
    Many commenters expressed concern about impacts of individuals 
changing employers for higher wages or different positions. 
Specifically, several commenters asked how the Retention with the Same 
Employer definition of the performance indicator would apply to 
individuals who have continuous employment through the second and 
fourth quarters, but with different employers. Some commenters 
expressed concern that this definition of the performance indicator 
would not consider individuals who advance to better employment 
opportunities. One commenter expressed concern that the program would 
be penalized if employees change employers.
Temporary, Seasonal, and Youth Employment
    Many commenters expressed concern about how temporary jobs, such as 
seasonal or contract-based employment, would be considered. 
Specifically, one commenter gave an example of contractor jobs where 
individuals may not stay with the same employer and instead change from 
job to job, such as in construction. Additionally, another commenter 
stated that employers that regularly lay off and then rehire employees 
would affect outcomes.
    A commenter asked if this measure applies to the INA youth program. 
Another commenter expressed concern about the impact on performance of 
limited-duration summer employment opportunities for high school 
students within INA youth programs. The commenter also questioned DOL's 
willingness to invest in developing a data collection and reporting 
process for INA youth programs.
    Other commenters expressed concern about how seasonal jobs would be 
addressed and that certain areas have more seasonal employment than 
other areas do. Another commenter stated that individuals who 
participate in the program on a short-term basis while serving time 
with the Department of Corrections and later return to a different 
State may impact the performance indicator calculation. A different 
commenter stated that many participating employers primarily provide 
entry-level positions focused on gaining work experience.
Performance Indicator Calculation
    Many commenters inquired about how the performance indicator is 
calculated. One commenter asked a question in which the sound quality 
of the audio was not clear. However, the subject-matter expert 
interpreted the

[[Page 56353]]

question to ask if supplemental wages are considered. One commenter 
stated that unemployment insurance (UI) records may not capture 
individuals who are self-employed. Another commenter said that certain 
States do not have access to UI information that would enable them to 
calculate the performance indicator.
    Many commenters suggested other ways to calculate the performance 
indicator. Examples provided by one commenter included employer 
satisfaction surveys, number of employers served, number of repeat 
employers, and number of job fairs coordinated with employers. Another 
commenter said they measure success when an employer enquires about 
recent graduates to fill open positions. A different commenter stated 
that they understood the options DOL considered for how to measure 
effectiveness in serving employers to include how well programs have 
assisted employers in hiring new employees through job fairs, work 
experience to full[hyphen]time hires, pre[hyphen]screening of 
candidates, and individual hiring events for specific employers.
Tribal Community Impacts
    Some commenters had questions and comments about how the 
performance indicator would specifically impact INA communities. One 
commenter expressed the need for consideration of all Tribal 
communities and their unique needs. The commenter stated that measures 
used for all INA programs must not only satisfy the intent of the 
performance indicator but also be meaningful, which is part of the 
purpose of WIOA sec. 166. The commenter also suggested that grantees 
should establish a work group within the NAETC to develop information 
to share with Tribal leaders so that they have background and can 
communicate what these performance indicators would mean for INA 
programs.
    Another commenter cited the DOL-commissioned third-party study of 
the performance indicator, ``Measuring the Effectiveness of Service to 
Employers,'' and questioned why some States with many INA participants 
were not included in the pilot study. The commenter also asked if any 
INA WIOA programs were included in the study. Additionally, a commenter 
said that DOL is seeking support from Tribes on how to measure a 
performance indicator they may not want.
Process Questions and Other Observations
    Many commenters asked questions about the rulemaking process and 
how the Department decided on the proposed definition of the 
performance indicator. Some commenters asked if this performance 
indicator is required. One commenter asked if the performance indicator 
can be customized based on the grantee's status, for example with 
different requirements for rural and urban programs. A different 
commenter asked if DOL would decide after consultation with Tribes 
whether or not to apply the performance indicator to INA programs. 
Other commenters asked if the definition of this performance indicator 
would be permanent or if it would be re-evaluated in the future. 
Additionally, a commenter asked if they could review the draft rule 
with others before it is published, when the proposed rule would be 
published, and when the final rule would take effect.
    A commenter asked if other performance indicator definitions have 
been submitted for consideration, for example from the NAETC. Another 
commenter stated that grantees with direct employer relationships 
differ from grantees that work with American Job Centers to facilitate 
employment for employers. Additionally, a commenter asked how grantees 
can assist participants who are facing issues at a new employment site, 
such as being picked on or treated unfairly, and whether it would be 
appropriate to act as a mediator between the employer and the 
participant.
Conclusion
    The Department appreciates the valuable feedback received through 
this Tribal consultation process and has considered this feedback 
carefully in crafting this proposed rule and its planned 
implementation, such as use of the waiver process outlined in TEGL No. 
04-19, ``Waiver Authority for the INA Program and Implementation of 
Additional Indicators of Performance,'' and discussed in Section III.A 
of this document. The Department invites and encourages submission of 
public comments that provide further information, including detailed 
recommendations for program-specific alternatives for the effectiveness 
in serving employers performance indicator, so that it may take this 
information under further consideration when making determinations 
regarding a final rule.

List of Subjects

20 CFR Part 684

    Employment, Grant programs--labor, Indians, Reporting and 
recordkeeping requirements.

20 CFR Part 686

    Employment, Grant programs--labor, Job Corps.

20 CFR Part 688

    Employment, Grant programs--labor, Youth, YouthBuild.

    For the reasons discussed in the preamble, the Department of Labor 
proposes to amend 20 CFR parts 684, 686, and 688 as follows:

PART 684--INDIAN AND NATIVE AMERICAN PROGRAMS UNDER TITLE I OF THE 
WORKFORCE INNOVATION AND OPPORTUNITY ACT

0
1. The authority citation for part 684 continues to read as follows:

    Authority:  Secs. 134, 166, 189, 503, Pub. L. 113-128, 128 Stat. 
1425 (Jul. 22, 2014).

Subpart D--Supplemental Youth Services

0
2. Amend Sec.  684.460 by revising paragraph (a)(6) to read as follows:


Sec.  684.460   What performance indicators are applicable to the 
supplemental youth services program?

    (a) * * *
    (6) The percentage of participants with wage records in the second 
quarter after exit who were employed by the same employer in the second 
and fourth quarters after exit.
* * * * *

Subpart F--Accountability for Services and Expenditures

0
3. Amend Sec.  684.620 by revising paragraph (a)(6) to read as follows:


Sec.  684.620   What performance indicators are in place for the Indian 
and Native American program?

    (a) * * *
    (6) The percentage of participants with wage records in the second 
quarter after exit who were employed by the same employer in the second 
and fourth quarters after exit.
* * * * *

PART 686--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INNOVATION 
AND OPPORTUNITY ACT

0
4. The authority citation for part 686 continues to read as follows:

    Authority:  Secs. 142, 144, 146, 147, 159, 189, 503, Pub. L. 
113-128, 128 Stat. 1425 (Jul. 22, 2014).

Subpart J--Performance

0
5. Amend Sec.  686.1010 by revising paragraph (f) to read as follows:

[[Page 56354]]

Sec.  686.1010   What are the primary indicators of performance for Job 
Corps centers and the Job Corps program?

* * * * *
    (f) The percentage of participants with wage records in the second 
quarter after exit who were employed by the same employer in the second 
and fourth quarters after exit.

PART 688--PROVISIONS GOVERNING THE YOUTHBUILD PROGRAM

0
6. The authority citation for part 688 continues to read as follows:

    Authority:  Secs. 171, 189, 503, Pub. L. 113-128, 128 Stat. 1425 
(Jul. 22, 2014).

Subpart D--Performance Indicators

0
7. Amend Sec.  688.400 by revising paragraph (f) to read as follows:


Sec.  688.400   What are the performance indicators for YouthBuild 
grants?

* * * * *
    (f) The percentage of participants with wage records in the second 
quarter after exit who were employed by the same employer in the second 
and fourth quarters after exit.
* * * * *

Martin J. Walsh,
Secretary of Labor.
[FR Doc. 2022-19003 Filed 9-13-22; 8:45 am]
BILLING CODE 4510-FN-P