[Federal Register Volume 80, Number 73 (Thursday, April 16, 2015)]
[Proposed Rules]
[Pages 20690-20966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05530]
[[Page 20689]]
Vol. 80
Thursday,
No. 73
April 16, 2015
Part III
Department of Labor
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Employment and Training Administration
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20 CFR Parts 601, 651, 652 et al.
Workforce Innovation and Opportunity Act; Notice of Proposed
Rulemaking; Proposed Rules
Federal Register / Vol. 80 , No. 73 / Thursday, April 16, 2015 /
Proposed Rules
[[Page 20690]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 603, 651, 652, 653, 654, 658, 675, 679, 680, 681, 682,
683, 684, 685, 686, 687, and 688
[Docket No. ETA-2015-0001]
RIN 1205-AB73
Workforce Innovation and Opportunity Act; Notice of Proposed
Rulemaking
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: The Department of Labor (DOL) is proposing, through
rulemaking, to implement titles I and III of the Workforce Innovation
and Opportunity Act of 2014 (WIOA). Through these regulations, the
Department proposes to implement job training system reform and
strengthen the workforce investment system of the nation to put
Americans, particularly those individuals with barriers to employment,
back to work and make the United States more competitive in the 21st
Century. This proposed rule intends to provide guidance for statewide
and local workforce investment systems that increase the employment,
retention and earnings of participants, and increase occupational skill
attainment by participants, and as a result, improve the quality of the
workforce, reduce welfare dependency, and enhance the productivity and
competitiveness of the nation.
DATES: To be ensured consideration, comments must be submitted in
writing on or before June 15, 2015.
ADDRESSES: You may submit comments, identified by docket number ETA-
2015-0001, for Regulatory Information Number (RIN) 1205-AB73, by one of
the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the
Web site instructions for submitting comments.
Mail and hand delivery/courier: Written comments, disk, and CD-ROM
submissions may be mailed to Adele Gagliardi, Administrator, Office of
Policy Development and Research, U.S. Department of Labor, 200
Constitution Avenue NW., Room N-5641, Washington, DC 20210.
Instructions: Label all submissions with ``RIN 1205-AB73.''
Please submit your comments by only one method. Please be advised
that the Department will post all comments received that related to
this NPRM on http://www.regulations.gov without making any change to
the comments or redacting any information. The http://www.regulations.gov Web site is the Federal e-rulemaking portal and all
comments posted there are available and accessible to the public.
Therefore, the Department recommends that commenters remove personal
information such as Social Security Numbers (SSNs), personal addresses,
telephone numbers, and email addresses included in their comments as
such information may become easily available to the public via the
http://www.regulations.gov Web site. It is the responsibility of the
commenter to safeguard personal information.
Also, please note that due to security concerns, postal mail
delivery in Washington, DC may be delayed. Therefore, the Department
encourages the public to submit comments on http://www.regulations.gov.
Docket: All comments on this proposed rule will be available on the
http://www.regulations.gov Web site and can be found using RIN 1205-
AB73. The Department also will make all the comments it receives
available for public inspection by appointment during normal business
hours at the above address. If you need assistance to review the
comments, the Department will provide appropriate aids such as readers
or print magnifiers. The Department will make copies of this proposed
rule available, upon request, in large print and electronic file on
computer disk. To schedule an appointment to review the comments and/or
obtain the proposed rule in an alternative format, contact the Office
of Policy Development and Research (OPDR) at (202) 693-3700 (this is
not a toll-free number). You may also contact this office at the
address listed below.
Comments under the Paperwork Reduction Act (PRA): In addition to
filing comments with ETA, persons wishing to comment on the information
collection (IC) aspects of this rule may send comments to: Office of
Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-ETA,
Office of Management and Budget, Room 10235, 725 17th Street NW.,
Washington, DC 20503, Fax: 202-395-6881 (this is not a toll-free
number), email: [email protected].
FOR FURTHER INFORMATION CONTACT: Adele Gagliardi, Administrator, Office
of Policy Development and Research (OPDR), U.S. Department of Labor,
Employment and Training Administration, 200 Constitution Avenue NW.,
Room N-5641, Washington, DC 20210, Telephone: (202) 693-3700 (voice)
(this is not a toll-free number) or 1-800-326-2577 (TDD).
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Executive Summary
II. Acronyms and Abbreviations
III. Background
A. Workforce Innovation and Opportunity Act Principles
B. Major Changes From Current Workforce Investment Act of 1998
C. Rule Format
D. Legal Basis
IV. Section-by-Section Discussion of Proposal
A. Part 603--Federal-State Unemployment Compensation Program
B. Part 675--Introduction to the Regulations for the Workforce
Innovation and Opportunity Systems Under Title I of the Workforce
Innovation and Act
C. Part 679--Statewide and Local Governance of the Workforce
Innovation and Opportunity System Under Title I of the Workforce
Innovation and Opportunity Act
D. Part 680--Adult and Dislocated Worker Activities Under Title
I of the Workforce Innovation and Opportunity Act
E. Part 681--Youth Activities Under Title I of the Workforce
Innovation and Opportunity Act
F. Part 682--Statewide Activities Under Title I of the Workforce
Innovation and Opportunity Act
G. Part 683--Administrative Provisions Under Title I of the
Workforce Innovation and Opportunity Act
H. Part 684--Indian and Native American Programs Under Title I
of the Workforce Innovation and Opportunity Act
I. Part 685--National Farmworker Jobs Program Under Title I of
the Workforce Innovation and Opportunity Act
J. Part 686--The Job Corps Under Title I of the Workforce
Innovation and Opportunity Act
K. Part 687--National Dislocated Worker Grants
L. Part 688--Provisions Governing the YouthBuild Program
M. Part 651--General Provisions Governing the Federal-State
Employment Service System
N. Part 652--Establishment and Functioning of State Employment
Services
O. Part 653--Services of the Employment Service System
P. Part 654--Special Responsibilities of the Employment Service
System
Q. Part 658--Administrative Provisions Governing the Employment
Service System
V. Rulemaking Analyses and Notices
A. Executive Orders 12866 and 13563: Regulatory Planning and
Review
B. Paperwork Reduction Act
C. Executive Order 13132 (Federalism)
D. Unfunded Mandates Reform Act of 1995
E. Plain Language
F. Assessment of Federal Regulations and Policies on Families
G. Regulatory Flexibility Act
[[Page 20691]]
H. Small Business Regulatory Enforcement Fairness Act of 1996
I. Executive Order 13175 (Indian Tribal Governments)
J. Executive Order 12630 (Government Actions and Interference
With Constitutionally Protected Property Rights)
K. Executive Order 12988 (Civil Justice Reform)
L. Executive Order 13211 (Energy Supply)
I. Executive Summary
On July 22, 2014, President Obama signed the Workforce Innovation
and Opportunity Act (WIOA) (Pub. L. 113-128), comprehensive legislation
that reforms and modernizes the public workforce system. It reaffirms
the role of the public workforce system, and brings together and
enhances several key employment, education, and training programs. WIOA
provides resources, services, and leadership tools for the workforce
system to help individuals find good jobs and stay employed and
improves employer prospects for success in the global marketplace. It
ensures that the workforce system operates as a comprehensive,
integrated and streamlined system to provide pathways to prosperity for
those it serves and continuously improves the quality and performance
of its services.
The Department of Labor is publishing this NPRM to implement those
provisions of WIOA that affect the core programs under titles I and
III, and the Job Corps and national programs authorized under title I
which will administered by the Department. In addition to this NPRM,
the Departments of Education (ED) and Labor (DOL) are jointly
publishing an NPRM to implement those provisions of WIOA that affect
all of the WIOA core programs (titles I-IV) and which will have to be
jointly overseen and administered by both Departments. Readers should
note that there are a number of cross-references to the Joint NPRM
published by ED and DOL, with particular focus on those provisions in
the Joint NPRM that have to do with performance reporting among all the
core programs. Finally, this NPRM has been structured so that the
proposed Code of Federal Regulations (CFR) parts will align with the
Joint NPRM CFR parts in once all of the proposed rules of have been
finalized.
WIOA seeks to deliver a broad array of integrated services to
individuals seeking jobs and skills training, as well as employers
seeking skilled workers by improving the workforce system, more closely
aligning it with regional economies and strengthening the network of
about 2,500 one-stop centers. Customers must have access to a seamless
system of high-quality services through coordination of programs,
services and governance structures. The Act builds closer ties among
key workforce partners--business leaders, workforce boards, labor
unions, community colleges, non-profit organizations, youth-serving
organizations, and State and local officials--in striving for a more
job-driven approach to training and skills development.
WIOA will help job seekers and workers access employment,
education, training, and support services to succeed in the labor
market and match employers with the skilled workers they need to
compete in the global economy. The purposes of WIOA described in the
Act include:
Increasing access to and opportunities for the employment,
education, training, and support services that individuals need,
particularly those with barriers to employment.
Supporting the alignment of workforce investment,
education, and economic development systems, in support of a
comprehensive, accessible, and high-quality workforce development
system.
Improving the quality and labor market relevance of
workforce investment, education, and economic development efforts.
Promoting improvement in the structure and delivery of
services.
Increasing the prosperity of workers and employers.
Providing workforce development activities that increase
employment, retention, and earnings of participants and that increase
post-secondary credential attainment and as a result, improve the
quality of the workforce, reduce welfare dependency, increase economic
self-sufficiency, meet skill requirements of employers, and enhance
productivity, and competitiveness of the nation.
WIOA is complemented by the groundwork laid by the Administration-
wide review of employment, education, and training programs to ensure
Federal agencies do everything possible to prepare ready-to-work-
Americans with ready-to-be-filled jobs. The review identified seven
priorities for these Federal programs:
Work up-front with employers to determine local or
regional hiring needs and design training programs that are responsive
to those needs;
Offer work-based learning opportunities with employers--
including on-the-job training, internships, and pre-apprenticeships and
registered apprenticeships--as training paths to employment;
Make better use of data to drive accountability, inform
what programs are offered and what is taught, and offer user-friendly
information for job seekers to choose what programs and pathways work
for them and are likely to result in a job;
Measure and evaluate employment and earnings outcomes;
Promote a seamless progression from one educational
stepping stone to another, and across work-based training and
education, so individuals' efforts result in progress;
Break down barriers to accessing job-driven training and
hiring for any American who is willing to work, including access to
supportive services and relevant guidance; and
Create regional collaborations among American Job Centers,
education institutions, labor, and nonprofits.
As WIOA implementation progresses, success in accomplishing the
purposes of WIOA at the State, local, and regional levels, will be
assessed by whether:
One-stop centers are recognized as a valuable community
resource and are known for high quality, comprehensive services for
customers.
The core programs and one-stop partners provide seamless,
integrated customer service.
Program performance, labor market and related data drive
policy and strategic decisions and inform customer choice.
Youth programs reconnect out-of-school youth (OSY) to
education and jobs.
Job seekers access quality career services either online
or in a one-stop career center through a ``common front door'' that
connects them to the right services.
One-stop centers facilitate access to high quality,
innovative education and training.
Services to businesses are robust and effective, meeting
businesses' workforce needs across the business lifecycle.
II. Acronyms and Abbreviations
AEFLA Adult Education and Family Literacy Act
ALJ Administrative Law Judge
ANVSA Alaska Native Village Service Area
AOP Agricultural Outreach Plan
ARS Agricultural Recruitment System
AWOL Absent Without Official Leave
BLS Bureau of Labor Statistics
CBO Community-based organization
CCC Civilian Conservation Center
CEO Chief elected official
CFR Code of Federal Regulations
Complaint System Employment Service and Employment-Related Law
Complaint System
[[Page 20692]]
COSO Committee of Sponsoring Organizations of the Treadway
Commission
CTT Career Technical Training
DINAP Division of Indian and Native American Programs
DOL Department of Labor
ED Department of Education
E.O. Executive Order
EO Equal opportunity
ES Employment Service
ESA Employment Standards Administration
ESARS Employment Security Automated Reporting System
ETA Employment and Training Administration
ETP Eligible training provider
ETPL Eligible training provider list
FECA Federal Employees Compensation Act
FEIN Federal employer identification number
FEMA Federal Emergency Management Agency
FERPA Family Educational Rights and Privacy Act
FLSA Fair Labor Standards Act
FOA Funding Opportunity Announcement
FR Federal Register
GED General Educational Development
GIS Geographic information system
GPRA Government Performance and Results Act
HEARTH Homeless Emergency Assistance and Rapid Transition to Housing
Act of 2009
HHS Department of Health and Human Services
HSD High School Diploma
HUD U.S. Department of Housing and Urban Development
IC Information collection
IEVS Income and Eligibility Verification System
INA Indian and Native American
ISDEAA Indian Self-Determination and Education Assistance Act
ISY In-school youth
ITA Individual Training Account
JIS Job Information Service
JS Job Service
JTPA Job Training Partnership Act
JVSG Jobs for Veterans State Grants
LEHD Longitudinal Employer-Household Dynamics
LEP Limited English proficiency
MOU Memorandum of Understanding
MSFW Migrant and Seasonal Farmworker
NAACP National Association for the Advancement of Colored People
NAFTA North American Free Trade Agreement
NAICS North American Industry Classification System
NDWG National Dislocated Worker Grant
NEG National Emergency Grant
NFJP National Farmworker Jobs Program
NICRA Negotiated Indirect Cost Rate Agreement
NPRM Notice of Proposed Rulemaking
OALJ Office of Administrative Law Judges
OBS On-board strength
OFLC Office of Foreign Labor Certification
OJT On-the-job training
OMB Office of Management and Budget
OMS Outcome Measurement System
OPDR Office of Policy Development and Research
OSHA Occupational Safety and Health Administration
OSY Out-of-school youth
OTSA Oklahoma Tribal Service Area
OWI Office of Workforce Investment
PART Program Assessment and Rating Tool
PBP Program Budget Plan
PRA Paperwork Reduction Act of 1995
PRH Policy and Requirements Handbook
Pub. L. Public Law
PY Program year
RFA Regulatory Flexibility Act
RFP Requests for proposals
Richey Order Judge Richey Court Order
RIN Regulatory Information Number
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SDA Service delivery area
sec. Section of a Public Law or the United States Code
SESA State Employee Security Act
SMA State Monitor Advocate
SOC Standard Occupational Classification
SNAP Supplemental Nutrition Assistance Program
SSA Social Security Act
SSN Social Security Number
State Board State Workforce Development Board
STAWRS Simplified Tax and Wage Reporting System
SWA State Workforce Agency
TAA Trade Adjustment Assistance
TANF Temporary Assistance for Needy Families
TEGL Training and Employment Guidance Letter
TEN Training and Employment Notice
UC Unemployment Compensation
UCX Unemployment Compensation for Ex-service members
UI Unemployment insurance
U.S.C. United States Code
VA Department of Veterans Affairs
VETS Veterans' Employments and Training Service
VR Vocational rehabilitation
Wagner-Peyser Wagner-Peyser Act of 1933
WARN Worker Adjustment and Retraining Notification
WDB Workforce Development Board
WHD Wage and Hour Division
WIA Workforce Investment Act of 1998
WIAC Workforce Information Advisory Council
WIC Workforce Information Council
WIOA Workforce Innovation and Opportunity Act of 2014
WLMI Workforce and Labor Market Information
WLMIS Workforce and Labor Market Information System
WRIS Wage Record Interchange System
III. Background
A. Workforce Innovation and Opportunity Act Principles
On July 22, 2014, President Obama signed the WIOA, the first
legislative reform of the public workforce system in more than 15
years, which passed Congress by a wide bipartisan majority. WIOA
supersedes the Workforce Investment Act of 1998 (WIA) and amends the
Adult Education and Family Literacy Act (AEFLA), the Wagner-Peyser Act,
and the Rehabilitation Act of 1973. WIOA presents an extraordinary
opportunity for the workforce system to accelerate its transformational
efforts and demonstrate its ability to improve job and career options
for our citizens through an integrated, job-driven public workforce
system that links diverse talent to our nation's businesses. It
supports the development of strong, vibrant regional economies where
businesses thrive and people want to live and work.
WIOA reaffirms the role of the customer-focused one-stop delivery
system, a cornerstone of the public workforce investment system, and
enhances and increases coordination among several key employment,
education, and training programs. Most provisions in WIOA take effect
on July 1, 2015, the first full program year (PY) after enactment,
although the new State plans and performance accountability system take
effect July 1, 2016. Title IV, however, took effect upon enactment.
WIOA presents an extraordinary opportunity for the workforce system
to accelerate its transformational efforts and demonstrate its ability
to improve job and career options for our citizens through an
integrated, job-driven public workforce system that links diverse
talent to our nation's businesses. It supports the development of
strong, vibrant regional economies where businesses thrive and people
want to live and work.
WIOA is designed to help job seekers access employment, education,
training, and support services to succeed in the labor market and to
match employers with the skilled workers they need to compete in the
global economy. WIOA has six main purposes: (1) Increasing access to
and opportunities for the employment, education, training, and support
services for individuals, particularly those with barriers to
employment; (2) supporting the alignment of workforce investment,
education, and economic development systems in support of a
comprehensive, accessible, and high-quality workforce development
system; (3) improving the quality and labor market relevance of
workforce investment, education, and economic development efforts; (4)
promoting improvement in the structure and delivery of services; (5)
increasing the prosperity of workers and employers; and (6) providing
workforce development activities that increase
[[Page 20693]]
employment, retention, and earnings of participants and that increase
post-secondary credential attainment and as a result, improve the
quality of the workforce, reduce welfare dependency, increase economic
self-sufficiency, meet skill requirements of employers, and enhance
productivity and competitiveness of the nation.
Beyond achieving the requirements of the new law, WIOA offers an
opportunity to continue to modernize the workforce system, and achieve
key hallmarks of a customer centered workforce system, where the needs
of business and workers drive workforce solutions, where one-stop
career centers and partners provide excellent customer service to job
seekers and businesses, where the workforce system pursues continuous
improvement through evaluation and data-driven policy, and where the
workforce system supports strong regional economies.
Regulations and guidance implementing titles I and III are issued
by DOL, with the exception of joint regulations that will be issued by
DOL and ED on the provisions in title I relating to unified and
combined planning, performance, and the one-stop delivery system.
Regulations and guidance on implementing titles II and IV will be
issued by ED.
WIOA retains much of the structure of WIA, but with critical
changes to advance greater coordination and alignment. Under title I-A,
each State will be required to develop a single, unified strategic plan
that is applicable to four core workforce development programs. The
core programs consist of (1) the adult, dislocated worker, and youth
formula programs administered by the Department under title I of WIOA;
(2) the Adult Education and Family Literacy program administered by ED
under title II of WIOA; (3) the Wagner-Peyser Act employment services
(ES) program administered by the Department, as amended by title III of
WIOA; and (4) the vocational rehabilitation (VR) programs under title I
of the Rehabilitation Act administered by ED, as amended by title IV of
WIOA. In addition to core programs, WIOA provides States the
opportunity to include other key one-stop partner programs such as the
Supplemental Nutrition Assistance Program (SNAP), Unemployment
Insurance (UI), Temporary Assistance for Needy Families (TANF), and
Perkins Career Technical Education in a Combined State Plan. The law
also includes a common performance accountability system applicable to
all of the core programs.
The remainder of WIOA title I authorizes the adult, dislocated
worker, and youth formula programs; the State and local workforce
development (formerly investment) boards; the designation of regions
and local areas; local plans; the one-stop system; national programs,
including Job Corps, YouthBuild, Indian and Native American programs,
and Migrant and Seasonal Farmworker (MSFW) programs; technical
assistance and evaluations; and general administrative provisions
currently authorized under title I of WIA. Title II retains and amends
the Adult Education and Family Literacy Program currently authorized
under title II of WIA. Title III contains amendments to the Wagner-
Peyser Act relating to the ES and Workforce and Labor Market
Information System (WLMIS), and requires the Secretary to establish a
Workforce Information Advisory Council (WIAC). Title IV contains
amendments to the Rehabilitation Act of 1973, which were also included
under title IV of WIA; it also requires the Secretary of Labor to
establish an Advisory Committee on Increasing Competitive Integrated
Employment for Individuals with Disabilities. Finally, title V contains
general provisions similar to the provisions applicable under title V
of WIA as well as the effective dates and transition provisions.
Since the enactment of WIOA, the Department has used a variety of
means to coordinate with other Federal agencies that have roles and
responsibilities under the Act. The Department works closely with staff
at ED and the Department of Health and Human Services (HHS) on all
shared policy and implementation matters. Key areas of collaboration
include the Unified State Plan, performance reporting, one-stop service
delivery, and services to disconnected youth and to individuals with
disabilities. WIOA created an opportunity to enhance coordination and
collaboration across other Federal programs through the Combined State
Plan and the Department meets with the other Federal agencies regarding
those plans.
Before publishing the NPRM, the Department solicited broad input
through a variety of mechanisms including:
Issued Training and Employment Notice (TEN) No. 05-14 to
notify the public workforce system that WIOA was enacted, accompanied
by a statutory implementation timeline, a fact sheet that identified
key reforms to the public workforce system, and a list of frequently
asked questions.
Issued TEN No. 06-14 to announce a series of webinars to
engage WIOA stakeholders in implementation of WIOA.
Issued TEN No. 12-14 to provide guidance to States and
other recipients of funds under title I of WIA on the use and reporting
of PY 2014 funds for planning and implementation activities associated
with the transition to WIOA.
Established a WIOA Resource Page (www.doleta.gov/WIOA) to
provide updated information related to WIOA implementation to the
public workforce system and stakeholders;
Established a dedicated email address for the public
workforce system and stakeholders to ask questions and offer ideas
related to WIOA ([email protected]);
Conducted, in conjunction with ED and HHS outreach calls,
webinars, and stakeholder and in-person town halls in each ETA region.
The Department and its Federal partners hosted 10 town halls across the
country, reaching over 2,000 system leaders and staff representing core
programs and one-stop partners, employers, and performance staff. This
included a town hall with Indian and Native American leaders and
membership organizations serving Indians and Native Americans,
Hawaiians, and Alaskan Natives as well as a formal consultation with
members of the Native American Employment and Training Advisory Council
to the Secretary of Labor.
Conducted readiness assessments to implement WIOA in all
States and 70 local workforce areas to inform technical assistance.
B. Major Changes From Current Workforce Investment Act of 1998
This section contains a summary of the major changes from the
current WIA. As indicated above, WIOA retains much of the structure of
WIA.
Major changes in WIOA are:
Aligns Federal investments to support job seekers and
employers. The Act provides for States to prepare a single Unified
State Plan that identifies a 4-year strategy for achieving the
strategic vision and goals of the State for preparing an educated and
skilled workforce and for meeting the skilled workforce needs of
employers. States govern the core programs as one system assessing
strategic needs and aligning them with service strategies to ensure the
workforce system meets employment and skill needs of all workers and
employers.
Streamlines the governing bodies that establish State,
regional and local workforce investment priorities. WIOA makes State
and Local Workforce
[[Page 20694]]
Development Boards more agile and well positioned to meet local and
regional employers' workforce needs by reducing the size of the boards
and assigning them additional responsibilities to assist in the
achievement of the State and local strategic workforce vision and
goals. The State Workforce Development Boards (State Boards) continue
to have a majority of business representation and a business chair that
work for all workers and jobseekers, including low-skilled adults,
youth, and individuals with disabilities, while they foster innovation,
and ensure streamlined operations and service delivery excellence.
Creates a common performance accountability system and
information for job seekers and the public. WIOA ensures that Federal
investments in employment, education, and training programs are
evidence-based and data-driven, and accountable to participants and the
public. It establishes a performance accountability system that applies
across the core programs, by generally applying six primary indicators
of performance: entry into unsubsidized employment at two points in
time, median earnings, attainment of post-secondary credentials,
measurable skill gains, and effectiveness in serving employers.
Fosters regional collaboration to meet the needs of
regional economies. WIOA promotes alignment of workforce development
programs with regional economic development strategies to meet the
needs of local and regional employers.
Enhances access to high quality services through the
network of one-stop system. WIOA helps jobseekers and employers acquire
the services they need in centers and online, clarifies the roles and
responsibilities of the one-stop partner programs, adds the TANF
program as a required one-stop partner unless the Governor objects,
requires competitive selection of one-stop operators, and requires the
use by the one-stop system of a common one-stop delivery identifier or
brand that is to be developed by the Secretary of Labor.
Improves services to individuals with disabilities. WIOA
stresses physical and programmatic accessibility, including the use of
accessible technology to increase individuals with disabilities' access
to high quality workforce services.
Makes key investments for disconnected youth. WIOA
emphasizes services to disconnected youth to prepare them for
successful employment by requiring that a minimum of 75 percent of
youth formula program funds be used to help OSY, in contrast to the 30
percent required under WIA. WIOA increases OSYs' access to WIOA
services, including pre-apprenticeship opportunities that result in
registered apprenticeship. It adds a requirement that at least 20
percent of formula funds at the local level be used on work-based
training activities such as summer jobs, on-the-job training (OJT), and
apprenticeship.
Helps Employers Find Workers with the Necessary Skills.
WIOA contributes to economic growth and business expansion by ensuring
the workforce system is job-driven--matching employers with skilled
individuals. WIOA requires Local Boards to promote the use of industry
and sector partnerships that include key stakeholders in an industry
cluster or sector that work with public entities to identify and
address the workforce needs of multiple employers.
Additionally, successful implementation of many of the approaches
called for within WIOA, such as career pathways and sector strategies,
require robust relationships across programs and with businesses,
economic development, education and training institutions, including
community colleges and career and technical education, local entities,
and supportive services agencies.
C. Rule Format
The NPRM format reflects the Department's commitment to writing
regulations that are reader-friendly. The Department has attempted to
make this NPRM clear and easy to understand. To this end, the
regulatory text is presented in a ``question and answer'' format and
organized consistent with the Act. While the Department has provided
cross-references to the statute(s), the Department also has included
the Act's provisions in the answers for completeness.
While the Department has anticipated many issues that may arise and
provided appropriate directions, there are many other areas where the
Department continues to weigh options. Thus, the Department raises
questions throughout the preamble where the Department seeks additional
information or where the Department is weighing options and seek
comments.
D. Legal Basis
On July 22, 2014, the President signed the Workforce Innovation
Opportunity Act (WIOA) (Pub. L. 113-128) into law. WIOA repeals WIA (29
U.S.C. 2801 et seq.). As a result, the WIA regulations no longer
reflect current law. Section 503(f) of WIOA requires that the
Department issue an NPRM and then a final rule that implements the
changes WIOA makes to the public workforce system in regulations.
Therefore, DOL seeks to develop and issue a NPRM that proposes to
implement WIOA. The Department of Labor will issue regulations
regarding the Section 188 Nondiscrimination provisions through separate
rulemaking.
IV. Section-by-Section Discussion of Proposal
A. Part 603--Federal-State Unemployment Compensation Program Disclosure
of Confidential Unemployment Compensation Information Under WIOA Sec.
116
Relationship Between 20 CFR Part 603 and WIOA
The Department is amending its regulations at 20 CFR part 603 to
help States comply with the WIOA. WIOA requires that States use
``quarterly wage records'' in assessing the performance of certain
Federally-funded employment and training programs.
States must make available performance reports for local areas and
for eligible training providers (ETPs) under title I of the WIOA. WIOA
also requires that States cooperate in evaluations, by the Departments
of Labor and Education, of State programs overseen by those Federal
agencies.
To help States comply with these requirements, the Department has
determined that it would be useful to more clearly and specifically,
describe in unemployment compensation (UC) confidentiality regulations,
the standards for disclosure between the State UC, workforce, and
education systems. This proposal amends current regulations to clarify,
in a limited fashion, those State government officials with whom the
State may share certain confidential information in order to carry out
requirements under the law. The regulations enumerate certain
additional public officials who may access confidential State wage
records that are the basis for the State's performance reporting.
Ensuring such access to these State records would allow State agencies
to better manage the information for the purpose of making Federally-
required reports on certain program outcomes, and to cooperate more
effectively and be more informative with respect to Federal program
evaluations.
WIOA section (sec.) 116(i)(2) and proposed regulation Sec. 677.175
(a) require State workforce, training, and education programs to use
quarterly wage records to measure the progress of
[[Page 20695]]
the State on State and local performance accountability measures. Under
WIA, the Department interpreted the reference to ``quarterly wage
records'' in sec. 136(f)(2) to require States to use the confidential
UC information in the employer-provided wage reports collected under
sec. 1137 of the Social Security Act (SSA), 42 U.S.C. 1320b-7. (See 20
CFR 677.175.) These are the reports that the State UC agency obtains
from employers for determining UC tax liability, monetary eligibility,
or for cross-matching against State UC agencies' files to determine if
improper payments have been made. The Department adheres to this
interpretation in implementing WIOA sec. 116(i)(2).
The ``wage information'' defined in Sec. 603.2(k)--which the
regulations allow State agencies to disclose under limited
circumstances--includes the three data categories or elements (wages,
SSN(s), employer information) that States must use as their data source
for State and local performance reporting under WIOA. The proposed WIOA
implementing regulation at 20 CFR 677.175 (b) defines ``quarterly wage
record information'' to include three data elements or categories of
data elements: (1) A program participant's SSN(s); (2) information
about the wages program participants earn after exiting from the
program; and (3) the name, address, State and (when known) the Federal
Employer Identification Number (FEIN) of the employer paying those
wages. The disclosure of such wage record data is governed by UC part
603 regulations, which establish requirements for maintaining the
confidentiality of UC information along with standards for mandatory
and permissive disclosure of such information.
Part 603 permits State agencies to disclose confidential UC
information--including ``wage information''--to ``public officials''
(defined at Sec. 603.2(d)) under limited circumstances (defined under
Sec. 603.5), and authorizes such ``public officials,'' in turn, to use
the information to develop Federally-required performance reports.
As explained in greater detail below, the Department proposes
changes to Sec. 603.2 (definition of ``public official'') and Sec.
603.5 (governing disclosures to public officials), to help States
comply with WIOA's performance requirements, including the performance
reports of the States, local areas, and ETPs. In addition, the
Department proposes to amend Sec. 603.6 to add a provision requiring
disclosure to implement the new statutory requirement on State
cooperation with certain DOL and ED evaluations. These changes would
facilitate States' obligations to report on performance through the use
of quarterly wage records, and to cooperate in DOL and ED evaluations.
The amendments the Department is proposing to part 603 relate only
to State agency disclosures necessary to comply with certain provisions
of WIOA. The Department is not proposing to redefine or expand the
confidential State information--the confidential wage records or wage
information--that is currently the basis for State performance
reporting, and is not proposing to reduce in any way the significant
privacy protections and confidentiality requirements that currently
govern that information. The Department is not proposing to change any
requirements relating to the permissible or mandatory disclosure of
confidential UC information for any other purpose, or addressing any
general UC issues. We note, in particular, that nothing in these
proposed regulations exempts disclosures made under these regulations
from the safeguards and security requirements in Sec. 603.9, the
requirements in Sec. 603.10 governing agreements, or the requirements
for payment of costs under Sec. 603.8(a).
The Department invites comments on our proposed additions to part
603, but will not consider or address comments on part 603 or other UC
matters that are outside the scope of this NPRM.
Section 603.2(d)(2)-(5)
Proposed Sec. Sec. 603.2(d)(2)-(5) expand the definition of who
and what entities are considered ``public officials'' for purposes of
complying with WIOA's requirements. Currently, Sec. 603.2(d) defines
``public official'' as ``an official, agency, or public entity'' in the
executive branch of government with ``responsibility for administering
or enforcing a law,'' or ``an elected official in the Federal, State or
local government.'' Proposed Sec. 603.5(e) allows disclosure to public
officials who need the information to carry out their official duties.
This exception allows State agencies that collect ``wage information''
(including the data required for performance reporting under WIOA sec.
677.175) to provide that information to the State agencies responsible
for administering and reporting on the WIOA core programs and mandatory
one-stop partner programs. For example, State UC agencies, which are
governed by part 603, may disclose confidential UC information to the
State adult basic education agency for purposes of performing their
official duties, as used in Sec. 603.5(e).
The proposed amendments to Sec. 603.2(d) would clearly enumerate
that ``public official'' includes officials from public post-secondary
educational organizations, State performance accountability and
customer information agencies, the chief elected officials (CEOs) of
local Workforce Development Areas (as that term is used in WIOA sec.
106), and a public State educational authority, agency, or institution.
Proposed Sec. 603.2(d)(2) would permit disclosure to public post-
secondary educational institutions, regardless of how those
institutions are structured or organized under State law. The
regulation, as proposed, specifically mentions three categories of
institutions. Proposed Sec. 603.2(d)(2)(i) would permit disclosure to
public post-secondary educational institutions that are part of a
State's executive branch, i.e., derive their authority either directly
from the Governor or from an entity (State Board, commission, etc.)
somewhere in that line of authority. Proposed Sec. 603.2(d)(2)(ii)
would permit disclosure to public post-secondary educational
institutions that are independent of the State's executive branch,
which means those institutions whose directors derive their authority
either directly from an elected official in the State other than the
Governor or from an entity (again, a State Board, commission, or other
entity) in that line of authority. Proposed Sec. 603.2(d)(2)(ii)
covers any public post-secondary educational institution established
and governed under State law, for example, a State Board of Regents.
Proposed Sec. 603.2(d)(2)(iii) would allow disclosure specifically to
State technical colleges and community colleges. (Those institutions
may also be covered under (i) or (ii))
Proposed Sec. 603.2(d)(5) permits disclosure to a public State
educational authority, agency or institution'' as the terms are used in
the Family Educational Rights and Privacy Act (FERPA) to clarify that
the Department considers the heads of public institutions that derive
their authority from a State educational authority or agency to be
``public officials'' for purposes of part 603.
The Department proposes these changes to help States comply with
WIOA's requirement to use wage records to measure performance (WIOA
sec. 116(i)(2)) and to facilitate the performance reporting required
for ETPs under secs. 116(d) and 122 of WIOA. WIOA mandates the use of
wage records to measure State and local performance. As long as the
recipients of the data adhere to all of the requirements in 20 CFR part
603, this proposed section
[[Page 20696]]
would permit States to make these disclosures to comply with WIOA
requirements for Federal, State, or local government reporting on
program outcomes and for other specified purposes.
Non-public educational institutions, including non-profit or for-
profit educational institutions or other ETPs which are not subject to
the authority of the executive branch or another State elected official
would not be permitted to obtain confidential UC information, including
wage information, under this authority because they are not public
entities. Any disclosures of confidential UC information to those
entities for purposes of complying with WIOA would have to be
authorized under the provisions of Sec. 603.5 other than Sec.
603.5(e). However, it is permissible and encouraged to develop
processes or systems, such as the Wage Record Interchange System, to
enable a State agency or State educational authority (including a State
Education Agency) that collects wage records to match program
participant data with wage records, and to provide aggregate
participant outcome data to non-governmental educational entities,
including ETPs under title I of WIOA.
Section 603.5(e)
Proposed Sec. 603.5(e), as amended, would assist State workforce
and State education programs in complying with WIOA, and in particular
with WIOA's sec. 116 performance accountability responsibilities, by
explicitly stating that confidential UC information may be disclosed to
a ``public official'' as defined in Sec. 603.2(d)(2) for limited,
specified WIOA purposes.
Proposed Sec. 603.5(e), as amended, in conjunction with the
revised definition of ``public official'' under 603.2(d)(2), would
enable State UC agencies to disclose confidential UC information to
State and local agencies and other public officials authorized to carry
out their responsibilities under WIOA for performance accountability,
including audits and evaluations of the programs and other required
reporting of outcomes, as described in proposed Sec. 603.2(d)(2). To
enable States to comply with WIOA, State UI agencies, or other State
agencies responsible for collection of wage record information, must
collaborate with the entities under WIOA that are required to use wage
record data for performance to make the data available pursuant to part
603.
The Department notes that the proposed amendment to Sec. 603.5(e)
would permit disclosure to a public official for purposes of
performance accountability of the entities on the State's eligible
training provider list (ETPL). In addition, disclosure of confidential
UC information for other programs' performance accountability purposes
(e.g., TANF or SNAP) may be accomplished under existing Sec. 603.5, as
these entities are public officials and are performing their public
duty, as defined in this section.
A new clause (iii) under proposed Sec. 603.5(e) would permit
disclosures ``as otherwise required for education or workforce training
program performance accountability and reporting under Federal or State
law.'' The Department intends that this provision apply only in the
limited instance where a Federal or State law requires performance
reporting for which data covered by part 603 is needed in a way that is
not covered by the other WIOA-specific provisions. In those instances,
this provision would permit a State agency to disclose confidential UC
information to a ``public official'' seeking the information to comply
with that statute.
Section 603.6(8)
Proposed Sec. 603.6(8) makes the disclosure of confidential UC
information for certain Federal evaluations mandatory when the
disclosure would not interfere with the efficient administration of
State UC law. The Department proposes this change to Sec. 603.6 to
implement the requirement, under WIOA sec. 116(e)(4), that States
cooperate, ``to the extent practicable,'' in the conduct of evaluations
by either the Secretary of Labor or the Secretary of Education. WIOA
sec. 116(e)(4) defines cooperation to include ``the provision of data
(in accordance with appropriate privacy protections established by the
Secretary of Labor)''; this includes 20 CFR part 603 and any other
privacy protections the Secretary may establish. The proposed new
regulation at Sec. 603.6(8) would implement these requirements for
purposes of providing confidential UC information regulated by part
603. The new regulation would require disclosure of confidential UC
information to Federal officials, or their agents or contractors,
requesting such information in the course of an evaluation covered by
WIOA Sec. 116(e)(4) and 116(e)(1), to the extent that such disclosure
is ``practicable.''
In these cases, the Department interprets ``to the extent
practicable'' to mean that the disclosure would not interfere with the
efficient administration of State UC law. This standard is consistent
with the standard the regulation applies to disclosures under Sec.
603.5, in situations where the disclosure is permitted but a State must
determine, first, that the disclosure would not interfere with the
efficient administration of State UC law. In effect, the proposed
provision would require that State UC agencies make disclosures to
Federal education and labor agencies carrying out evaluations when it
would not interfere with the efficient administration of the State UC
law. The Department anticipates this cooperation and related
disclosures would include responding to surveys and allowing site
visits, as well as disclosure of confidential UC information needed for
the evaluation.
B. Part 675--Introduction to the Regulations for the Workforce
Innovation and Opportunity Systems Under Title I of the Workforce
Innovation and Opportunity Act
Proposed part 675 discusses the purpose of title I of the WIOA,
explains the format of the regulations governing title I, and provides
additional definitions which are not found and defined in the Act.
Proposed Sec. 675.100 describes the purposes of title I of WIOA.
Proposed Sec. 675.200 outlines the structure of the proposed WIOA
regulations.
Proposed Sec. 675.300 provides a list of proposed definitions that
are applicable across the WIOA regulations.
In addition to the definitions in the WIOA regulations and at secs.
3, 142, 166(b), 167(i), 170(a), 171(b), 203, 302, and 404 of WIOA,
proposed Sec. 675.300 provides additional definitions that apply to
the programs and activities authorized and funded under title I of
WIOA.
Included in this list of definitions, the Department proposes to
adopt the following relevant definitions from the Office of Management
and Budget's (OMB) ``Uniform Administrative Requirements, Cost
Principles and Audit Requirements for Federal Awards'' found at 2 CFR
part 200: Contract, Contractor, Cooperative Agreement, Federal Award,
Federal Financial Assistance, Grant Agreement, Non-Federal Entity,
Obligations, Pass-Through Entity, Recipient, Subaward, Subrecipient,
Unliquidated Obligations, and Unobligated Balance. All other
definitions at 2 CFR part 200 apply to these regulations where
relevant, but have not been included in this section.
Contract: The proposed definition for ``contract'' incorporates the
definition established by OMB at 2 CFR 200.22. Specifically, the
proposed term ``contract'' refers to the legal document that a non-
Federal entity uses to purchase property or services used to carry out
its duties under a grant authorized under WIOA. If the
[[Page 20697]]
Department determines that a particular transaction entered into by the
entity is a Federal award or subaward it will not be considered a
contract.
Contractor: The proposed definition of ``contractor'' incorporates
the definition contained in OMB's Uniform Guidance at 2 CFR 200.23. The
Uniform Guidance has replaced the term ``vendor'' with the term
``contractor.'' As used in these regulations, the term ``contractor''
includes entities that the Act refers to as ``vendors.'' Additionally,
it is important to note that contractors are not subrecipients.
Additional guidance on distinguishing between a contractor and a
subrecipient can be found at 2 CFR 200.330.
Cooperative Agreement: The proposed definition of ``cooperative
agreement'' incorporates the definition contained in the Uniform
Guidance at 2 CFR 200.24.
Department or DOL: This proposed term refers to the United States
DOL, its agencies, and organizational units.
Employment and Training Activity: As used in these regulations, the
proposed term ``employment and training activity'' refers to any
workforce investment activities carried out for an adult or dislocated
worker under sec. 134 of WIOA and 20 CFR part 678.
Equal Opportunity (EO) Data: This proposed term refers to the data
required by the Department's regulations at 29 CFR part 37 implementing
sec. 188 of WIOA.
ETA: This proposed term refers to the ETA, an agency of DOL, or its
successor organization.
Federal Award: This proposed definition incorporates the definition
in the Uniform Guidance at 2 CFR 200.38.
Federal Financial Assistance: The proposed definition of ``Federal
financial assistance'' incorporates the definition contained in the
Uniform Guidance at 2 CFR 200.40.
Grant or Grant Agreement: The proposed definition of ``grant
agreement'' incorporates the definition contained in the Uniform
Guidance at 2 CFR 200.51. Because both WIOA and these regulations use
``grant'' and ``grant agreement'' interchangabily, the inclusion of
both terms here clarifies that the terms are synonymous.
Grantee: The proposed definition of ``grantee'' refers to a
recipient of funds under a grant or grant agreement. Grantees are also
referred to as recipients in these regulations.
Individual with a Disability: This proposed definition adopts the
definition from sec. 3 of the Americans with Disabilities Act, as
amended, and is further defined at 29 CFR 37.4.
Labor Federation: This proposed definition remains unchanged from
the definition used in the regulations under WIA at 20 CFR 660.300.
Literacy: The proposed definition for ``literacy'' as used in these
regulations is a measure of an individual's ability to participate and
successfully function both in the workplace and in society.
Local Board: This proposed definition clarifies that the term
``Local Board'' as used in these regulations refers to the Local
Workforce Development Boards established under sec. 107 of WIOA.
Non-Federal Entity: The proposed definition of ``non-Federal
entity'' incorporates the definition contained in the Department's
Exceptions to the Uniform Guidance at 2 CFR 2900.2.
Obligations: The definition of ``obligations'' incorporates the
definition contained in the Uniform Guidance at 2 CFR 200.71.
Outlying Area: The proposed term ``outlying area'' refers to those
Territories of the United States which are not within the definition of
``State,'' including the U.S. Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, and, in certain
circumstances, the Republic of Palau.
Pass-through entity: The proposed definition of pass-through entity
incorporates the definition in the Uniform Guidance at 2 CFR 200.74.
Recipient: The proposed definition of ``recipient,'' which is
different than the current definition of recipient under WIA at 20 CFR
660.300, incorporates the definition in the Uniform Guidance at 2 CFR
200.86.
Register: The proposed definition of ``register'' means the point
at which an individual seeks more than minimal assistance from staff in
taking the next step towards self-sufficient employment. This is also
when information that is used in performance information begins to be
collected. At a minimum, individuals must provide identifying
information to be registered.
Secretary: This proposed term refers to the Secretary of the U.S.
DOL, or their officially delegated designees.
Secretaries: This proposed term refers to the Secretaries of the
U.S. DOL and the U.S. ED, or their officially designated designees.
Self-Certification: The proposed term ``self-certification'' refers
to the certification made by an individual that they are eligible to
receive services under title I of WIOA.
State: The proposed term ``State'' refers to each of the several
States of the United States, the District of Columbia, and the
Commonwealth of Puerto Rico.
State Board: This proposed definition clarifies that the term
``State Board'' as used in these regulations refers to the State Boards
established under sec. 101 of WIOA
Subgrant or Subaward: This proposed term incorporates the
definition of ``subaward'' in the Uniform Guidance at 2 CFR 200.92.
This term replaces the term ``subgrant'' found in WIA at 20 CFR
660.300. Because both WIOA and these regulations use ``subgrant'' and
``subaward'' interchangeably, the inclusion of both terms here
clarifies that the terms are synonymous.
Subrecipient: The proposed definition of ``subrecipient''
incorporates the definition in the Uniform Guidance at 2 CFR 200.93.
This term is synonymous with the term ``subgrantee.''
Unliquidated Obligations: The proposed definition of ``unliquidated
obligations'' incorporates the definition contained in the Uniform
Guidance at 2 CFR 200.97.
Unobligated Balance: The proposed definition of ``unobligated
balance'' incorporates the definition in the Uniform Guidance at 2 CFR
200.98.
Wagner-Peyser Act: As used in these regulations, the proposed term
``Wagner-Peyser Act'' refers to the Wagner-Peyser Act passed on June 6,
1933, and codified at 29 U.S.C. 49, et seq.
WIA Regulations: The proposed term ``WIA Regulations'' as used in
this regulation or subsequently by the Department refers to the
regulations 20 CFR parts 660-672. This definition is necessary because,
as described in the introduction to these regulations, the Department
has chosen to retain the WIA regulations at parts 660-672 of title 20
of the CFR.
WIOA Regulations: This proposed term, as used in this regulation or
generally by the Department means those regulations in 20 CFR parts 675
through 687, the Wagner-Peyser Act regulations in 20 CFR part 652,
subpart C, and the regulations implementing WIOA sec. 188 in 29 CFR
part 37.
Workforce Investment Activities: The proposed term ``workforce
investment activities'' is a general term that describes the broad
array of activities and services provided to eligible adults,
dislocated workers, and youth under secs. 129 and 134 of title I of
WIOA.
Youth Workforce Investment Activity: The proposed term ``youth
workforce investment activity'' refers to those activities carried out
for eligible youth that fall within the broad definition of ``workforce
investment activity.''
[[Page 20698]]
C. Part 679--Statewide and Local Governance of the Workforce Innovation
and Opportunity System Under Title I of the Workforce Innovation and
Opportunity Act
1. Subpart A--State Workforce Development Board
This subpart A sets forth the conditions under which the Governor
must establish the State Board.
Proposed Sec. Sec. 679.100(a)-(e) explain the purpose of the State
Board. The State Board represents a wide variety of individuals,
businesses, and organizations throughout the State. WIOA is designed to
help job seekers and workers access employment, education, training,
and support services needed to succeed in the labor market, and match
employers with the skilled workers needed to compete in the global
economy. Further, the Department envisions a State Board that takes
leadership to ensure that the one-stop system in each State is customer
driven. The State Board can help lead this effort by aligning Federal
investments in job training, integrating service delivery across
programs, and ensuring that the workforce system is job-driven and
matches employers with skilled individuals.
The Department envisions that the State Board will serve as a
convener of State, regional, and local workforce system partners to
enhance the capacity and performance of the workforce development
system; align and improve employment, training, and education programs,
and through these efforts, promote economic growth.
The State Board must be a strategic convener that promotes
partnerships and engages key stakeholders. This role can only be
accomplished if each State Board member is an active participant in the
business of the board. State Board members must establish a platform in
which all members actively participate and collaborate closely with the
required partners of the workforce development system, including public
and private organizations. This engagement is crucial in the State
Board's role to help integrate and align a more effective job-driven
workforce investment system that invests in the connection between
education and career preparation.
Section 679.100 What is the vision and purpose of the State Board?
A key goal of Federally-funded training programs is to get more
Americans ready to work with marketable skills and support businesses
to find workers with the skills that are needed. The role of the State
Board in achieving this goal includes engaging employers, education
providers, economic development, and other stakeholders to help the
workforce development system achieve the purpose of WIOA and the
State's strategic and operational vision and goals outlined in the
State Plan. The Department encourages the State Board to develop a
comprehensive and high-quality workforce development system by working
with its workforce, education, business, and other partners to improve
and align employment, training, and education programs under WIOA.
The Department encourages the State to take a broad and strategic
view when considering representatives of the State Board, and also in
establishing processes which it will use to include necessary
perspectives in carrying out State Board functions. For example,
alignment of required one-stop partner investments is essential to
achieving strategic and programmatic alignment at the State, regional,
and local level. Further, States are encouraged to examine factors like
the natural bounds of regional economies, commuting patterns, and how
economic sectors impact the State, which may benefit from inputs either
from formal members of the board, or through other engagement. Further,
a broad geographic representation as well as a reflection of diversity
of populations within the State is critical.
Section 679.110 What is the State Workforce Development Board?
Proposed Sec. 679.110 describes the membership requirements of the
State Board. WIOA sec. 101(b) uses the terms ``representative'' and
``representatives'' in several places. In this section the Department
interprets ``representatives'' to mean two or more individuals and
``representative'' as one individual.
Proposed Sec. 679.110(a) explains that States must establish State
Boards in accordance to the requirements of WIOA sec. 101 and these
regulations. This proposed section retains the same requirements found
at 20 CFR 661.200(a).
Proposed Sec. 679.110(b) generally requires, in accordance with
sec. 101(b)(2) of WIOA, that the State Board membership represent the
diverse geographic areas of the State. Employers' and workers'
challenges and needs differ among the urban, rural, and suburban areas
of the States due to demographics, labor market information and
conditions, and business and worker needs and access to the workforce
development system. Accordingly, the Department strongly encourages
that each category of membership on the Board--the members of the State
legislature, business representative, workforce and labor
representatives, and State and local officials--represent the diverse
geographic areas of the State to ensure that the workforce development
system meets the education, employment, and skill needs of workers,
jobseekers, and businesses, no matter their location in the State.
Proposed Sec. 679.110(b)(1) and (2) implement secs. 101(1)(A) and
(B) of WIOA by requiring that the board include the Governor of the
State and one member of each chamber of the State legislature.
Proposed Sec. 679.110(b)(3)(i)(A) through (C), implementing sec.
101(b)(1)(C)(i) of WIOA, require the majority of State Board
representatives to be from businesses or organizations in the State.
These representatives must either be the owner or chief executive of
the business or be an executive with optimum policy-making or hiring
authority as defined in proposed Sec. 679.120. These representatives
must also come from businesses or organizations that represent
businesses which provide employment and training opportunities that
include high-quality, work-relevant training, and development
opportunities in in-demand industry sectors or occupations. Work-
relevant and development opportunities may include customized training,
registered apprenticeship, or OJT. Finally, the Governor must appoint
these members based on nominations from business organizations and
trade associations in the State. The Department envisions that these
members will be individuals that will be able to drive the board to
align the workforce investment, education, and economic development
systems in support of a comprehensive, accessible, and high-quality
workforce development system.
Proposed Sec. 679.110(b)(3)(i)(D) requires, at a minimum, that one
member of the State Board represent small business as defined by the
U.S. Small Business Administration. Small businesses are a critical
component of and major contributor to the strength of local economies
and present new employment opportunities. The Department proposes to
require a small business representative because the presence of at
least one small business representative on the State Board will allow
the board as a whole to more readily receive the unique perspectives,
experiences, and needs of small businesses.
Proposed Sec. 679.110(b)(3)(ii)(A) through (D) require that not
less than 20
[[Page 20699]]
percent of the members of the State Board be representatives of the
workforce. Such representatives must include representatives from labor
organizations and registered apprenticeship programs within the State,
in accordance with sec. 101(b)(1)(ii). This provision maintains WIA's
emphasis and requirement that State Board representatives include
members of the workforce and labor organizations. The Department
anticipates that the inclusion of workforce and labor representatives
will foster cooperation between labor and management, strengthening the
operation and effectiveness of the State workforce development system.
This proposed section also encourages representation from CBOs that
have demonstrated experience and expertise, as defined in proposed
Sec. 679.120, in addressing the employment, training, or education
needs of individuals with barriers to employment across the State
including organizations that serve veterans or that provide or support
competitive, integrated employment for individuals with disabilities,
and organizations that have demonstrated experience and expertise in
addressing the employment, training, or education needs of eligible
youth, including organizations that serve OSY.
Proposed Sec. 679.110(b)(3)(iii)(A)(1) and (2), implementing WIOA
sec. 101(b)(1)(iii)(I), require the Governor to appoint to the State
Board representatives of government that include the lead State
officials with primary responsibility for each of the core programs and
two or more CEOs that represent both cities and counties, where
appropriate. The inclusion of State officials with primary
responsibility for each of the core programs and CEOs on the State
Board is important so that they can support and improve the service
delivery of each core program through their experience in workforce
investment activities and positions as public leaders. This provision
also requires that where the State official with primary responsibility
for a core program represents more than one core program, that official
must ensure adequate representation on the State Board of the needs of
all the core programs under their jurisdiction. Additionally, the CEOs
must be able to represent their geographic area such as their
surrounding cities and counties in the area.
Proposed Sec. 679.110(b)(3)(iii)(B), in accordance with WIOA sec.
101(b)(1)(C)(iii)(II), allows the Governor to designate other
representatives and officials to the Board, including but not limited
to, representatives and officials such as State agency officials from
agencies that are responsible for one-stop partners, State agency
officials responsible for economic development or juvenile justice
programs, individuals who represent an Indian tribe or tribal
organizations, and State agency officials responsible for education
programs.
Proposed Sec. 679.110(c), implementing sec. 101(c) of WIOA,
requires the Governor to select a chairperson for the State Board from
the business representatives on the board. This proposed section
retains the same requirements found at 20 CFR 661.200(g).
Proposed Sec. 679.110(d) requires the Governor to establish by-
laws that help improve operations of the State Board. Proposed Sec.
679.110(d)(1) through (7) require that at a minimum the by-laws address
the nomination process used by the Governor to select the State Board
chair and members, term limitations and how the term appointments will
be staggered to ensure only a portion of memberships expire in a given
year, the process to notify the Governor of a board member vacancy to
ensure a prompt nominee, the proxy and alternative designee process
that will be used when a board member is unable to attend a meeting and
assigns a designee, brokers relationships with stakeholders, and any
other conditions governing appointment or membership on the State Board
as deemed appropriate by the Governor. In addition to these required
elements, the Governor must include any additional requirements in the
board's by-laws that he or she believes is necessary to ensure the
orderly administration and functioning of the board. An effective State
Board establishes clear roles, responsibilities, procedures, and
expectations through its by-laws, and that these requirements will help
State Boards to be more agile and proactive in reacting to board
turnover, increase board participation when board members are not able
to physically attend board meetings, improve board functionality, and
help ensure that the public is informed about the operation of the
board.
Proposed Sec. 679.110(e) requires, as a general condition of State
Board membership, that members who represent the non-business
organizations, agencies, or other entities described in proposed Sec.
679.110(b)(3)(ii) and (iii) have optimum policy-making authority.
Because WIOA sec. 101(d) adds State Board functions, such as
identifying and disseminating information on best practices and
developing and reviewing statewide policies affecting the coordinated
provision of services through the State's one-stop delivery system, all
members, not just those representing the business community, should
have optimum policy-making authority to accomplish the purposes of WIOA
and conduct the State Board required functions.
Proposed Sec. 679.110(f) implements the multiple-entity
representation limitations for State Board members at WIOA sec.
101(b)(3). Robust representation in each of the categories is essential
to ensure that the State Board benefits from the diversity and
experience of board members.
Proposed Sec. 679.110(f)(1) explains that a State Board member may
not represent more than one of the three membership categories:
Business representatives, workforce representatives, or government
representatives. For example, one member could not serve as a business
representative and a joint labor-management apprenticeship program even
if the member would otherwise satisfy the criteria for both categories.
Proposed Sec. 679.110(f)(2) explains that a State Board member may
not serve as a representative of more than one subcategory under
(b)(3)(ii). Under this provision, a single board member could not serve
as a representative of an organized labor organization and an
apprenticeship program (or the optional subcategories) even if the
member would otherwise satisfy the criteria for either category.
Proposed Sec. 679.110(f)(3) prohibits a government representative
from serving as a representative of more than one subcategory under
(b)(3)(iii). However, where a single government agency is responsible
for multiple required programs, the head of the agency may represent
each of the required programs. In some instances, it would be
appropriate and beneficial for one representative to represent multiple
programs on the State Board. For example, the head of a State Workforce
Agency might represent both the WIOA title I and Wagner-Peyser
programs. This arrangement could serve to improve integration of these
two programs and/or help the State Board better achieve the colocation
requirements at WIOA sec. 123(c)(3). In other instances, such an
arrangement would be less beneficial. For example, where vocational
rehabilitation services fall under the State Workforce Agency,
appointing a single representative to satisfy the membership
requirements of WIOA title I, Wagner-Peyser, and vocational
rehabilitation services may limit the voice and influence of a core
program partner. The Department encourages Governors to use discretion
[[Page 20700]]
when appointing board members to represent multiple subcategories under
(b)(3)(iii).
Proposed Sec. 679.110(g) requires that all required board members
have voting privileges and allows the option for the Governor to convey
voting privileges to non-required members. All required board members
must have a voice in the State Board's decisions to ensure that the
interests of all members of the community represented by the required
members are taken into account by the board. Requiring voting rights
allows the required board members to have an effect on the State
Board's key decisions and initiatives and enables the required board
members to effectively represent the individuals and organizations of
their communities. This proposed section also permits the Governor to
grant voting privileges to the non-required members of the board, and
the Department encourages the Governor to do so if doing so, in their
opinion, would further the mission and goals of the board.
Section 679.120 What is meant by the terms ``optimum-policy-making
authority'' and ``demonstrated experience and expertise''?
Proposed Sec. 679.120(a) defines the term ``optimum policy-making
authority'' as an individual who can reasonably be expected to speak
affirmatively on behalf of the entity he or she represents and to
commit that entity to a chosen course of action. This proposed section
retains the same requirements found at 20 CFR 661.203(a).
Proposed Sec. 679.120(b) defines the term ``demonstrated
experience and expertise'' as an individual who has documented
leadership in developing or implementing workforce development, human
resources, training and development, or a core program function. WIOA
sec. 101(d) adds new State Board functions, such as the development of
strategies for aligning technology and data systems across one-stop
partner programs to enhance service delivery and improve efficiencies
in reporting on performance accountability measures. This provision
will ensure that the State Board will include members that will assist
the board in fulfilling these functions. The Department seeks public
comment on how to further define ``demonstrated experience and
expertise'' and examples of the types of qualifications that would meet
such a definition.
Section 679.130 What are the functions of the State Board?
Proposed Sec. 679.130 implements sec. 101(d) of WIOA and describes
the role and functions of the State Board. Proposed Sec. 679.130(a),
(d) through (e), and (g) through (k) reiterate the relevant statutory
requirements at secs. 101(d)(1), (4)-(5), and (7)-(11). These functions
are the primary functions of the State Board.
Proposed Sec. 679.130 is consistent with WIOA's statutory
requirement that the State Board must assist the Governor in the
development, implementation, and modification of the 4-year State Plan.
Proposed Sec. 679.130(b) is consistent with WIOA sec. 101(d)(2)
and reiterates the statutory requirements. The proposed regulation
states the review of statewide policies, programs, and recommendations
on actions that must be taken by the State to align workforce
development programs to support a comprehensive and streamlined
workforce development system. Such review of policies, programs, and
recommendations must include a review and provision of comments on the
State plans, if any, for programs and activities of one-stop partners
that are not core programs.
Proposed Sec. 679.130(c)(1) through (7) are consistent with WIOA
secs. 101(d)(3)(A) through (G) and reiterate WIOA's requirements that
the State Board assist the Governor in development and continuous
improvement of the State's workforce development system, including
removing barriers to aligning programs and activities, developing
career pathways to support individuals to retain and enter employment,
developing customer outreach strategies, identifying regions and
designating local workforce areas, developing and continuously
improving the one-stop system, and developing strategies to train and
inform staff.
Proposed Sec. 679.130(d) and (e) reiterate statutory language
requiring State Boards to assist in the development of State
performance and accountability measures and to identify and disseminate
best practices.
Proposed Sec. 679.130(f)(1) through (3) are consistent with WIOA
secs. 101(d)(6)(A) through (C) to assist in the development and review
of statewide policies on coordinated service provisions, which includes
criteria for Local Boards to assess one-stop centers, allocation of
one-stop center infrastructure funds, and the roles and contributions
of one-stop partners within the one-stop delivery system. In addition,
it is important for the State Board to consult with CEOs and Local
Boards when establishing objective criteria and procedures for Local
Boards to use when certifying one-stop centers. Where Local Boards
serve as the one-stop operator, the State Board must use such criteria
to assess and certify the one-stop center to avoid inherent conflicts
of interest in a Local Board assessing itself.
Proposed Sec. 679.130(g) through (k) reiterate statutory language
requiring State Boards to assist in the development of strategies for
technological improvements to improve access and quality of service,
align technology and data systems across one-stop partner programs to
improve service delivery and effectiveness in reporting on performance
accountability, develop allocation formulas for distribution of adult
and youth programs, and in accordance with WIOA and these regulations,
prepare the annual report and develope the statewide WLMIS.
Proposed Sec. 679.130(l) is consistent with WIOA sec. 101(d)(12).
This proposed regulation requires the State Board to assist the
Governor in the development of other policies that promote statewide
objectives and enhance the performance of the workforce development
system in the State.
Section 679.140 How does the State Board meet its requirement to
conduct business in an open manner under ``sunshine provision'' of the
Workforce Innovation and Opportunity Act sec. 101(g)?
Proposed Sec. 679.140 implements sec. 101(g) of WIOA, requires
that the State Board conduct its business in an open and transparent
manner, and describes several pieces of information that the board is
required to provide to ensure transparency.
Proposed Sec. 679.140(b)(1) through (4) requires the State Board
to make certain information available on a regular basis to ensure that
it is conducting its business in an open manner. Transparency promotes
accountability and provides valuable information to citizens on the
Federal, State, and local government's activities. Therefore, the State
Board must make available to the public on a regular basis, through
electronic means and open meetings, information about State Board
activities such as the State Plan, modifications to the State Plan,
board membership, the board's by-laws, the minutes of meetings. This
information must be easily accessed by interested parties. Ensuring
that this information is widely available promotes transparency and
[[Page 20701]]
provides access to the public on how the State Board works to align,
integrate, and continuously improve the workforce development system.
Section 679.150 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Development Board?
Proposed Sec. 679.150(a) and (b) implement the requirements of
WIOA sec. 101(e)(1) and describe the circumstances by which the
Governor may select an alternate entity in place of a State Board.
Paragraph (b) lists the conditions that must be met if a State uses an
alternative entity in place of the State Board and requires that the
entity meets the requirements of Sec. 679.110.
Proposed Sec. 679.150 (c)(1) through (3) stipulate that if the
alternative entity does not provide representatives for each of the
categories required under WIOA sec. 101(b), the State Plan must explain
the manner in which the State will ensure an ongoing role for any
unrepresented membership group in the workforce development system. The
proposed section further requires that the State Board ensure that the
alternative entity maintain a meaningful, ongoing role for
unrepresented membership groups, including entities carrying out the
core programs, and to inform the Board's actions.
Proposed Sec. 679.150(d) stipulates if the membership structure of
the alternative entity had a significant change after August 7, 1998,
the entity will no longer be eligible to perform the functions of the
State Board. In such a case, the Governor must establish a new State
Board which meets all of the criteria of WIOA sec. 101(b).
Proposed Sec. 679.150 (e)(1) and (2) define a significant change
in the membership structure which includes a change in the organization
of the alternative entity or in the categories of entities represented
on the alternative entity which requires a change to the alternative
entity's charter or a similar document that defines the formal
organization of the alternative entity, regardless of whether the
required change to the document has or has not been made. This proposed
section retains the same requirements found at 20 CFR 661.210(e).
Proposed Sec. 679.150(f) stipulates all State Board references in
20 CFR parts 675 through 687 also apply to an alternative entity used
by a State. This proposed section implements sec. 101(e)(2) of WIOA.
Section 679.160 Under what circumstances may the State Board hire
staff?
Proposed Sec. 679.160 implements sec. 101(h) and describes the
board's authority to hire staff. Per proposed Sec. 679.160(c), the pay
provided to the director and staff hired by the board is subject to the
limitations on the payment of salary and bonuses described in WIOA sec.
194(15).
2. Subpart B--Workforce Innovation and Opportunity Act Local Governance
(Workforce Development Areas)
The WIOA envisions a workforce development system that is customer-
focused on both the job seeker and business, and is able to anticipate
and respond to the needs of regional economies. It requires Workforce
Development Boards and CEOs to design and govern the system regionally,
aligning workforce policies and services with regional economies and
supporting service delivery strategies tailored to these needs. To
support this regional approach, WIOA requires States to identify
intrastate and interstate regions which may be comprised of more than
one local area, and requires local areas to plan regionally. WIOA
envisions a regional system where not only do local areas plan
regionally, but workforce system leaders partner and provide leadership
as part of comprehensive, regional workforce and economic strategies.
This subpart provides the requirements for designation of regions and
local areas under WIOA.
Section 679.200 What is the purpose of a region?
Proposed Sec. 679.200 describes the purpose of requiring States to
identify regions: to align workforce development resources to regional
economies to ensure coordinated and efficient services to both job
seekers and employers. WIOA requires States to establish regions in
order to ensure that training and ES support economic growth and
related employment opportunities and are meeting the skill competency
requirements of the regions. The development of comprehensive regional
partnerships facilitates alignment of workforce development activities
with regional economic development activities, and better supports the
execution and implementation of sector strategies and career pathways.
Regional cooperation may also lower costs and increase the
effectiveness of service delivery to businesses that span more than one
local workforce development area within a region and to job seekers
through coordination of shared services, processes, and operations. The
Department encourages States to use these processes to identify any
performance, fiscal, or planning challenges and to ensure that local
and regional planning areas are aligned to support improved service
delivery, improved training and employment outcomes, better meet
employer needs, and greater effectiveness and efficiency in achieving
these outcomes.
Section 679.210 What are the requirements for identifying a region?
Proposed Sec. 679.210 outlines the requirements for identifying a
region.
Proposed Sec. 679.210(a) requires that the Governor assign local
areas to a region prior to the submission of the State Unified or
Combined Plan.
Proposed Sec. 679.210(b) explains that the Governor must develop a
policy for designation of a region prior to submission of the State
Unified or Combined Plan, in order to receive WIOA title I-B adult,
dislocated worker, and youth allotments. The regional assignment is
important because regional economic development areas do not
necessarily correspond to State, county, or local workforce development
areas, or municipal boundaries.
Proposed Sec. 679.210(b) clarifies the required factors that a
Governor must consider when identifying a region and the parties the
Governor must consult, implementing WIOA sec. 106(a)(1). The
considerations for identifying a planning region are consistent with
those for local area designation outlined in proposed Sec. 679.240(a).
Proposed Sec. 679.210(c) provides additional criteria the Governor
may consider when identifying regions. These additional criteria, which
provide a more comprehensive picture of regional economies and labor
markets, provide additional data points to inform the Governor's
decision to assign local areas to regions. However, the Department
seeks comment on the appropriateness of these factors and requests
suggestions of additional data points for defining a regional economy
and labor market.
The Department has included ``population centers'' in proposed
Sec. 679.210(c)(1) because they and their contiguous areas of growth
are a basic factor distinguishing economic development areas and
planning regions.
Proposed Sec. 679.210(c)(2) allows the consideration of
``commuting patterns'' because commuting pattern data can show the
movement of workers from their residence to their workplace. A
[[Page 20702]]
strong flow of commuters from one local area, municipality, or county
into another is an indication of the economic interdependence of the
two areas.
``Land ownership'' is included in proposed Sec. 679.210(c)(3)
because land ownership can significantly affect the economic
development potential of an area.
``Industrial composition'' has been proposed as a factor in Sec.
679.210(c)(4) because it is primarily based upon industry employment
patterns. The factors used in determining regions could be jobs by
industry and share of total employment by industry.
Proposed Sec. 679.210(c)(5) permits the Governor to consider
``location quotients,'' which are ratios that could be computed by
dividing a local area's percentage of employment in a particular
industry by the State's percentage of employment in a particular
industry. The economic base of a local area includes those industries
in which the local area has a higher proportion of employment than the
State as a whole, or a higher location quotient. Adjacent local areas
with similar economic bases are strong candidates for placement in the
same region.
``Labor force conditions'' is proposed as a factor in Sec.
679.210(c)(6). Local area labor force employment and unemployment data
could provide a measure of labor availability throughout the State.
Adjacent local areas with similar labor force characteristics, such as
unemployment rates, might have similar workforce/economic development
needs, thus joining those areas into a region may be beneficial.
Proposed Sec. 679.210(c)(7) suggests that the Governor consider
``geographic boundaries'' when setting regions because they may serve
to facilitate or hinder the movement of people and commerce between
areas, thereby naturally delineating regional boundaries.
Finally, proposed Sec. 679.210(c)(8) indicates that the Secretary
may suggest additional factors in future guidance.
Proposed Sec. 679.210(d), implementing sec. 106(a)(2) of WIOA,
outlines the types of regions and how local areas may be assigned to
regions. A region may consist of a single local area, two or more
contiguous local areas with a State, or two or more contiguous local
areas in two or more States. When the Governor(s) assigns two or more
local areas to a region, the region, per WIOA sec. 3(48), is considered
a planning region, which is required to coordinate regional service
strategies, regional sector initiatives, the collection and analysis of
regional labor market data, administrative costs, transportation,
partnership with economic develop agencies, and the negotiation of
local performance consistent with the regional planning requirements at
Sec. 679.510. A single local area may not be split across two planning
regions. Local areas must be contiguous in order to be a planning
region and effectively align economic and workforce development
activities and resources. The Department anticipates providing
additional guidance regarding the creation and management of interstate
planning regions.
Section 679.220 What is the purpose of the local workforce development
area?
Distinct from the regional designation, WIOA also provides for
local workforce development areas. As described above, these local
areas may be identified individually or in combination, as regions.
Proposed Sec. 679.220 describes the purpose of the local workforce
development area (local area). The Governor must designate local areas
in order to receive WIOA title I adult, dislocated worker, and youth
allotments, as required by WIOA sec. 106. Local areas serve as a
jurisdiction for the administration of workforce development activities
and execution of adult, dislocated worker, and youth funds allocated by
the State. States allocate workforce investment funds based on various
population characteristics of the local area. Local areas may
correspond to regions identified in WIOA sec. 106(a)(1) or may be
smaller geographic areas within a planning region, each with its own
Local Workforce Development Board.
Section 679.230 What are the general procedural requirements for
designation of local workforce development areas?
Proposed Sec. 679.230 describes the procedural requirements that
the Governor must use for the designation or redesignation of a local
workforce development area. Proposed Sec. 679.220 (a) through (c),
implementing WIOA sec. 106(b)(1)(A), requires the Governor to consult
with the State Board and CEO, and consider public comments from a wide
range of stakeholders consistent with provisions at WIOA sec.
102(b)(2)(e)(iii)(II) as part of the process of identifying the local
area. The Governor has the discretion to establish the process and
procedures to solicit comments that it determines appropriate; however
a wide-reaching, inclusive process allows sufficient time for
stakeholders to provide substantive comments that will enable the
Governor to receive meaningful feedback from all interested
stakeholders, ensuring that the Governor is able to consider all
relevant information, data, and opinions before making a decision to
designate or redesignate a local area.
Section 679.240 What are the substantive requirements for designation
of local workforce development areas that were not designated as local
areas under the Workforce Investment Act of 1998?
Proposed Sec. 679.240 provides the substantive requirements that
Governor must use for the designation or redesignation of local
workforce development areas.
Proposed Sec. 679.240(a) explains that the Governor must develop a
policy for designation or redesignation of local workforce development
areas, including the factors that the Governor must consider. The
statute requires that the Governor designate local areas that ``are
consistent'' with labor market and regional economic development areas:
The Department interprets this to mean that within a local area, there
must be common labor markets and economic development areas. Better
integration between the workforce and economic development systems
serves to best connect the employment needs of workers with the skilled
workforce needs of employers. This section implements sec. 106(b)(1)(B)
of WIOA.
Proposed Sec. 679.240(b) permits the Governor to approve a local
area designation request from any unit of local government, including a
combination of multiple units. This provision implements sec. 106(b)(4)
of WIOA and retains the same requirements found at 20 CFR 661.250(c).
Proposed paragraph (c) permits the Governor to redesignate a local area
that has been designated or redesignated under Sec. 679.240(a) or has
been designated under Sec. 679.250(a) or (c) if the local area
requests, and the Governor approves, the redesignation.
Section 679.250 What are the requirements for initial and subsequent
designation of workforce development areas that had been designated as
local areas under the Workforce Investment Act of 1998?
Proposed Sec. 679.250 describes the requirements for initial and
subsequent designation of local areas that had been designated as local
areas under WIA.
Proposed Sec. 679.250(a) implements sec. 106(b)(2) of WIOA that
requires, during the first 2 full PYs following the enactment of WIOA,
a Governor is to approve a request for initial designation from any
local area designated as a local area under WIA as long as the entity
[[Page 20703]]
was designated a local area under WIA, performed successfully, and
maintained sustained fiscal integrity for 2 years prior to the
enactment of WIOA. This provision requires the Governor to continue the
designation of local areas that performed well and maintained sound
fiscal practices under WIA. If a local area that was designated under
WIA requests initial designation under WIOA but does not meet all of
the requirements of Sec. 679.250(a), the Governor has the discretion
to approve the initial designation under WIOA or to redesignate the
local area pursuant to the procedures described in Sec. 679.240.
Proposed Sec. 679.250(b) clarifies that initial designation
applies to PYs 2015 and 2016, as per WIOA sec. 106.
Proposed Sec. 679.250(c), in accordance with sec. 106(b)(3) of
WIOA, describes the requirements for the subsequent designation of
local workforce development areas that were initially designated under
Sec. 679.250(a). Specifically, the Governor must approve requests for
subsequent designation as long as the local area performed
successfully, sustained fiscal integrity, and in the case of a local
area in a planning region, met the planning region requirements during
the 2-year period of initial designation. Local areas that are able to
demonstrate successful performance and fiscal integrity must be
permitted to continue to operate and may not be redesignated without
the consent of the Local Board and CEO in the local area.
Proposed Sec. 679.250(d) describes the role of the Governor in
reviewing a local area's subsequent designation. Paragraph (d)(1)
permits the Governor to evaluate a local area at any time to ensure the
local area continues to meet the requirements for subsequent
eligibility at paragraph (c). Paragraph (d)(2) requires the Governor to
review local areas to ensure they continue to satisfy the requirements
at paragraph (2) as part of each 4-year State planning cycle. Sections
116(g)(2)(A) and 184(b)(1) of WIOA describe the required actions that
the Governor must take in the event that a local workforce area fails
to meet its negotiated levels of performance or does not comply with
administrative requirements, respectively. Under these provisions the
Governor retains the authority to take corrective action in light of
failure of performance or fiscal management short of redesignation, and
is not required to redesignate a local area that has failed to maintain
the requirements of paragraph (c). Furthermore, the Governor may
redesignate local areas at any time with the cooperation of the CEO and
Local Board in a given local area.
Proposed Sec. 679.250(e) presumes that local areas will be
considered to have requested continued designation unless the CEO and
the Local Board directly notify the Governor that they no longer wish
operate as a local area. This newly proposed paragraph reduces the
administrative burden of maintaining local area status, while still
holding local areas accountable to the requirements of paragraph (c).
Proposed Sec. 679.250(f) specifies that the requirements for
subsequent designation do not apply to local areas that are designated
or redesignated under Sec. 679.240 or are single-area States
designated under Sec. 679.270.
Proposed Sec. 679.250(g) clarifies that rural concentrated
employment programs are not eligible to apply for initial designation
as a local area. WIOA allows any unit of local government (or
combination of units of local government) to request designation as a
local area; however, unlike under WIA, this provision does not extend
to rural concentrated employment programs.
Section 679.260 What do the terms ``performed successfully'' and
``sustained fiscal integrity'' mean for purposes of designating local
areas?
Proposed Sec. 679.260 defines the terms ``performed successfully''
and ``sustained fiscal integrity'' used in Sec. 679.250. This section
implements sec. 106(e) of WIOA.
Proposed Sec. 679.260(a) defines the term ``performed
successfully'' for the purpose of initial designation to mean that the
local area met or exceeded all performance levels the Governor
negotiated with Local Board and CEO under WIA sec. 136(c) for the last
2 full PYs before the enactment of WIOA. It also requires that the
local area not fail any individual measure for the last 2 consecutive
PYs before the enactment of WIOA. Proposed Sec. 679.260(a)(1) requires
the Governor, in order to determine if a local area has performed
successfully, to have defined the terms ``met or exceeded'' and
``failure'' at the time the performance levels were negotiated.
Proposed Sec. 679.260(a)(2) clarifies that the Governor may not
retroactively apply any higher WIOA threshold to performance negotiated
and achieved under WIA for the purposes of local area designation.
Proposed Sec. 679.260(b) defines the term ``performed
successfully'' for the purpose of subsequent designation to mean that
the local area met or exceeded the levels of performance the Governor
negotiated with Local Board and CEO for core indicators of performance
described at WIOA sec. 116(b)(2)(A). It also requires the Governor to
have defined the terms ``met or exceeded'' and ``failure'' in the State
Plan.
Proposed Sec. 679.260(a) and (b) expand on the definition at WIOA
sec. 106(e)(1) to ensure that the initial and subsequent designation of
local areas is conducted in a fair and transparent manner by ensuring
that the local area's performance is judged on the contemporaneous
standards agreed to between the State and local area at the time rather
than under subsequently imposed performance standards.
Proposed Sec. 679.260(c) defines the term ``sustained fiscal
integrity'' for the purpose of determining initial and subsequent local
area designation to mean that the Secretary has not made a formal
determination that either the grant recipient or any other entity
charged with expending local area funds misexpended such funds due to
willful disregard of the requirements of the provision involved, gross
negligence, or failure to comply with accepted standards of
administration for the 2-year period preceding the determination.
Proposed Sec. Sec. 679.250 and 679.260 allow for an orderly
transition from WIA to WIOA and protects the designation status of
local areas that meet or exceed performance targets negotiated in good
faith under the relevant authorizing legislation while allowing the
Governor both to oversee properly the performance of the local areas
and take action necessary to improve the area's performance in a timely
fashion.
Section 679.270 What are the special designation provisions for single-
area States?
Proposed Sec. 679.270 outlines the special designation provisions
for single-area States. Under WIOA sec. 106(d), the Governor of any
single-area State under WIA may choose to continue to designate the
State as a single-State area. However, proposed Sec. 679.270(b)
clarifies that the Governor must identify the single-area status of the
State in its Unified or Combined State Plan and proposed Sec.
679.270(c) further clarifies that the State Board in a single-area
State must continue to carry out the functions of the State and Local
Boards. This section is intended to clarify single-area States'
responsibilities and functions: Key local functions, such as
monitoring; entering into a memorandum of understanding (MOU) with one-
stop partners; selecting one-stop operators; selecting eligible
providers of youth activities, career services and training services;
and
[[Page 20704]]
certifying one-stop centers, are essential to the proper functioning of
the public workforce system and remain so within single-area States.
Section 679.280 How does the State fulfill the requirement to provide
assistance to local areas within a planning region that wish to
redesignate into a single local area?
Proposed Sec. 679.280 describes how the State fulfills the
requirement to provide assistance to local areas within a planning
region that wish to redesignate into a single local area.
Proposed Sec. 679.280(a) asserts that the State must authorize
statewide funds for transition activities when all local areas in a
planning region petition the Governor for redesignation as a single
local area as required by WIOA sec. 106(b)(6). WIOA introduces
redesignation assistance as a required statewide activity. This
provision will help local areas consolidate where appropriate for the
purposes of cost savings and streamlined service delivery.
Proposed Sec. 679.280(b) clarifies that when statewide funds are
exhausted in a given PY, the State may fulfill the requirement to
provide redesignation assistance in the following PY. This section
provides States with the flexibility to balance priorities while
ensuring local areas receive redesignation assistance.
Proposed Sec. 679.280(c) provides examples of the activities that
local areas may elect to pursue with the redesignation assistance
received from the State. However, the State may establish policy on
what other activities local areas may use funds received for the
purposes of redesignation or leave such determination to the local
areas.
Section 679.290 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce development
area?
Proposed Sec. 679.290 outlines the appeals process for an entity
that submits a request for initial or subsequent designation as a local
workforce development area that is rejected by the Governor. This
section implements sec. 106(b)(5) of WIOA.
Proposed Sec. 679.290(a) establishes that entities that are not
approved as local areas may follow the process established at 20 CFR
683.640. This section is essentially unchanged from WIA. However, while
provisions at WIOA sec. 106(b) permit any unit of local government or
combination of units to apply for designation as a local area, the law
does not specify that rural concentrated employment programs may apply
for designation as a local area. The intent of this section was to
prohibit such an arrangement under WIOA and that this prohibition
logically applies to the appeals process.
Proposed Sec. 679.290(b) establishes that an entity making an
unsuccessful appeal to the State Board may request a review of the
appeal by the Secretary of Labor if the State does not respond to the
appeal in a timely manner or if the appeal for designation is denied by
the State. The Department defines a `timely manner' to be 60 days after
the submission of the appeal. This provides adequate time for the State
to review and make a ruling on the appeal while not being so long as to
delay unreasonably the appeal and designation processes.
Proposed Sec. 679.290(c) summarizes the circumstances under which
the Secretary of Labor may require an entity to be designated as a
local area. Specifically, the Secretary may require designation upon a
finding of either a denial of procedural rights or a finding that the
area meets the requirements for designation. This section was updated
from WIA to reflect that neither the `automatic' nor `temporary and
subsequent' designation statuses exist under WIOA.
3. Subpart C--Local Boards
Section 679.300 What is the vision and purpose of the Local Workforce
Development Board?
Proposed Sec. 679.300 explains the purpose of the Local Board. The
Local Board represents a wide variety of individuals, businesses, and
organizations throughout the local area. The Local Board serves as a
strategic convener to promote and broker effective relationships
between the CEOs and economic, education, and workforce partners.
The Local Board must develop a strategy to continuously improve and
strengthen the workforce development system through innovation in, and
alignment and improvement of, employment, training, and education
programs to promote economic growth. Local Board members must establish
a platform in which all members actively participate and collaborate
closely with the required and other partners of the workforce
development system, including public and private organizations. This is
crucial to the Local Board's role to integrate and align a more
effective, job-driven workforce investment system.
Proposed Sec. 679.300(b)(1) and (2) outlines the purposes of the
Local Board. A key goal of Federally-funded training programs is to
prepare job seekers ready to work with marketable skills. This includes
providing strategic and operational oversight in collaboration with
required and other partners to help the workforce development system
achieve the purposes outlined in WIOA sec. 2, and assist in the
achievement of the State's strategic and operational vision and goals
outlined in the State Plan. The Local Board must work to develop a
comprehensive and high-quality workforce development system by
collaborating with its workforce and education partners to improve and
align employment, training, and education programs under WIOA.
Section 679.310 What is the Local Workforce Development Board?
Proposed Sec. 679.310 defines the Local Workforce Development
Board. Proposed Sec. 679.310(a) explains that the CEO in each local
area appoints the Local Board in accordance with WIOA sec. 107(b) and
that the Governor must certify the Local Board on a biannual basis.
This proposed section retains the same requirements found at 20 CFR
661.300(a).
Proposed Sec. 679.310(b) describes that the Local Board sets
policy within the local area in partnership with the CEO, consistent
with State policy. This proposed section retains the same requirements
found at 20 CFR 661.300(b).
Proposed Sec. 679.310(c), asserts that the CEO may enter into an
agreement with the Local Board that describes the respective roles and
responsibilities of the parties. However, the CEO remains liable for
funds received under title I of WIOA unless they reach an agreement for
the Governor to act as the local grant recipient and bear such
liability. This proposed section retains the same requirements found at
20 CFR 661.300(c).
Proposed Sec. 679.310(d) describes that the Local Board, in
partnership with the CEO, are responsible for the development of the
local plan. This proposed section retains the same requirements found
at 20 CFR 661.120(d).
Proposed Sec. 679.310(e) affirms that in local areas with more
than one unit of general local government, the CEOs of the respective
units may execute an agreement to describe their responsibilities for
carrying out their roles and responsibilities. If the various parties
cannot come to an agreement, the Governor may appoint the Local Board.
This proposed section retains the
[[Page 20705]]
same requirements found at 20 CFR 661.300(3).
Proposed Sec. 679.310(f) indicates that in single-State areas, the
State Board must fulfill the functions of the Local Board, which the
Department also required under the WIA regulation at 20 CFR 661.300(f).
As required by WIOA sec. 107(c)(4)(B)(iii), the proposed section
clarifies that the State is not required to establish or report on
local performance measures. This clarification presents a logical
approach to local performance because the local area performance will
be reflected in the State performance reports.
Proposed paragraph (g) requires the CEO to establish by-laws,
consistent with State policy, that help improve operations of the Local
Board. Proposed Sec. 679.310(g)(1) through (7) require that at a
minimum the by-laws address the nomination process used by the CEO to
elect the Local Board chair and members, term limitations and how the
term appointments will be staggered to ensure only a portion of
memberships expire in a given year, the process to notify the CEO of a
board member vacancy to ensure a prompt nominee, the proxy and
alternative designee process that will be used when a board member is
unable to attend a meeting and assigns a designee, the use of
technology to improve board functions, brokers relationships with
stakeholders, and any other conditions governing appointment or
membership on the Local Board as deemed appropriate by the CEO. In
addition to these required elements, the CEO must include any
additional requirements in the board's by-laws that it believes is
necessary to ensure the orderly administration and functioning of the
board. An effective Local Board establishes clear roles,
responsibilities, procedures, and expectations through its by-laws, and
that these requirements will help Local Boards to be more agile and
proactive in reacting to board turnover, increase board participation
when board members are not able to physically attend board meetings,
improve board functionality, and help ensure that the public is
informed about the operation of the board.
Section 679.320 Who are the required members of the Local Workforce
Development Board?
Proposed Sec. 679.320 explains that the CEO in a local area must
appoint a Local Workforce Development Board and provides guidelines on
requirements and options for the CEO to follow in appointing members to
the Local Board.
Proposed Sec. 679.320(b) requires that a majority of the Local
Board members must represent businesses as per WIOA sec. 107(b)(2)(A).
Business representatives include owners, chief executive or operating
officers, and other business executives, including small businesses,
and business organizations. As reflected in proposed paragraph (b)(2),
WIOA requires that business representatives on the Local Board must
represent business that provide employment opportunities in in-demand
industry sectors or occupations as defined in WIOA sec. 3(25).
Employers with employment opportunities in high-growth sectors are
uniquely suited to communicate the emerging workforce needs of
employers in these high-growth, in-demand sectors to the Local Board.
Proposed Sec. 679.320(c) explains the required and optional member
categories that must make up at least 20 percent of the Local Board
membership representing labor organizations, or where they do not
exist, employee representatives. Proposed paragraphs (c)(1) and (2)
require that the Local Board must include two or more representatives
of labor organizations (or other employee representatives if there are
no labor organizations operating in the local area) and one or more
representatives of a joint-labor management registered apprenticeship
program (or other registered apprenticeship program if there is no
joint labor-management program in the local area). The use of the word
`representatives' with respect to labor organization membership
indicates a requirement for two or more members. In areas with joint
apprenticeship programs, the apprenticeship representative must be a
member of a labor organization or a training director.
In addition to these required members, proposed paragraphs (c)(3)
and (4) explain that the CEO may appoint one or more representatives of
CBOs with experience in addressing the employment needs of individual
barriers to employment including organizations that serve veterans or
that provide or support competitive integrated employment for
individuals with disabilities, and one or more representative of
organizations with experience addressing the employment needs of WIOA-
eligible youth, including serving OSY. While not mandatory, the two
representative categories in proposed paragraphs (c)(3) and (4) count
towards reaching the 20 percent threshold. Proposed Sec. 679.320(c)
underscores both the importance of registered apprenticeship, a proven
training strategy that effectively meets the needs of both employers
and workers,\1\ and the role of organized labor in workforce
development, particularly in developing registered apprenticeship
programs.
---------------------------------------------------------------------------
\1\ Ibid; and Kleinman, Liu, Mastri, Reed, Reed, Sattar, &
Ziegler (2012). An Effectiveness Assessment and Cost-Benefit
Analysis of Registered Apprenticeship in 10 States. Mathematica
Policy Research. Prepared for the U.S. Department of Labor,
Employment and Training Administration.
---------------------------------------------------------------------------
Proposed Sec. 679.320(d)(1) and (2) describe the entities required
to be on the board to provide an adult education perspective and
representation. These sections require that Local Boards include a
minimum of one member with experience providing adult education and
literacy activities under title II of WIOA and at least one member from
a higher education institution, which may include community colleges,
that provides workforce training.
Proposed paragraph (d)(3) sets forth the statutory requirement that
a minimum of one Local Board member must be included from each of the
following organizations: Economic or community development
organizations, the State ES Office under Wagner-Peyser serving the
local area, and programs carried out under title I of the
Rehabilitation Act of 1973 (29 U.S.C. 720, et seq.) other than sec. 112
or part C of that title.
Proposed Sec. 679.320(e) provides examples of other appropriate
optional members of the board. In addition to the entities described in
(e)(1) through (3), proposed paragraph (e)(4) explains that the CEO may
appoint other individuals to the board at his or her discretion. This
provides the CEO the flexibility to assemble a Local Board that
connects all key resources and stakeholders.
Proposed Sec. 679.320(f) requires that Local Board members possess
optimum policy-making authority in the organizations they represent.
This proposed section retains the same requirements found at 20 CFR
661.315(c).
Proposed Sec. 679.320(g) explains the nomination criteria for
business and labor representatives, as well as representatives of adult
education and literacy activities under title II when there are
multiple institutions providing these services in a local area. These
nomination requirements are unchanged from the requirements at 20 CFR
661.315(e), however, a formal policy ensures that business and labor
organizations are provided the opportunity to provide input on board
member selection. When there is more than one local area provider of
adult education and literacy activities under title II, or multiple
institutions of higher education providing workforce
[[Page 20706]]
investment activities as described in WIOA 107(b)(2)(C)(i) or (ii), the
CEO must solicit nominations from those particular entities. This
requirement provides for a representative selection process for these
membership categories.
Proposed Sec. 679.320(h) explains that an individual may be
appointed as a representative of more than one entity if the individual
meets all the criteria for representation, including the criteria
described in paragraphs (c) through (g) of this section, for each
entity. While such ``multiple entity'' representation may not be
appropriate in all cases, the Department proposes to allow an
individual to represent more than one entity, because there may be
instances when such representation may be an effective tool for
reducing board size while still ensuring that all entities entitled to
representation receive effective representation.
Proposed Sec. 679.320(i) explains that all required board members
must have voting privileges and that the CEO may give voting privileges
to non-required members. Voting rights allow the required board members
to have an effect on the Local Board's key decisions and initiatives.
This will enable the required board members to effectively represent
the individuals and organizations of their communities.
Section 679.330 Who must chair a Local Board?
Proposed Sec. 679.330 affirms that the Local Board must elect a
chairperson from the business representatives on the Local Board. This
proposed section retains the same requirements found at 20 CFR 661.320.
Section 679.340 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
Proposed Sec. 679.120 explains what is meant by ``optimum policy-
making authority'' and ``demonstrated experience and expertise'' for
members of the Local Board under sec. 107(b)(5) of WIOA. Proposed
paragraph (a) defines an individual with ``optimum policy-making
authority'' as someone who can reasonably be expected to speak
affirmatively on behalf of the entity he or she represents and to
commit that entity to a chosen course of action. In order for the
decisions of the board to have the greatest possible impact, all board
members must be able to speak authoritatively when committing their
organization to a decided course of action.
Proposed paragraphs (b)(1) through (3) define the qualifications
that satisfy the ``experience and expertise'' requirement for Local
Board members. The CEO has a duty to appoint only those board members
that have the skills and practical knowledge to contribute fully to the
strategic vision of the local area's workforce system.
Section 679.350 What criteria will be used to establish the membership
of the Local Board?
Proposed Sec. 679.350 affirms that the CEO appoints the Local
Board in accordance with the criteria in WIOA sec. 107(b) and
applicable State criteria. This proposed section retains the same
requirements found at 20 CFR 661.325.
Section 679.360 What is a standing committee, and what is its
relationship to the Local Board?
Proposed Sec. 679.360 establishes the roles and responsibilities
of standing committees within the Local Board structure. Such
committees were not legislated in the past, are optional under WIOA,
and may be used to assist the Local Board in carrying out its
responsibilities as outlined in WIOA sec. 107. The Department
encourages the use of standing committees to expand opportunities for
stakeholders to participate in board decision-making, particularly for
representatives of organizations that may no longer sit on the Local
Board but continue to have a stake in the success of board decisions.
Such committees also expand the capacity of the board in meeting
required functions.
Proposed paragraph (a) expressly authorizes Local Boards to
establish standing committees that include individuals who are not
formal members of the board, but who have expertise to advise on issues
that support the board's ability to attain the goals of the State,
local and regional plans, and the objective of providing customer-
focused services to individuals and businesses. The subpart provides
examples of areas where standing committees may be particularly
beneficial, including serving targeted groups of customers such as
individuals with disabilities and youth, and addressing one-stop system
issues.
Proposed paragraph (b) provides for Local Board discretion in terms
of what kinds of standing committees, in any, the Local Board creates.
Proposed paragraph (c) allows Local Boards to designate an entity
in existence on the date that WIOA was enacted, such as an effective
youth council, to fulfill the requirements of a standing committee as
long as the entity meets the requirements outlined in paragraph (a).
Section 679.370 What are the functions of the Local Board?
Proposed Sec. 679.370 provides the functions of the Local Boards
as enumerated in statute. Under WIOA, the Local Board, in partnership
with the CEO, must perform a variety of functions to support the local
workforce system. Many of these functions have been expanded and
enhanced under WIOA. Proposed Sec. 661.305(a), (c), (d), (g), (h),
(j), (o), and (p) reiterate the relevant statutory requirements at WIOA
secs. 107(d)(1) through (3), (6), (7), (9), (12), and (13); no further
discussion of these provisions is provided below.
Proposed paragraph (b) discusses a new role for Local Boards that
are part of a planning region that includes multiple local areas. This
regulation repeats the new statutory requirement that Local Boards that
are part of a planning region must develop and submit a regional plan
in collaboration with the other Local Boards in the region. Under WIOA,
the local plan is incorporated into the regional plan, where required,
in accordance with Sec. 679.540.
Proposed paragraph (e) explains the role of the Local Boards in
engaging employers, promoting business representation on the board, and
developing and implementing proven or promising strategies for meeting
the needs of employers and workers (like industry or sector
partnerships) and providing linkages and coordination among employers
and the workforce system. It enhances the Local Board's role in
engaging employers beyond what was required by WIA by requiring the
board to develop and implement promising strategies for meeting the
employment skill needs of workers and employers. Engaging employers
presents an opportunity to meet the local area's labor market and
workforce development needs and connect customers seeking jobs or
career advancement to greater employment prospects.
Proposed paragraph (f) requires the Local Board to connect with
representatives of secondary and post-secondary education programs in
the local area in order to develop and implement career pathways. This
regulation supports the statute's focus on career pathways.
Proposed paragraph (i) enhances the oversight role of the Local
Board beyond what was required in WIA. It requires the Local Board to
conduct oversight, in partnership with the CEO, of the use and
management of funds, including
[[Page 20707]]
ensuring the appropriate management and investment of funds to maximize
performance outcomes under WIOA sec. 116.
Proposed paragraph (k) requires that the Local Board must negotiate
with CLEO and required partners on the methods for funding the
infrastructure costs of one-stop centers in the local area in
accordance with Sec. 678.715. This provision ensures each partner in
the one-stop system is provided resources equitably.
Proposed paragraph (l) also expands and enhances the Local Board's
role in the selection of eligible service providers in the local area
which must be conducted consistent with 2 CFR part 200. The regulation
maintains the board's role in the identification of eligible providers
of youth workforce investment activities, but now requires, consistent
with WIOA sec. 107(d)(10)(B), that this identification be accomplished
through the award of grants or contracts on a competitive basis. It
also adds that the recommendations of the youth standing committee, if
one is established, must be taken into account. It also indicates that
the Local Board must identify eligible providers of career services
through the award of contracts, if the one-stop operator does not
provide such services. This provision does not impact those services
provided by State merit staff. The final proposed expansion in this
subpart is the requirement that Local Boards select one-stop operators
through the competitive process described in Sec. Sec. 678.600 through
678.635.
Proposed paragraph (m) describes the requirement that the Local
Board work with the State to ensure that there are sufficient numbers
and types of providers of career and training services in the local
area so that consumer choice and opportunities for employment for
individuals with disabilities are maximized.
Proposed paragraph (n) reflects a number of new functions for the
Local Board related to coordination with adult education and literacy
providers in the local area. The regulation requires the Local Board to
review applications to provide adult education and literacy activities
under title II to determine whether such applications are consistent
with the local plan. It also requires the board to make recommendations
to the eligible agency to promote alignment with the local plan.
Further information regarding Local Board coordination with adult
education and literacy providers is provided at 34 CFR 463 which
requires the eligible agency to establish in its competition, a
processes by which applicants must submit an application to the Local
Board for review prior to its submission to the eligible agency. This
subpart also includes a role for the board in replicating and
implementing cooperative agreements in accordance with subparagraph (B)
of sec. 101(a)(11) of the Rehabilitation Act of 1973 (29 U.S.C.
721(a)(11)), and implementing cooperative agreements in accordance with
that section with the local agencies administering plans under title I
of that Act (29 U.S.C. 720 et seq.) (other than sec. 112 or part C of
that title (29 U.S.C. 732, 741) to enhance the provision of services to
individuals with disabilities and other individuals.
Proposed paragraph (q) requires the Local Board to certify one-stop
centers in accordance with Sec. 662.600.
Section 679.380 How does the Local Board satisfy the consumer choice
requirements for career services and training services?
Proposed Sec. 679.380 describes how the Local Board satisfies the
consumer choice requirements for career services and training services.
While WIA required the Local Board to maximize consumer choice for
training services, consumer choice for career services is a new
requirement under WIOA. Clarification of the board's role will minimize
confusion for one-stop managers and frontline staff.
Proposed paragraphs (a)(1) through (3) describe the process of how
the Local Board assists the State Board in identifying providers,
ensures a sufficient number of providers, and provides performance and
cost information through the one-stop system.
Proposed paragraphs (b)(2)(i) and (ii) describe how the Local Board
satisfies the requirement to provide consumer choice for career
services. In general, the Local Board must decide which services are
best provided by the one-stop operator and which services may require a
contracted provider. Furthermore, these paragraphs require the board to
identify a wide range of services based on the needs in the local area
with special attention to services for individuals with disabilities
and literacy services. Requiring the board to identify a wide array of
potential career service providers, while still allowing the board to
ultimately determine the career service providers, balances board
flexibility and customer choice. There is no requirement to provide
customers with a choice of providers for a given career service.
Section 679.390 How does the Local Board meet its requirement to
conduct business in an open manner under the ``sunshine provision'' of
the Workforce Innovation and Opportunity Act?
Proposed Sec. 679.390 maintains the Local Board's requirement to
conduct business in an open manner, but expands on the scope of what
the public must be made aware of and requires that information be
shared by electronic means as well as through open meetings as provided
for in WIOA sec. 107(e). These new requirements facilitate the
transparent functioning of the board and contribute to smoother board
operations. This can only be accomplished by each Local Board member
actively participating during Local Board meetings, and by developing
effective by-laws that outline the nomination process, which includes
steps for a prompt nominee during a vacancy, term limitations, and
encourage the use of technology and active participation.
Section 679.400 Who are the staff to the Local Board and what is their
role?
Proposed Sec. 679.400 describes the Local Board's authority to
hire staff and the appropriate roles for board staff. This proposal
clarifies and differentiates the staff's role and requires the Local
Board to hire only qualified staff.
Proposed paragraph (a) authorizes the board to hire a director and
other staff. The volunteer board may not have the capacity to fulfill
the required board functions at WIOA sec. 107(d). Board support ensures
these functions are achieved.
Proposed paragraph (b) requires the board to apply objective
qualifications to the board director. It is in the best interest of the
public workforce system to ensure the director of the board is
competent and experienced with workforce programs and service delivery.
Proposed paragraph (c) limits the board staff's role to assisting
the board fulfill the functions at WIOA sec. 107(d) unless the entity
selected to staff the board enters into a written agreement with the
board and CEO as noted in paragraph (e) and described more fully in
Sec. 679.430 of this part. The reasons that the Department proposes to
require a written agreement if the staff provide functions outside of
those in WIOA sec. 107(d) are discussed in the preamble to Sec.
679.430 of this part.
Proposed paragraph (d) requires Local Boards that elect to hire a
director to establish objective qualifications to ensure that the
selected candidate possesses the knowledge and skills to
[[Page 20708]]
assist the board in carrying out its functions.
Proposed paragraph (e) limits the payment of the Local Board
director and board staff to the basic pay rate for level II of the
Executive Schedule under sec. 5313 of title 5, U.S.C. This requirement
ensures that board staff are compensated at a reasonable level.
Section 679.410 Under what conditions may a Local Board directly be a
provider of career services, or training services, or act as a one-stop
operator?
Proposed Sec. 679.410 explains the situations in which the Local
Board may directly act as a one-stop operator, a provider of career
services or training services. Proposed Sec. 679.410(a)(1)(i) and (ii)
establishes that a Local Board may act as a one-stop operator where a
Local Board successfully participates in a competition or if the board
meets the criteria for sole source procurement. Under both
circumstances, as required by proposed Sec. 679.410(a)(2),
implementing WIOA sec. 107(g)(2), the Governor and CEO must agree to
such selection. This clarifies the interaction between sec.
122(d)(2)(A) of WIOA, which requires that Local Boards select a one-
stop operator through a competitive process, and WIOA sec. 107(g)(2),
which states that a Local Board can be designated as a one-stop
operator only with the agreement of the Governor and CEO in the local
area. One interpretation of sec. 107(g)(2) is that Local Boards, with
approval of the Governor and CEO, could be selected as one-stop
operators without undergoing a competitive process. However, such a
non-competitive selection is only appropriate after a competitive
process has been conducted as required by WIOA sec. 122(d)(2)(A). The
Department welcomes comments regarding this interpretation.
Proposed Sec. 679.410(a)(3) also requires that where a Local Board
acts as a one-stop operator, the State must ensure certification of
one-stop centers. Local Boards are required to certify one-stop
centers; however, States must fulfill that role when a Local Board acts
as a one-stop operator to avoid conflicts of interest with a Local
Board certifying its own performance.
Proposed Sec. 679.410(b) provides that a Local Board may act as a
provider of career services only with the agreement of the CEO in the
local area and the Governor. The Department interprets WIOA sec.
107(g)(2) to operate as a general exception from the requirement that
the Local Board award contracts to providers of career services
consistent with 2 CFR part 200. A Local Board acting as a direct
provider of services is not optimal, as the Local Board is designed to
oversee the one-stop system and its services, not provide them.
However, unlike the selection of one-stop operators, which are
statutorily required to be competitively selected, there is no
similarly clear statutory requirement for providers of career services.
Therefore, the Department does not propose to require that a
competition fail before the Local Board may provide career services.
Proposed 679.410(c) specifies that a Local Board is prohibited from
providing training services unless the Governor grants a waiver in
accordance with WIOA sec. 107(g)(1). Proposed Sec. 679.410(c)(1)
requires the State to develop a procedure to review waiver requests
received from Local Boards and the limitations of the waiver that
incorporates the criteria listed at WIOA sec. 107(g)(1)(B)(i). While
WIA contained provisions for a similar waiver, it did not include any
such criteria. The intent of this waiver is to provide the option for
Local Boards to provide training services in extenuating circumstances
only, such as rural areas with limited training providers. A formal
procedure facilitates transparency and clarity regarding the criteria
for the training waiver and ensures that any Local Board that applies
is subject to the same criteria. Furthermore, the new criteria
underscore that the waiver is not appropriate for local areas that have
a robust network of training providers.
Proposed Sec. 679.410(c) indicates that the local area must make
the request to be designated as a training provider available through
public comment for a period of 30 days or more and include those
comments in the local area's final request to the State. The proposed
section also outlines the timeline for approval and Governor's
authority to revoke a waiver if the Governor determines it is no longer
needed or the Local Board demonstrates a pattern of inappropriate
referrals. This proposed section helps ensure that the local area is
acting in good faith when asserting that there are insufficient
providers in the local area and protects against a conflict of
interest.
Proposed Sec. 679.410(d) affirms that the general prohibitions
that apply to Local Boards directly providing career services or
training services also apply to board staff.
Section 679.420 What are the functions of the local fiscal agent?
Proposed Sec. 679.420 describes the role of the local fiscal agent
when the CEO in a local area elects to designate a fiscal agent. While
the term `fiscal agent' was widely used under WIA, the term was never
defined, which led to inconsistent understanding of their role and
function throughout the workforce system. This section clarifies the
role of a fiscal agent to create a common understanding of that role.
Proposed paragraph (a) describes that the CEO or the Governor,
where the Governor serves as the local grant recipient for a local
area, may designate an entity to serve as a local fiscal agent.
Proposed paragraph (b) provides a list of the key functions of a
fiscal agent. The appropriate role of fiscal agent is limited to
accounting and funds management functions rather than policy or service
delivery. Proposed fiscal agent functions include those listed in
paragraphs (b)(1) through (6) and (c) provide additional potential
functions for single State areas. The Department requests comment from
State and local stakeholders regarding appropriate functions for a
fiscal agent.
Section 679.430 How do entities performing multiple functions in a
local area demonstrate internal controls and prevent conflict of
interest?
Proposed Sec. 679.430 clarifies how entities performing multiple
functions in a local area demonstrate internal controls and prevent
conflict of interest. This proposed provision requires a written
agreement with the Local Board and CEO when a single entity operates in
more than one of the following roles: Local fiscal agent, Local Board
staff, one-stop operator, or direct provider of career services or
training services. The proposed paragraph clarifies how the
organization will carry out its responsibilities while demonstrating
compliance with WIOA and corresponding regulations, relevant OMB
circulars, and the State's conflict of interest policy. While it may be
appropriate in some instances for a single organization to fulfill
multiple roles, a written agreement between the Local Board, CEO, and
the organization fulfilling multiple roles is the best method to limit
conflict of interest or the appearance of conflict of interest,
minimize fiscal risk, and develop appropriate firewalls within a single
entity performing multiple functions.
4. Subpart D--Regional and Local Plan
WIOA provides designated regions and local workforce areas the
responsibility and opportunity to develop employment and training
systems tailored specifically to regional economies. These systems must
meet the needs of the full range of learners and workers, including
those with
[[Page 20709]]
barriers to employment. The system must also address the specific needs
of regional employers and the skills they require. WIOA requires the
Local Board, in partnership with the CEO, to submit a local plan to the
Governor. If the local area is part of a planning region, the Local
Board will submit its local plan as part of the regional plan and will
not submit a separate local plan. The local or regional plan provides
the framework for local areas to define how their workforce development
systems will achieve the purposes of WIOA. The regional or local plans
serve as 4-year action plans to develop, align, and integrate the
region and local area's job-driven workforce development systems, and
provides the platform to achieve the local area's visions and strategic
and operational goals. Since the local plan is only as effective as the
partnerships that operationalize it, it must represent a collaborative
process among local elected officials, boards, and required and other
partners (including economic development, education, and private sector
partners) to create a shared understanding of the local area's
workforce investment needs, a shared vision of how the workforce
investment system can be designed to meet those needs, and agreement on
the key strategies to realize this vision.
Section 679.500 What is the purpose of the regional and local plan?
Proposed Sec. 679.500 describes the purpose of the regional and
local plans. Proposed Sec. 679.500(a)(1) through (4) explain that the
local plan is the primary vehicle for communicating the Local Board's
vision for the local workforce system and aligning and integrating
local service delivery across Federal programs in a region to foster
better alignment of Federal investments in job training, integrate
service delivery across programs, and ensure that the workforce system
is job-driven and matches employers with skilled individuals. Proposed
Sec. 679.500(b) clarifies that when a State-designated region
encompasses two or more local areas, the regional plan must meet the
purposes of the local plan and coordinate resources across the region
and across local areas. This approach is intended to align resources
between multiple Local Boards.
Section 679.510 What are the requirements for regional planning?
Proposed Sec. Sec. 679.510, 679.520, and 679.530 describe the
required contents of the regional plan, the approval process, and when
the regional plan must be modified. While sec. 106(c) of WIOA clearly
describes the required contents of the regional plan, it provides less
detail about the approval and modification process, saying only that
officials in the planning region must ``prepare, submit, and obtain
approval'' of the plan. Because the local plan is a component of the
regional plan, the Department has decided to apply the approval and
modification requirements, including the requirement to seek public
comment and sunshine provision, to the regional plan.
Proposed Sec. 679.510 implements sec. 106(c) of WIOA and describes
the State and local requirements for regional planning. Proposed Sec.
679.510(a)(1) requires Local Boards and CEOs to participate in a
regional planning process. In some instances, where a single local
workforce development area comprises a region, the local area will
carry out its planning in this context.
Proposed Sec. 679.510(a)(2) describes the regional plan contents
and submission process. The Local Boards and CEOs must submit a
regional plan to the Governor for approval that includes the activities
listed at proposed Sec. 679.510(a)(1) and incorporates the local plans
developed for each local area. Local areas are not required to submit
an additional local plan outside of the regional planning process. The
coordination required for regional planning is an effective method for
local areas to identify areas of efficiency, coordinate effective
practices, and streamline service delivery. While the regional plan
requires coordination of local performance negotiations with the State,
each CEO, as required by Sec. 677.210(b) and (c) will negotiate
performance goals with the State and will remain ultimately responsible
for ensuring that the local area meets or exceeds those goals.
Proposed Sec. 679.510(b) requires Local Boards to make the
regional plan available for comment before submitting the plan to the
Governor and describes the steps necessary to ensure adequate public
comment. This requirement provides all affected entities and the public
an opportunity to provide input to inform plan development.
Proposed Sec. 679.510(b)(5) specifically requires the public
comment process to be consistent with the `sunshine provisions' at WIOA
sec. 107(e), which requires that the Local Boards must make the plan
available through electronic means and open meetings. This requirement
ensures greater transparency in the planning process, and encourage
regions to consider efforts to maximize the transparency and
inclusiveness of the process.
Proposed Sec. 679.510(c) requires the State to provide technical
assistance and labor market data to facilitate regional planning.
Because States possess a broader understanding of labor market
information across jurisdictions and tools for analysis that individual
local areas may not possess, States have a responsibility to provide
and instruct local areas on the effective use of regional labor market
information.
Section 679.520 What are the requirements for approval of a regional
plan?
Proposed Sec. 679.520 describes the approval of the comprehensive
4-year regional plan. This section requires that the Governor review
completed plans and stipulates that unless the Governor determines that
any of the conditions described in proposed paragraphs (a) through (c)
are met the plan will be considered approved 90 days after submission
of the plan to the Governor.
Section 679.530 When must the regional plan be modified?
Proposed Sec. 679.530 describes when a regional plan must be
modified. Proposed Sec. 679.530(a) requires the Governor to establish
procedures governing regional plan modification, which will help ensure
that the biannual modification of regional plans is conducted
consistently throughout the State.
Proposed Sec. 679.530(b) explains that the Local Boards and
appropriate CEOs in the planning region must review the regional plan
every 2 years and submit a modification based on significant changes in
labor market and economic conditions and other factors including
changes to local economic conditions, and any changes in the financing
available to support WIOA title I and partner-provided WIOA services.
This proposed requirement helps ensure that planning regions use their
plans to drive economic development, sector, career pathway, and
customer-focused service delivery strategies.
Section 679.540 How are local planning requirements reflected in a
regional plan?
Proposed Sec. 679.540 outlines how local planning requirements are
reflected in a regional plan. WIOA is silent on the coordination of the
regional and local plan, noting only that the regional plan must
``incorporate local plans for each of the local areas in the planning
region.'' The Department has determined that the most appropriate and
least burdensome approach to implementing this provision is to
incorporate the local plans within the regional plan. In this
arrangement, the regional plan is completed in
[[Page 20710]]
cooperation with the Local Boards and CEOs in a planning region, per
Sec. 679.510(a). Each individual Local Board and CEO will respond to
the local planning requirements at Sec. 679.560(b) through (e)
individually. The Local Boards and CEOs in a planning region must
cooperate to develop a common response to the local planning
requirements that discuss regional labor market information, as
required by Sec. 679.540(a), and any other appropriate requirements
permitted by the Governor per Sec. 679.540(b). When these activities
are completed, the planning region submits one regional plan to the
Governor that includes the common discussion of regional labor market
information and other requirements as required by the Governor, as well
as each local plan in a single document.
Proposed Sec. 679.540(a) requires regional plans to include the
items identified in Sec. Sec. 679.510 and 679.560, which implement
secs. 106(c)(1) and 108(b) of WIOA.
Proposed Sec. 679.540(b) specifies the Governor may issue regional
planning guidance that allows local areas to provide a common response
to any local requirements it deems as a shared regional responsibility,
which may include regional economic analysis. The Department recognizes
there are many planning requirements and encourages Governors to
minimize the individual local area burden by reducing duplication and
encouraging a coordinated service delivery strategy.
Section 679.550 What are the requirements for the development of the
local plan?
Proposed Sec. 679.550 explains the requirements for the
development of the local plan. This section emphasizes the importance
of collaboration and transparency in the development and submission of
the local plan and subsequent modifications.
Proposed Sec. 679.550(a) implements sec. 108(a) of WIOA and
describes the general requirements for the preparation and content of
the local plan.
Proposed Sec. 679.550(b) requires Local Boards to make the local
plan available for comment before submitting the plan to the Governor
and describes the steps necessary to ensure adequate public comment.
This requirement provides all affected entities and the public an
opportunity to provide input to inform plan development. This section
implements sec. 108(d) of WIOA.
Proposed Sec. 679.550(b)(5) requires the public comment process to
be consistent with the `sunshine provisions' at WIOA sec. 107(e) and
proposed Sec. 679.390 and that the Local Board must make the plan
available through electronic means and in open meetings. This
requirement ensures transparency to the public. This provision
implements sec. 107(e) of WIOA.
Section 679.560 What are the contents of the local plan?
Proposed Sec. 679.560, consistent with sec. 108(b) of WIOA,
explains what information must be included in the local plan. These
requirements set the foundation for WIOA principles, by fostering
strategic alignment, improving service integration, and ensuring that
the workforce system is industry-relevant, responding to the economic
needs of the local workforce development area and matching employers
with skilled workers. In addressing these planning requirements, boards
engage strategic partners to develop and implement regionally aligned
workforce development priorities and streamlined service delivery.
Local and regional planning also is expected to lead to greater
efficiencies by reducing duplication and maximizing financial and human
resources. WIOA significantly expands the content requirements for the
local plan.
Proposed Sec. 679.560(a)(1) specifies that the local plan must
meet the requirements of WIOA sec. 108(b)(1). Of relevance to this
section, the use of economic and labor market information ensures that
the local strategies are based on a thorough understanding of the
economic opportunities and workforce needs of the region, and inform
the alignment of strategies to the best interests of job seekers and
employers with the economic future of the State. Similarly, the
contents of the plan must include an analysis of the workforce
development activities in the region, including an analysis of the
strengths and weaknesses of such services to address the identified
education and skill needs of the workforce and employment needs in the
region. A thorough assessment of the best available information or
evidence of effectiveness and performance information for specific
service models in the region, as well as a plan to improve the
effectiveness of such programs by adopting proven or promising
practices, is an important part of this assessment and strategic
vision. In addition, the regional analyses described in this proposed
section may be conducted in cooperation with the other local areas in a
local planning region as part of the regional planning requirements
described at Sec. 661.290 and must not be conducted by each local
area.
Proposed Sec. 679.560(a)(1)(iii), consistent with sec. 108(c) of
WIOA permits local areas to use an existing analysis to meet the
requirements in Sec. 679.560(a).
Proposed Sec. 679.560(b) outlines the required contents of the
local plan that are required by secs. 108(b)(2)-(21) of WIOA to ensure
that a local plan presents a comprehensive, customer-focused, and
actionable service delivery strategy. This section emphasizes alignment
and coordination to a greater extent than that required by WIA. Except
where noted, the requirements outlined in Sec. 679.560(b)(2) through
(21) simply reiterate the statutory requirements without additional
explanation.
Proposed Sec. 679.560(b)(2) requires elaboration on the strategies
for alignment by requiring that the Local Board describe how such
alignment will improve access to services and to activities that lead
to a recognized post-secondary credential. Proposed Sec.
679.560(b)(2)(ii) explains that the Local Board must describe how they
will work with entities carrying out core programs to facilitate the
development of career pathways and co-enrollment, as appropriate, in
core programs. Co-enrollment allows partners to leverage resources,
while providing a more comprehensive service delivery strategy that
meets the needs of customers with several barriers to employment.
Additionally, coordination of services in a customer-focused manner
minimizes the possibility of subsequent reentry into the public
workforce system in cases where needed services were not provided or
possible barriers not addressed.
Proposed Sec. 679.560(b)(4) explains that the Local Board must
describe how they will coordinate local workforce investment activities
with regional economic development activities that are carried out in
the local area and how the Local Board will promote entrepreneurial
skills training and microenterprise services. Alignment between the
public workforce system and local economic development activities is
critical in order to identify and fulfill industry talent needs by
training customers for emerging and in-demand job skills. Furthermore,
microenterprise services refers to training for the purposes of self-
employment. This training strategy may be appropriate for individuals
or participants with multiple barriers to employment, including persons
with disabilities.
Proposed Sec. 679.560(b)(5) focuses on the delivery of services
through the one-stop delivery system in the local area
[[Page 20711]]
and requires descriptions regarding how the Local Board will ensure the
continuous improvement of eligible providers of services, including
through the promotion of proven and promising approaches and
evaluation; how the Local Board will facilitate access to services,
including in remote areas, through the use of technology and other
means; how entities within the one-stop delivery system, including one-
stop operators and the one-stop partners, will comply with WIOA sec.
188, if applicable, and applicable provisions of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) regarding physical
and programmatic accessibility; and the roles and resource
contributions of the one-stop partners. WIOA, and the corresponding
regulations at Sec. 678.420, establishes the roles of one-stop
partners. These include providing access to the partner's programs
through the one-stop system; making program funds available to maintain
the one-stop delivery system, including infrastructure costs; providing
applicable career services; entering into a MOU with the Local Board
regarding one-stop operation; ongoing participation in the one-stop
system; and providing representation on State and Local Workforce
development boards as required and Board committees as needed.
Additionally, one-stop partners are responsible for sharing
infrastructure and career services costs. Documenting how one-stop
partners will manage their shared roles and contribute to the funding
of the one-stop in the local plan increases accountability and
transparency.
Proposed Sec. 679.560(b)(6) through (11) focus on coordination
activities for improving services and avoiding duplication. Proposed
Sec. 679.560(b)(11) reflects a new statutory requirement not contained
in WIA that the local plan include plans, assurances and strategies for
maximizing coordination with Wagner-Peyser Act services and other
services provided through the one-stop system.
Proposed Sec. 679.560(b)(12) and (13) are also new requirements
under WIOA. Proposed Sec. 679.560(b)(12) speaks to coordination with
adult education and literacy activities under title II of WIOA and
requires a description of how the Local Board will carry out the review
of local applications submitted under title II. Proposed Sec.
679.560(b)(13) is intended to enhance the provision of services to
individuals with disabilities through cooperative agreements, as
defined in WIOA sec. 107(d)(11), and other collaborative efforts
between the Local Board and the local VR entity. All such collaborative
efforts must be described in the local plan.
Proposed Sec. 679.560(b)(16) requires the Local Board to include
local levels of performance that the board has negotiated with the
Governor in the local plan. Additionally, this section proposes that
the local plan must include the standards, process, or performance
measures that the Local Board will use to evaluate the performance of
the local fiscal agent where the CEO has designated such an entity.
These proposed requirements increase transparency and public
accountability, while helping ensure the Local Board has the
information it needs to ensure sustained fiscal integrity of public
funds.
Proposed Sec. 679.560(b)(19) maintains the requirement that the
local plan include a description of the process used by the Local Board
to provide for public input into the development of the plan and for
public comment on the completed plan prior to its submission. Unlike
WIA, this regulation identifies the 30-day timeframe for public comment
prior to submission of the plan.
Proposed Sec. 679.560(b)(20), new to WIOA, requires a description
of how the one-stop centers are implementing and transitioning to an
integrated, technology-enabled intake and case management information
system for programs carried out under WIOA and by one-stop partners.
Proposed Sec. 679.560(b)(21) requires that the plan include the
process by which priority of service must be applied by the one-stop
operator, but also clarifies that such priority is for adult career and
training services and must be given to recipients of public assistance,
other low-income individuals, and individuals who are basic skills
deficient. The Department is proposing to include this requirement
under the authority to require additional reporting, recordkeeping, and
investigations. Including the priority service policy in the local plan
will help ensure a more uniform application of the policy throughout
the local area.
As permitted by sec. 108(b)(22) of WIOA, proposed Sec. 679.560(c)
requires that the plan include any additional information required by
the Governor.
Proposed Sec. 679.560(d) recommends that the local plan identify
the portions of the local plan that the Governor has designated as
appropriate for common response among all local areas in a planning
region, as per the regulations at 20 CFR 679.540.
Proposed Sec. 679.560(e) reflects the requirement in WIOA sec.
108(e) that any comments submitted during the public comment period
that represent disagreement with the plan must be submitted with the
local plan.
Section 679.580 When must the local plan be modified?
Proposed Sec. 679.580(a) requires the Governor to establish
procedures governing local plan review and modification to ensure that
the biannual review and modification of local plans is conducted
consistently throughout the State.
Proposed Sec. 679.580(b) explains that the Local Board and
appropriate CEOs must review the local plan every 2 years and submit a
modification as needed, based on significant changes in labor market
and economic conditions and other factors including changes to local
economic conditions, changes in the financing available to support WIOA
title I and partner-provided WIOA services, changes to the Local Board
structure, or a need to revise strategies to meet performance goals.
This requirement is consistent with WIOA sec. 108(a). This proposed
requirement helps ensure that local areas use their plans to drive
service delivery strategies and the activities the local area is
performing remains consistent with the plan.
Section 679.570 What are the requirements for approval of a local plan?
Proposed Sec. 679.570 describes the approval of the comprehensive
4-year local plan. Proposed Sec. 679.570(a) requires that the Governor
review completed plans and stipulates that unless the Governor
determines that the conditions described in paragraphs (a)(1) through
(3) are met the plan will be considered approved 90 days after
submission of the plan to the Governor. This section implements sec.
108(e) of WIOA.
Proposed Sec. 679.570(b) outlines the processes, roles, and
responsibilities for situations in which the State is a single local
area. Proposed Sec. 679.570(b)(1) clarifies the State must incorporate
the local plan in the State's Unified or Combined State Plan submitted
to DOL. Proposed Sec. 679.570(b)(2) states that the Secretary of Labor
will perform the roles assigned to the Governor as they relate to local
planning activities. Proposed Sec. 679.570(b)(3) indicates the
Secretary of Labor will issue planning guidance for single area States.
This section implements sec. 106(d) of WIOA.
The Department recognizes that the development of the local plan is
dependent on several other essential State and local WIOA
implementation activities and that local areas may not be
[[Page 20712]]
able to respond fully to each of the required elements of the local
plan in the timeframe provided. The Department seeks comment on the
scope of the challenges local areas may face regarding regional and
local planning, and potential actions that the Department can take to
help local areas address these challenges.
5. Subpart E--Waivers/WorkFlex (Workforce Flexibility Plan)
This subpart describes the statutory and regulatory waiver
authority provided by WIOA sec. 189(i), and the requirements for
submitting a Workforce Flexibility Plan under WIOA sec. 190. WIOA
provides States the flexibility to request a waiver of program
requirements in order to implement new strategic goals for the
improvement of the statewide workforce development system and to
provide better customer service in exchange for accountability for
expected programmatic outcomes. A Workforce Flexibility plan provides
additional flexibility to the State. In general, a State with an
approved Workforce Flexibility plan is given the authority to identify
local level provisions to waive without further approval from the
Secretary of Labor to achieve outcomes specified in the plan.
A description of what provisions of WIOA and Wagner-Peyser may and
may not be waived is included, along with an explanation of the
procedures for requesting a waiver. The subpart also describes what may
and may not be waived under a Workforce Flexibility Plan, and the
procedures for obtaining approval of a plan. The WIOA requirements for
obtaining approval for a waiver or Workforce Flexibility Plan are
similar to those in WIA secs. 189(i) and 192, respectively; therefore,
many of the proposed regulations are the same as the regulations
implementing WIA.
Section 679.600 What is the purpose of the General Statutory and
Regulatory Waiver Authority in the Workforce Innovation and Opportunity
Act?
Proposed Sec. 679.600(a) explains that the purpose of the general
statutory and regulatory waiver authority, provided under WIOA sec.
189(i)(3), is to provide flexibility to States and local areas to
enhance their ability to improve the statewide workforce investment
system to carry out WIOA's goals and purposes.
Proposed Sec. 679.600(b) explains that a waiver may be requested
to address impediments to a strategic plan that is consistent with the
purposes of title I of WIOA, which are identified at Sec. 675.100(a)
through (h).
Section 679.610 What provisions of the Workforce Innovation and
Opportunity Act and the Wagner-Peyser Act may be waived, and what
provisions may not be waived?
Proposed Sec. 679.610(a) implements WIOA sec. 189(i)(3)(A)(i), and
explains that the Secretary may waive for a State or local area any of
the statutory or regulatory requirements of WIOA title I, subtitles A,
B, and E, except for the requirements listed in paragraphs (a)(1)
through (12). As noted in this section, the purposes of title I of WIOA
are described at 20 CFR 675.100(a) through (h). The Department will
provide examples of requirements that it will not waive in subsequently
issued guidance.
Proposed Sec. 679.610(b) follows WIOA sec. 189(i)(3)(A)(ii), and
explains that the Secretary may waive the statutory or regulatory
requirements of Wagner-Peyser secs. 8 through 10, except for the
requirements listed in paragraphs (b)(1) and (2).
Section 679.620 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under the Workforce Innovation and Opportunity Act?
Proposed Sec. 679.620(a) through (f) implements WIOA sec.
189(i)(3) and describes the conditions under which a Governor may
request, and the Secretary may approve a waiver of statutory or
regulatory requirements.
Proposed Sec. 679.620(a) explains that the Secretary will issue
guidelines on waiving WIOA and Wagner-Peyser requirements. States will
be required to follow the Secretary's guidelines, which supplement the
requirements listed in 20 CFR 679.600 through 679.620. The guidelines
will be issued contemporaneously with State planning guidance. This
proposed section retains the same requirements found at 20 CFR
661.420(f).
Proposed Sec. 679.620(b) explains that the Governor may request a
general waiver in consultation with the appropriate CEOs by submitting
a waiver plan which accompanies the State's WIOA 4-year Unified or
Combined State Plan, 2-year modification, or by directly submitting a
waiver plan at any time after a State's WIOA Plan is approved. This
approach is consistent with WIOA secs. 102 and 103, which require the
State to submit either a 4-year Unified or Combined State Plan.
Proposed Sec. 679.620(c) explains that a Governor's waiver request
may seek waivers for the entire State or for one or more local areas
within the State. This proposed section retains the same requirements
found at 20 CFR 661.420(b).
Proposed Sec. 679.620(d) lists the required components of a waiver
plan for the improvement of the statewide workforce development system
and includes the requirements of WIOA sec. 189(i)(3)(B). Specifically,
the plan must identify the statutory or regulatory requirements that
are requested to be waived, and the goals that the State or local area
intend to achieve as a result of the waiver. The plan must also
describe the actions that the State or local area has taken to remove
State or local statutory or regulatory barriers; the goals of the
waiver and the expected programmatic outcomes if the waiver is granted;
the individuals affected by the waiver; and the processes used to
monitor the progress in implementing the waiver, provide notice to any
Local Board affected by the waiver, and provide any Local Board
affected by the waiver an opportunity to comment on the request.
Proposed Sec. 679.620(d)(1) requires that the waiver plan explain
how the goals of the waiver relate to the Unified or Combined State
Plan. Waivers must support State strategies as enumerated in the State
Plan. Waivers are not separate or detached from the Unified or Combined
State Plan: An approved waiver constitutes a modification of the State
Plan.
Additionally, as required by Sec. 679.620(d)(4), the waiver plan
must describe how the waiver will align with the Department's
priorities, such as supporting employer engagement, connecting
education and training strategies, supporting work-based learning, and
improving job and career results. The Department's priorities may
change and evolve to reflect major changes in the economy, changes in
the needs of the workforce, and new developments in service strategy
approaches. This new requirement ensures that the Department is issuing
waivers that align with and help achieve the priorities of the
Department. As noted in Sec. 679.620(d)(4)(v), a more complete list of
current priorities will be articulated in future guidance.
Proposed Sec. 679.620(d)(5) requires the waiver plan to generally
describe the individuals affected by the proposed waiver. This section
specifically requires that the plan describe how the waiver will impact
services for disadvantaged populations and individuals with multiple
barriers to employment. One of the primary purposes of WIOA is to
increase and enhance education, employment, and
[[Page 20713]]
training opportunities for individuals with barriers to employment,
including low-income individuals, individuals with disabilities, the
Native American population, and the other groups identified in sec.
3(24) of the Act. The Department has added this specific requirement to
ensure that the State, as part of its waiver request, considers the
employment and training needs of these groups and how the proposed
waiver would affect these populations.
An additional requirement at proposed Sec. 679.620(d)(6)(iv) is
that the plan must describe the processes used to ensure meaningful
public comment, including comment by business and organized labor. This
requirement was included to ensure as transparent a process as
possible, to make sure that the public is given an opportunity to voice
their concerns or support of potential changes in the public workforce
system, while the Governor is afforded an opportunity to reflect on the
opinions of the public before proceeding with a waiver request. This
proposed section retains the same requirements found at 20 CFR
661.420(c)(5)(iv).
The Governor must also describe, per Sec. 679.620(d)(6)(v), the
process used to collect and report information about the goals and
outcomes achieved under the waiver plan in the State's WIOA Annual
Report. The Department approves waivers in order to assist States and
local areas in achieving goals and outcomes that will improve the
statewide workforce development system. This collection and reporting
requirement holds States accountable for the goals and outcomes to be
achieved with the approved waivers and provides a regular and public
assessment of the effectiveness of States and local areas in doing so.
Finally, proposed Sec. 679.620(d)(7) explains that if a waiver is
up for renewal, the Secretary may require that States provide the most
recent data available about the outcomes achieved under the existing
waiver. This requirement will ensure that the Department has the most
recent, relevant information before deciding whether to renew a waiver.
As part of its decision the Department may take other factors into
account when deciding to renew or deny a waiver.
Proposed Sec. 679.620(e) specifies that the Secretary will issue a
decision on a waiver request within 90 days of the receipt of the
waiver, consistent with WIOA sec. 189(i)(3)(C).
Proposed Sec. 679.620(f) implements the requirements of WIOA secs.
189(i)(C)(i) and (ii), and explains that the Secretary will approve a
waiver request only to the extent that the Secretary determines that
the requirements for which a waiver is requested impede the ability of
either the State or local area to implement the State's plan to improve
the statewide workforce investment system, and the State has executed a
MOU with the Secretary requiring the State to meet, or ensure that the
local area meets, agreed-upon outcomes and to implement other
appropriate measures to ensure accountability. This section also makes
approval of the waiver contingent on the Secretary's determining that
the waiver plan meets all of the requirements of WIOA sec. 189(i)(3)
and Sec. Sec. 679.600 through 679.620. This proposed section retains
the same requirements found at 20 CFR 661.420(e), except that the
statutory reference has changed from sec. 189(i)(4) to sec. 189(i)(3).
Consistent with current practice, proposed Sec. 679.620(g)
authorizes the Secretary to approve a waiver for as long as the
Secretary determines is appropriate; however, the duration of the
waiver may not exceed the duration of a State's current Unified or
Combined State Plan. For example, a waiver granted during the third
year of the Plan would have to be reconsidered as part of the
subsequent plan submission and approval cycle, at the latest. By
limiting the duration of the waiver, the Department will be able to
ensure that the waiver is consistent with the goals of the State's plan
and remains consistent with the priorities of the Department.
Proposed Sec. 679.620(h) gives the Secretary the authority to
revoke a State's waiver under certain circumstances. The Secretary has
an obligation to oversee the implementation and performance of States
under their State plan, including any waivers granted by the
Department. As part of this responsibility, the Department proposes to
allow the Secretary to revoke a waiver granted under this section if
the State fails to meet the agreed upon outcomes and measures, the
State fails to comply with the terms and conditions of the MOU or other
document that includes the terms and conditions of the waiver, and if
the Secretary determines that the waiver no longer meets any of the
requirements of Sec. Sec. 679.600 through 679.620. Limiting the
Secretary's authority to revoke to these circumstances balances the
State's need for flexibility with the Secretary's duty to oversee the
implementation of the waiver.
Section 679.630 Under what conditions may the Governor submit a
Workforce Flexibility Plan?
Proposed Sec. 679.630 describes the conditions under which the
Governor may submit a workforce flexibility (work-flex) plan.
Proposed Sec. 679.630(a) includes the requirements of WIOA sec.
190(a), and explains that a State may submit a workforce flexibility
plan for approval by the Secretary, under which three categories of
statutory or regulatory requirements can be waived.
Proposed Sec. 679.630(a)(1), implementing WIOA sec. 190(a)(1),
permits a State to waive any of the statutory or regulatory
requirements that are applicable to local areas under WIOA title I (if
the local area requests the waiver), except for the requirements listed
in proposed paragraphs (a)(1)(i) through (iv). In addition to the
statutory exceptions, this proposed section adds the requirement that
any of the statutory provisions essential to WIOA's title I purposes
cannot be waived.
The second category, described in proposed Sec. 679.630(a)(2), and
implementing WIOA sec. 190(a)(2), explains that any of the statutory or
regulatory requirements applicable to the State under Wagner-Peyser Act
secs. 8 through 10 may be waived, except for requirements listed at
Sec. 679.630(a)(2)(i) and (ii). This proposed section retains the same
requirements found at 20 CFR 661.430(a)(2).
Proposed Sec. 679.630(a)(3), implementing WIOA sec. 190(a)(3),
permits waiver of the statutory or regulatory requirements applicable
under the Older Americans Act of 1965 to State agencies on aging with
respect to activities carried out using funds allotted under sec.
506(b) of the Older Americans Act, except the for requirements
identified at Sec. 679.630(a)(3)(i) through (iv).
Proposed Sec. 679.630(b) explains what States are required to
include in their workforce flexibility plan.
Proposed Sec. 679.630(b)(1) and (3) implement the requirements at
WIOA sec. 190(b)(1), and specify that a State workforce flexibility
plan must include a description of the process by which local areas in
the State may submit and obtain State approval of applications for
waivers, and the requirements of title I of WIOA that are likely to be
waived by the State under the plan.
Proposed Sec. 679.630(b)(2) adds the requirement that the plan
include a description of the criteria that the State will use to
approve local area waiver requests and how such requests support
implementation of the goals identified
[[Page 20714]]
in the State plan. These criteria must be addressed in the waiver
review process discussed at Sec. 679.630(b)(1). This requirement
ensures that all local waiver requests are evaluated consistently by
the State.
Proposed Sec. 679.630(b)(4) implements the requirements of WIOA
sec. 190(b)(2) and requires a description of the Wagner-Peyser Act
secs. 8 through 10 that are proposed for waiver, if any. This proposed
section retains the same requirements found at 20 CFR 661.430(c)(3).
Proposed Sec. 679.630(b)(5) implements the requirements of WIOA
sec. 190(b)(3) and requires a description of the requirements of the
Older Americans Act that are proposed for waiver, if any. This proposed
section retains the same requirements found at 20 CFR 661.430(c)(4).
Proposed Sec. 679.630(b)(6) implements the requirements of sec.
190(b)(4) of WIOA by requiring that the plan describe the outcomes to
be achieved by the waivers. The section explains that ``outcomes''
include, when appropriate, revisions to adjusted levels of performance
included in the State or local plan under WIOA title I, and a
description of the data or other information the State will use to
track and assess outcomes. This provision allows the Department to
measure more effectively the impact of waivers. For some waivers, it
may be difficult to make a direct connection between the waiver and a
direct impact on performance; in those instances the State must discuss
the impact of a waiver on performance to the extent that the State has
available data.
Proposed Sec. 679.630(b)(7) implements WIOA sec. 190(b)(5) and
requires that the plan include the measures to be taken to ensure
appropriate accountability for Federal funds in connection with the
waivers. This proposed section retains the same requirements found at
20 CFR 661.430(b)(6).
Proposed Sec. 679.630(c) explains that a State's workforce
flexibility plan may accompany the State's Unified or Combined State
Plan, the required 2-year modification of the State's Unified or
Combined State Plan, or may be submitted separately as a plan
modification. This requirement emphasizes that the State may submit a
workforce-flexibility plan at any time.
Proposed Sec. 679.630(d) explains that the Secretary may approve a
workforce flexibility plan consistent with a period of approval of the
State's Unified or Combined State Plan, and not more than 5 years. For
example, if a workflex plan is approved in the third year of a 4-year
Unified Plan, the approval would be for the remainder of the period
covered by the plan and then would need to be reconsidered as part of
the subsequent Unified Plan or Combined Plan. Approving a workforce
flexibility plan for the life of a currently approved Unified or
Combined State Plan ensures that the waivers granted under the plan are
consistent with the strategies outlined in the State Plan. The period
of up to 5 years is consistent with sec. 190(c) of WIOA.
Proposed Sec. 679.630(e) implements WIOA sec. 190(d) and requires
the State to provide notice and opportunity for comment on the proposed
waiver request to all interested parties and the general public before
submitting the workforce flexibility plan to the Secretary. This
proposed section retains the same requirements found at 20 CFR
661.430(e).
Proposed Sec. 679.630(f) explains that the Secretary will issue
guidelines under which States may request designation as a workflex
State. This proposed section retains the same requirements found at 20
CFR 661.430(f) and notes that the Secretary's guidelines may include
requirements for a State to implement an evaluation of the impact of
work-flex in that State.
Section 679.640 What limitations apply to the State's Workforce
Flexibility Plan authority under the Workforce Innovation and
Opportunity Act?
Proposed Sec. 679.640 explains the limitations that apply to the
State's Workforce Flexibility Plan authority under WIOA.
Proposed Sec. 679.640(a)(1) specifies that under work-flex waiver
authority, a State must not waive WIOA, Wagner-Peyser Act, or Older
Americans Act requirements which are excepted from the work-flex waiver
authority and described in Sec. 679.630(a). This proposed section
retains the same requirements found at 20 CFR 661.440(a)(1).
Proposed Sec. 679.640(a)(2) explains that requests to waive title
I of WIOA requirements that are applicable at the State level may not
be granted under work-flex waiver authority granted to a State. These
requests may only be granted by the Secretary under the general waiver
authority which is described at Sec. Sec. 679.610 through 679.620. The
Department included this provision to emphasize that work-flex waivers
are issued under separate authority than general waivers, and that
States may not use work-flex waiver authority as a substitute for the
general State-level waivers available under sec. 189(i)(3). This
proposed section retains the same requirements found at 20 CFR
661.440(a)(2).
Proposed Sec. 679.640(b) expands on Sec. 679.630(b)(6) by
explaining that once approved the Secretary may terminate a work-flex
designation if the State fails to meet agreed-upon outcomes or the
terms and conditions contained in its workforce flexibility plan. The
Department included this provision to emphasize that the Department
reserves the authority to terminate a workflex plan if a State is not
meeting the terms and conditions agreed to between the Department and
the State, including the relevant performance outcomes.
D. Part 680--Adult and Dislocated Worker Activities Under Title I of
the Workforce Innovation and Opportunity Act
1. Introduction
In this part of the proposed rule, the Department describes
requirements relating to the services that are available for adults and
dislocated workers under WIOA. Adult services are provided to job
seekers who are at least 18 years old; the statute and the proposed
rule, in providing for such services, establish a priority for serving
low-income individuals, participants on public assistance, and
individuals lacking basic work skills. Dislocated worker services are
targeted for workers who are unemployed and have lost a job, through no
fault of their own, sometimes through mass layoffs that happen during
the business cycle. The goal of these services is to provide for the
return of these individuals to quality employment. Dislocated workers
generally include an individual who:
Has been terminated or laid off, or has received a notice
of termination or layoff from employment;
Is eligible for or has exhausted entitlement to UC or has
been employed for a duration sufficient to demonstrate attachment to
the workforce but is not eligible for UC due to insufficient earnings
or works for an employer not covered under State UC law; and
Is unlikely to return to a previous industry or
occupation.
Under WIOA, adults and dislocated workers may access career
services and training services. WIOA provides for a workforce system
that is universally accessible, customer centered, and training that is
job-driven. WIOA will provide for career and training services at the
nation's nearly 2,500 one-stop centers. Training is supported through a
robust ETPL, comprised of entities with a proven capability of securing
participants with quality employment. WIOA also provides enhanced
access
[[Page 20715]]
and flexibility for work-based training options, such as OJT,
customized training, and incumbent worker training. In this part, the
Department also discusses supportive services and needs-related
payments that can be provided, based on customer needs, to enable them
to participate in WIOA career and training services.
2. Subpart A--Delivery of Adult and Dislocated Worker Activities Under
Title I of the Workforce Innovation and Opportunity Act
Introduction
This subpart discusses the role of WIOA adult and dislocated worker
services through the one-stop delivery system. The one-stop delivery
system is the foundation of the workforce system. The system provides
universal access to career services to meet the diverse needs of adults
and dislocated workers. The grant recipient(s) for the adult and
dislocated worker program is a required partner in the one-stop
delivery system and is subject to the required partner responsibilities
set forth in Sec. 678.415.
Career and training services, tailored to the individual needs of
jobseekers, form the backbone of the one-stop delivery system. While
some jobseekers may only need self-service or other basic career
services like job listings, labor market information, labor exchange
services or information about other services, some jobseekers will need
services that are more comprehensive and tailored to their individual
career needs. These services may include comprehensive skills
assessments, career planning, and development of an individual
employment plan that outlines the needs and goal of successful
employment. Under WIA, career services were identified as core and
intensive services and generally participants would go through each
level of service in order to eventually receive training. WIOA
clarifies that individuals receiving services in the one-stop centers
must receive the service that is needed to assist the individual to
meet his or her job search goals, and does not need to follow a fixed
sequence of services that may not be necessary to effectively serve the
individual.
Under WIOA, the Department proposes to classify career services
into two categories: Basic and individualized career services. This
grouping is not designed to create barriers to training, but rather
identifies the importance that these two types of career services can
have in helping individuals obtain employment. Basic career services
must be made available to all job seekers and include services such as
labor exchange services, labor market information, job listings, and
information on partner programs. Individualized career services
identified in WIOA and described in these proposed regulations are to
be provided by local areas as appropriate to help individuals to obtain
or retain employment.
Under WIA, participants often were required to undergo a sequence
of core and intensive services in order to receive training. WIOA
clarifies that there is no sequence of service requirement in order to
receive training. Training is made available to individuals after an
interview, assessment or evaluation determines that the individual
requires training to obtain employment or remain employed. Supportive
services, including needs-related payments, can be essential to enable
individuals to participate in career and training services.
Section 680.100 What is the role of the adult and dislocated worker
programs in the one-stop delivery system?
Proposed Sec. 680.100 directs that the one-stop system is the
foundational system through which adult and dislocated worker program
services are provided to eligible individuals. WIOA merges the
categories of core services and intensive services under WIA into the
category of career services.
Section 680.110 When must adults and dislocated workers be registered
and considered a participant?
Proposed Sec. 680.110 addresses the important distinction between
registration and participation--two separate actions in the process by
which adults and dislocated workers seek direct, one-on-one staff
assistance from the one-stop system. The distinction is important for
recordkeeping and program evaluation purposes. Individuals who are
primarily seeking information are not treated as participants and their
self-service or informational search requires no registration. When an
individual seeks more than minimal assistance from staff in taking the
next step towards self-sufficient employment, the person must be
registered and eligibility must be determined. To register, as defined
in Sec. 675.300, is the point at which information that is used in
performance information begins to be collected. Participation is the
point at which the individual has been determined eligible for program
services and has received or is receiving a WIOA service, such as
career services, other than self-service or informational service and
is the point at which an individual is to be included in performance
calculations for the primary indicators in 20 CFR part 681.
Proposed Sec. 680.110(a) describes the registration process for
collecting information to support a determination of eligibility for
the WIOA adult and dislocated worker programs. This section explains
that registration can be done electronically, through interviews, or
through an application. This section proposes to distinguish the term
``participation'' from registration by providing that participation
occurs after IC and eligibility determination, when an individual
receives a WIOA service, other than self-service or informational
activities.
Proposed Sec. 680.110(b) requires that adults and dislocated
workers who receive services other than self-service and informational
activities must be registered and considered a participant for WIOA
title I services.
Proposed Sec. 680.110(c) maintains the requirement in WIA
regulation Sec. 663.105(c) that EO data be collected on every
individual who is interested in being considered for WIOA title I
financially assisted aid, benefits, services, or training, and who has
signified that interest by submitting personal information in response
to a request from the service provider.
Section 680.120 What are the eligibility criteria for career services
for adults in the adult and dislocated worker programs?
An individual must be 18 years of age or older to receive career
services in the adult program. Priority for individualized career
services and training services funded with title I adult funds must be
given to low-income adults and public assistance recipients and
individuals who are basic skills deficient, in accordance with WIOA
sec. 134(c)(3)(E) and proposed Sec. 680.600.
Section 680.130 What are the eligibility criteria for career services
for dislocated workers in the adult and dislocated worker programs?
Proposed Sec. 680.130(a) states that an individual must meet the
definition of ``dislocated worker'' in WIOA sec. 3(15) to receive
career services in the dislocated worker program.
Proposed Sec. 680.130(b) provides that Governors and Local Boards
may develop policies and procedures for one-stop operators to use in
determining a dislocated worker's eligibility for career services
consistent with the definitions provided in the statute,
[[Page 20716]]
regulations and any guidance issued by the Secretary.
Proposed Sec. 680.130(b)(1) and (2) allows for Governors and Local
Boards to develop policies and procedures for what constitutes a
``general announcement'' of a plant closing. These policies and
procedures could include policies and procedures for what constitutes a
``general announcement'' of a plant closing or for what constitutes
``unemployed as a result of general economic conditions in the
community in which the individual resides or because of natural
disasters'' for individuals who are self-employed, including family
members and ranch hands.
Section 680.140 What Workforce Innovation and Opportunity Act title I
adult and dislocated worker services are Local Boards required and
permitted to provide?
Proposed Sec. 680.140 describes generally the availability of
funds for use in providing services for adult and dislocated workers
under title I of WIOA. Local areas have significant flexibility when
providing services with adult and dislocated worker funds. In addition
to the required career and training services, local areas may use these
funds to provide additional job seeker services, business services, as
well as facilitate enhanced coordination between other partner programs
and entities at the State and local level. Local areas can use these
funds to develop new types of technical assistance, develop new intake
procedures, test new procurement methods which may lead to better
outcomes for jobseekers, and ensure robust services to businesses
throughout the workforce system.
Paragraph (a) provides that WIOA title I adult and dislocated
worker funds to local areas must be used to provide career and training
services through the one-stop delivery system. Local areas have
discretion in the appropriate mix of services, but both career and
training services must be made available through the one-stop system
for provision to eligible individuals served through the system.
Paragraph (b) describes the services that may be provided with WIOA
title I adult and dislocated worker funds in local areas.
Subparagraph (b)(1) identifies ``Job Seeker Services.'' These
services include customer support activities to help individuals with
barriers to employment, training programs for displaced homemakers and
individuals training for nontraditional occupations, work support
activities for low-wage workers, supportive services and needs-related
payments, and providing transitional jobs to individuals with barriers
to employment who are chronically unemployed or have an inconsistent
work history.
Paragraph (b)(2) identifies ``Employer Services.'' These services
include customized screening and referral of qualified participants in
training to employers, customized employment-related services to
employers, and business services.
Paragraph (b)(3) identifies ``Coordination Activities.''
Coordination is required among training and employment activities under
WIOA, child support agencies and services, Department of Agriculture
extension programs, facilitating remote access by using technology and
the one-stop delivery system, economic development agencies, linkages
between the public workforce system and employers and those between the
one-stop delivery system and unemployment insurance programs, and
organizations that provide services to individuals with disabilities.
Paragraph (b)(4) authorizes local areas to enter into pay-for-
performance contracts as part of a training strategy. Local areas may
use up to 10 percent of their total adult and dislocated worker funds
under this procurement method.
Paragraph (b)(5) provides for technical assistance for one-stop
operators, partners, and ETPs regarding the provision of services to
individuals with disabilities.
Paragraph (b)(6) provides for local areas to adjust the economic
self-sufficiency standards for local areas. Levels of self-sufficiency
may vary by local area and the local economy; this flexibility allows
local areas to tailor their services in a way that works in their local
economy.
Paragraph (b)(7) provides for the implementation of promising
services to workers and employers. Local areas can build upon promising
practices to improve service delivery to both job seekers and
employers.
Paragraph (b)(8) provides for the use of funds for incumbent worker
training. Local areas can use up to 20 percent of their combined adult
and dislocated worker funds to do incumbent worker training consistent
with subpart F of this part.
Section 680.150 What career services must be provided to adults and
dislocated workers?
At a minimum, all of the basic career services described in WIOA
sec. 134(c)(2)(A)(i)-(xi) and Sec. 678.430(a) must be provided in each
local area through the one-stop delivery system. These services include
referrals to partner programs, initial assessments, and labor exchange
services.
In addition, services described in WIOA sec. 134(c)(2)(A)(xii) and
Sec. 678.430(b), such as career counseling and the development of an
individual employment plan, must be made available if appropriate for
an individual to obtain or retain employment. These services are
categorized as ``Individualized Career Services'' in Sec. 678.430(b).
An individual employment plan is discussed in connection with proposed
Sec. 680.180.
Appropriate follow-up services must be made available to a
participant placed in unsubsidized employment for a minimum of 12
months following the participant's first date of employment. Follow-up
services can be useful for participants in order to maintain
employment. One-stop staff can provide workplace information and tips
for success in a workplace environment. Additionally, follow-up
services provide a continuing link between the participant and
workforce system; these services allow the one-stop to assist with
other services the participant may need once he or she obtains
employment. Examples may include assistance with employer benefits,
health insurance, and financial literacy and budgeting assistance.
Section 680.160 How are career services delivered?
Proposed Sec. 680.160 explains that career services must be
provided through the one-stop delivery system. Career services may be
provided by the one-stop operator or through contracts with service
providers approved by the Local Board. A Local Board may not be the
provider of career services unless it receives a waiver from the
Governor and meets other statutory and regulatory conditions.
Section 680.170 What is an internship or work experience for adults and
dislocated workers?
Proposed Sec. 683.170 defines an internship or work experience as
a planned, structured, time-limited learning experience that takes
places in a workplace. An internship or work experience may be paid or
unpaid, as appropriate. An internship or work experience may be
provided in the private for-profit, non-profit, or public sectors.
Labor standards apply to any internship or work experience in which an
employee/employer relationship exists under applicable law. The
Department recognizes the role work experiences and internships play in
[[Page 20717]]
helping individuals obtain the skills they need to succeed in the
workplace. An internship or work experience for a participant in WIOA
is classified as an Individualized Career Service as described in Sec.
678.430(b). Internships and work experiences provide a helpful means
for an individual to gain experience that leads to unsubsidized
employment.
Section 680.180 What is the individual employment plan?
Proposed Sec. 680.180 explains that an individual employment plan
is an individualized career service, as described in Sec. 678.430(b),
jointly developed by the participant and career planner, that may be
appropriate for an individual. The plan includes an ongoing strategy to
identify employment goals, achievement objectives, and an appropriate
combination of services for the participant to obtain these goals and
objectives. Individual employment plans are one of the most effective
ways to serve individuals with barriers to employment, and to
coordinate the various services including training services they may
need to overcome these barriers.
3. Subpart B--Training Services
Introduction
Training services are discussed at proposed Sec. Sec. 680.200
through 680.230. WIOA is designed to increase participant access to
training services. Training services are provided to equip individuals
to enter the workforce and retain employment. Training services may
include, for example, occupational skills training, OJT, registered
apprenticeship which incorporates both OJT and classroom training,
incumbent worker training, pre-apprenticeship training, workplace
training with related instruction, training programs operated by the
private sector, skill upgrading and retraining, entrepreneurial
training, and transitional jobs. Training services are available for
individuals who, after interview, evaluation or assessment, and case
management are determined to be unlikely or unable to obtain or retain
employment that leads to self-sufficiency or higher wages from previous
employment through career services alone. The participant must be
determined to be in need of training services and to possess the skills
and qualifications to successfully participate in the selected program.
The Department explains that some participants may need additional
services to assist their vocational training, such as job readiness
training, literacy activities including English language training, and
customized training.
Section 680.200 What are training services for adults and dislocated
workers?
Proposed Sec. 680.200 directs the reader to WIOA sec. 134(c)(3)(D)
for a description of available training services. The proposal provides
a series of examples that is not all-inclusive.
Section 680.210 Who may receive training services?
Proposed Sec. 680.210(a) discusses the process used to determine
when and what training services must be made available to an
individual. Under WIOA, an individual may receive training services
after an interview, evaluation, or assessment, and career planning if
the one-stop operator or partner determines the individual is unlikely
or unable, by only receiving career services, to retain employment that
leads to economic self-sufficiency or wages comparable to or higher
than wages from previous employment. Additionally, the one-stop
operator or partner must also determine that the training the
individual receives would result in employment leading to economic
self-sufficiency or wages comparable to or higher than wages from
previous employment. The one-stop operator or partner must also
determine that the individual has the skills and qualifications to
successfully participate in and complete the training. Upon a
determination that career services are unlikely to obtain these
employment outcomes, the individual may be enrolled in training
services. The individual should have the skills and qualifications
needed to successfully participate in and complete the training
services.
Proposed Sec. 680.210(b) requires that individuals, for whom
training has been deemed appropriate, select a training program linked
to employment opportunities in the local area or in an area to which
the individual is willing to commute or relocate. The selection of this
training program should be fully informed by the performance of
relevant training providers, and individuals must be provided with the
performance reports for all training providers who provide a relevant
program.
Proposed Sec. 680.210(c) explains that WIOA training services must
be provided when other sources of grant assistance are unavailable to
the individual.
Proposed Sec. 680.210(d) requires that training services provided
under the WIOA adult funding stream must be provided in accordance with
the State or Local Board's priority system.
Section 680.220 Are there particular career services an individual must
receive before receiving training services under Workforce Innovation
and Opportunity Act?
WIOA removed the requirement under WIA that an individual had to
receive an intensive service before receiving training services. The
proposal explains that, other than an interview, evaluation, or
assessment and career planning there is no requirement that additional
career services must be provided before an individual enrolls in
training. Where an assessment is provided, a previous assessment may be
adequate for this purpose. There is no requirement for a sequencing of
services under WIOA. If individuals are determined to be in need of
training consistent with WIOA sec. 134(c)(3) then they may be placed in
training services. The Department encourages the use of individualized
career services under Sec. 678.420(b) when appropriate for an
individual; an individual employment plan or career counseling informed
by local labor market information and training provider performance
reports often will be appropriate before an individual receives
training services.
Proposed Sec. 680.220(b) requires that the case files for
individuals must document the participant eligibility for training
services and explain how this determination was made--by interview,
evaluation or assessment, career planning, or other career service,
such as an individual employment plan. It is important that the one-
stop gather enough information, by whatever means, be they through an
interview or through career services, to justify the need for training
services.
Section 680.230 What are the requirements for coordination of Workforce
Innovation and Opportunity Act training funds and other grant
assistance?
Proposed Sec. 680.230 restates the requirements for coordination
with other forms of assistance that apply under WIA. The Department has
also added a sentence to Sec. 680.230(a)(2) to reflect the new
provision in WIOA sec. 134(c)(3)(B)(iii) that one-stop operators and
one-stop partners may take into account the full cost of the training,
including the cost of supportive services. The Department encourages
program operators to do so.
Proposed Sec. 680.230(a) states that when coordinating other grant
assistance the one-stop operator or
[[Page 20718]]
partner may take into account the full cost of participating in
training services, including the cost of dependent care and
transportation and other appropriate costs. Additionally, the one-stop
operator or partner must coordinate training funds available and make
funding arrangements with one-stop partners and other entities.
Proposed Sec. 680.230(b) states that WIOA participants may enroll
in WIOA-funded training while the participant has a Pell Grant
application pending as long as the one-stop operator has made
arrangements with the training provider and the WIOA participant
regarding the award of the Pell Grant. The training provider must
reimburse the one-stop operator or partner the amount of the WIOA funds
used to pay for the training costs covered by the Pell Grant in the
event that one is approved after WIOA-funded training has begun.
Reimbursement from the participant for education-related expenses is
not required.
4. Subpart C--Individual Training Accounts
Introduction
Individual Training Accounts (ITAs) are key tools used in the
delivery of many training services. The Department seeks to provide
maximum flexibility to State and local program operators in managing
ITAs. These proposed regulations do not establish the procedures for
making payments, restrictions on the duration or amounts of the ITA, or
policies regarding exceptions to the limits. The authority to make
those decisions resides with the State or Local Boards. The authority
that States or Local Boards may use to restrict the duration of ITAs or
restrict funding amounts must not be used to establish limits that
arbitrarily exclude eligible providers.
Through the one-stop center, individuals will be provided with
quality and performance information on providers of training and, with
effective career services, case management, and career planning with
the ITA as the payment mechanism. ITAs allow participants the
opportunity to choose the training provider that best meets their
needs. Under WIOA, ITAs can more easily support placing participants
into registered apprenticeship programs than under WIA.
Section 680.300 How are training services provided?
Proposed Sec. 680.300 explains that in most circumstances an
individual will receive training services through an ITA. An ITA is
established on behalf of the participant, where services are purchased
from eligible providers selected in consultation with a career planner.
Payments may be made through electronic transfers of funds, vouchers,
or other appropriate methods. Payments may be made at the beginning of
the training program or on an incremental basis; the payment processes
must be decided at the local level. As explained in proposed Sec.
680.300, an ITA is used by an individual to access training services
from an entity on the State's ETPL. In some circumstances involving
work-based training, such as OJT, customized training, registered
apprenticeship, incumbent worker training and transitional jobs, the
Local Board may contract out the training services. The section allows
for a Local Board itself to provide the training services if it
receives a waiver from the Governor. Local Boards must coordinate
funding for ITAs with funding from other Federal, State, local, or
private job training programs or sources to assist individuals in
obtaining training services.
Section 680.310 Can the duration and amount of Individual Training
Accounts be limited?
Proposed Sec. 680.310 maintains the State and local flexibility to
impose limits on ITAs that exists under WIA.
Section 680.320 Under what circumstances may mechanisms other than
Individual Training Accounts be used to provide training services?
Proposed Sec. 680.320(a) discusses the exceptions to the otherwise
required use of an ITA for training. In situations covered by these
exceptions, a contract for services may be used to provide for
training. The exceptions include:
1. OJT, which could include placing participants in a registered
apprenticeship, customized training, incumbent worker training, or
transitional jobs.
2. Where a Local Board determines there are an insufficient number
of eligible providers in the local area to accomplish the purpose of an
ITA. The local plan must describe how this determination was made and
the process used for contracting for services. This exception maintains
the same language as WIA.
3. If the Local Board determines a CBO or other private
organization provides effective training services to individuals with
barriers to employment. The Local Board must develop criteria to show
that the program is effective.
4. Training for multiple individuals in in-demand industry sectors
or occupations, as long as the contract does not limit the individual's
consumer choice.
5. Circumstances in which a pay-for-performance contract is
appropriate, consistent with Sec. 683.510.
Proposed Sec. 680.320(b) includes the term ``individuals with
barriers to employment'' in place of the term ``special participant,''
as used under WIA. ``Individuals with barriers to employment'' is
broader than ``special participants.'' ``Individuals with barriers to
employment'' includes: Displaced homemakers (see Sec. 680.630); low-
income individuals; Indians, Alaska Natives, and Native Hawaiians;
individuals with disabilities; older individuals; ex-offenders;
homeless individuals; youth who are in or have aged out of the foster
care system; individuals who are English learners, have low literacy
levels, or face substantial cultural barriers; eligible MSFWs;
individuals within 2 years of exhausting lifetime eligibility under
TANF; single parents (including pregnant women); long-term unemployed
individuals; and members of other groups identified by the Governor.
Section 680.330 How can Individual Training Accounts, supportive
services, and needs-related payments be used to support placing
participating adults and dislocated workers into a registered
apprenticeship program and support participants once they are in a
registered apprenticeship program?
This regulation is designed to ensure States and local areas have
the flexibility to serve individuals in both being placed into a
registered apprenticeship as well as to assist currently registered
apprentices. WIOA provides a new opportunity for registered
apprenticeship programs to automatically qualify to be placed on the
State's ETPL, allowing ITAs to support participants in registered
apprenticeship programs, and more directly connecting apprenticeship
programs to job seekers in one-stop centers. Some apprenticeship
programs are with a single employer, whereas others may operate through
a joint labor-management organization where participants are selected
for the apprenticeship but not immediately hired by a specific
employer. The Department is seeking comment on how registered
apprenticeship programs and individuals enrolled or seeking to be
enrolled in such programs may be best served within the one-stop
delivery system.
[[Page 20719]]
Proposed Sec. 680.330(a) states that participants may use an ITA
to receive training at a pre-apprenticeship program that is on the
State's ETPL. Pre-apprenticeship programs provide training to increase
math, literacy, and other vocational skills needed to gain entry to a
registered apprenticeship program. A pre-apprenticeship program funded
with an ITA must have at least one registered apprenticeship partner;
such pre-apprenticeship programs must possess or develop a strong
record of enrolling their pre-apprenticeship graduates into a
registered apprenticeship program. The Department is also open to
comment on how pre-apprenticeship programs and individuals enrolled or
seeking to be enrolled in such programs may be best served within the
one-stop delivery system.
Proposed Sec. 680.330(b) explains that the cost of tuition may be
paid through an ITA to the training provider involved in a registered
apprenticeship program. In such instances, the training provider may be
an employer, a joint labor-management entity, a labor organization, or
an outside training provider.
Proposed Sec. 680.330(c) states that supportive services may be
provided to support the placement of a participant into a registered
apprenticeship program, consistent with the rules governing supportive
services in subpart H.
Proposed Sec. 680.330(d) explains that needs-related payments may
be provided to support the placement of a participant into a registered
apprenticeship program, consistent with the rules governing needs-
related payments in subpart H.
Proposed Sec. 680.330(e) provides a citation to the regulations on
using OJT funds with registered apprenticeships.
Section 680.340 What are the requirements for consumer choice?
Proposed Sec. 680.340 largely restates the consumer choice
requirements established under WIA. The term ``career planner,'' used
in WIOA, replaces the term ``case manager,'' used in WIA. Proposed
Sec. 680.340(e) provides that one-stop operators may coordinate
funding for ITAs with other funding sources in order to assist the
individual in obtaining training services. Proposed Sec. 680.340(f)
requires that priority consideration be given to programs that are
aligned with in-demand industry sectors or occupations in the local
area.
5. Subpart D--Eligible Training Providers
This part describes the methods by which organizations qualify as
eligible providers of training services under WIOA. It also describes
the roles and responsibilities of the State and Local Boards in
managing this process and disseminating ETPLs. The State ETPL and the
related eligibility procedures ensure the accountability, quality, and
labor-market relevance of programs of training services that receive
funds through WIOA title I-B. The regulations emphasize that the list
and accompanying information must be easily understood and disseminated
widely, in order to maximize informed consumer choice and serve all
significant population groups.
The State plays a leadership role in ensuring the success of the
eligible provider system in partnership with Local Boards, the one-stop
system, and its partners. The Governor must establish eligibility
criteria and procedures for initial determination and renewals of
eligibility for training providers and training programs to receive
funds under WIOA title I-B. In doing so, the Governor may establish
minimum performance levels for eligibility and the Department
encourages Governors to do so. In establishing minimum performance
levels for eligibility, the Govenor should take into consideration the
need to serve targeted populations. The Local Board may establish
additional performance levels for program eligibility within a local
area.
The proposed regulations implement WIOA sec. 122 and refer to WIOA
secs. 107, 116, and 134 where those sections affect provider
eligibility, the ETPL, the use of ITAs, and the inclusion of registered
apprenticeship programs on the ETPL. In Sec. 680.410, the regulations
clarify that all training providers, including those operating under
the ITA exceptions, must qualify as eligible providers, except for
those engaged in OJT and customized training (for which the Governor
must establish qualifying procedures as discussed in Sec. 680.530).
The proposed regulations also explain how registered apprenticeship
programs, which WIOA treats differently than other providers in some
respects, are to be included in the list. Finally, the regulations
describe how the State ETPL must be disseminated with accompanying
performance and cost information. The performance information must be
presented in a way that is easily understood, in order to maximize
informed consumer choice and serve all significant population groups.
Separately, ETP performance reports, which require providers to supply
performance information for all individuals enrolled in a program are
addressed in Sec. 677.230.
In response to concerns expressed by stakeholders that some
providers of training would face difficulties in participating in this
WIOA-revised system, the Department has clarified the interrelated
eligibility requirements and explained that while WIOA places an
emphasis on quality training as measured by performance criteria, State
and Local Boards and training providers must work together in attaining
this goal. The proposed regulations emphasize the Governor's discretion
in offering financial or technical support to training providers where
the information requirements of this section result in undue cost or
burden. Making a wide variety of high-quality training programs
available to participants will increase customer choice and that
training providers may find performance information useful to improve
their programs of study, which in turn will provide a direct benefit to
participants. The Department also encourages the Governor to work with
ETPs to return aggregate performance information to the provider in
ways that will help the training providers improve their program
performance. Given that training providers may have many programs of
study within their institution, the department is seeking comment on
ways that States can help streamline performance reporting for training
providers and minimize the burden associated with reporting on multiple
programs of study. The State and Local Boards must work together to
ensure sufficient numbers and types of training providers and programs
in order to maximize customer choice while maintaining the quality and
integrity of training services. In addition, the proposed regulations
explain that CBOs have the opportunity to deliver training funded under
WIOA through contracts for services rather than ITAs, provided the
local area determines this is necessary to meet local customer needs
and also that the provider meets training performance requirements.
Because of WIOA's emphasis on ensuring the provision of quality
training, and the importance of using performance criteria to obtain
such quality, the Department does not intend to waive any of the
requirements of this section. The Department is seeking comment on
possible adaptations of ETP eligibility and reporting requirements to
ensure small CBOs, especially those serving hard to
[[Page 20720]]
serve participant populations, have the capacity to qualify as ETPs.
Section 680.400 What is the purpose of this subpart?
The workforce development system established under WIOA emphasizes
informed consumer choice, job-driven training, provider performance,
and continuous improvement. The quality and selection of providers and
programs of training services is vital to achieving these core
principles. As required by WIOA sec. 122, proposed Sec. 680.400
explains that States, in partnership with Local Boards, must identify
providers of training services that are qualified to receive WIOA funds
to train adults and dislocated workers. Therefore, WIOA requires that
each State must maintain a list of ETPs. The list must be accompanied
by relevant performance and cost information and must be made widely
available, including in electronic formats, and presented in a way that
is easily understood, in order to maximize informed consumer choice and
serve all significant population groups.
Section 680.410 What entities are eligible providers of training
services?
Proposed Sec. 680.410 defines the types of entities that may be
considered eligible to provide training services and the specific funds
to be used for this purpose. This proposed section explains that
training providers, including those operating under the ITA exceptions,
must qualify as eligible providers, except for those engaged in OJT and
customized training (for which the Governor must establish qualifying
procedures as discussed in Sec. 680.530). The proposed regulations
identify registered apprenticeship programs as included in the list as
long as the program remains registered. This is further explained in
proposed Sec. 680.470.
Proposed paragraph (a) explains that only providers that the State
determines to be eligible, as required in WIOA sec. 122, may receive
training funds under WIOA title I-B. This refers to funds used to
provide training for adult and dislocated worker participants who
enroll in a program of training services. Proposed paragraph (a) states
that the Governor will establish the criteria and procedures for
determining eligibility. These criteria must take into account, at a
minimum the items in WIOA sec. 122(b)(1)(A). Under the requirements of
WIOA sec. 122, the procedures for determining eligibility of providers
are established at the State level and include application and renewal
procedures, eligibility criteria, and information requirements.
Proposed paragraphs (a)(1) through (4) list the categories of
potentially eligible training entities. This list is largely unchanged
from WIA. Potentially eligible entities include post-secondary
education institutions, registered apprenticeship programs, other
public or private providers of training, Local Boards that meet certain
conditions, and CBOs or private organizations providing training under
contract with the Local Board.
Proposed paragraphs (b)(1) and (2) specify that these eligibility
requirements apply to adult and dislocated worker funds. The
requirements apply to both participants who seek training using ITAs
and those who seek training through the exceptions described in
proposed Sec. Sec. 680.320 and 680.530. Under WIOA sec. 134(c)(3)(G),
limited exceptions allow local areas to provide training through a
contract for services rather than ITAs in order to maintain consumer
choice. These exceptions include: OJT training, customized training,
incumbent worker training, or transitional employment; instances where
the Local Board determines there are insufficient numbers of eligible
providers of training services in the local area; where the Local Board
determines an exception is necessary to meet the needs of individuals
with barriers to employment (including assisting individuals with
disabilities or adults in need of adult education and literacy
services); where the Local Board determines that it would be most
appropriate to award a contract to an institution of higher education
or other eligible provider to facilitate the training of multiple
individuals in in-demand industry sectors or occupations (where the
contract does not limit customer choice); and, for pay-for-performance
contracts.
Proposed paragraph (b)(2) explains that the requirements to become
an eligible provider of training services apply to all organizations
providing training to adults and dislocated workers, with the specific
exception for registered apprenticeship programs. WIOA makes a change
from WIA in that registered apprenticeship programs must be included
and maintained on the list for as long as the program remains
registered. Registered apprenticeship programs are not subject to the
same application and performance information requirements as other
ETPs. However, because it is possible that particular registered
apprenticeship programs may prefer not to be included on the list, the
proposed regulation requires registered apprenticeship programs to
indicate their interest in being on the State list, according to a
mechanism established by the Governor. The pertinent requirements for
registered apprenticeship programs are explained in proposed Sec.
680.470.
Section 680.420 What is a ``program of training services''?
Proposed Sec. 680.420 defines the term ``program of training
services,'' which is used throughout this part. The Department explains
that a program of training services includes a structured regimen that
leads to specific outcomes. Our definition reinforces a key principle
of WIOA to improve accountability and performance. Proposed paragraphs
(a) through (c) align the outcomes for a program of training services
with the performance requirements described in WIOA sec. 116(b)(2)(A).
These potential outcomes include post-secondary credentials, industry-
recognized credentials, employment, and measurable skill gains toward
credentials or employment.
Section 680.430 Who is responsible for managing the eligible provider
process?
Proposed Sec. 680.430 explains the roles of the Governor and Local
Boards in administering the eligible provider process. Throughout this
subpart, the Department emphasizes the Governor's discretion, in
consultation with stakeholders, to establish eligibility procedures.
The eligible provider process under WIOA sec. 122 requires the Governor
to establish eligibility procedures and to clarify State and Local
Board roles and responsibilities. In various sections, WIOA assigns
responsibilities to Local Boards concerning ETPs and identifies
additional optional activities that may be undertaken by Local Boards.
For the convenience of stakeholders and the public, the Department has
listed in proposed Sec. 680.430 these required and potential
activities.
Proposed paragraph (a) explains the Governor's responsibilities for
managing the process for determining eligibility, developing and
maintaining the State's list of ETPs, and disseminating the list to
Local Boards, as required by WIOA sec. 122. In keeping with WIOA secs.
122(a)(1) and (c)(1), proposed paragraph (a) further requires that
Governors consult with the State Board when establishing these
procedures. Proposed paragraph (b) authorizes the Governor to designate
a State agency to carry out the requirements of this section. While
WIOA sec. 122 does not address this point, the Department anticipates
that most States will work through a designated State agency (or
appropriate State entity) to administer the
[[Page 20721]]
requirements of this section. The Department proposes paragraph (b) to
make this option explicit.
Proposed paragraphs (b)(1) through (5) describe the State's
responsibilities for developing and maintaining the State list of
providers. The State may establish minimum performance levels. The
State is responsible for determining if such performance targets are
met. It is also the State's responsibility to determine whether
accurate information has been submitted, take enforcement actions as
needed, and disseminate the list to the Local Boards, the one-stop
system, its partner programs, and the public. This includes
dissemination through Web sites and searchable databases and any other
means the State uses to disseminate information to consumers. Under
WIA, similar responsibilities were primarily assigned to the Local
Workforce Boards. In establishing greater accountability and
flexibility at the State level, WIOA sec. 122 specifically requires the
State to manage the ETP process. Proposed paragraph (b) describes these
responsibilities and notes the Governor's primary role in exercising
these responsibilities, including the assignment of duties to be
undertaken by Local Boards.
Paragraph (c) identifies the required responsibilities of Local
Boards, which are found in WIOA secs. 107 and 134. These include
responsibilities assigned to Local Boards statutorily as well as
responsibilities that may be assigned by the Governor. Proposed
paragraph (c)(1) makes clear that the Local Board must carry out
procedures assigned to it by the State, as provided for under WIOA
sec.122(c)(1). The Department provides examples of the responsibilities
that the Governor may choose to assign to Local Boards, including
duties similar to those undertaken by Local Boards under WIA.
Proposed paragraph (c)(2) explains the Local Boards' responsibility
to work with the State to ensure that there are sufficient number and
variety of programs to provide participants, as consumers, adequate
choice among providers, as described in WIOA sec. 107. Local Boards are
charged with working with the State to ensure that there are sufficient
numbers and types of providers to meet the skill development needs of
adults and dislocated workers, including those who are disabled and/or
require adult literacy assistance. This proposed paragraph emphasizes
that Local Boards and the State must work together to ensure adequate
consumer choice.
Proposed paragraph (c)(3) explains, as required by WIOA sec.
134(a)(2)(B), that Local Boards must also ensure that the State'
eligible training provider list is disseminated publicly through the
local one-stop system, and its partner programs. The list is a tool to
assist one-stop customers in evaluating training programs and provider
options. The dissemination of the list is also discussed under proposed
Sec. 680.500.
Proposed paragraph (d) explains the roles that a Local Board may
choose to exercise in the eligible provider process. The Governor's
procedure may not prevent Local Boards from exercising these options.
Proposed paragraph (d)(1) emphasizes the potential for Local Board
input into the Governor's development of the eligible provider
procedure. WIOA sec. 122(e) requires the Governor to provide an
opportunity for interested members of the public to make
recommendations and submit comments regarding the eligibility
procedure. Although not explicitly addressed in the WIOA sec. 122, the
Department interprets its language to encompass Local Boards and thus
have included this requirement in the proposed paragraph.
Proposed paragraphs (d)(2) and (3) include the provisions at WIOA
sec. 122(b)(3), which allow Local Boards to set additional eligibility
criteria, information requirements, and minimum performance levels for
local providers beyond what is required by the Governor's procedure.
Stakeholders and the public must note that any additional requirements
imposed by a Local Board will only affect a program's eligibility and
performance requirements within the local area.
Section 680.440 What are the transition procedures for Workforce
Investment Act-eligible providers to become eligible under the
Workforce Innovation and Opportunity Act?
Proposed Sec. 680.440 explains the procedure established by WIOA
sec. 122(c) for training providers that were eligible as of the date
WIOA was enacted, July 21, 2014, to continue their eligibility under
WIOA. The Department anticipates the majority of providers previously
eligible under WIA will be affected by this transition.
Proposed paragraph (a) explains that the Governor may establish a
transition period and states that providers that were eligible on July
21, 2014 will remain eligible under WIOA until December 31, 2015, or
such earlier date as the Governor may set. Proposed paragraph (b)
explains that in order to retain eligibility after the transition
period, these providers will be subject to the application procedure
established by the Governor for providers that have previously been
found eligible, as further explained in proposed Sec. 680.460.
Proposed paragraph (c) explains that providers that have previously
been found eligible are not subject to the initial eligibility
procedures, as described in proposed Sec. 680.450. As discussed in
Sec. 680.450, the initial eligibility procedures apply only to
providers that were not previously eligible under WIA or WIOA.
Section 680.450 What is the initial eligibility procedure for new
providers?
Proposed Sec. 680.450 describes the process for adding ``new'''
providers to the ETPL (i.e., those that have not previously been found
eligible under sec. 122 of either WIA or WIOA). Such providers must
first apply for initial eligibility according to procedures set by the
Governor. In accordance with WIOA sec. 122(b)(4), this proposed section
describes the factors the Governor must take into consideration in
developing this procedure and take into account in setting criteria for
initial eligibility. Eligibility is determined on a program-by-program
basis for each provider. Proposed Sec. 680.450 distinguishes between
registered apprenticeship programs seeking inclusion on the list and
other providers. Registered apprenticeship programs, consistent with
WIOA sec. 122(a)(3), are not subject to the initial eligibility
application procedure. However, registered apprenticeship programs are
required to indicate their interest to be included in the ETPL,
according to a mechanism established by the Governor, as discussed in
Sec. 680.470.
Proposed paragraph (a) explains that the Governor's procedure must
require that providers of training seeking initial eligibility submit
required information in order to receive initial eligibility.
Proposed paragraph (b) explains the exception for providers who are
carrying out registered apprenticeship programs under the National
Apprenticeship Act. Such programs are included and maintained on the
list of eligible providers of training for as long as the program
remains registered. Therefore, registered apprenticeship programs are
not subject to a period of initial eligibility or to initial-
eligibility procedures. Rather, the Department proposes paragraph (b)
to require the Governor to establish a procedure whereby registered
apprenticeship programs may indicate their interest to be included and
maintained on the list. This requirement is further discussed in Sec.
680.470.
Proposed paragraph (c) explains the requirement that the Governor
must consult with Local Boards and solicit
[[Page 20722]]
public comment in determining the initial eligibility procedure. While
the Governor is responsible for developing the initial eligibility
procedure, input by the Local Board and public comment remain important
for shaping a public workforce system that is responsive to local
needs. The Local Board is responsible for working with the State to
ensure that there are sufficient numbers and types of providers of
career and training services, as required by WIOA sec. 107(d)(10)(E)
and described in proposed Sec. 679.370(m). Therefore, the Department
is requiring that the Governor consult with Local Boards about the
initial eligibility procedure in order to maximize consumer choice at
the local level. This is also in keeping with WIOA sec. 122(e) on the
requirements for public comment. In addition, although WIOA does not
address this point, the Department proposes requiring the Governor to
describe the procedure, eligibility criteria, and information
requirements for initial eligibility in the State Plan. Although States
will need a separate mechanism for public comment during the first year
of implementation, in subsequent years the State Plan process will
afford the opportunity to solicit comments and recommendations from key
stakeholders. In addition, the State Plan submission and review process
allows the Department to ensure compliance with statutory and
regulatory requirements and identify promising practices and technical
assistance needs.
Proposed paragraph (d) explains that the Governor must establish
criteria and State requirements for non-exempt providers seeking
initial eligibility. These initial requirements apply to providers that
were not previously eligible under this section (or sec. 122 of WIA, as
in effect on the day before the enactment of WIOA).
Proposed paragraph (e) describes the factors that the Governor must
take into account in establishing the criteria for determining initial
eligibility. For those institutions that are not exempt from complying
with the ETP application process, the State must establish consistent
and uniform criteria for providers seeking initial eligibility. The
information that must be submitted to the State for review will be
defined by the Governor, but must, at a minimum, address factors
related to program elements included in both WIOA secs. 122(b)(4)(D)
and 116(b)(2)(A)(i)(I)-(IV). The Department has listed these required
elements in proposed paragraphs (e)(2) through (5). The elements taken
from WIOA sec. 122 include information addressing factors related to
program performance indicators, any partnership a program has with a
business, attributes indicating high quality training services and
credentialing, and the alignment of the program's services with in-
demand industry sectors. WIOA requires that providers provide
``verifiable program-specific performance information.'' The Department
is interested in comments about the types of verifiable program
specific-information this would include. The Department is particularly
interested in the methods of providing verifiable information that are
the least costly to the training provider and the easiest to verify to
reduce the cost to the State or local area. The Department has added a
requirement that the applicant provide a description of the program.
The Department thinks this information is not burdensome and is
essential to enable customers to understand whether the program meets
their training needs.
Proposed paragraph (f) describes the Governor's discretion to
establish minimum performance standards. As with the application
procedures described in Sec. 680.460, the Governor may establish
minimum performance levels in the initial eligibility procedures, and
the Department encourages them to do so.
Proposed Sec. 680.450(g) emphasizes the time limit for initial
eligibility, which is 1 fiscal year for a particular program, per WIOA
sec. 122(b)(4)(B).
Proposed paragraph (h) clarifies that after the period of initial
eligibility, these training providers are subject to the Governor's
application procedure, described at proposed Sec. 680.460 in order to
remain eligible.
Section 680.460 What is the application procedure for continued
eligibility?
Proposed Sec. 680.460 explains the detailed application process
for previously WIA-eligible providers to remain eligible under WIOA.
Eligibility is determined on a program-by-program basis for each
provider.
Proposed paragraphs (a)(1) and (2) list the two groups of providers
that are subject to the requirements of proposed Sec. 680.460. These
include new training providers that were previously eligible under WIA
(following the Governor's transition period, which ends December 31,
2015 or such earlier date established by the Governor) as well as new
training providers whose initial eligibility expires after 1 fiscal
year.
Proposed paragraphs (b)(1) and (2) explain that the Governor is
required to gather and consider input from Local Boards, providers, and
the public, including representatives of business and labor
organizations. The Local Board is responsible for working with the
State to ensure that there are sufficient numbers and types of
providers of career and training services, as required by WIOA sec.
107(d)(10)(E) and described in proposed Sec. 679.370(m). Therefore,
the Department is requiring that the Governor consult with Local Boards
regarding training provider eligibility procedures in order to maximize
consumer choice among quality training providers at the local level.
This is also in keeping with WIOA sec. 122(e) regarding the
requirements for public comment. While WIOA does not specify a
timeframe within which the consultation and determination must be
completed, proposed paragraph (b)(3) requires the Governor to establish
a timeframe for that purpose while leaving the amount of time to the
Governor's discretion. The same requirements for Local Board
consultation and a public comment period are described above in
connection with proposed Sec. 680.450(c) for the Governor's
development of initial eligibility procedures.
Proposed paragraph (c) clarifies that registered apprenticeship
programs are exempted from these application procedures. Under WIOA
sec. 122(a)(3), registered apprenticeship programs must be included and
maintained on the State list for as long as the program remains
registered. While registered apprenticeships are considered eligible,
not all registered apprenticeship sponsors may wish to be included. As
described in Sec. 680.470, the Department proposes that the Governor's
procedure must include a means for registered apprenticeship program to
indicate interest in being included on the list.
Proposed paragraph (d) explains that the Governor's procedure must
describe the roles of the State and local areas in the application and
eligibility process. WIOA gives the Governor discretion to assign some
of the responsibility for receiving, reviewing, and making eligibility
determinations to local areas. WIOA emphasizes the Governor's
discretion in establishing eligibility procedures.
Proposed paragraph (e) requires the Governor's procedure to be
described in the State Plan. Although WIOA does not address this point,
the Department proposes requiring the Governor to describe the
procedure, eligibility criteria, and information requirements for
initial eligibility in the State Plan. Although States will need a
separate mechanism for public comment during the first year of
implementation, in subsequent years the State Plan process will afford
the opportunity to solicit
[[Page 20723]]
comments and recommendations from key stakeholders. In addition, the
State Plan submission and review process allows the Department to
ensure compliance with statutory and regulatory requirements and
identify promising practices and technical assistance needs.
Proposed paragraph (f) explains the factors that the Governor must
take into account in developing the eligibility criteria. These include
nine required factors and any additional factors that Governor
considers appropriate. The proposed language closely tracks the
language from WIOA sec. 122(b), providing a comprehensive description
of the requirements for the application process. WIOA sec. 122(b)
includes multiple cross-references to WIOA sec. 116 which identifies
required performance accountability measures. Proposed paragraph (f)(1)
generally describes the kinds of performance information which training
providers must submit as part of their application, which pertain to
participants receiving training under WIOA title I-B. The Department
recommends the Governor's procedure emphasize these performance
indicators as a way of establishing minimum standards and a means for
comparison among training providers offering similar training in
similar areas. The Department recommends States use these measures to
ensure performance accountability, continuous improvement, training
provider quality, and informed consumer choice. The Department
anticipates that complete performance data as required under (f)(1) may
not be available until PY 2018, given the lag time inherent in the
performance indicators. Proposed pargraph (f)(1) allows the Govenor to
take into account alternate factors for any performance information
that is not yet available until such performance data are available.
The Department seeks comment on alternate factors related to
performance that may be used to establish eligibility during this time.
Proposed paragraphs (f)(2) through (10) list the other factors that
the Governor's criteria must take into account. These include the need
to ensure access to training services in rural areas, information
regarding Federal and State training programs other than within WIOA
title I-B, alignment with in-demand industry sectors, State licensure
requirements, encouraging industry-recognized credentials, provision of
post-secondary credentials, the quality of program and training
services, and meeting the needs of individuals with barriers to
employment.
Proposed paragraph (f)(10) requires the Governor's criteria to take
into account whether the providers timely and accurately submitted
eligible training provider performance reports, as required under WIOA
sec. 116(d)(4). This requirement is consistent with the requirement
under WIOA sec. 122(b)(1)(A)(ii) that the criteria to be taken into
account include the outcomes of the training programs for students in
general with respect to employment and earnings under the indicators of
performance described in WIOA sec. 116(d)(2). The ETP reports provide
information on these employment and earnings outcomes for all
individuals in a program of study, and the failure to submit such
reports on a timely and accurate basis would undermine the ability of
the Governor to take such outcomes into account. The Department seeks
comment on how best to apply the timely and accurate submission of
these ETP performance reports as a factor for eligibility.
Proposed paragraph (f)(11) explains the Governor's discretion to
take into account other factors. This paragraph echoes the key
principles of the ETPL and WIOA to ensure performance accountability,
to meet the needs of local employers and participants, and to ensure
informed customer choice.
Proposed paragraph (g) lists the information that training
providers are required to provide as part of their application. As
discussed in paragraph (k), the Governor has broad discretion to
prescribe additional types of information.
Proposed paragraph (h) establishes two additional requirements
concerning performance, cost, and information collection. Proposed
paragraph (h)(1) states that eligible providers must submit performance
and cost information required by paragraph (g) and the Governor's
procedure to the State (WIOA secs. 122(b)(1) and (2)). In accordance
with the State accountability and flexibility intended by WIOA, the
timeframe and manner for submitting this information is to be
determined by the State but at least every 2 years. Proposed paragraph
(h)(2) states that the collection of information required to
demonstrate compliance with the criteria cannot be unduly burdensome or
costly to providers, citing to WIOA sec. 122(b)(1)(J)(iv).
Proposed paragraph (i) explains that the Governor's eligibility
procedure must provide for the State to biennially review training
provider eligibility information and assess the renewal of training
provider eligibility, per WIOA sec. 122(c)(2). In keeping with WIOA's
emphasis on providing discretion to the Governor, the Department has
not prescribed in paragraph (i) the timeline and manner in which this
biennial review takes place. These particulars are to be established by
State procedure. The Governor or State agency is not required to
establish minimum levels of performance, although the Department
encourages them to do so. If minimum levels are established, the
Governor's procedure must state these requirements and the State may
require eligible providers to meet them in order to remain eligible.
Proposed paragraph (j) requires the Governor's procedure to verify
the status of registered apprenticeship programs as a part of the
biennial review of the State list. Although registered apprenticeship
programs are not subject to the same review procedures as other
providers, the State must verify the status of the registered
apprenticeship programs in order to remove from the list any
apprenticeship programs that are no longer registered.
Proposed paragraph (k) establishes that, as was the case under WIA,
Local Boards may set additional criteria for eligibility to provide
services in a local area. WIOA includes this provision at sec.
122(b)(3).
Proposed paragraph (l) explains that the Governor may establish
procedures for providing technical assistance in order to assist
eligible providers in meeting these requirements. This is in addition
to financial assistance the Governor may provide, as described in
proposed Sec. 680.490.
Section 680.470 What is the procedure for registered apprenticeship
programs that seek to be included on the State's eligible training
provider list?
WIOA encourages registered apprenticeship programs to be active
partners in the public workforce system. These programs are proven job-
driven strategies that provide workers with career pathways and
opportunities to earn while they learn. Under WIOA sec. 122(a)(3), a
registered apprenticeship program is included on the list of ETPs so
long as the program remains registered. This allows a participant
enrolled in a registered apprenticeship who is eligible to use WIOA
title I-B funds to use those funds toward apprentice training,
consistent with their availability and limitations as prescribed by
proposed Sec. 680.300. The use of ITAs and other WIOA title I-B funds
toward apprenticeship training is further described in proposed Sec.
680.330. Registered apprenticeship programs differ from other training
providers in some respects, notably that a participant's enrollment
occurs only
[[Page 20724]]
through an agreement among the participant, the registered
apprenticeship program sponsor, and an employer.
Proposed Sec. 680.470 explains how registered apprenticeship
programs are included and maintained on the ETPL. Registered
apprenticeship programs are not subject to the application procedures
and information requirements of other training providers to be included
on the ETPL, in light of the detailed application and vetting
procedures under which apprenticeship programs become registered.
Proposed paragraph (a) requires registered apprenticeship programs
to indicate interest in being on the State list of ETPs. While
registered apprenticeship programs are automatically eligible, not all
registered apprenticeship sponsors may wish to be included on the list.
The Department proposes that the Governor's procedure include a
mechanism for registered apprenticeship programs to indicate their
interest.
Proposed paragraph (b) explains that a registered apprenticeship
program will remain on the list until it loses its registration or
notifies the State that it no longer wishes to be included on the list.
Proposed paragraph (c) explains that when a registered
apprenticeship program is included on the State ETPL, this allows an
individual who eligible to use WIOA title I-B funds to use those funds
toward apprentice training, consistent with their availability and
limitations as prescribed by proposed Sec. 680.300.
Proposed paragraph (d) addresses performance reporting requirements
for apprenticeship programs. Registered apprenticeship programs are not
subject to the same information reporting requirements as other
training programs. However, in light of WIOA's emphasis on performance
accountability and informed customer choice, the Department encourages
Governors to consult with the State and Local Boards, the Department's
Office of Apprenticeship, recognized State apprenticeship agencies
(where they exist in the Governor's State), or other State agencies, to
establish voluntary reporting of performance information.
Section 680.480 May an eligible training provider lose its eligibility?
Proposed Sec. 680.480 describes enforcement provisions that are
largely unchanged from WIA. The Governor has the ability to remove
training providers or programs of training services from the State list
according to the Governor's eligibility and review procedures. Under
WIOA sec. 122(f), States must remove from the eligibility list any
providers that willfully supply false performance information or that
substantially violate requirements of WIOA. Under WIOA, a provider may
also be removed from the list following the Governor's biennial review
of the provider's program. These provisions support key principles of
WIOA by reinforcing performance accountability and ensuring the high
quality of training programs made available.
Proposed paragraph (a) affirms that a provider must deliver
positive results and provide accurate information in order to maintain
eligibility.
Proposed paragraph (b) explains that if a provider intentionally
provides inaccurate information or substantially violates any provision
of WIOA or its regulations the provider must be removed from the State
list for a period of not less than 2 years and is liable to repay all
adult and dislocated worker funds it received during the period of non-
compliance. The Governor must specify in the procedures which
individual or entity is responsible for making these determinations and
the process by which the determination will be made, which must include
an opportunity for a hearing.
Proposed paragraph (c) allows the Governor to remove a program or
programs from the list for failing to meet State-established criteria
or performance levels. The Department seeks comment on how to
strengthen enforcement with non-compliant providers over time.
Proposed paragraph (d) explains that the Governor must establish an
appeal procedure for providers to appeal a denial of eligibility under
this section. An appeals process is required by WIOA sec. 122 (c)(1).
Proposed Sec. 683.630(b) explains the appeal process for the denial or
termination of a training provider's eligibility.
Proposed paragraph (e) provides that a local area may remove a
program or programs from the list for failing to meet higher local
standards. The local area must also provide the program with an appeal
process.
Section 680.490 What kind of performance and cost information must
eligible training providers provide for each program of training?
Proposed Sec. 680.490 describes the performance information that
providers are required to submit to the State in order to establish or
renew eligibility, as described in WIOA sec. 122(b)(2).
Proposed paragraph (a) requires ETPs to submit performance
information at least every 2 years, according to procedures established
by the Governor. While the Governor may require reporting at more
frequent intervals, the Department interprets WIOA sec. 122 to require
that provider performance information for eligibility purposes must be
submitted to the State at least biennially.
Proposed paragraphs (b)(1) through (4) list the program-specific
performance information, described in WIOA sec. 122, that must be
submitted by training providers. Proposed paragraph (b)(1) includes a
cross-reference to the performance elements described at WIOA secs.
116(b)(2)(A)(i)(I)-(IV). These elements are further discussed in
proposed Sec. 680.460(g)(i) through (iv). Proposed paragraphs (b)(2)
through (4) list additional information that must be supplied by
providers; this includes information on post-secondary credentials
offered, program costs, and the completion rate for WIOA participants
in the program.
Proposed paragraph (c) explains that the Governor may require any
additional performance information that he or she considers appropriate
for determining or renewing eligibility. Separate reporting
requirements for the State's ETP performance reports under WIOA sec.
116(d)(4) are addressed in Sec. 677.230.
Proposed paragraph (d) emphasizes the collaborative relationship
between a State and its training providers and explains that the
Governor must assist providers in supplying the information required of
them under WIOA and the proposed regulations. Proposed paragraph (d)(1)
states the statutory requirement, at WIOA sec. 122(b)(1)(J)(iv), that
the Governor must provide access to cost-effective methods for the
collection of information. Proposed paragraphs (d)(2) and (3) explain
that the Governor may provide technical and other assistance to
providers in helping them to meet the performance requirements and that
funds reserved for statewide activities under WIOA sec. 134 (a)(2)(B)
may be used for this purpose. While WIOA emphasizes performance
accountability, it is also important to assist ETPs in maintaining
their eligibility, especially as training providers adjust to the more
demanding reporting requirements of WIOA.
Section 680.500 How is the State list of eligible training providers
disseminated?
The public's ability to access and easily understand the State ETPL
and its accompanying information are cornerstones of informed customer
choice and transparency. In keeping
[[Page 20725]]
with WIOA's intent for program alignment and service integration, the
Department proposes strengthening the distribution of the list to
emphasize dissemination to the public through one- stop partner
programs in addition to the one-stop system. The ETP performance
reports at WIOA sec. 116(d)(4) are addressed separately in Sec.
677.230, which requires the coordinated dissemination of the
performance reports with the ETPL and the information required to
accompany the list.
Proposed Sec. 680.500 explains the requirements for distributing
the list and accompanying information about the programs and providers
on the list. These requirements recognize the central importance of the
list as the means to provide participants, as consumers of employment
and training activities, effective choices among programs and providers
of these services. As discussed previously, informed consumer choice is
a key principle under WIOA.
Proposed paragraph (a) requires the State to disseminate the list
with accompanying performance and cost information to Local Boards in
the State and to members of the public online including Web sites and
searchable databases, through whatever means the State uses to
disseminate information to consumers, including the one-stop delivery
system and its program partners. Local Boards must disseminate the list
through the one-stop system as well, as described in proposed Sec.
680.430(c)(3). Proposed paragraph (b) requires the list to be updated
regularly, while provider eligibility is reviewed biennially. The
Department is making a distinction between the eligibility of
individual providers and updates to the actual list because the
Department anticipates the list may be updated on an on-going basis,
even though the review of a particular provider's eligibility status
may occur biennially.
Proposed paragraph (c) requires the State list and accompanying
information to be easily available to all one-stop customers through
the one-stop system and its partner programs. The State list is a key
piece of the State one-stop system. As such, it must be made available
to individuals seeking information on training programs as well as
participants receiving career services funded under WIOA and other
programs. Proposed paragraph (c) further explains that the list must be
available to individuals who are eligible for training under WIOA as
well as to individuals whose training is supported by other one-stop
partners.
Proposed paragraph (d) describes the information that must
accompany the list to help participants in making informed choices
regarding training programs and providers. Proposed paragraphs (d)(1)
through (4) describe the information that must accompany the list,
including recognized post-secondary credentials offered, other
information as may be required by the Governor's eligibility criteria,
and performance and cost information. The information available for
programs in the initial eligibility stage will be different from, and
less extensive than, the information available from programs in the
continuing eligibility stage.
Proposed paragraph (d)(3) includes the requirement that the State
must disseminate the provider list with ``other appropriate
information.'' The Department interprets this language to include the
performance and cost information described at Sec. 680.490.
Proposed paragraph (d)(4) states that the Governor may include any
additional information to accompany the list as he or she considers
appropriate. The Department encourages States to include any
information that, consistent with WIOA's goal of promoting consumer
choice, will assist participants in choosing training activities and
providers.
Proposed paragraph (e) requires, as described in WIOA sec.
122(d)(3), that the accompanying information must not reveal personally
identifiable information about an individual participant. In addition,
disclosure of personally identifiable information from an education
record must be carried out in accordance with the FERPA, including the
circumstances relating to prior written consent.
The Department is interested in comments on specific ways to
structure the accompanying information so that it provides a complete
and easily understandable picture of provider performance but is not so
detailed or complex that it discourages users from consulting it or
limits its utility to the lay person. Should, for example, there be a
summary sheet that is easy and quick to read and, if so, what
information must be on the summary sheet?
Section 680.510 In what ways can a Local Board supplement the
information available from the State list?
Proposed Sec. 680.510 explains that Local Boards may choose to
supplement the criteria and information requirements established by the
Governor's procedure in order to facilitate informed consumer choice in
a local area.
Proposed paragraph (a) states that a Local Board may require that
providers of training services furnish additional criteria and
information as allowed under WIOA sec. 122(b)(3). These requirements
impact the provision of services in the local area involved.
Proposed paragraphs (b)(1) through (4) explain the type of
additional information that the Local Board may require providers to
supply in their application to become eligible. These provisions are
largely unchanged from the WIA regulations. The Local Board may request
that the provider of training services explain how the training program
specifically links to occupations that are in demand within the local
area. The Local Board may also request specific program performance and
cost information particular to a local area where programs are offered
at multiple sites. The Department further explains that Local Boards
may request information from training providers that indicates how
programs are responsive to these local requirements, as provided for in
WIOA sec. 122(b)(3).
Section 680.520 May individuals choose training providers located
outside of the local area?
Proposed Sec. 680.520 explains that an individual may choose a
training provider located outside the local area, and, in some
instances, in other States. States may enter into reciprocity
agreements with other States under which providers of training services
are allowed to accept ITAs provided by another State. Providers of
training services that are located outside the local area may not be
subject to State eligibility procedures if the provider has been
determined eligible by another State with such an agreement. The option
to enter into reciprocity agreements diminishes the burden on States
and providers of training services to be subject to duplicative
procedures and is allowable under WIOA sec. 122(g). This provision also
expands the array of training options available for individuals seeking
training.
Section 680.530 What requirements apply to providers of on-the-job
training, customized training, incumbent worker training, and other
training exceptions?
In proposed Sec. 680.530, the Department explains that providers
of OJT, customized training, incumbent worker training, internships,
paid or unpaid work experience, or transitional employment are not
subject to the eligibility requirements under WIOA
[[Page 20726]]
secs. 122(a)-(f), but are required to provide performance information
established by the Governor. The Department further explains that the
local one-stop operator is required to collect and disseminate
information that identifies these providers as meeting the Governor's
performance criteria. Although these providers are not included on the
State ETPL they are considered to be eligible providers of training
services.
6. Subpart E--Priority and Special Populations
Introduction
The services provided with adult funds can be a pathway to the
middle class for low-income adults, public assistance recipients, and
individuals who are basic skills deficient. The proposed regulations
implement the statutorily-required priority for the use of adult funds.
This subpart contains proposed regulations about how participants from
certain populations are able to access adult and dislocated worker
services and establish priority access to these services. WIOA sec.
134(c)(3)(E) provides that priority must be given to recipients of
public assistance, other low-income individuals, and individuals who
are basic skills deficient. Under WIA, this priority applies only when
adult funds are limited. Under WIOA, however, priority access to
services by members of this group applies automatically. Nonetheless,
WIOA allows one-stop operators to provide individualized career
services to individuals who are not members of these groups, if
determined appropriate by the one-stop operator.
The Department strongly encourages close cooperation between WIOA-
funded programs and other Federal and State sources of assistance for
job seekers. Coordination between WIOA-funded programs and the TANF
program is a crucial element in serving individuals who are on public
assistance. TANF is a required partner in the one-stop delivery system.
Through close cooperation, each program's participants will have access
to a much broader range of services to promote employment retention and
self-sufficiency than if they relied only on the services available
under a single program.
In this subpart, the Department explains how displaced homemakers
may be served with both adult and dislocated worker funds. Under WIOA,
a displaced homemaker qualifies as an ``individual with a barrier to
employment'' (see proposed Sec. 680.320(b) and its discussion above).
WIOA provides a focus on serving ``individuals with a barrier to
employment'' to ensure they have opportunities to enter meaningful
employment; this term is defined in WIOA sec. 3(24). Additionally,
displaced homemakers meet the definition of a ``dislocated worker,'' as
defined in WIOA sec. 3(15)(D). The proposed regulations implement
WIOA's requirements and effectuate its purpose to aid displaced
homemakers, whose work, albeit without a formal connection to the
workforce, is recognized for its value, but who may need WIOA services
to develop further work skills. WIOA also expands the definition of
displaced homemakers to include dependent spouses of the Armed Forces
on active duty to ensure they have access to WIOA title I services.
This subpart ensures that veterans and certain service members have
access to adult and dislocated worker programs. Under WIOA, as was the
case under WIA, veterans receive priority of service in all Department-
funded employment and training programs. The proposed regulations
describe what is meant by ``priority of service.'' The Department has
proposed a regulation consistent with guidance it issued in Training
and Employment Guidance Letter (TEGL) 22-04 that separating service
members meet the eligibility requirements for dislocated worker
activities. This proposed regulation will ensure that service members
will have access to the full array of services available through the
one-stop delivery system.
Section 680.600 What priority must be given to low-income adults and
public assistance recipients and individuals who are basic skills
deficient served with adult funds under title I?
Proposed Sec. 680.600 provides priority access to career services
and training services funded under WIOA sec. 134(c)(2)(A)(xii) and
adult title I. In Sec. 678.430(b), the Department proposes to
categorize these services as individualized career services. WIOA
builds on the priority given under WIA to providing training services
to low-income individuals and individuals receiving public assistance.
Under WIOA, the priority also extends to individuals who are basic
skills deficient.
Proposed Sec. 680.600(a) explains that individualized career
services and training services must be given on a priority basis to
low-income adults, public assistance recipients, and individuals who
are basic skills deficient in the local area under the WIOA adult
program. For adults, the term ``basic skills deficient'' is defined in
WIOA sec. 3(5)(B) and applies when an individual is unable to compute
or solve problems, or read, write, or speak English, at a level
necessary to function on the job, in the individual's family, or in
society. Priority must be given regardless of funding levels.
Proposed Sec. 680.600(b) requires States and local areas to
establish criteria for providing priority to individualized career
services and training services with WIOA adult funds under title I. The
criteria may include other resources and funds for providing career and
training-related services in the local area, as well as the needs of
specific groups in the local area, as well as other factors the local
areas determines appropriate.
Proposed Sec. 680.600(c) clarifies that while priority must be
given under WIOA adult funds to low-income individuals, public
assistance recipients, or individuals who are basic skills deficient
for individualized career services and training services, the Local
Board and Governor may establish a process that also gives priority to
other individuals.
Section 680.610 Does the statutory priority for use of adult funds also
apply to dislocated worker funds?
Proposed Sec. 680.610 clarifies that the statutory priority for
low-income individuals, public assistance recipients, and individuals
who are basic skills deficient only applies to the WIOA adult program
and not the WIOA dislocated worker program.
Section 680.620 How does the Temporary Assistance for Needy Families
program relate to the one-stop delivery system?
Proposed Sec. 680.620 explains how the TANF program relates to the
one-stop delivery system. Cooperation among required partner programs
is vital to build pathways to the middle class for individuals on
public assistance and low-income individuals. Partners, working
together, can ensure the best mix of services for each individual
seeking to enhance their lives and employment.
Under WIOA, TANF is a required partner in the one-stop system,
unless the Governor opts out. TANF provides assistance to needy
families and by coordinating closely with WIOA local areas can ensure
programs and services include the needs of individuals on public
assistance. This section encourages cooperation among the WIOA and TANF
programs to maximize
[[Page 20727]]
services available to participants eligible under both programs.
Section 680.630 How does a displaced homemaker qualify for services
under title I?
Proposed Sec. 680.630 explains displaced homemakers' eligibility
for dislocated worker activities. A displaced homemaker can qualify for
either adult or dislocated worker funds. First, if an individual meets
the definition of a displaced homemaker under WIOA sec. 3(16), the
individual is eligible for dislocated worker career and training
services. Second, the displaced homemaker may be served with title I
adult funds if the individual meets the eligibility requirements for
this program; generally priority in the adult program is given to low-
income individuals, individuals on public assistance, or if they lack
basic work skills. A State may also use reserve funds that target
displaced homemakers in which they would be eligible.
Under WIOA, the definition of a displaced homemaker is expanded to
explicitly include dependent spouses of a member of the Armed Forces on
active duty (as defined in sec. 101(d)(1) of title 10, United States
Code) and whose family income is significantly reduced because of a
deployment, a call or order to active duty, a permanent change in
station, or the service-connected death or disability of the service
member.
Section 680.640 May an individual with a disability whose family does
not meet income eligibility criteria under the Act be eligible for
priority as a low-income adult?
Proposed Sec. 680.640 explains that under WIOA an individual with
a disability whose family does not meet income eligibility criteria
will still qualify for priority as a low-income adult if the individual
meets the low-income criteria in WIOA sec. 3(36). Additionally, the
Department proposes that if an individual with a disability meets the
income eligibility criteria for payments under any Federal, State, or
local public assistance program that individual will also be eligible
for priority as a low-income adult consistent with WIOA sec.
3(36)(A)(i). This includes recipients of SNAP, TANF, and recipients of
the Supplemental Security Income program.
Section 680.650 Do veterans receive priority of service under the
Workforce Innovation and Opportunity Act?
Proposed Sec. 680.650 builds on the Department's efforts to ensure
veterans are entitled to priority of service in all Department-funded
training programs under 38 U.S.C. 4215 and 20 CFR 1010. The proposal
states that veterans must receive priority of service in programs for
which they are eligible. In programs that require income-based
eligibility to receive services, amounts paid while on active duty or
paid by the Department of Veterans Affairs (VA) for VR, disability, or
other related VA programs are not considered as income when determining
low-income status. Generally, this means many separating service
members may qualify for the WIOA adult program because it provides
priority for low-income individuals and military earnings are not to be
considered income for this purpose.
Section 680.660 Are separating service members eligible for dislocated
worker activities under the Workforce Innovation and Opportunity Act?
Proposed Sec. 680.660 explains, consistent with the Department's
long-standing policy, that service members exiting the military qualify
as dislocated workers. Dislocated worker funds under title I can help
separating service members enter or reenter the civilian labor force.
Proposed Sec. 680.660(a) clarifies that a notice of separation, a
DD-214 from the Department of Defense, or other appropriate
documentation that shows a separation or imminent separation from the
Armed Forces qualifies as a notice of termination or layoff required
for the dislocated worker definition.
Proposed Sec. 680.660(b) clarifies that a separating service
member meets the dislocated worker requirements concerning UC.
Proposed Sec. 680.660(c) clarifies that a separating service
member meets the dislocated worker requirement that an individual is
unlikely to return to his or her previous industry or occupation.
7. Subpart F--Work-Based Training
Introduction
Proposed Sec. Sec. 680.700 through 680.850 are proposed
regulations for work-based training under WIOA. The proposed
regulations apply to (OJT) training, customized training, incumbent
worker training, and transitional jobs. The proposed regulations
include specific information about general, contract, and employer
payment requirements. Work-based training is employer-driven with the
goal of unsubsidized employment after participation. Generally, work-
based training involves a commitment by an employer or employers to
fully employ successful participants after they have completed the
program. Registered apprenticeship training is a type of work-based
training that can be funded in the adult and dislocated worker
programs; additionally pre-apprenticeships may be used to provide work
experiences that can help participants obtain the skills needed to be
placed into a registered apprenticeship.
Work-based training can be an effective training strategy that can
provide additional opportunities for participants and employers in both
finding high quality work and in developing a high quality workforce.
Each of these work-based models can be effectively used to target
different job seeker and employer needs. OJT is primarily designed to
provide a participant with the knowledge and skills necessary for the
full performance of the job. Incumbent worker training is designed to
ensure that employees of a company are able to gain the skills
necessary to retain employment and advance within the company or to
provide the skills necessary to avert a layoff. Customized training is
designed to provide local areas with flexibility to ensure that
training meets the unique needs of the job seekers and employers or
groups of employers.
Both training providers and OJT providers must be providing the
highest quality training to participants. OJT contracts must be
continually monitored so that WIOA funds provided through OJT contracts
are providing participants with successful employment. It is important
that OJTs have a strong ability to provide participants with in-demand
skills with opportunities for career advancement and employers with a
skilled workforce.
Under WIA, States could apply for a waiver to increase
reimbursement amounts of the OJT wage rate. Under WIOA, the statute
enables a Governor or Local Board to increase this rate to 75 percent
without a waiver. This change is designed to give States and Local
Boards additional flexibility in developing OJT opportunities that work
best with the participating employers and in the local economy.
WIOA also explicitly allows for incumbent worker training at the
local level. WIOA introduces incumbent worker training as an allowable
type of training for a local area to provide. Under WIA, States could
use their statewide activities funds to conduct incumbent worker
training, and local areas could conduct incumbent worker training with
an approved waiver. Incumbent worker training is designed to either
assist workers in obtaining the skills necessary to retain employment
or to avert layoffs and must increase both a participant's and a
company's
[[Page 20728]]
competitiveness. Local areas may use up to 20 percent of their local
adult and dislocated worker funds for incumbent worker training. In
this proposed regulation, the Department seeks to ensure that incumbent
worker training is targeted to improving the skills and competitiveness
of the participant and increasing the competitiveness of the employer.
The training should, wherever possible, allow the participant to gain
industry-recognized training experience, and ultimately should lead to
an increase in wages. To receive incumbent worker funding under WIOA,
an incumbent worker must have an employer-employee relationship, and an
established employment history, with the employer. Incumbent workers
are employed at the time of their participation, and the contract funds
are paid to the employer for training provided to the incumbent worker
either to avert a lay-off or otherwise retain employment. An ideal
incumbent worker training would be one where a participant acquires new
skills allowing him or her to move into a higher skilled and higher
paid job within the company, thus allowing the company to hire a job
seeker to backfill the incumbent worker's position. The Departments are
seeking comment on the best way to structure these arrangements to
maximize the likelihood that this ideal outcome occurs.
WIOA also discusses transitional jobs as a way for adults and
dislocated workers with barriers to employment who are experiencing
chronic unemployment or have an inconsistent work history to develop a
work history and basic work skills essential to keeping a job.
Transitional jobs are time-limited, subsidized employment in the
private, non-profit, or public sectors.
Section 680.700 What are the requirements for on-the-job training?
OJT is a type of training that is provided by an employer to a
participant. During the training, the participant is engaged in
productive work in a job for which he or she is paid, and the training
provides the knowledge or skills essential to the full and adequate
performance of the job. Studies over the past 3 decades have found that
in the United States formal OJT programs have positive employment and
earnings outcomes.\2\ OJT is a critical tool that can help jobseekers
enter into successful employment.
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\2\ Kleinman, Liu, Mastri, Reed, Reed, Sattar, Ziegler, An
Effectiveness Assessment and Cost-Benefit Analysis of Registered
Apprenticeship in 10 States, Mathematica Policy Research, July 2012,
Prepared for the U.S. Department of Labor, Employment and Training
Administration.
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Proposed Sec. 680.700(a) explains that OJT may be provided under
contract with an employer in the public, private non-profit, or private
sectors. Under WIOA, the reimbursement level may be raised up to 75
percent of the wage rate, in contrast to 50 percent of the wage rate
under WIA. Typically, the OJT contract provides reimbursement to the
employer for a portion of the wage rate of the participant for the
extraordinary costs of providing training and supervision related to
the training.
Proposed Sec. 680.700(b) states that contracts must not be entered
into with an employer that received payments under previous contracts
under WIOA or WIA if the employer has exhibited a pattern of failing to
provide OJT participants with continued long-term employment as regular
employees with wages, employment benefits, or working conditions at the
same level as other employees performing the same type of work for the
same length of time.
Proposed Sec. 680.700(c) continues the requirement under WIA that
OJT contracts must be limited in duration to the time necessary for a
participant to become proficient in the occupation for which they are
receiving the OJT training. When determining the length of the
contract, the Governor or Local Boards must take into account the skill
requirements of the occupation, the academic and occupational skill
level of the participant, prior work experience, and the participant's
individual employment plan.
Section 680.710 What are the requirements for on-the-job training
contracts for employed workers?
Proposed Sec. 680.710 is unchanged from the WIA regulations. The
proposal identifies the requirements for OJT contracts used to train
employed workers.
Section 680.720 What conditions govern on-the-job training payments to
employers?
Proposed Sec. 680.720 identifies the conditions that govern OJT
payment to employers. OJT payments are to be compensation to the
employer for the extraordinary costs associated with training
participants. The Department does not seek to define through this
regulation what ``extraordinary costs'' are, and is seeking public
comment on this issue. The Department generally believes extraordinary
costs are those costs the employer has in training participants who may
not yet have the knowledge or skills to obtain the job through an
employer's normal recruitment process.
Section 680.730 Under what conditions may a Governor or Local Board
raise the on-the-job training reimbursement rate up to 75 percent of
the wage rate?
Proposed Sec. 680.730(a) identifies the factors that a Governor or
Local Board must consider and document in determining whether to raise
the reimbursement rate for OJT contracts up to 75 percent of the wage
rate.
Proposed Sec. 680.730(1) allows for the wage rate to be up to 75
percent after taking into consideration, among other factors, the
characteristics of the participants (WIOA sec. 134(c)(3)(H)(ii)(I)),
including whether the OJT contract is leading to employment for
individuals with barriers to employment. Proposed Sec. 680.730(2)
states that the size of the employer is a factor that must be
considered; proposed Sec. 680.730(3) states that the quality of
employer-provided training and advancement opportunities is a factor
that must be considered. Proposed Sec. 680.730(4) states that the
Governor or Local Board may consider other factors in determining
whether it is appropriate to raise the reimbursement rate. Such other
factors may include the number of employees participating, wage and
benefit levels of employees both before and after OJT completion, and
relation of training to the competitiveness of the participant.
Proposed Sec. 680.730(b) requires that the Governor or Local Board
must document the factors that they considered when deciding to
increase the wage reimbursement levels above 50 percent up to 75
percent. The Department is seeking comments from the public on how the
relation of training to the competitiveness of the participant must be
analyzed when implementing this provision.
Section 680.740 How can on-the-job training funds be used to support
placing participants into a registered apprenticeship program?
Proposed Sec. 680.740(a) clarifies that an OJT contract may be
made with a registered apprenticeship program for training
participants. OJT contracts are made with the employer, and registered
apprenticeships generally involve both classroom and on-the-job
instruction. The OJT contract may be made to support the OJT portion of
the registered apprenticeship program. The Department also notes that
registered apprenticeship programs vary in length, so the OJT may
support the entire duration of training while other means
[[Page 20729]]
may support the beginning of the registered apprenticeship training.
The Department is seeking comments on what an appropriate maximum
amount of time would be for OJT funds to be used to support
participants in registered apprenticeships.
Proposed paragraph (b) clarifies that in some instances a
registered apprenticeship is operated by the employer and in others it
is operated by a training provider with a direct connection to an
employer or group of employers. If a participant is in a registered
apprenticeship and employed as part of that arrangement, then the OJT
must be treated as other OJTs provided for employed workers as
described in Sec. 680.710. If a participant is in a registered
apprenticeship but is unemployed, the OJT funds may be provided in same
manner as other OJTs as described in Sec. 680.700.
Section 680.750 Can Individual Training Account and on-the-job training
funds be combined to support placing participants into a registered
apprenticeship program?
Local areas may use an ITA to support classroom portions of a
registered apprenticeship program and OJT funds may be used to support
the on-the-job portions of the registered apprenticeship program. This
is to ensure local areas have maximum flexibility in serving
participants and supporting their placement into registered
apprenticeship programs.
Section 680.760 What is customized training?
Proposed Sec. 680.760 explains that customized training is to be
used to meet the special requirements of an employer or group of
employers, conducted with a commitment by the employer to employ all
individuals upon successful completion of training. The employer must
pay for a significant share of the cost of the training.
Proposed Sec. 680.760(a) and (b) are unchanged from WIA. In
paragraph (c) under WIA employers were required to pay for not less
than 50 percent of the cost of the training, WIOA removes the precise
figure and says that the employer must pay for a ``significant cost of
the training.''
Section 680.770 What are the requirements for customized training for
employed workers?
Proposed Sec. 680.770 identifies the eligibility requirements for
employed workers to receive customized training. There may be instances
where a worker is employed but then receives customized training under
contract between the local area and the employer. In order for the
employed worker to qualify, the employee must not be earning a self-
sufficient wage as determined by Local Board policy, the requirements
of customized training in proposed Sec. 680.760 must be met, and the
training must incorporate new technologies, processes, or procedures;
skills upgrades; workplace literacy; or other appropriate purposes, as
identified by the Local Board. Proposed Sec. 680.770 is unchanged from
WIA. The Department is interested in comments that discuss how to
distinguish customized training from OJT. Should they focus on
different service populations, different training strategies, or
different types of jobs?
Section 680.780 Who is an ``incumbent worker'' for purposes of
statewide and local employment and training activities?
Proposed Sec. 680.780 is designed to update the definition of an
incumbent worker from WIA. An incumbent worker is employed with the
company when the incumbent worker training starts. The Department is
seeking comment on the appropriate amount of time an employee must have
worked for the employer before being eligible for incumbent worker
training. The Department is proposing a minimum of 6 months, but is
seeking substantive comments on this proposal. The Department is also
seeking comments on how incumbent worker training should increase the
competitiveness of the employee or employer for the purposes of
identifying high-quality incumbent worker opportunities.
Section 680.790 What is incumbent worker training?
Proposed Sec. 680.790 discusses the purposes served by and the
conditions relating to incumbent worker training as prescribed by WIOA
sec. 134(d)(4)(B).
Incumbent worker training is designed to meet the special
requirements of an employer (including a group of employers) to retain
a skilled workforce or avert the need to lay off employees by assisting
the workers in obtaining the skills necessary to retain employment. The
employer or group of employers must pay for a portion of the cost of
providing the training to incumbent workers.
Section 680.800 What funds may be used for incumbent worker training?
Proposed Sec. 680.800 provides that under WIOA, local areas may
use up to 20 percent of their combined total of adult and dislocated
worker allotments for incumbent worker training. States may use their
statewide activities funds and Rapid Response funds for statewide
incumbent worker training activities.
Section 680.810 What criteria must be taken into account for an
employer to be eligible to receive local incumbent worker funds?
Proposed Sec. 680.810 provides the criteria a Local Board must use
when deciding on using funds for incumbent worker training with an
employer. Paragraphs (a) through (c) address participant
characteristics, the relationship of the training to the
competitiveness of the participant and employer, and other factors that
the Local Board determines appropriate. These factors may include the
number of employees in training, wages and benefits (including post-
training increases), and the existence of other training opportunities
provided by the employer.
Section 680.820 Are there cost sharing requirements for local area
incumbent worker training?
Proposed Sec. 680.820 clarifies that there are cost sharing
requirements for employers participating in incumbent worker training
to pay for the non-Federal share of the cost of providing training to
incumbent workers of the employers.
Section 680.830 What is a transitional job?
Proposed Sec. 680.830 explains that transitional jobs are time-
limited work experiences that are subsidized for individuals with
barriers to employment who are chronically unemployed or have an
inconsistent work history. These jobs may be in the public, private, or
non-profit sectors. Transitional jobs can be effective solutions for
individuals to gain necessary work experience that they would otherwise
not be able to get through training or an OJT contract. The goal is to
establish a work history for the individual, demonstrate work success,
and develop skills that lead to entry into unsubsidized employment. The
difference between a transitional job and an OJT contract is that in a
transitional job there is no expectation that the individual will
continue his or her hire with the employer after the work experience is
complete.
Section 680.840 What funds may be used for transitional jobs?
Proposed Sec. 680.840 states that local areas may reserve up to 10
percent of their combined total of adult and dislocated worker
allotments for transitional jobs and must be provided
[[Page 20730]]
along with comprehensive career services and supportive services.
Section 680.850 May funds provided to employers for work-based training
be used to assist, promote, or deter union organizing?
Proposed Sec. 680.850 clarifies that there is an explicit
prohibition on the use of work-based training funds which includes OJT,
customized training, incumbent worker training, transitional jobs or
registered apprenticeship for assisting, promoting, or deterring union
organizing activities.
8. Subpart G--Supportive Services
Introduction
This section defines the scope and purpose of supportive services
and the requirements governing their disbursement. A key principle in
WIOA is to provide local areas with the authority to make policy and
administrative decisions and the flexibility to tailor the workforce
system to the needs of the local community. To ensure maximum
flexibility, the regulations provide local areas the discretion to
provide the supportive services they deem appropriate subject to the
limited conditions prescribed by WIOA. Local Boards must develop
policies and procedures to ensure coordination with other entities to
ensure non-duplication of resources and services and to establish
limits on the amount and duration of such services. Local Boards are
encouraged to develop policies and procedures that ensure that
supportive services are WIOA-funded only when these services are not
available through other agencies and that the services are necessary
for the individual to participate in title I activities. Supportive
services may be made available to anyone participating in title I
activities.
Needs-related payments are designed to provide a participant with
resources for the purpose of enabling them to participate in training
services. The Department recognizes that many individuals in need of
training services may not have the resources available to participate
in the training. Needs-related payments can help individuals meet their
non-training expenses and help them to complete training successfully.
A participant must be enrolled in a training program in order to
receive needs-related payments.
Section 680.900 What are supportive services for adults and dislocated
workers?
Proposed Sec. 680.900 explains that supportive services are
services, such as transportation, child care, dependent care, housing,
and needs-related payments, that are necessary to enable an individual
to participate in career and training services. Referrals to supportive
services are one of the career services that must be made available to
adults and dislocated workers through the one-stop delivery system. The
proposed section also provides that Local Boards, in consultation with
the one-stop partners and other community service providers, must
develop a policy on supportive services that ensures resource and
service coordination in the local area. The policy must address
procedures for referral to such services, including how such services
will be funded when they are not otherwise available from other
sources. When developing this policy, the Department encourages Local
Boards to consider incorporating local legal aid services. Legal aid is
able to reduce barriers to employment and establish employment
eligibility such as by helping secure a driver's license, expunging
criminal records, and addressing debts or credit reporting issues.
In the context of a coordinated one-stop delivery system envisioned
by WIOA, the one-stop needs to take into consideration all of the
available supportive service resources so that participants may receive
the best supportive services available and to ensure that funds are
spent to maximize participants' opportunity to participate in career
and training services.
Section 680.910 When may supportive services be provided to
participants?
Proposed Sec. 680.910 states that supportive services may only be
provided to participants who are in career or training services, unable
to obtain supportive services through other programs providing
supportive services, and that they must be provided in a manner
necessary to enable individuals to participate in career or training
services. The proposed rule removes references to ``core'' and
``intensive'' services, terms now characterized as ``career services''
under WIOA.
Section 680.920 Are there limits on the amounts or duration of funds
for supportive services?
Proposed Sec. 680.920 provides that Local Boards may establish
limits on providing supportive services or allow the one-stop operator
to establish limits, including caps on the amount of funding and length
of time for supportive services to be made available. The rule text
makes no changes from WIA.
Section 680.930 What are needs-related payments?
Proposed Sec. 680.930 defines needs-related payments as financial
assistance to a participant for the purpose of enabling the individual
to participate in training. Needs-related payments are a type of
supportive service that provides direct financial payments to a
participant, and unlike other supportive services, the participant must
be enrolled in training to receive needs-related payments. The rule
text makes no substantive changes from WIA; it provides updated
citations to WIOA.
Section 680.940 What are the eligibility requirements for adults to
receive needs-related payments?
Proposed Sec. 680.940 clarifies that for an adult to receive a
needs-related payment he or she must be unemployed, not qualify for or
have ceased to qualify for UC, and be enrolled in a training program.
Section 680.950 What are the eligibility requirements for dislocated
workers to receive needs-related payments?
Proposed Sec. 680.950 provides that dislocated workers may receive
needs-related payments if they are unemployed, ceased to qualify for UC
or trade readjustment allowance under Trade Adjustment Assistance
(TAA), and be enrolled in training by certain deadlines. It makes one
clarification from WIA in that it provides that the dislocated worker
must be enrolled in training.
Section 680.960 May needs-related payments be paid while a participant
is waiting to start training classes?
Proposed Sec. 680.960 states that payments may be provided if the
participant has been accepted into a program that will begin within 30
calendar days.
Section 680.970 How is the level of needs-related payments determined?
Proposed Sec. 680.970(a) explains that the needs-related payment
level for adults must be established by the Local Board. The Department
recognizes the costs of different labor markets and believes that
payment levels are best set locally to ensure the needs-related
payments meet their purpose of enabling participants to receive
training services.
Proposed Sec. 680.970(b) explains how needs-related payments for
dislocated workers are calculated. If the participant is a dislocated
worker and has established eligibility for UC, the needs-related
payment must not exceed the
[[Page 20731]]
higher of the weekly level of UC the participant receives or an amount
equal to the poverty level for an equivalent time period. If the
participant qualifies for dislocated worker services, but not for UC as
a result of the qualifying layoff, the needs-related payment must not
exceed the higher of the weekly level of UC the participant would
receive if she or he had qualified, if the weekly benefit amount that
the participant would have received can be determined, or an amount
equal to the poverty level for an equivalent time period. Local Boards
must adopt policies to adjust the weekly payment level if there are
changes in total family income.
E. Part 681--Youth Activities Under Title I of the Workforce Innovation
and Opportunity Act
1. Introduction
Under WIOA, Federal, State, and local partnerships that put the
youths' interests first will help the nation's disconnected youth to
succeed. The common performance measures across WIOA core programs,
adult and youth programs under WIOA title I, and Adult Education and
Vocational Rehabilitation programs under WIOA titles II and IV provide
a mechanism to support youth service alignment. WIOA envisions the
Department's youth programs, including Job Corps, YouthBuild, and the
youth formula-funded program, coordinating to support systems alignment
and service delivery for youth. Local and State plans will articulate
this vision of youth workforce investment activities and help ensure a
long-term supply of skilled workers and leaders in local communities.
WIOA affirms the Department's commitment to providing high quality
services for youth and young adults beginning with career exploration
and guidance, continued support for educational attainment,
opportunities for skills training in in-demand industries and
occupations, and culminating with a good job along a career pathway or
enrollment in post-secondary education. All of the Department's youth-
serving programs continue to promote evidence-based strategies that
also meet the highest levels of performance, accountability, and
quality in preparing young people for the workforce. The Department's
focus on performance and accountability is emphasized through the
implementation of the new primary indicators of performance for
eligible youth across programs and through their use of the primary
indicators for program management and decision-making.
WIOA maintains WIA's focus on OSY in Job Corps and YouthBuild,
while greatly increasing the focus on OSY in the WIOA youth formula-
funded program. The shift in policy to focus on those youth most in
need is based on the current state of youth employment. With an
estimated 6 million 16-24 year olds in our country not employed or in
school, WIOA youth programs provide a continuum of services to help
these young people navigate between the educational and workforce
systems. The Department, working with its Education and Health and
Human Services partners, plans to provide intensive technical
assistance around meeting the needs of this population.
WIOA calls for customer-focused services based on the needs of the
individual participant. This includes the creation of career pathways
for youth in all title I youth programs, including a connection to
career pathways as part of a youth's individual service strategy in the
youth formula-funded program. In addition, many services under title I
youth programs are based on the individual needs of participants. WIOA
also calls for this population to be intimately involved in the design
and implementation of services so the youth voice is represented and
their needs are being met.
This integrated vision also applies to the workforce system's other
shared customer-employers. By repositioning youth as an asset to
employers with a need for skilled workers, the value of employers
engaging the youth workforce system and programs is enhanced. Employers
are critical partners that provide meaningful growth opportunities for
young people through work experiences that give them the opportunity to
learn and apply skills in real-world setting and ultimately jobs that
young people are ready to fill given the opportunity.
The Department recognizes that much of this alignment and
integration is already happening in local areas and regions across the
country. WIOA aims to build upon these existing efforts through an
emphasis on system alignment, an increased focus on serving OSY and
those most in need, an emphasis on the needs of individual
participants, and the prioritization of connections with employers,
especially through work experience opportunities. The Department
recognizes that WIOA also includes major shifts in approach and is
committed to working with the youth workforce investment system to
partner in the implementation of these changes through guidance and
technical assistance.
WIOA supersedes the youth formula-funded program under title I,
subtitle B, chapter 2 Youth Workforce Investment Activities. It further
aligns the WIOA youth program with the other ETA youth training
programs, including YouthBuild and Job Corps, as well as with titles II
and IV of WIOA by requiring common performance measures across all core
programs.
WIOA includes a number of significant changes for the youth
formula-funded program. The biggest change under WIOA is the shift to
focus resources primarily on OSY. WIOA increases the minimum percentage
of funds required to be spent on OSY from 30 percent to 75 percent.
This intentional shift refocuses the program to serve OSY during a time
when large numbers of youth and young adults are out of school and not
connected to the labor force. While the Department recognizes this
transition to serve more OSY will take time to implement, it is
critical that States and local areas begin to incorporate strategies
for recruiting and serving more OSY.
These strategies must incorporate strong framework services which
must include intake, objective assessments, and the development of
individual service strategy, case management, supportive services, and
follow-up services. They must also consider how to ensure that American
Job Center staff have the requisite knowledge and sensitivity to the
needs of OSY to effectively serve them. The Department plans to release
subsequent guidance on these matters but also welcomes comments at this
time on preferred approaches.
In addition, WIOA includes a major focus on providing youth with
work experience opportunities. WIOA prioritizes work experiences with
the requirement that local areas must spend a minimum of 20 percent of
local area funds on work experience. Under WIOA, work experience
becomes the most important of the program elements. WIOA also
introduces five new program elements: Financial literacy;
entrepreneurial skills training; services that provide labor market and
employment information about in-demand industry sectors or occupations
available in the local areas; activities that help youth prepare for
and transition to post-secondary education and training; and education
offered concurrently with and in the same context as workforce
preparation activities and training for a specific occupation or
occupational cluster.
[[Page 20732]]
WIOA enhances the youth program design through an increased
emphasis on individual participant needs by adding new components to
the objective assessment and individual service strategy. WIOA
incorporates career pathways as part of both the objective assessment
and development of the individual service strategy. In addition, the
individual service strategy must directly link to one or more of the
performance indicators. The program design under WIOA also includes
effective connections to employers, including small employers, in in-
demand industry sectors and occupations.
2. Subpart A--Standing Youth Committees
Section 681.100 What is a standing youth committee?
This proposed section describes a standing youth committee. WIOA
eliminates the requirement for Local Boards to establish a youth
council; however, the Local Board may choose to establish, ``a standing
committee to provide information and to assist with planning,
operational, and other issues relating to the provision of services to
youth, which must include CBOs with a demonstrated record of success in
serving eligible youth'' (WIOA sec. 107(b)(4)(A)(ii)). The Department
recognizes the difficulty under WIA in some local areas in maintaining
the required youth council partnerships. The Department encourages
Local Boards to consider establishing standing youth committees, taking
advantage of the flexibility under WIOA to design standing youth
committee membership to meet the local area's needs. Additionally, the
law further clarifies that an existing youth council may be designated
as the youth standing committee if they are fulfilling the requirements
of a standing committee which means that they have members of the Local
Board who have the appropriate experience and expertise in youth
educational and workforce development (WIOA sec. 107(b)(4)(C)). The
Department encourages Local Boards to designate high performing youth
councils as standing youth committees if appropriate. Local Boards are
responsible for the oversight of youth programs. Under WIA, youth
councils were mandated to fulfill this function for the Board. Local
Boards now may choose to fulfill the oversight responsibility, or have
the discretion to delegate this function to a standing youth committee.
If Local Boards choose not to delegate this function to a standing
youth committee, they are responsible for conducting oversight of youth
workforce investment activities under WIOA sec. 129(c).
Section 681.110 Who is included on a standing youth committee?
This proposed section describes the members of a standing youth
committee if the Local Board chooses to establish such a committee
based on WIOA secs. 107(b)(4)(A)(ii) and 129(c)(3)(C). The members must
include a member of the Local Board, who must chair the committee,
members of CBOs with a demonstrated record of success in serving
eligible youth and other individuals with appropriate expertise and
experience who are not members of the Local Board. The committee may
also include parents, participants, and youth. A Local Board may
designate an existing entity such as an effective youth council as the
standing youth committee if its membership meets the WIOA membership
requirements.
Section 681.120 What does a standing youth committee do?
This proposed section describes the duties of a standing youth
committee if the Local Board chooses to establish such a committee
based on WIOA secs.107(b)(4)(A)(ii) and 129(c)(3)(C). The standing
committee's main function is to inform and assist the Local Board in
developing and overseeing a comprehensive youth program. The details of
its responsibilities are assigned by the Local Board.
3. Subpart B--Eligibility for Youth Services
Section 681.200 Who is eligible for youth services?
This proposed section based on WIOA sec. 3(18) describes
eligibility for the WIOA title I youth formula-funded program which
includes two groups: In-school youth (ISY) and OSY and establishes
specific criteria for each group. The eligible WIOA title I youth
population represents youth who face challenges and barriers to success
in the labor market.
Section 681.210 Who is an ``out-of-school youth''?
This proposed section describes how one meets the eligibility for
an OSY for purposes of the title I WIOA youth program. OSY youth must
not attend any school, be between the ages of 16 and 24 at time of
enrollment, and meet one or more of a list of eight criteria. With one
exception, the WIOA criteria are generally the same as those under WIA.
The section clarifies that age is based on time of enrollment and as
long as the individual meets the age eligibility at time of enrollment
they can continue to receive WIOA youth services beyond the age of 24.
Unlike under WIA or under the definition of an ISY, low income is not a
requirement to meet eligibility for most categories of OSY under WIOA.
However, low income is now a part of the criteria for youth who need
additional assistance to enter or complete an educational program or to
secure or hold employment. Also, WIOA has made youth with a disability
a separate eligibility criterion.
In addition, WIOA includes a new criterion: A youth who is within
the age of compulsory school attendance, but has not attended school
for at least the most recent school year calendar quarter. Because
school districts differ in what they use for school year quarters, the
time period of a school year quarter is based on how a local school
district defines its school year quarters. WIOA lists this criterion as
the second on the list of eight that satisfy the third of the three
primary requirements.
Section 681.220 Who is an ``in-school youth''?
This proposed section describes how one meets the eligibility for
an ISY for purposes of the WIOA title I youth program. ISY youth must
be attending school, including secondary or post-secondary school, be
between the ages of 14 and 21 at time of enrollment, be low-income, and
meet one or more of a list of seven criteria. These are essentially the
same criteria as under WIA but the disability criterion has been
separated from the ``needs additional assistance'' criterion. The
section clarifies that age is based on time of enrollment and as long
as the individual meets the age eligibility at time of enrollment they
can continue to receive WIOA youth services beyond the age of 21. WIOA
includes a youth as low-income if he or she receives or is eligible to
receive a free or reduced price lunch under the Richard B. Russell
National School Lunch Act (42 U.S.C. 1751 et seq.).
Section 681.230 What does ``school'' refer to in the ``not attending or
attending any school'' in the out-of-school and in-school definitions?
The term school refers to both secondary and post-secondary school
as defined by the applicable State law for secondary and post-secondary
institutions. This proposed section provides that for purposes of title
I of WIOA, the Department does not consider providers of adult
education under title II of WIOA, YouthBuild
[[Page 20733]]
programs, or Job Corps programs as schools. Therefore, if the only
``school'' the youth attends is adult education provided under title II
of WIOA, YouthBuild, or Job Corps, the Department will consider the
individual an OSY youth for purposes of title I of WIOA youth program
eligibility.
WIOA emphasizes the importance of coordination among Federally-
funded employment and training programs, including those authorized
under titles I and II. Many disconnected youth age 16 to 24 meet
eligibility requirements for both WIOA title I youth activities and
WIOA title II adult education. Co-enrollment between these two programs
can be very beneficial to disconnected youth as they can receive work
experience and occupational skills through title I funding and literacy
skills through title II funding. Because the eligibility for title II
is similar to that for an OSY under title I, an individual who is not
enrolled or required to be enrolled in secondary school under State
law, it is consistent to consider such youth already enrolled in title
II as an OSY for purposes of title I WIOA youth eligibility.
Section 681.240 When do local youth programs verify dropout status,
particularly for youth attending alternative schools?
This proposed section provides that dropout status is determined at
the time of enrollment for eligibility as an OSY and that once a youth
is enrolled as an OSY, that status continues, for purposes of the 75
percent OSY enrollment requirement, for the duration of the youth's
enrollment, even if the youth later returns to a school. Because WIOA
does not define the term alternative school, States must develop a
definition. The Department advises States to define alternative school
consistent with their State education agency alternative school
definition. As of September 2014, 43 States and the District of
Columbia have formal definitions of alternative education. The intent
of WIOA is to serve more OSY who are disconnected from school and work,
while continuing to develop strategies and provide services to ISY in
collaboration with community partners.
Section 681.250 Who does the low-income eligibility requirement apply
to?
This proposed section discusses the low-income eligibility criteria
for OSY and ISY. For OSY, only those youth who are the recipient of a
secondary school diploma or its recognized equivalent and are either
basic skills deficient or an English language learner and youth who
require additional assistance to enter or complete an educational
program or to secure or hold employment must be low-income. For OSY who
are subject to the justice system, homeless, pregnant or parenting, or
have a disability, income eligibility documentation is not required by
statute. All ISY must be low-income. Under WIOA, there are
circumstances when local areas will find documenting low income for
youth formula program eligibility less burdensome than it was under the
WIA youth program. For example, for ISY a local program can use
eligibility for free or reduced price lunch as low-income
documentation. For all youth, those living in a high-poverty area are
considered low-income. The section also sets out the exception to the
low-income requirement that up to 5 percent of youth who meet all the
other eligibility requirements need not be low-income. The 5 percent is
calculated based on all youth served in the WIOA local youth program in
a given PY.
Section 681.260 How does the Department define ``high poverty area''
for the purposes of the special rule for low-income youth in Workforce
Innovation and Opportunity Act?
WIOA contains a new provision that allows for youth living in a
high-poverty area to automatically meet the low-income criterion that
is one of the eligibility criteria for ISY and for some OSY. In order
to maintain consistency across the country, the Department proposes
that a high-poverty area be defined as a Census tract; a set of
contiguous Census tracts; Indian Reservation, tribal land, or Native
Alaskan Village; or a county that has a poverty rate of at least 30
percent as set every 5 years using American Community Survey 5-Year
data. While there is no standard definition for the term ``high-poverty
area'' in Federal programs, the Census Bureau uses two similar
concepts. One is ``poverty area,'' that is an area with a poverty rate
of at least 20 percent and the other is ``area with concentrated
poverty,'' that is an area with a poverty rate of at least 40 percent.
The term high-poverty area implies an area that has more poverty than a
``poverty area'' but not as much poverty as an ``area with concentrated
poverty.'' In addition, current Department competitive grant programs
for ex-offenders define high poverty areas as communities with poverty
rates of at least 30 percent. The Department is seeking comments on
whether the poverty thresholds the Department is proposing are the most
appropriate levels for youth living in a high poverty area.
Section 681.270 May a local program use eligibility for free or reduced
price lunches under the National School Lunch Program as a substitute
for the income eligibility criteria under title I of the Workforce
Innovation and Opportunity Act?
This proposed section describes a change from WIA in which a local
program can use eligibility for free or reduced price lunch under the
Richard B. Russell National School Lunch Act as one of the factors to
determine whether a participant meets the low-income criteria for
eligibility for the WIOA youth program.
Section 681.280 Is a youth with a disability eligible for youth
services under the Act if their family income exceeds the income
eligibility criteria?
This proposed section reiterates the WIOA provision that, for an
individual with a disability, income level for eligibility purposes is
based on his/her own income rather than his/her family's income.
Section 681.290 How does the Department define the ``basic skills
deficient'' criterion in this part?
This proposed section reiterates the basic skills deficient
criterion that is part of the eligibility criteria for both OSY and
ISY, for purposes of title I of WIOA. For the second part of the
definition, which reads ``a youth who is unable to compute or solve
problems, or read, write, or speak English at a level necessary to
function on the job, in the individual's family, or in society,'' the
State and/or Local Board must further define how the State or Local
Board will determine if a youth is unable to demonstrate these skills
well enough to function on the job, in their family, or in society as
part of its respective State or local plan. The section also provides
that local programs must use valid and reliable assessment instruments
and provide reasonable accommodations to youth with disabilities in the
assessment process in making this determination.
Section 681.300 How does the Department define the ``requires
additional assistance to complete an educational program, or to secure
and hold employment'' criterion in this part?
This proposed section allows States and/or local areas to define
the ``requires additional assistance . . .'' criterion that is part of
the OSY and ISY eligibility. It clarifies that if this criterion is not
defined at the State level and a local area uses this criterion in
their OSY or ISY eligibility, the local
[[Page 20734]]
area must define this criterion in their local plan.
Section 681.310 Must youth participants enroll to participate in the
youth program?
This proposed section clarifies that there is no self-service
concept for the WIOA youth program and every individual receiving
services under WIOA youth must meet ISY or OSY eligibility criteria and
formally enroll in the program. It defines enrollment as the collection
of information to support an eligibility determination and
participation in any one of the 14 program elements. Under WIA the
Department received many questions about the point in time that a youth
became enrolled in the program. The Department hopes the proposed
addition of connecting enrollment to receipt of a program element
clarifies the moment at which enrollment occurs. The reference to EO
data in the corresponding section under WIA was dropped because all
rules related to data collection are covered in Sec. 677 on
performance management.
4. Subpart C--Youth Program Design, Elements, and Parameters
Section 681.400 What is the process used to select eligible youth
providers?
WIA regulations did not address the process for identifying and
selecting eligible youth providers required in WIA sec. 123. The
Department has received numerous inquiries asking for clarification on
the competitive selection of youth providers and which services must be
provided by entities identified in accordance with WIA sec. 123. This
proposed regulation clarifies which youth activities may be conducted
by the local grant recipient and which services must be provided by
entities identified in accordance with WIOA sec. 123. Consistent with
Sec. 664.405(a)(4), the competitive selection requirement in WIOA sec.
123 does not apply to framework services if the grant recipient/fiscal
agent provides these services. The Department allows this because in
some cases the grant recipient/fiscal agent may be best positioned to
provide such services. For example, the grant recipient/fiscal agent
that provides framework services can ensure continuity of WIOA youth
programming as youth service providers change.
Section 681.410 Does the requirement that a State and local area expend
at least 75 percent of youth funds to provide services to out-of-school
youth apply to all youth funds?
This proposed section describes the new minimum expenditure
requirement under WIOA that States and local areas must expend a
minimum of 75 percent of youth funds on OSY. Under WIA, local areas
were required to spend at least 30 percent of funds to assist eligible
OSY. This represents a significant shift in the focus of the WIOA youth
program and the Department recognizes such a shift will require
additional technical assistance and guidance, including assistance to
other youth-serving programs. This section also describes that the
minimum 75 percent OSY expenditure applies to both local area funds and
statewide youth activities funds reserved by the Governor. However,
only those statewide funds spent on direct services to youth are
subject to the OSY expenditure requirement. Funds spent on statewide
youth activities that do not provide direct services to youth, such as
most of the required statewide youth activities listed in WIOA sec.
129(b)(1), are not subject to the OSY expenditure requirement. In
addition, local area administrative costs are not subject to the 75
percent OSY minimum expenditure. The OSY expenditure rate is calculated
for statewide funds after subtracting out funds that are not spent on
direct services to youth. The OSY expenditure rate is calculated for
local area funds after subtracting the funds spent on administrative
costs. For example, if a local area receives $1 million and spends
$100,000 on administrative costs, the remaining $900,000 is subject to
the OSY expenditure rate. In this example, the local area would be
required to spend at least $675,000 (75 percent) of the $900,000 on
OSY.
This section also clarifies the guidelines by which a State that
receives a minimum allotment under WIOA sec. 127(b)(1) or under WIOA
sec. 132(b)(1) may request an exception to decrease the expenditure
percentage to not less than 50 percent. The OSY exception language at
WIOA sec. 129(a)(4)(B) references sec. 127(b)(1)(C)(iv) and sec.
132(b)(1)(B)(iv), which includes States that receive 90 percent of the
allotment percentage for the preceding year under the youth or adult
formula programs (WIOA secs. 127(b)(1)(C)(iv)(I) and
132(b)(1)(B)(iv)(I)) and States that receive the small State minimum
allotment under either program (WIOA secs. 127(b)(1)(C)(iv)(II) and
132(b)(1)(B)(iv)(II)). Under WIA this exception was only available to
States receiving the small State minimum allotment, and no State
submitted a request for the exception. The Department proposes to limit
the approval of requests described in WIOA sec. 129(a)(4)(B) to only
those States that receive the small State minimum allotment under WIOA
secs. 127(b)(1)(C)(iv)(II) and 132(b)(1)(B)(iv)(II). Thus, requests to
decrease the percentage of funds to be used to provide activities to
OSY will not be granted to States based on their having received 90
percent of the allotment percentage for the preceding year. When the
Secretary receives such a request from a State based on having received
90 percent of the allotment percentage for the preceding year, the
request will be denied without the Secretary exercising further
discretion.
While the list of States receiving the small State minimum
allotment is generally consistent, there is an almost complete yearly
turnover of the States receiving the 90 percent minimum allotment.
Given this continuous turnover, approving a request from these States
for an exception to the 75 percent expenditure requirement would cause
significant disruption in the operation of local youth programs. In
particular, States and local areas would be unable to develop and
implement long-term service delivery strategies and plans and would be
unable to establish the appropriate infrastructure necessary to meet
the 75 percent expenditure requirement. These disruptions would
adversely affect the quality of services that could be delivered to
youth program participants, particularly OSY, thereby undermining one
of the most significant changes in priorities from WIA to WIOA. Given
the disruption and harm that would result from approving requests from
States receiving the 90 percent minimum allotment for an exception to
the 75 percent expenditure requirement, the Department proposes to
limit the approval of this exception to States receiving the small
State minimum allotment.
Even in those States receiving a small State minimum allotment, it
will be very difficult for a State to make an affirmative determination
that, after analysis of the local area's youth population, the local
area ``will not be able'' to use 75 percent of its funds for OSY, which
is a required element of any request.
[[Page 20735]]
Section 681.420 How must Local Boards design Workforce Innovation and
Opportunity Act youth programs?
This proposed section describes the framework for the WIOA youth
program design. The framework includes an objective assessment; an
individual service strategy, which programs must update as needed to
ensure progression through the program; and general case management;
and follow-up services that lead toward successful outcomes for WIOA
youth program participants. WIOA makes two significant changes to WIA's
requirements for service strategies. One is that the service strategy
must be linked to one or more of the indicators of performance in WIOA
sec. 116(b)(2)(A)(ii). The other is that the service strategy must
identify career pathways that include appropriate education and
employment goals. For both objective assessment and individual service
strategy, programs may use recently completed assessments or service
strategies conducted by another education or training program rather
than create new assessments or service strategies if they determine it
is appropriate to do so.
This proposed section also describes the requirement that Local
Boards must link to youth-serving agencies and adds local human
services agencies to the list that WIA required. It provides that Local
Boards must provide eligible youth with information about the full
array of applicable or appropriate services available through the Local
Board or other eligible providers, or one-stop partners. It also
provides that Local Boards must refer eligible youth to appropriate
services that have the capacity to serve them on a concurrent or
sequential basis. The proposed section also provides that eligible
providers must refer youth who either do not meet the enrollment
requirements for that program or cannot be served by that program for
further assessment, if necessary, or to appropriate programs to meet
the skills and training needs of the participant. Local Boards must
also involve specific members of the community, including parents and
youth participants, in designing and implementing the WIOA youth
program.
A new provision in WIOA allows the Local Board to use up to 10
percent of their funds to implement pay-for-performance contracts for
the program elements described in Sec. 681.460. Pay-for-performance
contracts are further described in Sec. 683.500.
Section 681.430 May youth participate in both the Workforce Innovation
and Opportunity Act youth and adult programs concurrently, and how do
local program operators track concurrent enrollment in the Workforce
Innovation and Opportunity Act youth and adult programs?
This proposed section provides that youth may participate in both
the WIOA youth program and the adult program at the same time if they
are eligible for both and it is appropriate. If such concurrent
enrollment occurs, local programs must track expenditures separately by
program. This section eliminated the reference, included in the WIA
regulations, to concurrent enrollment in the dislocated worker program
because any youth meeting eligibility for the dislocated worker program
would have already successfully attained a job and would most likely be
more appropriately served under the dislocated worker program. The
section also provides that youth who are eligible under both programs
may enroll concurrently in WIOA title I and II programs.
Section 681.440 How does a local youth program determine if an 18 to 24
year old is enrolled in the Workforce Innovation and Opportunity Act
youth program or Workforce Innovation and Opportunity Act adult
program?
Individuals aged 18 to 24 are eligible for the WIOA adult and youth
programs and local areas must determine whether to serve such
individuals in the youth program, adult program, or both. This proposed
section provides that a local youth program must determine whether to
enroll an 18 to 24 year old in the youth program or adult program based
on the individual's career readiness as determined through an objective
assessment.
Section 681.450 For how long must a local Workforce Innovation and
Opportunity Act youth program serve a participant?
The Department proposes this new section because the Department's
monitoring of local areas commonly found WIA youth were exited before
successfully completing the program due to artificial time constraints
or the ending of youth service provider contracts. In order to ensure
that youth are not prematurely exited from the WIOA youth program, the
Department proposes that youth programs serve participants for the
amount of time necessary to ensure they are successfully prepared to
enter post-secondary education and/or unsubsidized employment. While
there is no minimum or maximum time a youth can participate in the WIOA
youth program, programs must link program participation to a
participant's individual service strategy and not the timing of youth
service provider contracts or PYs.
Section 681.460 What services must local programs offer to youth
participants?
This proposed section lists the 14 program elements, including 5
new youth program elements in WIOA sec. 129(c)(2) that were not
included under WIA. These new elements are (1) education offered
concurrently with and in the same context as workforce preparation
activities and training for a specific occupation or occupational
cluster; (2) financial literacy education; (3) entrepreneurial skills
training; (4) services that provide labor market and employment
information about in-demand industry sectors or occupations available
in the local area, such as career awareness, career counseling, and
career exploration services; and (5) activities that help youth prepare
for and transition to post-secondary education and training. In
addition, WIOA has revised some of the WIA program elements. For
example, the element on tutoring, study skills training, instruction
leading to the completion of secondary school, including dropout
prevention strategies, has been revised to provide that the dropout
prevention (and recovery) strategies must be evidence-based and to make
clear that the completion of secondary school can be accomplished by
attainment of a secondary school diploma or its recognized equivalent,
including a certificate of attendance or similar document for
individuals with disabilities. This change is consistent with WIOA's
emphasis on evidence-based programs. WIOA also combines the two WIA
elements of summer youth employment programs and work experiences so
that summer youth employment programs become one item in a list of work
experiences and adds pre-apprenticeship programs to the list of work
experiences. Finally, WIOA expands the description of the occupational
skill training element to provide for priority consideration for
training programs that lead to recognized post-secondary credentials
that are aligned with in-demand industry sectors or occupations if the
programs meet WIOA's quality criteria. This change is consistent with
WIOA's increased emphasis on credential attainment. The section
clarifies that while local WIOA youth programs must
[[Page 20736]]
make all 14 program elements available to WIOA youth participants,
local programs have the discretion to determine which elements to
provide to a participant based on the participant's assessment and
individual service strategy.
Section 681.470 Does the Department require local programs to use
Workforce Innovation and Opportunity Act funds for each of the 14
program elements?
This proposed section clarifies that local WIOA youth programs must
make all 14 program elements available to youth participants, but not
all services must be funded with WIOA youth funds. Local programs may
leverage partner resources to provide program elements that are
available in the local area. If a local program does not fund an
activity with WIOA title I youth funds, the local area must have an
agreement in place with the partner to offer the program element and
ensure that the activity is closely connected and coordinated with the
WIOA youth program if enrolled youth participate in the program
element. By closely connected and coordinated, the Department means
that case managers must contact and monitor the provider of the non-
WIOA-funded activity to ensure the activity is of high quality and
beneficial to the youth participant.
Section 681.480 What is a pre-apprenticeship program?
This proposed section defines a pre-apprenticeship program, which
is one of the types of work experiences listed under WIOA sec.
129(c)(2)(C). The reference to pre-apprenticeship programs is new in
WIOA. The definition is based on TEN No. 13-12 that defined a quality
pre-apprenticeship program. Local youth programs must coordinate pre-
apprenticeship programs to the maximum extent feasible with registered
apprenticeship programs, which are defined in WIOA sec. 171(b)(10), and
require at least one documented partnership with a registered
apprenticeship program. Quality pre-apprenticeship programs play a
valuable role in preparing entrants for registered apprenticeship and
contribute to the development of a diverse and skilled workforce. Pre-
apprenticeship programs can be adapted to meet the needs of
participants, the various employers and sponsors they serve, and the
specific employment opportunities available in a local labor market.
Pre-apprenticeship training programs have successfully demonstrated
that obstacles such as low math skills, poor work habits, lack of
access to transportation, and lack of knowledge of sector opportunities
can be overcome when coordinated training and support is provided to
workers.
Section 681.490 What is adult mentoring?
This proposed section describes the adult mentoring program
element. It provides that mentoring must last at least 12 months and
defines the mentoring relationship. It clarifies that mentoring must be
provided by an adult other than the WIOA youth participant's assigned
case manager since mentoring is above and beyond typical case
management services. Mentoring may take many forms, but at a minimum
must include a youth participant matched with an individual adult
mentor other than the participant's case manager. Mentoring services
may include group mentoring, mentoring via electronic means, and other
forms as long as it also includes individual mentoring from an assigned
mentor. Local programs should use evidence-based models of mentoring to
design their programs. The Department recommends that programs provide
rigorous screening, training, and match support for mentors, and
frequent contact with youth and parents as the match progresses.
Section 681.500 What is financial literacy education?
This proposed section describes the financial literacy program
element, new under WIOA. Financial literacy is described in the
allowable statewide youth activities in WIOA sec. 129(b)(2)(D) and the
proposed section reiterates what was stated in the allowable statewide
activities section of supporting financial literacy. The Department has
added an element on informing participants about identity theft to the
list in WIOA sec. 129(b)(2)(D). The Department recognizes the
importance of equipping workers with the knowledge and skills they need
to achieve long-term financial stability and solicits comments on how
best to achieve this goal.
Section 681.510 What is comprehensive guidance and counseling?
This proposed section describes the types of guidance and
counseling services that fall under the program element comprehensive
guidance and counseling, which includes referral to services provided
by partner programs, as appropriate. When referring participants to
necessary counseling that cannot be provided by the local youth program
or its service providers, the local youth program must coordinate with
the organization it refers to in order to ensure continuity of service.
Section 681.520 What are leadership development opportunities?
This proposed section includes all of the examples of leadership
development opportunities included in WIA regulations and adds two new
examples of appropriate leadership development opportunities that a
local area may consider when providing leadership development
opportunities. One new example is civic engagement activities; the
other is activities which put the youth in a leadership role.
Section 681.530 What are positive social and civic behaviors?
While WIA included positive social behaviors as part of the
description of leadership development opportunities, WIOA adds ``civic
behaviors'' to the description of the leadership development program
element. This proposed section expands the examples of positive social
behaviors to include keeping informed of community affairs and current
events.
Section 681.540 What is occupational skills training?
This proposed section provides a definition for the occupational
skills training program element. It was not previously defined under
WIA. WIOA sec. 129(c)(2)(D) further sharpens the focus on occupational
skills training by requiring local areas to give priority consideration
for training programs that lead to recognized post-secondary
credentials that align with in-demand industries or occupations in the
local area. The Department interprets this requirement to mean that
when seeking occupational skills training for a participant, local
areas must first seek training programs that lead to recognized post-
secondary credentials in in-demand industries or occupations and only
if none are available should they refer a participant to a training
program that does not lead to a recognized post-secondary credential.
The Department has further defined this priority by requiring that such
training be outcome oriented and focused on an occupational goal in a
participant's individual service strategy and that it be of sufficient
duration to impart the skills needed to meet that occupational goal. In
all cases, local areas must ensure that the training program meets the
quality standards in WIOA sec. 123.
[[Page 20737]]
Section 681.550 Are Individual Training Accounts permitted for youth
participants?
Prior WIA regulations provide that ITAs are not an authorized use
of youth funds. However, more than 30 States received waivers under WIA
to use ITAs for older and OSY to: (1) Expand training options; (2)
increase program flexibility; (3) enhance customer choice; and (4)
reduce tracking, reporting and paperwork that comes with dual
enrollment. ITAs have therefore become a critical component in WIA to
provide training services to older and OSY. WIOA is silent on the use
of ITAs for youth participants.
This proposed section allows ITAs for older OSY aged 18 to 24. This
change will enhance individual participant choice in their education
and training plans and provide flexibility to service providers. ITAs
also reduce the burden for local areas by eliminating duplicative
paperwork needed for enrolling older youth in both youth and adult
formula programs. ITAs will benefit disconnected youth and reinforce
WIOA's emphasis on increasing access to and opportunities for workforce
investment services for this population. To the extent possible, local
programs must ensure that youth participants are involved in the
selection of their educational and training activities. The Department
welcomes comments on the proposed allowance of ITAs for older OSY.
Section 681.560 What is entrepreneurial skills training and how is it
taught?
This proposed section defines entrepreneurial skills training, a
new program element under WIOA. While entrepreneurial skills training
was previously listed as an example of a work experience in WIA, under
WIOA it is a separate program element. The Department has also provided
a list of possible methods of teaching youth entrepreneurial skills
training. The Department is specifically seeking comments from
stakeholders around developmentally appropriate types and methods of
teaching entrepreneurial skills.
Section 681.570 What are supportive services for youth?
This proposed section lists examples of supportive services for
youth and includes two additional examples which were not listed in WIA
youth regulations. Needs-related payments were listed as an example of
an adult supportive service under WIA and also can be critical to youth
living on their own who participate in a youth program. WIOA lists
needs-related payments as a supportive service at sec. 3(59). In
addition, the Department lists assistance with educational testing and
accommodations as examples because they are prime example of services
that can be necessary to enable an individual to participate in
activities authorized by WIOA. For example, assistance with educational
testing can provide OSY with the opportunity to take high school
equivalency tests, as well as other exams for occupational
certifications and credentials, while accommodations may be necessary
for youth with disabilities to participate in certain assessments and
to have equal access and opportunity to participate in a variety of
work-based learning activities.
Section 681.580 What are follow-up services for youth?
This proposed section discusses the importance of follow-up
services and lists examples of follow-up services for youth, which WIOA
requires be provided for a minimum of 12 months. It clarifies that
follow-up services may be different for each individual based on his or
her individual needs. It also clarifies that follow-up services are
more than a contact attempted or made to gather information for
reporting purposes because follow-up services provide the necessary
support to ensure the success of youth post-program. Therefore, to meet
follow-up requirements, programs must do more than just make an attempt
to contact to gather reporting information. The Department seeks
comments on whether this section includes reasonable requirements for
follow-up services.
Section 681.590 What is the work experience priority?
The proposed section discusses the 20 percent minimum expenditure
requirement on the work experience program element in WIOA sec.
129(c)(4). Work experience is a critical WIOA youth program element,
arguably the most important program element as signaled by the minimum
expenditure requirement. Work experience helps youth understand proper
workplace behavior and what is necessary in order to attain and retain
employment. Work experience can serve as a stepping stone to
unsubsidized employment and is an important step in the process of
developing a career pathway for youth. Research shows work experience
is correlated with higher high school graduation rates and success in
the labor market. This is particularly important for youth with
disabilities.
Section 681.600 What are work experiences?
The proposed section defines the work experience program element
using language similar to the corresponding WIA regulation and includes
the four work experience categories listed in WIOA sec. 129(c)(2)(C).
In addition, the section eliminates the language under the
corresponding WIA rule that OJT is not an appropriate work experience
activity for youth. WIOA sec. 129(c)(2)(C)(4) explicitly enumerates OJT
opportunities as one type of work experience.
Work experiences are designed to enable youth to gain exposure to
the working world and its requirements. Work experiences should help
youth acquire the personal attributes, knowledge, and skills needed to
obtain a job and advance in employment.
Section 681.610 How will local Workforce Innovation and Opportunity Act
youth programs track the work experience priority?
This proposed section discusses the new requirement under WIOA that
a local youth program must use not less than 20 percent of the funds
allocated to the local area to provide youth participants, both ISY and
OSY, with paid and unpaid work experiences. In order to ensure that
local WIOA youth programs meet this requirement, the Department
proposes that local WIOA youth programs track program funds spent on
paid and unpaid work experiences and report such expenditures as part
of the local WIOA youth financial reporting. Program expenditures on
the work experience program element include wages as well as staffing
costs for the development and management of work experiences. Like the
75 percent OSY expenditure requirement, local area administrative costs
are not subject to the 20 percent minimum work experience expenditure
requirement. The work experience expenditure rate is calculated for
local area funds after subtracting out funds spent on administrative
costs and is calculated based on remaining total local area youth funds
rather than calculated separately for in-school and OSY.
Section 681.620 Does the Workforce Innovation and Opportunity Act
require Local Boards to offer summer employment opportunities in the
local youth program?
Under WIOA sec. 129(c)(2)(C), summer employment opportunities are
one of four suggested components of the paid and unpaid work
experiences
[[Page 20738]]
program element. While local WIOA youth programs must provide paid and
unpaid work experiences, they may take the form of a number of
activities including: summer employment opportunities and employment
opportunities available throughout the year, pre-apprenticeship
programs, internships and job shadowing, and OJT. While summer
employment opportunities are an allowable activity and a type of work
experience that counts toward the work experience priority (which
requires a minimum of 20 percent of funds allocated to a local area are
spent on work experience) they are not a required program element as
they previously were under WIA.
Section 681.630 How are summer employment opportunities administered?
Local areas must adhere to the provisions outlined in WIOA sec. 123
for selecting service providers when administering summer employment
opportunities. This proposed section discusses that WIOA requires local
areas to identify youth providers of youth workforce investment
activities, including work experiences such as summer employment
opportunities, by awarding grants or contracts on a competitive basis.
As provided in WIOA sec. 123, if there is an insufficient number of
eligible providers of youth workforce investment activities, Local
Boards may award grants or contracts on a sole source basis. This
section also clarifies that the summer employment administrator does
not need to select the employers who are providing the employment
opportunities through a competitive process.
Section 681.640 What does education offered concurrently with and in
the same context as workforce preparation activities and training for a
specific occupation or occupational cluster mean?
This proposed section describes the new program element at WIOA
sec. 129(c)(2)(E): ``education offered concurrently and in the same
context as workforce preparation activities and training for a specific
occupation or occupational cluster.'' The new program element requires
integrated education and training to occur concurrently and
contextually with workforce preparation activities and workforce
training for a specific occupation or occupational cluster for the
purpose of educational and career advancement. Youth participants will
not be required to master basic academic skills before moving on to
learning career-specific technical skills. This approach aligns with
recent research which found students using an integrated education and
training model had better rates of program completion and persistence
than a comparison group (Jenkins 2009).
Section 681.650 Does the Department allow incentive payments for youth
participants?
This proposed section clarifies that incentives under the WIOA
youth program are permitted. The Department has included the reference
to 2 CFR 200 to emphasize that while incentive payments are allowable
under WIOA, the incentives must be in compliance with the requirements
in 2 CFR part 200. This is not a change; under WIA, incentives must
have followed the Uniform Administrative Requirements at 29 CFR parts
95 and 97 and the cost principles at 2 CFR parts 220, 225, and 230. The
Uniform Administrative Requirements were recently consolidated into 2
CFR part 200. For example, under 2 CFR part 200, Federal funds may not
be spent on entertainment costs. Therefore, incentives may not include
entertainment, such as movie or sporting event tickets or gift cards to
movie theaters or other venues whose sole purpose is entertainment.
Additionally, under 2 CFR part 200, there are requirements related to
internal controls to safeguard cash which also apply to safeguarding of
gift cards, which are essentially cash.
Section 681.660 How can parents, youth, and other members of the
community get involved in the design and implementation of local youth
programs?
This proposed section discusses the requirement in WIOA sec.
129(c)(3)(C) for the involvement of parents, participants, and
community members in the design and implementation of the WIOA youth
program and provides examples of the type of involvement that would be
beneficial. The Department has also included in this proposed section
the requirement in WIOA sec. 129(c)(8) that Local Boards must also make
opportunities available to successful participants to volunteer to help
participants as mentors, tutors, or in other activities.
5. Subpart D--One-Stop Services to Youth
Section 681.700 What is the connection between the youth program and
the one-stop service delivery system?
This proposed section reiterates the connections between the youth
program and the one-stop system that were provided in the WIA
regulations and includes additional examples of such connections
including collocating WIOA youth program staff at one-stop centers and/
or equipping one-stop centers and staff with the information necessary
to advise youth on programming to best fit their needs. The intent
behind this section is to encourage staff working with youth under
titles I, II, and IV of WIOA to coordinate better services for youth.
This could include youth-focused one-stop centers in locations where
youth tend to gather and making one-stops more accessible to youth.
Section 681.710 Do Local Boards have the flexibility to offer services
to area youth who are not eligible under the youth program through the
one-stop centers?
Consistent with WIA, this proposed section clarifies that Local
Boards may provide services to youth through one-stop career centers
even if the youth are not eligible for the WIOA youth program.
F. Part 682--Statewide Activities Under Title I of the Workforce
Innovation and Opportunity Act
1. Introduction
WIOA provides a reservation of funds for employment and training
activities to be undertaken on a statewide basis. These activities are
undertaken by the States, rather than by Local Boards. WIOA requires
States to undertake certain statewide activities, but authorizes States
to undertake a much wider range of activities. These required and
allowable activities are addressed by this part of the proposed
regulations. WIOA designates the percentage of funds that may be
devoted to these activities from annual allotments to the States--up to
15 percent must be reserved from youth, adult, and dislocated worker
funding streams, and up to an additional 25 percent of dislocated
worker funds must be reserved for statewide rapid response activities.
The up to 15 percent funds from the three funding streams may be
expended on employment and training activities without regard to the
source of the funding. For example, funds reserved from the adult
funding stream may be used to carry out statewide youth activities and
vice versa. These funds must be used for certain specified activities,
such as for State evaluations and for provision of data for Federal
evaluations and research. If funds permit, States have authority to
provide a variety of other activities. State set-
[[Page 20739]]
aside funds allow States to continually improve their comprehensive
workforce programs, ensure a national system that meets the needs of
job seekers, workers and employers, and contribute to building a body
of evidence to improve the effectiveness of services under WIOA.
2. Subpart A--General Description
This subpart describes what is encompassed by the term ``statewide
employment and training activities.'' It explains that States have both
required and allowable activities to be undertaken on a statewide basis
for adults, dislocated workers and youth. States have significant
flexibility in the development of policies and strategies for the use
of their statewide funds.
Section 682.100 What are the statewide employment and training
activities under title I of the Workforce Innovation and Opportunity
Act?
Proposed Sec. 682.100 provides that there are both required and
allowable statewide employment and training activities. States may use
up to 15 percent of adult, youth and dislocated worker funds for
statewide activities relating to youth, adult, dislocated workers. The
States are encouraged to develop policies and strategies for utilizing
these funds, and must include descriptions of these activities in their
State Plan.
Section 682.110 How are statewide employment and training activities
funded?
Proposed Sec. 682.110 does not change how statewide employment and
training activities from how such activities were funded under WIA. The
Governor has authority to use up to 15 percent of the adult, dislocated
worker, and youth funds allocated to the State for statewide
activities. The regulation provides that the adult, dislocated worker
and youth 15 percent funds may be combined for use on required or
allowed statewide activities regardless of the funding source.
3. Subpart B--Required and Allowable Statewide Employment and Training
Activities
This subpart first discusses required statewide activities. WIOA
continues the activities that were required under WIA, but adds several
additional required activities, such as assistance to State entities
and agencies described in the State Plan, alignment of data systems,
regional planning, implementation of industry or sector partnerships,
and cooperation in providing data for Federal evaluation and research
projects. Required statewide activities under WIA and continued under
WIOA include: Outreach to businesses, dissemination of information on
the performance and cost of attendance for programs offered by ETPs,
and conducting evaluations.
This subpart also discusses allowable statewide activities. The
Department provides States with a significant amount of flexibility in
how these funds may be used for statewide activities. States can test
and develop promising strategies. This regulation is not designed to be
an exhaustive list, but more illustrative of the types of allowable
statewide activities that may be provided with these funds.
Section 682.200 What are required statewide employment and training
activities?
Proposed Sec. 682.200(a) explains that rapid response activities
are a required statewide employment and training activity, as described
in Sec. 682.310.
Proposed Sec. 682.200(b) explains the different types of
information States are required to disseminate to the workforce system,
including ETPLs, providers of work-based training providers, business
partnership and outreach information, promising service delivery
strategies, performance information about training providers, eligible
providers of youth activities, and information about physical and
programmatic accessibility for individuals with disabilities.
Proposed Sec. 682.200(c) states that the information listed in
Sec. 682.200(b) be made widely available. It explains that this may be
achieved by various means, including posting information on State Web
sites, physical and electronic handouts for dissemination to one-stop
centers, and other appropriate means of sharing information.
Proposed Sec. 682.200(d) explains that under WIOA sec.
134(a)(2)(B)(vi), States are required to use the 15 percent set aside
to conduct evaluations in accordance with WIOA sec. 116(e) whose
requirements are implemented in Sec. 682.220.
Proposed Sec. 682.200(e) requires States to provide technical
assistance to local areas in carrying out activities described in the
State Plan.
Proposed Sec. 682.200(f) requires States to assist local areas,
one-stop operators, and eligibile providers in providing opportunities
for individuals with barriers to employment to enter in-demend industry
sectors, and developing exemplary program activities.
Proposed Sec. 682.200(g) and (h) require States to assit local
areas carry out the regional planning and service delivery efforts, and
provide local areas information on and support for the effective
development, convening, and implementation of industry and sector
partnerships.
Proposed Sec. 682.200(i) requires the States to provide technical
assistance to local areas that fail to meet their performance goals.
Proposed Sec. 682.200(j) requires the State to carry out
monitoring and oversight activities of the programs providing services
to youth, adults and dislocated workers in WIOA. Under this authority,
States may conduct reviews that compare services provided to male and
female youth.
Proposed Sec. 682.200(k) clarifies that States may provide
additional assistance to local areas that have high concentrations of
eligible youth to ensure a transition to education or unsubsidized
employment.
Proposed Sec. 682.200(l) requires States to operate a fiscal and
management accountability system. This system is vital to ensure high
levels in integrity of managing Federal funds and conveying important
information on the services being provided to job seekers and
employers. As required by WIOA, the Department will consult with a wide
range of stakeholders to establish guidelines for this system (see WIOA
sec. 116(i)(1)).
Section 682.210 What are allowable statewide employment and training
activities?
In addition to the required statewide activities, States are
provided with significant flexibility to innovate within the workforce
system with various allowable statewide employment and training
activities. These allowable activities are vital to ensuring a high
quality workforce system, and can be used to ensure continuous
improvement throughout the system. This regulation is not designed to
be an exhaustive list, but more illustrative of the types of allowable
statewide activities that may be provided with these funds.
Proposed Sec. 682.210(a) provides that State administration of the
adult, dislocated worker, and youth employment and training activities
is an allowable statewide employment and training activity. This
proposed section maintains the same 5 percent administrative cost limit
that existed under WIA and clarifies that the 5 percent is calculated
based on the total allotment received by the State and counts towards
the amount reserved for statewide activities.
Proposed Sec. 682.210(b) permits States to use WIOA funds to
develop and implement innovative programs and
[[Page 20740]]
strategies designed to meet employer needs, including small business
needs. The workforce system provides services to dual customers--the
job seeker and the employer. The Department values ways in which States
can engage businesses with all levels of the workforce system. Under
this section, States have authority to carry out a variety of programs
identified in WIOA sec. 134(a)(3)(A)(i), such as sectoral and industry
cluster strategies, microenterprise and entrepreneurial training, and
utilization of business intermediaries.
Proposed Sec. 682.210(c) permits States to develop and implement
strategies for serving individuals with barriers to employment and
encourages States to partner with other agencies to coordinate services
among all the one-stop partners.
Proposed Sec. 682.210(d) and (e) allow the development and
identification of education and training programs that respond to real-
time labor market analysis, that allow for use of direct or prior
assessments, and that provide credit for prior learning, or which have
other characteristics identified in WIOA sec. 134(a)(3)(A)(iii). States
can also use these funds to increase training for individuals placed in
non-traditional employment.
Proposed Sec. 682.210(f) permits States to undertake research and
demonstrations related to meeting the education and employment needs of
youth, adults and dislocated workers, as stated in WIOA secs.
129(b)(2)(A)(i) and (ii) and sec. 134(a)(3)(A)(ix).
Proposed Sec. 682.210(g) provides that States may utilize
statewide funds to support the development of alternative, evidence-
based programs, and other activities which increase the choices
available to eligible youth and encourage them to reenter and complete
secondary education, enroll in post-secondary education and advanced
training, progress through a career pathway, and/or enter unsubsidized
employment that leads to economic self-sufficiency.
Proposed Sec. 682.210(h) provides that States may utilize
statewide funds to support the provision of career services throughout
the one-stop delivery system in the State.
Proposed Sec. 682.210(i) provides that States may incorporate a
variety of financial literacy identified in WIOA sec. 129(b)(23)(D)
activities into the service delivery strategy within the one-stop
delivery system. Financial literacy activities are important services
for job seekers to receive as part of their career services. The
Department encourages States to develop and implement strategies for
local areas to utilize to coordinate financial literacy services to
participants under this authority and to provide financial literacy
activities to youth under Sec. 682.210(i).
Proposed Sec. 682.210(j) allows for States to provide incentive
grants to local areas for reaching performance goals. Incentive grants
can be an effective way to develop and maintain a culture of continuous
improvement throughout the workforce system.
Proposed Sec. 682.210(k) allows for States to provide technical
assistance to local areas, CEOs, one-stop operators, one-stop partners,
and eligible providers in local areas for the development of exemplary
program activities and the provision of technology to facilitate remote
access to services provided through the one-stop delivery system in the
State (WIOA sec. 129(b)(2)(E));
Proposed Sec. 682.210(l) allows States to provide technical
assistance to local areas using pay-for-performance contract
strategies. Under WIOA, pay-for-performance is an allowable use of
funds that could potentially be an effective mechanism to improve
participant outcomes. Technical assistance will be of vital importance
to ensure these strategies are being implemented effectively. Under
this authority, such technical assistance may include providing
assistance with data collections, meeting data entry requirements,
identifying levels of performance, and conducting evaluations of pay-
for-performance strategies.
Proposed Sec. 682.210(m) allows for States to utilize technology
to allow for remote access to training services provided through the
one-stop delivery system. The Department recognizes that there are many
different means by which individuals may get training and that the use
of technology may be particularly helpful to participants in rural
areas. The Department encourages States to develop and build upon
strategies that enable job seekers to connect with the workforce system
remotely.
Proposed Sec. 682.210(n) allows States to conduct activities that
increase coordination between workforce investment activities and
economic development approaches. This proposed regulation also allows
States to undertake activities that provide coordination with services
provided by other agencies, such as child support services and
assistance (provided by State and local agencies carrying out part D of
title IV of the SSA (42 U.S.C. 651 et seq.)), cooperative extension
programs (carried out by the Department of Agriculture), programs in
the local areas for individuals with disabilities (including the
programs identified in WIOA sec. 134(a)(3)(A)(viii)(II)(cc)), adult
education and literacy activities including those carried out by public
libraries, and activities in the corrections system to connect ex-
offenders reentering the workforce. The Department strongly encourages
States to engage in these coordination activities. States are also
encouraged to use funds to develop and disseminate workforce and labor
market information (WLMI).
Proposed Sec. 682.210(o) allows States to implement promising
practices for workers and businesses as described in WIOA sec.
134(a)(3)(A).
Proposed Sec. 682.210(p) allows States to develop economic self-
sufficiency standards that specify the income needs of families,
including the number and ages of children. The Department recognizes
that different regions in a State may have different levels of self-
sufficiency; therefore the proposed regulation allows for States to
take geographical considerations into account in developing self-
sufficiency standards.
Proposed Sec. 682.210(q) allows States to develop and disseminate
common intake procedures across core and partner programs, including
common registration procedures. The Department strongly encourages
States to utilize this approach in a customer-focused way. By
developing common procedures one-stop staff can reduce duplication and
enhance the job seeker experience in the workforce system.
Proposed Sec. 682.210(r) encourages coordinating activities with
the child welfare system to facilitate provision of services to
children and youth who are eligible for assistance.
Section 682.220 What are States' responsibilities in regard to
evaluations and research?
The Department proposes to add rules on new State responsibilities
and opportunities in regard to evaluation and research under WIOA sec.
116(e). State and Federal evaluations and research are intended to
improve the quality and effectiveness of programs under WIOA, and
contribute to an expanding body of knowledge on customers, their needs,
existing services, and innovative approaches. Examples of the
strategies that might be explored in evaluation and research include,
but are not limited to, interventions envisioned in WIOA itself, such
as integrated systems, coordinated services, career pathways, and
multiple forms of engagement with businesses.
[[Page 20741]]
WIOA continues the long-standing support of evaluation and research
found in prior law, but strengthens it in several ways, including
permitting States to evaluate activities under all of the title I-IV
core programs, including adult education and vocational education, and
permitting the use of funds from any of these programs for evaluations.
WIOA expands coordination and the consultative process regarding
evaluations and research beyond the workforce system to State agencies
for the other core programs. Further, WIOA now also requires States to
coordinate their own studies with evaluations and research projects
undertaken by the Departments of Labor and Education, as well as to
cooperate in provision of data and information for such Federal
evaluations.
Provisions on the Department's role in evaluation and research, now
found under WIOA sec. 169 (corresponding to secs. 171 and 172 in WIA),
authorize a wide array of studies. Evaluation and research projects,
permissible under WIOA sec. 169 include process and outcome studies,
pilot and demonstration projects, analyses of programmatic and economic
data, impact and benefit-cost analyses, and use of rigorous designs to
test the efficacy of various interventions, such as random assignment.
WIOA also implies that State evaluations are synonymous with multiple
forms of research to test various interventions and to examine program
services and outcomes in greater depth and over a longer time frame
than is typically done for performance accountability purposes for
State and local programs.
Section 169 also includes numerous examples of studies to be
conducted in collaboration with other Federal Departments. WIOA sec.
169 also requires several research projects (evaluations of title I
programs, a study of career pathways in health and child care, and
research on equivalent pay), suggests seven research projects (relating
to disconnected youth, business needs, nontraditional occupations,
performance indicators, public housing assistance recipients, older
workers, and credentials for prior learning), and permits studies of
Federally-funded employment-related programs and activities under
``other provisions of law.'' An evaluation of Job Corp is also required
under WIOA sec. 161.
WIOA recognizes in sec. 116(e) the vital role of States in
providing various forms of quantitative and qualitative data and
information for Federal evaluations and research. Data, survey
responses, and site visit information, from both the State and local
levels are essential in Federal research designed to understand and
evaluate various existing systems and services as well as new
interventions. All of these forms of data and information are needed to
understand key participant characteristics, labor market outcomes, the
role of decision-makers, how faithfully interventions are implemented,
and the quality of the customer experience. Further, there are multiple
potential data sources which could include, for example, UI
administrative data and wage records, data from other workforce
programs, various documents, and individual or focus group interviews
with State officials, local program staff and customers.
To assure that data are consistently available from all States, the
rules emphasize the need for States to cooperate, to the extent
practicable, in data collection activities for evaluations conducted by
the Departments of Labor and Education, as related to services under
WIOA and to other employment-related programs and activities. The rules
also clarify the need for States to provide data from sub-State level
and from State and local workforce boards and, further, to encourage
provision of data by other partner programs. A method for informing the
Department about possible problems in providing the various forms of
data and for resolving such problems is also proposed below.
Specifically, the rules include the following:
Proposed Sec. 682.220(a)(1) explains that under WIOA secs. 116(e),
129(b)(1)(A) and 134(a)(2)(B)(vi), States are required to use funds
reserved by the Governor for statewide activities (the State set-aside)
to conduct evaluations of activities of the core programs. Paragraph
(b)(1) requires States to coordinate such evaluations with Federal
evaluation and research activities under WIOA secs. 169 and
242(c)(2)(D) (regarding adult education), under the Rehabilitation Act
of 1973 and under the Wagner-Peyser Act [29 U.S.C. 49i(b)]. Paragraph
(a) delineates the role of evaluations and research in promoting
continuous improvement and high performance in existing programs and
identifies an additional purpose of evaluation activities: Testing
innovative services and strategies.
Proposed Sec. 682.220(a)(2) clarifies that the States may use set-
aside funds to conduct other research and demonstration projects that
relate to the education and employment needs for youth, adults and
dislocated workers. Proposed Sec. 682.220(a)(3) clarifies that States
may use funds from other WIOA title II-IV core programs but only as
determined through the consultative processes required with State and
Local Boards and agencies responsible for the core programs as
referenced in paragraph (b)(1). Paragraph 682.220(e) highlights the
opportunity for States to use and combine funds from other sources
(consistent with Federal and State law, regulation, and guidance). The
sources might include other Federal and State grants and contracts, as
well as private philanthropic or other sources.
Proposed Sec. 682.220(b) promotes State efforts to conduct
evaluations and research, assure they relate to State goals and
strategies, and are coordinated and designed in conjunction with State
and Local Boards and other agencies responsible for the core programs.
The proposed rule also lists some key features that States can include
their evaluations and research projects when appropriate and feasible,
not as a ``one-size-fits-all'' checklist of requirements for every
evaluation and research project. As such, paragraphs (b)(2) through (4)
implement WIOA sec. 116(e), but qualifies the requirements for States
to include an analysis of customer feedback and of outcome and process
measures when appropriate, to coordinate with Federal evaluations to
the extent feasible, and to use the most rigorous analytical and
statistical methods that are reasonably feasible.
Proposed Sec. 682.220(c) implements sec. 116(e)(3) of WIOA, which
requires States to share their evaluations with the public, including
through electronic means, such as posting the results of all types of
research and evaluations that States conduct on the relevant State Web
site.
Proposed Sec. 682.220(d)(1) implements sec. 116(e)(4) of WIOA,
which requires States to cooperate, to the extent practicable, in
providing data, responding to surveys, and allowing site visits in a
timely manner for Federal evaluation, research, and investigation
activities conducted by the Secretaries of Labor and Education or their
agents under WIOA secs. 169 and 242, the Rehabilitation Act of 1973,
and the Wagner-Peyser Act, as listed in Sec. 682.200(d) and above.
(The provision of UI data for Federal evaluations and research is
subject to regulations found in 20 CFR part 603.) The Department of
Labor intends to work with States and the United States Census Bureau
(Census) to explore the potential to meet the requirement that States
provide UI wage record data for Federal evaluations and research using
the wage record data
[[Page 20742]]
States currently provide to Census for the Longitudinal Employer-
Household Dynamics (LEHD) program. This approach to provision of UI
data may reduce burden on State UI infrastructure, while also making
the LEHD data set more useful to a broad array of researchers. Since
data and survey responses from local subgrantees and State and local
workforce boards are often critical in Federal evaluation and research
projects, the rule also requires that States provide timely data and
survey responses from these entities and that States assure that
subgrantees and boards allow timely site visits for Federal
evaluations. States are proposed to assume these responsibilities
because of their relationship with and support of the boards as well as
their role in overseeing the operation of subgrantees. Since States do
not set the requirements for other one-stop partners, proposed Sec.
682.220(d)(2) requires States to encourage these partners to cooperate
in data provision for the relevant Federal evaluations and research.
Proposed Sec. 682.220(d)(3) requires a Governor to inform the
Secretary in writing if a State finds that it is not practicable to
participate in timely provision of data, survey responses and site
visits for Department of Labor or Department of Education evaluations
and research, and, further, to explain why it is not practicable for
the State to provide the requested information. This explanation will
help the Department to work more effectively with the State to
accommodate its concerns and mitigate or overcome any problems
preventing the State from providing the information needed for Federal
evaluations or research conducted under the various authorities cited
in Sec. 682.200(d).
Proposed Sec. 665.220(e) provides that States may use or combine
funds, consistent with Federal and State law, regulation, and guidance,
from other public or private sources, to conduct evaluations, research,
and demonstration projects relating to activities under the WIOA title
I-IV core programs. The Department will provide information, technical
assistance, and guidance to support States in conducting their own
evaluations and research, at the highest levels of quality and
integrity, consistent with State goals and priorities, and using
methodologies appropriate to the research objectives and the funds
available. The technical assistance and guidance will also address how
States can coordinate with studies conducted by the Departments of
Labor and Education under WIOA and cooperate in providing data and
other information for such Federal research.
4. Subpart C--Rapid Response Activities
Introduction
This subpart discusses the important role that rapid response plays
in providing customer-focused services both to dislocated workers and
employers, thereby ensuring immediate access to affected workers to
help them quickly reenter the workforce. The proposed regulations
reflect the Department's experience in managing the PYs and lessons
learned from the innovations and best practices of various rapid
response programs around the country in planning for and meeting the
challenges posed by events precipitating substantial increases in the
number of unemployed individuals in States, regions and local areas.
The proposed regulations provide a comprehensive framework for
operating successful rapid response programs in a way that promotes
innovation and maintains flexibility to enable States to successfully
manage economic transitions.
Section 134(a)(2) of WIOA authorizes the use of reserved funds for
statewide activities to plan for and respond to events that precipitate
substantial increases in the number of unemployed individuals. Except
for a new provision, at sec. 134(a)(2)(A)(ii), that addresses the use
of unobligated funds for rapid response activities, WIOA largely
replicates the language in sec. 134 of WIA. The proposed regulations
provide additional, detailed direction regarding required and optional
rapid response activities. The WIA regulations concerning the rapid
response program provided substantial flexibility in program design and
implementation. This flexibility allowed for customized planning and
responses based upon specific factors in a given situation--an
important component to delivering effective services. However, some
States and local operators did not understand the full range of
activities allowable under the program. In crafting the proposed
regulations, the Department has worked to maintain the same flexibility
that the current regulation allows, while providing more detailed
information about appropriate activities, such as layoff aversion,
engaging business, and illustrating how these funds can be used.
Our proposed approach is based on the premise that successful rapid
response programs are flexible, agile, and focused on promptly
delivering comprehensive solutions to businesses and workers in
transition. Rapid response, when operated successfully, delivers on the
promises that the workforce system makes to businesses, workers, and
communities--to provide economically valuable solutions to businesses
and critically important services to workers at the time when they are
most needed. These proposed regulations are designed to ensure that
rapid response programs in all States are capable of meeting those
promises, that service levels are consistent in quality yet customized
to specific events, and activities are driven always by the goal of
preventing or minimizing unemployment. The proposed regulations also
focus specifically on anticipating needs and planning for them, rather
than only responding to layoff events.
Section 682.300 What is rapid response, and what is its purpose?
Proposed Sec. 682.300 describes the purpose of rapid response--to
promote economic development and vitality--and identifies the
activities and responsibilities to meet this purpose. Proposed Sec.
682.300(a) identifies as key components of rapid response the
strategies and activities necessary to plan for and respond to layoffs
or other dislocation events, including natural or other disasters.
While many States will provide rapid response services for layoffs of
all sizes, some States have restricted rapid response services to
layoffs of 50 or more workers, or for which they received a Worker
Adjustment and Retraining Notification (WARN) Act notice. While rapid
response is required for closures and mass layoffs, the Department's
intention is that effective services are provided to as many workers
and companies as possible. Most employers have fewer than 50 workers,
and thus, a substantial percentage of layoffs do not qualify for WARN
coverage; therefore, using either of these criteria as the only
triggers for the provision of rapid response assistance means that most
companies and workers affected by dislocations will not be provided
rapid response services. Establishing a strict threshold is counter to
the purpose of rapid response, and prevents many workers and companies
from receiving valuable services at a time when they are needed.
Therefore, the proposed regulations do not define any threshold for
the size of a layoff for which rapid response services are provided.
The regulation does not specifically address plant closures because the
Department considers the layoffs associated with closures to be covered
under the general principles applicable to layoffs. Based on the fact
that most companies employ fewer than 50 workers and the rapid response
services provide significant
[[Page 20743]]
value to both affected workers and businesses, the Department expects
that States and local areas will provide rapid response services to
layoffs and closures of all sizes, as practicable. However, for any
plant closure or layoff of 50 or more, rapid response services must be
provided per the statutory reference to mass layoffs. Additionally,
rapid response must be provided for any layoff which receives a WARN
notice. State and local area rapid response providers must establish
policies and procedures that allow them to serve the most companies and
affected workers or to determine the specific scenarios which meet this
criterion and for which they will provide rapid response services.
Proposed Sec. 682.300(a) identifies the need to expeditiously
deliver services in order to enable dislocated workers to transition
quickly to new employment. The two critical phrases in this section--
``plan for and respond'' and ``as quickly as possible''--demonstrate
that rapid response must include strategic planning and other
activities that will ensure that dislocated workers can be reemployed
as soon as possible.
Proposed Sec. 682.300(b) explains that the purpose of rapid
response is a proactive, strategic set of actions, not simply a
response to layoffs. The proposal establishes rapid response as a
critical tool in managing economic transition and supporting economic
growth in communities. As stated in the proposal, rapid response
includes a wide array of strategies and activities of which layoff
aversion is a key component. Proposed paragraph (b)(1) describes the
direct and informational services rapid response must provide to
workers affected by layoffs.
Proposed paragraph (b)(2) describes the services that rapid
response must provide to businesses. Building and maintaining
relationships with the business community, throughout the growth and
decline that characterizes the business cycle, is a critical aspect of
rapid response; establishing and maintaining these relationships allows
for early knowledge of potential layoffs. This information not only
provides time for undertaking actions that may prevent the layoffs from
occurring but may also allow affected workers to connect, in a timely
manner, with businesses that can use their skills, thereby avoiding
unemployment or minimizing its duration.
Engaging with businesses and delivering effective solutions to
their needs is critical--to allow rapid response teams to meet and work
with individuals affected by layoff, preferably before layoff and on
company time, but also to identify companies that are growing and may
hire dislocated workers or to deliver services that may prevent workers
at those companies from being laid off in the future.
Proposed paragraph (b)(3) describes the role that rapid response
must play in developing strong, comprehensive networks of partners and
service providers to ensure that all needed services are provided to
businesses, workers, and communities.
Proposed paragraph (b)(4) covers the need for rapid response to
undertake strategic planning and data gathering to ensure readiness to
act appropriately whenever the need arises.
Section 682.310 Who is responsible for carrying out rapid response
activities?
Proposed Sec. 682.310 is a new section that was split from Sec.
665.300 under the current regulations. Its text follows the current
regulation, Sec. 665.300(b), without substantive change, but it
changes the verb used to describe the delivery of rapid response from
``provide'' to ``carry out'' to track the language used in WIOA sec.
134(a)(2).
Section 682.320 What is layoff aversion, and what are appropriate
layoff aversion strategies and activities?
Proposed Sec. 682.315 significantly enhances the required
activities from those set forth in the current regulation. Rapid
response experience under WIA has shown the importance of layoff
aversion as a critical component of a successful rapid response
program, to be used by States and Local Boards to prevent or minimize
layoffs. This section describes strategies and activities which are
designed to prevent or minimize the duration of unemployment.
Layoff aversion is a comprehensive approach requiring the
integration of data, relationships, partnerships, and policies and
procedures to allow an assessment of the economic situation that exists
within a given area. This approach enables the development of a plan
that may be applied, at any time, to intervene and manage transition
that occurs within that area. Layoff aversion strategies and activities
are customized to specific needs, quickly deployable, informed by
economic data, and designed and coordinated with partners as necessary.
This proposed section describes examples of these strategies and
activities.
Proposed Sec. 682.315 provides a definition for layoff aversion,
which has been adapted from TEGL 30-09, and describes a number of
potential layoff aversion strategies and activities that rapid response
programs must include, many of which were first described in (TEN) 9-
12.
Section 682.330 What rapid response activities are required?
Proposed Sec. 682.330 describes rapid response activities that are
required to be carried out with rapid response funds. The elements
include activities that have been previously discussed in guidance and
through technical assistance; elements that are required by the current
regulation; and elements that were previously allowable, but which are
now required. In particular, the regulation now specifically identifies
layoff aversion activities and the provision of additional assistance
to local areas experiencing increased dislocation events as required
rapid response activity (paragraphs (a) and (i)) and adds new
responsibilities in paragraphs (g) through (k). The Department's
experience under WIA has shown that such activities are critical for a
successful rapid response program. To meet the needs of affected
workers and businesses, a rapid response program must be proactive,
data-driven, engaged with businesses, and focused on preventing layoffs
or minimizing their negative impacts. Substantially increasing the
level of required activities under rapid response is designed to drive
those outcomes. By undertaking these activities, the State and local
areas will be able to effectively manage, review and evaluate rapid
response and layoff aversion efforts.
Proposed Sec. 682.330(a) describes layoff aversion as a required
rapid response activity. Layoff aversion strategies and activities are
described in proposed Sec. 682.315. The proposal requires that States
and local areas have the capability to conduct layoff aversion;
however, it is left to the discretion of the operators of rapid
response programs to determine which strategies and activities are
applicable in a given situation, based upon specific needs, policies,
and procedures within the State and operating areas. The current
regulation requires rapid response operators to assess the potential
for averting layoffs; this proposal expands on this requirement by
listing a number of specific strategies and activities that are
critical to maintaining readiness and ensuring the ability to
capitalize on opportunities that will prevent, or minimize the duration
of, unemployment.
Proposed Sec. 682.330(b) through (e) are consistent with the
current regulations; these activities are retained as required under
the proposed WIOA regulations.
This proposed regulation does not define the term ``emergency
services'' as
[[Page 20744]]
used in proposed Sec. 682.330(f); however, in the past States and
local areas have used rapid response teams and resources for a wide
array of activities in response to disaster situations. Such activities
have included outreach, support, and assistance for impacted
individuals with accessing UI or disaster unemployment assistance;
acquisition of and support for mobile one-stop units; demographic
information gathering for potential emergency grant applications; and
coordination with Federal Emergency Management Agency (FEMA) or other
disaster-response organizations. State and local area rapid response
providers must work closely with other State and local agencies and
other critical partners through strategic planning processes to ensure
effective and immediate responses can be undertaken when the need
arises.
Proposed Sec. 682.330(g) discusses the requirement that State or
local rapid response programs collect and utilize data as a core
component of their work. Proposed Sec. 682.330(g)(1) requires States
and/or local areas to identify sources of information that will provide
early warning of potential layoffs, and to gather this data in a manner
that best suits their needs. Proposed Sec. 682.330(g)(2) requires the
processing and analysis of a range of economic data and information to
ensure the best possible services are delivered to businesses and
workers at the appropriate time. Proposed Sec. 682.330(g)(3) requires
that States and/or local areas track data and other information related
to the activities and outcomes of the rapid response program, so as to
provide an adequate basis for effective program management, review, and
evaluation of rapid response and layoff aversion efforts.
Proposed Sec. 682.330(h) highlights the need for strategic and
operational partnerships. Rapid response operators must develop and
maintain partnerships with a wide range of partners to ensure the
capability to deliver needed services and resources to businesses,
workers, and communities whenever the need arises. The proposal
provides some examples of organizations with which to partner, but
States and local areas should establish partnerships with those
organizations that are necessary to ensure the successful functioning
of their rapid response program. Proposed Sec. 682.330(h)(1) discusses
the use of these partnerships to conduct strategic planning and to
ensure that assistance provided to companies, workers, and communities
is comprehensive. Proposed Sec. 682.330(h)(2) requires that the
partnerships developed to support rapid response programs actively
share information on resources available on a regular basis to ensure
that the needs of businesses, workers, and communities will be met at
the time they are needed.
Proposed Sec. 682.330(i) requires rapid response services to be
provided to workers upon the filing of a petition for TAA. If the
Department no longer processes TAA petitions due to an expiration or
termination of the program, there will be no explicit requirement
pertaining to TAA participants. However, such individuals, as
dislocated workers, will continue to receive rapid response services
upon notification of layoff consistent with State or local area
procedure.
Proposed Sec. 682.330(j) requires States to provide additional
assistance to local areas that experience an event that causes
significant layoffs that exceed the capacity of the local area to
respond to with existing formula resources. This requirement is found
in the current regulation at Sec. 665.300(b); the Department has made
slight wording changes and moved it to this part. The additional
assistance is required by WIOA sec. 134(a)(2)(A)(II). Proposed Sec.
682.330(j) establishes the requirement that such assistance be
provided; proposed Sec. 682.350 defines and describes what additional
assistance entails.
Proposed Sec. 682.330(k) describes the role of rapid response in
organizing or supporting labor management committees. This proposed
paragraph uses the language from the current regulation that addresses
this point, 20 CFR 655.310(c)(1) and (2). This support is required by
WIOA sec. 3(51), as it was under WIA sec. 101(38), where labor and
management voluntarily agree that the establishment of such a committee
is appropriate. It has been the Department's experience that in some
circumstances such committees have proven ineffective; therefore, their
establishment is not a required rapid response activity. However, where
labor and management desire to establish such a committee, guidance and
financial support must be provided by rapid response.
The proposal does not include the requirement, now in 20 CFR
655.310(c)(3), that a neutral chairperson be appointed for such a
committee. Based on feedback received regarding the difficulties
involved in obtaining a neutral chairperson who is familiar with the
immediate problem, the leadership of such a committee is better left to
the discretion of the parties involved.
The proposal does not include the language in the current
regulation referring to ``workforce transition committees''--the
Department now refers to these as groups as ``community transition
teams.'' Their role is explained in proposed Sec. 682.340.
Section 682.340 May other activities be undertaken as part of rapid
response?
Proposed Sec. 682.340 identifies additional activities that may be
undertaken as part of the rapid response program. Proposed Sec.
682.340(a) is designed to allow for innovative approaches and to ensure
additional flexibility to prepare for and respond to layoffs, and to
react to unusual or unforeseeable situations. Although the proposal
leaves considerable discretion, any allowable activities must be
designed to prevent or minimize the duration of unemployment, or to
develop strategies or activities that will lead to better programmatic
outcomes.
Proposed Sec. 682.340(b) provides for the creation and operation
of community transition teams. Community transition teams are designed
to expand the ability of the public workforce system to enlist
partners, community organizations, and others to provide services and
resources in communities or areas in response to major layoffs or other
events that have caused significant impact that are beyond the capacity
of the public workforce system to address. Rapid response funds may be
used to organize or sustain community transition teams that are
organized to provide relief to impacted communities.
Section 682.350 What is meant by ``provision of additional assistance''
in Workforce Innovation and Opportunity Act?
Section 665.330 of the current regulations is not maintained in the
proposed regulations. The North American Free Trade Agreement (NAFTA)
program to which it refers has ended. Proposed Sec. 682.350, which
describes the provision of ``additional assistance'' to local areas,
has been largely maintained from the existing WIA regulations. The
Department has made a slight change to the language in the existing
regulations for clarity, but the concept has not changed. While the
provision of additional assistance is required, as described in
proposed Sec. 682.330(i), the mechanisms by which such assistance may
be provided are left to the discretion of the States.
[[Page 20745]]
Section 682.360 What rapid response, layoff aversion, or other
information will States be required to report to the Employment and
Training Administration?
Proposed Sec. 682.360 does not appear in the current regulations;
it requires that States report information about the receipt of rapid
response services by individuals enrolled as dislocated workers. This
information is currently required under WIA reporting guidelines. The
Department also reserves authority to issue further guidance on the
reporting of rapid response activities. Should such reporting become
required, the Department will work with States and local areas to
ensure that reporting burdens are minimized while still meeting program
reporting goals.
Section 682.370 What are ``allowable statewide activities'' for which
rapid response funds remaining unspent at the end of the year of
obligation may be recaptured by the State?
Proposed Sec. 682.370 addresses the WIOA provision at sec.
134(a)(2)(B) that allows a State to ``recapture'' any funds reserved
for rapid response that remain unspent at the end of the PY of
obligation and utilize them for State set-aside activities. The
Department has provided further definition around required and
allowable activities under the rapid response provisions of the WIOA,
which may support States to more fully utilize rapid response funds
while better serving businesses and workers.
G. Part 683--Administrative Provisions Under Title I of the Workforce
Innovation and Opportunity Act
1. Introduction
This proposed part establishes the administrative provisions that
apply to formula and discretionary grants and cooperative agreements
authorized under title I of WIOA. Some administrative provisions are
also applicable to grants provided under the Wagner-Peyser Act, as
indicated in specific sections of this part. The remaining Wagner-
Peyser Act administrative rules are still located in 20 CFR part 658.
Wagner-Peyser grants are included in this part to ensure consistent
application of the common administrative provisions that apply to all
grants awarded under title I of WIOA and the Wagner-Peyser Act. For
instance, the audit requirements for discretionary and formula grantees
for title I and Wagner-Peyser Act funds can be found in one section.
The internal control requirements for both programs can be found in
this part as well. However, contracts, rather than grants or
cooperative agreements, are used to award most funds authorized for Job
Corps. As such, the administrative provisions for Job Corps (subtitle C
of title I of WIOA) will be addressed separately in 20 CFR part 686.
Many of the proposed requirements in this part 683 are impacted by
the Department's new rule ``Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards Final Rule,'' at
2 CFR part 2900 published on December 19, 2014, and OMB's Uniform
Administrative Requirements, Cost Principles, and Audit Requirements
for Federal Awards Final Rule, dated December 26, 2013 found at 2 CFR
part 200 (``Uniform Guidance'' or ``2 CFR part 200''). The Uniform
Guidance, which can be found at http://www.gpo.gov/fdsys/pkg/FR-2013-12-26/pdf/2013-30465.pdf, streamlines and consolidates OMB Circulars A-
21 (2 CFR part 220), A-50, A-87 (2 CFR part 225), A-89, A-102 (29 CFR
part 97), A-110 (29 CFR part 95), A-122 (2 CFR part 230), and A-133 (29
CFR part 96) into a single document. The Uniform Guidance standardizes
the administrative, cost, and audit provisions for nearly all grants
across the Federal government including those awarded by the
Department's WIOA Federal partners, including ED, HHS, and the
Department of Agriculture. Federal agencies were allowed to submit
exceptions, as defined at 2 CFR 200.102, that deviate from the Uniform
Guidance. The list of the Department's exceptions to the Uniform
Guidance is available at 2 CFR part 2900. Requirements of this Uniform
Guidance, including the Department's exceptions, apply to all grants
and cooperative agreements provided under this part.
In this proposed part, the Department hopes to strengthen its
administration of grants and enhance program results by providing
consistent and uniform guidance that increases accountability and
transparency, promotes fiscal integrity, and reduces duplication.
2. Subpart A--Funding and Closeout
This subpart addresses the grant life cycle from fund availability
to closeout for formula grants awarded to States under WIOA title I,
subtitle B, and the Wagner-Peyser Act, and the grant life cycle for
discretionary or competitive WIOA grants, awarded under subtitle D of
title I. This subpart identifies the three financial assistance
instruments that will be used to award funds under title I of WIOA and
Wagner-Peyser: Contracts, grant agreements, and cooperative agreements.
One shift from WIA to WIOA is that the Secretary will no longer use the
Governor/Secretary agreements used under WIA. In compliance with the
Uniform Guidance, the Department will use Notices of Award as the
funding instrument for all grants, both formula and discretionary.
Another shift to promote full expenditure of funds is to require that
recipients expend the funds with the shortest period of performance
before expending other funds. This proposed subpart also implements the
WIOA statute's flexibility in allowing a Local Board to transfer up to
100 percent of a PY allocation between the adult and dislocated workers
funding streams subject to the Governor's approval. Additionally, the
subpart proposes processes on the handling of unobligated rapid
response funds and ETA's role in the annual reallotment process that
takes place between the States and the Department after each PY. The
proposed responsibility review provisions are also different from those
under WIA to reflect the new requirements in the Uniform Guidance.
Lastly, this subpart outlines the closeout procedures for title I of
WIOA and Wagner-Peyser awards.
Section 683.100 When do Workforce Innovation and Opportunity Act grant
funds become available for obligation?
This proposed section describes the statutory requirements for the
Department's release of formula funds under title I of WIOA and the
Wagner-Peyser Act. WIOA youth funds may be released earlier than other
formula funds, as early as April, to assist States and locals in
planning youth activities. Adult and dislocated worker funds will be
awarded on a PY basis in two payments: In July after the beginning of
the PY and a second release of funds in October of each PY. Wagner-
Peyser funds will also be released on a PY basis, in July of each
fiscal year. The availability of funds awarded on a competitive or
discretionary basis will be dependent on the annual appropriation and
on the grant or cooperative agreement.
Section 683.105 What award document authorizes the expenditure of funds
under title I of the Workforce Innovation and Opportunity Act and the
Wagner-Peyser Act?
This section recognizes the use of the three funding instruments
that conform with the Uniform Guidance: Grant agreements, cooperative
agreements, and contracts. The Department will no longer use the
Governor/Secretary agreement, used under WIA, as a
[[Page 20746]]
funding instrument because it is not consistent with the Uniform
Guidance. Proposed paragraphs (b) through (e) of this section specify
the type of funding instruments that will be used for different WIOA
programs. Proposed paragraph (e)(3) implements WIOA sec. 169(b)(6)(B),
which states that the Department may not award a contract or grant for
research, studies, or multi-State projects ``to the same organization
for more than 3 consecutive years unless such grant or contract is
competitively reevaluated within such period.'' The Department
interprets the central purpose of this provision to promote
competition--it prohibits the Department from awarding lengthy
contracts or grants on a non-competitive basis to the same
organization. However, as long as the contract or grant is awarded on a
competitive basis, the project (and therefore the award) may span over
a period of more than 3 years. This is consistent with the Department's
need to conduct lengthy research and other projects and with the new
flexibility to incrementally fund evaluations, research, and other
projects, provided in sec. 189(g)(2)(B)(ii) of WIOA. Finally, proposed
paragraph (f) of Sec. 683.105 makes clear that all three funding
instruments are subject to the closeout procedures in the Uniform
Guidance.
Section 683.110 What is the period of performance of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser Act funds?
This proposed section describes the period of performance for
different types of WIOA title I and Wagner-Peyser Act grant awards.
Proposed paragraph (a) provides a general explanation about expenditure
periods. Specifically, the period of performance for grants is the
statutory period of availability for expenditure, unless otherwise
provided in the grant agreement. Funds must be spent in a timely
manner; if they are not expended by the end of the performance period,
they risk losing their availability. Grantees must expend funds with
the shortest period of availability first, unless otherwise authorized
in the agreement or in a subsequent modification. The proposed
paragraph includes a sentence encouraging grantees to follow this rule,
so that they use funds expeditiously and effectively. This approach
should help reduce unexpended funds at the end of a grant's period of
performance
Proposed Sec. 683.110(b) through (h) restate the applicable
periods of performance for WIOA and the Wagner-Peyser Act grants. WIOA
did not change these periods for formula funds--adult/dislocated worker
and youth formula funds allotted during any PY are available for
expenditure by the State only during that PY and the 2 succeeding PYs;
funds allocated by the State to a local area for any PY are available
for expenditure only during that PY and the succeeding PY (WIOA sec.
189(g)(2)). Proposed paragraph (c)(2) also requires that funds
unexpended by a local area in the 2 year period be returned to the
State and be used for specific purposes. This is unchanged from the WIA
regulation at 20 CFR 667.107. However, proposed paragraph (c)(1)(ii)
notes an exception to the 2-year performance period for local areas in
the case of WIOA Pay-for-Performance contracting strategies, a new
option added by secs. 129(c)(1)(D) and 134(d)(1)(iii) of WIOA and more
fully discussed in proposed subpart E. Under this paragraph, and in
accordance with sec. 189(g)(2)(D) of WIOA, funds used by local areas to
carry out WIOA Pay-for-Performance contract strategies remain available
until expended. Additional information on this provision is explained
below in the discussion of proposed Sec. 683.530. Proposed paragraph
(h) also implements sec. 5(c) of the Wagner-Peyser Act, and explains
that funds allotted to States for grants under secs. 3 and 15 of the
Wagner-Peyser Act for any PY are available for expenditure by the State
receiving the funds only during that PY and the 2 succeeding PYs.
Proposed paragraphs (d) and (e) provide the expenditure period for
the Native American programs and MSFW programs under secs. 166(c) and
167(a) of WIOA, respectively. In both programs, WIOA requires the
Secretary to enter into grants or contracts with eligible entities
every 4 years. Accordingly, the proposed paragraphs explain that funds
awarded by the Department under these programs are available for
expenditure during the period identified in the award document, which
will not exceed 4 years.
For grants awarded for research or evaluations under WIOA sec. 169,
funds remain available until expended, in accordance with sec.
189(g)(2)(B)(i) of WIOA, or for the period of performance specified in
the terms and conditions of the award. The Secretary has the authority
to limit the period of expenditure of these funds in the terms and
conditions of the grant award.
Finally, proposed paragraph (f) explains that funds allotted for
other programs under title I of WIOA, including secs. 170 (National
Dislocated Worker Grants (NDWGs) and 171 (Youthbuild program), are
available for expenditure for the period of performance identified in
the grant or contract.
Section 683.115 What planning information must a State submit in order
to receive a formula grant?
This proposed section implements the statutory requirement that an
approved Unified State Plan or Combined State Plan be submitted before
formula funds under title I, subtitle B, of WIOA and Wagner-Peyser can
be issued. As discussed in the preamble discussion of part 676, WIOA is
apparently inconsistent as to whether outlying areas must submit a
Unified or Combined State Plan to receive funding under title I. The
preamble discussion of part 676 details the apparent inconsistency and
identifies potential options to resolve the inconsistency.
Section 683.120 How are Workforce Innovation and Opportunity Act title
I formula funds allocated to local areas?
This proposed section describes the timeframe and formula factors a
Governor must employ when allocating funds to local areas under secs.
128 and 133. It also specifies the steps a Governor must take when
issuing allocations, including consulting with Local Boards and elected
officials prior to issuing the allocation. The Governors must issue the
funds to the local areas in a timely manner to allow for an adequate
planning process.
This section also adopts the provision in sec. 134(2)(A)(ii) of
WIOA that allows States to use unobligated rapid response funds, after
the completion of the PY, for statewide activities.
Section 683.125 What minimum funding provisions apply to Workforce
Innovation and Opportunity Act adult, dislocated worker, and youth
allocations?
This proposed section addresses the minimum funding thresholds for
States funded under subtitle B of title I of WIOA. Minimum funding
thresholds are established to offset the impact of fluctuations in the
formula factors that result from shifts in the economy that may be
compounded by additional downturns in a particular industry or market
in a particular State. Sections 128(b)(2)(A) and 133(b)(2)(A) of WIOA
contain these minimum funding requirements to avoid significant swings
in the amount of funding a State receives from 1 year to the next and
to avoid any disruption of services or planning.
[[Page 20747]]
Section 683.130 Does a Local Board have the authority to transfer funds
between the adult employment and training activities allocation and the
dislocated worker employment and training activities allocation?
This proposed section provides flexibility to local areas to
provide services in the areas of greatest need by allowing fund
transfers of up to 100 percent of a PY allocation between the local
adult and local dislocated worker allocations. Proposed Sec.
683.130(b) requires a Local Board to obtain written approval of the
Governor before making such a transfer. This flexibility to transfer
funds is contained in sec. 133(b)(4) of WIOA.
Section 683.135 What reallotment procedures does the Secretary use?
This proposed section implements secs. 127(c) and 132(c) of WIOA,
and explains the Department's process for recapture and reallotment of
formula funds awarded to the States under title I. The proposed rule
requires the Secretary to make the determination about whether the
State has obligated 80 percent of the funds during the second quarter
of each PY, rather than the first quarter. The procedures are the same
as those in the WIA regulation at 20 CFR 667.150, with a few
exceptions. The Department proposes to make the determination during
the second quarter because State financial reports for the end of the
PY period are not locked for modification until the next quarter's
reports are submitted, which is during the second quarter of the PY.
The Department also uses the term ``each'' to make it clear that the
Department performs the reallotment procedures every PY with respect to
the prior PY. Further, the section clarifies that the amount subject to
recapture is based on the unobligated balance of the prior ``program''
year, in accordance with secs. 127(c)(2) and 132(c)(2) of the statute.
Finally, the proposed section clarifies the language that the recapture
amount, if any, is determined separately for each funding stream.
Proposed Sec. 683.135(c) defines the term ``obligation'' in
accordance with the new OMB Administrative Requirements at 2 CFR 200.71
(``[w]hen used in connection with a non-Federal entity's utilization of
funds under a Federal award, obligations means orders placed for
property and services, contracts, and subawards made, and similar
transactions during a given period that require payment by the non-
Federal entity during the same or a future period.''). The Department
is using this definition to be consistent in our application of 2 CFR
part 200, which is applicable to all funds awarded as grants or
cooperative agreements. The proposed rule includes the same additions
to the definition of ``obligation'' that are in the WIA regulation at
20 CFR 667.150(d)(1) and (2). The Department will continue to recognize
the monies allocated to the local areas through the formula process
under subtitle B of title I as obligated by the States for the purposes
of this section, and the Department has clarified this by adding the
words ``to the local area'' in proposed paragraph (c)(1). Because of
this, local transfers between the adult and dislocated worker funding
streams do not impact the Department's recapture calculation for
reallotment among the States. Similarly, the fact that up to 10 percent
of local funds may be reserved for administrative costs does not affect
the calculation. Recapture and reallotment of funds among States will
occur during PY 2015 based on obligations in PY 2014, because the
procedures for realloting funds did not change from WIA to WIOA.
New in WIOA, sec. 134(a)(2)(A)(ii) permits the Governor to use
rapid response funds that remain unobligated after the first PY for
which they were allotted to carry out statewide employment and training
activities. The rapid response funds will be included in the
calculation of unobligated funding to determine if a State is subject
to reallotment. Sections 127(c) and 132(c) of WIOA do not except rapid
response funds from recapture--a tool which provides a strong incentive
for States to expeditiously expend funds.
Excepting rapid response funds from the reallotment calculation
would effectively remove the reallotment provision out of the statute.
The Department generally is able to recapture and reallot only
dislocated worker funds, because States immediately obligate 85 percent
of their adult and youth program funds by allocating them to the local
areas through the formula process. Because sec. 133(a)(2) of WIOA
allows the Governor to reserve up to 25 percent of dislocated worker
funds for rapid response activities, there may never be a situation
where 80 percent of the remaining dislocated worker funds have not been
obligated. Therefore, the Department includes rapid response funds in
the calculation of a State's unobligated funding to determine if the
State is subject to recapture and reallotment.
However, even if a State is subject to reallotment, the Governor
may use the unobligated rapid response funds described in WIOA sec.
134(a)(2)(A)(ii) that remain available after reallotment to carry out
statewide employment and training activities (in addition to rapid
response activities). This preserves the additional flexibility
provided to the Governors in WIOA sec. 134, by permitting Governors to
use rapid response funds for statewide employment and training
activities if not expended in the first year of availability. The
Department welcomes comments on the proposed reallotment approach and
potential impact on States, including the transfer flexibility.
Sec. 683.140 What reallocation procedures must the Governors use?
This proposed section describes the procedures for reallocating
youth, adult, and dislocated worker funds among local areas in the
State, in accordance with secs. 128(c) and 133(c) of WIOA, and is
unchanged from the WIA regulation at 20 CFR 667.160 except that
proposed paragraph (a) requires the Governor to consult with the State
Board before reallocating, as required by secs. 128(c)(1) and 133(c)(1)
of WIOA. Proposed paragraph (b) clarifies that the amount to be
recaptured, if any, must be separately determined for each funding
stream, and the calculations of unobligated balances in each stream
must be adjusted to account for any funds that are transferred between
funding streams under proposed Sec. 683.130. The Department also notes
that States and local areas are required to adhere to the definition of
``obligations'' in 2 CFR 200.71.
Section 683.145 What merit review and risk assessment does the
Department conduct for Federal financial assistance awards made under
Workforce Innovation and Opportunity Act title I, subtitle D?
This proposed section includes new requirements mandated by the
Uniform Guidance. First, there is a requirement for the use of merit
review as a means to ensure that discretionary or competitive grants
and cooperative agreements are awarded through a competitive, merit-
based process. Second, this section incorporates the Uniform Guidance
requirement, found at 2 CFR 200.205, that an agency must have ``a
framework for evaluating the risks posed by applicants before they
receive Federal Awards.'' The factors the Grant Officer will consider
are listed in this section and drawn from 2 CFR 200.205. Additional
guidance will be issued to further specify how the Grant Officer will
evaluate these factors in determining whether the applicant
[[Page 20748]]
should be precluded from receipt of Federal financial assistance.
Section 683.150 What closeout requirements apply to grants funded with
Workforce Innovation and Opportunity Act title I and Wagner-Peyser Act
funds?
This proposed section is new; there is not one like it in the WIA
regulations. It addresses closeout, which is an important component to
complete the grant life cycle. This section paraphrases the Uniform
Administrative requirement sections on closeout and post-closeout
adjustments (2 CFR 200.343-344). Specifically, when the period of
performance ends, the Department will close out the Federal award after
determining that all administrative actions and required work have been
completed by the grant recipient. The grant recipient must submit all
required reports and liquidate all obligations and/or accrued
expenditures within 90 days of the end of the performance period. The
Department will promptly reimburse the grant recipient for allowable
reimbursable costs under the Federal award being closed out. The non-
Federal entity must promptly refund any balanced of unobligated cash
that is owed to the Department. The Department will settle for any
upward or downward adjustments to the Federal share of costs after
closeout reports are received. The grant recipient must account for any
real and personal property acquired with Federal funds or received from
the Federal government. The Department must complete all closeout
actions no later than 1 year after receiving and accepting all required
final reports; however, closeout does not affect the Department's right
to disallow costs and recover funds, or obligations of the grantee,
including audit, property management, and records retention
requirements. After award closeout, a relationship created under the
award may be modified or ended. Grant recipients that award funds to
subrecipients must institute a timely closeout process after the end of
performance to ensure a timely closeout in accordance with this
section.
3. Subpart B--Administrative Rules, Costs and Limitations
Financial and Administrative Rules. These proposed regulations
provide the rules applicable to WIOA grants in the areas of fiscal and
administrative requirements, audit requirements, and allowable cost/
cost principles, and includes changes as the result of the Uniform
Guidance at 2 CFR part 200 and any exceptions to 2 CFR part 200 that
have been released by the Department under 2 CFR part 2900. To support
the fiscal integrity of the grant process, proposed Sec. 683.220
requires recipients and subprecipients of WIOA or Wagner-Peyser Act
funds to have an internal control structure in place that provides
safeguards to protect personally identifiable information and other
sensitive information. This section is new to WIOA; there is no
corresponding section in the WIA regulations. Another new section
provides rules for using real property with Federal equity. Under this
provision, Federal equity acquired in real property through grants to
States awarded under title III of the SSA or the Wagner-Peyser Act is
transferred to the States that used the grant to acquire the equity;
the portion of the equity transferred must be used to carryout
activities authorized under these programs and/or WIOA. The new section
also provides instructions on using properties funded with Reed Act
equity or the Job Training Partnership Act (JTPA).
Costs and Limitations. This proposed regulation in Sec. 683.205
delineates activities and functions associated with the cost of
administration as well as cost limitations (discussed in proposed Sec.
683.205). The intent continues to be that the function and intended
purpose of an activity should be used to determine whether the costs
are administrative or programmatic. There is a new section on salary
and bonus limitations, which prescribes limits on salaries and bonuses
in both WIOA and Wagner-Peyser programs. The proposed subpart also
describes activities that are prohibited under WIOA, such as employment
generating activities and activities that encourage business
relocation.
Responsibilities toward participants and employees. These proposed
regulations provide rules on employee displacement, wage and labor
standards, health and safety standards, and non-discrimination.
Other rules. There is a new section addressing the allowability of
earning under WIOA grants.
Section 683.200 What general fiscal and administrative rules apply to
the use of Workforce Innovation and Opportunity Act title I and Wagner-
Peyser funds?
This proposed section describes the application of the Uniform
Guidance and the corresponding exceptions authorized by the Department
at 2 CFR part 2900 for all grant recipients and subrecipients,
including for-profit organizations and foreign entities. It references
the cost principles, discusses when prior approval for certain
expenditures is required, and highlights a number of specific
requirements in the Uniform Guidance and the WIOA statute. For example,
this section addresses the requirement that interest income be disposed
of using the addition method and requires an entity to provide
additional program services with those funds. This section also
addresses times when income is earned and how it is recognized,
reported, and applied to the program. It outlines the code of conduct
and conflict of interest requirements that must be implemented under 2
CFR part 200, as well as certain restrictions imposed on grant
recipients and subrecipients when using WIOA and Wagner-Peyser funds,
including the Buy-American provision in sec. 502 of WIOA. Likewise,
this section requires adherence to the mandatory disclosure
requirements found in 2 CFR part 200 on all violations of Federal
criminal law involving fraud, bribery, or gratuity violations
potentially affecting the Federal award. Additional disclosures on
lobbying, drug-free workplace, debarment, and suspension continue to be
required as well. Such disclosures must be timely and in writing.
Failure to make the required disclosures can result in any of the
remedies described in Sec. 200.338, remedies for noncompliance,
including suspension or debarment.
Section 683.205 What administrative cost limitations apply to Workforce
Innovation and Opportunity Act title I grants?
This proposed section specifies the statutory administrative cost
limitations on title I grant funds. States receiving formula WIOA funds
are limited to spending no more than 5 percent of their annual
allotment on administrative costs. Local areas are limited to spending
no more than 10 percent of their annual allocation on administrative
costs. Flexibility is provided to States and local areas in the statute
by allowing administrative funds from the three formula funding streams
awarded under subtitle B to be pooled and used together for
administrative costs for any of the three programs, at the State and
locals' discretion. For other WIOA title I and Wagner-Peyser funding,
the administrative cost limits can be found in the grant agreement and
are subject to the Uniform Guidance.
[[Page 20749]]
Section 683.210 What audit requirements apply to the use of Workforce
Innovation and Opportunity Act title I and title III funds?
This proposed section specifies the audit requirements for all
grant recipients and subrecipients of WIOA funds that expend more than
$750,000 in Federal funds during the fiscal year, including for-profit
entities that are grant recipients or subrecipients of WIOA title I or
Wagner-Peyser funds. As this proposed section notes, the audit
requirements do not normally pass through to contractors, but will in
some situations, such as where the payments are found to constitute a
Federal award rather than a payment for goods and services. This
section seeks to implement the requirements of the Uniform Guidance.
Section 683.215 What Workforce Innovation and Opportunity Act title I
functions and activities constitute the costs of administration subject
to the administrative cost limitation?
The proposed section defines the functions and activities that
constitute administration in accordance with sec. 3(1) of WIOA, and
therefore are subject to the administrative cost limitations discussed
in proposed Sec. 683.205. The Department notes that this proposed
section applies to activities performed under all grants awarded under
title I of WIOA. It does not apply to activities funded through
contracts, such as operation of Job Corps centers. The proposed rule is
the same as the WIA regulation at 20 CFR 667.220 with a few exceptions.
For clarification, fiscal agent responsibilities are now included in
the list of enumerated administrative costs. Regions are also included
in the list of entities that can incur administrative costs, consistent
with sec. 106 of WIOA. The Department made these enhancements because
services can be integrated and streamlined through regions that may
cross geographical boundaries or local economic areas. Additionally,
the section refers to ``contractors'' instead of ``vendors'' to be
consistent with the Uniform Guidance, which replaces vendor with
contractor and defines ``contractor'' at 2 CFR 200.23.
Proposed Sec. 683.215(c) describes some activities that can be
administrative, programmatic, or both, depending on whether the
underlying functions which they support are classified as programmatic
or administrative. These include costs of activities such as
information systems development and operation, travel, and continuous
improvement. For example, the costs of developing an information
system, which serves both administrative functions, and the tracking
and monitoring of participants, would be allocated between program
costs and administrative costs in proportion to the use of the system
for each intended purpose.
On the other hand, preparing program-level budgets and program
plans are classified as program costs. The negotiation of MOUs and one-
stop infrastructure agreements, and certifications of one-stop centers
are also program costs, because they build or support the one-stop
delivery system and services to participants.
The Department welcomes comments regarding whether it is more
advantageous to issue the proposed list of administrative costs in
Sec. 683.215(b) as a regulation, or to provide a general description
of administrative costs similar to the definition in sec. 3(1) of WIOA
and provide a rationale for why such an approach is advantageous. The
Department also seeks comment on whether this list will need to be
flexible, and subject to review and change periodically, or whether it
is anticipated to be stable. Additionally, the Department seeks comment
as to whether indirect costs should be included as programmatic or
administrative.
Finally, proposed Sec. 683.215(d) requires entities to make
efforts to streamline administrative services and reduce administrative
costs by minimizing duplication and effectively using information
technology to improve services. The Department expects that
streamlining the administration of the program will minimize
duplication of multiple systems at different levels of grant
administration so that more funds will be available for program
activities.
Section 683.220 What are the internal control requirements for
recipients and subrecipients of Workforce Innovation and Opportunity
Act title I and Wagner-Peyser Act funds?
This proposed new section describes the internal controls that
recipients and subrecipients must install and have in place when
expending WIOA and Wagner-Peyser Act funds, and is based on 2 CFR
200.303. The controls include having a structure and policies in place
to protect personally identifiable and sensitive information, including
information that the Department considers to be sensitive, and
providing reasonable assurances that the recipient or subrecipient is
managing the award in compliance with Federal law and the terms of the
award, complying with Federal law and the conditions of the award,
evaluating and monitoring the recipient's or subrecipient's compliance
with Federal law and award terms, and taking prompt action when
noncompliance is identified. The internal controls must meet the
Committee of Sponsoring Organizations of the Treadway Commission (COSO)
framework. The framework established has been used in the private
sector for numerous years and provides standards to achieve reasonable
assurance in the achievement of the following: Effectiveness and
efficiency of operations; reliability of financial reporting;
compliance with applicable laws and regulations; and safeguarding of
assets. Complying with the internal control requirements will increase
accountability and transparency in the use of WIOA and Wagner-Peyser
Act funds. Through past monitoring and oversight, the Department
discovered that some grantees did not have the tools or access to
resources to build a strong internal control structure. The Department
will work with States and discretionary grantees to provide tools and
assistance to achieve better results through its internal control
structure. Direct grant recipients must assist their subrecipients in
achieving an internal control structure framework consistent with 2 CFR
part 200 and COSO.
Section 683.225 What requirements relate to the enforcement of the
Military Selective Service Act?
This proposed section specifies the requirements of the Military
Selective Service Act for programs and activities authorized under
title I of WIOA and found in sec. 189(h) of WIOA. This proposed section
is substantively the same as the WIA regulation at 20 CFR 667.250.
Section 683.230 Are there special rules that apply to veterans when
income is a factor in eligibility determinations?
This proposed section addresses the laws governing the
determination of eligibility for veterans and their spouses for WIOA
funded services with income qualification requirements. The parameters
for the exclusion of certain income from the eligibility determination
process are outlined in this section. This section also states that the
same method of excluding certain income of veterans must also be used
when a local area imposes a priority of service threshold when funding
for program services is limited.
[[Page 20750]]
Section 683.235 May Workforce Innovation and Opportunity Act title I
funds be spent for construction?
This proposed section is different from the WIA regulations at 20
CFR 667.260. It is based on the requirements in the Uniform Guidance at
2 CFR 200.439(b)(3). The proposed text states that WIOA title I funds
must not be spent on construction, purchase of facilities or buildings,
or other capital expenditures for improvements to land or buildings
except with prior approval of the Secretary. Under the statute, WIOA
title I funds can be used for construction only in limited situations,
including meeting obligations to provide physical and programmatic
accessibility and reasonable accommodations, certain repairs,
renovations, alterations, and capital improvements of property, and for
disaster relief projects under WIOA sec. 170(d), YouthBuild programs
under WIOA sec. 171(c)(2)(A)(i), and for other projects that the
Secretary determines necessary to carry out WIOA, as described by under
sec. 189(c) of WIOA. The proposed regulatory text is meant to include
all these situations, but not offer an exclusive list to ensure that
the Secretary is able to use the funds for construction in any
situation where it might be necessary.
Section 683.240 What are the instructions for using real property with
Federal Equity?
The proposed section provides rules on State Employee Security Act
(SESA) properties, Reed Act-funded properties, and JTPA-funded
properties. The proposed section provides guidance on these different
properties because the use of these properties can play an integral
part in WIOA's intent to align Federal investments to support jobs
seekers and employers. Such efforts are not only achieved through
strategic coordination among one-stop partners, but through physical
presence at offices in the one-stop delivery system. Many buildings
that have existing Federal equity currently house Wagner-Peyser
programs, and it seems logical to use these facilities as American Job
Centers if they are accessible and available and can support the
requirements for colocation outlined in proposed Sec. Sec. 678.310
through 678.320. Properties with Reed Act equity may also play a role
in the American Job Center System. Lastly, the Department is aware that
many local workforce development areas that were previously known as
service delivery areas (SDAs) continue to be used as facilities for WIA
programs, and they should continue to be used for the one-stop delivery
service system under WIOA. The Department welcomes feedback on these
provisions. Making use of these properties for the one-stop delivery
system in accordance with statutory requirements will maximize the
investments already made in these buildings and help to achieve the
goals of WIOA.
With respect to Federal equity in SESA properties, the proposed
section restates the requirements of sec. 192 of WIOA, and explains
that Federal equity acquired in real property through grants to States
awarded under title III of the SSA or the Wagner-Peyser Act is
transferred to the States that used the grant to acquire the equity.
The portion of the real property attributable to the Federal equity
transferred must be used to carry out activities authorized under WIOA,
title III of the SSA, or the Wagner-Peyser Act. When the property is no
longer needed to carry out those activities, the States are directed to
request disposition instructions from the Grant Officer. Proceeds from
the disposition must be used to carry out activities authorized under
WIOA, title III of the SSA, or the Wagner-Peyser Act.
The statutory limitation in sec. 192(b) of WIOA is provided as
well. States are not permitted to use funds awarded under WIOA, title
III of the Social Security, or the Wagner-Peyser Act to amortize the
costs of the real property that is purchased by any State after
February 15, 2007.
The Department has also included the new requirement from sec.
121(e)(3) of WIOA and sec. 3(d) of the Wagner-Peyser Act that
properties occupied by Wagner-Peyser ESs be collocated with one-stop
centers.
With respect to Reed Act-funded properties, the proposed rule
states that properties with Reed Act equity may be used for the one-
stop delivery system to the extent that the proportionate share of Reed
Act equity is less than or equal to the proportionate share of
occupancy by the Wagner-Peyser and UC programs. However, subject to
conditions specified in sec. 903(c)(2) of the SSA and any
appropriations limitations, a State is permitted, at its discretion, to
use Reed Act funds for ``the administration of its UC law and public
employment offices.'' When the property is no longer needed for these
activities, the State must request disposition instructions from the
Grant Officer prior to sale. Because Reed Act funded properties are
different than other Federal equity properties, disposition
instructions will include a requirement to return the funds
attributable to the Reed Act equity to the State's account in the
Unemployment Trust fund. See discussion in TEGL 3-07 ``Transfer of
Federal Equity in State Real Property to the States.'' It is expected
that additional guidance will be issued to update the guidance
contained in TEGL 3-07, which will include instructions on the handling
of such properties when considering colocation of Wagner-Peyser, as
required in sec. 121(e)(3) of WIOA and sec. 3(d) of the Wagner-Peyser
Act (as added by the amendments in title III of WIOA).
For JTPA funded properties, the proposed rule states that real
property that was purchased with JTPA funds and transferred to WIA, is
now transferred to the WIOA title I programs and may be used for WIOA
purposes. It is the Department's position that the Federal equity
remains with the property while in use. Many properties that were
purchased with JTPA funds continue to be locations that house and serve
individuals and staff persons under WIA, and as such, those same
buildings must continue to be used for the purposes of WIOA. If JTPA
properties that were being used for WIA activities will not be used for
WIOA programs, disposal of the property must occur. When the real
property is no longer needed for the WIOA activities, the recipient
must seek instructions from the Grant Officer prior to disposition or
sale. A subrecipient would seek instructions from the State. Such
instructions must be consistent with 2 CFR part 200. The Department
welcomes any feedback from the workforce development system that
promotes the use of these properties and streamlines the disposition
process.
Section 683.245 Are employment generating activities, or similar
activities, allowable under title I of the Workforce Innovation and
Opportunity Act?
This proposed section implements sec. 181(e) of WIOA, which
restricts the use of WIOA funds for employment generating activities
except where the activities are directly related to training for
eligible individuals. The proposed section states that employer
outreach and job development activities are considered to be directly
related to training for eligible individuals, and it lists a number of
examples of acceptable activities. The section also describes the
conditions in which WIOA funds can be used for employer outreach.
Section 683.250 What other activities are prohibited under title I of
the Workforce Innovation and Opportunity Act?
This proposed section describes other activities that are expressly
prohibited
[[Page 20751]]
in title I of WIOA, including foreign travel paid for by WIOA formula
funds (sec. 181(e) of WIOA) payment of wages of incumbent workers
participating in economic development activities (sec. 181(b) of WIOA),
contracts with persons falsely labeling products as made in America
(sec. 502(c) of WIOA), and others.
Section 683.255 What are the limitations related to religious
activities in title I of the Workforce Innovation and Opportunity Act?
This proposed section describes the limitations related to using
WIOA funds to support religious activities, including the preclusion on
employment of participants for the construction, operation, or
maintenance of facilities used for sectarian purposes or worship, which
is contained in sec. 188(a)(3) of WIOA. This section also references 29
CFR part 2, subpart D, which describes other limitations in detail,
along with certain exceptions. This proposed section contains similar
requirements as the WIA regulations at 20 CFR 667.266.
Section 683.260 What prohibitions apply to the use of Workforce
Innovation and Opportunity Act title I funds to encourage business
relocation?
This proposed section describes the prohibitions on the use of WIOA
title I funds to encourage business relocation, including specific
timeframes when entities can begin working with such businesses. This
section also describes the States' obligation to develop procedures to
implement these rules. These provisions implement the requirements of
sec 181(d) of WIOA. This proposed section contains the same
requirements as the WIA regulations at 20 CFR 667.268.
Section 683.265 What procedures and sanctions apply to violations of
this part?
This proposed section lists the provisions that provide for
sanctions resulting from the violation of Sec. Sec. 683.235-260.
Section 683.270 What safeguards are there to ensure that participants
in Workforce Innovation and Opportunity Act employment and training
activities do not displace other employees?
This proposed section outlines conditions and safeguards to ensure
that any WIOA title I participant does not displace an existing
employee by participating in a WIOA title I program or activity. It
also states that an employee can file a complaint alleging
displacement. Section 181(b)(2) of WIOA did not change the WIA
displacement requirements at sec. 181(b)(2) of WIA. Accordingly, this
regulation is unchanged from the WIA regulation at 20 CFR 667. 270.
Section 683.275 What wage and labor standards apply to participants in
activities under title I of the Workforce Innovation and Opportunity
Act?
This proposed section describes the wage and labor standards that
apply to WIOA title I participants, including the requirements under
the Federal Fair Labor Standards Act (FLSA) and State and local minimum
wage laws. The regulation is unchanged from the WIA regulations at 20
CFR 667.272, except that it includes two additional provisions from
sec. 181 of WIOA. The first is that the reference to the FLSA minimum
wage requirement does not apply to territorial jurisdictions in which
the minimum wage requirement does not apply (WIOA sec. 181(a)(1)(B)),
and the second is that WIOA title I funds must not be used to pay the
wages of incumbent employees during their participation in economic
development activities provided through a statewide workforce delivery
system (WIOA sec. 181(b)(1)). This requirement is also found in
proposed Sec. 683.250(a)(1), but it is included here as well to give a
complete list of the wage standards that apply to WIOA participants.
Section 683.280 What health and safety standards apply to the working
conditions of participants in activities under title I of the Workforce
Innovation and Opportunity Act?
The proposed section explains what health and safety standards and
workers compensation laws apply to WIOA title I participants. The
standards in WIOA are the same as those in WIA, so the regulation is
unchanged from the WIA regulation at 20 CFR 667.274.
Section 683.285 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
This proposed section describes the nondiscrimination, equal
opportunity, and religious activities requirements that recipients, as
defined in WIOA sec. 188 and at 29 CFR part 37, must adhere to when
using WIOA title I funds. WIOA did not change these requirements, so
the proposed section contains the same requirements as the WIA
regulation at 20 CFR 667.275, with a few exceptions. Accordingly,
paragraph (a)(1) of the proposed rule refers to ``Job Corps
contractors,'' instead of ``vendors,'' to conform with 29 CFR part 37.
Additionally, proposed Sec. 683.285(a)(4) implements sec. 188(a)(4) of
WIOA, which prohibits discriminating against an individual because of
that person's status as a WIOA title I participant. Proposed Sec.
683.285(a)(5) also implements the requirement at sec. 188(a)(5) of WIOA
that participation in WIOA title I programs and activities be available
to citizens and nationals of the United States, lawfully admitted
permanent resident aliens, refugees, asylees, and parolees, and other
immigrants authorized by the Attorney General to work in the United
States. Finally, the proposed section includes the Wagner- Peyser
program as an example of a Department program that is covered by 29 CFR
part 2, subpart D.
Section 683.290 Are there salary and bonus restrictions in place for
the use of Workforce Innovation and Opportunity Act title I and Wagner-
Peyser Act funds?
This proposed section implements the requirements of sec. 194(15)
of WIOA related to salary and bonus restrictions that apply to
recipients or subrecipients. Although the statute applies the
restrictions to WIOA title I funding, the Department expanded
application to Wagner-Peyser Act recipients and subrecipients. The
appropriations acts for the last 9 years (Pub. L. 109-234 June 15,
2006) have applied the limitation to all ETA-funded programs; thus,
interpreting the provision as applying to Wagner-Peyser funded
activities is appropriate. Additionally, it is the Department's policy
to ensure that funding is directed to substantive workforce employment
and training activities to the greatest extent possible, rather than to
administrative costs.
The proposed section restates the WIOA statutory provisions.
Specifically, it prohibits recipients and subrecipients from paying the
salary and bonuses of an individual, either as direct or indirect
costs, at a rate in excess of the annual rate of basic pay prescribed
for level II of the Executive Schedule under 5 U.S.C. 5313.
Additionally, the limitation does not apply to contractors providing
goods and services as defined in OMB's Uniform Administrative
requirements (which supersedes OMB Circular A-133 cited in the
statute). The Department has used the term ``contractors'' instead of
the statutory term ``vendor'' to be consistent with the term used in
the Uniform Guidance. The proposed rule also explains the provision at
WIOA sec. 194(15)(B) that a State may establish a lower limit for
salaries and bonuses.
Finally, the Department has provided direction for scenarios in
which an employee may be funded by various
[[Page 20752]]
programs or work for multiple offices. If funds awarded under title I
of WIOA or the Wagner-Peyser Act pay only a portion of the employee's
salary or bonus, the WIOA title I or Wagner-Peyer Act funds may only be
charged for the share of the employee's salary or bonus attributable to
the work performed on the WIOA title I or Wagner-Peyser Act grant. That
portion cannot exceed the proportional Executive level II rate. This
restriction applies to the sum of salary and bonus payments made to an
individual whether they are charged as direct costs or indirect costs
under title I of WIOA and Wagner-Peyer. When an individual is working
for the same recipient or subrecipient in multiple offices that are
funded by title I of WIOA or the Wagner-Peyser Act, the recipient or
subrecipient must ensure that the sum of the individual's salary and
bonus payments does not exceed the prescribed limitation. These
clarifications will help to ensure that WIOA and Wagner-Peyser Act
funds are not overcharged for salary and bonus payments and that there
are no ``loopholes'' in applying the limitation.
Section 683.295 Is earning of profit allowed under the Workforce
Innovation and Opportunity Act?
This proposed section addresses earning profit under WIOA. As the
network of training services and one-stop operators has changed over
the years, the Department is including the proposed section to address
working with for-profit entities and the earning of profit by these
entities. Proposed Sec. 683.295(a)(2) includes a requirement for
grants and other Federal financial assistance awarded under secs.
121(d) and 134(b) of WIOA, which states that where a Federal financial
assistance award authorizes one-stop operators, service providers, or
ETPs to earn profit, the pass through entity must follow 2 CFR 200.323
to ensure that the entities' charges are reasonable and fair. The
requirement in 2 CFR 200.323 that profit be negotiated as a separate
element of the price will provide greater transparency as to the amount
of profit earned by for-profit entities whether they are subrecipients
or subcontractors. This paragraph (a)(2) describes an exception to the
general rule that for-profit entities acting under a contract are
allowed to earn profit. When the for-profit entity is a recipient of a
grant or other Federal financial assistance, the entities will now be
covered by the Uniform Guidance rather than the Federal Acquisition
Regulations. The general rule, for when for-profit entities are working
as contractors, is included in proposed Sec. 683.295(a)(3). The
paragraph notes that the profit is allowable provided that the
contractor abides by the requirements of 2 CFR 200.323. Proposed Sec.
683.295(b) states that for programs authorized by other sections of
WIOA, profit will be prohibited unless authorized by the terms and
conditions of the Federal award.
4. Subpart C--Reporting Requirements
This subpart provides guidance for reporting that will promote
transparency and accountability at the grant recipient level. With
today's demand for data in an open and transparent environment, the
Federal government meets the challenges with initiatives such as the
Digital Accountability and Transparency Act, requiring the Department
to open access to data and use common data metrics. Performance and
financial data, when made available, can lead to innovation. Not only
does the Secretary seek to employ fresh and innovative approaches in
serving job seekers and employers, the Department wants to utilize our
resources and reporting portals to provide to the public visualizations
rich in data and metrics to assist in better understanding of the
employment environment. It is the Department's intent to use data
collected from the financial, performance, and annual reports to
empower our workforce system while providing transparency and
accountability to our stakeholders. This subpart seeks to promote the
government's initiative to manage information as an asset to increase
operational efficiencies, reduce costs, improve services, support
mission needs, safeguard personal information, and increase public
access. One way to promote this initiative is through the collection
and transmission of data, using machine readable formats whenever
possible. To safeguard personally identifiable information, recipients
and subrecipients must limit the collection and transmission of such
data and use encrypted transmission software. To increase operational
efficiencies and reduce costs, the Department and its grantees work
together to find solutions that allow for the streamlining of reporting
and the reduction of duplication of systems and efforts. The
Department's existing financial expenditure form (ETA-9130) will be
modified to reflect new reporting requirements. The Secretary will
issue additional guidance on this topic.
683.300 What are the reporting requirements for programs funded under
the Workforce Innovation and Opportunity Act?
To continue with efforts for accountability and transparency as
well as to provide data to our stakeholders, the Department requires
its recipients to submit financial and performance reports, as well as
an annual performance report. The data contained in these reports must
be generated and processed in formats that are compatible with other
commonly used data systems and be in machine readable formats. This
proposed section specifies the reporting requirements for grant
recipients and the deadlines for such reports. This section also sets
forth recipients' responsibility to collect data from subrecipients.
Pargraphs (b), (d), and (e) separately describe the performance
reporting requirements for the core programs under sec. 116 of WIOA and
part 677 and other grant programs authorized under title I of WIOA.
5. Subpart D--Oversight and Resolution of Findings
This proposed subpart addressees the oversight and resolution
responsibilities of the Department and grant recipients of WIOA funds.
Oversight and monitoring is a valuable tool in effectively managing
grants and this subpart emphasizes the need for careful application of
these requirements by the Department and by recipients.
Oversight. These regulations which provide for oversight and
resolution responsibilities of the Department and its grant recipients
are an important part of the Department's overall strategy to improve
grant administration and to promote the vision of WIOA. As in WIA,
States will review their subrecipients and validate their compliance
with the Uniform Guidance on an annual basis and certify compliance to
the Secretary every 2 years. The States and grant recipients must also
install a monitoring system that meets the requirements of the Uniform
Guidance and includes the examination of such items as performance,
program goals, non-discrimination, conflict of interest, and mandatory
disclosures.
Resolution. The resolution of findings that arise from audits,
investigations, monitoring reviews, and the Grant Officer resolution
process is specified in this proposed subpart. It also provides
clarification on the effect of the Uniform Guidance on the resolution
process at the subrecipient level. When action to resolve findings is
inadequate, the Department will take additional action
[[Page 20753]]
against the State or other direct grant recipient to reach resolution.
Such action will include the Grant Officer resolution process,
including the initial and final determination process, as described in
proposed Sec. 683.440.
Sec. 683.400 What are the Federal and State monitoring and oversight
responsibilities?
This proposed section identifies the requirements of the Department
in performing oversight and monitoring of its grant recipients and of
the Department's grant recipients' responsibility for subrecipients.
Proposed Sec. 683.400(c) describes the requirements WIOA has placed on
the States to create a monitoring system for their subrecipients.
Proposed paragraph (d) also requires the retention of evidence related
to monitoring functions and resolution actions. This section also
covers the new requirements under the Uniform Guidance which requires
an examination of recipient and subrecipient non-discrimination and
conflict of interest policies, mandatory disclosures of all violations
of Federal criminal law involving fraud, bribery, or gratuity
violations potentially affecting the Federal award.
Section 683.410 What are the oversight roles and responsibilities of
recipients and subrecipients of Federal financial assistance awarded
under title I of the Workforce Innovation and Opportunity Act and
Wagner-Peyser?
This proposed section defines the roles and areas in which
oversight must be conducted by the recipients and subrecipients,
including ensuring compliance with relevant rules and developing a
monitoring system. Proposed paragraph (b) of the section also discusses
a number of requirements for the States' monitoring systems and the
Governor's biannual certification. The Department has always placed
significant emphasis on monitoring as a tool in providing effective
grants managements and this emphasis is further supported by the
inclusion of monitoring in the Uniform Guidance. Monitoring and
oversight also helps in identifying technical assistance needs, areas
for improvement, and best practices.
Section 683.420 What procedures apply to the resolution of findings
arising from audits, investigations, monitoring, and oversight reviews?
Proposed Sec. 683.420(a) describes the steps and procedures that
must be taken by grant recipients to resolve findings at the
subrecipient level. For formula funds, sec. 184(a) of WIOA requires
States to use the procedures they have in place for other Federal grant
programs or, in the absence of such procedures, write standards for
this program. Paragraph (a)(2) states that non-formula grant recipients
must have written monitoring and resolutions procedures that adhere to
the Uniform Guidance governing monitoring of subrecipients. All
recipients must ensure that the rules governing the use of WIOA funds
are being followed, including adherence to cost categories and cost
limitations. Proposed Sec. 683.420(b) also describes the processes the
Department will use to resolve findings of its direct grant recipients,
and proposed paragraph (c) describes the processes to resolve findings
regarding the non-discrimination provisions in sec. 188 of WIOA.
Section 683.430 How does the Secretary resolve investigative and
monitoring findings?
This proposed section describes the actions the Secretary will take
to resolve findings. This section also describes the process when the
Grant Officer agrees that the recipient's actions are sufficient to
resolve a finding and when they are not satisfactory. This proposed
section implements the requirements of sec. 184(a)(7) of WIOA. Proposed
Sec. 683.430(b) states that audits from 2 CFR part 200 will be
resolved through the Grant Officer resolution process described in
proposed Sec. 683.440.
Section 683.440 What is the Grant Officer resolution process?
This proposed section describes the Grant Officer's resolution
process when dissatisfied with the actions taken by the grant recipient
to resolve findings. This process involves the issuance of an Initial
Determination followed by a period for informal resolution which allows
the recipient to work with the Department to provide the necessary
documentation or take certain action to reach a resolution. At the end
of that period, the Grant Officer issues a Final Determination with
findings listing any unresolved issues, establishing any debts, and
listing required corrective actions, as well as offering the
opportunity for a hearing. This process is unchanged from the process
under WIA.
6. Subpart E--Pay-for-Performance Contract Strategies
Introduction
WIOA's Pay-for-Performance provisions were designed to provide
flexibility at the local level in an effort to infuse the system with
more innovation, improve results for participants, and reward providers
who deliver outstanding results. This regulatory proposal builds on the
Department's experience with innovations and evidence-based work funded
under the Workforce Innovation Fund and other Federally authorized
activities. Moreover, the statute authorizes States to use non-Federal
funds to establish incentives for Local Boards to implement WIOA Pay-
for-Performance contract strategies. We encourage States to adopt
evidence-based approaches and innovate in the way they deliver services
to participants in order to improve outcomes, and recognize that WIOA
Pay-for-Performance contracting strategies, while still experimental,
are one promising method to do so.
A performance-based contract is a contracting strategy that
establishes specific benchmarks that must be achieved in order for the
contractor to receive payment. The WIOA Pay-for-Performance contracts
are a specific form of contracting that, as authorized by WIOA, have
six distinct characteristics: (1) They must provide adult training
services described in sec. 134(c)(3) of WIOA or youth activities
described in sec. 129(c)(2) of WIOA; (2) they must specify a fixed
amount that will be paid to the service provider based on the
achievement of specified levels of performance on the performance
outcomes in sec. 116(b)(2)(A) of WIOA within a defined timetable; (3)
the performance outcomes achieved must be independently validated using
high-quality, reliable, and verified data; (4) outcomes must be
reported in accordance with sec. 116(d)(2)(K) of WIOA; (5) pursuant to
sec. 3(47)(A) of WIOA, bonuses may be built into WIOA Pay-for-
Performance contracts so long as such bonuses are used to expand the
contractor's capacity to provide effective training; and (6) there may
be an extended period of availability to expend funds under Pay-for-
Performance contract strategies. Additionally, the funds obligated for
WIOA Pay-for-Performance contract strategies are limited to 10 percent
of the total of the local adult and dislocated worker allotments
provided under sec. 133(b) of WIOA, and 10 percent of the local youth
allotment provided under sec. 128(b) of WIOA.
The WIOA Pay-for-Performance contract strategy is one of several
innovative strategies WIOA adopts to place a higher emphasis on
performance outcomes and provider accountability, drive better results,
and incorporate rigorous evaluation and evidence-based practice into
the delivery of workforce
[[Page 20754]]
services. The Department intends to support this contracting approach
by incorporating WIOA Pay-for-Performance into its WIOA performance
reporting requirements for States in which local areas are adopting
such a contracting approach.
The WIOA Pay-for-Performance contract strategy can benefit local
areas, job seekers, and business customers when used to support
interventions that have a high probability of success based on prior
evidence; have measurable outcomes supported with authoritative data
and strong evaluation methodologies; and are overseen by experienced
managers that have flexibility to adjust their approach.
Given the heavy emphasis that WIOA Pay-For-Performance authorities
place on outcome-based payment and independent validation, the quality
of local area data and data systems should be of high enough quality to
be able to (1) reliably and validly establish appropriate performance
benchmarks for the target population, and (2) support independent
validation of actual performance outcomes.
In particular, in order for these contracting mechanisms to work
effectively and efficiently, they must incorporate measures to prevent
or account for potential ``creaming'' by service providers, and strong
data systems are essential to this function. The use of outcome data
from comparison groups--substantially similar populations who are not
receiving services through the provider--is one potential method to
minimize creaming. Another potential method adopted by WIOA to address
creaming is the use of a statistical adjustment model for (1) the
establishment of performance targets, and (2) the adjustment of actual
performance based on economic conditions and the characteristics of the
participants. In either case, the use of valid and reliable baseline
data will help to inform appropriate performance targets and that
strong data systems are necessary to support this approach.
Additionally, it is important to engage in a feasibility analysis
before engaging in a WIOA Pay-for-Performance contract, and that these
analysis should be built into a WIOA Pay-for-Performance contract
strategy. Such a feasibility analysis could include items like
assessing the availability and quality of necessary data, including the
source and cost of such data; determining the target population to be
served; determining the availability of competent providers; whether
any other additional professional services are required to support the
execution of the contract; and reviewing other operational factors that
would affect the feasibility of the contract.
The Department is soliciting comments on the appropriate strategies
to implement different varieties of Pay for Performance contracts,
including issues involving what components should be included in a Pay-
for-Performance contracting strategy; what factors should be considered
in a feasibility analysis; which entities should be eligible to enter
into these contracts; how different varieties of contracts should be
structured; how to best establish baseline performance information for
target populations served; how best to prevent or account for creaming;
the best methods to account for the relative and absolute risk to
government, the contractor, and other stakeholders when setting payment
terms; how best to balance the total cost to government against bonus
and incentive payments included in the contract and potential outcome
improvements for participants; how comprehensive services can be
provided in a Pay-for-Performance contract context; and how to
facilitate the participation of small service providers.
Because of the requirements contained in statute, the Department is
considering how best to incorporate reporting into performance and
fiscal information collection requests, which will be included in the
performance and fiscal PRA packages, or whether a separate information
collection is needed. We welcome comments regarding the burden of
additional reporting requirements, such as specifics about local areas
utilizing pay-for-performance contract strategies; the service
providers, the amount of contracts, duration, and monitoring and
evaluation findings. The Department expects to put performance and
implementation requirements in place in the future.
Section 683.500 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract strategy?
This proposed section describes the components of a WIOA Pay-for-
Performance contract strategy and describes WIOA Pay-for-Performance
contract as a specific type of performance-based contract. It draws a
distinction between the WIOA Pay-for-Performance contract itself and
the broader goals and strategies surrounding it, which are the
contracting strategy.
Local area WIOA Pay-for-Performance contract strategies must
include: (1) Identification of the problem space and target populations
for which a local area will pursue a WIOA Pay-for-Performance contract;
(2) the outcomes the local area would hope to achieve through a Pay-
for-Performance contract relative to baseline performance; (3) the
acceptable cost associated with implementing such a strategy; (4) a
feasibility study to determine whether the service delivery strategy to
be funded is suitable for a WIOA Pay-for-Performance contracting
strategy; (5) independent validation of the performance outcomes
achieved under each contract within the strategy prior to payment
occurring; and (6) a description of how the local area will reallocate
funds to other activities under the contract strategy in the event a
service provider does not achieve performance benchmarks under a WIOA
Pay-for-Performance contract.
The Department will issue additional guidance to both State and
local areas on the development of the broader Pay-for-Performance
contract strategy, including the scope and minimum requirements of the
required feasibility study.
Section 683.510 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract?
This proposed section defines the requirements associated with a
WIOA Pay-for-Performance contract, which would be awarded under a WIOA
Pay-for-Performance contract strategy.
Paragraph (a) identifies a WIOA Pay-for-Performance contract
strategy as a type of performance-based contract. A performance-based
contract is a contracting mechanism that establishes specific
benchmarks that must be achieved in order for the contractor to receive
payment. Performance-based contracting in general is defined and
discussed in subpart 37.6 of the Federal Acquisition Regulation.
Paragraph (b) articulates that WIOA Pay-for-Performance contracts
can only be used when they are part of a broader WIOA Pay-for-
Performance Contract Strategy described in Sec. 683.500.
To be consistent with past practice and with the Uniform Guidance
at 2 CFR part 200, proposed paragraph (c) prohibits the use of cost-
plus percentage contracts in WIOA Pay-for-Performance contracts.
The specifications in proposed paragraphs (d) through (f) regarding
eligible service providers, structure of payments, target populations,
and program elements are derived directly from the statute, at WIOA
secs. 3(47), 129(c)(1)(D), 129(c)(2), 134(c)(3), and 134(d)(1)(iii).
Proposed paragraph (e) specifically requires that the performance
elements that must be included in any WIOA Pay-for-
[[Page 20755]]
Performance contract are the primary indicators of performance
described in sec. 116(b)(2)(A) of WIOA and further defined in proposed
Sec. 677.155. These include:
i. The percentage of program participants who are in unsubsidized
employment during the second quarter after exit from the program;
ii. the percentage of program participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
iii. the median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
iv. the percentage of program participants who obtain a recognized
post-secondary credential, or a secondary school diploma or its
recognized equivalent (subject to sec. 116(b)(iii) of WIOA), during
participation in or within 1 year after exit from the program;
v. the percentage of program participants who, during a program
year, are in an education or training program that leads to a
recognized post-secondary credential or employment and who are
achieving measurable skill gains toward such a credential or
employment; and
vi. the indicators of effectiveness in serving employers
established pursuant to sec. 116(b)(iv) of WIOA.
Proposed paragraph (h) states that under WIOA Pay-for-Performance
contracts, bonus payments and/or incentive payments are authorized to
be paid to the service providers who enter into the WIOA Pay-for-
Performance contracts. Such bonus payments must be used to expand the
contractor's capacity to provide effective training. These payments are
authorized by sec. 3(47)(A) of WIOA. Incentive payments must be
consistent with incentive payments for performance-based contracting as
described in the Federal Acquisition Regulation. WIOA Pay-For-
Performance contracts may also utilize positive and negative incentives
to other forms of performance-based contracts. To be consistent with
performance-based contracting and in alignment with WIOA Pay-for-
Performance contract characteristics, such as recognizing high
performers and providing boards with flexibility to make adjustments,
incentive payments should be based on the total and relative amount of
risk incurred by the service provider or contractor versus that
incurred by the local area or other stakeholders.
Because the Department is responsible for reporting on local
outcomes annually to Congress, as well as providing recommendations for
improvements in and adjustments to WIOA Pay-for-Performance contract
strategies, proposed paragraph (i) requires specific reporting by the
local areas to the State regarding the performance outcomes achieved by
the service providers that enter into WIOA Pay-for-Performance
contracts. Additionally, proposed paragraph (j) requires independent
validation of a contractor's achievement of performance benchmarks
under a WIOA Pay-for-Performance contract, as required by sec. 3(47)(B)
of WIOA, and requires that this validation be based on high-quality,
reliable, and verified data. The Secretary will issue guidance related
to standards for independent evaluation as part of its Pay-for-
Performance guidance to States and local areas.
Paragraph (k) indicates that the Secretary may issue additional
guidance related to use of WIOA Pay-for-Performance contracts.
Under WIA, many Workforce Development Boards utilized elements of
performance-based contracts with training providers. These contracts
incorporated performance outcomes that contractors were required to
meet to obtain payment. However, these contracts did not contain
required elements of a WIOA Pay-for-Performance contract articulated in
this section. The Department encourages local areas to refocus these
traditional performance-based contracts to place an emphasis on the
contractor achieving outcomes like participants obtaining and retaining
good jobs, rather than outputs like the number of people served. Also,
the provision for the inclusion of bonus payments is limited to WIOA
Pay-For-Performance contracts. Contracts that are not executed under
the WIOA Pay-For-Performance contracting authority may continue to
include performance incentives, either positive or negative or both, in
compliance with the Federal Acquisition Regulation. Workforce
Development Boards may continue to use performance-based contracts that
are not WIOA Pay-for-Performance contracts. The 10 percent limitation
provisions in secs. 129(c)(1)(D) and 134(d)(1)(A)(iii) of WIOA only
apply to WIOA Pay-for-Performance contract strategies, including WIOA
Pay-for-Performance contracts.
Section 683.520 What funds can be used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies?
This proposed section restates the WIOA requirements that funds
allocated under secs. 133(b)(2) and (3) of WIOA can be used for WIOA
Pay-for-Performance contract strategies providing adults and dislocated
worker training, and funds allocated under sec. 128(b) of WIOA can be
used for WIOA Pay-for-Performance contract strategies providing youth
activities. No more than 10 percent of the total local adult and
dislocated worker allotments can be expended on the implementation of
WIOA Pay-for-Performance contract strategies for adult training
services described in sec. 134(c)(3) of WIOA. No more than 10 percent
of the local youth allotment can be expended on the implementation of
WIOA Pay-for-Performance contract strategies for youth training
services and other activities described in secs. 129(c)(1) and (c)(2)
of WIOA. There is no limit on the use of funds for typical performance-
based contracts, as defined in the Federal Acquisition Regulation. The
10 percent limits apply only to those performance-based contracts that
are WIOA Pay-for-Performance contract strategies as defined above.
Section 683.530 How long are funds used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies available?
Section 189(g)(2)(D) of WIOA specifies that funds used for WIOA
Pay-for-Performance contract strategies are available until expended.
This allows local areas to structure contracts that include time-
intensive service delivery strategies and/or that structure payments
based on outcomes that may take longer to achieve, measure, and
validate than the typical 2-year funding availability of local area
funds. Funds that are obligated but not expended due to contractor not
achieving the levels of performance specified in a WIOA Pay-for-
Performance contract may be reallocated for further activities related
to WIOA Pay-for-Performance contract strategies only. This also allows
the local area to realize one of the benefits of performance-based
contracting strategies--the local area does not pay a financial penalty
for contracted services that do not achieve the stated outcomes. This
provision gives the local area the discretion to choose whether to use
the funds for these strategies, and if the local area so chooses, the
funds will remain available until expended. This will require new grant
management practices for local areas that choose to carry out WIOA Pay-
for-Performance strategies. The Department will issue guidance to
explain these new practices and we welcome comments with suggestions on
how to maximize the use of these contract strategies and the expanded
availability of the funds.
[[Page 20756]]
Section 683.540 What is the State's role in assisting local areas in
using Workforce Innovation and Opportunity Act Pay-for-Performance
contract strategies?
This proposed section describes both allowable and required State
activities related to WIOA Pay-for-Performance contract strategies. The
section indicates that States may provide technical assistance to local
areas, including assistance with structuring WIOA Pay-for-Performance
contracting strategies, performance data collection, meeting
performance data entry requirements, and identifying levels of
performance. This technical assistance can help local areas move
forward in using this contracting strategy. Additionally, the State may
either conduct evaluations of such strategies and/or provide technical
assistance to locals regarding the importance of evaluation of Pay-for-
Performance contract strategies. The State and local areas may conduct
their own evaluations of the WIOA Pay-for-Performance contracts, or
procure an independent evaluator. The Department welcomes comments
regarding use of independent evaluators and whether the cost of such
evaluations is feasible within the amount of funds available to local
areas for pay-for-performance contracts. The Department also seeks
comments on how the Department might facilitate local areas' ability to
conduct evaluations. Further, sec. 116(h) of WIOA authorizes States to
use non-Federal funds to incentivize use of WIOA Pay-for-Performance
contract strategies for the delivery of training services or youth
activities by Local Boards.
This section also identifies required activities States must
undertake if a local area implements at WIOA Pay-for-Performance
contract strategy. Because of the unique reporting requirements in sec.
116(d)(2)(K) for WIOA Pay-for-Performance contracts, the performance
section of this proposed rule, as well as the forthcoming Information
Collection Request package, will clearly articulate the State's
responsibility to track and report data on the primary indicators of
performance as well as the State and local evaluations of the design of
the programs and performance of WIOA Pay-for-Performance contract
strategies and, where possible, the level of satisfaction with the
strategies among employers and participants benefitting from the
strategies.
The State must also monitor local areas' use of WIOA Pay-for-
Performance contracts to ensure compliance with the following: The
required elements listed in Sec. 683.500, the contract specifications
in Sec. 683.510, State procurement policies, the 10 percent
limitations, and achievement of performance benchmarks.
7. Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
This subpart provides regulations governing the grievance,
complaint, and appeals procedures that apply at the State and local
level and to discretionary grantees under WIOA, as well as appeals to
the Secretary. Providing clear rules for resolving complaints and
filing appeals promotes transparency and fairness, which are
fundamental requirements of the workforce investment system grant
process. Included are rules governing the appeals of local area non-
designation, denial or termination of training provider eligibility,
and appeals of formula program participants who are tested or
sanctioned for the use of controlled substances. Appeals of the
Governor's imposition of sanctions for substantial violations of fiscal
or other substantive requirements or performance failures under WIOA
title I are also addressed. Finally, this subpart explains the process
of reporting information and complaints involving criminal fraud,
waste, abuse, or other criminal activity under WIOA.
Section 683.600 What local area, State and direct recipient grievance
procedures must be established?
This proposed section requires local areas, States, outlying areas,
and direct grant recipients of WIOA title I funds to establish and
maintain a procedure for grievances and complaints, including appeals
as appropriate, and describes what the procedure much include, as
required by WIOA sec. 181(c)(1). While this section of WIOA does not
require outlying areas or direct grant recipients to establish such
procedures, the Department has included them in this section to ensure
that all participants receiving services under title I of WIOA have the
same opportunity to report and receive relief from the negative actions
of the WIOA funded grantees.
This proposed section also clarifies that allegations of violations
of the non-discrimination provisions of WIOA are subject to the
policies and procedures described in 29 CFR part 37, which is
administered by the Department's Civil Rights Center, and that
complaint and grievance procedures related to Job Corps are in part 686
of this title. This section retains the same requirements found at 20
CFR 667.600.
Section 683.610 What processes does the Secretary use to review
grievances and complaints of title I recipients?
This proposed section describes the situations in which the
Department will review allegations, and the procedures that the
Secretary will use, that arise through local, State, and other direct
recipient grievance procedures in accordance with WIOA sec. 184(c)(2).
This section retains the same requirements found at 20 CFR 667.610.
Section 683.620 How are complaints and reports of criminal fraud and
abuse addressed under the Workforce Innovation and Opportunity Act?
This proposed section provides the requirements for reporting
information and complaints involving non-criminal complaints and
criminal fraud, waste, abuse or other criminal activity through the
Department's Incident Reporting System to the Department's Office of
the Inspector General. This section retains the same requirements found
at 20 CFR 667.630.
Section 683.630 What additional appeal processes or systems must a
State have for the Workforce Innovation and Opportunity Act program?
This proposed section describes the processes and systems that a
State must establish to hear appeals of: Entities that are denied
initial or subsequent designation as a local area; training service
providers that are denied eligibility as providers of training
services; and WIOA title I subtitle B participants who are subject to
testing or sanctions for the use of controlled substances. The section
restates the WIOA appeal requirements in secs. 106(b)(5) (local area
non-designation), 122 (training provider eligibility denial or
termination); 181(f) (participant testing and sanctioning for use of
controlled substances).
Section 683.640 What procedures apply to the appeals of non-designation
of local areas?
This proposed section describes the procedures that apply when a
State Board denies an appeal for initial or subsequent designation of a
local area made by a unit of local government or grant recipient under
Sec. 683.630(a). This section restates and implements the appeal
requirements required by WIOA sec. 106(b)(5).
[[Page 20757]]
Section 683.650 What procedures apply to the appeals of the Governor's
imposition of sanctions for substantial violations or performance
failures by a local area?
This proposed section describes the procedures that apply to
appeals of the Governor's imposition of sanctions for substantial
violations of fiscal or other substantive requirements of title I of
WIOA or of performance failures by local areas.
8. Subpart G--Sanctions, Corrective Actions, and Waiver of Liability
While technical assistance, oversight, and monitoring are tools to
ensure compliance with program and funding requirements, sanctions and
corrective action plans are necessary where those tools fail. This
subpart addresses sanctions and corrective actions, waiver of
liability, advance approval of contemplated corrective actions, as well
as the offset and State deduction provision. Of particular note in this
subpart are the procedures for allowing a waiver of liability or an
offset from other funds owed to the recipient. The statutory provisions
are largely unchanged from those under WIA, though the Uniform Guidance
has resulted in some changes to this subpart.
Section 683.700 When can the Secretary impose sanctions and corrective
actions on recipients and subrecipients of title I Workforce Innovation
and Opportunity Act funds?
This proposed section describes the procedures and circumstances
under which the Department will impose sanctions or take corrective
actions, as described in sec. 184(b) and (e), against States, local
areas, and grant recipients and subrecipients. For actions other than
those under WIOA sec. 188(a), the process outlined in Sec. 683.440
will be used before corrective actions or sanctions are taken against
direct recipients. This section also gives the Grant Officer the
authority to take direct action against local areas or other
subrecipients, which will also be done using the process in Sec.
683.440. This section also clarifies that the procedures described at
20 CFR part 677 will be used to impose a sanction or corrective action
for a violation of sec. 116 of WIOA. This section generally implements
sec. 184 of WIOA and retains the same requirements found at 20 CFR
667.700. The Department seeks comments on appropriate sanctions and
corrective actions in a variety of circumstances.
Section 683.710 Who is responsible for funds provided under title I and
Wagner-Peyser?
This proposed section identifies the recipient as the responsible
party for title I and Wagner-Peyser funds. For local areas receiving
funds, this section explains how to identify the responsible party.
Where a planning region includes two separate units of local
government, the CEO of each unit of local government would be the
responsible party. The general rule of recipient responsibility arises
from the Uniform Guidance, while the rules pertaining to local areas
come from WIOA sec. 184.
Section 683.720 What actions are required to address the failure of a
local area to comply with the applicable uniform administrative
provisions?
This proposed section requires the Governor to take corrective
action and impose sanctions on a local area if it fails to comply with
the requirements described in the section. This section also describes
the local area's appeal rights and actions the Secretary may take if
the Governor fails to monitor and certify local areas' compliance or
promptly take corrective action to bring the local area into
compliance. The requirements in this section are taken from WIOA sec.
184.
Section 683.730 When can the Secretary waive the imposition of
sanctions?
This proposed section permits a recipient to request a waiver of
liability, and describes the factors the Grant Officer will consider
when determining whether to grant the request. This provision
implements sec. 184(d) of WIOA and retains the same requirements found
at 20 CFR 667.720.
Section 683.740 What is the procedure to handle a recipient of title I
Workforce Innovation and Opportunity Act funds' request for advance
approval of contemplated corrective actions?
This proposed section describes the procedures which a recipient
must use to request advance approval of corrective action from the
Department. It describes the factors the Grant Officer will consider
and when advance approval may be appropriate. This provision implements
sec. 184(d) of WIOA and retains the same requirements found at 20 CFR
667.730.
Section 683.750 What procedure must be used for administering the
offset/deduction provisions of the Workforce Innovation and Opportunity
Act?
This proposed section outlines the steps that must be taken in
order for the Department to consider and allow an offset or deduction
of a debt, including the offset rules for direct recipients and the
rule for a State making a deduction from a subrecipient's PY
allocation. This section implements the requirements of WIOA sec.
184(c)(2).
9. Subpart H--Administrative Adjudication and Judicial Review
This subpart specifies those actions which may be appealed to the
Department's Office of Administrative Law Judges (OALJ), and the rules
of procedure and timing of decisions for OALJ hearings as well as the
process for judicial review by a United States Circuit Court of
Appeals. This subpart is similar to that currently in effect under WIA
because the WIOA statute itself had only minor changes to the
requirements in this subpart.
Section 683.800 What actions of the Department may be appealed to the
Office of Administrative Law Judges?
This proposed section outlines the actions that can be appealed
through an Administrative Law Judge (ALJ) under WIOA sec. 186(a),
including a determination to not award financial assistance or a
corrective action or sanction against a recipient or subrecipient. This
section describes the appeal deadlines and the contents that an
applicant is required to include in its appeal request. Paragraph (e)
states that these procedures also apply when parties fail to reach
resolution through the process described in Sec. 683.840.
Sec. 683.810 What rules of procedure apply to hearings conducted under
this subpart?
This proposed section adopts the rules of procedure for hearings
conducted before the OALJ found at 29 CFR part 18, with some
clarifications. This section also describes the Secretary's subpoena
authority under WIOA. Finally, this section sets forth the burdens of
production and persuasion in hearings conducted under this subpart. Per
paragraph (c), the grant officer has the initial burden of production,
which is satisfied by the submission of an administrative file. After
the grant officer submits the administrative file, the party seeking to
overturn the Grant Officer's determination has the burden of
persuasion. This section retains the same requirements found at 20 CFR
667.810.
[[Page 20758]]
Section 683.820 What authority does the Administrative Law Judge have
in ordering relief as an outcome of an administrative hearing?
This section, which applies to all discretionary grants issued
under subpart D of title I of WIOA, specifies the remedies that an ALJ
may award. Paragraph (a) applies to cases other than grant selection
cases and is unchanged from the WIA regulation.
Paragraph (b) specifies the remedies for grant selection cases, and
is largely drawn from the Senior Community Service Employment Program
remedies provision found at 20 CFR 641.470. This section gives the
Grant Officer discretion to ensure that project beneficiaries (i.e., an
entity awarded financial assistance) will not be unduly negatively
impacted by the implementation of remedies resulting from a grant
selection appeal.
Proposed paragraphs (b)(1) and (2) state that upon receipt of an
ALJ finding the application review process must be corrected or that an
appealing entity should have been awarded funding, the Grant Officer
will be required to take certain steps to determine whether the funding
must be awarded to that entity. In determining whether the funds will
be awarded to the appealing entity, the Grant Officer must take into
account whether such a move would be in the interest of project
beneficiaries and whether it would cause undue disruption to the
participants and the program. In the event the Grant Officer determines
that the appealing entity will not receive the funds, entities without
an approved Negotiated Indirect Cost Rate Agreement (NICRA) will
receive reasonable application preparation costs (under 2 CFR 200.460,
for entities with an approved NICRA, application preparation costs may
be included in their indirect cost pool and therefore are recouped from
their indirect costs to other Federal grant awards). In the event that
the Grant Officer determines that the appealing entity will receive the
funds, that entity will only receive funds that have not yet been
obligated by the current grantee.
Finally, the Grant Officer will provide notification to the current
grantee within 10 days of its decision, and that the current grantee
may appeal the Grant Officer's determination using the appeal
procedures described in 20 CFR 683.800.
Section 683.830 When will the Administrative Law Judge issue a
decision?
This section describes the timeframe in which an ALJ must make a
decision to avoid any unnecessary delays. It also describes the
parties' appeal rights, as stated in WIOA sec. 186(b).
Section 683.840 Is there an alternative dispute resolution process that
may be used in place of an Office of Administrative Law Judges hearing?
This section describes the available alternative an entity may use
to seek resolution other than a hearing process. The outcome of this
process is considered the equivalent of the final decision of an ALJ.
The purpose of this provision is to offer entities a less formal, less
burdensome, and more interactive appeal process.
Section 683.850 Is there judicial review of a final order of the
Secretary issued under the Workforce Innovation and Opportunity Act?
This section outlines the steps a party to a final order must take
to obtain judicial review in a United States Circuit Court of Appeals
of any decision made by the Secretary under WIOA sec. 184 or 186, as
well as the deadlines for seeking review. This provision summarizes the
requirements of WIOA sec. 187.
H. Part 684--Indian and Native American Programs Under Title I of the
Workforce Innovation and Opportunity Act
1. Introduction
Because sec. 166 of WIOA retains many of the requirements of sec.
166 of WIA, the Department has drawn on the WIA regulations, found at
20 CFR part 668, in drafting the regulations for sec. 166 of WIOA.
Consequently, many of the sections in this part retain the requirements
found in their parallel sections of the WIA regulations. This preamble
details the Department's reasons for changing any of the previous
requirements under the WIA regulations on a paragraph by paragraph
basis. However, some changes to the requirements under the WIA
regulations affect so many paragraphs that they are noted in the
introduction to the preamble instead of noting them every time that
they occur.
First, proposed part 684 seeks to streamline the competitive
process for awarding the Indian and Native American (INA) program
grants. Section 166 of WIOA is unusual in that it requires both that
grants be awarded through a competitive process and that grantees
submit a 4-year plan (WIOA secs. 166(c) and 166(e)). Under the WIA
regulations, the competition was separate from the plan. These WIOA
regulations propose to streamline the grant award process to ease the
administrative redundancy inherent in the WIA regulations. The
Department will no longer designate grantees or require a notice of
intent. Moreover, the proposed WIOA regulations have incorporated the
4-year plan into the competitive grant award process. The Department
anticipates that these changes will help streamline the process for
awarding grants. These proposed changes should result in less of an
administrative burden on both applicants and the Department.
Additionally, although WIA had a 2-year grant cycle for grantees
under sec. 166, WIOA has established a 4-year grant cycle (WIOA secs.
166(c) and 166(e)). Consequently, all references to the grant cycle or
plan in the proposed WIOA regulations refer to a 4-year cycle or 4-year
plan.
Finally, to ensure that the terms used to discuss the populations
and entities that will be served, as described in sec. 166(d) of WIOA,
are consistent throughout the proposed regulation, the Department
proposes to define the term ``INA'' to mean American Indian, Native
American, Alaska Native, and Native Hawaiian in proposed Sec. 684.130.
This term provides an efficient way to ensure inclusivity and
consistency in this part.
2. Subpart A--Purposes and Policies
Section 684.100 What is the purpose of the programs established to
serve Indians and Native Americans under the Workforce Innovation and
Opportunity Act?
Proposed Sec. 684.100 describes the purpose of WIOA for the INA
programs authorized by WIOA sec. 166.
Proposed Sec. 684.100(a) retains the same requirements found in
the WIA regulations at 20 CFR 684.100(a) except that Sec.
684.100(a)(2) includes entrepreneurial skills as part of the purpose of
the program in order to implement and carry out the entrepreneurial
skills requirement in sec. 166(a)(1)(B) of WIOA.
Proposed Sec. 684.100(b) describes the principle means of
accomplishing the purpose described in Sec. 684.100. Because the
Department has determined that no substantial changes were necessary to
implement WIOA, the proposed regulation retains the same requirements
found in the WIA regulations at 20 CFR 668.100(b) with the exception
that it references the principles of the Indian Self-Determination and
Education Assistance Act (ISDEAA). This reference to the principles of
the ISDEAA directly aligns with sec. 166(a)(2) of WIOA.
[[Page 20759]]
Section 684.110 How must Indian and Native American programs be
administered?
Proposed Sec. 684.110(a) describes how the Department will
administer the INA program. Because no changes were necessary to this
section to implement WIOA, this proposed section retains the same
requirements as the WIA regulations at 20 CFR 668.120.
Proposed Sec. 684.110(b) states that the Department will follow
the Congressional declaration of policy set forth in the Indian Self-
Determination and Education Assistance Act (ISDEAA), at 25 U.S.C. 450a,
as well as the Department of Labor's American Indian and Alaska Native
policies in administering these programs. These policies include DOL's
``American Indian and Alaska Native Policy,'' dated July 29, 1998 and
the ``Tribal Consultation Policy'' published in the Federal Register on
December 4, 2012 (77 FR 71833). This is consistent with WIOA because
WIOA sec. 166(a)(2) incorporates the principles of the ISDEAA and the
other two policies are important works of guidance on consultation and
coordination with INA parties.
Proposed Sec. 684.110(c) and (d) describe the trust
responsibilities of the Federal government and the designation of the
Division of Indian and Native American Programs (DINAP) within ETA.
Because the Department has determined that no changes were necessary to
these regulations to implement WIOA, these proposed regulations retain
the same requirements at 20 CFR 668.120(c) and (d).
Proposed Sec. 668.120(e) describes the establishment of
administrative procedures of the INA programs. 20 CFR 668.120(e)
required that the Department utilize staff with a particular competence
in this field for administration of the program. Although the
Department is still committed to the utilization of competent staff,
the proposed regulation does not retain this requirement as this
language was not included in WIOA. The rest of the proposed regulation
retains the same requirements at 20 CFR 668.120(e) because the
Department has determined that no changes were necessary to implement
WIOA.
Section 684.120 What obligation does the Department have to consult
with the Indian and Native American grantee community in developing
rules, regulations, and standards of accountability for Indian and
Native American programs?
Proposed Sec. 684.120 describes the obligation the Department has
in consulting with the INA grantee community in developing rules,
regulations, and standards of accountability for INA programs. This
proposed section retains the same requirements found in the WIA
regulations at 20 CFR 668.130, except that it adds new language
referencing the Department's tribal consultation policy, which was
published in the Federal Register on December 4, 2012, and Executive
Order (E.O.) 13175 of November 6, 2000, which requires Federal agencies
to engage in regular and meaningful consultation and collaboration with
tribal officials in the development of Federal policies that have
tribal implications and are responsible for strengthening the
government-to-government relationship between the United States and
Indian tribes. Section 166(i)(2) of WIOA states that the Secretary must
consult with Indian tribes, tribal organizations, Alaska Native
entities, Indian-controlled organizations serving Indians, and Native
Hawaiian organizations in establishing regulations to carry out WIOA
sec. 166 and develop a funding distribution plan for the INA program.
In addition, sec. 166(i)(4)(A) of WIOA states that the Secretary must
establish a Native American Employment and Training Council to
facilitate consultation and provide advice on the operation and
administration of the WIOA INA programs, including the selection of the
individual appointed as the head of DINAP. While it is not specified in
WIOA, by referencing the tribal consultation policy in this proposed
section, the Department proposes that the consultation requirements
referenced in WIOA must be coordinated with the Department's tribal
consultation policy published in the Federal Register on December 4,
2012 and E.O. 13175 of November 6, 2000. However, the Department notes
that although these consultation policies must be coordinated, they are
also separate. The Native American Employment and Training Council
represents all of the INA grantee community but it does not necessarily
serve as the primary vehicle through which the Federal government
fulfills its obligation to consult with tribes.
Section 684.130 What definitions apply to terms used in the regulations
in this part?
Proposed Sec. 684.130 provides definitions to terms used in
proposed part 684 that have not been defined in secs. 3 or 166 of WIOA
or Sec. 675.300 of these proposed regulations. Because the Department
has determined that no changes were necessary to the definitions used
in 20 CFR 668.150, we have retained those definitions as included in
the WIA regulations without change. These include the definitions for
the terms ``DINAP,'' ``Governing body,'' ``Grant Officer,'' and
``Underemployed.'' The Department has not retained the term ``NEW''
because it is not used in this proposed subpart. However, to provide
additional clarity in these proposed regulations, the Department has
included definitions for nine additional terms.
Alaska Native-Controlled Organization--This definition clarifies
that an entity applying for WIOA sec. 166 funds as an Alaska Native-
Controlled Organization must have a governing board in which 51 percent
of the members are Alaska Natives, to ensure that entities that receive
WIOA sec. 166 funds as an Alaska Native-Controlled Organization are
comprised of representatives from the communities they serve.
Carry-In--The Department is providing a definition of carry-in to
clarify our process at Sec. 684.254(d) for reallocating funds unspent
at the end of a PY. This definition is consistent with current practice
and the process for reallocating funds is explained in more detail in
the preamble for Sec. 684.270(d).
High-Poverty Area--A definition of ``high-poverty area'' has been
included to reflect the inclusion of the phrase in WIOA. Section
129(a)(2) of WIOA provides a special rule for the youth program that
includes the term ``high-poverty area'' but does not define that term.
This proposed part references sec. 129 of WIOA in implementing the
youth INA program. Therefore the Department proposes to provide a
definition for high-poverty area in these regulations. The Department
has chosen to employ the American Community Survey 5-Year Data because
it is the only source data that uniformly collects the income level of
individuals across all geographic service areas in the United States.
Incumbent Grantee--This term is used in several places in the
regulations including the regulations that define which entities are
eligible to apply for a WIOA sec. 166 grant. Therefore the Department
is providing a definition to
[[Page 20760]]
make clear which entities are considered incumbent grantees as referred
to in the regulations.
INA--Throughout proposed part 684, the Department refers to
American Indians, Native Americans, Alaska Natives, and Native
Hawaiians. To ensure consistency and inclusiveness the Department
decided to use a single term, INA, when referencing all four groups.
Indian-Controlled Organization--This definition clarifies the
qualifications for an organization to be an Indian-Controlled
Organization and is intended to ensure that entities that receive WIOA
sec. 166 funds as Indian-controlled entities are comprised of
representatives from the communities they serve.
Native Hawaiian-Controlled Organization--This definition clarifies
that an entity applying for WIOA sec. 166 funds as a Native Hawaiian-
controlled organization must have a governing board in which 51 percent
of the members are Native Hawaiians. The purpose is to ensure that
entities that receive WIOA sec. 166 funds as a Native Hawaiian entity
are comprised of representatives from the communities they serve.
Total Funds Available--This term is used in the definition of
carry-in. The Department is providing a definition to clarify what is
meant by total funds available as it affects the amount of carry-in a
grantee may have and whether such carry-in is considered excessive.
Available funds do not include carry-in funds. This definition is
consistent with current practice and the process for reallocating funds
is explained in more detail in the preamble for Sec. 684.270(d).
3. Subpart B--Service Delivery Systems Applicable to Section 166
Programs
Section 684.200 What are the requirements to apply for a Workforce
Innovation and Opportunity Act grant?
Proposed Sec. 684.200(a)(1) establishes the eligibility
requirements to apply for a WIOA sec. 166 grant. Because the Department
has determined that no changes were necessary to this section to
implement WIOA, this proposed section retains the same requirements
found at the WIA regulations at 20 CFR 668.200(a)(1), except that we
have required that all members of a consortium must be one of the
listed entities to insure the input, authority, and autonomy of the INA
entities listed in sec. 166(c) of WIOA. To be eligible, entities must
also meet the requirements of Sec. 684.200(c); Sec. 684.200(a) just
provides further detail about the legal shape eligible entities might
take. For example, the application for a tribe might be submitted by
the tribal government. Additionally, a non-profit might be an Indian-
controlled organization.
Proposed Sec. 684.200(a)(2) describes a $100,000 minimum funding
award amount that is required in order to receive a WIOA sec. 166
grant. There is an exception for INA grantees participating in the
demonstration program under Public Law 102-477; under this exception,
if all resources to be consolidated under Public Law 102-477 total
$100,000, only $20,000 must be derived from sec. 166 funds. Under
proposed Sec. 684.200(a)(2), there is no exception to the requirement
that at least $20,000 of all resources to be consolidated under Public
Law 102-477 must be derived from WIOA sec. 166 funds. Awards for less
than $20,000 do not provide sufficient funds to effectively operate an
employment and training grant. Therefore, under WIOA, all sec. 166
funding awards must be equal to or greater than $20,000 in order to
apply for a grant under Public Law 102-477 except for incumbent Public
Law 102-477 grantees that are receiving WIA funding as of the date of
implementation of WIOA. These grantees will be grandfathered into the
program because the advantage of requiring these grantees to meet the
$20,000 minimum does not outweigh the advantages of allowing these
grantees to continue with programs that have already been approved.
Proposed Sec. 668.200(b) describes the types of entities that may
make up a consortium. The proposed section requires that each member of
a consortium meets the requirements. To ensure that all INA grantees
sufficiently represent the interests of the INA community, the
Department has decided to require that every member of a consortium
must meet the requirements at proposed Sec. 668.200(a).
Proposed Sec. 684.200(b)(1) through (3) describe the requirements
for entities to apply for WIOA sec. 166 funds as a consortium. Because
the Department has determined that no changes were necessary to this
section to implement WIOA, this proposed section retains the same
requirements found at 20 CFR 668.200(b)(1) through (3).
Proposed Sec. 684.200(c) describes the entities that are
potentially eligible to receive WIOA sec. 166 funds. Because the
Department has determined that no changes were necessary to this
section to implement WIOA, this proposed section retains the same
requirements found at 20 CFR 668.200(c).
Proposed Sec. 684.200(d) explains that State-recognized tribal
organizations will be considered to be ``Indian-controlled''
organizations for WIOA sec. 166 purposes, assuming they meet the
definition of an Indian-controlled organization as defined at Sec.
684.130. The proposed section also states that State-recognized tribes
that do not meet this definition but are grantees under WIA will be
grandfathered into WIOA as Indian-controlled organizations. State-
recognized tribal organizations that meet the definition of an Indian-
controlled organization can apply for a WIOA sec. 166 grant because
they otherwise meet the eligibility requirements for an Indian-
controlled organization, which ensures that they are comprised of
representatives of the community they serve. State-recognized tribes
that are grantees under WIA may be grandfathered in because allowing
grantees that have successfully provided services to continue providing
those services is consistent with the objectives of WIOA sec. 166.
Section 684.210 What priority for awarding grants is given to eligible
organizations?
Proposed Sec. 684.210(a) states that Federally-recognized Indian
tribes, Alaska Native entities, or a consortium of such entities will
have the highest priority to receive grants for those geographic
service areas in which the Indian Tribe, Alaska Native entity, or a
consortium of such entities has legal jurisdiction, such as an Indian
reservation, Oklahoma Tribal Service Area (OTSA) or Alaska Native
Village Service Area (ANVSA). The Department recognizes that Federally-
recognized tribes are sovereign governments that often have reservation
areas over which they have legal jurisdiction. Accordingly, consistent
with current practice, it is the Department's position that when a
tribe has legal jurisdiction over a geographic service area such as an
Indian reservation or OTSA, the Department will award sec. 166 grants
to serve such areas to that tribe if it meets the requirements for
receiving a grant.
Proposed Sec. 684.210(b) states that if the Department decides not
to make an award to an Indian tribe or Alaska Native entity that has
legal jurisdiction over a service area--for example if a Federally-
recognized tribe is not eligible to apply for a WIOA grant or does not
have the ability to administer Federal funds--the Department will
consult with that tribe or Alaska Native entity before selecting an
entity to serve the tribe's legal jurisdictional area. As described in
the preamble to Sec. 684.120,
[[Page 20761]]
consultation with tribes and Alaska Native entities about the service
areas over which they have legal jurisdiction is integral to the
principles of Indian self-determination. However, to ensure that the
INA individuals residing in this service area receive services, Sec.
684.210(b) does not require prior approval of the entity with legal
jurisdiction.
Proposed Sec. 684.210(c) clarifies that the priority described in
paragraphs (a) and (b) does not apply to service areas outside the
legal jurisdiction of an Indian tribe or Alaska Native entity. The
Department does not believe that the same priority is warranted outside
the legal jurisdiction of Indian tribes and Alaska Native entities.
Section 684.220 What is the process for applying for a Workforce
Innovation and Opportunity Act grant?
Proposed Sec. 684.220(a) describes when the competitive grant
application process takes place. The process described aligns this
proposed section with the requirements at secs. 166(c) and (e) of WIOA
and with the streamlining of the application process, which is
discussed in further detail in the introduction to this proposed part.
Proposed Sec. 684.220(b) provides clarification on which
applicants are required to submit a 4-year plan, as described at
proposed Sec. 684.710. The Department has decided to exclude entities
that have been granted approval to transfer their WIOA funds pursuant
to Public Law 102-477 from this requirement because the intent of
Public Law 102-477 is to allow Federally-recognized tribes and Alaska
Native entities to combine formula-funded Federal grant funds, which
are employment and training-related, into a single plan with a single
budget and a single reporting system.
Section 684.230 What appeal rights are available to entities that are
denied a grant award?
Proposed Sec. 684.230 describes the appeal rights for entities
that are denied a grant award in whole or in part. There is no appeal
process specifically for sec. 166 grants; however, the Department
proposes to follow the appeal process described at proposed Sec. Sec.
683.800 and 683.840, which allow entities that are denied a grant award
an opportunity to appeal the denial to the Office of the Administrative
Law Judges. Because the Department has determined that no changes were
necessary to this section to implement WIOA, this proposed section
retains the same requirements found at 20 CFR 668.270.
Section 684.240 Are there any other ways in which an entity may be
awarded a Workforce Innovation and Opportunity Act grant?
Proposed Sec. 684.240 describes other ways in which an entity may
be granted an award under this proposed subpart if areas would
otherwise go unserved.
Section 684.250 Can an Indian and Native American grantee's grant award
be terminated?
Proposed Sec. 684.250(a) states that a grant award can be
terminated for cause, or due to emergency circumstances under the
Secretary's authority at sec. 184(e) of WIOA. This proposed section
retains substantively the same requirements found in the WIA
regulations at 20 CFR 668.290(a). The Department notes that if a grant
is terminated under sec. 184(e) of WIOA, the grantee must be given
prompt notice and opportunity for a hearing within 30 days after the
termination.
Proposed Sec. 684.250(b) describes the circumstances under which
an award may be terminated for cause. Because the Department has
determined that no changes were necessary to this section to implement
WIOA, this proposed section retains the same requirements found at 20
CFR 668.290(b).
Section 684.260 Does the Department have to award a grant for every
part of the country?
Proposed Sec. 684.260 states that the Department is not required
to provide grant funds to every part of the country. This proposed
section retains similar requirements in the WIA regulations at 20 CFR
668.294, with the exception that the Department clarified that funds
not allocated to a service area will be distributed to existing INA
grantees consistent with current practice.
Section 684.270 How are Workforce Innovation and Opportunity Act funds
allocated to Indian and Native American program grantees?
Proposed Sec. 684. 270(a) through (c) describe how funds will be
allocated to INA grantees. Because the Department has determined that
no substantial changes were necessary to this section to implement
WIOA, this proposed section retains the same requirements found at 20
CFR 668.296.
Proposed Sec. 684. 270(d) states that the Department may
reallocate funds under certain circumstances. This language clarifies
that excess carry-in will result in the funding formula being adjusted
in future years to reflect the excess. Additionally, there is no
exception for carry-in amounts in excess of 20 percent because these
funds must be fully expended.
Proposed Sec. 684.270(e) describes the funding resources the
Department may draw on for TAT purposes. The proposed paragraph
clarifies that the 1 percent of funding reserved under this section is
not the only source funding for providing TAT for the INA program
grantees. This language is consistent with current practice and is
intended to make clear that INA program grantees may also access
resources available to other Department programs as needed.
4. Subpart C--Services to Customers
Section 684.300 Who is eligible to receive services under the Indian
and Native American program?
Proposed Sec. 684.300(a) describes who is eligible to receive
services under an INA program. Because the Department has determined
that no changes were necessary to this section to implement WIOA, this
proposed section retains the same requirements found at 20 CFR
668.300(a), with the exception that the language in Sec. 684.300(a)(2)
references the definition of Alaska Native in sec. 166(b)(1) of WIOA.
Proposed paragraph (a)(1) leaves the definition of ``Indian'' to
the tribes and local American Indian organizations that receive grant
funds to determine, since WIOA does not define who is eligible to
receive services under sec. 166, and there are different opinions on
who is considered an Indian when determining eligibility for employment
and training services. For instance some grantees consider members of
State-recognized tribes as eligible individuals while other grantees do
not. Therefore, the Department has left the decision of defining who is
an Indian to tribes and organizations at the local level. However, the
Department requires that a grantee's definition must at least include
anyone who is a member of a Federally-recognized tribe.
Proposed Sec. 684.300(b) and (c) describe additional eligibility
requirements for participants to receive services from the INA program.
Because the Department has determined that no changes were necessary to
these sections to implement WIOA, these proposed sections retain the
same requirements in the WIA regulations found at 20 CFR 668.300(b).
Section 684.310 What are Indian and Native American program grantee
allowable activities?
Proposed Sec. 684.310(a) describes what types of opportunities INA
program grantees must attempt to develop and provide. This section
incorporates the
[[Page 20762]]
broad objectives referenced in sec. 194(1) of WIOA.
Proposed Sec. 684.310(b) further defines the employment and
training services that are allowable under sec. 166 of WIOA. Because
the Department has determined that no changes were necessary to this
section to implement WIOA, this proposed section retains the same
requirements found at 20 CFR 668.340(a).
Proposed Sec. 684.310(c) references a non-exhaustive list of
career services listed in WIOA. This language reflects WIOA's unified
approach to the provision of services.
Proposed Sec. 684.310(d) defines follow-up services. The
Department chose to define follow-up services as including counseling
and supportive services for up to 12 months after the date of exit for
consistency with current practice. Unlike the follow-up services
available under sec. 134 of WIOA, the follow-up services available
under Sec. 684.310 are available for up to 12 months because of the
limited employment opportunities available to participants in the sec.
166 program.
Proposed Sec. 684.310(e) references the non-exhaustive list of
training services available at WIOA sec. 134(c)(3). The Department has
referenced sec. 134(c)(3) because this section includes good examples
of services that are allowable activities for INA program grantees.
Proposed Sec. 684.310(f) lists examples of allowable activities
specifically designed for youth. The Department references the program
requirements for the WIOA youth program because these activities serve
as good examples of allowable activities for INA programs targeting INA
youth.
Proposed Sec. 684.310(g) provides examples of allowable activities
for job development and employment outreach. Because the Department has
determined that no changes were necessary to this section to implement
WIOA, this proposed section retains the same requirements found in the
WIA regulations at 20 CFR 668.340(f).
Proposed Sec. 684.310(h) describes whether services can be
overlapping and/or sequential. Because the Department has determined
that no changes were necessary to this section to implement WIOA, this
proposed section retains the same requirements found at 20 CFR
668.340(g).
Proposed Sec. 684.310(i) states that services may be provided to a
participant in any sequence based on the particular needs of the
participant. This clarification is consistent with the description of
career services in proposed Sec. 678.425(b), which states that
services are provided to individuals based on individual needs,
including the seamless delivery of multiple services to individual
customers. There is no required sequence of services. Section
134(c)(3)(A)(iii) of WIOA similarly clarifies that an individual is not
required to receive career services prior to receiving training
services.
Section 684.320 Are there any restrictions on allowable activities?
Proposed Sec. 684.320(a) and (b) describe geographical
restrictions on training activities and restrictions on OJT services.
Because the Department has determined that no changes were necessary to
these sections to implement WIOA, these proposed sections retain the
same requirements found at 20 CFR 668.350(a) and (b).
Proposed Sec. 684.320(c) prohibits OJT where an employer has
exhibited a pattern of certain conduct. Because the Department has
determined that no substantial changes were necessary to these section
to implement WIOA, this proposed section retains the same requirements
found at 20 CFR 668.350(c). However, to align Sec. 684.320(c) with the
language found at sec. 194(4) of WIOA, the phrase ``including health
benefits'' has been included in Sec. 684.320(c)(1), and Sec.
684.320(c)(2) targets patterns of violation instead of single
violations.
Proposed Sec. 684.320(d) through (g) describe restrictions on the
use of INA grant funds. Because the Department has determined that no
changes were necessary to these sections to implement WIOA, these
proposed sections retain the same requirements found at 20 CFR
668.350(d) through (g), with citations and references updated to be
consistent with WIOA.
Section 684.330 What is the role of Indian and Native American grantees
in the one-stop system?
Proposed Sec. 684.330(a) describes the required collaboration
between INA grantees and the one-stop system. The Department recognizes
that there are areas in the U.S. where the Native American population
is so sparse that it is not practical for WIOA grantees to be actively
involved in the local one-stop system. Accordingly, WIOA only requires
grantees to be involved in those local workforce investment areas where
an INA grantee conducts field operations or provides substantial
services. In these areas, the INA grantee must execute an MOU with the
Local Board or, at a minimum, be able to demonstrate that it has made a
good faith effort to enter into such agreement. Regardless of how
sparse the Native American community is in an area, and regardless of
an executed MOU, it is expected that, at a minimum, both the INA
grantee and the local one-stop operator are familiar with each other's
services and that information is available at each other's location,
and referrals, coordination, and co-enrollment are encouraged. INA
grantees will be required to provide details of their relationship with
the local one-stop operators as part of the 4-year plan.
Proposed Sec. 684.330(b) describes the minimum provisions
necessary in an MOU between the INA grantee and a local one-stop
delivery system. Proposed paragraph (b) lists information required
under WIOA sec. 121(c) and includes additional requirements that
implement current policy.
Proposed Sec. 684.330(c) describes when an INA grantee is required
to describe its efforts to negotiate a MOU. This information is
necessary for determining why the INA grantee has not been able to
negotiate an MOU and for alerting the Department about what steps might
be taken to facilitate the negotiation of an MOU.
Proposed Sec. 684.330(d) describes the application of the one-stop
infrastructure in the context of INA programs. Proposed paragraph (d)
implements the statutory requirements found at WIOA sec.
121(h)(2)(D)(iv).
Section 684.340 What policies govern payments to participants,
including wages, training allowances or stipends, or direct payments
for supportive services?
Proposed Sec. 684.340(a) through (e) describe the policies that
govern payments to participants. Because the Department has determined
that no changes are necessary to these sections to implement WIOA,
these proposed sections retain the same requirements found at 20 CFR
668.370.
Section 684.350 What will the Department do to strengthen the capacity
of Indnian and Native American grantees to deliver effective services?
Proposed Sec. 684.350 describes what the Department will do to
strengthen the capacity of INA program grantees to deliver effective
services. This proposed section retains the same commitment to provide
necessary technical assistance and training to INA program grantees as
found in the WIA regulations at 20 CFR 668.380.
[[Page 20763]]
5. Subpart D--Supplemental Youth Services
Section 684.400 What is the purpose of the supplemental youth services
program?
Proposed Sec. 684.400 describes the purpose of the supplemental
youth services program.
Because the Department has determined that no substantial changes
were necessary to this section to implement WIOA, this proposed section
retains the same requirements found at 20 CFR 668.400.
Section 684.410 What entities are eligible to receive supplemental
youth services funding?
Proposed Sec. 684.410 describes the entities that are eligible to
receive supplemental youth services funding. The amount of funding
reserved for the supplemental program makes it impractical to fund all
service areas in the United States. Therefore the Department proposes
to limit funding awards to eligible entities that serve low-income
youth residing on or near their respective reservations, OTSAs or
ANVSAs or other legal jurisdictional areas, or to eligible
organizations that are providing services on behalf of entities with
legal jurisdiction.
Section 684.420 What are the planning requirements for receiving
supplemental youth services funding?
Proposed Sec. 684.420 describes the planning requirements for
receiving supplemental youth services funding. Because youth funding is
considered a supplement to the adult funding, the Department envisions
that the strategy for youth will not be extensive. This proposed
section also aligns the planning requirements for the youth
supplemental services with the streamlined application process, which
is described in more detail in the introduction to this part.
Finally, the Department also recognizes that awareness of one's
culture and history is important to having a healthy self-identity and
self-esteem. Therefore, the Department supports youth activities that
teach INA to incorporate culture and traditional values since it is not
fully explored in the public school system and because it plays a role
in transitioning INA youth to become successful adults.
Section 684.430 What individuals are eligible to receive supplemental
youth services?
Proposed Sec. 684.430(a)(1) through (3) provide the eligibility
requirements for individuals to receive supplemental youth services.
Individuals must be low-income, except that 5 percent of individuals
enrolled in a grantee's youth program during a PY need not meet the
definition of low-income. Individuals included under this 5 percent
exception do not need to meet any requirements other than those listed
under proposed Sec. 684.430(a)(1) and (2) because the Department
recognizes that the funding amounts for the majority of INA program
grantees are so small (and therefore the number of youth served are
also so small) that the number of youth served under the 5 percent
exception is numerically insignificant and that the effort and cost of
collecting information on the additional barriers is not justified.
Furthermore, the poverty level on or near Indian reservations (which
are the areas to be served with youth funds) is so high that the vast
majority of youth served under WIA met the low-income requirement and
those that do not are only slightly over the poverty level.
Additionally, the INA youth program differs significantly from the
State youth formula program in that it does not distinguish between
``in-school'' youth and ``out-of-school'' youth and there are no
percentage requirements for ISY and OSY as required by the State youth
formula program. The Department recognizes that given the small funding
amount for the INA youth program, most INA grantees are primarily
limited to operating summer employment programs for ISY. However, the
Department encourages the few grantees that receive significant amounts
of youth funding to provide year-round youth programs and incorporate
educational and training components in their youth program.
Proposed Sec. 684.430(b) provides additional information about the
definition of ``low-income.'' This proposed section helps implement and
carry out the definition of low-income provided in WIOA sec. 129(a)(2).
Section 684.440 How is funding for supplemental youth services
determined?
Proposed Sec. 684.440(a) specifies how funding will be allocated.
Because the Department has determined that WIOA did not require any
substantive changes to 20 CFR 668.440(a), we have retained the same
essential requirements. Although this proposed section specifies that
the Department will allocate youth funding based on the number of youth
in poverty, the inclusion of the term ``in poverty'' merely implements
current practices and does not change our requirements.
Proposed Sec. 684.440(b) through (e) describe what data the
Department will use in calculating the youth funding allocation, how
the hold harmless factor described in Sec. 684.270(c) will apply, how
the reallocation provisions apply, and how supplemental youth services
funds not allotted may be used. Because the Department has determined
that no substantial changes were necessary to these sections to
implement WIOA, these proposed sections retains the same requirements
found at 20 CFR 668.350(b) through (e).
Section 684.450 How will supplemental youth services be provided?
Proposed Sec. 684.450(a) through (c) describe how supplemental
youth services will be provided. Because the Department has determined
that no substantial changes were necessary to these sections to
implement WIOA, these proposed sections retain the same requirements
found at 20 CFR 668.450(a) through (c).
Section 684.460 What performance measures are applicable to the
supplemental youth services program?
Proposed Sec. 684.460(a) describes the performance measures and
standards applicable to the supplemental youth services program. These
measures and standards of performance are the same as the primary
indicators discussed in proposed Sec. 677.155. Though the indicators
of performance are identified in various places throughout the WIOA
proposed regulations, the indicators are the same and do not vary
across the regulations. Section 166(e)(5) of WIOA specifies that
performance indicators for the Native American program ``shall''
include the primary indicators of performance described in WIOA sec.
116(b)(2)(A). Consequently, the Department has listed the youth
performance indicators at WIOA sec. 116(b)(2)(A)(ii) to implement and
carry out statutory requirements.
The Department acknowledges that some of the performance indicators
for youth programs are targeted to capture data related to participants
who are either in their senior year of high school or are no longer a
high school student (Sec. 684.460(a)(1) and (2)). Because of limited
funding, many of the INA youth programs are summer employment programs
serving younger high school students, these performance indicators
might not accurately capture the success of such programs.
Proposed Sec. 684.460(b) describes the Secretary's role in the
creation of additional performance measures to the ones listed in Sec.
684.460(a). Section
[[Page 20764]]
684.460 implements the statutory language in WIOA sec. 166(h)(2).
6. Subpart E--Services to Communities
Section 684.500 What services may Indian and Native American program
grantees provide to or for employers?
Proposed Sec. 684.500(a) and (b) describe other services that INA
program grantees may provide to or for employers under sec. 166.
Because the Department has determined that no changes were necessary to
these sections to implement WIOA, these proposed sections retain the
same requirements as 20 CFR 668.500.
Section 684.510 What services may Indian and Native American program
grantees provide to the community at large?
Proposed Sec. 684.510(a) and (b) describe services that INA
program grantees may provide to INA communities. Because the Department
has determined that no changes were necessary to these sections to
implement WIOA, these proposed sections retain the same requirements at
20 CFR 668.510(a) and (b).
Section 684.520 Must Indian and Native American program grantees give
preference to Indian and Native American entities in the selection of
contractors or service providers?
Proposed Sec. 684.520 discusses the requirement to give preference
to Indian/Native American entities in the selection of contractors or
service providers. Because the Department has determined that no
changes were necessary to this section to implement WIOA, this proposed
section retains the same requirements at 20 CFR 668.520.
Section 684.530 What rules govern the issuance of contracts and/or
subgrants?
Proposed Sec. 684.530 describes the rules that govern the issuance
of contracts and/or subgrants. In general, INA program grantees must
follow the uniform administrative requirements, cost principles, and
audit requirements for Federal awards at 2 CFR part 200 subpart E
published in the Federal Register on December 26, 2013, except that
these rules do not apply to OJT contract awards. This section
essentially retains the same language as provided under WIA at 20 CFR
668.530, except that the references to OMB Circulars A-102, A-110 have
been replaced with references to 2 CFR part 200 subpart E.
7. Subpart F--Accountability for Services and Expenditures
Section 684.600 To whom is the Indian and Native American program
grantee accountable for the provision of services and the expenditure
of INA funds?
Proposed Sec. 684.600(a) and (b) describe who INA program grantees
are accountable to for the provision of services and the expenditure of
INA funds. Because the Department has determined that no changes were
necessary to these sections to implement WIOA, these proposed sections
retain the same requirements as 20 CFR 668.600.
Section 684.610 How is this accountability documented and fulfilled?
Proposed Sec. 684.610(a) and (b) require INA program grantees to
establish internal policies and procedures to ensure accountability to
its governing body and describe how accountability to the Department is
accomplished. Because the Department has determined that no changes
were necessary to these sections to implement WIOA, these proposed
sections retain the same requirements at 20 CFR 668.610(a) and (b).
Proposed Sec. 684.610(c) describes how accountability to the
Department is documented and fulfilled. The Department proposes to
require compliance with the reporting items listed in Sec. 684.610(c)
because these are the best ways to ensure accountability and they
comply with our current practices.
Section 684.620 What performance measures are in place for the Indian
and Native American program?
Proposed Sec. 684.620(a) describes the performance measures that
are required under WIOA for the INA program. These measures of
performance are the same as the primary indicators discussed in
proposed Sec. 677.155. Though the indicators of performance are
identified in various places throughout the WIOA proposed regulations,
the indicators are the same and do not vary across the regulations.
Section 166(e)(5) of WIOA specifies that performance indicators for the
Native American program ``shall'' include the primary indicators of
performance described in WIOA sec. 116(b)(2)(A). Proposed Sec.
684.620(a) lists the applicable performance indicators described in
WIOA sec. 116(b)(2)(A), thus implementing and carrying out the
statutory requirements of sec. 166(e)(5) of WIOA.
Proposed Sec. 684.620(b) describes the Secretary's role in the
creation of additional performance measures to the ones listed in Sec.
684.620(a). Section 684.620 implements the statutory language in WIOA
sec. 166(h)(2).
Section 684.630 What are the requirements for preventing fraud and
abuse?
Proposed Sec. 684.630(a) requires INA program grantees to
establish fiscal control and fund accounting procedures. This section
implements the language in WIOA sec. 184 to the INA program.
Proposed Sec. 684.630(b) and (c) include requirements related to
conflicts of interest gifts. Because the Department has determined that
no changes were necessary to these sections to implement WIOA, these
proposed sections retain the same requirements at 20 CFR 668.630(b) and
(c).
Proposed Sec. 684.630(d) describes certain restrictions on
selecting family members as participants. Because the Department has
determined that no substantial changes were necessary to this section
to implement WIOA, this proposed section retains the same requirements
at 20 CFR 668.610(d), except that it clarifies our current practice of
counting all INA individuals in a community to determine if the
exception is met.
Proposed Sec. 684.630(e) through (h) describe kickback, political
activities, lobbying, and embezzlement restrictions that apply to this
section. Because the Department has determined that no substantial
changes were necessary to these sections to implement WIOA, these
proposed sections retain the same requirements at 20 CFR 668.630(e)
through (h) with changes to update citations.
Proposed Sec. 684.630(i) prohibits discriminatory practices by
recipients of WIOA funds. This section clarifies for the benefit of
potential applicants the effect of WIOA sec. 188 on the INA programs.
The language in this section also addresses a long-standing
misconception among INA grantees that individuals outside of a
grantee's geographic service area cannot be served without the consent
of the grantee whose service area the individual resides. The
Department recognizes that INA program grantees receive funding based
on specified geographic boundaries such as a county, reservation,
Alaska Native village etc., and therefore we agree that grantees are
not required to serve individuals outside their geographic areas since
another grantee is receiving funding to serve such individuals.
However, this
[[Page 20765]]
does not mean that grantees cannot serve individuals outside their
specified boundaries if they choose to do so.
Section 684.640 What grievance systems must an Indian and Native
American program grantee provide?
Proposed Sec. 684.640 requires INA program grantees establish
grievance procedure. Because the Department has determined that no
changes were necessary to this section to implement WIOA, this proposed
section retains the same requirements at 20 CFR 668.640.
Section 684.650 Can Indian and Native American program grantees exclude
segments of the eligible population?
Proposed Sec. 684.650(a) and (b) inform INA program grantees
whether they can exclude segments of the eligible population. Because
the Department has determined that no changes were necessary to these
sections to implement WIOA, this proposed sections retain the same
requirements at 20 CFR 668.650.
8. Subpart G--Section 166 Planning/Funding Process
Section 684.700 What is the process for submitting a 4-year plan?
Proposed Sec. 684.700 describes the process for submitting a 4-
year plan, as required by sec. 166(e) of WIOA. Specific requirements
for the submission of a 4-year plan will be provided in a Funding
Opportunity Announcement (FOA). This section facilitates the
streamlining of the application process as is described in detail in
the introduction of this part.
Section 684.710 What information must be included in the 4-year plans
as part of the competitive application?
Proposed Sec. 684.710 describes the information that must be
included in the 4-year plan. The Department intends to seek economic
and workforce responsive 4-year plans under WIOA. Under WIOA, the
Department proposes that a plan contains only the four information
requirements set out in WIOA sec. 166(e), which will leave the
Department flexibility to ask for different kinds of information in a
request for additional information during the FOA process. The
Department recognizes that the workforce system must be able to change
and adapt to the changes required by employers who are, in turn,
changing and adapting to forces in the economy and advancements in
technology which require different skill sets for American workers.
This new approach to planning will provide the flexibility necessary to
address the current workforce needs at the time plans are written.
Proposed Sec. 684.710(a) describes the information that must be
included in the 4-year plan, required by WIOA secs. 166(e)(2) through
(5).
Proposed Sec. 684.710(b) states that the 4-year plan must include
a projection of participants to be served and expenditures during a PY
and any additional information requested in a FOA. Again, this section
has been added under WIOA to convey that additional information will be
required in the 4-year plan, as determined by current labor market
trends and skills requirements, and what information must be in plans
will be requested in a FOA as part of the competitive process.
Proposed Sec. 684.710(c) requires INA program grantees receiving
supplemental youth funds to provide additional information in the 4-
year plan that describes a strategy for serving low-income, INA youth.
The Department supports youth activities that preserve Native American
culture and values. Because the Department has determined that no
changes were necessary to this section to implement WIOA, this proposed
section retains the same requirements at 20 CFR 668.720(b), with the
exception that it is framed to reflect the streamlined application
process described in more detail in the introduction to this part.
Section 684.720 When must the 4-year plan be submitted?
Proposed Sec. 684.720 describes when the 4-year plan must be
submitted. The due date for the submission of the 4-year plan will be
specified in the FOA. This approach implements and carries out the
requirements of WIOA secs. 166(c) and 166(e) in the context of the
streamlined application process that is described in more detail in the
introduction to this part. The Department envisions that the first 4-
year plan will be for PY 2016-2020 which will cover the period from
July 1, 2016 through June 30, 2020.
Section 684.730 How will the Department review and approve such plans?
Proposed Sec. 684.730 describes how the Department will review and
approve 4-year plans. The Department will make every effort to approve
plans that are fully complete prior to the beginning of the first PY of
the 4-year plan and funds will be obligated to grantees for that year
through a grant award. After the first year of a 4 -year plan, funds
will automatically be added each year for the following 3 years through
a grant modification, assuming the grantee continues to be in good
standing with the Department.
Incomplete plans that do not fully meet the requirements provided
in the FOA will not be approved. It is possible for entities to be
selected through the competitive process and also have an incomplete
plan. Therefore, after competitive grant selections have been made, the
DINAP office may assist INA program grantees with incomplete plans on
tasks such as submitting required documents and other unresolved issues
that render the 4-year plan incomplete. However, the Department may
delay funding to grantees until all issues with the 4-year plan have
been resolved.
While it is unlikely that a grantee will fail to submit an
acceptable 4-year plan, the Department will reallocate funds from an
INA program grantee that fails to submit a 4-year plan to other
incumbent INA program grantees that have an approved 4-year plan. The
Grant Officer may also delay executing a grant agreement and obligating
funds to an entity selected through the competitive process until all
the required documents--including the 4-year plan--are in place.
Proposed Sec. 684.730(a) states that it is the Department's intent
to approve a grantee's 4-year strategic plan before the date on which
funds for the program become available. Because the Department has
determined that no changes were necessary under WIOA, this section
retains the same language as provided under WIA at 20 CFR 668.740(a),
save for the addition of language specifically addressing the
streamlined, 4-year grant application process as described in more
detail in the introduction to this part.
Proposed Sec. 684.730(b) describes the extent to which the DINAP
office will assist INA program grantees in resolving any outstanding
issues that may exist with the 4-year plan. Again, while the Department
expects that it is unlikely that a grantee will fail to submit an
acceptable 4-year plan, we need a mechanism to reallocate funds when
such an event occurs in order to ensure that funds are spent providing
services to eligible program participants.
Proposed Sec. 684.730(c) notes that the Department may approve
portions of a plan while disapproving others. Because the Department
has determined that no changes were necessary to implement WIOA, the
proposed regulation retains the same requirements found in the WIA
regulations at 20 CFR 668.740(b).
Proposed Sec. 684.730(d) references appeal rights in nonselection
cases or in the case of a decision by the Department to deny or
reallocate funds based on unresolved issues with the applicant's
[[Page 20766]]
application or 4-year plan. There are no appeal rights in addition to
the ones listed in the cited regulations because the Department has
determined that consistency of appeal rights amongst WIOA programs is
desirable.
Section 684.740 Under what circumstances can the Department or the
Indian and Native American program grantee modify the terms of the
grantee's plan(s)?
Proposed Sec. 684.740(a) describes when the Department may
unilaterally modify an INA program grantee's plan to add or reduce
funds to the grant. Because the Department has determined that no
changes were necessary to implement WIOA, the proposed regulation
retains the same requirements found in the WIA regulations at 20 CFR
668.750(a).
Proposed Sec. 684.740(b) describes when an INA program grantee may
request approval to modify their plan to add, expand, delete, or
diminish any service allowable under the regulations in this part.
Because the Department has determined that no changes were necessary to
implement WIOA, the proposed regulation retains the same requirements
found in the WIA regulations at 20 CFR 668.750(b). Generally, it is the
Department's intent to pursue grant modifications only when there are
significant increases or decreases in the grantee's funding that
results in significant changes in the employment and training services
stated in the 4-year plan or when the grantee wishes to make a
significant change in its service strategy. As a general rule, a
significant change is when the number of participants to be served in
the original plan changes by 25 percent or by 25 actual participants,
whichever is larger.
9. Subpart H--Administrative Requirements
Section 684.800 What systems must an Indian and Native American program
grantee have in place to administer an Indian and Native American
program?
Proposed Sec. 684.800(a) and (b) describe the systems that must be
in place in order for INA grantees to administer a WIOA sec. 166 grant
INA program. Because the Department has determined that no changes were
necessary to these sections to implement WIOA, these proposed sections
retain the same requirements at 20 CFR 668.800.
Section 684.810 What types of costs are allowable expenditures under
the Indian and Native American program?
Proposed Sec. 684.810 describes where the rules relating to
allowable costs under WIOA are located. Because the Department has
determined that no changes were necessary to this section to implement
WIOA, this proposed section retains the same requirements at 20 CFR
668.810.
Section 684.820 What rules apply to administrative costs under the
Indian and Native American program?
Proposed Sec. 684.820 describes where the definition and treatment
of administrative costs can be found. Because the Department has
determined that no changes were necessary to this section to implement
WIOA, this proposed section retains the same requirements at 20 CFR
668.820.
Section 684.830 Does the Workforce Innovation and Opportunity Act
administrative cost limit for States and local areas apply to grants?
Proposed Sec. 684.830 informs INA program grantees about whether
the WIOA administrative cost limit for States and local areas applies
to INA grants. Because the Department has determined that no changes
were necessary to this section to implement WIOA, this proposed section
retains the same requirements at 20 CFR 668.825.
Section 684.840 How should Indian and Native American program grantees
classify costs?
Proposed Sec. 684.840 describes how INA program grantees must
classify costs. Because the Department has determined that no changes
were necessary to this section to implement WIOA, this proposed section
retains the same requirements at 20 CFR 668.830.
Section 684.850 What cost principles apply to Indian and Native
American funds?
Proposed Sec. 684.850 requires INA program grantee to follow the
cost principles at 2 CFR part 200 subpart E of the Uniform
Administrative Requirements published in the Federal Register on
December 26, 2013. This section retains the same language as provided
under WIA at 20 CFR 668.840, except that the references to OMB
Circulars A-87, A-122, A-21 have been updated with references to 2 CFR
part 200 subpart E, Cost Principles, & Audit Requirements for Federal
Awards.
Section 684.860 What audit requirements apply to Indian and Native
American grants?
Proposed Sec. 684.860 requires INA program grantee to follow the
audit requirements at 2 CFR 200 subpart F of the Uniform Administrative
Requirements, Cost Principles, & Audit Requirements for Federal Awards
published in the Federal Register on December 26, 2013. This section
retains the same language as provided under WIA at 20 CFR 668.850,
except that the references to OMB Circular A-133 and 29 CFR part 99
have been updated with references to 2 CFR part 200 subpart E, Cost
Principles, & Audit Requirements for Federal Awards.
Additionally, Sec. 684.860(b) implements the language at WIOA sec.
166(j) relating to single audit requirements.
Section 684.870 What is ``program income'' and how is it regulated in
the Indian and Native American program?
Proposed Sec. 684.870(a) through (c) provide descriptions of what
qualifies as program income for work experience participants and OJT
participants. Because the Department has determined that no changes
were necessary to these sections to implement WIOA, these proposed
sections retain the same requirements at 20 CFR 668.870(a) through (c).
10. Subpart I--Miscellaneous Program Provisions
Section 684.900 Does the Workforce Innovation and Opportunity Act
provide regulatory and/or statutory waiver authority?
Proposed Sec. 684.900 describes the regulatory and/or statutory
waiver authority for the INA program. Because the Department has
determined that no changes were necessary to this section to implement
WIOA, this proposed section retains the same requirements at 20 CFR
668.900, except that we have clarified, in accordance with WIOA sec.
166(i)(3), that only requirements related to title I of WIOA may be
waived.
Section 684.910 What information is required in a waiver request?
Proposed Sec. 684.910(a) describes what information an INA program
grantee must include when it requests a waiver. This section implements
the requirements in WIOA sec. 166(i)(3)(B) and saves INA grantees from
having to reference additional departmental guidance on how to request
a waiver.
Proposed Sec. 684.910(b) states that a waiver may be requested at
the beginning of a 4-year grant award cycle or anytime during a 4-year
award cycle. However, all waivers expire at the end of the 4-year award
cycle. The Department envisions that waivers will be requested for
unique situations that were not expected in the normal course of
operating an INA grant. Therefore, Department proposes that waivers
cannot be provided indefinitely and
[[Page 20767]]
must be renewed at the beginning of a new 4-year grant cycle.
Section 684.920 What provisions of law or regulations may not be
waived?
Proposed Sec. 684.920 describes the laws and regulations that may
not be waived. Because the Department has determined that no changes
were necessary to this section to implement WIOA, this proposed section
retains the same requirements at 20 CFR 668.920.
Section 684.930 May Indian and Native American grantees combine or
consolidate their employment and training funds?
Proposed Sec. 684.930 provides a description of when INA program
grantees can consolidate their funds under Public Law 102-477 (477). In
addition to generally allowing the consolidation of funds as required
under Public Law 102-477, Sec. 684.930 describes the extent to which
the Department will review 477 plans. The Department will not review
the renewal of 477 plans after the initial plan has been approved by
DOL, accepted by the Department of the Interior, and all other
applicable Departmental programmatic and financial obligations have
been met prior to transfer. This policy aligns with the requirements of
Public Law 102-477 which allows Federally-recognized tribes and Alaska
Native entities to combine formula-funded Federal grant funds, which
are employment and training-related, into a single plan with a single
budget and a single reporting system. The Department recognizes that
when Federal funds from various agencies are combined under one unified
plan, there must be one lead agency that administers and manages the
unified plan. According to Public Law 102-477 the lead agency is the
DOI.
Section 684.940 What is the role of the Native American Employment and
Training Council?
Proposed Sec. 684.940 describes the role of the Native American
Employment and Training Council. The language in proposed Sec. 684.940
repeats the requirements at WIOA sec. 166(i)(4)(C) and explains that
WIOA sec. 166(4) has not made any major changes to the council.
Section 684.950 Does the Workforce Innovation and Opportunity Act
provide any additional assistance to unique populations in Alaska and
Hawaii?
Proposed Sec. 684.950 address the additional assistance that WIOA
provides for unique populations in Alaska and Hawaii. This proposed
section implements and carries out the requirements in WIOA sec.
166(k).
I. Part 685--National Farmworker Jobs Program Under Title I of the
Workforce Innovation and Opportunity Act
1. Introduction
The purpose of part 685 is to implement WIOA sec. 167, which
authorizes MSFW programs. In drafting these regulations, the Department
consulted with States and MSFW groups during stakeholder consultation
sessions conducted in August and September 2014, as required by WIOA
sec. 167(f). MSFW programs include career services and training,
housing assistance, youth services, and related assistance. In drafting
the proposed regulations for this part the Department seeks to
encourage strategic alignment across other workforce development
programs such as Wagner-Peyser and WIOA title I adult, dislocated
worker, and youth programs; encourage the delivery of training for in-
demand occupations; provide comprehensive youth workforce activities;
and provide a detailed description of housing services available to
eligible MSFWs. As required by WIOA sec. 167(e), when making grants and
entering into contracts under this section, the Department will consult
with the Governors and Local Boards of the States in which grantees
will carry out the activities described in WIOA sec. 167(d) during the
FOA process described in Sec. 685.210.
The regulations in this section support strategic alignment across
workforce development programs by: Aligning the definition of
``farmwork'' found in this section with that used in the Wagner-Peyser
program; adjusting the upper and lower age ranges of eligible MSFW
youth to conform to those established in WIOA sec. 129 for OSY and ISY;
and requiring that grantees coordinate services, particularly outreach
to MSFWs, with the State Workforce Agency (SWA) in their service area
and the State's monitor advocate. These changes are intended to support
coordination between MSFW programs and other workforce programs such as
the Wagner-Peyser program, and facilitate MSFW youth co-enrollments
with other WIOA title I programs.
The Department proposes language in Sec. 685.350 regarding
training services that reinforces that training must be directly linked
to an in-demand industry or occupation that leads to economic self-
sufficiency and encourages the attainment of recognized post-secondary
credentials when appropriate.
Proposed Sec. Sec. 685.330 and 685.510 establish that grantees
funded under WIOA sec. 167 can serve eligible MSFW youth participants.
The Department also has proposed that a percentage of the total funds
appropriated each year for WIOA sec. 167 activities will be used for
housing grants, and described specific housing assistance activities in
Sec. 685.360, to better articulate the types of services that can be
delivered to eligible MSFWs.
2. Subpart A--Purpose and Definitions
This subpart describes the general purpose and definitions relevant
to MSFW programs authorized under WIOA sec. 167, the role of the
Department in providing technical assistance and training to grantees,
and the regulations applicable to grantees.
Section 685.100 What is the purpose of the National Farmworker Jobs
Program and the other services and activities established under
Workforce Innovation and Opportunity Act?
Proposed Sec. 685.100 identifies achieving economic self-
sufficiency as the goal of the services and activities that are
authorized in WIOA sec. 167 for eligible MSFWs which includes their
dependents. This section emphasizes the importance of obtaining,
retaining, and stabilizing the unsubsidized employment of MSFWs,
including obtaining upgraded agricultural employment, in achieving the
goal of the program.
Section 685.110 What definitions apply to this program?
Proposed Sec. 685.110 provides definitions of terms relevant to
the implementation and operation of workforce investment activities
authorized for MSFWs and their dependents under WIOA sec. 167.
A definition of allowances has been provided that means direct
payments made to participants to support participation specific career
services and training.
Dependents of eligible MSFWs may receive services under WIOA secs.
167(i)(2)(B) and 167(i)(3)(B), and the Department has provided a
definition of the family member relationships of an eligible MSFW who
qualify for MSFW program services.
Eligibility determination period is defined as ``any consecutive
12-month period within the 24-month period immediately preceding the
date of application for the MSFW program by the applicant MSFW.'' The
definition was adopted from the first clause of
[[Page 20768]]
WIOA sec. 167(i)(3)(A)(i), which defines ``eligible seasonal
farmworker.''
The definition of eligible migrant farmworker is taken from WIOA
sec. 167(i)(2).
The definition of eligible seasonal farmworker is taken from WIOA
sec. 167(i)(3).
A definition of eligible migrant and seasonal farmworker has been
provided, meaning an eligible migrant farmworker or an eligible
seasonal farmworker as defined in WIOA sec. 167(i).
A definition of eligible MSFW youth has been provided, and it is
defined as eligible MSFWs aged 14-24 who are individually eligible or
are dependents of eligible MSFWs. The upper age range (age 24) and
lower age range (age 14) for eligible MSFW youth have been put in
alignment with the upper and lower age ranges provided in WIOA secs.
129 ((a)(1)(B) and (a)(1)(C). Eligible MSFW youth is a subset of
eligible MSFWs as defined in this section. This alignment will
facilitate co-enrollment with other WIOA youth programs that serve 14-
24 year old youth participants, where appropriate.
A definition of emergency assistance had been provided that
establishes that emergency assistance is a form of related assistance,
and means assistance that addresses immediate needs of eligible MSFWs
and their dependents, provided by grantees. To facilitate the delivery
of emergency services in a timely manner the applicant's self-
certification is accepted as sufficient documentation of eligibility
for emergency assistance.
A definition of family, is provided that means an eligible MSFW and
all the individuals identified under the definition of dependent in
this section who are living together in one physical residence. The
definition has been proposed for the purpose of reporting housing
assistance grantee indicators of performance as described in Sec.
685.400.
A definition of farmwork is provided that means work while employed
in the occupations described in 20 CFR 651.10. The specific occupations
and industries within agricultural production and agricultural services
will be provided through Departmental guidance, and will be updated
when government-wide standard industry and occupation codes undergo
periodic review and revision. Providing a definition of farmwork that
is aligned with the Wagner-Peyser ES system will facilitate the
provision of services to MSFWs under both programs.
A definition of grantee has been provided, meaning an entity to
which the Department directly awards a WIOA grant to carry out programs
to serve eligible MSFWs in a service area, with funds made available
under WIOA sec. 167 or 127(a)(1).
A definition of housing assistance is provided and means housing-
related services provided to eligible MSFWs. Examples of specific
authorized housing activities are provided in proposed Sec. 685.360.
The definition of lower living standard income level from WIOA sec.
3(36)(B) has been referenced without change.
The definition of low-income individual from WIOA sec. 3(36)(A) has
been referenced without change.
A definition of MOU has been provided, meaning ``Memorandum of
Understanding.''
A definition of National Farmworker Jobs Program (NFJP) has been
provided and is the Department-administered workforce investment
program for MSFWs established by WIOA sec. 167 as a required partner of
the one-stop system and includes career services, training grants, and
housing grants. The term NFJP was initially developed in 1999 by the
Secretary's MSFW Advisory Committee to distinguish the NFJP from the
other workforce investment grants and activities funded under WIA sec.
167, such as the farmworker housing assistance grants; however, since
that time the NFJP has come to be the accepted term for both employment
and training grants and housing grants, and this definition reflects
that understanding.
The definition of recognized post-secondary credential from WIOA
sec. 3(52) has been referenced without change.
A definition of related assistance, which is authorized under WIOA
sec. 167(d), has been provided meaning short-term forms of direct
assistance designed to assist eligible MSFWs retain or stabilize their
agricultural employment.
A definition of self-certification has been provided meaning an
eligible MSFW's signed attestation that the information he/she submits
to demonstrate eligibility for the NFJP is true and accurate.
A definition of service area has been provided meaning the
geographical jurisdiction, which may be comprised of one or more
designated States or sub-State areas, in which a WIOA sec. 167 grantee
is designated to operate.
A definition of technical assistance has been provided meaning the
guidance provided to grantees and grantee staff by the Department to
improve the quality of the program and the delivery of program services
to eligible MSFWs. This definition was adapted from and replaces the 20
CFR part 685 definition of capacity enhancement under WIA to reflect
the term more commonly used by the Department.
Section 685.120 How does the Department administer the National
Farmworker Jobs Program?
Proposed Sec. 685.120 clarifies that the Department's ETA
administers NFJP activities authorized under WIOA sec. 167 for eligible
MSFWs, and as described in Sec. 685.210, the Department designates
grantees in a manner consistent with standard Federal government
competitive procedures.
Section 685.130 How does the Department assist grantees to serve
eligible migrant and seasonal farmworkers?
Proposed Sec. 685.130 establishes that the Department will provide
guidance, administrative support, technical assistance, and training to
support MSFW programs and promote employment outcomes for eligible
MSFWs.
Section 685.140 What regulations apply to the programs authorized under
Workforce Innovation and Opportunity Act?
Proposed Sec. 685.140 specifies the regulations that are
applicable to MSFW programs authorized under WIOA sec. 167, including
proposed part 685. Applicable regulations include the general
administrative requirements found in 20 CFR part 683, including the
regulations regarding the Complaints, Investigations and Hearings found
at 20 CFR part 683, subpart D through subpart H; Uniform Guidance at 2
CFR part 200 and the Department's exceptions at 2 CFR part 2900
pursuant to the effective dates in 2 CFR part 200 and 2 CFR part 2900;
the regulations on partnership responsibilities contained in 20 CFR
parts 679 (Statewide and Local Governance) and 678 (the one-stop
system); the Department's regulations at 29 CFR part 37, which
implement the nondiscrimination provisions of WIOA sec. 188.
3. Subpart B--The Service Delivery System for the National Farmworker
Program
This subpart describes the service delivery system for the MSFW
programs authorized by WIOA sec. 167 including who is eligible to
receive grants and the role of the NFJP in the one-stop delivery
system. Termination of grantee designation is explained. This subpart
also discusses the appropriation of WIOA sec. 167 funds and establishes
[[Page 20769]]
that a percentage of the total funds appropriated each year for WIOA
sec. 167 activities will be used for housing assistance grants.
Section 685.200 Who is eligible to receive a National Farmworker Jobs
Program grant?
Proposed Sec. 685.200 describes the entities that are eligible to
receive NFJP grants. The entity must have an understanding of the
problems of eligible MSFWs, a familiarity with the agricultural
industries and the labor market needs of the proposed service area, and
the ability to demonstrate a capacity to administer and deliver
effectively a diversified program of workforce investment activities,
including youth workforce investment activities, and related assistance
for eligible MSFWs.
Section 685.210 How does an eligible entity become a grantee?
Proposed Sec. 685.210 establishes that grantees will be selected
through a FOA using standard Federal government competitive procedures.
The entity's proposal must describe a 4-year strategy for meeting the
needs of eligible MSFWs in the proposed service area and a description
of the entity's experience working with the broader workforce delivery
system. This is in alignment with the requirement in WIOA sec. 167(a)
that the Department make grants or enter into contracts on a
competitive basis every 4 years. Unless specified otherwise in the FOA,
grantees may serve eligible MSFWs, including eligible MSFW youth, under
the grant. An applicant whose application for funding as a grantee
under part 685 is denied in whole or in part may request an
administrative review under 20 CFR 683.800.
Section 685.220 What is the role of the grantee in the one-stop
delivery system?
Proposed Sec. 685.220 describes that in those local workforce
development areas where the grantee operates its NFJP, as described in
its grant agreement, the grantee is a required one-stop partner, and is
subject to the provisions relating to such partners described in 20 CFR
part 678. Consistent with those provisions, the grantee and Local
Workforce Development Board must develop and enter into an MOU which
meets the requirements of 20 CFR 678.500 and sets forth their
respective responsibilities for providing access to the full range of
NFJP services through the one-stop system to eligible MSFWs.
Section 685.230 Can a grantee's designation be terminated?
Proposed Sec. 685.230 explains the circumstance in which a grantee
may be terminated by the Department for cause, including emergency
circumstances when such action is necessary to protect the integrity of
Federal funds or ensure the proper operation of the program, or by the
Department's Grant Officer, if the recipient materially fails to comply
with the terms and conditions of the award. The Department has changed
the standard for Grant Officer termination from ``substantial or
persistent violation'' as used in the WIA regulations in order to be
consistent with the standards used for all other Department WIOA grants
under the common administrative requirements for grants.
Section 685.240 How does the Department use funds appropriated under
Workforce Innovation and Opportunity Act for the National Farmworker
Jobs Program?
Proposed Sec. 685.240 establishes that in accordance with WIOA
sec. 167(h), at least 99 percent of the funds appropriated each year
for WIOA sec. 167 activities must be allocated to service areas, based
on the distribution of the eligible MSFW population determined under a
formula which has been published in the Federal Register. The grants
will be awarded under Sec. 685.210. The Department has added language
that clarifies that of this amount, a percentage of funds will be set
aside for housing grants and will be specified in an FOA issued by the
Department. The balance, up to 1 percent of the appropriated funds,
will be used for discretionary purposes, such as providing technical
assistance to eligible entities, and other activities prescribed by the
Secretary to eligible entities. This differs from the up to 4 percent
reserved in the prior regulations so as to comply with the funding
requirements of WIOA sec. 167(h).
4. Subpart C--The National Farmworker Jobs Program Customers and
Available Program Services
This subpart describes the responsibilities of grantees, and
workforce investment activities available to eligible MSFWs, including
career services and training, housing assistance, youth services, and
related assistance.
Section 685.300 What are the general responsibilities of grantees?
Proposed Sec. 685.300 establishes the general responsibilities of
grantees, including that: eligible entities receive grants through the
FOA process described in Sec. 685.210; career services and training
grantees are responsible for providing appropriate career services,
training, and related assistance to eligible MSFWs and eligible MSFW
youth; and housing grantees are responsible for providing housing
assistance to eligible MSFWs. Grantees will provide these services in
accordance with the service delivery strategy described in the approved
program plan described in Sec. 685.420. These services must reflect
the needs of the MSFW population in the service area and include the
services that are necessary to achieve each participant's employment
goals or housing needs. Grantees also are responsible for coordinating
services, particularly outreach to MSFWs, with the SWA, as defined in
20 CFR part 651, and the State's monitor advocate and fulfilling the
responsibilities of one-stop partners described in proposed Sec.
678.420.
Section 685.310 What are the basic components of an National Farmworker
Jobs Program service delivery strategy?
Proposed Sec. 685.310 describes the basic components of the NFJP
delivery strategy that must include: A customer-focused case management
approach; the provision of workforce investment activities, which
include career services and training, as described in WIOA secs. 167(d)
and 134 and 20 CFR part 680, and youth workforce investment activities
described in WIOA sec. 129 and 20 CFR part 681; the arrangements under
the MOU's with the applicable Local Workforce Development Boards for
the delivery of the services available through the one-stop system to
MSFWs; and related assistance services.
Section 685.320 Who is eligible to receive services under the National
Farmworker Jobs Program?
Proposed Sec. 685.320 establishes that MSFWs as defined in Sec.
685.110 are eligible for services funded by the NFJP. As provided in
WIOA sec. 167(d)(1), NFJP grants are used to provide adult and youth
services, thus the NFJP may use funds available to serve youth even
when the service area is not being served with supplemental youth funds
authorized in WIOA sec. 127(a)(1). In addition, NFJP services can be
provided to eligible MSFW youth who demonstrate a need for and ability
to benefit from career services. For example, some older youth may
benefit more from the array of career services available under NFJP
than from the youth services offered under subpart E.
[[Page 20770]]
Section 685.330 How are services delivered to eligible migrant and
seasonal farmworkers?
Proposed Sec. 685.330 emphasizes that services to eligible MSFWs
will be focused on the customer's needs and provided through a case-
management approach emphasizing customer choice, and may include
appropriate career services and training, and related assistance, which
includes emergency assistance; and supportive services, which includes
allowance payments. The basic services and delivery of case-management
activities are further described in Sec. Sec. 685.340 through 685.390.
Section 685.340 What career services must grantees provide to eligible
migrant and seasonal farmworkers?
Proposed Sec. 685.340 establishes that eligible MSFWs must be
provided the career services described in WIOA secs. 167(d) and
134(c)(2), and 20 CFR part 680. Other career services may be provided
as identified in the grantee's approved program plan. The Department
also has included language to clarify that while career services must
be made available through the one-stop delivery system, grantees also
may provide these types of services through other sources outside the
one-stop system. Examples include non-profit organizations or
educational institutions. The delivery of career services to eligible
MSFWs by the grantee and through the one-stop system must be discussed
in the required MOU between the Local Workforce Development Board and
the grantee.
Section 685.350 What training services must grantees provide to
eligible migrant and seasonal farmworkers?
Proposed Sec. 685.350 establishes that the training activities in
WIOA secs. 167(d) and 134(c)(3)(D), and 20 CFR part 680, must be
provided to eligible MSFWs. These activities include, but are not
limited to, occupational-skills training and OJT. The Department also
emphasizes that eligible MSFWs are not required to receive career
services prior to receiving training services, as described in WIOA
sec. 134(c)(3)(iii). This section also reinforces the intent of WIOA
that training services be directly linked to an in-demand industry
sector or occupation in the service area, or in another area to which
an eligible MSFW receiving such services is willing to relocate,
consistent with WIOA sec. 134(c)(3)(G)(iii). The Department also
establishes that training activities must encourage the attainment of
recognized post-secondary credentials as defined in Sec. 685.110
(which refers to WIOA sec. 3(52)), when appropriate for an eligible
MSFW. This requirement is in alignment with WIOA secs.
116(b)(2)(A)(i)(IV) and 116(b)(2)(A)(ii)(III), which include ``the
percentage of program participants who obtain a recognized post-
secondary credential, or a secondary school diploma,'' as a primary
indicator of performance for both the adult and youth programs.
Section 685.360 What housing services must grantees provide to eligible
migrant and seasonal farmworkers?
Proposed Sec. 685.360 requires that housing grantees must provide
housing services to eligible MSFWs and that career services and
training grantees may provide housing services to eligible MSFWs as
described in their program plan. The proposed section establishes the
definitions of permanent housing and temporary housing services that
are available to eligible MSFWs. The Department establishes that
permanent housing is owner-occupied, or occupied on a permanent, year-
round basis (notwithstanding ownership) as the MSFW's primary residence
to which he/she typically returns at the end of the work or training
day and temporary housing is non-owner-occupied housing used by MSFWs
whose employment requires occasional travel outside their normal
commuting area. Permanent housing may include rental units, single
family, duplexes, and other multi-family structures, dormitory, group
homes, and other housing types that provide short-term, seasonal, or
year-round housing opportunities in permanent structures. Modular
structures, manufactured housing, or mobile units placed on permanent
foundations and supplied with appropriate utilities and other
infrastructure are also considered permanent housing. Temporary housing
may include: Units intended for temporary occupancy located in
permanent structures, such as rental units in an apartment complex or
in mobile structures, tents, and yurts that provide short-term,
seasonal housing opportunities; temporary structures that may be moved
from site to site, dismantled and re-erected when needed for farmworker
occupancy; and off-farm housing operated independently of employer
interest in, or control of, the housing, or on-farm housing operated by
a nonprofit, including faith-based or community non-profit
organizations, but located on property owned by an agricultural
employer. Specific examples of permanent housing services and
activities associated with the provision of permanent housing services,
and specific examples of temporary housing activities associated with
the provision of temporary housing services, including emergency
assistance such as emergency housing payments, vouchers, and cash
payments for rent/lease and utilities are provided. The Department
establishes that housing services are intended to meet the needs of
eligible MSFWs to occupy a unit of housing for reasons related to
seeking employment, retaining employment, or engaging in training. The
definitions of permanent housing and temporary housing assistance and
the specific examples of permanent and temporary housing services
described in the proposed Sec. 685.360 are adapted from the 2011
Department Notice of Availability of Funds and Solicitation for Grant
Applications for the National Farmworker Jobs Program (NFJP) Housing
Assistance Program (Funding Opportunity Number: SGA-DFA-PY-10-08) which
provided specific requirements and guidelines for housing grant
applicants.
Section 685.370 What services may grantees provide to eligible migrant
and seasonal farmworker youth participants aged 14-24?
Proposed Sec. 685.370 describes the services that grantees may
provide to eligible MSFW youth participants aged 14-24 based on an
evaluation and assessment of their needs. These services include the
career and training services described in Sec. Sec. 685.340 through
685.350; youth workforce investment activities described in WIOA sec.
129; life skills activities that encourage development of self and
interpersonal skills development; community service projects; and other
activities that conform to the use of funds for youth activities
described in 20 CFR part 681. Grantees may provide these services to
any eligible MSFW youth, regardless of the participant's eligibility
for WIOA title I youth activities as described in WIOA sec. 129(a).
Section 685.380 What related assistance services may be provided to
eligible migrant and seasonal farmworkers?
Proposed Sec. 685.380 describes the types of services that may be
provided to eligible MSFWs as ``related assistance,'' and establishes
that these services are short-term, direct services. Examples include
emergency assistance, as defined in Sec. 685.110, and those activities
identified in WIOA sec. 167(d), such as English language and literacy
instruction, pesticide and worker safety training, housing (including
permanent housing), as
[[Page 20771]]
described in Sec. 685.360, and school dropout prevention and recovery
activities. Related assistance is distinct from ``supportive services''
as defined in WIOA sec. 3, which ``means services such as
transportation, child care, dependent care, housing, and needs-related
payments, that are necessary to enable an individual to participate in
activities authorized under this Act,'' because related assistance may
be provided to eligible MSFWs who are not otherwise participating in
activities authorized under this Act such as career services, youth
services, or training services.
Section 685.390 When may eligible migrant and seasonal farmworkers
receive related assistance?
Proposed Sec. 685.390 establishes that eligible MSFWs may receive
related assistance services when the need for the related assistance is
identified and documented by the grantee. A statement by the eligible
MSFW may be included as documentation.
5. Subpart D--Performance Accountability, Planning, and Waiver
Provisions
This subpart describes indicators of performance for grantees,
required planning documents, and the information required in program
plans required under WIOA sec. 167. The subpart also explains waiver
provisions and clarifies how grant costs are classified under WIOA sec.
167.
Section 685.400 What are the indicators of performance that apply to
the National Farmworker Jobs Program?
Proposed Sec. 685.400 describes the indicators of performance that
apply to grantees. Grantees providing career services and training will
use the indicators of performance common to the adult and youth
programs, described in WIOA sec. 116(b)(2)(A), as required by WIOA sec.
167(c)(2)(C). These measures of performance are the same as the primary
indicators discussed in proposed Sec. 677.155. Though the indicators
of performance are identified in various places throughout the WIOA
proposed regulations, the indicators are the same and do not vary
across the regulations.
For grantees providing career services and training, the Department
will reach agreement on the levels of performance for each of the
primary indicators of performance described in WIOA sec. 116(b)(2)(A),
taking into account economic conditions, characteristics of the
individuals served, and other appropriate factors, and using, to the
extent practicable, the statistical adjustment model under WIOA sec.
116(b)(3)(A)(viii). The levels agreed to will be the adjusted levels of
performance and will be incorporated in the program plan, as required
in WIOA sec. 167(c)(3). For grantees providing housing services only,
grantees will use the total number of eligible MSFWs served and the
total number of eligible MSFW families served as indicators of
performance. Performance indicators for NFJP housing grantees are not
specified in WIA or WIOA statute, and the measures proposed here are
adapted from the Department's TEGL, Number 15-13, Program Year 2014
Planning Guidance for National Farmworker Jobs Program Housing
Grantees, released March 25, 2014. As described in proposed Sec.
685.400(d), the Department may develop additional performance
indicators with appropriate levels of performance for evaluating
programs that serve eligible MSFWs and which reflect the State service
area economy, local demographics of eligible MSFWs, and other
appropriate factors. In accordance with Sec. 685.400(d), the
Department may develop additional indicators of performance for housing
grantees in addition to the indicators specified in proposed Sec.
685.400(c). If additional performance indicators are developed, the
levels of performance for these additional indicators must be
negotiated with the grantee and included in the approved program plan.
Grantees also may develop additional performance indicators and include
them in the program plan or in periodic performance reports.
Section 685.410 What planning documents must a grantee submit?
Proposed Sec. 685.410 describes the planning documents that a
grantee must submit, including a comprehensive program plan, further
described in proposed Sec. 685.420, and a projection of participant
services and expenditures covering the 4-year grant cycle.
Section 685.420 What information is required in the grantee program
plan?
Proposed Sec. 685.420 describes the information required for
inclusion in program plans. Paragraph (a) asks for a description of the
service area that the applicant proposes to serve, in accordance with
WIOA sec. 167(c). Paragraphs (b) through (g) incorporate the elements
described in WIOA sec. 167(c)(2). Paragraphs (h) and (i) specify
additional information required in program plans which include: The
methods the grantee will use to target its services on specific
segments of the eligible population, as appropriate, and the response
to any other requirements set forth in the FOA issued under Sec.
685.210.
Section 685.430 Under what circumstances are the terms of the grantee's
program plan modified by the grantee or the Department?
Proposed Sec. 685.430 describes the circumstances when the terms
of the grantee's program plan can be modified by the grantee or the
Department. Program plans must be modified to reflect the funding level
for each year of the grant, and the Department will provide
instructions annually on when to submit modifications for each year of
funding, which will generally be no later than June 1, prior to the
start of the subsequent year of the grant cycle. Grantees must submit a
request to the Department for any proposed modifications to the plan to
add, delete, expand, or reduce any part of the program plan or
allowable activities, and the Department will consider the cost
principles, uniform administrative requirements, and terms and
conditions of award when reviewing modifications to program plans. The
purpose of this requirement is to ensure that the Department has
reviewed and approved any proposed programmatic changes as part of a
grant award to ensure the changes are allowable, programmatically and
fiscally sound, and do not negatively affect performance outcomes. If
the grantee is approved for a regulatory waiver under proposed Sec.
685.560 and Sec. 685.570, it must submit a modification of the grant
plan to reflect the effect of the waiver.
Section 685.440 How are costs classified under the National Farmworker
Jobs Program?
Proposed Sec. 685.440 describes how costs are classified under the
NFJP. Costs are classified as administrative costs, as defined in 20
CFR 683.215, and program costs are all other costs not defined as
administrative. The Department further specifies that program costs
must be classified and reported in the categories of related assistance
(including emergency assistance), supportive services, and all other
program services.
Section 685.450 What is the Workforce Innovation and Opportunity Act
administrative cost limit for National Farmworker Jobs Program grants?
Proposed Sec. 685.450 describes the administrative cost limit for
NFJP grants which, under 20 CFR 683.205(b), will be identified in the
grant or contract award document, and will not exceed 15 percent of
total grantee funding. The administrative cost limit established in
[[Page 20772]]
this section is consistent with the administrative cost limit under
which the program is currently operating.
Section 685.460 Are there regulatory and/or statutory waiver provisions
that apply to the Workforce Innovation and Opportunity Act?
Proposed Sec. 685.460 describes the regulatory and/or statutory
waiver provisions that apply to WIOA sec. 167. The statutory waiver
provision at WIOA sec. 189(i) and discussed in 20 CFR 679.600 does not
apply to WIOA sec. 167. Paragraph (b) establishes that grantees may
request a waiver of any regulatory provisions only when such regulatory
provisions are (1) not required by WIOA; (2) not related to wage and
labor standards, non-displacement protection, worker rights,
participation and protection of workers and participants, and
eligibility of participants, grievance procedures, judicial review,
nondiscrimination, allocation of funds, procedures for review and
approval of plans; and (3) not related to the basic purposes of WIOA,
described in 20 CFR 675.100.
Section 685.470 How can grantees request a waiver?
Proposed Sec. 685.570 describes the information that grantees must
submit to the Department in a waiver plan to document a requested
waiver. The waiver request must include: A description of the goals of
the waiver; the expected programmatic outcomes and how the waiver will
improve the provision of program activities; how the waiver is
consistent with guidelines the Department establishes; the data that
will be collected to track the impact of the waiver; and the modified
program plan reflecting the effect of the requested waiver.
6. Subpart E--Supplemental Youth Workforce Investment Activity Funding
Under Workforce Innovation and Opportunity Act Sec. 127(a)(1)
This subpart describes the purpose of supplemental youth workforce
investment activity funding that may become available under WIOA sec.
127(a)(1). Included is a description of how the funds may become
available, and what requirements apply to grants funded by WIOA sec.
127(a)(1). Significantly, these funds may be used only for workforce
investment activities for eligible MSFW youth, as defined in Sec.
685.110. The Department will issue a separate FOA for grants funded by
WIOA sec. 127(a)(1), and the selection will be made in accordance with
the procedures described in Sec. 685.210, giving priority to
applicants that are WIOA sec. 167 grantees. Planning documents required
for grants funded by WIOA sec. 127(a)(1) will be described in the FOA;
and allocation of WIOA sec. 127(a)(1) funds will be based on the
comparative merits of the applications in accordance with criteria set
forth in the FOA.
Section 685.500 What is supplemental youth workforce investment
activity funding?
Proposed Sec. 685.500 describes that if Congress appropriates more
than $925 million for WIOA youth workforce investment activities in a
fiscal year, 4 percent of the excess amount must be used to provide
workforce investment activities for eligible MSFW youth under WIOA sec.
167.
Section 685.510 What requirements apply to grants funded by the
Workforce Innovation and Opportunity Act?
Proposed Sec. 685.510 specifies that the requirements in subparts
A through D of Sec. 685 apply to grants funded by WIOA sec. 127(a)(1),
except that grants described in this subpart must be used only for
workforce investment activities for eligible MSFW youth, as described
in Sec. 685.370 and WIOA sec. 167(d) (including related assistance and
supportive services).
Section 685.520 What is the application process for obtaining a grant
funded by the Workforce Innovation and Opportunity Act?
Proposed Sec. 685.520 specifies that the Department will issue a
separate FOA for grants funded by WIOA sec. 127(a)(1). The selection
will be made in accordance with the procedures described in Sec.
685.210, except that the Department reserves the right to provide
priority to applicants that are WIOA sec. 167 grantees.
Section 685.530 What planning documents are required for grants funded
by the Workforce Innovation and Opportunity Act?
Proposed Sec. 685.530 specifies that planning documents required
for grants funded by WIOA sec. 127(a)(1) will be described in the FOA.
Section 685.540 How are funds allocated to grants funded by the
Workforce Innovation and Opportunity Act?
Proposed Sec. 685.540 describes that the allocation of WIOA sec.
127(a)(1) funds will be based on the comparative merits of the
applications, in accordance with criteria set forth in the FOA.
Section 685.550 Who is eligible to receive services through grants
funded by the Workforce Innovation and Opportunity Act?
Proposed Sec. 685.550 describes that eligible MSFW youth as
defined in Sec. 685.110 may receive services through grants funded by
WIOA sec. 127(a)(1).
J. Part 686--The Job Corps Under Title I of the Workforce Innovation
and Opportunity Act
1. Introduction
This part provides proposed regulations for the Job Corps program,
authorized in title I, subtitle C of WIOA. The regulations address the
scope and purpose of the Job Corps program and provide requirements
relating to site selection, protection, and maintenance of Job Corps
facilities; funding and selection of center operators and service
providers; recruitment, eligibility, screening, selection and
assignment, and enrollment of Job Corps students; Job Corps program
activities and center operations; student support; career transition
services and graduate services; community connections; and
administrative and management requirements. The Department's intent in
the regulations is to incorporate the requirements of title I, subtitle
C of the Act and to describe how the Job Corps program is operated in
order to deliver relevant academic and career technical training (CTT)
that leads to meaningful employment or post-secondary education. The
regulations also serve to explain clearly the requirements necessitated
by the unique residential environment of a Job Corps center. The major
changes from the existing regulations reflect WIOA's effort to enhance
the Job Corps program, provide access to high quality training and
education, create incentives for strong contractor performance, and
promote accountability and transparency.
2. Subpart A--Scope and Purpose
This proposed subpart contains regulatory provisions that describe
the Job Corps program, its purpose, the role of its Director, and
applicable definitions. In describing the role of the Job Corps
Director, this subpart provides that the Secretary has delegated the
authority to carry out his or her responsibilities under this part to
the National Director of Job Corps; therefore, all references to the
Secretary issuing guidelines, procedures or standards means that they
will be issued by the National Job Corps Director. This subpart also
describes the Policy and Requirements Handbook (PRH), which provides
the operating policies and
[[Page 20773]]
procedures governing day-to-day activities of the Job Corps program.
The subpart describes the scope and purpose of the program, along with
the responsibilities of its National Director. It promotes
accountability and transparency by making readers aware of exactly what
the Job Corps program plans to achieve and the procedures for doing so,
as well as the role its leadership plays in its operation.
Section 686.100 What is the scope of this part?
Proposed Sec. 686.100 contains the regulatory provisions governing
the Job Corps program. It explains that procedures guiding day-to-day
operations are proposed to be provided in the PRH and clarifies that
throughout this part, phrases that refer to instructions or procedures
issued by the Secretary refer to the PRH and other Job Corps
Directives. Because this section of WIOA is so similar to the
corresponding section in WIA, this proposed section retains the same
requirements found at 20 CFR 686.100.
Section 686.110 What is the Job Corps program?
Proposed Sec. 686.110 describes the Job Corps program. Job Corps
is a national program that operates in partnership with States,
communities, local Workforce Development Boards, youth councils, one-
stop centers and partners, and other youth programs to provide social,
academic, career and technical education, and service-learning
opportunities, primarily in a residential setting, for low-income young
people. Proposed Sec. 686.110 reflects the increased focus in sec. 141
of WIOA on connecting young people to the labor force by providing them
with intensive social, academic, career and technical education in
order to obtain secondary school diplomas or recognized credentials
leading to successful careers in in-demand industries or occupations,
the Armed Forces, or enrollment in post-secondary education. The
program's goals for students are economic self-sufficiency,
opportunities for advancement, and responsible citizenship.
Section 686.120 What definitions apply to this part?
The definitions that are listed in this section are specific to
this proposed part, which governs the Job Corps program. Other
definitions that apply to the Job Corps program are defined under secs.
3 and 142 of WIOA. Proposed Sec. 686.120 describes definitions in four
categories.
The first category is made up of proposed definitions that are the
same as those included in the regulations at 20 CFR 686.120 that
governed the Job Corps program under WIA. These are ``Absent Without
Official Leave (AWOL),'' ``Capital improvement,'' ``Contract center,''
``Enrollee,'' ``Enrollment,'' ``Individual with a disability,''
``Interagency agreement,'' ``Job Corps Director,'' ``National Office,''
``Placement,'' ``Regional appeal board,'' ``Regional Director,''
``Regional Office,'' ``Regional Solicitor,'' ``Separation,''
``Student,'' and ``Unauthorized goods.'' Because these definitions are
the same as those in the WIA regulations, the Department has not
included further explanation of them below.
The second category is made up of proposed definitions that are
similar to definitions included in the WIA regulations at 20 CFR
670.120, but they have been modified slightly due to differences in the
definitions contained in WIOA. These are ``Applicable Local Board,''
``Civilian Conservation Center (CCC), ``Contracting Officer,''
``Graduate,'' ``Job Corps,'' ``Job Corps center,'' ``Low-income
individual,'' ``National training contractor,'' ``Operational support
services,'' ``Operator,'' and ``Outreach and admissions provider.''
The third category is made up of proposed definitions that were not
included in the WIA regulations, but they are defined in sec. 142 of
WIOA. These are ``Applicable one-stop center,'' ``Former Enrollee,''
and ``Service Provider.''
The fourth category is made up of proposed definitions that apply
to the Job Corps program and are commonly used in these regulations,
but do not appear in the WIA regulations or in WIOA. These are ``Career
Technical Training,'' ``Career Transition Service Provider,'' and
``Participant.''
Aside from the terms in the first category, the definitions are
explained as the terms appear in this proposed section in alphabetical
order, as follows:
Applicable Local Board--The proposed definition of this term
implements the definition of ``applicable Local Board'' contained in
sec. 142 of WIOA. It is similar to the definition of ``Workforce
Investment Board'' in the WIA regulations.
Applicable one-stop center--The proposed definition of this term
implements the definition contained in sec. 142 of WIOA.
Career Technical Training--The proposed definition of this term
means career and technical education and training, which is the term
most often used by WIOA rather than ``vocational training,'' as used in
WIA.
Career Transition Service Provider--The proposed definition of this
term means an organization acting under a contract or other agreement
with Job Corps to provide career transition services for graduates and,
to the extent possible, for former students. WIOA uses both the term
``Career Transition Service Provider'' and ``Placement Provider''
interchangeably. Career transition services are further explained in
subpart G of the proposed rule.
Contracting officer--The proposed definition of this term is
similar to the definition of ``contracting officer'' in the WIA
regulations, but it does not include ``Regional Director,'' because
contracting officers are most often not Regional Directors.
Former Enrollee--The proposed definition of this term implements
the definition contained in sec. 142 of WIOA.
Graduate--The proposed definition of this term implements the
definition contained in sec. 142 of WIOA.
Job Corps--The proposed definition of this term is similar to the
definition of ``Job Corps'' in the WIA regulations, but it clarifies
that the Job Corps is established within the Department and cites the
applicable section of WIOA.
Job Corps center--The proposed definition of this term is the same
as the definition in the WIA regulations, except that this definition
cites the applicable section of WIOA.
Low-income individual--The proposed definition of this term is the
same as the definition in the WIA regulations, except that this
definition cites the applicable section of WIOA.
National training contractor--The proposed definition of this term
is slightly different from the definition in the WIA regulations,
because the term ``career and technical training'' is used rather than
``vocational training.'' However, the meaning remains unchanged.
Operational support services--The proposed definition of this term
is slightly different from the definition in the WIA regulations,
because the term ``career and technical training'' is used instead of
``vocational training.'' However, the meaning remains unchanged.
Operator--The proposed definition of this term implements the
definition of ``operator'' contained in sec. 142 of WIOA. It is similar
to the definition of ``center operator'' in the WIA regulations.
Outreach and admissions provider - The proposed definition of this
term is similar to the definition of ``outreach
[[Page 20774]]
and admissions agency'' in the WIA regulations, but it clarifies that
the entity performs recruitment in addition to outreach and enrollment
activities, consistent with the definition in sec. 142 of WIOA.
Participant--The proposed definition of this term clarifies which
individuals are considered participants for performance reporting
purposes under proposed Sec. 686.1010. The definition of participant
includes graduates and those enrollees and former enrollees who have
completed the career preparation period. It also includes enrollees and
former enrollees who have remained in the program for 60 days or more,
regardless of whether they have completed their career preparation
period. During the career preparation period, the student learns,
demonstrates, and practices personal responsibility and skills required
in the workplace; learns, demonstrates, and practices job search
skills; visits and learns about one-stop centers; and creates a
personal career development plan with the help of staff. In most cases,
the career preparation period culminates with the commitment to the
Personal Career Development Plan. The Department proposes this
limitation because students are not assigned to trades and are not
generally receiving the services described subpart E of this part until
the career preparation period is completed. The career preparation
period is described in Job Corps' Policy and Requirements Handbook.
Service Provider--The proposed definition of this term implements
the definition contained in sec. 142 of WIOA.
Section 686.130 What is the role of the Job Corps Director?
Proposed Sec. 686.130 describes the role of the Job Corps
Director, noting that he/she has been delegated authority to carry out
the responsibility of the Secretary under title I, subtitle C of WIOA
related to the operation of the Job Corps program. Proposed Sec.
686.130 also clarifies that references in this part referring to
``guidelines'' or ``procedures issued by the Secretary'' mean that the
Job Corps Director issues such guidelines. This proposed section
retains the same requirements as those found at 20 CFR 686.130.
3. Subpart B--Site Selection and Protection and Maintenance of
Facilities
This proposed subpart describes how sites for Job Corps centers are
selected, the handling of capital improvements and new construction on
Job Corps centers, and responsibilities for facility protection and
maintenance. The requirements in this subpart are not significantly
different from the corresponding requirements in the WIA Job Corps
regulations at 20 CFR part 686 subpart B. The Secretary, through
delegation of authority to the National Director of Job Corps, must
approve the location and size of all Job Corps centers, and establish
procedures for requesting, approving, and initiating capital
improvement and new construction on Job Corps centers, which serves to
strengthen and enhance the program as a whole.
Section 686.200 How are Job Corps center locations and sizes
determined?
Proposed Sec. 686.200 explains that the Secretary must approve the
location and size of all Job Corps centers, including both contract
centers and CCCs. The Secretary also establishes procedures for making
decisions concerning the establishment, relocation, expansion, or
closing of contract centers.
Section 686.210 How are center facilities improvements and new
construction handled?
Proposed Sec. 686.210 states that the Secretary establishes
procedures for requesting, approving, and initiating capital
improvements and new construction on Job Corps centers.
Section 686.220 Who is responsible for the protection and maintenance
of center facilities?
Proposed Sec. 686.220 states that the Secretary establishes
procedures for the protection and maintenance of contract center
facilities owned or leased by the Department. The proposed section also
states that when the Department of Agriculture operates CCCs on public
land, it will be responsible for the protection and maintenance of CCC
facilities. The Secretary issues procedures for conducting periodic
facility surveys of centers to determine their condition and to
identify additional physical needs. This proposed section retains the
same requirements found at 20 CFR 670.220.
4. Subpart C--Funding and Selection of Center Operators and Service
Providers
In this proposed subpart the Department implements new requirements
of WIOA with regard to the operators of high-performing centers, the
length of contractual agreements to operate Job Corps centers, and how
entities are selected to receive funding to operate Job Corps centers
and to provide outreach, admissions, and career transition support
services. In addition to adding to the list of considerations currently
used in selecting Job Corps center operators and service providers,
WIOA emphasizes competition to increase the performance and quality of
the Job Corps program. WIOA also provides that an entity, in its role
as incumbent operator of a center deemed to be high performing, may
compete in any competitive selection process carried out for an award
to operate that center, even in cases where the selection of the
operator is set aside for small businesses as required by the Federal
Acquisition Regulation. This serves to ensure continued access to high
quality training and education for Job Corps students, since a high
performing incumbent operator has an established and proven record of
providing it. WIOA also provides that a center operations contracts
cannot exceed 2 years, with three 1-year options to renew. This
codifies current Job Corps practice. Furthermore, WIOA precludes the
Secretary from exercising an option to renew a center operations
contract for an additional 1-year period if certain criteria are not
met, with limited exceptions. All of these new and expanded provisions
follow WIOA's theme of enhancing the Job Corps program and providing
access to high quality training and education by ensuring Job Corps
centers are staffed with high quality service providers.
Section 686.300 What entities are eligible to receive funds to operate
centers and provide training and operational support services?
Proposed Sec. 686.300 implements secs. 147(a)(1), 147(e), and
145(a)(3) of WIOA, establishing the entities eligible to receive funds
to operate Job Corps centers, and to provide outreach and admissions,
career transition, and other operational support services.
Proposed paragraphs (a)(1), (a)(2), and (a)(4) reflect the entities
eligible to operate Job Corps centers listed in WIOA sec. 147(a)(1)(A).
Proposed paragraph (a)(3) includes ``Indian tribes and organizations''
as eligible center operators, consistent with sec. 147(e) of WIOA. For
purposes of this section, the Department interprets ``Indian tribes and
organizations'' consistent with sec. 147(e)(2) of WIOA, which provides
that the terms ``Indian'' and ``Indian tribe'' have the meanings given
them in sec. 4 of the ISDEAA (codified at 25 U.S.C. 450b(d) and (e)),
which says that ``Indian tribe'' means any Indian tribe, band, nation,
or other organized group or community, including any Alaska Native
village or regional or village corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (codified at 43
U.S.C. 1601 et seq.), which is recognized as
[[Page 20775]]
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.
Proposed paragraph (b) lists the entities eligible to receive funds
to provide necessary services to Job Corps centers, including outreach
and admissions, career transition, and other operational support
services. Generally, as provided in WIOA sec. 147(a)(1)(B), local or
other entities with the necessary capacity to provide activities
described in this part are considered eligible entities. Paragraphs
(b)(1), (b)(2), and (b)(3) reflect the entities listed in sec.
145(a)(3) of WIOA. Currently Job Corps also allows private for-profit
and non-profit corporations to act as eligible service providers;
paragraph (b)(2) clarifies that private for-profit and non-profit
corporations continue to be included as business organizations eligible
to receive funds as service providers.
Section 686.310 How are entities selected to receive funding to operate
centers?
Proposed Sec. 686.310 implements secs. 147(a)(2) and (a)(3) of
WIOA, which contain new provisions to strengthen the Job Corps
contracting process by requiring specific criteria that emphasize
quality, performance, and accountability to be addressed as part of the
selection process for center operators. The proposed section adopts
these criteria to improve the effectiveness of the program in helping
young people become responsible citizens by providing them with the
skills they need for successful careers in in-demand industry sectors,
occupations, or the Armed Forces, or for enrollment in post-secondary
education. The Department welcomes comments on how best to embed a
focus on quality, performance, and accountability into the procurement
process.
Proposed Sec. 686.310(a) implements sec. 147(a)(2)(A) of WIOA,
stating that the Secretary selects eligible entities to operate
contract centers on a competitive basis in accordance with applicable
statutes and regulations. This paragraph also explains that in
selecting an entity, ETA issues requests for proposals (RFPs) for the
operation of all contact centers according to the Federal Acquisition
Regulation (48 chapter 1) and the Department's Acquisition Regulation
(48 chapter 29). ETA develops RFPs for center operators in consultation
with the Governor, the center workforce council (if established), and
the Local Board for the workforce development area in which the center
is located.
Proposed paragraph (b) requires that the RFPs for each contract
center describe uniform specifications and standards, as well as
specifications and requirements that are unique to the operation of the
specific center.
Proposed paragraph (c) implements the factors for selection of an
entity to operate a Job Corps center established in sec.
147(a)(2)(B)(i) of WIOA, by specifying that the selection criteria will
be established by the Secretary and set forth in the RFP. Proposed
paragraphs (c)(1) through (5) set forth the specific criteria that must
be included in the RFP, as listed in sec. 147(a)(2)(B)(i) of WIOA.
Paragraph (c)(1) retains the language found in the WIA regulations at
20 CFR 670.310(c)(1), requiring that the offeror demonstrate its
ability to coordinate the activities carried out through the Job Corps
center with activities carried out under the appropriate State and
local workforce investment plans. This supports the overall goal of
better connecting and aligning Job Corps with the workforce system.
Proposed paragraphs (c)(2) through (4) implement the criteria at
WIOA secs. 147(a)(2)(B)(i)(II) through 147(a)(2)(B)(i)(IV). These
provisions support the goal of better alignment with the workforce
system and the increased focus on past performance and student outcomes
against the primary indicators of performance for eligible youth and
the Job Corps program.
Proposed paragraph (c)(5) is a new element in the selection process
established in sec. 147(a)(2)(B)(i)(V) of WIOA, requiring that the
criteria include the offeror's ability to demonstrate a record of
successfully assisting at-risk youth to connect to the workforce,
including providing them with intensive academics and career and
technical training. This aligns with the increased focus on student
outcomes and emphasizes the purpose of the program, which is to provide
students with the skills they need for successful careers in in-demand
industries, occupations, or the Armed Forces, or to continue on to
post-secondary education. The Department welcomes comments on how to
assess potential offerors' past records in assisting at-risk youth to
connect to the workforce.
Proposed paragraph (d) implements the additional factors for
selection of an entity to operate a Job Corps center that are specified
in sec. 147(a)(3) of WIOA. These provisions support the goals of better
alignment with the workforce system and increased focus on past
performance and student outcomes against the primary indicators of
performance for eligible youth and the Job Corps program. In addition,
paragraph (d) specifies that the information described in paragraphs
(d)(1) through (11) must be submitted at such time in the procurement
process, and in such form, as the Secretary determines is appropriate.
Section 686.320 What if a current center operator is deemed to be an
operator of a high-performing center?
Proposed Sec. 686.320(a) implements sec. 147(b)(1) of WIOA,
allowing an entity that, in its role as the incumbent operator of a
center, meets the requirements of this section to be considered an
operator of a high-performing center. If the entity is considered an
operator of a high-performing center, the entity must be allowed to
compete in any competitive selection process carried out for an award
to operate that center. This means that in cases where the selection of
the operator of a particular center is set aside for small businesses
as required by the Federal Acquisition Regulation, the incumbent
operator may participate in the subsequent competition for the center
operations contract even if the operator would be otherwise ineligible
to compete as a result of the set-aside.
Proposed paragraph (b) implements sec. 147(b)(2) of WIOA, which
provides the criteria an operator must meet to be considered an
operator of a high-performing center for the purposes of paragraph (a).
First, under paragraph (b)(1), the center must be ranked among the top
20 percent of Job Corps centers for the most recent preceding PY
according to the ranking described in proposed Sec. 686.1070. Second,
under paragraph (b)(2), the center must meet the expected levels of
performance established with respect to each of the primary indicators
of performance for eligible youth found in proposed Sec. 686.1000. A
center will be determined to have met the expected measures of
performance if, per proposed Sec. 686.320(b)(2)(i) and (ii), it
achieved an average of at least 100 percent of the expected level of
performance for the indicator over the most recent preceding 3 PYs,
and, for the most recent preceding PY for which information is
available at the time the determination is made, the center achieved at
least 100 percent of the expected level of performance established for
the indicator. This provision emphasizes the importance of meeting the
expected levels of performance related to the primary indicators, by
providing an opportunity for the most successful incumbent contractors
to compete to operate a high-performing center even if
[[Page 20776]]
the competition for that center is a small business set-aside and the
incumbent would not normally meet the criteria to compete in a small
business set-aside competition. The Department anticipates going
through the market research phase of the competition before determining
whether the competition will be set aside for small businesses; a
determination as to whether the incumbent contractor meets the criteria
in proposed paragraph (b) will likely be made after the market research
phase is completed and before the issuance of the solicitation.
Proposed paragraph (c) implements the transition procedures in sec.
147(b)(3) of WIOA, and describes the criteria that must be met for an
operator to be considered to be an operator of a high-performing center
if any of the PYs described in paragraph (b) precede the implementation
of the establishment of the expected levels of performance and the
application of the primary indicators of performance for eligible
youth.
Section 686.330 What is the length of an agreement entered into by the
Secretary for operation of a Job Corps center and what are the
conditions for renewal of such an agreement?
Proposed Sec. 686.330 implements secs. 147(f)-(g) of WIOA, which
contain new provisions to strengthen the Job Corps contracting process
by enacting new requirements for the length of center operations
contracts and the conditions under which they may be renewed. These
provisions emphasize quality and integrity in center operators and
direct the Secretary not to exercise option years for contracts where
minimum standards of performance related to the primary indicators of
performance for eligible youth are not met. These provisions further
support the overall vision of improved performance and accountability
for the Job Corps program.
Proposed Sec. 686.330(a) implements sec. 147(f) of WIOA, which
provides that contracts to operate a Job Corps center cannot exceed 2
years, but that the Secretary can exercise any contractual option to
renew the agreement in 1-year increments for not more than 3 additional
years. This proposed paragraph reflects current Job Corps contracting
practice.
Proposed paragraph (b) explains that the Secretary will establish
procedures for evaluating the option to renew an agreement that include
an assessment of the factors described in proposed paragraph (c), a
review of contract performance and financial reporting compliance, a
review of the program management and performance data described in
proposed Sec. Sec. 686.975 and 686.980, and an evaluation of the
factors described in proposed paragraph (d).
Proposed paragraph (c) implements sec. 147(g)(4) of WIOA, which
establishes conditions that must be met for the Secretary to exercise a
contractual option to renew an agreement for an entity to operate a Job
Corps center.
Proposed paragraph (d) implements sec. 147(g)(1) of WIOA, which
prohibits the Secretary from renewing an agreement for an entity to
operate a Job Corps center for any 1-year additional period if, for
both of the 2 most recent preceding PYs for which information is
available at the time the determination to exercise an option is made,
the center both has been ranked in the lowest 10 percent of Job Corps
centers according to the ranking described in proposed Sec. 686.1070
and has failed to achieve an average of 50 percent or higher of the
expected level of performance with respect to each of the primary
indicators of performance for eligible youth (as described in proposed
Sec. 686.1000). If a second year of program data is unavailable at the
time the determination regarding the contractual option is made,
proposed paragraph (d) requires the use of data from the preceding year
from which performance information is available. This provision
emphasizes the center operator's accountability for meeting the
expected levels of performance related to the primary indicators by
establishing minimum performance standards that must be met for the
Secretary to exercise an option year.
Proposed paragraph (e) addresses the availability of information
and data necessary to make the determination required by proposed
paragraph (d). The availability of sufficient information to make this
determination is a particular concern in situations where there is a
change of operators at the beginning of an agreement, and there is a
period of time during which student outcome data, and thus the primary
indicators of performance, reflect the performance of the previous
operator rather than the operator upon whose contract the determination
is being made.
In order to prevent an entity from being penalized for the poor
performance of the previous operator, proposed paragraph (e)(1) states
that information will only be considered to be available for a PY for
purposes of paragraph (d) if for each of the primary indicators of
performance, all of the students included in the cohort being measured
either began their participation under the current center operator or,
if they began their participation under the previous center operator,
were on center for at least 6 months under the current operator. Six
months represents a sufficient length of time for the efforts of the
current operator to influence the outcomes achieved by a student.
Proposed paragraph (e)(2) further provides that if complete information
for any of the indicators of performance described in paragraph (d)(2)
is not available for either of the 2 PYs described in paragraph (d),
the Secretary will review partial PY data from the most recent PY for
those indicators, if at least 2 quarters of data are available, when
making the determination required under paragraph (d)(2). The
Department recognizes that data for some of the primary indicators of
performance do not become mature for an extended period of time. For
example, employment in the fourth quarter after exit and credential
attainment are measured more than a year after the student exits the
program and then are reported in a subsequent quarter. Because the
Secretary's decision on whether to exercise the first option year is
normally made about 18 months after the contract begins, in many cases
complete information on employment in the fourth quarter after exit and
credential attainment will not be available at the time the first
option year decision is made. The Department invites comments on the
issue of information availability, including the threshold for the
point at which the performance of the center reflects the performance
of the current operator.
Proposed paragraph (f) provides a transition provision for
establishing the criteria that must be met for an operator to meet the
requirements of proposed paragraph (d). The transition provisions apply
if any of the PYs described in paragraph (d) precede the implementation
of the primary indicators of performance for eligible youth and
establishment of the expected levels of performance. While the WIOA
statute does not include a transition provision, it is necessary to add
such a provision because although the WIOA contracting provisions,
including this section, go into effect on July 1, 2015, the WIOA
performance reporting requirements do not go into effect until July 1,
2016. In addition, there will be a gap in time during which initial
data on the primary indicators of performance is being collected and
baselines are being established when the expected levels of performance
will not have been established and therefore, the data described in
paragraph (d)(2) will not yet be available. ETA has modeled the
transition language in proposed
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paragraph (f) on the transition provision in WIOA sec. 147(b)(3), which
is used to determine whether a center is a high performing center, and
based on criteria similar to the criteria in proposed paragraph (d).
The transition bases the determination on similar data points using the
performance of the Job Corps center regarding the national goals or
targets established by the Office of the Job Corps under the previous
performance accountability system, which is the available data that
most closely aligns with the requirement in paragraph (d). Therefore,
the Department chose this as the best proxy data available. The
Department invites comments on the approach to transitioning from the
WIA to WIOA performance management systems.
Proposed paragraph (g), implements sec. 147(g)(2) of WIOA, which
provides an exception to the prohibition against exercising an option
year for an operator of a low-performing center as determined under
proposed paragraph (d).
As required in sec. 147(g)(3) of WIOA, if the Secretary exercises a
contractual option by applying the exception described in proposed
paragraph (g), proposed paragraph (h) requires the Secretary to provide
a detailed explanation of the rationale for exercising the option to
the Committee on Education and the Workforce of the House of
Representatives and the Committee on Health, Education, Labor, and
Pensions of the Senate.
Section 686.340 How are entities selected to receive funding to provide
outreach and admission, career transition and other operational support
services?
Proposed Sec. 686.340(a) implements sec. 147(a)(2)(A) of WIOA,
generally describing the process by which eligible entities are
selected to provide outreach and admissions, career transition, and
other operational support services to the Job Corps program.
Proposed paragraph (b) requires that the RFP for each support
service contract describes uniform specifications and standards, as
well as specifications and requirements that are unique to the
operation of the specific center.
Proposed paragraph (c) implements the factors for selection of an
entity to provide operational support services, as established in sec.
147(a)(2)(B)(i) of WIOA, by specifying that the selection criteria will
be established by the Secretary and set forth in the RFP. The criteria
listed in proposed paragraphs (c)(1) through (5) are the same as those
in proposed Sec. 686.310(c)(1) through (5). Proposed paragraph (c)(6)
provides that the Secretary may require additional information or
selection factors in the RFP.
Section 686.350 What conditions apply to the operation of a Civilian
Conservation Center?
Proposed Sec. 686.350 is a new section that implements sec. 147(d)
of WIOA. Proposed paragraph (a) implements sec. 147(d)(1) of WIOA,
establishing that the Secretary of Labor may enter into an agreement
with the Secretary of Agriculture to operate Job Corps centers called
CCCs. Paragraph (a) also contains the description of the
characteristics of CCCs.
Proposed paragraph (b) retains the language in the WIA regulations
at 20 CFR 670.310(e) that when the Secretary of Labor enters into an
agreement with the Secretary of Agriculture for the funding,
establishment, and operation of CCCs, provisions are included to ensure
that the Department of Agriculture complies with the regulations under
this part.
Proposed paragraph (c), implementing sec. 147(d)(2) of WIOA,
permits enrollees in CCCs to provide assistance in addressing national,
State, and local disasters, consistent with relevant child labor laws.
This proposed paragraph further requires that the Secretary of
Agriculture ensure that enrollees are properly trained, equipped,
supervised, and dispatched consistent with the standards for the
conservation and rehabilitation of wildlife established under the Fish
and Wildlife Coordination Act (16 U.S.C. 661 et seq.).
Proposed paragraph (d) requires the Secretary of Agriculture to
designate a Job Corps National Liaison to support the agreement between
the Departments of Labor and Agriculture to operate CCCs, as required
by sec. 147(d)(3) of WIOA.
Proposed paragraph (e) permits the Secretary, in consultation with
the Secretary of Agriculture, to select a private entity to operate a
CCC using the process and requirements described at Sec. 686.310.
Proposed paragraph (f) permits the Secretary to close a CCC as part
of the Department's administration of the Job Corps program if it
determines that such action would be appropriate.
Section 686.360 What are the requirements for award of contracts and
payments to Federal agencies?
Proposed Sec. 686.360 states the requirements and authorities that
apply to the award of contracts and payments to Federal agencies. This
section retains the same requirements as those in the WIA regulations
at 20 CFR 670.320.
5. Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, Enrollment
This proposed subpart describes who is eligible for Job Corps under
WIOA and provides additional factors that are considered in selecting
eligible applicants for enrollment. Also described is how applicants
who meet eligibility and selection requirements are assigned to
centers, which implements WIOA's new requirements that the assignment
plan consider the size and enrollment level of a center, including the
education, training, and supportive services provided, and the
performance of the Job Corps center related to the newly established
expected levels of performance. WIOA also amends the assignment plan to
provide for assignments at the center closest to home that offers the
type of career and technical training selected by the individual rather
than just the center closest to home, which improves access to high
quality training for Job Corps students. These proposed regulations
serve to enhance the Job Corps program overall by ensuring that the
individual training and education needs of applicants and enrollees are
met in accordance with the requirements of WIOA. They also ensure that
applicants and enrollees are provided accurate information about the
standards and expectations of the Job Corps program and are fully
prepared to be successful.
Section 686.400 Who is eligible to participate in the Job Corps
program?
Proposed paragraph (a) implements the eligibility requirements in
sec. 144(a) of WIOA. According to WIOA, to be eligible to participate
in the Job Corps, an individual must be at least 16 and not more than
24 years old at the time of enrollment, except that: Under proposed
paragraph (a)(1)(i), the Job Corps Director may waive the maximum age
limitation described in paragraph (a)(1) and the requirement in
paragraph (a)(1)(ii) for an individual with a disability who is
otherwise eligible according to the requirements listed in Sec. Sec.
686.400 and 686.410. Proposed paragraph (a)(1)(ii) states that not more
than 20 percent of individuals enrolled nationwide can be aged 22 to 24
at the time of enrollment. The regulatory language in paragraph
(a)(1)(i) differs from the language in the WIA regulations at 20 CFR
670.400(a)(1). The proposed language is intended to enable the Job
Corps Director to admit individuals with disabilities even if they
exceed the age limitations in paragraph
[[Page 20778]]
(a) as long as the Director determines that the individual meets all
the other eligibility requirements listed in proposed Sec. 686.410.
In addition to satisfying the age requirements above, proposed
Sec. 686.410 lists the additional requirements for a person to be
eligible to participate in Job Corps. An individual must also be a low-
income individual and be facing one or more of the following barriers
to education and employment: Be basic skills deficient, as defined in
WIOA sec. 144(a)(3)(A); be a high school dropout; be homeless, as
defined in sec. 41043(6) of the Violence Against Women Act of 1994 (42
U.S.C. 14043e-2(6)); be a homeless child or youth, as defined in sec.
725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
1143a(2)); a runaway, an individual in foster care, or an individual
who was in foster care and has aged out of the system; be a parent; or
require additional education, career, and technical training, or
workforce preparation skills in order to obtain and retain employment
that leads to economic self-sufficiency.
Proposed paragraph (b) implements the special eligibility rule for
veterans in sec. 144(b) of WIOA. That rule states that an otherwise
eligible veteran may still enroll in Job Corps if they do not meet the
income requirement at Sec. 686.400(a)(2) as a result of military
income earned within the 6-month period prior to the individual's
application for Job Corps, per 38 U.S.C. 4213.
Section 686.410 Are there additional factors which are considered in
selecting an eligible applicant for enrollment?
In addition to the basic eligibility requirements identified above,
proposed Sec. 686.410 lists several additional criteria that must be
met before an otherwise eligible applicant may be enrolled in Job
Corps.
Proposed paragraph (a) provides, pursuant to sec. 145(a)(2)(C) of
WIOA, that an otherwise eligible applicant can be selected for
enrollment in Job Corps only if a determination is made, based on
information relating to the background, needs and interests of the
applicant, that the applicant's education and career and technical
needs can best be met through the Job Corps program.
An additional determination, as described in proposed paragraph
(b), implementing sec. 145(b)(1)(A) of WIOA, must also be made that
there is a reasonable expectation that the applicant can participate
successfully in group situations and activities, and is not likely to:
Engage in actions that would potentially prevent other students from
receiving the benefit of the program; be incompatible with the
maintenance of sound discipline; or impede satisfactory relationships
between the center to which the student is assigned and the surrounding
local communities. These requirements support the vision of Job Corps
centers as safe environments with a culture that is conducive to
student learning and achievement of the academic, technical, and social
skills needed to obtain employment or enter post-secondary education.
Proposed paragraph (c) requires that an applicant must also be made
aware of and understand the center's rules, the consequences for
failing to observe the rules, and agree to comply with the rules.
Proposed paragraph (d) provides that no one will be denied
enrollment in Job Corps solely on the basis of contact with the
criminal justice system, except if the individual has been convicted of
a felony consisting of murder, child abuse, or a crime involving rape
or sexual assault, in accordance with secs. 145(b)(2) and (3) of WIOA.
All applicants must also submit to a background check conducted
according to procedures established by the Secretary and with
applicable State and local laws. If the background check finds that the
applicant is on probation, parole, under a suspended sentence, or under
the supervision of any agency as a result of court action or
institutionalization, the court or appropriate supervising agency may
certify in writing that it will approve of the applicant's
participation in Job Corps, and provide full release from its
supervision, and that the applicant's participation and release does
not violate applicable laws and regulations. However, the Department
notes that although these individuals are eligible, the final admission
decision remains with the Job Corps.
Finally, proposed paragraph (e) requires that suitable arrangements
be made for the care of any dependent children for the proposed period
of enrollment.
Section 686.420 Are there any special requirements for enrollment
related to the Military Selective Service Act?
As required by WIOA sec. 146(a), this proposed section requires
each male applicant 18 years of age or older, or a male student who
turns 18 years of age, to present evidence that he has complied with
sec. 3 of the Military Selective Service Act (50 U.S.C. App. 451 et
seq.). These requirements are the same as those found at 20 CFR
670.420.
Section 686.430 What entities conduct outreach and admissions
activities for the Job Corps program?
Proposed Sec. 686.430 states that the Secretary makes arrangements
with outreach and admission agencies to perform Job Corps recruitment,
screening and admissions functions according to standards and
procedures issued by the Secretary. Entities eligible to receive funds
to provide outreach and admissions service are identified in Sec.
686.300(b).
Section 686.440 What are the responsibilities of outreach and
admissions providers?
Proposed paragraphs (a) and (b) of this section require outreach
and admission providers to perform a number of tasks to recruit and
enroll students, including completing all Job Corps application forms
and determining whether the applicants meet the eligibility and
selection criteria outlined for participation in the program as
provided in proposed Sec. Sec. 686.400 and 686.410.
Proposed paragraph (c) clarifies that the Secretary may require
that the National Director or his or her designee make determinations
with regard to one or more of the eligibility criteria.
This proposed section retains the same requirements as those found
at 20 CFR 670.450.
Section 686.450 How are applicants who meet eligibility and selection
criteria assigned to centers?
In accordance with WIOA secs. 145(c) and (d), proposed Sec.
686.450 describes the process for assigning applicants to Job Corps
centers.
Applicants who meet the eligibility and selection requirements of
proposed Sec. Sec. 686.400 and 686.410 are assigned to a center based
on an assignment plan developed by the Secretary based on an analysis
of the factors described in proposed paragraph (a). These factors are
specified in secs. 145(c) and (d) of WIOA. They are similar to the
factors for the assignment plan required to be developed under WIA,
except that sec. 145(c)(2)(D) of WIOA also requires the Secretary to
consider the performance of the center, as described in proposed Sec.
686.450(a).
Proposed paragraph (b) describes the general rules for assignment
of individual enrollees, consistent with sec. 145(d) of WIOA.
In accordance with sec. 145(d)(2) of WIOA, and similar to the same
requirement in WIA, proposed paragraph (c) mandates that if a parent or
guardian objects to the assignment of
[[Page 20779]]
a student under the age of 18 to a center other than the center closest
to home that offers the desired career and technical training, the
Secretary must not make such an assignment.
Section 686.460 What restrictions are there on the assignment of
eligible applicants for nonresidential enrollment in Job Corps?
In accordance with WIOA sec. 147(c), this proposed section requires
that no more than 20 percent of students enrolled in Job Corps
nationwide may be nonresidential students.
Section 686.470 May an individual who is determined to be ineligible or
an individual who is denied enrollment appeal that decision?
Proposed Sec. 686.470(a) describes the process for an applicant to
appeal a denial of their application.
Proposed paragraph (b) states that if an applicant believes that he
or she has been determined ineligible or not selected for enrollment in
violation of the nondiscrimination and equal opportunity provisions
contained in sec. 188 of WIOA and at 29 CFR part 37, the individual may
file a complaint as described by the nondiscrimination regulations at
29 CFR part 37. Finally, proposed paragraph (c) requires that an
applicant denied enrollment be referred to the appropriate one-stop
center or other service provider as appropriate.
This proposed section retains the same requirements as those found
at 20 CFR 670.470.
Section 686.480 At what point is an applicant considered to be enrolled
in Job Corps?
Proposed Sec. 686.480 delineates when an applicant is considered
to be enrolled in Job Corps and requires that, based on procedures
issued by the Secretary, center operators must document the enrollment
of new students.
This proposed section retains the same requirements as those found
at 20 CFR 670.480.
Section 686.490 How long may a student be enrolled in Job Corps?
This proposed section implements the requirements in sec. 146(b) of
WIOA. Proposed paragraph (a) states the general rule that a student may
remain enrolled in Job Corps for no more than 2 years.
However, proposed paragraph (b) implements four exceptions to this
rule, consistent with sec. 146(b) of WIOA, which permit the 2 years to
be extended in specific cases. Paragraph (b)(1) permits the Secretary
to extend the 2 year enrollment period in special cases, according to
procedures issued by the Secretary. Paragraph (b)(2) permits up to a 1
year extension of a student's enrollment in an advanced career training
program in order to complete the program. Paragraph (b)(3) permits an
extension for a student with a disability who would reasonably be
expected to meet the standards for a Job Corps graduate if allowed to
participate in the Job Corps for up to an additional year. Finally,
proposed paragraph (b)(4) permits a student who participates in
national service authorized by a CCC to have his or her enrollment
extended for the amount of time equal to the period of national
service. This paragraph (b)(4) implements sec. 146(a)(3) of WIOA. WIOA
also states that students enrolled in CCCs may provide assistance in
addressing national, State, and local disasters (sec. 147(d)(2) of
WIOA; see proposed Sec. 686.610(a)). Both of these provisions are new
in WIOA. Taken together, these provisions show WIOA's added attention
to ensuring that Job Corps students in CCCs have the flexibility to
provide assistance, such as fire-fighting, for example, when needed in
a disaster. The Department notes that similar to the provision in
proposed Sec. 686.490(b)(4) that addresses national service, the
Secretary is authorized to extend the enrollment period for students
who perform service to address State and local disasters or other needs
under proposed Sec. 686.490(b)(1).
6. Subpart E--Program Activities and Center Operations
This proposed subpart describes the services and training that a
Job Corps center must provide. Job Corps distinguishes itself from
other training programs by providing students with residential services
in combination with hands-on training and experience aligned with
industry standards. While education, training, and job placement are
core components of what the program offers, this section of the
regulations describes how Job Corps provides a comprehensive service
model that also includes life skills, emotional development, personal
management, and responsibility. New regulations addressing advanced
career training programs are included; such programs provide broader
opportunities for higher wages and career advancement.
This proposed subpart also establishes the requirements for a
student accountability system and behavior management system. Job
Corps' policy for violence, drugs, and unauthorized goods is described.
Requirements to ensure students are provided due process in
disciplinary actions, to include center fact-finding and review board
and appeal procedures are outlined. These systems and requirements
serve to enhance the Job Corps program by ensuring that Job Corps
centers are safe and secure environments that promote the education and
training of students. Approved experimental, research and demonstration
projects related to the Job Corps program are authorized in this
proposed subpart, which also serves to enhance the program.
Section 686.500 What services must Job Corps centers provide?
Proposed paragraph (a) specifies that Job Corps centers must
provide an intensive, well-organized and fully supervised program,
including training activities, work-based learning and experience,
residential support services, and other services as required by the
Secretary.
Proposed paragraph (a)(1) describes training activities to include
career and technical training, academic education, and employability
and independent learning and living skills development. Job Corps is
first and foremost a career training program, and an essential part of
preparing enrollees for success upon exit necessitates providing
employability, social, and independent-living skills.
Proposed paragraph (b) provides that students must be provided with
access to career services as described in WIOA secs. 134(c)(2)(A)(i)
through (xi).
Section 686.505 What types of training must Job Corps centers provide?
In order to provide enrollees with the intensive program of
activities required by WIOA, several types of training must be provided
by Job Corps centers.
Proposed paragraph (a) requires that centers provide students with
a CTT program that is aligned with industry-recognized standards and
credentials. Ensuring that training programs are aligned with industry
standards and credentials better prepares students to attain in-demand,
long-term employment; further career enhancement along a career
pathway; or advanced education, including apprenticeships.
Proposed paragraph (b) requires that centers provide an education
program, including English language acquisition programs, as required
by sec. 148(a)(1) of WIOA, as well as high school diploma (HSD) or high
school equivalency certification programs, and academic skills
training. These skills are necessary for students to master
[[Page 20780]]
technical skills in their chosen CTT programs.
Proposed paragraph (c) states that centers must provide programs
for students to learn and practice employability and independent
learning and living skills. These skills include: Job search and career
development, interpersonal relations, driver's education (as required
by sec. 148(a)(1) of WIOA), study and critical thinking skills,
financial literacy and other skills specified in program guidance
issued by the Secretary. Learning these skills will enable long-term
labor market attachment and are critical to the continuing success of
enrollees after leaving the Job Corps program.
Proposed paragraph (d) requires all Job Corps training programs to
be based on industry and academic skills standards leading to
recognized industry and academic credentials, applying evidence-based
instructional approaches, with the goal of placing students in
unsubsidized employment in in-demand jobs with career advancement
opportunities; enrollment in advanced education and training programs
or apprenticeships; or enlistment in the Armed Forces. Responsiveness
to employers' and industries' needs for employees who are prepared with
the academic, technical, and employability skills necessary for career
success is required in order to effectively place students and to
sustain Job Corps' relationships with employers.
Proposed paragraph (e) requires that specific career and technical
training programs offered by individual centers must be approved by the
Regional Director. Approval is necessary to ensure that the training
provided by Job Corps meets industry workforce needs.
Proposed paragraph (f) states the responsibilities of the center
workforce council in shaping a center's career and technical training
program, as described in Sec. 686.800.
Proposed paragraph (g) retains the same requirements as those in
the WIA regulations at 20 CFR 670.505(c), requiring that each center
must implement a system to evaluate and track the progress and
achievement of each student at regular intervals.
Proposed paragraph (h) states that each center must develop a
training plan that must be available for review and approval by the
appropriate Regional Director. It retains the same requirements as
those in 20 CFR 670.505(d).
Section 686.510 Are entities other than Job Corps center operators
permitted to provide academic and career and technical training?
Proposed paragraph (a) implements sec. 148(b) of WIOA, which lists
the entities that the Secretary may use to provide career technical and
academic education of Job Corps students, as long as the entity can
provide education and training substantially equivalent in cost and
quality to that which the Secretary could provide through other means.
Proposed paragraph (b) states that these entities will be selected
in accordance with the requirements of Sec. 686.310.
Section 686.515 What are advanced career training programs?
Advanced career training provides students an opportunity to
receive advanced education or training while still receiving the
benefits and services provided by Job Corps. In order to be eligible,
students must have a HSD or its equivalent and have completed a Job
Corps CTT program. Proposed paragraphs (a) and (b) restate the
requirements for advanced career training programs in secs. 148(c)(1)-
(2) of WIOA.
Advanced career training programs are authorized by the Secretary
based on the relationship between on board strength and training slot
availability. Proposed paragraph (c), which restates the requirements
found in WIOA sec. 148(c)(3), permits a center operator to enroll more
students than otherwise authorized by the Secretary in an advanced
career training program if, in accordance with standards developed by
the Secretary, the operator demonstrates that participants in the
program have achieved a satisfactory rate of training and placement in
training-related jobs, and for the most recently preceding 2 PYs, the
operator has, on average, met or exceeded the primary indicators for
eligible youth described in Sec. 686.980.
Section 686.520 What responsibilities do the center operators have in
managing work-based learning?
This section retains the same requirements as those in the WIA
regulations at 20 CFR 670.515. Proposed Sec. 686.520(a) requires that
center operators emphasize and implement work-based learning programs
for students through center program activities, including career and
technical skills training, and through arrangements with employers.
This paragraph further requires that work-based learning must be under
actual working conditions and be designed to enhance the employability,
responsibility, and confidence of the students. Work-based learning
usually occurs in tandem with students' career and technical training,
and is intended to develop a further understanding of career
opportunities, employer expectations, and the impact of post-secondary
education in the workplace. Work-based learning can include structured,
hands-on experiences, as well as workplace tours, employer
presentations, and job shadowing to help students refine their career
objectives.
Proposed paragraph (b), in accordance with sec. 159(g)(2) of WIOA,
states that the center operator must ensure that the students are
assigned only to workplaces that meet the safety standards described in
Sec. 686.920.
Section 686.525 Are students permitted to hold jobs other than work-
based learning opportunities?
Proposed Sec. 686.525 states that a center operator may authorize
a student to participate in gainful leisure time employment, as long as
the employment does not interfere with required scheduled academic and
CTT activities. This section retains the same requirements as those in
the WIA regulations at 20 CFR 670.520.
Section 686.530 What residential support services must Job Corps center
operators provide?
Proposed Sec. 686.530 states that Job Corps center operators must
provide residential support services according to procedures issued by
the Secretary. Residential support services are critical for the
success of the Job Corps programs because they are central to creating
and maintaining environments that allow enrollees to learn, practice
independent and community living skills, promote personal
responsibility, and reinforce social and employability skills, such as
a positive attitude, dependability, and teamwork. This proposed section
retains largely the same requirements as those contained in the WIA
regulations at 20 CFR 670.525.
The Department notes that one of the requirements is that a student
leadership program and an elected student government is supported by
the center operator. The goals of student leadership programs are to
provide opportunities for interested students to develop leadership
skills through participation in student governance, representing Job
Corps in the community at large, planning and leading Job Corps events,
and providing input and feedback for center
[[Page 20781]]
management decisions that impact student services and/or residential
living.
Section 686.535 Are Job Corps centers required to maintain a student
accountability system?
Job Corps centers are required to maintain a student accountability
system, as described at proposed Sec. 686.535. This proposed section
retains the same requirements as those contained in the WIA regulations
at 20 CFR 670.530. An accountability system is important to ensure the
safety and security of Job Corps students and to track participation in
various activities in order to evaluate program delivery.
Section 686.540 Are Job Corps centers required to establish behavior
management systems?
Proposed Sec. 686.540 states that each Job Corps center must
establish and maintain a behavior management system, based on a
behavior management plan, consistent with the standards of conduct and
procedures established by the Secretary. The behavior management plan
must be approved by the Job Corps regional office and reviewed
annually. The system must include Job Corps' zero tolerance policy for
violence and drugs as described in Sec. 686.545.
Section 686.545 What is Job Corps' zero tolerance policy?
Proposed Sec. 686.545(a) requires all center operators to comply
with Job Corps' zero tolerance policy as established by the Secretary.
Infractions addressed in the zero tolerance policy must include, but
are not limited to: Actions of violence, as defined by the Secretary;
use, sale, or possession of a controlled substance, as defined at 21
U.S.C. 802; abuse of alcohol; possession of unauthorized goods; or
other illegal or disruptive activity.
Proposed paragraph (b) implements secs. 145(a)(2)(A) and 152(b)(2)
of WIOA, providing that all students must be tested for drugs as a
condition of enrollment.
Proposed paragraph (c) provides that the zero tolerance policy
established by the Secretary specifies the offenses that will result in
the separation of students from the Job Corps. This paragraph further
provides that the center director is expressly responsible for
determining when such an offense has occurred.
Section 686.550 How does Job Corps ensure that students receive due
process in disciplinary actions?
Proposed Sec. 686.550 provides that a center operator must ensure
that all students receive due process in disciplinary proceedings
according to procedures developed by the Secretary. This proposed
section retains the same requirements as those contained in the WIA
regulations at 20 CFR 670.545.
Section 686.555 What responsibilities do Job Corps centers have in
assisting students with child care needs?
Proposed Sec. 686.555 implements the requirement in sec. 148(e) of
WIOA that the Secretary provide for child care to the extent
practicable. Proposed paragraph (a) encourages Job Corps centers to
coordinate with outreach and admissions agencies to assist applicants,
whenever feasible, with making arrangements for child care. This
paragraph also requires that, prior to enrollment, a program applicant
with dependent children who provides primary or custodial care must
certify that suitable arrangements for child care have been established
for the proposed period of enrollment. This is necessary to ensure full
program participation once a student is enrolled.
Proposed paragraph (b) states that a child development program may
be located at a Job Corps center with the approval of the Secretary.
Section 686.560 What are the center's responsibilities in ensuring that
students' religious rights are respected?
Proposed Sec. 686.560 retains the same requirements found in the
WIA regulations at 20 CFR 670.555.
Section 686.565 Is Job Corps authorized to conduct pilot and
demonstration projects?
Proposed Sec. 686.565(a) establishes that the Secretary may
undertake experimental, research and demonstration projects related to
the Job Corps program as long as the projects are developed, approved,
and conducted in accordance with the policies and procedures developed
by the Secretary, in accordance with sec. 156(a) of WIOA.
7. Subpart F--Student Support
Proposed subpart F discusses the support services provided to Job
Corps enrollees, including transportation to and from Job Corps
centers, authorized student leave, allowances and performance bonuses,
and student clothing. In addition to being eligible to receive
transportation to and from Job Corps centers, students are eligible for
other benefits, including basic living allowances to cover personal
expenses, in accordance with guidance issued by the Secretary. Students
are also provided with a modest clothing allowance to enable them to
purchase clothes that are appropriate for the classroom and the
workplace. These proposed regulations again work to strengthen the Job
Corps program and provide access to high quality training by ensuring
that Job Corps students are placed in the best possible position to
prepare them for learning, and that they are rewarded for their success
in the program.
Section 686.600 Are students provided with government-paid
transportation to and from Job Corps centers?
Proposed Sec. 686.600 states that Job Corps provides students with
transportation to and from Job Corps centers, according to policies and
procedures established by the Secretary. This section retains the same
requirements as those in the WIA regulations at 20 CFR 670.600.
Section 686.610 When are students authorized to take leaves of absence
from their Job Corps centers?
Proposed Sec. 686.610 provides that Job Corps students are
eligible for annual leave, emergency leave, and other types of leaves
of absence from their assigned centers. Procedures for requesting,
approving, and recording student leave will be based on criteria and
requirements issued by the Secretary. This section retains the same
requirements found in the WIA regulations at 20 CFR 670.610.
Additionally, proposed Sec. 686.600(a) states that in accordance with
sec. 147(d)(2) of WIOA, enrollees in CCCs may take leave to provide
assistance in addressing national, State, and local disasters.
Section 686.620 Are Job Corps students eligible to receive cash
allowances and performance bonuses?
Proposed Sec. 686.620(a) allows, based on criteria and rates
established by the Secretary, Job Corps students to receive cash living
allowances, performance bonuses, and allotments for care of dependents.
Also, graduates receive post-separation transition allowances according
to proposed Sec. 686.750. This paragraph largely retains the same
requirements in the WIA regulations at 20 CFR 670.620(a), but revises
the description of the payments to align with sec. 150(b) of WIOA.
Under proposed paragraph (b), in the case of a student's death, any
amount due is to be paid according to 5 U.S.C. 5582, governing issues
including designation of a beneficiary, order of precedent, and related
matters. This paragraph retains the same requirements as those found at
20 CFR 670.620(b).
[[Page 20782]]
Section 686.630 Are student allowances subject to Federal payroll
taxes?
As required by sec. 157(a)(2) of WIOA, proposed Sec. 686.630
requires that Job Corps student allowances be subject to Federal
payroll tax withholding and Social Security taxes. For purposes of the
Internal Revenue Code of 1986 and title II of the SSA (42 U.S.C. 401 et
seq.), enrollees are deemed to be employees of the United States.
Section 686.640 Are students provided with clothing?
Proposed Sec. 686.640 provides that, according to rates, criteria,
and procedures issued by the Secretary, center operators and other
service providers must provide Job Corps students with a clothing
allowance and/or articles of clothing as needed to facilitate their
participation in Job Corps and successful entry into the workforce.
This proposed section retains the same requirements as those in the WIA
regulations at 20 CFR 670.640.
8. Subpart G--Career Transition and Graduate Services
This proposed subpart discusses career transition and graduate
services for Job Corps enrollees. Job Corps focuses on placing program
graduates in full time jobs, post-secondary education, advanced
training programs, including apprenticeship programs, or the Armed
Forces. In an effort to further integrate the Job Corps program with
the greater workforce system and align it with the core programs,
proposed Sec. 686.820 specifically focuses on how Job Corps will
coordinate with other agencies, where emphasis is placed on utilizing
the one-stop delivery system to the maximum extent practicable. This
proposed subpart also outlines a center's responsibilities in preparing
students for career transition services; the career transition services
that are provided for enrollees; who m6ay provide career transition and
graduate services, in addition to one-stop centers; and services
provided for graduates and former enrollees.
Section 686.700 What are a Job Corps center's responsibilities in
preparing students for career transition services?
Proposed Sec. 686.700 implements sec. 149(a) of WIOA, providing
that Job Corps centers assess and counsel enrollees to determine their
competencies and capabilities and readiness for career transition
services prior to their scheduled graduation. The purpose of counseling
and assessment is to determine students' capabilities to allow them to
either be placed into employment leading to self-sufficiency based on
their training, or to assist the student in participating in further
activities leading to the capabilities necessary for placement.
Section 686.710 What career transition services are provided for Job
Corps enrollees?
Proposed Sec. 686.710 implements sec. 149(b) of WIOA, requiring
that career transition services focus on placing program graduates in
full time jobs that are related to their career and technical training
and that lead to economic self-sufficiency; higher education; advanced
training programs, including apprenticeship programs; or the Armed
Forces.
Section 686.720 Who provides career transition services?
As required by sec. 149(b) of WIOA, proposed Sec. 686.720 states
that the one-stop delivery system must be used to the maximum extent
practicable in placing graduates and former enrollees in jobs. Multiple
other resources can also provide post-program services, including, but
not limited to, Job Corps career transition service providers and State
VR agencies for individuals with disabilities.
Section 686.730 What are the responsibilities of career transition
service providers?
Proposed Sec. 686.730 contains the responsibilities of career
transition service providers. The section largely retains the same
requirements found in the WIA regulations at 20 CFR 670.730.
Section 686.740 What services are provided for program graduates?
As required by sec. 148(d) of WIOA, proposed Sec. 686.740 states
that career transition and support services must be provided to program
graduates for up to 12 months after graduation, according to procedures
issued by the Secretary.
Section 686.750 Are graduates provided with transition allowances?
Proposed Sec. 686.750 states that Job Corps graduates receive
post-separation transition allowances. As required by sec. 150(b) of
WIOA, the transition allowance must be incentive-based to reflect a
graduate's completion of academic, career, and technical education or
training, and attainment of recognized post-secondary credentials.
Section 686.760 What services are provided to former enrollees?
Proposed Sec. 686.760(a) implements sec. 150(c) of WIOA, allowing
for the provision of 3 months of ESs to former enrollees.
Proposed paragraph (b) states that Job Corps centers may provide
other assessment, counseling, or career transition services to help
former enrollees find and retain employment, if determined appropriate,
according to procedures issued by the Secretary.
9. Subpart H--Community Connections
This proposed subpart highlights WIOA's focus on community
relationships and further integration with the workforce system. In
both the new contracting provisions in proposed subpart C and in this
subpart, there is more emphasis on connections with one-stops, Local
Boards, and State and local plans. While WIA's requirement for a
Business and Community Liaison has been eliminated, the responsibility
for establishing beneficial business and community relationships and
networks now lies with the director of each Job Corps center. Moreover,
WIOA contains a new requirement that in a single-State local area, a
representative of the State Board must be included on the workforce
council. Proposed Sec. 686.810 also states, consistent with sec.
154(b)(2) of WIOA, that the workforce council may include employers
from outside the local area that are likely to hire center graduates.
The new requirements for the workforce council seek to provide greater
access to high quality training for Job Corps students, in part by
ensuring that Job Corps is providing training in in-demand industry
sectors and occupations.
Section 686.800 How do Job Corps centers and service providers become
involved in their local communities?
While WIA's requirement for a Business and Community Liaison
designated by the director of each center has been eliminated, the
director of each Job Corps center must still ensure that mutually
beneficial business and community relationships and networks are
established and developed. As required by sec. 153 of WIOA, proposed
Sec. 686.800(a) states that each Job Corps center director must
establish relationships with local and distant employers; applicable
one-stop centers and Local Boards; entities carrying out relevant
apprenticeship programs and youth programs; labor-management
organizations and local labor organizations; employers and contractors
that support national training programs and initiatives; and CBOs, non-
profit organizations, and intermediaries providing workforce
development and support services. Through these relationships, Job
Corps
[[Page 20783]]
hopes to improve the quality of the training programs that it offers
and create meaningful associations with other entities with which it
interacts and shares similar goals.
Under proposed paragraph (b), each Job Corps center must also
establish and develop relationships with members of the community in
which it is located. This paragraph further proposes that members of
the community be informed of projects of the center and changes in the
rules, procedures, or activities of the center that may affect the
community. Through these efforts, Job Corps aims to garner the support
and endorsement of the local community.
Section 686.810 What is the makeup of a workforce council and what are
its responsibilities?
Section 154 of WIOA requires each center to establish a workforce
council according to procedures established by the Secretary. Proposed
Sec. 686.810 implements this provision. It specifies that the council
must include: non-governmental and private sector employers;
representatives of labor organizations and employees; Job Corps
enrollees and graduates; and, in the case of a single State local area,
a representative of the State Board.
Proposed paragraph (b) describes the composition of the workforce
council, consistent with the requirements of sec. 154(b) of WIOA.
Proposed paragraph (c) states that the workforce council may also
include, or otherwise provide for consultation with, employers from
outside the local area who are likely to hire a significant number of
enrollees from the Job Corps center.
Proposed paragraph (d)(1) implements sec. 154(c)(1) of WIOA by
identifying that the first responsibility of the workforce council is
to work with all applicable Local Boards and review labor market
information to determine and provide recommendations to the Secretary
regarding the center's career and technical training offerings,
including identifying the emerging occupations suitable for training.
In doing so, Job Corps hopes to remain current in its CTT offerings,
adjusting and supplementing its training offerings based on the needs
of industry in the surrounding communities.
Proposed Sec. 686.810(d)(2) and (3) state the remaining duties of
the workforce council, in accordance with secs. 154(c)(2)-(3) of WIOA.
Section 686.820 How will Job Corps coordinate with other agencies?
Proposed Sec. 686.820 describes how Job Corps coordinates with
other agencies. This section retains the same requirements found in the
WIA regulations at 20 CFR 670.760 and 20 CFR 670.800(g). Paragraph (b)
of this section describes the linkages required between Job Corps and
the one-stop service system and paragraph (c) indicates that Job Corps
is identified as a required one-stop partner. The Department notes that
in addition to these linkages, similar to the requirement in WIA,
proposed Sec. 678.400 identifies Job Corps as a required one-stop
partner, as required by sec. 121(b)(1)(B)(i) of WIOA. Additionally,
similar to the WIA regulations at 20 CFR 670.800(g), proposed Sec.
678.415 specifies that the Job Corps center is the Job Corps ``entity''
that is required to serve as the one-stop partner in any local area
where a center exists. Job Corps centers are encouraged to review the
requirements of one-stop partners described in subpart B of part 678 of
these proposed regulations.
10. Subpart I--Administrative and Management Provisions
The proposed subpart provides requirements relating to tort claims,
Federal Employees Compensation Act (FECA) benefits for students, safety
and health, and law enforcement jurisdiction on Job Corps center
property. It also addresses whether Job Corp operators and service
providers are authorized to pay State or local taxes on gross receipts,
and details the financial management responsibilities of center
operators and other service providers. The management of student
records, as well as procedures applicable to the disclosure of
information about Job Corps students and program activities are
outlined. Finally, procedures available to resolve complaints and
disputes, and how Job Corps ensures that complaints or disputes are
resolved in a timely fashion, are addressed. The entirety of this
proposed subpart addressing administrative and management principles
that apply to the operation of the Job Corps program serves to promote
its accountability and transparency.
Section 686.900 Are damages caused by the acts or omissions of students
eligible for payment under the Federal Tort Claims Act?
In accordance with sec. 157(a)(4) of WIOA, proposed Sec. 686.900
states that students are considered Federal employees for purposes of
the FTCA (28 U.S.C. 2671 et seq.) and that claims for such damage must
be filed pursuant to the procedures found in 29 CFR part 15, subpart D.
This proposed section retains the same requirements as those found in
the WIA regulations at 20 CFR 670.900.
Section 686.905 Are loss and damages that occur to persons or personal
property of students at Job Corps centers eligible for reimbursement?
Proposed Sec. 686.905 states that the Job Corps program may pay
students for valid claims under the procedures found in 29 CFR part 15,
subpart D. This proposed section retains the same requirements found at
20 CFR 670.905.
Section 686.910 If a student is injured in the performance of duty as a
Job Corps student, what benefits may the student receive?
Proposed Sec. 686.910 implements sec. 157(a)(3) of WIOA. Paragraph
(a) states that Job Corps students are considered Federal employees for
purposes of the FECA, as specified in sec. 157(a)(3) of WIOA (29 U.S.C.
2897). Proposed paragraphs (b) through (d) outline the requirements for
Job Corps students' eligibility for FECA benefits and the procedures by
which the benefits are paid. These paragraphs contain the same
requirements as those in Sec. 670.910 of the WIA regulations.
Section 686.915 When is a Job Corps student considered to be in the
performance of duty?
Proposed Sec. 686.915 outlines when a Job Corps student is
considered to be in the performance of duty. This proposed section
retains the same requirements as those found at 20 CFR 670.915.
Section 686.920 How are students protected from unsafe or unhealthy
situations?
Proposed Sec. 686.920(a) states that the Secretary will establish
procedures to ensure that students are not required or permitted to
work, be trained, reside in, or receive services in buildings or
surroundings or under conditions that are unsanitary or hazardous. This
section further states, consistent with sec. 159(g)(2) of WIOA, that
whenever students are employed or in training for jobs, they must be
assigned only to jobs or training which observe applicable Federal,
State, and local health and safety standards. This proposed paragraph
retains the same requirements found at 20 CFR 670.935.
Proposed paragraph (b) states that the Secretary will develop
procedures to ensure compliance with applicable DOL Occupational Safety
and Health Administration (OSHA) regulations and Wage and Hour Division
(WHD) regulations.
[[Page 20784]]
Section 686.925 What are the requirements for criminal law enforcement
jurisdiction on center property?
Proposed Sec. 686.925 provides information about criminal law
enforcement jurisdiction on Job Corps center property. This proposed
section retains the same requirements found in the WIA regulations at
20 CFR 670.940.
Section 686.930 Are Job Corps operators and service providers
authorized to pay State or local taxes on gross receipts?
Consistent with sec. 158(d) of WIOA, proposed Sec. 686.930
explains some of the tax liabilities that apply to Job Corps center
operators.
This proposed section retains the same requirements as those found
at 20 CFR 670.945.
Section 686.935 What are the financial management responsibilities of
Job Corps center operators and other service providers?
As required by WIOA sec. 159(a), proposed Sec. 686.935 states the
financial management responsibilities that apply to Job Corps center
operators and other service providers.
This proposed section retains the same requirements as those found
at 20 CFR 670.950.
Section 686.940 Are center operators and service providers subject to
Federal audits?
As required by WIOA sec. 159(b), proposed Sec. 686.940 explains
how Job Corps center operators and other service providers are subject
to Federal audits.
This proposed section retains the same requirements found in the
WIA regulations at 20 CFR 670.955.
Section 686.945 What are the procedures for management of student
records?
Proposed Sec. 686.945 states that the Secretary will issue
guidelines for a system for maintaining records for each student during
enrollment and for disposition of records after separation. This
proposed section retains the same requirements as those found at 20 CFR
670.960.
Section 686.950 What procedures apply to disclosure of information
about Job Corps students and program activities?
Proposed Sec. 686.950 discusses the procedures that apply to
disclosure of information about Job Corps students and program
activities.
This proposed section retains the same requirements as those found
at 20 CFR 670.965.
Section 686.955 What are the reporting requirements for center
operators and operational support service providers?
Proposed Sec. 686.955 states that the Secretary will establish
procedures to ensure the timely and complete reporting of necessary
financial and program information to maintain accountability. Under
this section, center operators and operational support service
providers are responsible for the accuracy and integrity of all reports
and data they provide. This proposed section retains the same
requirements as those found at 20 CFR 670.970.
Section 686.960 What procedures are available to resolve complaints and
disputes?
In support of the Department's commitment to ensuring that students
are entitled to a fair process, proposed Sec. 686.960 outlines the
procedures that are available to resolve student complaints and
disputes. This section retains the same requirements found in the WIA
regulations at 20 CFR 670.991.
Section 686.965 How does Job Corps ensure that complaints or disputes
are resolved in a timely fashion?
Proposed Sec. 686.965 outlines the procedures that are available
to ensure timely resolution of a complaint or dispute. This section
retains the same requirements as those found at 20 CFR 670.991.
Section 686.970 How does Job Corps ensure that centers or other service
providers comply with the Act and the Workforce Innovation and
Opportunity Act regulations?
Proposed Sec. 686.970 explains the procedures Job Corps will use
to ensure Job Corps center operators and other service providers comply
with WIOA and this part. This proposed section retains the same
requirements found in the WIA regulations at 20 CFR 670.992.
Section 686.975 How does Job Corps ensure that contract disputes will
be resolved?
Proposed Sec. 686.975 states that a dispute between the Department
and a Job Corps contractor will be handled according to the Contract
Disputes Act and applicable regulations. This proposed section retains
the same requirements as those found at 20 CFR 670.993.
Section 686.980 How does Job Corps resolve disputes between the U.S.
Department of Labor and the U.S. Department of Agriculture regarding
the operation of Civilian Conservation Centers?
Proposed Sec. 686.980 states that disputes between the Department
and the U.S. Department of Agriculture regarding operating a center
will be handled according to the interagency agreement between the two
agencies. This proposed section retains the same requirements as those
found at 20 CFR 670.994.
Section 686.985 What Department of Labor equal opportunity and
nondiscrimination regulations apply to Job Corps?
Proposed Sec. 686.985 states that nondiscrimination requirements,
procedures, complaint processing, and compliance reviews would be
governed by provisions of the Department's regulations, as applicable.
This proposed section retains the same requirements found in the WIA
regulations at 20 CFR 670.995.
11. Subpart J--Performance
Proposed subpart J incorporates WIOA-specific requirements related
to performance assessment and accountability, as well as requirements
for performance improvement plans for Job Corps center operators who
fail to meet expected levels of performance. The Job Corps program is
now required to report on the performance indicators common to all WIOA
programs that provide key employment information on how many students
entered and retained employment, their median wages, whether they
attained credentials, their measurable skills gains, and effectiveness
of services to employers. The entirety of this proposed subpart serves
to promote the accountability, performance, and transparency of the Job
Corps program.
Section 686.1000 How is the performance of the Job Corps program
assessed?
Proposed Sec. 686.1000 describes the performance management system
the Secretary will establish to meet the requirements for management
information in sec. 159 of WIOA.
Proposed paragraph (a) indicates that the performance of the Job
Corps program as a whole, and the performance of individual centers,
outreach and admission providers, and career transition service
providers, will be assessed in accordance with required procedures and
standards issued by the Secretary, through a national
[[Page 20785]]
performance management system described in proposed paragraph (b) that
includes the Outcome Measurement System (OMS). The Department proposes
to continue its use of a national performance management system that
includes the OMS because such a system is needed to track and report
all of the management information required in sec. 159 of WIOA. The
management information requirements include establishing expected
levels of performance and collecting and reporting data on each
center's performance relating to the primary indicators of performance
for eligible youth, the performance indicators for outreach and
admission providers, and the performance indicators for career
transition service providers required under WIOA sec. 159(c);
collecting and reporting data on each center's performance relating to
the additional information required to be submitted in the annual
report to Congress under sec. 159(d) of WIOA; collecting and reporting
information regarding the state of Job Corps buildings and facilities
under sec. 159(h) of WIOA; and collecting and reporting information
regarding national and community service activities of enrollees under
sec. 159(i) of WIOA.
Consistent with current practice, proposed paragraph (b) states
that the performance management system will include measures that
reflect not only the primary indicators of performance described in
proposed Sec. 686.1010, but also the information needed to complete
the Annual Report described in proposed Sec. 686.1040, as well as any
other information the Secretary determines is necessary to manage and
evaluate the effectiveness of the Job Corps program.
Job Corps' performance management system, which includes the OMS,
is a well-established measurement system within the Job Corps community
that has been used to track performance of centers and service
providers for many years. It will be updated to reflect the new
requirements of WIOA, including the new primary indicators of
performance. The performance management system is designed to provide
the Secretary with the information necessary to manage and evaluate the
effectiveness of the Job Corps program. It currently includes data on
the WIA common measures, each center's success in filling student slots
or on-board strength (OBS), information on the results of Regional
Office Center Assessments, and the OMS.
The OMS currently includes the following 15 measures: HSD or
General Educational Development (GED) Attainment Rate, CTT Completion
Rate, Combination HSD or GED, and CTT Attainment Rate, Average Literacy
Gain, Average Numeracy Gain, CTT Industry-Recognized Credential
Attainment Rate, CTT Completer Job-Training Match/Post-secondary Credit
Placement Rate, Former Enrollee Initial Placement Rate, Graduate
Initial Placement Rate, Graduate Average Hourly Wage at Placement,
Graduate Full-Time Job Placement Rate, Graduate 6-Month Follow-up
Placement Rate, Graduate 6-Month Average Weekly Earnings, Graduate 12-
Month Follow-up Placement Rate, and Graduate 12-Month Follow-up Weekly
Earnings. These measures are based on the current performance
requirements under WIA, and in some cases break down an overarching
measure to provide a more detailed look at elements that make up the
overarching measures. For example, one of the WIA common measures is
the percent of students who achieve literacy or numeracy gains. In the
OMS, literacy gains and numeracy gains are broken into two separate
measures that provide program managers with an additional level of
detail. A center may be achieving a high level of literacy gains but
lagging in numeracy gains. In the combined measure that distinction
would be hidden, but with the broken out measure, program managers can
more specifically identify where to target interventions to support
achievement of the overall common measure. Similarly, the OMS will be
updated to reflect the primary indicators, but may also include
breakouts of data that will help program managers target interventions
in order to achieve the primary indicators.
Four of the new primary indicators of performance under WIOA are
long-term measures, meaning that the point of measurement is as much as
a year after a student exits the Job Corps program. These measures are
valuable in assessing the performance of the program, but additional
shorter-term measures are needed to supplement the primary indicators
and provide program managers with information on a quicker cycle that
can be used to make adjustments in the program on a faster timeframe.
This includes measures such as the CTT completion rate, which provides
useful information about the quality of the training programs at a
center without waiting for the student outcome data to become fully
available. When updating the OMS, the Department will begin to
incorporate the primary indicators and other measures that will drive
the system towards attainment of the WIOA primary indicators, while
still maintaining other shorter-term measures that will provide
additional information that the Secretary believes is necessary to
manage and evaluate the effectiveness of the Job Corps program. The
Department welcomes comments on this approach, and specifically on
which short-term measures should be maintained in the new OMS system.
Over the years as program reporting requirements have changed from
the Government Performance and Results Act (GPRA), the Program
Assessment and Rating Tool (PART), and Common Measures, the OMS has
proven to be flexible and through its mix of measures, goals, and
weights, and successful in driving the system towards meeting changing
priorities. For example, when additional emphasis was placed on longer
term attachment to the workforce, Job Corps added 12-month placement
and 12-month earnings to the existing line-up of measures included on
the OMS as a clear indication to program operators of the new priority.
Similarly, beginning in PY 2016, the OMS will be updated to reflect the
new primary indicators of performance under WIOA.
Proposed paragraph (b) also indicates that the Secretary will issue
annual guidance describing the performance management system and OMS.
This guidance will describe any changes or updates to the overall
performance management system or the OMS and also communicate the
expected levels of performance for each indicator for each center,
outreach and admission provider, and career transition service provider
described in Sec. 686.1030 to the system.
Proposed Sec. 686.1000(c), implementing sec. 159(f)(1) of WIOA,
indicates that annual performance assessments based on the measures
referenced in proposed paragraph (b) will be done for each center
operator and other service providers, including outreach and admission
providers and career transition providers. These annual assessments
will include a review of the data in the OMS, a calculation of the
annual performance ranking as described in proposed Sec. 686.1070, and
an analysis of the operator or service provider's success at meeting
the expected levels of performance, including consideration of any
factors influencing the performance outcomes such as disruption in the
operations of the center, economic conditions, or other factors.
[[Page 20786]]
Section 686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
Proposed Sec. 686.1010 implements WIOA sec. 159(c)(1), which
requires the use of the primary indicators of performance for eligible
youth as described in sec. 116(b)(2)(A)(ii) of WIOA for the Job Corps
program and each center. Proposed paragraphs (a) through (f) are the
primary indicators of performance for eligible youth as described in
sec. 116(b)(2)(A)(ii) of WIOA. These measures of performance are the
same as the primary indicators discussed in proposed Sec. 677.155.
Though the indicators of performance are identified in various places
throughout the WIOA proposed regulations, the indicators are the same
and do not vary across the regulations.
Section 686.1020 What are the indicators of performance for Job Corps
outreach and admissions providers?
Proposed Sec. 686.1020 implements sec. 159(c)(2) of WIOA, which
requires that the Secretary establish performance indicators and
expected levels of performance on those indicators for recruitment
service providers serving the Job Corps program. The performance
management system and OMS will be updated to reflect the new
performance measures for Job Corps outreach and admissions providers.
Proposed paragraphs (a) through (d) are the indicators of performance
as provided in sec. 159(c)(2) of WIOA.
Section 686.1030 What are the indicators of performance for Job Corps
career transition service providers?
Proposed Sec. 686.1030 implements sec. 159(c)(3) of WIOA, which
requires that the Secretary establish performance indicators and
expected levels of performance on those indicators for career
transition service providers serving the Job Corps program. The
performance management system and OMS will be updated to reflect the
new performance measures for Job Corps Career Transition Service
providers. Proposed paragraphs (a) through (g) are the indicators of
performance as provided in sec. 159(c)(3) of WIOA.
Section 686.1040 What information will be collected for use in the
Annual Report?
Proposed Sec. 686.1040 implements sec. 159(c)(4) of WIOA, which
requires the Secretary to collect information and submit an Annual
Report on the performance of each Job Corps center and the Job Corps
program. The Department is including this proposed section so that the
Job Corps community is made aware of the information that will be
collected. Proposed paragraphs (a) through (p) specify the information
required to be included by secs. 159(c)(4)(A)-(B) and 159(d)(1)(A)-(N)
of WIOA. Proposed paragraph (q) reflects the information required to be
included by sec. 159(h) of WIOA, and proposed paragraph (r) reflects
the information required by sec. 159(i) of WIOA.
Proposed paragraph (s) states that the Secretary may collect and
include additional information in the Annual Report that the Secretary
determines is necessary. Any such information would be collected as
part of the performance management system and identified in the annual
guidance described in Sec. 686.1000.
Section 686.1050 How are the expected levels of performance for Job
Corps centers, outreach and admission providers and career transition
service providers established?
Proposed Sec. 686.1050(a) implements secs. 159(c)(1)-(3) of WIOA,
which require that the Secretary establish expected levels of
performance for Job Corps centers, outreach and admission providers,
and career transition service providers, and the Job Corps program
relating to each of the primary indicators of performance described in
Sec. Sec. 686.1010, 686.1020 and 686.1030. In order to develop
expected levels of performance for the primary indicators, the
Department will first examine past performance specific to the new
measures. Since several of the employment-related indicators are
intended to utilize State wage records, this will involve a process of
developing quarterly earnings specifications as well as developing an
infrastructure to align WRIS data with Job Corps survey data at the
center level. Expected levels of performance can more readily be
developed for the credential attainment and skill gains indicators
using past performance aligned to the timeframes required by WIOA. Job
Corps will also continue to use a regression model to statistically
adjust for local economic conditions and participant characteristics at
the center level similar to regression models used for other programs
under WIOA. The Department anticipates that after implementation of the
new primary indicators, there will be a period of at least 1 PY where
baseline data are collected on each of the primary indicators and there
is no expected level of performance in place. Once baseline data has
been collected, the Department will begin to establish expected levels
of performance.
Proposed paragraph (b) states that as provided in Sec. 686.1000,
the Secretary will issue annual guidance describing the national
performance management system. This guidance will also communicate the
expected levels of performance for each center and each indicator of
performance for each outreach and admissions provider and each career
transition service provider. This guidance will also describe how the
expected levels of performance were calculated.
Section 686.1070 How are center rankings established?
Proposed Sec. 686.1070(a) states that the Secretary will calculate
the annual rankings of center performance based on the performance
management system described in proposed Sec. 686.1000. As described
above in the explanation of proposed Sec. 686.1000, Job Corps' OMS is
a well-established measurement system within the Job Corps community
that has been used to track performance of centers and service
providers for many years, and it will be updated to reflect the new
requirements of WIOA, including the new primary indicators of
performance. It is designed to drive the system to meet programmatic
goals, which under WIOA will be established through the primary
indicators of performance. As described above, the OMS will be updated
to reflect the primary indicators of performance and may also include
other measures that will drive the system towards attainment of the
primary indicators or that provide more detailed information about
elements that make up the primary indictors that the Secretary believes
are necessary to manage and evaluate the effectiveness of the Job Corps
program.
Proposed Sec. 686.1070(b) states that the Secretary will issue
annual guidance that communicates the methodology for calculating the
performance rankings for the year. This guidance will include any
changes in the weighting of individual measures in the calculation. The
Department expects to weigh measures reflecting the attainment of the
primary indicators most heavily. However, the Department anticipates
that there could be changes in weighting from year to year to address
areas of concentration in the program. For example, if the Department's
analysis of past years' data regarding the system's results on the
primary indicator related to measurable skills gains indicates that
students are achieving high levels of literacy gains but lagging on
numeracy gains, the Department may increase the weighting of the OMS
measure on numeracy gains to signal to operators that they need to put
more emphasis on improving numeracy. The expected result would
[[Page 20787]]
be that the increased focus on numeracy would lead to improved numeracy
gains and a commensurate increase in the primary indicator related to
measurable skills gains. The center rankings will reflect these efforts
to push the system to continuous improvement of outcomes.
Section 686.1070 How and when will the Secretary use Performance
Improvement Plans?
Proposed Sec. 686.1070 implements sec. 159(f)(2) of WIOA, which
sets out requirements for the circumstances under which the Secretary
will use Performance Improvement Plans.
Proposed paragraph (a) provides that the Secretary will establish
standards and procedures for developing and implementing performance
improvement plans. Paragraph (a)(1) implements the requirement in sec.
159(f)(2) of WIOA, that when a center fails to meet expected levels of
performance, the Secretary must develop and implement a performance
improvement plan designed to help the center improve its performance
outcomes. Paragraph (a)(1)(i) establishes standards for when the
Secretary will consider a center to have failed to meet the expected
levels of performance on the primary indicators. The proposed paragraph
states that a center will have failed to meet the expected levels of
performance if the center is ranked among the lowest 10 percent of Job
Corps centers and the center fails to achieve an average of 90 percent
of the expected level of performance for all of the primary indicators.
This is consistent with the methodology used to determine whether
States have failed to meet the expected levels of performance on other
programs under WIOA. Proposed paragraph (a)(1)(ii) establishes
standards for when the Secretary will consider a center to have failed
to meet the expected levels of performance on the primary indicators
for PYs that occur prior to the implementation of the expected levels
of performance on the primary indicators. The paragraph states that a
center will have failed to meet the expected levels of performance if
it is ranked among the lowest 10 percent of Job Corps centers and the
center's composite OMS score for the PY is 88 percent or less of the
year's OMS national average. This proposal is consistent with the Job
Corps Performance Improvement Plan system planned for implementation in
early 2015.
Proposed paragraph (a)(2) implements sec. 159(f)(3) of WIOA, which
states that the Secretary may also develop and implement additional
performance improvement plans that will require improvements for a Job
Corps center that fails to meet criteria established by the Secretary
other than the expected levels of performance. The Department expects
to outline requirements for any such plans through subsequent guidance.
Proposed paragraph (b) implements the requirement in sec. 159(f)(2)
of WIOA that the performance improvement plan require that action under
the plan must be taken within 1 year of its implementation to address
the issues that led to the center's failure to meet its expected levels
of performance. The paragraph states that the plan will identify
criteria that must be met for the center to complete the performance
improvement plan. In addition, paragraph (b)(1) provides that the
center operator must implement the actions outlined in the performance
improvement plan. Proposed paragraph (b)(2) provides that if the center
fails to take the steps outlined in the performance improvement plan or
fails to meet the criteria established to complete the performance
improvement plan after 1 year, the center will be considered to have
failed to improve performance under a performance improvement plan
detailed in paragraph (a). In that case, the center will remain on a
performance improvement plan and the Secretary will take action as
described in proposed paragraph (c). Paragraph (b)(2)(ii) implements
sec. 159(f)(4) of WIOA, which provides that if a CCC fails to meet
expected levels of performance relating to the primary indicators of
performance specified in proposed Sec. 686.1010, or fails to improve
performance under a performance improvement plan detailed in paragraph
(a) after 3 PYs, the Secretary, in consultation with the Secretary of
Agriculture, must select an entity to operate the CCC on a competitive
basis. Such competition will be held in accordance with the
requirements at proposed Sec. 686.310.
Proposed paragraph (c) implements secs. 159(f)(2)(A) through
159(f)(2)(G) of WIOA, which permit the Secretary to take specific
actions to improve the performance of a center, as necessary. These
requirements are taken directly from the statute and this proposed
paragraph retains the same requirements as those in the WIA regulations
at 20 CFR 670.985. The Department notes that nothing in the statute or
in these proposed regulations requires that the performance improvement
actions be taken in any particular order or on a progressive basis. The
Secretary will take any of the measures listed in sec. 159(f)(2) of
WIOA that will lead to improving performance of a center. Among these
measures, the Secretary also reserves the right to close low-performing
centers, pursuant to WIOA sec. 159(f)(2)(G).
K. Part 687--National Dislocated Worker Grants
Proposed part 687 implements provisions in sec. 170 of WIOA that
authorize the Secretary to award discretionary funds to serve
dislocated workers and other eligible individuals affected by major
economic dislocations, emergencies, or disasters. The proposed
regulations set forth the key elements and requirements for the
statute's NDWGs. Additional guidance on NDWGs and the application
requirements for these grants will be published separately.
The proposed regulations establish a framework that will enable
eligible applicants to apply quickly for grants to relieve the impact
of layoffs, emergencies, and disasters on employment in the impacted
area and to meet the training and reemployment needs of affected
workers and to enable them to obtain new jobs as quickly as possible.
The proposed regulations call for early assessment of the needs and
interests of the affected workers, through either rapid response
activities, or other means, as well as an indication of the other
resources available to meet these needs, to aid in the creation of a
customer-centered service proposal. The early collection of information
about affected workers will allow applicants to have an understanding
of the needs and interests of the impacted workers to enable a prompt
application for the appropriate level of NDWG funds. Early collection
of information also will facilitate the receipt of NDWG funds when the
Secretary determines that there are insufficient State and local
formula funds available. Early intervention to assist workers being
dislocated is critical to enable them to access work-based learning
opportunities and other types of training that lead to industry-
recognized credentials, as appropriate, to help them find new
employment in in-demand industries and occupations as soon as possible
after their dislocation occurs.
Section 687.100 What are the types and purposes of national disclosed
worker grants the Workforce Innovation and Opportunity Act?
Proposed Sec. 687.100 describes the purpose of NDWGs, expanding
upon the description provided in the WIA regulations at 20 CFR 671.100.
Regular NDWGs provide career services for dislocated workers and other
eligible
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populations where demand is unable to be met with formula funds or
other sources. Disaster NDWGs, which were originally authorized under
WIA to conduct clean-up and humanitarian assistance, are still
authorized under WIOA; however, WIOA expands their availability by
adding new qualifying events for Disaster NDWGs, such as serving
workers who have relocated from an area in which a disaster has been
declared, as discussed in Sec. Sec. 687.110(b) and 687.180(b).
Section 687.110 What are major economic dislocations or other events
which may qualify for a national dislocated worker grant?
Proposed Sec. 687.110 describes the events that qualify for NDWG
funding. Proposed Sec. 687.110(a)(1) through (3) include substantially
similar provisions to those that were contained in the WIA regulations;
however, the terms ``single site of employment'' and ``in a single
local community,'' which had been used to qualify the types of eligible
layoff events, are not included in the proposed section. Experience
under WIA has shown that a company's total number of layoffs affects
the local and regional economy in the same way without regard to
whether the layoffs occur at a single facility or at multiple
locations. Proposed Sec. 687.110(a)(4) describes a qualifying event
added by sec. 170(b)(1)(D)(i) of WIOA, permitting the award of a NDWG
when a higher than average demand for employment and training
activities for dislocated members of the Armed Forces, dislocated
spouses of members of the Armed Forces on active duty (as defined in 10
U.S.C. 101(d)(1)), or members of the Armed Forces described in proposed
Sec. 687.170(a)(1)(iii), exceeds State and local resources. Section
170(b)(1)(D)(i) of WIOA specifically limits the military spouses
included in this analysis to ``spouses described in sec. 3(15)(E) [of
WIOA].'' Under sec. 3(15)(E) of WIOA, these are spouses of members of
the Armed Forces on active duty who are dislocated specifically because
they have experienced a loss of employment as a direct result of
relocation to accommodate a permanent change in duty station of the
member of the military, or are unemployed or underemployed and
experiencing difficulty in obtaining or upgrading employment.
Implementing this exactly as stated in the statute would require
applicants for these NDWGs to determine whether a specific subset of
dislocated military spouses is driving the higher than average demand
for services in an area. This would cause an unnecessary burden on the
NDWG applicants, and instead proposed Sec. 687.110(a)(4) would only
require applicants for these NDWGs to assess whether military spouses
who are dislocated under any of the factors in sec. 3(15) of WIOA are
contributing to the higher than average demand for services. The
proposed provision also specifies that these spouses must be spouses of
members of the Armed Forces on active duty, which implements the intent
of this provision of WIOA while avoiding the unnecessary administrative
hardship. The Department intends to provide additional guidance about
how higher than average demand will be defined for purposes of this
section. The Department is exploring definitions that may include
veterans' unemployment in excess of the State's unemployment rate,
Unemployment Compensation for Ex-service members (UCX) data, and other
similar administrative data sources. The Department invites comments
about the usefulness of relying on these and other data sources in
determining how higher than average demand should be defined. Proposed
Sec. 687.110(a)(5) maintains the prerogative of the Secretary of Labor
to provide NDWG funding for other events.
Proposed Sec. 687.110(b) describes qualifying events for Disaster
NDWGs. Proposed Sec. 687.110(b)(1) provides, similar to the WIA
regulation at 20 CFR 671.110(e), that disasters declared eligible for
public assistance under the Stafford Act are qualifying events for
Disaster NDWGs. The proposed paragraph also makes clear that outlying
areas and tribal areas that receive a public assistance declaration
also are eligible to apply for a Disaster NDWG. This is consistent with
the intent and purpose of sec. 170 of WIOA, because these entities are
both eligible for dislocated worker grants under WIOA and are eligible
for public assistance under the Stafford Act. Therefore, it is logical
that they would be eligible for Disaster NDWGs.
Proposed Sec. 687.110(b)(2) and (3) describe the new events that
WIOA establishes are qualifying events for Disaster NDWGs. As stated in
sec. 170(a)(1)(B) of WIOA, eligible events for Disaster NDWGs now
include an emergency or disaster situation of national significance
that could result in a potentially large loss of employment, as
recognized by the chief official of a Federal agency that has authority
or jurisdiction over the Federal response for the emergency or disaster
situation. Although such an event might not meet the requirements to
receive a public assistance declaration from the FEMA, it still may be
an event where NDWG funding may be needed. NDWGs may be provided in
this instance for activities that are determined to be appropriate by
the Secretary. Proposed paragraph (b)(3) addresses situations where a
substantial number of workers from a State, tribal area, or outlying
area in which an emergency or disaster has occurred relocate to another
State, tribal area, or outlying area. This would also be a qualifying
event for a Disaster NDWG, according to secs. 170(b)(1)(B)(ii) and
(d)(4) of WIOA. The addition of this type of event was informed by the
mass evacuations that took place as a result of Hurricane Katrina,
which caused massive flooding and damage along the Gulf Coast in 2005,
resulting in evacuees settling in high concentrations in some other
communities.
Section 687.120 Who is eligible to apply for national dislocated worker
grants?
Proposed Sec. 687.120 identifies which entities are eligible to
apply for NDWGs. Proposed Sec. 687.120(a) and (b) retain essentially
the same requirements as in Sec. 671.120 of the WIA regulations, but
these proposed regulations clearly identify which entities may apply
for Regular NDWGs and which may apply for Disaster NDWGs. Unlike Sec.
671.120(b), proposed Sec. 687.120 does not include a statement
concerning the ability of private entities to apply for NDWGs for
interstate projects, because sec. 170(c)(1)(B) of WIOA and proposed
Sec. 687.120(a)(5) provide for such applications. The proposed
language, in contrast to its WIA counterpart, does not distinguish
between interstate and intrastate projects, because from the
Department's perspective the grantee/grantor relationship is between
the Department and a single entity. In proposed Sec. 687.120(a), the
Department has specified that outlying areas, in addition to States,
may apply for Regular NDWGs. In proposed Sec. 687.120(b), the
Department has specified that outlying areas and Indian tribal
governments as defined by the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, in addition to States, may apply for Disaster
NDWGs.
Section 687.130 When should applications for national dislocated worker
grants be submitted to the Department?
Proposed Sec. 687.130 describes when applications for NDWGs may be
submitted and retains many of the requirements found in the WIA
regulations at 20 CFR 671.130. However, there are some key differences
in the proposed regulations. Proposed Sec. 687.130(a) identifies the
conditions
[[Page 20789]]
applicable to Regular NDWGs and underscores the importance that
applications for Regular NDWGs must be submitted as soon as possible
after the eligibility criteria are met and the necessary information to
apply is available to the applicant. Timely submissions that comply
with the requirements will help ensure that the needed resources are
provided expediently.
Proposed Sec. 687.130(b) identifies the conditions applicable to
Disaster NDWGs and underscores the importance that applications for
Disaster NDWGs must be submitted as soon as possible. Proposed Sec.
687.130(b)(1) through (3) identify the events that trigger applications
for Disaster NDWGs, and also emphasize the importance of submitting
applications as soon as possible after the appropriate declarations or
determinations have been made.
Section 687.140 What activities are applicants expected to conduct
before a national dislocated worker grant application is submitted?
Proposed Sec. 687.140 describes the activities to be conducted
before an application for a NDWG is submitted. Proposed Sec.
687.140(a) expands on the requirements found in the WIA regulations at
20 CFR 671.160. The proposed language, based in part on the
Department's experience under WIA, requires applicants to identify the
needs of the affected workers, and their interest in receiving
services, either through Rapid Response activities or other means.
Under WIA, the Department learned that some individuals who could have
benefited from receiving ESs under a National Emergency Grant (NEG)
ended up not being interested in receiving them. For example, some
individuals chose to opt out of receiving services because they
believed their previous employer was going to call them back to work,
while others chose to forgo receiving employment and training services
in order to find new employment on their own. The Department has found
that the lack of information on needs and interest of affected workers
have significantly impacted participant enrollment rates in the past,
and in some cases, resulted in the return of funds outside the
timeframe allowed for the funds to be obligated for other grants.
Further, the proposed language expands the allowable data gathering
methods that may be used, so that applicants are no longer limited to
using only data obtained via Rapid Response interventions. This change
allows for greater flexibility in obtaining this critical data.
Proposed Sec. 687.140(b)(1) makes it clear that applicants for
Disaster NDWGs must conduct a preliminary assessment of the clean-up
and humanitarian needs in the affected areas. Proposed Sec.
687.140(b)(2) requires applicants to have a mechanism in place to
ascertain reasonably that there is a sufficient population of eligible
individuals in the area and, if needed, eligible individuals outside
the area to conduct the planned clean-up and humanitarian work. Under
WIA, there were a few instances where after NEGs were issued, a State
was unable to conduct the work it had planned because it was unable to
find eligible individuals to do the work. The Department recognizes
that in the immediate aftermath of a disaster it is difficult to
conduct a thorough assessment of the number of individuals that could
be eligible to conduct the planned work. While the Department's
proposed approach allows flexibility, it also ensures there is a
process in place so that reasonable estimates of potential participant
availability are made prior to submitting the application, so that the
proper amount of funding may be provided.
Section 687.150 What are the requirements for submitting applications
for national dislocated worker grants?
Proposed Sec. 687.150 explains that the Department will publish
additional guidance on the requirements for submitting NDWG
applications. A similar approach was taken in the WIA regulations.
Unlike the WIA regulations, however, the proposed section requires that
a project implementation plan, which is currently required for all
NEGs, be submitted post NDWG award. Under WIA, this requirement is
included only in guidance. The project implementation plan includes
more detailed information about project operations than is required for
the initial application. This information allows the Department to
provide grantees with targeted technical assistance, and to exercise
appropriate oversight and monitoring over the NDWG award. Additional
information on what must be included in the project implementation
plan, and the process for submitting it, will be included in future
guidance.
Section 687.160 What is the timeframe for the Department to issue
decisions on national dislocated worker grant applications?
Proposed Sec. 687.160 implements sec. 170(b)(2) of WIOA, which
establishes a 45-day timeframe for issuing determinations on NDWG
applications. The proposed paragraph makes it clear that final
decisions on NDWG applications will be issued within 45 calendar days
of receiving an application that meets the requirements. Applicants are
encouraged to engage the appropriate Regional Office so that timely
technical assistance can be provided when developing NDWG applications
to help ensure that the information provided in the application is
sufficient.
Sec. 687.170 Who is eligible to be served under national dislocated
worker grants?
Proposed Sec. 687.170 provides information on participant
eligibility for NDWGs, distinguishing between individuals who may be
served under Regular NDWGs and those who may be served under Disaster
NDWGs. In the WIA regulations at Sec. 671.140, participant eligibility
and allowable activities were included in the same section; these two
topics are being addressed separately in proposed Sec. Sec. 687.170
and 687.180 for clarity. Proposed Sec. 687.170(a) lists the specific
populations that are eligible to be served under Regular NDWGs. This
paragraph retains the provision from the WIA regulations at 20 CFR
671.140(a) that dislocated workers may be served. However, as discussed
below, the definition of a dislocated worker was expanded under WIOA,
thereby expanding the population that can be served with NDWGs.
Section 3(15)(E)(i)-(ii) of WIOA includes certain spouses of
members of the Armed Forces on active duty in the definition of
``dislocated worker.'' These spouses are considered dislocated workers,
and therefore eligible for services under NDWGs, if they: (1) Have
experienced a loss of employment as a direct result of relocation to
accommodate a permanent change in duty station of the member of the
Armed Forces; or, (2) are unemployed or underemployed and experiencing
difficulty obtaining or upgrading employment.
WIOA also expanded upon the definition of a ``displaced
homemaker,'' recognized under both WIA and WIOA as a type of dislocated
worker. Under sec. 3(16)(A)(ii) of WIOA, the definition of a displaced
homemaker now explicitly includes a person who is a dependent spouse of
a member of the
[[Page 20790]]
Armed Forces on active duty whose family income is significantly
reduced because of a deployment, a call or order to active duty, a
permanent change of station, or the service-connected death or
disability of the member, and who is unemployed or underemployed and is
experiencing difficulty in obtaining or upgrading employment. In
addition to the expanded dislocated worker definition covering
additional military spouses, dislocated members of the Armed Forces and
other dislocated military spouses continue to be included in the
definition of ``dislocated workers'' and therefore continue to be
eligible for services under NDWGs, just as they were under WIA NEGs.
Finally, sec. 170(c)(2)(A)(iv) of WIOA retains the eligibility
provision found at sec. 173(c)(2)(iv) of WIA that members of the Armed
Forces who were on active duty or full-time National Guard duty who
meet other specific requirements are an eligible population. These
members of the Armed Forces and the requirements are specifically
described in proposed Sec. 687.170(a)(1)(iii).
As discussed earlier in this preamble, WIOA states that dislocated
members of the Armed Forces, members of the Armed Forces described in
proposed Sec. 687.170(a)(1)(iii), and dislocated spouses of members of
the Armed Forces on active duty may be served with NDWGs when there is
a higher than average demand for employment and training activities
from this population that exceeds State and local resources to provide
them.
Proposed Sec. 687.170(b)(1) retains many of the participant
eligibility requirements for Disaster NEGs found in the WIA regulations
at Sec. 671.140(d), and also includes a new population authorized
under sec. 170(d)(2)(D) of WIOA--individuals who were self-employed,
but become unemployed or significantly underemployed as a result of the
emergency or disaster. Proposed Sec. 687.170(b)(2) implements sec.
170(b)(1)(B)(ii) of WIOA, discussed in proposed Sec. 687.110(b)(3),
which authorizes NDWG assistance for individuals who have relocated to
another State, tribal area, or outlying area as a result of the
disaster. This paragraph lists the relocated individuals who are
eligible for assistance under these type of NDWGs, and also notes that
in rare instances, humanitarian-related temporary employment will be
available in the relocation areas. This is further discussed in
proposed Sec. 687.180(b)(2) and the corresponding preamble language.
In those cases, the relocated individuals listed in proposed Sec.
687.170(b)(2) would be eligible for that work.
Section 687.180 What are the allowable activities under national
dislocated worker grants?
Proposed Sec. 687.180 provides information on allowable
activities; first, those allowable under Regular NDWGs; second, those
allowable under Disaster NDWGs. Proposed Sec. 687.180(a) lists the
allowable activities for Regular NDWGs. These activities are
essentially the same as those reflected in the WIA regulations at 20
CFR 671.140; however, consistent with WIOA, references to core,
intensive, and training services have been changed to refer to career
services. Additionally, the reference to trade-impacted workers under
the NAFTA-TAA program contained in 20 CFR 671.140(c)(2) is not included
in the proposed paragraph, since the NAFTA-TAA program no longer
exists.
Proposed Sec. 687.180(b) lists the allowable activities for
Disaster NDWGs. Proposed Sec. 687.180(b)(1) uses the same language as
in the WIA regulations at 20 CFR 671.140(e), which authorizes temporary
employment for humanitarian assistance and clean-up and repair of
facilities and lands within the disaster area for which a Disaster NDWG
is issued. This proposed paragraph also implements sec. 170(d)(1)(A) of
WIOA, which requires coordination with FEMA and permits these
activities to be performed in offshore areas related to the emergency
or disaster. The addition of the language on offshore areas was
informed by the Deepwater Horizon Oil Spill; the proposed paragraph
allows clean-up and humanitarian assistance activities to take place
beyond the land surface of the disaster area.
Proposed Sec. 687.180(b)(1) implements sec. 170(d)(3) of WIOA;
this paragraph allows employment of up to 12 months in the temporary
jobs created under Disaster NDWGs, with the potential for an additional
12 months with Secretarial approval. Under sec. 173(d)(3) of WIA, only
6 months of disaster relief employment was allowed. Proposed Sec.
687.180(b)(1) identifies employment and training activities as
allowable under Disaster NDWGs. While the WIA regulations contained a
comparable provision, individuals were only allowed to participate in
employment and training services after they had completed the disaster
relief employment component of the project. The proposed paragraph
allows individuals enrolled in disaster relief employment under
Disaster NDWGs to receive concurrent career and training services, as
well as upon completion. Feedback received from grantees over the years
demonstrates that individuals involved in clean-up and humanitarian
assistance benefit from the opportunity to receive employment and
training services. These services will help to improve the skills of
these individuals and enhance their chances of obtaining employment
once the temporary disaster relief employment is completed. However,
because the primary purpose of Disaster NDWGs is to perform clean-up
and humanitarian assistance, the Department will issue further guidance
about the specific requirements regarding concurrent participation in
career services.
Proposed Sec. 687.180(b)(2) implements sec. 170(b)(1)(B)(ii) of
WIOA, discussed in proposed Sec. 687.110(b)(3), which makes
individuals who have relocated to another State, tribal area, or
outlying area as a result of a disaster eligible to receive services.
Proposed Sec. 687.180(b)(2) recognizes that although these individuals
are eligible for temporary disaster relief employment, their
employment, by virtue of their relocation, will most likely be limited
to humanitarian work (if those services are warranted). If individuals
relocate outside of the disaster area, they will most likely not be in
the impacted geographic area to conduct clean-up work. It is the
Department's expectation that, except in rare circumstances, the
services provided to relocated individuals will be limited to career
services.
Proposed Sec. 687.180(b)(3), consistent with secs. 170(a)(1)(A)-
(B) of WIOA, authorizes career services and/or disaster relief
employment both where recognized by FEMA, or by another Federal agency.
Under sec. 173(a)(2) of WIA and the WIA regulations at 20 CFR
671.110(e) and 671.130(c), NEGs were only available where FEMA declared
an area eligible for disaster-related public assistance.
Proposed Sec. 687.180(b)(4) implements sec. 170(d)(1)(B) of WIOA,
which states that disaster NDWG funds may be expended through public
and private agencies and organizations that are engaged in disaster
relief and humanitarian assistance projects.
Section 687.190 How do statutory and regulatory waivers apply to
national dislocated worker grants?
Proposed Sec. 687.190 describes how statutory and regulatory
waivers apply to NDWGs. To improve a grantee's ability to serve
participants, or increase the effectiveness of NDWG projects, the
Department may grant waivers to many statutory and regulatory
requirements. See WIOA sec. 189(i)(3)(A), which identifies some
limitations on the Secretary's waiver authority. Proposed
[[Page 20791]]
Sec. 687.190(a) and (b) retain essentially the same requirements found
in the WIA regulations at 20 CFR 671.150. A grantee requesting a waiver
of the statutory or regulatory requirements in connection with an NDWG
must submit its request either in the initial application for an NDWG,
or in a subsequent modification request. A waiver issued under other
WIOA provisions does not supplant this requirement.
Section 687.200 What are the program and administrative requirements
that apply to national dislocated worker grants?
Proposed Sec. 687.200 describes program and administrative
requirements for NDWGs. It retains essentially the same language
included in the WIA regulations at 20 CFR 671.170. Proposed Sec.
687.200(b) authorizes the use of funds for temporary job creation in
areas declared eligible for public assistance by FEMA or in areas
impacted by a situation of national significance as designated by a
Federal agency other than FEMA, subject to the limitations of sec.
170(d) of WIOA, and any additional guidance issued by the Department.
Proposed Sec. 687.200(b)(2) authorizes any remaining Disaster NDWG
funds awarded under this part to be used by a grantee in the same PY
the funds were awarded, in limited instances as determined by the
Secretary or the Secretary's designee, for additional disasters or
situations of national significance subject to the limitations of sec.
170(d) of WIOA. This flexibility will allow States, tribal areas, and
outlying areas that experience a quick succession of disasters (such as
those experienced by several Gulf States in 2005 that were devastated
by the effects of Hurricane Katrina, and approximately 1 month later,
were devastated by Hurricane Rita) to be able to modify their existing
grant and quickly access existing funding.
L. Part 688--Provisions Governing the YouthBuild Program
1. Introduction
The Department wants to emphasize the connections across all of our
youth-serving programs under WIOA including the WIOA youth formula
program including boards and youth committees, connections to pre-
apprenticeship and registered apprenticeship programs, and Job Corps
centers across the country. WIOA is an opportunity to align and
coordinate service strategies for these ETA youth training programs as
well as align with our Federal partners that serve these same
customers. WIOA also ensures that these programs are using common
performance measures and standard definitions, which includes aligning
the definitions for homeless youth, basic skills deficient,
occupational skills training and supportive services. Additionally, the
YouthBuild regulation aligns six new performance measures with the WIOA
youth formula program.
WIOA affirms the Department's commitment to providing high quality
education, training, and ESs for youth and young adults through
YouthBuild grants by expanding the occupational skills training offered
at local YouthBuild programs. YouthBuild programs can offer
occupational skills training in in-demand occupations, such as health
care, advanced manufacturing, and IT, as approved by the Secretary and
based on local labor market information.
In addition to the changes to the program required by WIOA, the
Department proposes several additional changes to the program,
including proposed revisions to the duration of the restrictive
covenant clause (as detailed in the preamble at Sec. 688.730),
clarifying eligibility criteria for participation, and describing
qualifying work sites and minimum criteria for successful exit from the
YouthBuild program. Beyond these regulations, the Department will
develop guidance and technical assistance to help grantees and the
workforce development community operate highly effective YouthBuild
programs.
2. Subpart A--Purpose and Definitions
Section 688.100 What is YouthBuild?
This proposed section describes the YouthBuild program. YouthBuild
is a workforce development program that provides employment, education,
leadership development, and training opportunities to disadvantaged
youth. The program also benefits the larger community by providing new
and rehabilitated affordable housing, thereby decreasing the incidence
of homelessness in those communities. The program recruits youth
between the ages of 16 and 24 who are school dropouts and are either: A
member of a low-income family, a youth in foster care, a youth who is
homeless, a youth offender, a youth who is an individual with a
disability, a child of an incarcerated parent, or a migrant youth.
Section 688.110 What are the purposes of the YouthBuild program?
This proposed section describes the purposes of the YouthBuild
program. The overarching goal of the YouthBuild program is to offer
disadvantaged youth the opportunity to obtain education and useful
employment skills to enter the labor market successfully. Construction
training provides skills training and hands-on application of those
skills. Youth also receive educational services that lead to a HSD or
its State-recognized equivalent.
In addition to describing the Department's vision for the
YouthBuild program, this proposed section describes the purposes of the
YouthBuild program as found at WIOA sec. 171(a).
Section 688.120 What definitions apply to this part?
This proposed section provides definitions that are specific to the
YouthBuild program in sec. 171(b) of WIOA. Other definitions that apply
to the YouthBuild program are defined under sec. 3 of WIOA and Sec.
675.300. Where appropriate and applicable the Department has aligned
our definitions with the definitions within the regulations of WIOA
youth, Job Corps, and WIOA adult and dislocated workers programs.
These proposed definitions fall into several categories, which are
described below: (1) Definitions that remain unchanged from the WIA
regulation at 20 CFR 672.110; (2) terms that were included in the WIA
regulation but which have been amended; and (3) new definitions added
to implement WIOA.
Definitions included in 20 CFR 672.110 which have been carried over
to this part unchanged are: ``Community or Other Public Facility,''
``Core Construction,'' ``Eligible Entity,'' ``Housing Development
Agency,'' ``Income,'' ``Indian; Indian Tribe,'' ``Low-Income Family,''
``Migrant Youth,'' and ``Youth in Foster Care.''
Definitions published in the WIA regulations at Sec. 672.110 that
the Department proposes changing include existing definitions for:
``Homeless Individual'' to include individuals considered homeless as
defined in sec. 41403(6) of the Violence Against Women Act of 1994 and
the inclusion of ``Homeless Child or Youth'' as defined under the
McKinney-Vento Homeless Assistance Act; ``Needs-Based Stipends'' to
``Needs-Based Payments'' in order to be consistent with the term as
used in Sec. 688.320 below and to differentiate the term from the
allowable program stipends described in Sec. 688.320; ``Occupational
Skills Traning'' to align with in-demand industries and an emphasis on
post-secondary credentials; ``Registered Apprenticeship'' to align with
the WIOA definition; and ``Transitional
[[Page 20792]]
Housing'' to reflect the amended definition under the McKinney-Vento
Homeless Assistance Act as amended by S. 896 The Homeless Emergency
Assistance and Rapid Transition to Housing (HEARTH) Act of 2009.
Proposed changes to this section also include the addition of new
definitions that were not in WIA but are included in either sec. 3 or
sec. 171(b) of WIOA. These are ``Adjusted Income,'' ``Applicant,''
``Basic Skills Deficient,'' ``In-Demand Industry Sector or
Occupation,'' ``Individual with a Disability,'' ``Offender,''
``Qualified National Nonprofit Agency,'' ``Recognized Post-secondary
Credential,'' ``School Dropout,'' ``Secondary School,'' ``Supportive
Services,'' and ``YouthBuild Program.''
Finally, the Department proposes to include several new definitions
not defined under WIA YouthBuild regulations Sec. 673.110:
``Construction Plus,'' ``Exit,'' ``Follow-Up Services,''
``Participant,'' and ``Pre-apprenticeship.''
In addition, the Department has removed several definitions that
were included in the WIA regulations: ``Alternative School,''
``Individuals of Limited English Proficiency (LEP),'' ``Partnership,''
``Public Housing Agency,'' and ``Youth who is an Individual with a
Disability.''
The Department proposes to include the following definitions at
Sec. 688.120:
Adjusted Income: The Department proposes that the term ``adjusted
income'' means that with respect to a family, the amount of the income
of the members of the family residing in a dwelling unit or the persons
on a lease, after any allowable income exclusions. Per WIOA sec.
171(b)(1), this definition comes from sec. 3(b) of the United States
Housing Act of 1937 (42 U.S.C. 1437a(b).
Applicant: The Department proposes defining this as an entity
applying for YouthBuild funding as described at WIOA sec. 171(b)(2).
Basic Skills Deficient: This proposed definition comes from WIOA
sec. 3(5) and the Department is adding it for ease of use. In assessing
basic skills, YouthBuild programs must use assessment instruments that
are valid and appropriate for the target population, and must provide
reasonable accommodation in the assessment process, if necessary, for
participants with disabilities.
Construction Plus: The Department proposes defining this as the
inclusion of occupational skills training for YouthBuild participants
in in-demand occupations other than construction. This definition is
from TEGL 7-14 Guidance for Implementing the ``Construction Plus''
Component of the YouthBuild Program. The Department is adding this
definition to the regulations to stress the importance of correctly
implementing a high quality Construction Plus program and to refer
grantees to TEGL 7-14.
Community Or Other Public Facility: The Department proposes
defining this as those facilities which are either privately owned by
non-profit organizations or publicly owned and publicly used for the
benefit of the community. For publically owned buildings, examples
include public use buildings such as recreation centers, libraries,
public park shelters, or public schools.
Core Construction: The Department proposes defining this term to
mean those activities that are directly related to the construction or
rehabilitation of residential, community, or other public facilities.
These activities include, but are not limited to, job skills that can
be found under the Standard Occupational Classification System (SOC)
major group 47, and Construction and Extraction Occupations, in codes
47-1011 through 47-4099. A full list of the SOC's can be found at the
Bureau of Labor Statistics (BLS) Web site, http://www.bls.gov/soc.
Eligible Entity: This proposed term describes the entities eligible
to apply for funding under this part. This definition comes from WIOA
sec. 171(b)(3).
English Language Learner: The Department proposes defining this
term as a participant who has limited ability in reading, writing,
speaking, or comprehending the English language, and whose native
language is one other than English; or who lives in a family or
community environment where a language other than English is the
dominant language. This definition comes from WIOA sec. 3(21), which
adopts the definition found at WIOA sec. 203(7).
Exit: For purposes of measuring performance under the performance
measures described in Sec. 688.400, the Department proposes to adopt
the general definition of exit that is used in Sec. 677.150 in order
to align with the core programs generally and the youth formula program
specifically. For purposes of this definition, an exit from a
YouthBuild program is either a successful exit under Sec. 688.370 or
an unsuccessful exit, which occurs when a participant leaves the
program before completing the program. However, a participant is not
considered to have unsuccessfully exited if they leave the program
because of a documented death, health or medical reason, family care,
being called to active duty in the military, or any other circumstance
described by the Secretary.
Follow-Up Services: This proposed term describes the services
provided to youth participants after program exit to ensure success in
established outcomes, such as placement into post-secondary education
and training or employment. The definition is based on the Department's
experience in administering the YouthBuild program, and aligns with the
WIOA youth formula program definition. By adding this definition, the
Department intends to strengthen the emphasis on career pathways for
YouthBuild participants. Follow-up services are critical services
provided following a youth's exit from the program that help ensure the
youth is successful in employment and/or post-secondary education and
training as they progress along their career pathway. The Department
will issue guidance and provide technical assistance regarding the
services necessary to ensure the success of youth participants.
Homeless Individual: This proposed term comes from WIOA sec.
171(b)(4), which adopted the definition from sec. 41403(6) of the
Violence Against Women Act of 1994 (42 U.S.C. 14043e-2(6)).
Homeless Child or Youth: This proposed term comes from WIOA sec.
171(b)(4) of WIOA and comes from sec. 725(2) of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 1134a(2)).
Housing Development Agency: The Department proposes adopting the
statutory definition of this term at WIOA sec. 171(b)(5).
Income: This proposed definition has been adopted from WIOA sec.
171(b)(6), which adopted the definition from the United States Housing
Act of 1937 (42 U.S.C. 1437a(b)(2)).
In-Demand Industry Sector or Occupation: The Department proposes to
define this term as described at WIOA sec. 3(23).
Indian; Indian Tribe: These proposed terms are found in WIOA sec.
171(b)(7), which incorporated the definitions from sec. 4 of the
ISDEAA.
Individual With a Disability: This proposed definition was taken
from sec. 3(25) of WIOA, which adopted the definition from sec. 3 of
the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).
Low-Income Family: This proposed definition implements the
definition at WIOA sec. 171(b)(8), which adopted the definition of
``low-income family'' from sec. 3(b)(2) of the Housing Act of 1937.
This definition applies not only to the eligibility of participants but
also to the
[[Page 20793]]
requirement that any residential units constructed or rehabilitated
using YouthBuild funds must house homeless individuals and families or
low-income families.
Migrant Youth: The Department proposes using the definition we used
under the WIA YouthBuild regulation. The definition was adapted from
Farmworker Bulletin 00-02, which relates to eligibility in the Migrant
Seasonal Farmworker Youth program, and expands on the definition of
``migrant seasonal farmworker'' found in WIA.
Needs-Based Payments: This proposed term describes additional
payments to participants beyond stipends which are necessary for an
eligible youth to participate in the program.
Occupational Skills Training: The Department proposes to define
this term as a course of study that provides specific vocational
skills.
Offender: The Department proposes to define this term based on the
definition found at WIOA sec. 3(38) and it includes both youth and
adults who have been subject to any stage of the criminal justice
process. The Department is proposing this definition in order to align
YouthBuild's definition of offender with WIOA's formula for adult and
youth programs.
Participant: The Department is proposing to define this term as an
individual who, after an affirmative eligibility determination has been
made, enrolls and actively participates in the program. Participants
must be reported in the performance outcome measures. The term
``participant'' is necessary to define because Sec. 688.400 requires
grantees to report on the performance of participants in the program.
This definition is designed to be consistent with the definition of
participant in Sec. 677.150, and it captures the same type of
individuals that are considered participants in the core programs.
Pre-Apprenticeship: This proposed term describes a program or set
of strategies designed to prepare individuals to enter and succeed in a
registered apprenticeship program. This definition is adopted from TEN
13-12 (http://wdr.doleta.gov/directives/attach/TEN/TEN_13-12_Acc.pdf),
and is being used to ensure consistency with the definition used by the
Department's Office of Apprenticeship. Per TEN 13-12, YouthBuild
programs that receive funding from DOL are considered pre-
apprenticeship programs.
Recognized Post-secondary Credential: This proposed definition
explains that a recognized post-secondary credential includes an
industry-recognized certificate or completion of an apprenticeship
program, a license recognized by the State involved or Federal
government, or an associate or baccalaureate degree. This definition
has been adopted from WIOA sec. 3(52). the Department is using this to
term to align with WIOA's formula adult and youth programs.
Registered Apprenticeship Program: The Department proposes to adopt
the definition found at WIOA sec. 171(b)(10).
School Dropout: This proposed definition, adopted from WIOA sec.
3(54), describes a school dropout as an individual who is no longer
attending any school and who has not received a secondary school
diploma or its recognized equivalent.
Secondary School: The Department proposes to define this term as a
nonprofit institutional day or residential school, including a public
secondary charter school, that provides secondary education, as
determined under State law, except that the term does not include any
education beyond grade 12. This proposed definition adopts the
definition at WIOA sec. 3(55), which cites to sec. 9101 of the
Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
Section 3: The Department proposes to define this term as Section 3
of the Housing and Urban Development Act of 1968, as amended by the
Housing and Community Development Act of 1992. The Department proposes
adding this definition because YouthBuild is specifically identified in
the U.S. Department of Housing and Urban Development (HUD's) Section 3
regulations. In Section 3, contractors are encouraged to work with
YouthBuild programs and participants when working on Federally-funded
HUD projects. Contractors and registered apprenticeship sponsors that
hire YouthBuild graduates will increase the competitiveness of their
proposals when bidding on HUD-funding construction projects.
Supportive Services: This proposed definition adopts the definition
from WIOA sec. 3(59). In this definition, linkages to community
services include but are not limited to services such as linkages to
free legal aid to help with the expungement of criminal records,
securing government identification, and linkages to organizations that
provide youth the opportunity to develop their leadership skills
through service to their respective community. This proposed definition
identifies additional services that are necessary for youth to
participant in this program. Guidance regarding the provision of
supportive services will be issued by the Department.
Transitional Housing: The Department proposes to define this term
as housing provided to ease the movement of individuals and families
experiencing homelessness to permanent housing within 24 months. This
definition, per WIOA sec. 171(b)(11), is adopted from sec. 401(29) of
the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11360(29)).
Youth in Foster Care: This term means ``youth currently in foster
care or youth who have ever been in foster care.'' The Department is
including it here as it was in WIA YouthBuild regulations.
Youthbuild Program: The Department proposes to define this term as
any program that receives assistance under this section and provides
disadvantaged youth with opportunities for employment, education,
leadership development, and training through the rehabilitation (which
for purposes of this section, must include energy efficiency
enhancements) or construction of housing for homeless individuals and
low-income families, and public facilities. This proposed term adopts
the definition from WIOA sec. 171(b)(12).
3. Subpart B--Funding and Grant Applications
Section 688.200 How are YouthBuild grants funded and administered?
This proposed section describes how the Secretary uses funds
authorized for appropriation under WIOA sec. 171(i) to administer
YouthBuild as a national program under title I, subtitle D of WIOA.
This section also notes that grants to operate YouthBuild programs are
awarded to eligible entities through a competitive selection process,
as required by WIOA sec. 171(c)(3). This proposed section retains the
same requirements found at 20 CFR 672.200.
Section 688.210 How does an eligible entity apply for grant funds to
operate a YouthBuild program?
This proposed section, implementing WIOA sec. 171(c)(1), generally
describes the application process for the YouthBuild program.
Section 688.220 How are eligible entities selected to receive grant
funds?
This proposed section, which implements WIOA sec. 171(c)(4),
describes the selection criteria that will be considered by the
Secretary when reviewing an application for funding. In addition to the
criteria described in the law, the Department has added additional
criteria in paragraphs (d), (e),
[[Page 20794]]
and (g) and added a new criteria in paragraph (i).
In paragraph (d), the Department has added ``counseling and case
management'' to the criteria described in sec. 171(c)(4)(D) because
these are essential to the success of YouthBuild participants.
In paragraph (e), in addition to the criteria at WIOA sec.
171(c)(4)(E), the Department has clarified that applicants should train
participants in sectors or occupations that are in demand locally to
help them achieve a positive employment outcome after their exit from
the program. Paragraph (g) adds to the criteria at WIOA sec.
171(c)(4)(I) by clarifying that the Department will also consider the
extent to which the proposal provides for previously homeless families
as well as individuals.
The Department has added a new criterion at paragraph (i) which
looks at the applicant's ability to enter into partnerships with a
variety of organizations and providers. Inclusion of this criterion is
beneficial to the grantee and the participant. No single grantee is
able to provide all of the services that a participant will need to
succeed along her or his chosen career pathway. However, programs that
enter into various types of partnerships are able to provide
participants with needed supportive services, increasing the likelihood
that they will succeed both during and after their participation in the
program.
Finally, paragraph (l) clarifies that the Department will apply
varying weights to these factors as described in the FOA.
Section 688.230 What are the minimum requirements and elements to apply
for YouthBuild funds?
This proposed section implements WIOA section 171(c)(3)(B) and
describes the minimum requirements and elements that must be included
in an application for YouthBuild funds.
In addition to the requirement at sec. 171(c)(3)(B)(iii), proposed
Sec. 688.230(c) requires applicants to describe their experience
operating a program under Section 3 of the Housing and Urban
Development Act of 1968. This requirement was added because the
Department wants grantees to be aware that YouthBuild is specifically
identified in HUD's Section 3 regulations. In Section 3, contractors
are encouraged to work with YouthBuild programs and participants when
working on Federally-funded HUD projects. The criteria described in
this proposed section will be included in the FOA.
The criteria described in this section emphasize strong connections
to registered apprenticeship programs as a key component of the
YouthBuild model, as well as connections to the one-stop system as a
support for employer engagement, connecting with the Local Workforce
Development Board youth services, and connecting to the network of
standing youth committees at the local level. These connections will
not only strengthen YouthBuild programs, but better enable them to
provide a comprehensive spectrum of employment and training services to
their participants.
Additionally, Sec. 688.230(l) proposes, consistent with current
practice, that the Department will consider an applicant's past
performance under an award made by the Secretary of Labor to operate a
YouthBuild program. This consideration will be based on the applicant's
past Quarterly Performance Reports (ETA-9136) and Quarterly Financial
Reports (ETA-9130). Our past experience in administering the YouthBuild
program has demonstrated that evaluating past performance allows the
Department to conduct comprehensive analysis of the program's ability
to meet the complicated requirements of YouthBuild. Additional details
about this requirement will be included in the FOA.
Finally, proposed paragraph (v) authorizes the Secretary to include
additional requirements in the FOA. This provision has been included to
ensure that the requirements upon which the Secretary is making its
determination are based on adequately and accurately judging the
ability of the applicant in order to ensure the effective, efficient
use of Federal funds and maximum benefit to program participants and
the communities in which the proposed program will operate.
Section 688.240 How are eligible entities notified of approval for
grant funds?
Consistent with sec. 171(c)(5) of WIOA, this proposed section
describes how eligible entities are notified of the status of their
respective grant application submitted for funding and the time frame
for notification. This proposed section retains the same requirements
found at 20 CFR 672.215.
4. Subpart C--Program Requirements
Section 688.300 Who is an eligible participant?
This proposed section sets out the participant eligibility
requirements for enrollment in the YouthBuild program. It covers the
required ages, education, income level, and other factors as well as
exceptions. This proposed section implements the statutory eligibility
requirement at WIOA sec. 171(e)(1).
While the language ``its recognized State equivalent'' in Sec.
688.300(b)(1) is commonly understood to mean a GED, States can choose
from several different equivalency tests that result in the attainment
of a credential similar to the GED. Accordingly, the phrase
``recognized State equivalent'' as used in this section refers to the
credential attained by passing any of the recognized equivalency tests.
While WIOA sec. 171(e)(1)(A)(ii) includes ``a youth offender'' as
an eligible participant, proposed Sec. 688.300(a)(3)(iii) permits both
adult and youth offenders to participate in the YouthBuild program. The
reason for the inclusion of adult offenders is twofold. First, some
States categorize anyone who was convicted of a crime over the age of
16 an adult. Because individuals between the ages of 16 and 24 are
eligible to participate in YouthBuild programs, not including adult
offenders as eligible participants would exclude those 16 and 17 year
olds who have been convicted of a crime from participating in the
program. Including adult offenders in this list of eligible
participants ensures that these youth with a substantial barrier to
employment will be able to participate in and benefit from the
YouthBuild program.
Section 688.310 Are there special rules that apply to veterans?
This section identifies the relevant rules for determining income
for veterans and priority of service for qualified veterans. These
rules can be found in 20 CFR 683.230 and 20 CFR part 1010,
respectively. This proposed section retains the same requirements found
at 20 CFR 672.305.
Section 688.320 What eligible activities may be funded under the
YouthBuild program?
This proposed section, which implements WIOA sec. 171(c)(2),
outlines the activities that YouthBuild programs funded under this
section may provide to program participants, including the allowable
education and workforce training activities. Of note, sec.
171(c)(2)(a)(i) of WIOA codified the Department's decision to allow
training in in-demand industries with the approval of the Secretary.
In addition to the activities allowed by the statute, the
Department, in Sec. 688.320, proposes to allow grantees to provide
referrals to mental health
[[Page 20795]]
services and victim services, such as referrals to domestic violence
services or services to victims of gang violence. The Department has
decided to add this because it is not uncommon for our participants to
enroll in our programs while at the same time dealing with the adverse
effects of violence.
Finally, Sec. 688.320(a)(7)(ii) specifies that in order to provide
needs-based payments, a grantee must have a written policy which
includes the information described to sure that such payments are
proper and fairly distributed.
Section 688.330 What level of training qualifies a construction project
as a qualifying work site under the YouthBuild program?
This proposed section provides requirements for YouthBuild grant
programs on what is considered a qualifying work site for purposes of
allowable construction activities under the YouthBuild program.
While the YouthBuild program model requires hands-on construction
training that supports the outcome of increasing the supply of
affordable housing within the communities that YouthBuild serves, some
grant programs struggle to secure work sites that will offer the youth
the hands-on construction skills training obtained from either building
housing from scratch or through extensive rehabilitation of existing
housing stock.
Determining whether a work site meets the criteria for providing
substantial hands-on experience is complex. As referenced in TEGL 35-
12, ``Definition and Guidance on Allowable Construction Credentials for
YouthBuild Programs,'' participants must study and pass testing in a
number of modules, or skill areas, before one of the industry-
recognized construction certification programs will accredit them.
These modules include, for example, brick masonry, carpentry, painting,
plumbing, and weatherization.
Per paragraphs (a) through (e) of this section, several criteria
must be met in order for a work site to qualify as appropriate for
construction skills training for YouthBuild participants. The first is
whether the worksite will provide the opportunity for hands-on training
in at least two modules in a construction skills training program
offering an industry-recognized credential. The second is whether the
completed work site will be used by a family or individual that meets
the low-income threshold, as defined by the United States Housing Act
of 1937 (42 U.S.C. 1437a(b)(2)). The third is whether the site provides
substantial hands-on experience for youth. This means that the work
site must include from-the-ground-up building experience (e.g.,
foundation, framing, roofing, dry wall installation, finishing, etc.)
or a substantial level of rehabilitation (i.e., ``a gut job''). Fourth,
per Sec. 688.730, all YouthBuild work sites must be built or renovated
for low-income individuals or families and are required to have a
restrictive covenant in place that only allows for rental or resale to
low-income participants for a particular period of time. Last, all work
sites must adhere to the allowable construction and other capital asset
costs, as defined in TEGL 05-10, ``Match and Allowable Construction and
Other Capital Asset Costs for the YouthBuild Program,'' or subsequent
or similar guidance issued by the Department related to allowable
costs.
All grantees must use the required Work Site Description form (ETA-
9143) in submitting proposed work sites for review and approval to and
by the Department at the time of applying for grant funds. If after
approval the grantee can no longer work at the approved construction
site, the grantee must submit another ETA-9143 for the proposed new
work site. The Work Site Description form requests specific information
on the property for building or rehabilitation, the participants'
construction activities, the funding source for the construction, and
demonstration of ownership or access to the site.
By tying approved work sites with hands on training, the Department
can ensure youth have the necessary hands-on training and experience in
two or more of these modules or skill areas in order to qualify for
industry-recognized credentials. The Department will issue guidance on
the types of work sites that are acceptable for construction training
for YouthBuild participants, and describe the minimum construction
activities that define work site training.
Section 688.340 What timeframes apply to participation?
This proposed section, implementing WIOA sec. 171(e)(2), provides
that the period of participation for YouthBuild participants while
enrolled in the program is not less than 6 months and not more than 24
months. This proposed section retains the same requirements found at 20
CFR 672.315.
Section 688.350 What timeframes must be devoted to education and
workforce investment or other activities?
Implementing WIOA sec. 171(e)(3), this proposed section outlines
the requirements for the minimum amount of time that participants must
engage in workforce and educational training activities. This section
also permits program participants to spend up to 10 percent of their
time engaged in leadership development and community service
activities, such as youth serving as crew leaders, participating on
policy councils, organizing community clean-up projects, leading youth
voter registration drives and organizing and hosting community anti-
violence conferences.
Section 688.360 What timeframes apply to follow-up services?
This proposed section requires YouthBuild grantees to provide
follow-up services for a period of 12 months after exit. These services
are provided to program participants that have successfully exited the
program to help them transition successfully into a post-secondary
education program or employment.
The Department proposes to require 12 months of follow-up services
to align the length of services with the youth formula program and the
new performance measure requiring grantees to measure outcomes up to
four quarters after exit. The types of services provided and the
duration of services must be determined based on the needs of the
individual and therefore, the type and intensity of follow-up services
may differ for each participant.
Consistent with the youth formula program, a participant that is
receiving follow-up services is considered to have exited the program,
and therefore would be counted as having exited the program for the
purpose of the performance measures described in Sec. 688.400.
Section 688.370 What are the requirements for exit from the YouthBuild
program?
This proposed section outlines the minimum criteria for successful
exit from the YouthBuild program. One purpose of the YouthBuild program
is for participants to receive practical skills and training that will
allow them to successfully transition to employment or further
education. As used in this section, a successful exit occurs when a
participant has completed his/her training and is ready to transition
out of the program.
Proposed paragraph (a) requires hands-on training because, based on
our experience, participants that do not receive this training are less
likely to transition out of the program successfully, thereby
undermining one of the primary purposes of the program.
Proposed paragraph (b) requires each YouthBuild program to create
exit
[[Page 20796]]
policies that establish any additional minimum requirements that youth
must meet in order to be considered to have successfully completed the
program.
In the past, grantees have deemed participants to have exited the
program, simultaneously upon graduation, before all program services
have been completed or delivered. This can result in lower performance
outcome measures for the grantee and a lower post program success rate
for participants. Participants do not have to exit at the moment of
graduation. Exits can and should be based on the individual ongoing
needs of the participant. Transition services can be provided until the
participant is ready for exit and may include college experience,
subsidized summer jobs, internships, or other activities that will help
the youth focus on post-program goals (for further details, please see
Sec. 688.320). It may also be best to have the youth already connected
to a post-program placement before exit to ensure successful outcomes
for the youth and successful performance outcome measures for the
program. In addition, because follow-up services are only available to
participants that have successfully completed the program, adding this
section clarifies which participants are eligible to receive follow-up
services
Section 688.380 What is the role of the YouthBuild grantee in the one-
stop system?
WIOA sec. 121(b)(1)(B)(i) includes all of the programs authorized
under title I of WIOA as a required partner in the local one-stop
system. This proposed section implements that provision by requiring
YouthBuild grantees to take all actions required of required partners
described in sec. 121 of WIOA and 20 CFR part 678. The Department
encourages its YouthBuild grantees to actively participate as a partner
with the one-stop system. Because of the positive role that a local
one-stop center can have on the operation of a local YouthBuild program
and on the outcomes for YouthBuild participants, the local YouthBuild
grantee should serve as the required partner of the one-stop system as
required by sec. 121 of WIOA.
5. Subpart D--Performance Indicators
Section 688.400 What are the performance indicators for YouthBuild
grants?
This proposed section describes performance indicators for the
YouthBuild program, as required by WIOA sec. 171(f). Proposed Sec.
688.400(a) through (f) are the six primary indicators as required by
sec. 116 (b)(2)(A)(ii) of WIOA. These measures of performance are the
same as the primary indicators discussed in proposed Sec. 677.155.
Though the indicators of performance are identified in various places
throughout the WIOA proposed regulations, the indicators are the same
and do not vary across the regulations. In addition to the six primary
indicators, the Secretary may require YouthBuild programs to collect
additional information on performance. If additional performance
information becomes a requirement for YouthBuild grantees, they will be
informed through a formal memorandum from the Department.
In calculating a program's performance, grantees must consider all
of the participants that have exited the program, as that term is
defined in Sec. 688.120, not just those that have successfully exited
the program under the policy described in Sec. 688.370.
Section 688.410 What are the required levels of performance for the
performance indicators?
This proposed section, implementing sec. 171(f) of the statute,
provides a description of how levels of performance are developed for
YouthBuild programs.
Section 688.420 What are the reporting requirements for YouthBuild
grantees?
This section outlines the performance, narrative, and financial
reporting requirements for YouthBuild grantees and explains that any
additional information on the reporting requirements will be included
in guidance issued by the Secretary. This proposed section retains the
same requirements found at 20 CFR 672.410.
Section 688.430 What are the due dates for quarterly reporting?
This section provides due dates for quarterly performance reporting
under the YouthBuild program. This proposed section retains the same
requirements found at 20 CFR 672.415.
6. Subpart E--Administrative Rules, Costs, and Limitations
Section 688.500 What administrative regulations apply to the YouthBuild
program?
This proposed section applies the relevant administrative
requirements and regulations applicable to all WIOA ETA programs to the
YouthBuild program. This section requires each YouthBuild grantee to
comply with the general administrative requirements found in 20 CFR
part 683, except those that apply only to the WIOA title I-B program,
the Uniform Administrative Requirements at 2 CFR parts 200 and 2900, 29
CFR parts 93, 94, and 98, and the nondiscrimination regulations at 29
CFR part 37.
The nondiscrimination regulations incorporated by this section at
Sec. 688.500(c)(2), 29 CFR part 37, broadly prohibit all forms of
discrimination for WIOA title I programs, which include YouthBuild. In
particular, 29 CFR 37.5 states that ``[n]o individual in the United
States may, on the ground of race, color, religion, sex, national
origin, age, disability, political affiliation or belief, and for
beneficiaries only, citizenship or participation in any WIOA title I-
financially assisted program or activity, be excluded from
participation in, denied the benefits of, subjected to discrimination
under, or denied employment in the administration of or in connection
with any WIOA title I-funded program or activity.''
The regulations also require that grantees provide reasonable
accommodations to youth who are individuals with disabilities, as found
in 29 CFR 37.8. For grantees unsure of how to best accommodate youth
who are individuals with disabilities in their program, the Department
recommends that the grantees consult with the Job Accommodation Network
[https://askjan.org/] or call (800) 526-7234 (Voice) (877) 781-9403
(TTY], a free service of the Department's Office of Disability
Employment Policy that provides employers with technical assistance on
accommodating different disabilities.
In addition to prohibiting discrimination, YouthBuild grantees have
positive requirements to ensure equal opportunity and prevent
discrimination in their programs. YouthBuild grantees are required by
29 CFR 37.29 through 37.32 to disseminate an equal opportunity policy.
YouthBuild grantees also must ensure that they provide universal access
to their programs, including advertising the program in a manner that
targets various populations, sending notices about openings in programs
to community service groups that serve various populations, and
consulting with community service groups on ways to improve outreach
and service to various populations, as required by 29 CFR 39.42.
YouthBuild grantees also are required to comply with all generally
applicable laws and implementing regulations that apply to the grantees
or their participants. For example, for participants who are youth with
disabilities and participate in secondary
[[Page 20797]]
education programs, grantees must adhere to the administrative
provisions of the Individuals with Disabilities Improvement Act at 34
CFR 300.320 through 300.324, which require that grantees provide youth
who are individuals with disabilities who enter the program with an
appropriate transition plan corresponding to their individual needs.
Finally, proposed Sec. 688.500(d), implementing sec. 171(e)(5) of
WIOA, requires YouthBuild grantees to comply with relevant State and
local education standards for their programs and activities that award
academic credit or certify educational attainment.
Section 688.510 How may grantees provide services under the YouthBuild
program?
This proposed section, implementing WIOA sec. 171(h), authorizes
grantees to provide services directly or to enter into subgrants,
contracts, or other arrangements with various public and private
entities. This proposed section retains the same requirements found at
20 CFR 672.505.
Section 688.520 What cost limits apply to the use of YouthBuild program
funds?
This proposed section implements WIOA secs. 171(c)(2)(C)(i) and
(c)(2)(D), describing the limitations on the percentage of grant funds
that a YouthBuild grantee can spend on administrative costs and the
rehabilitation or construction of a community or public facility. The
definition of administrative costs can be found in 20 CFR 683.215.
Section 688.530 What are the cost-sharing or matching requirements of
the YouthBuild program?
This proposed section provides that the cost-sharing or matching
requirements applicable to a YouthBuild grant generally will be
addressed in the grant agreement, and also describes the requirements
for several specific costs.
Regarding the use of Federal funds, this section explains that
grantees must follow the requirements of 2 CFR parts 200 and 2900 in
the accounting, valuation, and reporting of the required non-Federal
share. Additionally, because inquiries about the allowability of using
Federal funds as part of the cost-sharing or match amount is frequently
asked by applicants, the regulations restate the prohibition on the use
of such funds.
This proposed section retains the same requirements found at 20 CFR
672.515.
Section 688.540 What are considered to be leveraged funds?
This proposed section addresses the use of additional money, known
as leveraged funds, to support grant activities. It explains that
leveraged funds include costs that could be an allowable match but are
in excess of the match requirement or costs that do not meet the cost-
sharing and match requirements set forth in the Uniform Administrative
Requirements. To be considered leveraged funds, they must be otherwise
allowable costs under the cost principles which have been used by the
grantee to support grant activity. For example, the Department would
not allow a grantee to count toward the match requirement another
Federal grant used by the grantee or subgrantee to support otherwise
allowable activities under the YouthBuild program. However, the
Department would consider such a grant a leveraged fund.
The amount, commitment, nature and quality of the leveraged funds
described in the grant application will be considered as factors in
evaluating grants in the FOA. The Department also will require grantees
to report the use of such funds through their financial report and
quarterly narrative report.
This proposed section retains the same requirements found at 20 CFR
672.520.
Section 688.550 How are the costs associated with real property treated
in the YouthBuild program?
This proposed section specifies which costs associated with real
property are allowable and unallowable under the YouthBuild program. It
explains that the costs associated with the acquisition of buildings to
be rehabilitated for training purposes are allowable under the same
proportionate share conditions that apply under the match provision at
Sec. 688.530, but only with prior grant officer approval. Costs
related to construction and/or rehabilitation associated with the
training of participants are allowed; however, costs associated with
the acquisition of land are not.
Section 688.560 What participant costs are allowable under the
YouthBuild program?
This proposed section permits payments to participants for work-
related and non-work-related YouthBuild activities, supportive
services, needs-based payments, and additional benefits as allowable
participant costs.
Section 688.570 Does the Department allow incentive payments in the
YouthBuild program?
This proposed section allows incentive payments to youth
participants for recognition and achievement directly tied to training
activities and work experiences. Grantees must outline in writing how
they will use incentive payments. Proposed paragraphs (a) and (b)
require that incentive payments be provided in accordance with the
organization's general policies governing incentives and be related to
the goals of the specific YouthBuild program. All incentive payments
must be provided in accordance with the requirements in 2 CFR 200.
Section 688.580 What effect do payments to YouthBuild participants have
on eligibility for other Federal needs-based benefits?
This proposed section explains the effect that payments to
YouthBuild participants have on eligibility for other Federal needs
based benefits. Under WIOA regulations at 20 CFR 683.275(c),
allowances, earnings, and payments to individuals participating in
programs under title I of WIOA are not considered as income for
purposes of determining eligibility for and the amount of income
transfer and in-kind aid furnished under any Federal or Federally-
assisted program based on need other than as provided under the SSA (42
U.S.C. 301).
This proposed section retains the same requirements found at 20 CFR
672.535.
Section 688.590 What program income requirements apply to the
YouthBuild program?
This proposed section provides that the program income provisions
of the Uniform Administrative Requirements at 2 CFR parts 200 and 2900
apply to the YouthBuild program. This section specifies that the
revenue from the sale or rental of buildings rehabilitated or
constructed under the YouthBuild program to homeless individuals and
families or low-income families, as specified in Sec. 688.730, is not
considered program income. The Department encourages grantees to use
such revenue for the long-term sustainability of the YouthBuild effort.
This proposed section retains the same requirements found at 20 CFR
672.540.
Section 688.600 Are YouthBuild programs subject to the Davis-Bacon Act
labor standards?
This proposed section requires that when a YouthBuild participant
works
[[Page 20798]]
on a project subject to Davis-Bacon labor standards, the Davis-Bacon
labor standards, including prevailing wage requirements, apply to the
hours worked on the site of the work.
The regulations implementing the Davis-Bacon Act contain a
provision that allows for Department-certified training programs to pay
less than the applicable prevailing wage rate to trainees when work is
being performed on Federally-funded projects. As stipulated by 29 CFR
5.5(a)(4)(ii), ``trainees'' are not permitted to be paid less than the
predetermined rate for the work performed unless they are employed
under an individual registered in a program which has received prior
approval, evidenced by a formal certification by DOL. However,
YouthBuild program participants are not considered ``trainees'' and
therefore must be paid the prevailing wage rate when they are
performing work on Federally-funded projects.
This proposed section retains the same requirements found at 20 CFR
672.545.
Section 688.610 What are the recordkeeping requirements for YouthBuild
programs?
This section sets forth that grantees must follow the recordkeeping
requirements specified in the Uniform Administrative Requirements at 2
CFR parts 200 and 2900, and any additional requirements included in
subsequently issued guidance or the grantee's grant agreement. This
proposed section retains the same requirements found at 20 CFR 672.550.
7. Subpart F--Additional Requirements
Section 688.700 What are the safety requirements for the YouthBuild
program?
This proposed section requires YouthBuild grantees to comply with
20 CFR 683.280, which applies Federal and State health and safety
standards to the working conditions under WIOA-funded projects safety
requirements for YouthBuild programs, and the relevant child labor laws
at 29 CFR part 570, governing the employment of children in hazardous
occupations under the Fair Labor Standards Act. This proposed section
is meant to protect the health and safety of YouthBuild participants on
YouthBuild work sites, and to ensure that YouthBuild grantees comply
with relevant child labor laws.
Section 688.710 What are the reporting requirements for youth safety?
This proposed section requires YouthBuild grantees to comply with
the OSHA reporting requirements in 29 CFR part 1904 if a participant
suffers a reportable injury while participating in the YouthBuild
program. This proposed section retains the same requirements found at
20 CFR 672.605.
Section 688.720 What environmental protection laws apply to the
YouthBuild program?
This proposed section requires grantees to comply with all
environmental protection statutes and regulations, if applicable. This
proposed section retains the same requirements found at 20 CFR 672.610.
Section 688.730 What requirements apply to YouthBuild housing?
In order to effectively ensure that one of the primary purposes of
the YouthBuild program--to increase the stock of housing for homeless
and low-income individuals and families--is met, this proposed section
provides additional requirements, including a series of restrictions on
the sale and use of units of housing built or renovated by a YouthBuild
grantee.
This proposed section also requires a YouthBuild grantee to ensure
that the owner of the property records a restrictive covenant on the
property. The covenant must include the use restrictions in this
section and must be for a term of 5 years. The Department requires the
recordation of a restrictive covenant to ensure that YouthBuild funds
are spent on projects that will benefit the intended beneficiaries of
the program beyond the life of the grant.
Under the WIA regulations, grantees were required to ensure that
the restrictive covenant was for a 10-year term. However, grantees have
identified the 10-year restrictive covenant as a barrier to recruiting
and maintaining construction partners. The current requirement of a 10-
year covenant strictly binds partner organizations that may serve low-
income populations but also desire flexibility regarding to whom they
may sell the property in the future.
The term of the covenant was shortened in this proposed section in
order to accommodate the difficulties faced by grantees while also
ensuring that the purpose of the program continues to be met. Reducing
the covenant period supports grantees in securing worksites where
community-based housing partners and private property owners are
reluctant to agree to a 10-year covenant requirement. At the same time,
a 5-year term ensures that housing built or renovated using YouthBuild
funding remains available solely for the use of low-income and/or
homeless individuals and families for a period beyond the grantee's 3-
year period of performance. The Department specifically requests
comments on the restrictive covenant requirement and our proposal to
shorten the length of the covenant.
M. Part 651--General Provisions Governing the Federal-State Employment
Service System
1. Introduction
In this proposed rule, the Department proposes to revise the ES
regulations that implement the Wagner-Peyser Act of 1933. These include
the provision of ESs to all job seekers with a particular emphasis on
MSFWs. The proposed rule will update the language and content of the
regulations to, among other things, implement amendments made by title
III of WIOA to the Wagner-Peyser Act. In some areas, these regulations
establish entirely new responsibilities and procedures; in other areas,
the regulations clarify and update requirements already established.
The regulations make important changes to the following components of
the ES system: definitions, data submission, and ETA standards for
agricultural housing, among others.
2. Background
The Wagner-Peyser Act (Wagner-Peyser) of 1933 provided the
Department the authority to establish a national ES system. The ES
system provides labor exchange services to its participants and has
undergone numerous changes to align its activities with broader
national workforce development policies and statutory requirements.
WIOA expands upon the previous workforce reforms in the WIA and, among
other provisions, identifies the ES system as a core program in the
one-stop system, embeds ES State planning requirements into a combined
planning approach, and increases requirements for the colocation of ES
offices into the one-stop centers.
In 1974, the case National Association for the Advancement of
Colored People (NAACP), Western Region, et al. v. Brennan et al, No.
2010-72, 1974 WL 229 (D.D.C. Aug. 13, 1974) resulted in a detailed
court order mandating various Federal and State actions (referred to as
the Judge Richey Court Order (Richey Order) in the remainder of this
preamble). The Richey Order required the Department to implement and
maintain a Federal and State monitoring and advocacy system and set
forth requirements to ensure the delivery of ES services, benefits, and
protections to MSFWs on a non-discriminatory basis, and to provide such
services in a manner that is
[[Page 20799]]
qualitatively equivalent and quantitatively proportionate to those
provided to non-farmworkers. In 1980, the Department published
regulations at 20 CFR parts 651, 653, and 658 to implement the
requirements of the Richey Order. Part 653 sets forth standards and
procedures for providing services to MSFWs and provides regulations
governing the Agricultural Recruitment System (ARS), a system for
interstate and intrastate agricultural job recruitment. Part 658 sets
forth standards and procedures for the administrative handling of
complaints alleging violations of ES regulations and of employment-
related laws, the discontinuation of services to employers by the ES
system, the review and assessment of State agency compliance with ES
regulations, and the Federal application of remedial action to State
agencies. Also in 1980, the Department separately published amended
regulations at 20 CFR part 654 providing agricultural housing standards
for MSFWs.
In 1983, the Department published the regulations at 20 CFR part
652 that set forth standards and procedures regarding the establishment
and functioning of State ES operations. Part 652 was amended in 1999
and 2000 to reflect provisions of WIA. The proposed rule aligns part
652 with the WIOA amendments to the ES program, and with the WIOA
reforms to the workforce system that affect the ES program.
3. Discussion of Proposed 20 CFR Part 651
20 CFR part 651 sets forth definitions for 20 CFR parts 652, 653,
654, and 658. The Department proposes to revise and update the
definitions by eliminating outdated or obsolete definitions and by
adding new definitions as needed. Throughout these parts it is
generally proposed that the term ``State MSFW monitor advocate'' be
replaced with the term ``State monitor advocate'' (SMA) because MSFW-
related responsibilities are inherent parts of the SMA position and
``State monitor advocate'' is the commonly used term for the position.
It also is proposed that the term ``local office'' be replaced with
``employment service office'' or ``one-stop center'' depending on the
context. The Department also proposes that the definitions for
farmwork, farmworker, and agricultural worker be streamlined through
reference to the same base line definition--farmwork. Also, the
definition of farmwork is proposed to be revised by drawing language
from definitions used in other Department regulations and eliminating
references to the North American Industry Classification System
(NAICS). Additionally, it is proposed that the definitions found at 20
CFR 652.1 be moved to 20 CFR 651.10 because it is the intention of part
651 to include Wagner-Peyser ES program definitions. It is proposed
that the following definitions be added as they are provided in sec. 2
of the Wagner-Peyser Act, as amended by sec. 302 of WIOA, and pertain
to the scope of definitions covered by Sec. 651.10: Local Workforce
Development Board, one-stop center, one-stop delivery system, one-stop
partner, training services, and workforce development activity. All of
these adhere strictly to WIOA and Wagner-Peyser definitions. The
Department notes that the WIOA amendments to the Wagner-Peyser Act also
add the definitions of CEO, institutions of higher education, and
workplace learning advisor, but these definitions are not proposed to
be added to the regulatory text of Sec. 651.10 because the terms are
not used in parts 652, 653, 654, or 658. Finally, sec. 134 of WIOA
merges the categories of core services and intensive services under WIA
into career services. Since WIOA includes responsibilities for the
Wagner-Peyser ES in the provision of career services, a definition for
career services has been proposed to be added.
The definition of act is proposed to be added to Sec. 651.10,
moved from 20 CFR 652.1.
The definition of agricultural worker is proposed to be eliminated
because the term is synonymous with the definition of farmworker
described in this section. The proposed regulatory text directs the
reader to the definition of farmworker.
The definition of applicant is proposed to be eliminated because
the Department proposes to replace the term with participant as defined
in this section. This change is proposed to align with the language in
WIOA and conform to reporting requirements which include all MSFWs who
apply for and/or receive Wagner-Peyser Act services.
The definitions for Applicant Holding Office, Applicant Holding
State, and Order Holding Office are proposed to be added because the
terms are used throughout 20 CFR part 658 and adding the definitions
clarifies the process for stakeholders. The proposed language in each
definition derives from the purpose and scope defined in Sec. 653.500.
The inclusion of ``U.S. workers'' in these definitions helps to clarify
that ARS is intended for the recruitment of U.S.-based workers only.
The definition of application card is proposed to be deleted as the
document is generally no longer used as part of Wagner-Peyser Act
services. ES offices have moved from a paper-based system to an online
system and participants register for services in a variety of ways
electronically.
The definition of career services is proposed to be added, as
discussed above.
A definition of clearance order is proposed to be added to
distinguish it from a job order.
The definition of clearance is proposed to be revised to clearance
system and reflect secs. 3 and 7 of the Wagner-Peyser Act, as well as
20 CFR 652.3, which describes the basic labor exchange system as ``a
system for clearing labor between States.'' The updated language
clarifies that this clearance system moves job seekers through an ES
office or more than one such office, depending on the needs of the
individual and the available job or jobs.
A revised definition of complaint is proposed to align with
language in sec. 2 of the Wagner-Peyser Act, as amended by WIOA sec.
302, to refer to ``employment service'' offices rather than ``job
service'' (JS) offices. The revised definition specifies that
complaints are representations or referrals of alleged violations of ES
regulations, Federal laws enforced by the Department's WHD or OSHA, or
State or local employment-related laws. The Department proposes to add
language in the definition clarifying that the complaints filed are
alleging a violation occurred, rather than confirming that a complaint
represents an actual violation--which may be determined after the
complaint is under investigation pursuant to 658 subpart F.
The definition of day haul is proposed to be deleted as the term is
no longer relevant with the proposed deletion of 20 CFR 653.105 and
653.106.
A revised definition of Employment and Training Administration
(ETA) is proposed to conform to the description of ETA that is
currently used.
A definition of employment-related laws is proposed to be added to
conform to the proposed complaint procedures in 20 CFR part 658.
A definition of the term Employment Service (ES) is proposed to
replace the definition for the term Job Service (JS) in order to
conform to the terminology used in the Wagner-Peyser Act as amended by
WIOA. For this reason, throughout these proposed regulations, the term
Employment Service (ES) replaces the term JS.
A definition of Employment Service regulations (ES regulations) is
proposed to replace the definition of JS regulations. The purpose of
this change
[[Page 20800]]
is to conform to language in the Wagner-Peyser Act, as amended by WIOA,
and to include only relevant regulations. The proposed definition now
includes Federal regulations at 20 CFR parts 651, 652, 653, 654, and
658 and at 29 CFR part 75, and removes references to 20 CFR parts 620
and 621 because they are reserved, the reference to 29 CFR part 8
because Employment Service is not referenced in that part, and 29 CFR
part 26 because it does not exist.
The proposed definition of farmwork will eliminate references to
NAICS codes and include language aligning it with pertinent definitions
in other Department regulations at 29 CFR 500.20 and 20 CFR 655.103(c).
Drawing language from those definitions clarifies what is covered by
the term farmwork and slightly expands the term to include certain
occupations and activities covered by the Department's Office of
Foreign Labor Certification (OFLC) and/or WHD. It is also proposed that
the revised definition of farmwork fold in food ``processing'' work to
align Sec. 651.10 with OFLC regulations at 20 CFR 655.103(c)(1) which
include food processing worker in the definition for agricultural labor
or services. Including food processing work in the revised definition
expands the scope of those who would be considered farmworkers. It also
allows the Department to streamline the regulations by eliminating the
separate definition of migrant food processing worker without reducing
ES coverage or protections of such workers. The addition of food
processing work to the revised definition of farmwork also expands the
capability of Wagner-Peyser staff to provide services to more MSFWs.
The Department will provide guidance to clarify what is considered food
``processing.'' Fish farming is added to conform to sec. 167 of WIOA.
The reference to ``. . . the cultivation and tillage of the soil,
dairying, the production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities'' and ``[t]his includes the
raising of livestock, bees, fur-bearing animals, or poultry, the
farming of fish, and any practices (including any forestry or lumbering
operations) performed by a farmer or on a farm as an incident to or in
conjunction with such farming operations, including preparation for
market, delivery to storage or to market or to carriers for
transportation to market'' is adapted from 20 CFR 655.103(c)(2) which
references 29 U.S.C. 203(f), as amended (sec. 3(f) of the FLSA, as
codified). The language ``the handling, planting, drying, packing,
packaging, processing, freezing, or grading prior to delivery for
storage of any agricultural or horticultural commodity in its
unmanufactured state,'' is adapted from 20 CFR 655.103 which references
sec. 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)).
The language ``agricultural commodities means all commodities produced
on a farm including, but not limited to, crude gum (oleoresin) from a
living tree, and the following products as processed by the original
producer of the crude gum (oleoresin) from which derived: gum spirits
of turpentine and gum rosin'' is taken from OFLC 20 CFR 655.103 and
aligns with WHD 29 CFR 500.20. Under the proposed definition, the
activities and services currently included by reference to NAICS codes
111, 112, 115 will still be included whether explicit in the definition
or through Department guidance, and those activities and services
currently excluded by reference to NAICS codes 1152 and 1153 will still
be excluded, excepting the proposed addition of fish farming. The NAICS
reference to code 1125 will be covered through Department guidance as
it relates to fish farming.
The Department anticipates the following impact of expanding the
definition of farmworker and aligning it with the WHD and OFLC
definitions: (1) State agency employees will more easily distinguish
MSFWs for reporting purposes; (2) the proposed definition will also
align with that of the proposed updated definition under 20 CFR part
685 for the NFJP; (3) more farmworkers will be served as such under
Wagner-Peyser because fewer people would be excluded under the expanded
definition; (4) the Department will maintain consistency with the
intent of the Richey Order to update data gathering systems to
accurately reflect services delivered; and (5) the Department's data
reporting will improve because under the different regulations, the
Department's agencies will utilize basically the same definition for
farmworker and therefore will accurately reflect the number of MSFWs
identified across all programs. At the end of the proposed definition,
the Department proposes to add a sentence to include any service or
activity covered under 20 CFR 655.103(c) (definition of agricultural
labor or services) and/or under 29 CFR 500.20(e) (agricultural
employment) and/or through official published Department guidance, such
as a TEGL, to allow for other current or future types of farmwork to be
included.
A revised definition of farmworker is proposed to conform to the
proposed definition of farmwork in this section.
A definition of field checks is proposed to be added to Sec.
651.10 because the term is referenced in 20 CFR 653.503 but was
previously undefined. Adding the definition clarifies the meaning for
those who conduct or receive field checks.
A definition of field visits is proposed to be added to Sec.
651.10 because the term is referenced in 20 CFR 653.108 but was
previously undefined. Adding the definition clarifies the meaning for
those who conduct or receive field visits.
The definition of full application is proposed to be deleted
because State Workforce Agencies (SWAs) generally do not utilize the
full or partial application process. Instead, participants submit
resumes or other information to register in the SWA network.
The definition of Governor is proposed to be added to Sec. 651.10,
moved from 20 CFR 652.1. Additionally, the Department proposes to add
reference to the outlying areas in the definition to be clear that
their chief executives are included when this part references a
Governor.
The definition of identification card is proposed to be deleted as
the document is no longer utilized as part of Wagner-Peyser services.
SWAs have moved from paper-based to electronic-based systems and
participants often log in using whatever information is required for
that particular system.
A definition of interstate job order is proposed to be added to
Sec. 651.10 because it is referenced in the ES regulations but was
previously undefined. Adding the definition clarifies the difference
between interstate and intrastate job orders.
A revised definition of intrastate clearance order is proposed to
conform to the ``employment service'' terminology used in the Wagner-
Peyser Act as amended by WIOA. Interstate or intrastate clearance order
means an agricultural job order for temporary employment describing one
or more hard-to-fill job openings, which an ES office uses to request
recruitment assistance from other ES offices.
The definition of job bank is proposed to be deleted because the
system, as it was previously defined, no longer exists. Now, most job
openings are posted on internet-based systems.
The definition of job development is proposed to be slightly
revised to refer to an ``employment service office'' rather than a
``local office.''
The definition of Job Information Service (JIS) is proposed to be
deleted as resource centers replace JIS areas inside one-stop centers.
[[Page 20801]]
In the definition of job opening, it is proposed that the term
applicants be replaced with the term participants to be consistent with
the replacement term applicant in this section.
A definition of job order is proposed to be added to clarify the
difference between a job order and a clearance order. The language for
this definition is derived from 20 CFR 655.5.
The definition of job referral is proposed to be revised to include
``or for a potential job'' because the current definition is limited to
the availability of a specific job and this revision opens job
referrals to include situations that are responding to the possibility
of employment.
A revised definition of labor market area is proposed to be revised
to conform to the definition in sec. 3 of WIOA.
The definition of Local Office Manager is proposed to be revised to
conform to the ``employment service'' terminology used in the Wagner-
Peyser Act as amended by WIOA.
The definition of Local Workforce Development Board is proposed to
be added to conform with sec. 2 of the Wagner-Peyser Act, as amended by
WIOA.
The definition of migrant farmworker is proposed to be revised to
conform to the updated definition of farmworker.
The definition of migrant food processing worker is proposed to be
synonymous with the proposed definition of migrant farmworker.
Within the definition of MSFW it is proposed that ``migrant food
processing worker'' be deleted to conform to the above proposed
definition of migrant food processing worker. No reduction in coverage
is intended by this change.
The definitions of one-stop center, one-stop delivery system, and
one-stop partner are proposed to be added to Sec. 651.10 to conform
with sec. 2 of the Wagner-Peyser Act, as amended by WIOA.
The definition of O*NET-SOC is proposed to be revised to clarify
that O*NET SOC codes are based on, but more detailed than, Standard
Occupation Codes used across Federal statistical agencies.
The definition of Order Holding Office is proposed to be added for
reasons explained above.
The definition of onsite review is proposed to be added because
these reviews are mandated under the Richey Order and are found
throughout the regulations at 20 CFR parts 653 and 658. The language
for the proposed definition is taken from 20 CFR 653.108(g).
It is proposed that the definition of outreach contact be added to
Sec. 651.10 for clarification. The language for the definition is
taken from Sec. 653.107.
The definition of partial application is proposed to be deleted
because it is generally no longer used by ES offices or SWAs. Instead,
participants submit resumes or other information to register in the SWA
network.
The definition of participant is proposed to be added to replace
the definition of applicant, as discussed above. This definition only
applies to the Wagner-Peyser regulations at parts 651, 652, 653, and
658. Proposed Sec. 677.150(a) includes a separate, narrower definition
of ``participant'' for purposes of performance accountability under
sec. 116 of WIOA and 20 CFR part 677. Therefore, an individual who is
considered a participant for the purpose of these Wagner-Peryser
regulations would not necessarily be considered a participant for
performance accountability purposes.
The definition of Program Budget Plan (PBP) is proposed to be
deleted because the PBP is obsolete and the amendment to sec. 8 of
Wagner-Peyser now calls for States to submit Unified or Combined State
Plans.
The definition of RA is proposed to be deleted because the
definition for Regional Administrator with the appropriate acronym is
already described in this section.
The definition for rural area is proposed to be eliminated because
the term is not used at 20 CFR parts 652, 653, 654, or 658 and is
therefore not necessary to define in this section.
The definition of seasonal farmworker is proposed to be revised to
mean an individual who, over the past 12 months, has been employed in
farmwork of a seasonal or other temporary nature. This proposed
definition seeks to simplify and clarify the meaning of seasonal
farmworker, and conform to the definitions used by the Department's WHD
for seasonal agricultural workers under 29 CFR part 500, and the OFLC
under 20 CFR part 655. Additionally, the Department proposes to retain
the 12-month period originally used in the definition of seasonal
farmworker at 20 CFR 651.10 to minimize the time period that an
individual could assert that he/she is a seasonal farmworker. The
Department anticipates that this updated definition will more
accurately reflect the total number of seasonal farmworkers that
participate in the ES system. The Department also anticipates that ES
staff will more easily be able to identify seasonal farmworkers for
reporting purposes.
In the definitions of Significant MSFW Local Offices and
Significant Bilingual MSFW Local Offices, the references to ``local
offices'' are proposed to be replaced with ``one-stop centers'' because
the WIOA amendment to the Wagner-Peyser Act requires colocation of
Wagner-Peyser ESs in a one-stop center. Additionally, expanding the
scope of the term will help States determine not only at which one-stop
centers ESs must be sufficiently staffed to meet the needs of MSFWs,
but also will identify one-stop centers that need to consider the needs
of a significant number of MSFWs who do not speak English, in order to
meet the requirements for making services accessible, as described in
Sec. 678.800. This also helps the Department conform to the intent of
the Richey Order to serve MSFWs on a qualitatively equivalent and
quantitatively proportionate basis. The term bilingual is proposed to
be replaced with multilingual in the latter title to conform to the
current trend of MSFWs speaking additional languages other than English
and/or Spanish. Also, the references to ``applicants'' are proposed to
be replaced with ``participants,'' to conform to the proposed changes
in these definitions.
The definition of Significant MSFW States remains unchanged;
however, the reference to the Department organizational unit ETA has
been replaced with the Department to be consistent with other
references throughout the section.
The definition of State Administrator is proposed to be revised to
change ``State Employment Security Agency'' to ``State Workforce
Agency'' to reflect language used in WIOA title I.
The definition of State Workforce Agency (SWA) is proposed to be
revised to conform to sec. 2 of the Wagner-Peyser Act, as amended by
title III of WIOA. The language ``formerly State Employment Security
Agency or SESA'' is proposed to be deleted because the SESA terminology
is outdated and no longer needs reference.
The definition of State Workforce Development Board (State Board)
is proposed to be added to Sec. 651.10, moved from 20 CFR 652.1 and
updated from the former text, which defined State Workforce Investment
Board.
The definition of Supply State(s) is proposed to be added to
clarify its meaning under the ARS.
The definition of supportive services is proposed to be revised to
conform to the definition for ``supportive services'' in sec. 3 of WIOA
and to make clear that supportive services are also available to
[[Page 20802]]
individuals participating in activities funded by the Wagner-Peyser
Act.
The definition of tests is proposed to be deleted because the
Department does not offer tests to ES participants.
The definition of training services is proposed to replace the
definition of training, and the proposed definition references the
services provided under WIOA sec. 134(c)(3).
The definition of transaction is proposed to be deleted because the
term is not used in the relevant sections under this chapter.
A definition of unemployment insurance claimant is proposed to be
added in this section to conform to the emphasis on serving this
population in the WIOA amendments to secs. 7(a)(1) and (3) of the
Wagner-Peyser Act.
The definition of vocational plan is proposed to be deleted because
the Wagner-Peyser Act does not require the establishment of such plans
for job seekers in the ES system.
The definition of WIOA is proposed to be added to Sec. 651.10,
moved from 20 CFR 652.1 and updated. Section 652.1 defines WIA.
The definitions of Workforce and Labor Market Information (WLMI)
and Workforce Labor Market Information System (WLMIS) are proposed to
conform to the provisions in sec. 308 of the Wagner-Peyser Act.
The definition for working days is proposed to be added to 20 CFR
651 because it is originally located in 20 CFR 653.501 and fits more
appropriately under part 651.
A definition of work test is proposed to be added in this section
to ensure that individuals who are eligible for UI benefits meet
continued eligibility requirements with respect to work search. The
Wagner-Peyser Act's requirements for administering the work test are
further discussed in 20 CFR 652.210.
N. Part 652--Establishment and Functioning of State Employment Services
Section 1. Introduction
The Wagner-Peyser Act of 1933 established the one Act ES, which is
a nationwide system of public employment offices amended in 1998 to
make ES part of the one-stop delivery system established under WIA. ES
seeks to improve the functioning of the nation's labor markets by
bringing together individuals seeking employment with employers seeking
workers.
The amended Wagner-Peyser Act furthers longstanding goals of closer
collaboration with other employment and training programs by mandating
colocation of ES offices with one-stop centers; aligning service
delivery in the one-stop delivery system; and ensuring alignment of
State planning and performance measures in the one-stop delivery
system. Other new provisions are consistent with long-term Departmental
policies, including increased emphasis on reemployment services for UI
claimants (sec. 7(a)); promoting robust WLMI; the development of
national electronic tools for jobseekers and businesses (sec. 3(e));
dissemination of information on best practices (sec. 3(c)(2)); and
professional development for ES staff (secs. 3(c)(4) and 7(b)(3)).
2. Subpart A--Employment Service Operations
This subpart includes an explanation of the scope and purpose of
the ES system, the rules governing allotments and grant agreements,
authorized services, administrative provisions, and rules governing
labor disputes. The proposed rule makes few changes in subpart A.
Section 652.1 Introduction
This section introduces the Wagner-Peyser Act regulations, as
amended by WIOA. Therefore, the Department proposes to delete paragraph
(b) of Sec. 652.1 and change the title of the section from
``Introduction and definitions'' to ``Introduction.''
Section 652.2 Scope and Purpose of the Employment Service System
The Department proposes no changes in this section, which briefly
describes the public labor exchange system.
Section 652.3 Public Labor Exchange Services System
This section explains the minimum services that must be offered by
the public labor exchange system. The Department proposes adding
paragraph (f) to align the title to the changes in WIOA and cite to
sec. 134(c)(2)(A)(iv) of WIOA.
The Department proposes to align the Wagner-Peyser definitions of
labor exchange services with those described under WIOA. The Department
is seeking public comments on any issues or challenges in aligning
labor exchange services described under WIOA with the labor exchange
services provided by the ES.
Finally, the Department proposes to add to Sec. 652.3(a) a clause
to implement the emphasis the Act, as amended, places on national
electronic tools (WIOA sec. 303(c), amending sec. 3(e) of Wagner-
Peyser). The proposed clause, which would clarify that each State's
obligation to assist jobseekers includes promoting their familiarity
with the Department's electronic tools, is designed to improve customer
access to labor exchange and workforce information.
The statutory provision recognizes the Department's longstanding
efforts in this area. Since the 1990s, the Department has greatly
expanded its national electronic tools to enhance short-term labor
exchanges and support longer-term career aspirations for multiple
audiences: Jobseekers; employers; students; employment and training
staff; educators and guidance counselors; Federal, State and local
policy-makers and planners; CBOs; librarians; and other individuals and
entities that assist with the job search and career needs of Americans.
The Department offers electronic tools through such Web portals as
CareerOneStop (www.careeronestop.org); O*NET OnLine
(www.onetonline.org) and O*NET's My Next Move (www.mynextmove.org); and
the WLMI provided through the BLS (www.bls.gov) and the U.S. ETA's
Labor Market Information Community of Practice (https://winwin.workforce3one.org/page/home).
Section 652.4 Allotment of Funds and Grant Agreement
The Department proposes no changes in this section, which ensures
that allotment information is publicly available with sufficient notice
to allow public comment and to resolve complaints, and that grant
agreements with the States meet all applicable statutes and
regulations.
Section 652.5 Services Authorized
The Department proposes only minor changes conforming to WIOA in
this section, State expenditures. Specifically, the proposed
regulations substitutes ``funds'' with ``sums'' and substitutes ``basic
labor exchange elements'' with ``minimum labor exchange elements.''
Both changes were made to align with the Act as amended.
Section 652.8 Administrative Provisions
This section covers administrative matters, including financial and
program management information systems, recordkeeping and retention of
records, required reports, monitoring and audits, costs, disclosure of
information, and sanctions. The Department proposes to eliminate
paragraph (d)(6) of this section which addressed amortization payments
to
[[Page 20803]]
States which had independent retirement plans in their State ES
agencies prior to 1980. This paragraph is no longer applicable to any
State and no State may revert back to a retirement system where these
provisions apply. The Department is also proposing to change the record
retention requirements for work applications and job orders from 1 year
to 3 years in order to align with other Wagner-Peyser record retention
requirements. Finally, the Department proposes to amend paragraph (f)
to require that financial audits be conducted under the same
requirements that apply to audits under WIOA at 20 CFR 683.210.
Section 652.9 Labor Disputes.
This section is designed to preserve the neutrality of the ES in
the event of a labor dispute, such as a strike. The Department proposes
no changes in this section, as WIOA made no amendments to the Wagner-
Peyser Act relevant to this section.
3. Subpart B--Services for Veterans
This subpart merely refers the reader to the relevant regulatory
section governing services to veterans.
Section 652.100 Services for Veterans
The Department proposes to amend this section to clarify that
veterans receive priority of service for all Department-funded
employment and training programs, as described in 20 CFR part 1010. The
proposed amendment also clarifies that the Department's Veterans'
Employment and Training Service (VETS) administers the Jobs for
Veterans State Grants (JVSG) program and other activities and training
programs which provide services to specific populations of eligible
veterans.
4. Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
This subpart discusses State agency roles and responsibilities,
rules governing ES offices, the relationship between the ES and the
one-stop system, required and allowable Wagner-Peyser services,
universal service access requirements, provision of services and work
test requirements for UI claimants, State planning, and State merit
staffing requirements.
WIOA ensures the ES's key role in the one-stop delivery system by
making it one of the core workforce programs. The ES must be a part of
the State planning process, collocated with the one-stop delivery
system, and must align its service delivery and performance measures
with the rest of the one-stop system. This subpart addresses how the ES
is to fulfill its mission of providing labor exchange services to job
seekers and businesses in the one-stop delivery system.
Section 652.200 What is the Purpose of This Subpart?
The general purpose of this subpart is to provide guidance for
implementing Wagner-Peyser services within the one-stop delivery
system.
Section 652.201 What is the role of the State agency in the one-stop
delivery system?
This section emphasizes the leadership role played by the State in
the one-stop system, including the delivery of Wagner-Peyser services.
The Department proposes changing ``Workforce Investment Board'' to
``Workforce Development Board,'' to be consistent with WIOA's
terminology.
Section 652.202 May local Employment Service Offices exist outside of
the one-stop service delivery system?
The Department is proposing to delete paragraph (b) of this section
to align with WIOA's approach to colocation of services and prohibition
against stand-alone employment service offices. Additionally, the
Department proposes to change the text of what was paragraph (a) to
provide a clear statement that ES offices must be collocated in one-
stop centers, as required by WIOA. WIA strongly encouraged the
colocation of ES and one-stop offices, but allowed some stand-alone ES
offices under limited circumstances. Section 303(d) of WIOA modified
sec. 3(d) of Wagner-Peyser to eliminate these exceptions and made
colocation mandatory. Therefore, stand-alone ES offices are no longer
permissible, as explained in Sec. Sec. 678.310-678.315.
Colocation is intended to achieve several purposes: improved
service delivery and coordination, less duplication of services, and
greater access to services in underserved areas.
Section 652.203 Who is responsible for funds authorized under the Act
in the workforce investment system?
The Department proposes no changes in this regulation, which
stipulates that the State agency is responsible for all Wagner-Peyser
funds.
Section 652.204 Must funds authorized under the Act (the Governor's
reserve) flow through the one-stop delivery system?
This section clarifies that the Governor's reserve funds may or may
not be delivered through the one-stop system. The Department proposes
to identify the services in sec. 7(b) of the Act that these funds must
be used to provide. WIOA does not change these services; however, it is
helpful to list the services in this section. As required by sec. 7(b)
of the Act, the services are: performance incentives, supporting
exemplary models of service delivery, and services for groups with
special needs.
Section 652.205 May funds authorized under the Act be used to
supplement funding for labor exchange programs authorized under
separate legislation?
The Department proposes only minor nomenclature changes in this
section, which explains under what conditions funds under secs. 7(a) or
7(b) of Wagner-Peyser may be used to provide additional funds to other
programs.
Section 652.206 May a State use funds authorized under the Act to
provide applicable ``career services,'' as defined in the Workforce
Innovation and Opportunity Act?
The Department is proposing in this section to align Wagner-Peyser
service delivery with the service delivery changes in WIOA. Under WIA,
non-training services were generally identified as either ``core'' or
``intensive'' services. WIOA has removed the terms ``core'' and
``intensive'' and these services are now called ``career services.''
The primary goal of the change to ``career services'' was to eliminate
any sequencing of service requirements and to ensure participants had a
broad array of services available to them based on a participant's
employment needs.
Proposed Sec. 678.430 organizes the WIOA career services into
three categories: (1) Career services that must be made available to
all participants; (2) career services that must be made available if
deemed appropriate and needed for an individual to obtain or retain
employment; and (3) follow-up activities. The proposed regulation
respectively designates these categories as basic career services
(Sec. 678.430(a)), individualized career services (Sec. 678.430(b)),
and follow-up services (Sec. 678.430(c)).
Labor exchange services, which are the primary services provided by
the ES, fall under the ``basic career services''
[[Page 20804]]
identified in proposed Sec. 678.430(a) and listed in sec. 134(c)(2)(A)
of WIOA. This section is designed to provide that Wagner-Peyser staff
must use funds authorized by sec. 7(a) of the Act to provide the basic
career services.
Individualized career services are identified in proposed Sec.
678.430(b) and listed in sec. 134(c)(2)(A)(xii) of WIOA. These services
involve more dedicated staff time to provide. These services are
similar to intensive services and they may be provided as appropriate.
The primary services the ES provides are labor exchange services, which
are identified by the Department as basic career services. The
Department proposes that the ES staff may also provide individualized
career services, paid for from funds authorized under sec. 7(a) of the
Act, in a manner consistent with the requirements of the Wagner-Peyser
Act. Additionally, the Department wishes to clarify that the funds can
be used to provide any of the individualized services defined in
proposed Sec. 678.430(b) and sec. 134(c)(2)(A)(xii) of WIOA; there is
no limit that the funds can only be used for particular individualized
services. However, these Wagner-Peyser funds may not be used to provide
training services.
The Department is seeking comments on how services provided by the
ES can be more aligned with other services in the one-stop delivery
system and ensure participants can receive seamless services from the
ES to other programs under WIOA.
Section 652.207 How does a State meet the requirement for universal
access to services provided under the Act?
This section provides States discretion in meeting universal access
to service requirements, and explains the requirements, including how
those services must be delivered. The section specifies that labor
exchange services may be provided through self-service, facilitated
self-help service, and staff-assisted services. The Department is
proposing to include ``virtual services'' as a type of self-service.
The Department recognizes the valuable virtual and online services that
States provide through the ES, and seeks to include these services as
self-services.
The Department also proposes changes in this section to tie it to
the mandatory services described in Sec. 652.206. The revised
provision would replace the reference to core and intensive services
with reference to career services made mandatory by an amended Sec.
652.206.
Section 652.208 How are applicable career services related to the
methods of service delivery described in this part?
This section explains how career services may be delivered to meet
the requirements for access described in proposed Sec. 652.207(b)(2).
The Department proposes to include ``virtual services'' as a type of
self-service provided by the ES, recognizing these important services
provided by States. The Department is also proposing to replace the
reference to ``core services and intensive services'' with a reference
to ``career services'' per WIOA.
Section 652.209 What are the requirements under the Act for providing
reemployment services and other activities to referred unemployment
insurance claimants?
The Wagner-Peyser Act authorizes funding for States to deliver a
wide array of labor exchange services to jobseekers. This regulation
clarifies the required and allowable Wagner-Peyser services to UI
claimants, as a subset of the broader ES beneficiary population.
WIOA added language to sec. 7(a) of the Wagner-Peyser Act
reemphasizing the use of funds to support reemployment and related
services to UI claimants. These changes strengthen the connectivity
between the ES and the UI systems, and broaden opportunities for these
systems to help UI claimants return to employment as quickly as
possible. Coordination of labor exchange services and UI claimant
services is essential to ensure an integrated approach to reemployment
strategies. Wagner-Peyser funds may also be used to administer the work
test for the State unemployment system for UI eligibility assessments.
Additionally, the ES may provide UI claimants with referrals to, and
application assistance for, education and training resources and
programs as appropriate. Such resources include those provided through
the Higher Education Act and State-specific educational assistance
programs, veterans' educational assistance programs, WIOA education and
training programs, and VR services.
The Department proposes two types of changes in Sec. 652.209: one
to clearly require services to UI claimants, and the other to implement
new statutory provisions. The proposed text deletes the existing Sec.
652.209(a) language that services must be provided ``to the extent
funding is available,'' because it is implied and the Department
encourages reemployment assistance to UI claimants.
The proposed text includes in Sec. 652.209(b)(2) a reference to
``conducting eligibility assessments'' to conform with sec. 7(a)(3)(F)
of the Wagner-Peyser Act, as amended by WIOA, and includes a
requirement that where applicable, UI claimants must be registered for
ESs in accordance with the UC law of the State with which they file
their claim. The States may use Wagner-Peyser funds to pay for
eligibility assessments, which is a required activity that must be made
available when appropriate.
Additionally, in Sec. 652.209(b)(3) the Department proposes to
require that States provide referrals and application assistance to UI
claimants, consistent with the new statutory language in sec.
7(a)(3)(G) of the Wagner-Peyser Act and includes a reference to the
Post-9/11 GI Bill which staff may also refer participants to as well as
other veterans educational assistance.
Section 652.210 What are the Act's requirements for administration of
the work test, including eligibility assessments, as appropriate, and
assistance to unemployment insurance claimants?
This section clarifies the requirement for administration of the
work test to UI claimants. The proposed changes provide more
specificity about required services.
The Department proposes to include a reference to ``conducting
eligibility assessments'' to conform with sec. 7(a)(3)(F) of the
Wagner-Peyser Act. The States may use Wagner-Peyser funds to pay for
eligibility assessments, which are a required reemployment activity
that must be made available when appropriate. Proposed new language was
also added to Sec. 652.210(b)(3) to ensure that ES staff provide
information about UI claimants' ability or availability for work, or
the suitability of work offered to them, to UI staff. Sharing such
information with UI staff will help accelerate claimants' return to
employment.
Section 652.211 What are State planning requirements under the Act?
The Department is proposing to remove the planning provisions of
this part of the regulation, including the text in Sec. Sec. 652.211
through 652.214, because the ES is a core program under WIOA and falls
under both the unified and combined planning requirements. This section
has been amended to simply provide a citation to the State planning
requirements under WIOA.
[[Page 20805]]
Section 652.215 Do any provisions in the Workforce Innovation and
Opportunity Act change the requirement that State merit staff employees
must deliver services provided under the Act?
This section stipulates that only State merit staff may provide
Wagner-Peyser services. The only change proposed in this section is to
change ``WIA'' to ``WIOA'' in the section question; the remainder of
the text has not changed from the existing regulation. The Department
has followed this policy since the earliest years of the ES, in order
to ensure minimum standards for the quality of the services provided. A
1998 U.S. District Court decision, Michigan v. Herman, 81 F. Supp. 2nd
840 (http://law.justia.com/cases/federal/district-courts/FSupp2/81/840/2420800/) upheld this policy. State merit staff employees are directly
accountable to State government entities, and the standards for their
performance and their determinations on the use of public funds require
that decisions be made in the best interest of the public and of the
population to be served. State merit staff meet objective professional
qualifications and provide impartial, transparent information and
services to all customers while complying with established government
standards.
Section 652.216 May the one-stop operator provide guidance to State
merit staff employees in accordance with the Act?
This section clarifies that ES staff may receive guidance from a
one-stop operator about the provision of labor exchange services, but
that all personnel matters remain under the authority of the State
agency. The only change proposed in this section is to add a reference
to proposed Sec. 678.500, which provides the requirements for the
local MOU. The Department seeks comment on whether any other changes
are needed to allow the one-stop operator to ensure the efficient and
effective operation of the one-stop center.
5. Subpart D--Workforce and Labor Market Information
Secretary of Labor's role concerning the Workforce and Labor Market
Information System (WLMIS). The Wagner-Peyser Act, as amended by and
integrated with WIOA, envisions a robust WLMIS that is a critical
underpinning for a wide array of workforce functions, including: (1)
Supporting State and regional planning of workforce strategies that
provide a pipeline of workers with in-demand skills and drive economic
growth and development; (2) delivery of quality labor market and career
information that enables workforce professionals to provide quality
career counseling; and (3) enabling the workforce system's customers to
make informed career and service delivery choices. New provisions in
Wagner-Peyser provide for a collaborative process, led by the Secretary
of Labor in partnership with Federal agencies, the newly created
Workforce Information Advisory Council (WIAC), and States, to develop
and implement a strategic plan that continuously improves the labor
market and workforce information available through the workforce
system. The Act describes certain key components of the WLMIS and
commits the Secretary of Labor to oversee and ensure the competent
management of the system.
Wage records are a critical data source for WLMIS. When combined
with data from other sources, wage records produce a wide array of
labor market information used to inform economic development, support
career counseling, identify training needs, inform industry sector
workforce strategies, and assist with other facets of a job-driven
workforce system.
For example, through agreements with States, wage records are used
to produce the following aggregate reports and data that support the
objectives listed above:
The United States Census Bureau's Longitudinal Employer-
Household Dynamics Program including the:
[cir] Quarterly Workforce Explorer, that provides worker residence
and work place location data and critical employment and business
related data including hiring, worker separations, and turnover rates,
at State, county, metro and Workforce Development Board areas;
[cir] OnTheMap, that provides geographic information system (GIS)
capabilities to map worker origin and destination information on detail
map overlays in customized geographic areas at a Census block level;
and
[cir] OnTheMap for Emergency Management tools, that provides GIS
capabilities to map natural disasters including fire, flood, and storm
and the impact on workers and businesses in customized geographic areas
at the Census block level area.
The DOL's Bureau of Labor Statistics Quarterly Census of
Employment and Wages, which provides a complete count of employment and
wages, classified by industry and based on quarterly reports filed by
employers for over 9 million establishments subject to unemployment
insurance laws.
Continuous improvement, in part through consultation. The Act
requires the Secretary of Labor to oversee, and the States to pursue
actively, the ``continuous improvement'' of the WLMIS.\3\ The Act,
throughout, describes components of the system and ways in which the
Secretary and the States must act to discharge their duties under the
Act, including their duties related to ``continuous improvement.''
Proposed Sec. 652.300(a) is a general statement implementing this
requirement. It provides, as does the Act, that the Secretary must
oversee the development, maintenance, and continuous improvement of the
WLMIS. The reference to Wagner-Peyser sec. 15 simply signals the
section where the WLMIS is defined; the provision does not mean to
state that sec. 15 is the only section where the duty of continuous
improvement is created.
---------------------------------------------------------------------------
\3\ Based on internal Department of Labor data. This figure
includes the 50 States, the District of Columbia, American Samoa,
Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin
Islands.
---------------------------------------------------------------------------
Proposed Sec. 652.300(b) implements the Secretary's more specific
duties with regard to the WLMIS, as they are described in Wagner-Peyser
sec. 15(b)(2). The proposed regulation closely tracks the statute with
respect to duties related to collection, analysis, and dissemination of
workforce and labor market information. These include, for example, the
duty to eliminate gaps and duplication in statistical undertakings. The
Act also identifies certain activities that should be considered to
improve data sources. For example, sec. 15(b)(2) requires the
Secretary, to ensure that data collected is consistent with appropriate
Bureau of Labor Statistics standards and definitions and understandable
to users of such data; and to develop consistent procedures and
definitions for use by States in the collection of data. Earlier, in
sec. 15(a)(1)(E), the Act requires that the WLMIS include ``procedures
to support standardization and aggregation of data from administrative
reporting systems.''
Recognizing the breadth of these and other requirements it imposes
on the Secretary, the statute--at sec. 15(b)(2)--establishes an
expectation that the Secretary will discuss and fulfill the
requirements in active collaboration with the WIAC, Federal agencies,
and States. Proposed Sec. 652.302(b) incorporates this consultation
requirement, while reserving our authority to consult with other
stakeholders. To the extent that the data
[[Page 20806]]
and tools used in the context of the WLMIS are owned by other Federal
agencies, such as LEHD data which is owned by the Census Bureau subject
to the authority of title 13 of the U.S. Code, the Secretary of Labor
will work collaboratively with the owners of such data or data tools to
coordinate the use of those tools with the WLMIS and to identify
potential enhancements, but the Secretary of Labor has no direct
authority with regard to those tools.
Proposed Sec. 652.300 works in conjunction with certain amendments
to 20 CFR part 651. In order to clarify the Secretary's jurisdiction
with respect to the Employment Service and related workforce systems--
in particular, with respect to responsibilities related to ``continuous
improvement,'' performance assessment, and collection and management of
information--the Department proposes new regulatory definitions for
``Workforce and Labor Market Information'' (WLMI) and ``Workforce and
Labor Market Information System'' (WLMIS). Those proposed definitions
appear in part 651.
Definition of ``wage record.'' The proposed definition of WLMI that
appears in part 651 lists numerous components, including ``wage
records.'' The Wagner-Peyser Act does not define ``wage records.'' To
clarify the Secretary's responsibilities with respect to that component
of WLMI, however, the Department proposes to define ``wage records'' in
a new section under part 652, Sec. 652.301.
Proposed Sec. 652.301 defines ``wage records'' for purposes of the
Wagner-Peyser Act, including amendments to Wagner-Peyser relating to
the WLMIS. The Department proposes to define ``wage record,'' for these
purposes, as records that contain ``wage information'' as defined in
the Department regulations at 20 CFR part 603. Part 603, among other
things, implements the requirements of the Social Security Act
governing the now-established Income and Eligibility Verification
System (IEVS). Federal law requires each State participating in the
Federal-State unemployment compensation (UC) program to have in place
an IEVS through which it exchanges information with certain Federal
agencies to help determine applicants' eligibility and amount of
benefits for UC and several Federal financial assistance programs.
(Social Security Act (SSA) secs. 303(f), 1137; 20 CFR 603.20-603.23.)
As part of its IEVS, every State must collect certain information--
including ``wage information'' as defined in 20 CFR 603.2(k) and
referred to here as ``wage records''--from applicants for these
programs, employers in the State, or relevant State or Federal
agencies. (SSA sec. 1137.) In the context of establishing
confidentiality requirements for State UC data, the Federal regulation
at 20 CFR 603.2(k) defines ``wage information'' to mean information in
the records of a State UC agency, and information reported under
provisions of State law that meets the requirements of an IEVS, that
may fall into any one of three categories: (1) ``wages paid to an
individual''; (2) the individual's SSN(s); and (3) the name, address,
State, and FEIN of the employer that paid the wages. (20 CFR 603(k))
Normally, a State collects this information through the quarterly
``wage reports'' employers file with the State (referred to in 20 CFR
603.2(j) and SSA sec. 1137(a)(3)). States may, based on their need,
require employers to report additional data--beyond these three
categories--in their wage reports, whether for unemployment insurance
purposes or for other purposes. It is the combination of these data
collections that are referred to, broadly, as ``wage records.''
The new, proposed definition of ``wage records'' in Sec. 652.301
helps meet the legislative intent for consistency by standardizing, the
definition of ``wage records'' across regulations governing WIOA
activities, Wagner-Peyser activities, and disclosure of confidential UC
information. Part 603--which uses the term ``wage information'' is the
basis for the definition of ``wage records'' in proposed Sec.
652.301--in part serves to allow States to disclose specific
confidential wage information to help meet Federal reporting
requirements for certain programs and activities funded under WIOA and
Wagner-Peyser. As proposed, the definition in Sec. 652.301 is also
consistent with the definition of ``quarterly wage record information''
under 20 CFR 677.175,\4\ which requires States to use essentially the
same data elements in ``wage records'' to formally assess their
performance for purposes of performance reporting. (For additional
explanation of the relationship between these three sections, and the
distinction between the provisions authorizing State use of certain
wage data and those authorizing States to disclose essentially the data
for purposes of Federally-required performance reporting, see the
Department's proposal to amend its regulations at 20 CFR part 603,
accompanying this proposal to amend the Wagner-Peyser regulations.)
---------------------------------------------------------------------------
\4\ Ibid.
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Secretary of Labor's role concerning wage records under WIOA.
Proposed Sec. 652.302 explains how the Secretary's responsibilities
concerning the WLMIS apply to the wage record component of WLMI. That
is, the proposed regulation reflects how the Department would apply the
broader Wagner-Peyser expectations for improvement of labor market data
sources, including those related to consistency and standardization, to
one specific source--wage records.
Proposed Sec. 652.302(b) would clarify that pursuant to his/her
responsibility to oversee the development, maintenance, and continuous
improvement of the WLMIS, including the numerous duties set forth in
the Act and restated throughout this preamble, the Secretary will seek
to develop standardized definitions of the data elements in wage
records, and improved processes and systems for the collection of and
reporting of wage records. As proposed, this provision would authorize
the Secretary to develop common data definitions and standardized
reporting formats that are consistent across States.
Proposed Sec. 652.302(a) would work in conjunction with the
proposed definitions of WLMI and WLMIS in part 651 to clarify that wage
records are, in fact, included in and source data for WLMI.
Consistency of wage records. On the matter of wage records, a
number of areas have, in recent years, required policy discussions
between the Department and States and other stakeholders. Of these
discussions, the one on consistency has gained momentum.
State wage records today, while they are a critical component of
the WLMIS, suffer from inconsistencies that impede better management of
WLMI, and of the ES more broadly. Wage records have always been a
critical data source for administration of the UI program as well as
other Federal programs, providing information that supports eligibility
determinations and identification and reduction of improper payments.
Wage records have increased importance today because States are
required to use them to evaluate State performance of the workforce
system and education and training providers. Additionally, wage records
play a key role in Federal evaluations of the workforce system's
programs. The expanded use of wage records for such a wide range of
purposes requires consistency and quality of the data in order to
maximize its use.
Regrettably, such consistency is lacking. The wage data employers
must report on their quarterly wage reports to their State and the
formats they must use to report it vary, State-by-State. While
employers filing wage reports described in Federal regulations at 20
[[Page 20807]]
CFR 603.2(j) must, at a minimum, report the three data elements
described in 20 CFR 603.2(k), State law may require them to report
additional elements. And because States differ in how they define
certain data elements--including the three elements listed in Sec.
603.2(k)--different States may prescribe different reporting formats
for the same data elements. This means that the same type of data
(employee SSN, employee name, employee address) may look different,
from State to State, when placed on the form. For example, some States
only require the first several numbers of workers' SSN. Such
differences in State reporting requirements, and the variation they
generate in the type of data and the format of data collected, set up a
significant barrier to data quality and data consistency. They make it
hard for data users to effectively match wage records across the
States. This interferes with the effective and efficient measure of
performance, program evaluation, income verification under sec. 1137
SSA, and detection of improper benefits payments in multiple Federal
programs.
Consultations with stakeholders over the years, as well as our own,
longstanding program experience, lead the Department to believe that
adoption of standardized definitions of data elements, and processes
and systems for collecting and reporting wage records across all
States, could greatly enhance the usability of the wage records and the
ability to easily merge the data they contain with other data sets.
Standardized definitions, collection processes, and systems also could
reduce employer burden, given that multi-State employers and their
third-party administrators now have to report wages to States in many
different formats. With such enhancements, State wage records would
contain data that have the potential to create more comprehensive and
powerful workforce and labor market information. Such an approach would
also help implement the statute's requirement for consistency.
Other Federal statutes support making significant improvements in
wage records as a data source. A number of Federal statutes now place
emphasis on wage records and data standardization. WIOA and the Middle
Class Tax Relief and Job Creation Act of 2014, for example, require the
Department to make the labor market data it oversees or generates, even
more consistent and meaningful. WIOA emphasizes the use of wage records
for performance and evaluations of the workforce system. The Job
Creation Act focus on data standardization.
Section 2104 of the Job Creation Act requires the Secretary to
promote data exchange standardization through regulation in the
delivery of the UI program, including as it relates to supporting the
reemployment of unemployed workers. Data exchange standards include use
of interoperable standards; use of widely accepted, non-proprietary,
searchable, and computer readable formats; and use of existing non-
proprietary standards, such as the eXtensible Markup Language. A key
component of data exchange standardization is ensuring that the data
the States are sharing is consistent. As addressed above, it is
impossible to accurately exchange and match data that has different
elements and different requirements for the common elements. The
Secretary cannot achieve data exchange standardization in the UI
program if the data elements cannot be accurately exchanged and
matched. Therefore, the Department interprets the requirement in the
Job Creation Act to standardize data exchange to include the
requirement that the Secretary consult with the WIAC and develop a set
of common data definitions.
The Wagner-Peyser Act, especially when read in the context of these
two other statutes and the amendments made to it by WIOA, exhibits the
same focus and expectation. Proposed Sec. Sec. 652.300 through 652.303
enable all of this work to proceed through a collaborative approach
that brings in other Federal agencies, States, and the public through
the newly constituted WIAC.
Consultations with the WIC and WIAC to improve wage records and the
WLMIS. Of course, consistency is not the only concern or area of
consultation with stakeholders. There is a long history of interest and
discussions among Federal and State agencies and data users about the
desirability of making a variety of improvements to wage records that
would increase their value and usability. Among these was an effort in
the 1990s referred to as the Simplified Tax and Wage Reporting System
(STAWRS).
More recently, a subgroup of the Workforce Information Council \5\
established under WIA has been researching and developing reports on
how to enhance the content of wage records to support improvements in
labor market and workforce information. The working group is currently
considering possible enhancements, such as adding data elements to the
information States collect from employers through the wage reports
under 20 CFR 603.2(j), and the potential impact of those enhancements,
on State workforce agencies and businesses. This work will result in
recommendations to the WIC in the coming year and will provide strong
foundational information to support the Secretary's work with the WIAC
when it is established. (See discussion on WIAC elsewhere in this
proposed rule.)
---------------------------------------------------------------------------
\5\ Ibid.
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As discussed elsewhere, sec. 15(d) of the Wagner-Peyser Act
requires the WIAC to evaluate the WLMIS System and make recommendations
to the Secretary on how to improve the WLMIS. Section 15(b) requires
the Secretary to receive and evaluate the WIAC's recommendations and
respond to these recommendations in writing. At the appropriate time,
the WIAC will make recommendations for improving the WLMIS. These
recommendations could range from technical improvements to the system,
such as improving the technology States use to gather and report data,
to more substantive changes to the system, such as standardizing data
elements to facilitate comparisons and provide job seekers easy to
understand information about the labor market.
To the extent that the Secretary's consultations with the WIAC and,
potentially, other stakeholder groups result in proposals to change,
enhance, or expand wage record data elements, the Secretary will
carefully consider the potential benefits and costs of these proposals
on the workforce system, and work with the Congress, other Federal
agencies, States, the WIAC, and other stakeholders to explore possible
ways to implement the recommendations. If appropriate, the Department
will engage in further rulemaking or seek legislative authority.
Data elements associated with wage records. Potentially
establishing new data elements to wage records that employers in all
States must report could have benefits similar to standardization. For
example, knowing individuals' occupations, along with the wages they
earned, would be extremely valuable. Such additional information would
greatly assist in performance reporting and program evaluation under
WIOA, in the identification of skill shortages by detailed geographic
area to inform labor market training programs, and in the analysis of
the long-term impact of education and training programs on labor market
outcomes. It is likely that the WIAC will explore the value and
viability of adding this and, potentially, other data elements. As
discussed above, the current WIC is researching this issue and
developing reports that will provide additional
[[Page 20808]]
information that is likely to be passed on to the WIAC for
consideration.
On January 31, 2014, the WIC released its ``Phase One Interim
Report on Current Practices of Unemployment Insurance Wage Record
Collection and Use.'' This report analyzed the results of a State
survey on the benefits of and barriers to enhancing labor market
information by adding data elements to the quarterly wage reports
employers submit to States as defined in 20 CFR 603.2(j). Among other
things, the WIC's survey asked States what additional data elements,
aside from Federally-required wage information, States require
employers to report. The Phase One Interim Report can be found at:
http://www.workforceinfocouncil.org/Documents/Wage%20Report%20Final.pdf. While not all States responded, Alaska,
Iowa, Minnesota, New Jersey, Ohio, Oregon, Pennsylvania, Rhode Island,
Vermont, the Virgin Islands, Washington, and Wyoming reported already
collecting additional data elements in the quarterly wage reports. The
additional elements included the Code, total hours worked in a quarter,
total number of weeks worked in a quarter, pay type (salary or hourly),
hourly pay rate, gender, job title, worksite address, zip code, and
tips. Some of the responding States reported that the additional data
elements are extremely helpful for estimating hourly earnings,
understanding career progression from occupation to occupation,
assessing the effectiveness of workforce training, and making
occupational projections. One State pointed out that knowing the
employee worksite information helped with UC claim filing.
Asking employers to report and States to collect additional data or
data categories through quarterly wage reports, would expand the data
collections for many States. The Department is committed to strong
stakeholder consultation as strategies are developed to improve and
enhance wage records and to striking the appropriate balance between
the burden of any new data collection and the value of any additional
data elements. In the event the WIAC and/or other stakeholder
consultations generate recommendations for such enhancements, the
Department will consider additional rulemaking or seek legislative
authority, if appropriate.
Request for comment. The Department is interested in receiving
comments from States that responded to the survey, and any other States
that require additional data elements in quarterly wage reports, on the
challenges and benefits of requiring additional data elements in the
quarterly wage reports. The Department is also interested in receiving
comments from employers and payroll processors who provide occupational
data for the quarterly wage records.
Applying 20 CFR part 603 to wage records. Finally, the regulation
proposed for new Sec. 652.303 would clarify that wage records are
subject to and protected by the Department's regulations at 20 CFR part
603, which govern confidentiality and disclosure for confidential UC
information, including the ``wage information'' that make up ``wage
records.'' Nothing in Sec. Sec. 652.300 through 652.302 changes the
confidentiality requirements of 20 CFR part 603. Information contained
in ``wage records'' that is confidential under Sec. Sec. 603.2(b) and
603.4 remains confidential in accordance with those sections of the
confidentiality and disclosure requirements of subparts A and B of part
603. The Department proposes this provision to further ensure the
confidentiality of the information in the State UC system.
O. Part 653--Services of the Employment Service System
In subparts B and F, the Department proposes to implement the WIOA
title III amendments to the Wagner-Peyser Act and to streamline and
update certain sections to eliminate duplicative and obsolete
provisions. Despite these changes, part 653 will remain consistent with
the ``Richey Order'', which allows revisions as long as they are
consistent with the Richey Order. NAACP v. Brennan, 9174 WL 229, at *7.
Section 653.100 Purpose and Scope of Subpart
Proposed Sec. 653.100 explains that the regulations under part 653
seek to ensure that all services of the workforce development system be
available to all job seekers in an equitable fashion. This section
includes language currently at Sec. 653.101 that explains the purpose
and scope of part 653. This approach is consistent with the
Department's current policy and requiring equal access and treatment to
all services available through the workforce development system is also
consistent with the purpose and terms of the Richey Order.
Section 653.101 Provision of Services to Migrant and Seasonal
Farmworkers
The Department proposes to delete Sec. 653.101 because its
provisions have been moved to Sec. 653.100 or concern itinerant or
satellite offices that have been replaced by one-stop centers that
provide services to both MSFWs and non-MSFWs.
Section 653.102 Job Information
The Department proposes to make several changes to Sec. 653.102:
(1) That State agencies make job order information conspicuous and
available to MSFWs ``. . . by all reasonable means'' rather than ``in
all local offices'' to reflect the obligation of State agencies to
contact MSFWs who are not being reached by the normal intake activities
including at their working, living or gathering areas to explain the
services available at the local one-stop center;
(2) That the language in Sec. 653.102 referring to ``computer
terminal, microfiche, hard copy, or other equally effective means'' be
replaced with ``internet labor exchange systems and through the one-
stop centers'' to conform to technological advances and current
techniques of States' internet-based labor exchange systems;
(3) That the reference to ``each significant MSFW local office'' be
replaced with ``employment service offices'' to require each ES office
to provide adequate staff assistance to MSFWs to more fully conform
with the Richey Order, which requires the Department to ensure that
MSFWs are serviced in a quantitatively proportionate and qualitatively
equivalent way to non-MSFWs;
(4) That offices designated as significant MSFW multilingual ES
offices must provide services to MSFWs in their native language,
whenever requested or necessary and to acknowledge that Spanish is not
the only native language spoken by MSFWs whose first language is not
English.
Section 653.103 Process for Migrant and Seasonal Farmworkers To
Participate in Workforce Development Activities
The Department proposes to revise the heading in Sec. 653.103 to
``Process for migrant and seasonal farmworkers to participate in
workforce development activities'' to align it with language used in
titles I and III of WIOA, which refer to ``workforce development
activities.''
Proposed Sec. 653.103(b) includes new language requiring that
persons with LEP receive, free of charge, the language assistance
necessary to afford them meaningful access to the programs, services,
and information offered by one-stop centers. The Department also
proposes to remove the reference to Sec. 653.105 because we propose to
eliminate that section.
In proposed Sec. 653.103(c), the Department proposes to add the
words ``or in their native language'' to further
[[Page 20809]]
acknowledge that Spanish is not the only native language spoken by
MSFWs whose first language is not English, and to remove language
regarding checking the accuracy and quality of applications because
such actions are part of compliance reviews which are addressed in
Sec. 653.108.
The Department also proposes to remove paragraphs (d) through (h)
from Sec. 653.103, that refer to application cards and an application
process that are generally no longer used, having been replaced by
online resources. Instead, it is proposed in paragraph (d) that local
ES offices ``refer and/or register the MSFW in accordance with the
established procedures defined in the relevant regulations(s) or
guidance.''
The Department proposes to remove Sec. 653.104(a) because MSFWs
receive equitable ESs regardless of family status. The provision of
services for all Wagner-Peyser participants is not dependent upon
whether their family members are participating in the ES system. It is
also proposed that paragraphs (b) and (c) regarding applications from
an individual for employment as a farm labor contractor, and
agricultural job orders submitted by a farm labor contractor or farm
labor contractor employee, be relocated to Sec. 653.500 because that
addresses the ARS.
It is proposed that Sec. Sec. 653.105 and 653.106 be deleted as
they are generally obsolete and because State agencies no longer make
referrals to or operate day-haul facilities. Additionally, it is not
anticipated that State agencies will make referrals to or operate day-
haul facilities in the foreseeable future in part because WIOA title I,
sec. 121(e)(3) requires the colocation of Wagner-Peyser services.
Should those activities resume in the future, however, the Department
will ensure compliance with the requirements of the Richey Order
concerning any day-haul referrals and day-haul locations operating
under ES supervision. The Department also proposes to remove paragraph
(c) of Sec. 653.106 as it is unnecessary because it references
Sec. Sec. 653.107(j) and 653.108(p) concerning outreach visits to, and
monitoring of day-haul facilities. Those outreach obligations remain,
as revised, in proposed Sec. 653.107.
Section 653.107 Outreach and Agricultural Outreach Plan
The Department proposes to restructure and reorganize Sec. 653.107
to facilitate a better understanding of State agency responsibilities,
outreach worker responsibilities, and ES office responsibilities
relating to outreach and the Agricultural Outreach Plan (AOP). The
Department anticipates that the reorganization will allow the relevant
entities to identify their responsibilities under this section.
Currently, the AOP is submitted annually as a modification to the
WIA under title I and the Wagner-Peyser Integrated or Unified Workforce
Plan. As required by sec. 8 of the Wagner-Peyser Act, and as amended by
sec. 306 of WIOA, States must now submit their Wagner-Peyser plan as
part of the Unified or Combined State Plan described in WIOA secs. 102
and 103, respectively. In order to streamline the plan submission
process for States, the Department proposes to require that States
include their AOP with their Unified or Combined State Plan. As the
State Plans are required every 4 years, the Department proposes to
require that the AOP be submitted every 4 years. The Department notes,
however, that the Richey Order requires much of the information
submitted through the AOP to be submitted annually. Therefore, in order
to balance the goal of streamlining the State planning process with the
need to comply with the Richey Order, the Department proposes that the
Annual Summary required at 20 CFR 653.108(s) include outreach data and
an update on the State's progress toward accomplishing its goals set
forth in the AOP. In proposed paragraph (d), the Department explains
the basic requirements of the AOP and the Annual Summaries and explain
that official guidance will be forthcoming. Additionally, terminology
in proposed Sec. 653.107 is revised, when appropriate, to better align
its terms with corresponding terms in WIOA which will be used in the
Unified State Plan.
The Department also proposes the following changes to Sec.
653.107:
(1) The heading is proposed to be replaced with ``Outreach and
Agricultural Outreach Plan (AOP)'' to make clear that information
regarding the AOP can be found in this section;
(2) The term ``Outreach Program'' used in paragraph (a) is proposed
to be replaced by ``Outreach'' to broaden the scope of the section to
accurately reflect the various requirements regarding outreach and that
the section is not a formulaic program;
(3) References in paragraph (a) to the Outreach Plan have been
relocated, in revised form, to paragraph (d) that concerns the
``Agricultural Outreach Plan (AOP)'' or ``Annual Summaries,'' or
reserved for use in future official Department guidance (the Department
will include AOP guidance as part of its Unified State Plan guidance);
(4) A requirement has been added to paragraph (a) for each State
agency to employ outreach workers to conduct outreach in their service
areas (full or part time staff may be hired depending on whether the
State has a significant MSFW population). This addition is proposed to
help each State meet its requirement under the current 20 CFR
653.107(a) to locate and contact MSFWs who are not being reached by the
normal intake activities conducted by the local ES offices. The Richey
Order influenced the language for this proposed addition, as it states
that ``each State agency shall employ an adequate number of staff who
shall be assigned to ES offices. . . . ;''
(5) Paragraph (a)(4) has been revised to clarify that the
Department, through guidance, will identify the 20 States with the
highest estimated year-round MSFW activity;
(6) Delete paragraph (b)(2) because all outreach efforts must be
vigorous. This change does not signal a reduction in the required
intensity of outreach activities;
(7) The language in paragraph (h)(3)(i) be relocated to Sec.
653.107(a)(4) and be revised to require the ``top 20 States,'' that is
the 20 States with the highest estimated year-round MSFW activity, to
hire year-round full-time outreach staff to help ensure that more
farmworkers will be reached on a year-round basis in high activity
areas than are reached at present. The remaining States must hire part-
time outreach staff year-round and must hire full-time outreach staff
during periods of peak MSFW activity. These provisions are proposed to
balance the urgent need for outreach with the reality of limited staff
resources available to the States. Additionally, it is proposed that
the option for the Regional Administrator to grant a deviation from the
requirements in this paragraph be deleted to ensure that States have a
means to contact MSFWs who are not being reached by the normal intake
activities conducted by the local ES offices and to encourage them to
strive for ``the development of strategies for providing effective
outreach to and improve access for individuals and employers who could
benefit from services provided through the workforce development
system,'' as stated at WIOA sec. 101(d)(3)(c);
(8) The reference to local offices in Sec. 653.107(b)(4)(vi) has
been updated to ``one-stop center.'' In this section ``one-stop
centers'' refers to both comprehensive and affiliate one-stop centers;
(9) The language in current Sec. 653.107(j)(1)(v) be relocated to
proposed Sec. 653.107(b)(2) and revised by inserting the words
``employer's property or work area'' and changing the words
``permission of the employer'' to
[[Page 20810]]
``permission of the employer, owner or farm labor contractor'' because
the employer may not always be the appropriate person to grant such
permission;
(10) The reference to unemployed and employed MSFWs in current
paragraph (j)(2)(ii) be deleted because all MSFWs contacted through
outreach activities must receive information on current and future
employment opportunities;
(11) A sentence was added to paragraph (b)(6) requiring outreach
workers to document and refer apparent violations that are non-
employment related; and
(12) Language was added to paragraph (b)(7) regarding training
outreach workers on protecting farmworkers against sexual harassment in
the fields. While such abuse is not often considered when contemplating
the protection of, and advocacy for, MSFWs, it is increasingly
prevalent and the addition is intended to further a concerted effort to
deter such abuse. To that end, the Department wishes to ensure that
outreach workers are aware of the issue and able to appropriately refer
MSFWs.
Section 653.108 State Workforce Agency and State Monitor Advocate
Responsibilities
The Department proposes the following changes to Sec. 653.108:
(1) The heading is proposed to be revised to State Workforce Agency
and State monitor advocate (SMA) responsibilities to better describe
the contents of this section;
(2) The requirement in paragraph (c) for SMAs to work in the State
central office was removed because there are instances where it may be
more productive and logical for them to work in an office that is more
centrally located to the State's MSFW population;
(3) The language in paragraph (d) allowing an Office of Workforce
Investment (OWI) Administrator to reallocate SMA positions and approve
the use of less than full-time work be deleted because the OWI
administrator does not have authority over these determinations. It is
also proposed that the last sentence in this paragraph be modified to
clarify that a State agency that deems SMA functions appropriate on a
part-time basis must demonstrate to the Regional Administrator that
part-time staffing will be sufficient for carrying out his/her duties;
(4) Language has been added to paragraph (g)(1) authorizing SMAs to
request a corrective action plan from the ES office to address any
deficiencies found in their review and allowing the SMAs to advise the
State agency on means to improve the delivery of services to MSFWs;
(5) That the words ``local office MSFW formal monitoring'' be
deleted from paragraph (g)(2) because the Department has proposed to
include a definition for onsite reviews in 20 CFR 651.10;
(6) In paragraph (g)(3) the words ``significant MSFW local office''
are proposed to be replaced with ``significant MSFW one-stop center''
to conform with the proposed definition in 20 CFR 651.10;
(7) In paragraph (g)(4) it is proposed that the sentence referring
to applications be deleted because such information can be more
effectively provided and updated, as necessary, via Department-
published guidance materials. It is also proposed this paragraph
include language requiring the SMA to clear the State's AOP to ensure
that the SMA reviews, provides necessary input, and supports the final
version of the State's AOP;
(8) That paragraph (g)(6) be created to require SMAs to write and
submit Annual Summaries to the State Administrator with a copy to the
Regional Administrator because it is a duty originally located in Sec.
653.108(t) but appropriately falls under Sec. 653.108(g) as one of the
SMA duties;
(9) In paragraphs (h)(2) and (h)(3) the references to ``reviews''
be replaced with ``onsite review(s)'' for clarity, and that the
reference to ``ETA'' in paragraph (h)(3) be replaced with ``the
Department;''
(10) It is proposed that in paragraph (j) the SMAs must ensure that
local ES office managers submit copies of the MSFW complaint logs to
the State agency quarterly pursuant to 20 CFR 658 subpart E instead of
the regional office, as was originally required. This change is
proposed because the regional office does not need to review each
complaint log, rather it reviews the information in aggregate, as is
the current practice. This helps to avoid overburdening the regional
offices with more detail than is necessary. Additional details
concerning the submission of complaint logs will be provided and
updated, as necessary, via Department official guidance;
(11) Current paragraph (k) has been broken into separate paragraphs
(proposed paragraphs (j), (k), and (l)), to clarify the intent of the
respective duties under this subpart. Paragraph (j) will require SMAs
to serve as advocates to improve services to MSFWs; paragraph (k) will
strengthen the requirement for SMAs to liaise with WIOA sec. 167
grantees to encourage increased collaboration between SMAs and grantees
that provide services to MSFWs; paragraph (l) proposes that SMAs meet
at least quarterly and establish an MOU with WIOA sec. 167 grantees and
other organizations serving farmworkers, the Department intends to
foster a better working relationship between the SMAs, the grantees,
and the other organizations while harmonizing the delivery of services
to MSFWs and minimizing the duplication of services;
(12) Language to include committees other than DOL Regional Farm
Labor Coordinated Enforcement Committee has been added to paragraph (l)
to broaden the scope of appropriate regional meetings the SMA must
attend.
(13) Paragraph (o) has been deleted because affirmative action
staffing plans are no longer required. In their place, each State
agency must provide an assurance that it is complying with its
affirmative action requirements set forth in 20 CFR 653.111 through the
AOP. Additionally, the requirement under proposed paragraph (g)(1) for
SMAs to conduct an ongoing review of and advise the State agency on its
affirmative action goals will meet the need for SMAs to ensure that
their respective States are complying with the affirmative action
staffing requirements outlined in the Richey Order;
(14) Paragraph (p) concerning day-haul sites has been deleted for
the same reasons provided for deleting Sec. Sec. 653.105 and 653.106;
and
(15) A new paragraph (s) has been added to outline the purpose and
scope of required Annual Summaries, and a list of what the summaries
must include. The requirements for the Annual Summary have been
expanded to include information that would be relevant for the
Department's review of how the States are providing services to MSFW.
Many of the added requirements are taken from other sections under this
chapter. Specifically, the Annual Summary would include assurances or
summaries of SMA duties taken from current Sec. 653.108(c), (g)(1),
(h)(2), (j), (k), (q), and (r). This section also requires that the
Annual Summaries include a summary of the activities conducted over the
course of the previous year that relate to meeting the goals of the
AOP. At the end of the AOP, this section would require that the SMA
provide a synopsis of the State agency's achievements in meetings its
goals set forth in the AOP. This will help keep each State agency on
track toward achieving its AOP goals and help the Department track such
progress.
In addition, related to proposed Sec. 653.108(g)(4), the
Department notes that the process by which the SMA will receive,
review, and approve the AOP
[[Page 20811]]
will be described in the joint planning guidance issued by the
Departments of Labor and Education.
Section 653.109 Data Collection and Performance Accountability Measures
For Sec. 653.109, Data collection, the Department proposes to
include the equity indicators and minimum service level indicators
currently at Sec. 653.112 as they are data elements that appropriately
fit under Sec. 653.109, with the exception of the contents of current
Sec. 653.112(c)(3) that will be deleted because ETA does not publish a
list of priorities that State agencies can use as a basis for the
minimum service levels required of significant MSFW States. The
Department also proposes to add ``and performance accountability
measures'' to Sec. 653.109 so the part may appropriately include the
additional measures.
The Department proposes to make several other changes to Sec.
653.109:
(1) Paragraph (a) specifies that State agencies must collect career
service indicator data for services described in WIOA sec.
134(c)(2)(A)(xii) because WIOA sec. 134(c)(2)(A)(xii) includes several
of the existing requirements under Sec. 653.109;
(2) Paragraph (b) has been revised to specify that data collection
will include the number of non-MSFWs and MSFWs registered for Wagner-
Peyser services and MSFW average earnings, and will remove the
requirement to collect data on the number of MSFWs referred to
training, receiving job development, receiving testing, receiving
employment counseling, and referred for supportive services or other
services, as those are already required data elements under WIOA; and
(3) Paragraph (b) also replaces the terms ``wage rates'' and
``duration of employment'' with the terms ``entered employment rate''
and ``employment retention rate,'' respectively to conform with the
terminology by the Department's data collection mechanism (currently
the Labor Exchange Agricultural Reporting System 9002a form).
Section 653.110 Disclosure of Data
Proposed Sec. 653.110 contains minor changes to clarify the
provisions and to update terminology.
Section 653.111 State Agency Staffing Requirements
In Sec. 653.111 it is proposed that the requirement for each State
agency with significant MSFW offices to submit an affirmative action
plan be replaced with the requirement that each such State agency
submit assurances, as part of its Unified State Plan and as part of its
Annual Summaries, that it is implementing an affirmative action
staffing program. This change is proposed because it will help each
State agency with significant MSFW offices to streamline implementation
of its affirmative action program while ensuring that the Department
remains in compliance with the relevant requirements under the Richey
Order. It is proposed that the regulation providing the formula for
determining the racial and ethnic characteristics of the workforce be
deleted from the regulation because this will be provided in
subsequently issued guidance.
It is proposed that Sec. 653.112 be deleted because PBPs are
obsolete as each State agency is required to submit a Unified or
Combined State Plan pursuant to WIOA title I. The text in paragraphs
(b) and (c) concerning equity indicators and minimum level service
requirements is proposed to be relocated, with minor revisions, to
Sec. 653.109.
It is proposed that Sec. 653.113 be deleted and its contents
relocated to 20 CFR 658.419 because it relates to the ES and
Employment-Related Law Complaint System (Complaint System).
In subpart F, the Department proposes the following changes to
clarify the requirements of this subpart:
(1) The paragraphs under the ARS have been reorganized into
subcategories based on each stakeholder's respective responsibilities
(the subcategories are ES Office Responsibilities, State Agency
Responsibilities, and Processing Job Orders). The proposed
restructuring of this subpart is intended to help stakeholders better
understand how the system works and more easily identify and comprehend
their respective responsibilities. The reorganizing is also proposed to
help clarify the meaning of the regulations;
(2) The paragraphs have been revised to state requirements in the
positive and active voice, versus the negative passive voice from which
they were originally drafted;
(3) References to information that needs to be provided to MSFWs in
Spanish be changed to ``native language'' to conform to TEGL 26-02; and
(4) The heading for subpart F has been revised and supplemented by
adding the words ``for US Workers'' to clarify that ARS is meant for
U.S. workers versus foreign workers. It is a common misconception that
the ARS is for foreign workers who may be hired by U.S. employers
through visa programs such as the H-2A or H-2B visa programs, and the
Department intends the proposed change to help eliminate this
misconception. For the same reason, any references to the temporary
employment of foreign workers in the United States (that would
otherwise fall under 20 CFR 655) have been deleted.
Section 653.501 Requirements for Processing Clearance Orders
The Department proposes the following changes to Sec. 653.501:
(1) In paragraph (c)(1)(iv)(I), currently paragraph (d)(2)(x), it
is proposed that the sentence regarding the contingency of payments
made beyond the period of employment specified in the job order be
deleted because such terms are already specified in the job order and
the language is duplicative;
(2) In paragraph (c)(3)(iv), currently paragraph (d)(2)(xiii), it
is proposed that the sentence referring to requests for foreign workers
be deleted because this section should only cover information regarding
ARS and the requirements for foreign workers are covered under 20 CFR
655; and
(3) In paragraph (j), it is proposed that the Regional
Administrator notify the national monitor advocate instead of the OWI
Administrator when a potential labor supply State agency rejects a
clearance order and the Regional Administrator does not concur with the
reasons for rejection. In this case, the national monitor advocate, in
consultation with the OWI Administrator, is the appropriate person to
make the final determination because it is the common practice for the
national monitor advocate to provide the State agencies with guidance
regarding ARS.
Section 653.502 Conditional Access to the Agricultural Recruitment
System
The Department proposes to delete current Sec. 653.502 concerning
changes in crop and recruitment situations and fold its contents
without change into proposed Sec. 653.501.
The Department proposes to add a new Sec. 653.502 which contains
the relocated provisions of 20 CFR 654.403. While the housing standards
at 20 CFR 654 subpart E, including current Sec. 654.403, will expire 1
year after the publication of the final rule, the Department proposes
moving current Sec. 654.403 into this new section because those
requirements remain necessary and relevant, and because that section is
related to the terms and requirements of this subpart. Accordingly, the
provisions of 20 CFR 654.403 have been relocated to proposed 20 CFR
653.502.
[[Page 20812]]
Section 653.503 Field Checks
Proposed Sec. 653.503(b) has been revised to clarify that State
agencies must conduct field checks on at least 25 percent of
agricultural worksites to align with common practice. The Department
also proposes to add language requiring a State agency with fewer than
10 ES placements to conduct field checks on all agricultural worksites
where the placements have been made. This change is proposed to ensure
that all worksites are checked whenever feasible. In paragraph (e), it
is proposed that the word ``shall'' be changed to ``may'' because it is
not a requirement, rather State agencies may choose to enter into an
agreement with an enforcement agency if they believe it is necessary or
helpful.
P. Part 654--Special Responsibilities of the Employment Service System
1. Introduction
The Department proposes to revise the ETA regulations governing
Housing for Agricultural Workers at 20 CFR 654, subpart E, issued under
the authority of the 1933 Wagner-Peyser Act by updating outdated
terminology and by establishing an expiration date for the ETA
standards in order to transition housing currently governed by the ETA
standards to the Occupational Safety and Health Administration (OHSA)
regulations governing temporary labor camps for agricultural workers.
2. Subpart E--Housing for Agricultural Workers
Section 654.401 Applicability
The Department proposes to amend Sec. 654.401 to require that
housing covered by the regulations in this subpart be subject to the
relevant OSHA housing standards for agricultural workers beginning 1
year after the publication of the final rule.
In 1951 the U.S. ES Bureau of Employment Security established the
ETA housing standards for farmworkers. These standards were updated in
1959 and again in 1968. However, despite the Department's intention to
``make every effort to ensure that `housing and facilities are hygienic
and adequate to the climatic conditions of the area of employment'''
and that such housing ``conformed to applicable State or local housing
codes, and in the absence of such codes, that the housing would not
endanger the health or safety of the workers,'' farmworkers continued
to face inadequate, unsafe, and unsanitary housing. In 1970, Congress
passed the Occupational Health and Safety Act (OSHA) which was intended
to assure that every person working in the United States has safe and
healthful working conditions.'' In this light, OSHA adopted a set of
national consensus standards for temporary labor camps which was
published in August 1971. Therefore, since 1971 the Department has had
in effect two sets of agricultural housing standards for farmworkers:
Those under the ETA regulations (originally at 20 CFR part 620, later
at 20 CFR part 654) and those under the OSHA regulations (at 29 CFR
1910.142). The dual set of standards has long resulted in confusion
with respect to their applicability and enforcement. In view of these
problems, the Department held hearings in 1976 with stakeholders,
developed several proposals to arrive at a single set of standards,
and, on December 9, 1977, rescinded the ETA regulations and standards.
While the rescission was effective immediately, employers whose
housing met the ETA standards on the date of their rescission were
given until January 1, 1979 to come into compliance with the OSHA
housing regulations. Later, the Department received numerous complaints
objecting to the rescission of the ETA housing regulations, including
those from employers who had constructed housing to conform to the ETA
standards and complained that the shift from ETA to OSHA standards
would require costly modifications to housing which the Department had
previously approved. In response to these comments, the Department
proposed on September 1, 1978 to revise the December 9, 1977 rescission
action by adding an indefinite extension of time for employers already
following the ETA standards to bring their housing into compliance with
the OSHA standards and a transitional provision for housing built in
reliance on the ETA regulations.
On March 4, 1980, the Department issued a final rule providing that
the OSHA standards and regulations applied to all temporary housing for
farmworkers except that ``[e]mployers whose housing was constructed in
accordance with the ETA housing standards may continue to follow the
full set of ETA standards set forth in this subpart only where prior to
April 3, 1980 the housing was completed or under construction, or where
prior to March 4, 1980 a contract for the construction of the specific
housing was signed.'' 45 FR 14180, 14182 (Mar. 4, 1980).
The Department proposes that the remaining housing currently
governed under the standards and provisions at 20 CFR part 654 subpart
E (Housing for Agricultural Workers) be subject to the OSHA standards
and provisions beginning 1 year after the publication of the final
rule, except that mobile range housing for sheepherders and goatherders
must continue to meet existing Departmental guidelines and/or
applicable regulations. The proposed expiration date will provide
sufficient time for affected employers to transition into compliance
with the OSHA standards.
Pursuant to the January 19, 1981 agreement between OSHA, the WHD
(replacing the abolished Employment Standards Administration (ESA)),
and ETA for Inspections of Migrant Agricultural Worker Housing, the
Department's WHD will continue to be responsible for enforcing the
provisions under 29 CFR 1910.142. Beginning 1 year after the
publication of the final rule, the Department will not apply or enforce
the standards of this subpart, other than in cases relating to events
predating that expiration date.
Requiring all housing to meet the relevant OSHA standards and
eliminating the ETA standards will reduce administrative and
enforcement burdens on employers, workers, State agencies, and the
Department because they will need to reference and rely on only one set
of applicable standards located in one place. Enforcement agency staff
and State agency staff that conduct housing inspections will only need
to understand one set of standards which will ease the learning
process. Additionally, the change will benefit MSFWs as the regulations
under 29 CFR 1910.142 conform to more modern housing standards than
those under 20 CFR part 654 subpart E. The Department acknowledges that
the change will mean that some employers will need to upgrade their
farmworker housing to meet the OSHA standards. However, the benefit to
farmworkers and the administrative benefits to State agencies and the
Department outweigh the adjustments employers will need to make to
comply with the OSHA standards. In order to assist employers, the
Department will provide technical assistance to facilitate the
transition to the OSHA housing standards.
Having been in place for 34 years, it is the Department's opinion
that it is appropriate to complete the transition to the OSHA standards
begun in 1980 and to phase out in full the ETA standards grandfathered
for 34 years for farmworker housing completed or under construction
prior to March 3, 1980, or under contract for construction prior to
April 3, 1980. As in 1980, the Department continues to believe that the
OSHA regulations provide for superior standards of safety and
habitability for
[[Page 20813]]
MSFWs and do not overly burden employers.
In addition to the change described above, the Department proposes
to amend the following sections:
Section 654.400 Scope and Purpose
The Department proposes to amend Sec. 654.400 to update
terminology and explain that housing covered under the standards and
provisions of subpart E will be subject to different regulations
without grandfathering beginning 1 year after the date that this final
regulation is published.
In addition to the amendment described above, the Department
proposes to revise Sec. 654.401 for clarity, to add a new paragraph
(b), and to shorten the section heading by eliminating unnecessary
language.
Section 654.402 Variances
The Department proposes to amend Sec. 654.402 to update
terminology and remove the term ``permanent'' because, as proposed,
variances will expire on the given expiration date for the standards
and provisions of subpart E; therefore, employers will no longer be
entitled to a permanent variance. The deadline of June 2, 1980 is
removed because the Department proposes to receive applications for
temporary variances from the ETA standards until the date on which the
standards and provisions of subpart E will expire. Additionally,
paragraph (f) has been added to state that all variances and requests
for variances will expire 1 year after the publication of the final
rule requiring this change, and that no applications will be accepted
as of that date. After this change takes effect, the Department will
return any pending requests for variances to the appropriate applicant
noting that all variances and variance requests expired on that date
and are therefore stale.
Section 654.403 [Reserved]
Finally, the Department proposes that the provisions of Sec.
654.403 be deleted and relocated to 20 CFR 653.502 because they more
directly relate to the governance and operation of the ARS rather than
the condition of worker housing. Section 654.403 provides for
conditional access to the clearance order system administered by the
relevant State workforce agency which is needed to effectively service
employers whose housing has fallen temporarily out of compliance with
the applicable housing standards during a period of use in the previous
year, and where the employer has not had an opportunity to bring the
housing back into compliance.
The following sections of part 654 remain unchanged: Sec. Sec.
654.404, 654.405, 654.406, 654.407, 654.408, 654.409, 654.410, 654.411,
654.412, 654.413, 654.414, 654.415, 654.416, and 654.417.
Q. Part 658--Administrative Provisions Governing the Employment Service
System
20 CFR part 658 sets forth systems and procedures for complaints,
monitoring for compliance assessment, enforcement and sanctions for
violations of the ES regulations and employment-related laws, including
discontinuation of services to employers and decertification of State
agencies.
The Department's proposed changes update terminology and
responsibilities and reorganize various regulations to increase the
clarity and efficiency of the provisions involved. Additionally,
headings have been revised, when necessary, to reflect proposed changes
to the regulations, and language has been added to permit, where
relevant, the use of electronic mail and electronic signatures. The
complaint system under 20 CFR part 658 does not apply to complaints
filed under WIOA title I.
During the 1980 rulemaking, the Department received numerous
comments about the proposed complaint system at 20 CFR part 658 subpart
E (Complaint System) including comments that focused on the limited
staff resources available to provide all labor exchange services
including the handling of complaints. The Department took those
comments into account and limited the complaint system to only take in
writing those complaints that were ``Job Service (JS) related or those
non-JS related complaints that [were] filed by MSFWs alleging
violations of laws enforced by ESA or OSHA.'' (Since the dissolution of
ESA on Nov. 8, 2009, the WHD has taken on the relevant enforcement
responsibilities (45 FR 39454, 39456 (June 10, 1980.)) The Department
now believes it is appropriate and consistent with the Richey Order to
allow most employment-related law complaints by MSFWs to be recorded,
referred, and tracked to resolution (except those that relate to WIOA
title I complaints which follow a different process--see WIOA title I
sec. 181(c)). Technological advances in the workplace since 1980, such
as the widespread use of computer software and systems, have made
performing such work feasible with limited staff resources.
Additionally, recording, referring, and tracking to resolution the
additional complaints will help, directly or indirectly, to deter the
employment-related discrimination and abuses that MSFWs continue to
suffer throughout the United States.
The Department proposes to revise the heading for 20 CFR part 658
subpart E from ``Job Service Complaint System'' to ``Employment Service
and Employment-Related Law Complaint System (Complaint System)'' to
accurately reflect what the Complaint System covers. The Department
proposes to eliminate Sec. 658.401 and fold its revised provisions
that relate to the purpose and scope of the subpart into Sec. 658.400.
Regarding provisions concerning the complaint system at the State
level, the Department proposes to restructure the previous Sec. Sec.
658.410 through 658.418 by placing them in Sec. 658.411 and breaking
them down into subsections for complaints alleging violation(s) of
employment-related laws and subsections on complaints alleging
violation(s) of the ES regulations. Those subsections are further
broken down based on whether the complainant is an MSFW or not.
Proposed new Sec. Sec. 658.410 and 658.411 provide an overview of the
Complaint System as it pertains to all persons who submit a complaint
and as it pertains specifically to MSFWs who submit a complaint.
Section 658.410 Establishment of Local and State Complaint Systems
In Sec. 658.410(c)(2), it is proposed that quarterly complaint
logs be submitted to the SMA and the State Administrator rather than to
the Regional Administrator, unless requested. This change is proposed
to increase the efficiency of the Regional Administrator's position
that does not require the routine review of the multitude of highly
detailed logs.
Section 658.411 Action on Complaints
Section 658.411 is expanded to incorporate the majority of the
provisions currently in Sec. Sec. 658.412 through 658.417 in the
interest of streamlining and clarity. The Department proposes to
eliminate Sec. Sec. 659.412 through 658.417 as separate sections. Not
included in Sec. 658.411, however, is the reference currently in Sec.
658.414(a) to 29 CFR part 42 because the proposed revisions to the
complaint system call for coordination with all relevant enforcement
agencies concerning MSFW complaints, and provisions at 29 CFR part 42
discuss such coordination only between WHD, OSHA, and the ETA. This new
approach ensures that State and local officials will consider
forwarding employment-related law complaints to a broader group of
enforcement agencies. Also excluded from proposed Sec. 658.411 is the
[[Page 20814]]
text of current Sec. 658.414(c) that has become redundant because
proposed Sec. 658.410 also states that all complaints filed by an MSFW
must be recorded. The Department proposes to add new Sec. 658.419 that
will incorporate the relocated provisions of 20 CFR 653.113 (Apparent
Violations) because those provisions set forth the procedures for State
agency employees to follow when they become aware of an apparent
violation of employment-related law or of the ES regulations which is
more appropriately located in 20 CFR part 658 subpart E than in 20 CFR
part 653 subpart B that concerns services for MSFWs.
Proposed Sec. 658.411(d)(6) indicates that complaints alleging
violations of the ES regulations will be handled to resolution if the
complaint was made within 2 years from the date of occurrence, versus
the 1 year provided currently at Sec. 658.401. A 2-year limitations
period would be consistent with the limitations period for non-willful
violations of the Fair Labor Standards Act, a worker protective statute
of general application that applies to employment in agriculture and
from which the definition of farmwork in 20 CFR 651.10 is largely
drawn. Increasing the limitations period to 2 years will provide
greater protections to those participating in the ES system by
accommodating those individuals that do not feel comfortable filing or
are not able to file complaints within a year from the alleged
occurrence. Increasing the limitations period by 1 year will not
increase the burden on State agencies or employers because the Uniform
Administrative Requirements for the Wagner-Peyser grant already
requires the retention of all financial and programmatic records,
supporting documents, and statistical records for 3 years, and those
records, in many cases, will contain information bearing on complaints
filed within the 2-year limitations period. Finally, as with complaints
filed under the FLSA, there is little risk that a complaint will become
stale if it is filed 2 years after an alleged occurrence. The 2-year
limitations period would not apply to employment-related law complaints
as each enforcement agency has its own respective limitations period
for which it can process complaints.
It is proposed that Sec. Sec. 658.420 through 658.426 be
restructured to conform to the restructured regulations for the
Complaint System at the State level in which the system is broken down
into employment law-related complaints and complaints relating to the
ES regulations.
Section 658.422 Handling of Employment-Related Law Complaints by the
Regional Administrator
The Department proposes to revise Sec. 658.422 by replacing in
Sec. 658.422(a) the reference to ``ESA or OSHA'' with ``the
appropriate enforcement agency'' to allow for complaints to be referred
to the appropriate agency and not confined to two agencies within the
Department. Also proposed is the elimination of Sec. 658.422(d)
because its requirement to log all complaints and related
correspondence is already set forth in Sec. 658.420(d). The Department
also proposes to eliminate Sec. 658.423 as a separate section and
incorporate its provisions in Sec. 658.420 that addresses the handling
and other treatment of complaints.
Section 658.424 Proceedings Before the Office of Administrative Law
Judges
Per Sec. 658.424(b), the Department proposes to clarify that the
rules governing procedures before the Department's OALJ at subpart A of
29 CFR part 18 govern proceedings under Sec. 658.424, except where the
provisions of Sec. Sec. 658.424 and 658.425 conflict with the
provisions of that subpart. However, the rules of evidence at subpart B
of 29 CFR part 18 do not apply to this section. This change is proposed
to ensure consistency with other ETA programs.
Section 658.501 Basis for Discontinuation of Services
In 20 CFR part 658 subpart F, it is proposed that language be added
to Sec. 658.501(c) to clarify the procedures a State agency must
follow when an employer participating in the ES system has allegedly
not complied with the terms of the temporary labor certification.
In 20 CFR part 658 subpart G, it is proposed that the references to
Sec. Sec. 658.620 and 658.621 be deleted from Sec. 658.600 because
those sections are reserved. It is also proposed that under Sec.
658.601(a)(1)(ii), ``Employment Security Automated Reporting System
(ESARS) tables and Cost Accounting Reports'' be replaced with ``the
Department's ETA 9002A report, or any successor report required by the
Department'' to conform to what is currently utilized.
In 20 CFR part 658 subpart H, the Department proposes to replace
outdated or otherwise incorrect terminology. For example, ETA is
replaced by the Department, State agency is replaced by State Workforce
Agency (SWA), and JS is replaced with ES.
Finally, recognizing that almost all correspondence, formal filings
and submissions, and other exchanges of documents and information
between the public and the Department are conducted electronically,
these regulations clarify that any required filing or submission of
documents, etc. via mail or hard copy may also be accomplished
electronically.
V. Rulemaking Analyses and Notices
A. Executive Orders 12866 and 13563: Regulatory Planning and Review
Executive Order (E.O.) 12866 directs agencies, in deciding whether
and how to regulate, to assess all costs and benefits of available
regulatory alternatives, including the alternative of not regulating.
E.O. 13563 is supplemental to and reaffirms E.O. 12866. It emphasizes
the importance of quantifying present and future benefits and costs;
directs that regulations be adopted with public participation; and
where relevant and feasible, directs that regulatory approaches be
considered that reduce burdens, harmonize rules across agencies, and
maintain flexibility and freedom of choice for the public. Costs and
benefits are to include both quantifiable measures and qualitative
assessments of possible impacts that are difficult to quantify. If
regulation is necessary, agencies should select regulatory approaches
that maximize net benefits. OMB determines whether a regulatory action
is significant and, therefore, subject to review.
Section 3(f) of E.O. 12866 defines a ``significant regulatory
action'' as any action that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising from legal mandates,
the President's priorities, or the principles set forth in E.O. 12866.
Summary of the analysis. The Department provides the following
summary of the regulatory impact analysis:
(1) The proposed rule is a ``significant regulatory action'' under
WIOA sec. 3(f)(4) of E.O. 12866; therefore, OMB has reviewed the
proposed rule.
[[Page 20815]]
(2) The proposed rule would have no cost impact on small entities.
(3) The proposed rule would not impose an unfunded mandate on
Federal, State, local, or tribal governments as defined by the Unfunded
Mandates Reform Act of 1995.
In total, the Department estimates that this NPRM would have an
average annual cost of $38,437,779 and a total 10-year cost of
$305,556,353 (with 7-percent discounting). The largest contributor to
the cost is the requirement related to the development and continuous
improvement of the workforce development system, followed by the career
pathways development and the colocation of Wagner-Peyser services.
The Department was unable to quantify several important benefits to
society due to data limitations or lack of existing data or evaluation
findings on particular items. Based on a review of empirical studies
(primarily studies published in peer-reviewed academic publications and
studies sponsored by the Department), we identified a variety of
societal benefits: (1) Training services increase job placement rates;
(2) participants in occupational training experience higher
reemployment rates; (3) training is associated with higher earnings;
and (4) State performance accountability measures, in combination with
the board membership provision requiring employer/business
representation, can be expected to improve the quality of the training
and, ultimately, the number and caliber of job placements. We
identified several channels through which these benefits might be
achieved: (1) Better information about training providers will enable
workers to make better informed choices about programs to pursue; (2)
sanctions to under-performing States will serve as an incentive for
both States and local entities to monitor performance more effectively
and to intervene early; and (3) enhanced services for dislocated
workers, self-employed individuals, and workers with disabilities will
lead to the benefits discussed above.
The Department requests comment on the costs and benefits of this
NPRM with the goal of ensuring a thorough consideration and discussion
at the Final Rule stage.
1. Need for Regulation
Public Law 113-128, the Workforce Innovation and Opportunity Act,
enacted on July 22, 2014, statutorily requires publication of proposed
implementation regulations not later than 180 days after the date of
enactment. The Department has determined that implementing regulations
are necessary in order for the WIOA program to be efficiently and
effectively operated and that such regulations shall provide Congress
and others with uniform information necessary to evaluate the outcomes
of the new workforce law.
2. Alternatives in Light of the Required Publication of Proposed
Regulations
OMB Circular A-4, which outlines best practices in regulatory
analysis, directs agencies to analyze alternatives outside the scope of
their current legal authority if such alternatives best satisfy the
philosophy and principles of E.O. 12866. While the WIOA provides little
regulatory discretion, the Department assessed, to the extent feasible,
alternatives to the proposed regulations.
In this NPRM, the Department considered significant alternatives to
accomplish the stated objectives of the WIOA while also attempting to
minimize any significant economic impact of the proposed rule on small
entities. This analysis considered the extent to which WIOA's
prescriptive language presented any regulatory options which would also
allow for achieving the Act's articulated program goals. The
Department, in many instances, has reiterated the Act's language in the
regulatory text and expansions are offered for clarification and
guidance to the regulated community. The additional regulatory guidance
should create more efficient administration of the program by reducing
ambiguities and subsequent State and local revisions as a result of
unclear statutory language.
In addition, the Department considered and, where feasible,
proposed to issue sub-regulatory guidance in lieu of additional
regulatory requirements. This policy option has two primary benefits to
small entities. First, guidance will be issued following publication of
the rules, thereby allowing States, local areas, and small entities
additional time to prepare their compliance efforts. Second, this level
of guidance is more flexible in nature, allowing for faster
modifications and any subsequent issuances, as necessary.
The Department considered three possible alternatives:
(1) To implement the changes prescribed in WIOA, as noted in this
NPRM, thereby satisfying the statutory mandate; or
(2) To take no action, that is, to attempt to implement the WIOA
utilizing existing Workforce Innovation Act (WIA) regulations; or
(3) To not publish regulation and rescind existing WIA final
regulations and, thereby ignoring the WIOA statutory requirement to
publish implementing regulations thus forcing the regulated community
to follow statutory language for implementation and compliance
purposes.
The Department considered these three options in accordance with
the provisions of E.O. 12866 and chose to publish the WIOA NPRM, that
is, the first alternative. The Department considered the second
alternative, that is, retaining existing WIA regulations as the guide
for WIOA implementation, but believes that the requirements have
changed substantially enough that new implementing regulations are
necessary for the workforce system to achieve program compliance. The
Department considered the third alternative, that is, to not publish an
implementing regulation and rescind existing WIA final regulations, but
rejected it because the WIOA legislative language in and of itself does
not provide sufficient detailed guidance to effectively implement WIOA;
thus, regulations are necessary to achieve program compliance.
In addition to the regulatory alternatives noted above, the
Department also considered whether certain aspects of the WIOA could be
phased in over a prescribed period of time (different compliance
dates), thereby allowing States and localities additional time for
planning and successful implementation. As a policy option, this
alternative appears appealing in a broad theoretical sense and where
feasible (e.g., Wagner-Peyser colocation of services), the Department
has recognized and made allowances for different schedules of
implementation. However, upon further discussion and in order to begin
to achieve the intended legislative benefits of the WIOA, additional
implementation delays beyond those noted in this NPRM may create
potentially more issues than the benefit of alternative starting dates.
Specifically, as many critical WIOA elements follow upon the
implementation of other provisions (e.g., technology and performance
reporting are intrinsically related), discussions around delaying
additional aspects became quite complicated such that the
interrelatedness of the WIOA's requirements suggested that the
alternative of delaying additional aspects was not operationally
feasible.
Furthermore, the data necessary to fully review this option does
not yet exist, and will not until local workforce development boards
(WDBs) conduct procurements and announce awards.
[[Page 20816]]
Similarly, performance standards will be negotiated at a future time
and based upon a variety of factors including State and local economic
conditions, resources, and priorities. Establishing proposed standards
in advance of this statutorily-defined process may not be an efficient
or effective action. The enforcement methods described in the proposed
rule are a reflection of prescribed WIOA requirements and entity size
should not in and of itself create alternative methods for compliance
or different time periods for achieving compliance. Although the
Department has not determined sufficiently valid reasons for altering
compliance timeframes in addition to those described in the proposed
rule for small entities, we seek comment on this issue.
The Department's initial impact analysis has concluded that by
virtue of WIOA's prescriptive language, particularly the requirement to
publish implementing regulations within 180 days, there are no viable
regulatory alternatives available other than those discussed above.
The Department requests comment on these or other alternatives,
including alternatives on the specific provisions contained in this
NPRM, with the goal of ensuring a thorough consideration and discussion
at the Final Rule stage.
3. Analysis Considerations
The Department derives its estimates by comparing the existing
program baseline, i.e., the benefits and costs associated with current
practices, which at a minimum, must comply with the 2000 WIA Final Rule
(65 FR 49294, Aug. 11, 2000), against the additional benefits and costs
associated with implementation of provisions contained in this WIOA-
required NPRM.
For a proper evaluation of the additional benefits and costs of
this NPRM, the Department explains how the required actions of States,
WDBs, employers and training entities, government agencies, and other
related entities are linked to the expected benefits and estimated
costs. We also considered, where appropriate, the unintended
consequences of the proposed regulations introduced by this NPRM. The
Department makes every effort, when feasible, to quantify and monetize
the benefits and costs of this NPRM. The Department was unable to
quantify the benefits associated with the proposed rule because of data
limitations and a lack of operational data or evaluation findings on
the provisions of the proposed rule or WIOA in general. Therefore, we
describe the benefits qualitatively. We followed the same approach when
we were unable to quantify the costs.
Throughout the benefit-cost analysis, the Department made every
effort to identify and quantify all potential incremental costs
associated with the implementation of WIOA as distinct from what
already exist under WIA, WIOA's predecessor statute. Despite our best
estimation efforts, however, the Department might be double-counting
some activities that are already happening under WIA. Thus, the costs
itemized below represent an upper bound of the potential cost of
implementing the statute. The Department requests comment on its cost
estimates, specifically in terms of whether it has accurately captured
the additional costs associated with the implementation of WIOA.
In addition to this NPRM, the Departments of Labor and Education
have proposed a joint NPRM to implement specific requirements of WIOA
that fall under both Departments' purviews. While we acknowledge that
these proposed rules and their associated impacts may not be wholly
independent from one another, we are unaware of any reliable method of
quantifying the effects of this interdependence. Therefore, our
analysis does not capture the correlated impacts of the benefits and
costs of this proposed rule and those associated with the other NPRMs.
We request comments from the public about the appropriateness of this
assumption.
In accordance with the regulatory analysis guidance contained in
OMB Circular A-4 and consistent with the Department's practices in
previous rulemakings, this regulatory analysis focuses on the likely
consequences (benefits and costs that accrue to citizens and residents
of the United States) of this WIOA-required NPRM. The analysis covers
10 years (2015 through 2024) to ensure it captures major additional
benefits and costs that accrue over time. The Department expresses all
quantifiable impacts in 2013 dollars and use 3-percent and 7-percent
discounting following OMB Circular A-4.
Exhibit 1 presents the estimated number of entities expected to
experience an increase in level of effort (workload) due to the
proposed requirements contained in this NPRM. These estimates are
provided by the Department and are used extensively throughout this
analysis to calculate the estimated cost of each proposed provision.
Exhibit 1--Number of Affected Entities by Type
------------------------------------------------------------------------
Number of
Entity type entities
------------------------------------------------------------------------
States impacted by DOL program requirements................ \6\ 56
States without collocated Wagner-Peyser offices and one- \7\ 10
stops.....................................................
States without sector strategies........................... \2\ 21
States that need to create Unified State Plans............. \2\ 14
States that must pay their share for proportionate use of \2\ 54
one-stop delivery systems.................................
Local areas without collocated Wagner-Peyser offices and \2\ 100
one-stops.................................................
Workforce development boards............................... \2\ 580
Workforce development boards selecting one-stop operators.. \2\ 250
Local Boards performing regional plan modifications........ \2\ 300
------------------------------------------------------------------------
Transfer Payments
---------------------------------------------------------------------------
\6\ Ibid.
\7\ Department of Labor estimate.
---------------------------------------------------------------------------
In addition, the Department provides an assessment of transfer
payments associated with transitioning the nation's public workforce
system from the requirements of WIA to new requirements imposed by
WIOA. In accordance with OMB Circular A-4, we consider transfer
payments as payments from one group to another that do not affect total
resources available to society. For example, under WIOA, partners are
required to pay their share for proportionate use of one-stop delivery
systems. Partners receive sufficient Federal funding to cover these
payments, rendering this payment a transfer rather than a new cost.
Under-performing States will also receive sanctions under WIOA, which
are similarly classified as transfers as they result in the de-
obligation of funds from the State's set-aside. In accordance with the
State allotment provisions noted in WIOA sec. 127, the interstate
funding formula methodology is not significantly different than that
utilized for the distribution of WIA funds. Final program year grant
allocations will reflect WIOA requirements and are under development.
One example of transfer payments is the expectation that available
U.S. workers trained and hired who were previously unemployed will no
longer need to seek new or continued unemployment insurance benefits.
Assuming other factors remain constant, the Department expects State
unemployment insurance expenditures to decline because of the hiring of
U.S.
[[Page 20817]]
workers following WIOA implementation. The Department, however, cannot
quantify these transfer payments due to a lack of adequate data.
In the subject-by-subject analysis, the Department presents the
additional labor and other costs associated with the implementation of
each of the proposed provisions in this NPRM. Exhibit 2 presents the
compensation rates for the occupational categories expected to
experience an increase in level of effort (workload) due to the
proposed rule. We used wage rates from the Bureau of Labor Statistics'
Mean Hourly Wage Rate for private and State employees.\8\ For
simplicity, we applied State-level wages to local employees. We also
used wage rates from the Office of Personnel Management's Salary Table
for the 2013 General Schedule for Federal employees.\9\ We adjusted the
wage rates using a loaded wage factor to reflect total compensation,
which includes health and retirement benefits. For the State and local
sectors, we used a loaded wage factor of 1.55, which represents the
ratio of total compensation \10\ to wages.\11\ For Federal employees,
we used a loaded wage factor of 1.69 based on internal data from DOL.
We then multiplied the loaded wage factor by each occupational
category's wage rate to calculate an hourly compensation rate.
---------------------------------------------------------------------------
\8\ Bureau of Labor Statistics, May 2013, National Occupational
Employment and Wage Estimates, retrieved from: http://www.bls.gov/oes/current/oes_nat.htm.
\9\ The wage rate for Federal employees is based on Step 5 of
the General Schedule (source: OPM, 2013, Salary Table for the 2013
General Schedule, retrieved from: http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2013/general-schedule/gs_h.pdf).
\10\ BLS Employment Cost Index, 2013 Average Series ID
CMU3010000000000D, CMU3010000000000P (source: Bureau of Labor
Statistics, 2013 Employer Costs for Employee Compensation, retrieved
from: http://www.bls.gov/schedule/archives/ecec_nr.htm).
\11\ The State and local loaded wage factor was applied to all
non-Federal employees. Discerning the number of State and local-
sector employees and private-sector employees at the local level is
difficult; therefore, the Department used the State and local-sector
loaded wage factor (1.55) instead of the private-sector wage factor
(1.42) for all non-Federal employees to avoid underestimating the
costs.
---------------------------------------------------------------------------
The Department invites comments regarding the assumptions used to
estimate the level of additional effort required for the various
proposed new activities, as well as data sources for the wages and the
loaded wage factors that reflect employee benefits used in the
analysis.
The Department uses the hourly compensation rates presented in
Exhibit 2 throughout this analysis to estimate the additional labor
costs for each proposed provision.
---------------------------------------------------------------------------
\12\ BLS OES, May 2013, 43-0000 Office and Administrative
Support Occupations (http://www.bls.gov/oes/current/999201.htm#43-0000).
\13\ BLS OES, May 2013, 23-10111 Lawyers (http://www.bls.gov/oes/current/999201.htm#23-0000).
\14\ BLS OES, May 2013, 15-1131 Computer Programmers (http://www.bls.gov/oes/current/oes151131.htm).
\15\ BLS OES, May 2013, 11-1021 General and Operations Managers
(http://www.bls.gov/oes/current/999201.htm#11-0000).
\16\ BLS OES, May 2013, average for the following occupational
categories weighted by the number of employees in State government:
15-1131 Computer Programmers; 15-1132 Software Developers,
Applications; 15-1133 Software Developers, Systems Software; and 15-
1134 Web Developers (http://www.bls.gov/oes/current/999201.htm#15-0000).
Exhibit 2--Calculation of Hourly Compensation Rates
----------------------------------------------------------------------------------------------------------------
Hourly
Position Grade level Average hourly Loaded wage compensation
wage factor rate
.............. a b c = a x b
----------------------------------------------------------------------------------------------------------------
State and Local Employees
Administrative staff \12\....................... N/A $17.96 1.55 $27.84
Legal counsel staff \13\........................ .............. 40.68 .............. 63.05
IT reprogramming or database development staff .............. 38.91 .............. 60.31
\14\...........................................
Managers \15\................................... .............. 45.32 .............. 70.25
Technical staff \16\............................ .............. 43.38 .............. 67.24
----------------------------------------------------------------------------------------------------------------
The section-by-section analysis presents the total incremental cost
of the proposed rule relative to the baseline, i.e., the current
practice. At a minimum, all affected entities are currently required to
comply with the 2000 WIA Final Rule (65 FR 49294, Aug. 11, 2000);
however, some affected entities may already be in compliance with some
provisions of the proposed rule. This analysis estimates the
incremental costs that would be incurred by affected entities which are
not yet compliant with the proposed rule. The equation below shows the
method by which the Department calculated the incremental total cost
for each provision over the 10-year analysis period.
[GRAPHIC] [TIFF OMITTED] TP16AP15.002
Where,
Al Number of affected entities that would incur labor
costs,
Ni Number of staff of labor type i,
Hi Hours required per staff of labor type i,
Wi Mean hourly wage of staff of labor type i,
Li Loaded wage factor of staff of labor type i,
Aj Number of affected entities incurring non-labor costs
of type j,
Cj Non-labor cost of type j,
i Staff type,
n Number of staff types,
j Non-labor cost type,
m Number of non-labor cost types,
T Year.
The total cost of each provision is calculated as the sum of the
total labor cost and total non-labor cost incurred each year over the
10-year period (see Exhibit 3 for the 10-year cost of the proposed rule
by provision). The total labor cost is the sum of the labor costs for
each labor type i (e.g., administrative
[[Page 20818]]
staff, legal counsel staff, and managers) multiplied by the number of
affected entities that will incur labor costs, Al. The labor
cost for each labor type i is calculated by multiplying the number of
staff required to perform the proposed activity, Ni; the
hours required per staff member to perform the proposed activity,
Hi; the mean hourly wage of staff of labor type i,
Wi; and the loaded wage factor of staff of labor type i,
Li. The total non-labor cost is the sum of the non-labor
costs for each non-labor cost type j (e.g., consulting costs)
multiplied by the number of affected entities that will incur non-labor
costs, Aj.
4. Subject-by-Subject Analysis
The Department's analysis below covers the expected impacts of the
following proposed provisions of the WIOA NPRM against the baseline of
the current practice under WIA: (a) New State Workforce Development
Board Membership Requirements; (b) Development and Continuous
Improvement of the Workforce Development System; (c) Development of
Statewide Policies Affecting the State's One-stop System; (d)
Development of Strategies for Technological Improvements; (e) State
Plan Modification; (f) Identification of Regions; (g) Appoint New Local
Workforce Development Board and Appropriate Firewalls; (h) Career
Pathways Development; (i) Development of Proven and Promising
Practices; (j) Technology; (k) Selection of the One-stop Operator; (l)
Coordination with Education Providers; (m) Regional Plans; (n) Local
and Regional Plan Modification; (o) Improved Information about
Potential Training Program Providers; (p) Sanctions on Under-performing
States; (q) Colocation of Wagner-Peyser Services; (r) Partners Required
to Pay their Share for Proportionate Use of One-stop Delivery System;
(s) Establishing Training Provider Eligibility Procedures, Including
Adding Registered Apprenticeship; (t) Determining Eligibility of New
and Previously Eligible Providers; (u) Biennial Review of Eligibility;
(v) Disseminating the Training Provider List with Accompanying
Information; and (w) Migrant and Seasonal Farmworker (MSFW) Housing.
The Department emphasizes that many of the proposed provisions in
this WIOA-required NPRM are also existing requirements under WIA. For
example, the requirement that States ``prepare annual reports'' is a
current requirement under WIA that States routinely undertake.
Accordingly, our regulatory analysis focuses on ``new'' benefits,
costs, and transfers that can be attributed exclusively to the
enactment of WIOA, as addressed in this NPRM. Much of WIA's
infrastructure and operations are carried forward under WIOA and,
therefore, are not considered ``new'' cost burdens under this NPRM.
a. New State Workforce Development Board Membership Requirements
States must establish State WDBs in accordance with the
requirements of WIOA sec. 101. Under WIOA sec. 101(b)(1)(C)(i), the
majority of the State WDB representatives must be from businesses or
organizations in the State. These representatives must be owners or
chief executives or operating officers of the businesses or executives
with optimum policy-making or hiring authority. WIOA sec.
101(b)(1)(C)(iii)(I) requires the Governor to appoint to the State WDB
representatives of government that include the lead State officials
with primary responsibility for each core program and two or more Chief
Elected Officials (CEOs) that represent both cities and counties, where
appropriate. In accordance with WIOA sec. 101(b)(2), State WDB
membership must represent the diverse geographic areas of the State.
Costs
To estimate State WDB costs, the Department multiplied the
estimated average number of managers per State (1) by the time required
to adjust the State WDB membership (20 hours) and by the hourly
compensation rate. We repeated the calculation for the following
occupational categories: Legal counsel staff (1 staff member for 15
hours), technical staff (2 staff for 20 hours each), and administrative
staff (1 staff member for 20 hours). We summed the labor cost for all
four personnel categories ($5,597) and multiplied the result by the
number of States (56). This would result in a one-time cost of $313,435
in the first year of the proposed rule, which amounts to an average
annual cost of $31,343.
b. Development and Continuous Improvement of the Workforce Development
System
WIOA sec. 101(d)(3)(A) through (G) require that the State WDB
assist the Governor in the development and continuous improvement of
the State's workforce development system, including identifying
barriers and means for removing barriers to aligning programs and
activities; developing or expanding sector-based training and career
pathways proven to support individuals to seeking to enter and retain
employment; developing customer outreach strategies; identifying
regions and designating local workforce development areas; developing
and continuously improving the one-stop system; and developing
strategies to train and inform staff.
Costs
The Department estimated the State WDBs' annual labor costs for
developing or expanding sector strategies by multiplying the estimated
average number of managers per State (1) by the time required to review
the workforce development system (300 hours) and the hourly
compensation rate. We performed the same calculation for the technical
staff (2 staff for 1,260 hours each). We summed the labor cost for both
categories ($190,516) and multiplied the result by the number of States
that do not have extensive and systematic sector strategies (21). Over
the 10-year period, this calculation yields an estimated recurring
annual cost of $4,000,838.
Similarly, the State WDBs' annual labor cost for expanding career
pathways strategies was estimated by multiplying the estimated average
number of managers per State (1) by the time required to review the
workforce development system (300 hours) and the hourly compensation
rate. The Department repeated the calculation for the technical staff
(2 staff for 1,260 hours each). We summed the labor cost for the two
occupational categories ($190,516) and multiplied the result by the
number of States that do not have policies for career pathways
(27).\17\ Over the 10-year period, this calculation yields an estimated
recurring annual cost of $5,143,934.
---------------------------------------------------------------------------
\17\ The number of States that have not established career
pathways is provided in the ``National Dialogue on Career Pathways
Viewing Party Guide.''
---------------------------------------------------------------------------
The Department estimated the labor cost that State WDBs would incur
to identify regions by multiplying the estimated average number of
managers per State (1) by the time required to review the workforce
development system (40 hours) and the hourly compensation rate. We
performed the same calculation for the following occupational
categories: legal counsel staff (1 staff member for 40 hours),
technical staff (1 staff member for 80 hours), and administrative staff
(1 staff member for 20 hours). We summed the labor cost for all four
personnel categories ($11,268) and multiplied the result by the number
of States (56) to estimate this one-time cost of $631,001. Over the 10-
year period, this calculation
[[Page 20819]]
yields an average annual cost of $63,100.
The sum of these costs yields a total one-time cost of $631,001 and
an annual cost of $9,144,772, which results in a total average annual
cost of $9,207,872 for individuals from the State level to review the
workforce development system.
c. Development of Statewide Policies Affecting the State's One-Stop
System
Under WIOA sec. 101(d)(6), State WDBs must assist State Governors
in developing and reviewing statewide policies affecting the
coordinated provision of services through the State's one-stop delivery
system, including policies concerning objective criteria for Local
Boards to assess one-stop centers, guidance for the allocation of one-
stop center infrastructure funds, and policies relating to the roles
and contributions of one-stop partners within the one-stop delivery
system.
Costs
The Department estimated the labor cost that State WDBs would incur
by multiplying the estimated average number of managers per State (1)
by the time required to provide objective criteria and procedures (40
hours) and the hourly compensation rate. We performed the same
calculation for the legal counsel staff (1 staff member for 40 hours)
and technical staff (2 staff for 120 hours). We summed the labor cost
for all three personnel categories ($21,469) and multiplied the result
by the number of States (56) to estimate this one-time cost at
$1,202,284, which results in an average annual cost of $120,228.
d. Development of Strategies for Technological Improvements
Under WIOA sec. 101(d)(7), State WDBs must assist State Governors
in the development of strategies for technological improvements to
facilitate access and quality of services and activities provided
through the one-stop delivery system. These strategies include
improvements to enhance digital literacy skills, accelerate acquisition
of skills and recognized post-secondary credentials by participants,
strengthen professional development of providers and workforce
professionals, and ensure technology is accessible to individuals with
disabilities and individuals residing in remote areas.
Costs
The Department estimated the labor cost that State WDBs would incur
by multiplying the estimated average number of managers per State (1)
by the time required to develop strategies (20 hours) and the hourly
compensation rate. We repeated the calculation for the technical staff
(1 staff member for 40 hours). We summed the labor cost for both
categories ($4,094) and multiplied the result by the number of States
(56) to estimate a recurring annual cost of $229,291.
e. State Plan Modification
Under WIOA sec. 102(c)(3)(B), a Governor may submit a modification
of its Unified State Plan at any time during the 4-year period of the
Plan. Under WIOA sec. 102(c)(3)(A), at a minimum, a State is required
to submit modifications to its Unified State Plan at the end of the
first 2-year period of any 4-year plan and also under specific
circumstances.
The Department expects that the initial 4-year State Plans would be
highly speculative. Therefore, we anticipate that some States would
make substantial modifications to the State Plans based on the
experiences gained by operating under WIOA for the first two years.
Based on past experience, we do not expect any subsequent modifications
to present a substantial burden.
Costs
The Department estimated the labor cost the State WDBs would incur
by multiplying the estimated average number of managers per State (1)
by the time required to review and modify a 4-year State Plan (10
hours) and the hourly compensation rate. We repeated the calculation
for the following labor categories: legal counsel staff (1 staff member
for 4 hours), technical staff (2 staff for 10 hours each), and
administrative staff (1 staff member for 4 hours). We summed the labor
cost for all four personnel categories ($2,411) and multiplied the
result by the number of States (56) to estimate this one-time cost as
$135,005, which results in an average annual cost of $13,501.
f. Identification of Regions
Under WIOA sec. 101(d)(3)(E), State WDBs must assist State
Governors in the identification of regions, including planning regions,
for the purposes of WIOA sec. 106(a), and the designation of local
areas under WIOA sec. 106, after consultation with Local Boards and
CEOs. According to WIOA sec. 106(a)(1), identification of regions is
part of the process for developing the State Plan, and is necessary to
receive an allotment under other provisions of the statute.
Costs
The Department estimated this labor cost for State WDBs by first
multiplying the estimated average number of managers per State (2) by
the time required to identify regions in the State (40 hours) and the
hourly compensation rate. We performed the same calculation for the
following occupational categories: legal counsel staff (1 staff member
for 10 hours), technical staff (3 staff for 15 hours each), and
administrative staff (2 staff for 10 hours each). We summed the labor
cost for all four personnel categories ($9,833) and multiplied the
result by the number of States (56) to estimate this cost as $550,633,
occurring in 2016 and 2020 and resulting in an average annual cost of
$110,127.
g. Appoint New Local Workforce Development Board and Appropriate
Firewalls
The Local WDB is appointed by the CEOs in each local area in
accordance with State criteria established under WIOA sec. 107(b), and
is certified by the Governor every two years, in accordance with WIOA
sec. 107(c)(2). The procedures for sole-source selection of one-stop
operators include requirements about maintaining written documentation
and developing appropriate firewalls and conflict-of-interest policies.
A Local Board can be selected as a one-stop operator through a sole-
source procurement only if the board establishes sufficient firewalls
and conflict-of-interest policies and procedures that are approved by
the Governor.
Costs
The Department estimated the labor costs incurred by WDBs by
multiplying the estimated average number of managers per WDB (1) by the
time required to appoint a new Local Board (20 hours) and the hourly
compensation rate. We performed the same calculation for the following
occupational categories: legal counsel staff (1 staff member for 15
hours), technical staff (2 staff for 20 hours each), and administrative
staff (1 staff member for 20 hours). We summed the labor cost for the
four occupational categories ($5,597) and multiplied the result by the
number of WDBs (580) to estimate this one-time cost as $3,246,289,
which results in an average annual cost of $324,629.
Additionally, the Department estimated the labor cost for WDBs to
develop written agreements by multiplying the estimated average number
of managers per WDB (1) by the time required to develop written
[[Page 20820]]
agreements (8 hours) and the hourly compensation rate. We repeated the
calculation for the legal counsel staff (1 staff member for 8 hours)
and technical staff (1 staff member for 20 hours). We summed the labor
cost for the three occupational categories ($2,411) and multiplied the
result by the number of WDBs (580) to estimate this one-time cost as
$1,398,484, which results in an average annual cost of $139,848.
In total, these calculations yield a one-time cost of $4,644,773
which results in an average annual cost of $464,477 for individuals
from the local level to appoint new boards and set administrative
firewalls that avoid conflicts of interest.
h. Career Pathways Development
Under WIOA sec. 107(d)(5), Local Boards must, with representatives
of secondary and post-secondary education programs, lead efforts to
develop and implement career pathways within the local area by aligning
the employment, training, education, and supportive services that are
needed by adults and youth, particularly individuals with barriers to
employment.
Costs
The Department estimated the labor cost for WDBs by first
multiplying the estimated average number of managers per WDB (1) by the
time required to develop and implement career pathways (80 hours) and
the hourly compensation rate. We performed the same calculation for the
following occupational categories: legal counsel staff (1 staff member
for 10 hours), technical staff (1 staff member for 80 hours), and
administrative staff (1 staff member for 20 hours). We summed the labor
cost for all four personnel categories ($12,186) and multiplied the
result by the number of WDBs (580) to estimate this recurring annual
cost of $7,067,938.
i. Development of Proven and Promising Practices
Under WIOA sec. 107(d)(6), Local Boards must lead efforts in the
local area to identify and promote proven and promising strategies and
initiatives for meeting the needs of employers, workers, and jobseekers
(including individuals with barriers to employment), and identify and
disseminate information on proven and promising practices carried out
in other local areas for meeting such needs.
Costs
For State WDBs, the Department estimated this labor cost by first
multiplying the estimated average number of managers per State (1) by
the time required to identify and promote proven strategies (20 hours)
and the hourly compensation rate. We performed the same calculation for
the following occupational categories: legal counsel staff (1 staff
member for 10 hours), technical staff (1 staff member for 40 hours),
and administrative staff (1 staff member for 15 hours). We summed the
labor cost for all four personnel categories ($5,143) and multiplied
the result by the number of States (56) to estimate this recurring
annual cost of $287,985.
j. Technology
Under WIOA sec. 107(d)(7), Local Boards must develop strategies for
using technology to maximize the accessibility and effectiveness of the
local workforce development system for employers, workers, and
jobseekers by facilitating access to services provided through the one-
stop delivery system, facilitating connections among the intake and
case-management information systems of the one-stop partner programs,
identifying strategies for better meeting the needs of individuals with
barriers to employment, and leveraging resources and capacity within
the local workforce development system.
Costs
The Department estimated the cost for Local WDBs by first
multiplying the estimated average number of managers per WDB (1) by the
time required to develop technology strategies (20 hours) and the
hourly compensation rate. We performed the same calculation for the
technical staff (1 staff member for 40 hours). We summed the labor cost
for these two categories ($4,094) and multiplied the result by the
number of WDBs (580) to estimate this recurring annual cost of
$2,374,798.
k. Selection of One-Stop Operators
Under WIOA sec. 107(d)(10)(A), consistent with WIOA sec. 121(d),
and with the agreement of the CEO for the local area, Local Boards must
designate or certify one-stop operators and may terminate for cause the
eligibility of such operators. WIOA sec. 121(d)(2)(A) allows for
selection of a one-stop operator only through a competitive process.
Costs
The Department estimated the cost for Local WDBs by first
multiplying the estimated average number of managers per WDB (1) by the
time required to designate one-stop operators (80 hours) and the hourly
compensation rate. We performed the same calculation for the following
occupational categories: legal counsel staff (1 staff member for 40
hours), technical staff (2 staff for 120 hours each), and
administrative staff (1 staff member for 40 hours). We summed the labor
costs for these four personnel categories ($25,393) and multiplied the
result by the number of WDBs (580) to estimate this quadrennial cost of
$6,348,180. Over the 10-year period, this calculation yields an average
annual cost of $1,904,454.
l. Coordination With Education Providers
Under WIOA sec. 107(d)(11), Local Boards must coordinate activities
with education and training providers in the local area, including
providers of workforce investment activities, providers of adult
education and literacy activities under title II of WIOA, certain
providers of career and technical education, and local agencies
administering certain plans under the Rehabilitation Act of 1973.
Costs
For State WDBs, the Department estimated this labor cost by first
multiplying the estimated average number of managers per State (1) by
the time required to coordinate activities with local education and
training providers (30 hours) and the hourly compensation rate. We
performed the same calculation for the following occupational
categories: legal counsel staff (1 staff member for 10 hours),
technical staff (1 staff member for 40 hours), and administrative staff
(1 staff member for 10 hours). We summed the labor cost for all four
personnel categories ($5,706) and multiplied the result by the number
of States (56) to estimate this recurring annual cost of $319,528.
m. Regional Plans
WIOA sec. 106(c)(2) requires Local Boards and CEOs within a
planning region to prepare, submit, and obtain approval of a single
regional plan that includes a description of the activities described
in the statute and that incorporates local plans for each of the local
areas in the planning region.
Costs
For Local WDBs, the Department estimated this cost by first
multiplying the estimated average number of managers per WDB (2) by the
time required to prepare, submit, and obtain approval of a single
regional plan (20 hours) and the hourly compensation rate. We performed
the same calculation for the following occupational categories: legal
counsel staff (1 staff
[[Page 20821]]
member for 8 hours), technical staff (2 staff for 40 hours), and
administrative staff (1 staff member for 8 hours). We summed the labor
cost for the four occupational categories ($8,916) and multiplied the
result by the number of WDBs (580) to estimate this cost as $5,171,336,
which occurs in 2016 and 2020. This results in an average annual cost
of $1,034,267.
n. Local and Regional Plan Modification
Under WIOA sec. 108(a), each Local Board, in partnership with the
CEO, must review the local plan every 2 years and submit a modification
as needed, based on significant changes in labor market and economic
conditions and other factors. These factors include changes to local
economic conditions, changes in the financing available to support WIOA
title I and partner-provided WIOA services, changes to the Local Board
structure, or a need to revise strategies to meet performance goals. If
the local area is part of a planning region, the Local Board must
comply with WIOA sec. 106(c) in the preparation and submission of a
regional plan.
Costs
For Local WDBs, the Department estimated the local plan
modification cost by first multiplying the estimated average number of
managers per WDB (1) by the time required to review and modify the 4-
year plan (10 hours) and the hourly compensation rate. We performed the
same calculation for the following occupational categories: Legal
counsel staff (1 staff member for 4 hours), technical staff (2 staff
for 10 hours), and administrative staff (1 staff member for 4 hours).
We summed the labor cost for all four personnel categories ($2,411) and
multiplied the result by the number of WDBs (580) to estimate this one-
time cost of $1,398,269, occurring in 2018. Over the 10-year period,
this calculation yields an average annual cost of $139,827.
Similarly, the Department estimated the regional plan modification
cost for Local WDBs by first multiplying the estimated average number
of managers per regional board (2) by the time required to review and
modify the 4-year plan (10 hours) and the hourly compensation rate. We
performed the same calculation for the following occupational
categories: legal counsel staff (1 staff member for 4 hours), technical
staff (2 staff for 20 hours each), and administrative staff (1 staff
member for 5 hours). We summed the labor cost for all four personnel
categories ($4,486) and multiplied the result by the number of regional
boards (580) to estimate a cost of $1,345,766, occurring once every
four years. Over the 10-year period, this calculation yields an average
annual cost of $269,153.
The sum of these costs yields a 10-year cost of $4,089,800, which
results in an average annual cost of $408,980 for individuals from the
Local WDBs to review and modify the 4-year plan.
o. Improved Information About Potential Training Program Providers
WIOA sec. 116 establishes performance accountability measures and
performance reporting requirements to assess the effectiveness of
States and local areas in achieving positive outcomes for individuals
served by the core programs. The performance accountability measures
will provide workers with better information about potential training
program providers and enable them to make more informed choices about
programs to pursue. The information analyzed and published by the
boards about local labor markets also will assist trainees and
providers in targeting their efforts and developing reasonable
expectations about outcomes.
Costs
At the State level for DOL programs, the Department estimated this
labor cost by first multiplying the estimated average number of
managers per State (1) by the time required to provide additional
information about eligible training program providers (32 hours) and
the hourly compensation rate. We performed the same calculation for the
technical staff (2 staff for 40 hours each) and administrative staff (1
staff member for 80 hours). We summed the labor cost for all three
personnel categories ($9,854) and multiplied the result by the number
of States (56) to estimate this recurring annual cost of $551,826.
p. Sanctions on Under-Performing States
Section 116(f)(1)(B) of WIOA requires the Department to assess a
sanction if ``a State fails to submit a report under subsection (d) for
any program year.'' Three reports are required under WIOA sec. 116(d):
The State annual performance reports, the local area performance
reports, and the ETP performance reports. Of these, only the State
annual performance reports must be submitted by the State to the
Secretary of Labor. Section 116(f)(1) of WIOA requires that sanctions
for performance failure be based on the primary indicators of
performance.
The sanctions will alter Federal transfer payments.\18\ Transfer
payments, as defined by OMB Circular A-4, are payments from one group
to another that do not affect total resources available to society. The
Department requests comment and data that would allow for estimation of
the transfer that would result from the sanctions provision.
---------------------------------------------------------------------------
\18\ The Department transfers funds to each State through a
formal grant process. States may set aside a portion of these funds
for discretionary use under WIOA. If a State were sanctioned, we
would de-obligate the funds comprising the penalty from the State's
set-aside, thereby reducing funding without incurring additional
costs.
---------------------------------------------------------------------------
Costs
At the State level, the Department estimated the costs resulting
from labor requirements by first multiplying the estimated average
number of managers per State (1), the time required to evaluate State
performance (40 hours), and the hourly compensation rate. We performed
the same calculation for technical staff (1 staff member for 80 hours)
and administrative staff (1 staff member for 40 hours). We summed the
labor cost for all three personnel categories ($9,302) and multiplied
the result by the number of States (56) to estimate a recurring annual
transfer of $520,939.
The Department estimates that 56 States will be impacted by this
annual cost because we have determined that 56 States will calculate,
annually, the performance levels of each State's core programs. Each
State will do this on an annual basis in order to determine if the
State is subject to sanctions, as discussed in proposed Sec. 677.190
of this part, by comparing those levels against the negotiated levels
of performance that the State has provided for in the State Plan.
q. Colocation of Wagner-Peyser Services
WIOA sec. 121(e)(3) requires colocation of Wagner-Peyser Employment
Service offices and one-stop centers established under title I of WIOA.
Colocation is intended to improve service delivery, avoid duplication
of services, and enhance coordination of services, including location
of staff to ensure access to services in underserved areas.
Costs
At the State level for DOL programs, the Department estimated this
labor cost by first multiplying the estimated average number of
managers per State (10), the time required to collocate Wagner-Peyser
Services (40 hours), and the hourly compensation rate. We
[[Page 20822]]
performed the same calculation for the following occupational
categories: legal counsel staff (10 staff for 10 hours each), technical
staff (20 staff at 25 hours each), and administrative staff (10 staff
for 5 hours each). We summed the labor cost for all four personnel
categories ($69,415) and multiplied the result by the number of States
without collocated Wagner-Peyser Services (10) to estimate a one-time
cost of $694,152, which results in an annual cost of $69,415.
At the State level, the Department estimated consultant costs by
multiplying the estimated consultant costs ($10,000) by the number of
States without collocated Wagner-Peyser Services (10). This calculation
yields an estimated one-time cost of $100,000, resulting in an average
annual cost of $10,000.
At the local level, the Department estimated labor costs by first
multiplying the estimated average number of managers for all local
entities within a State (100), the time required to collocate Wagner-
Peyser Services (40 hours), and the hourly compensation rate. We
performed the same calculation for the technical staff (200 staff for
25 hours each) and administrative staff (100 staff for 5 hours each).
We summed the labor cost for all three personnel categories ($631,098)
and multiplied the result by the number of local areas without
collocated Wagner-Peyser offices and one-stops (100) to estimate a one-
time cost of $63,109,800, resulting in an annual cost of $6,310,980.
The sum of these costs yields a one-time cost of $63,903,952, which
results in an average annual cost of $6,390,395 for individuals from
the State and local levels to collocate Wagner-Peyser Services.
r. Partners Required To Pay Their Share for Proportionate Use of One-
stop Delivery System
An important goal under both the local and State funding mechanisms
is to ensure that each one-stop partner contributes its proportional
share to the funding of one-stop infrastructure costs, consistent with
Federal cost principles. Under WIOA sec. 121(h), in general, State
Governors must ensure that costs are appropriately shared by one-stop
partners. Contributions must be based on proportional share of use and
all funds must be spent solely for allowable purposes in a manner
consistent with the applicable authorizing statute and all other
applicable legal requirements, including Federal cost principles.
This provision will alter Federal transfer payments, and the
Department requests comment and data that would allow for estimation of
this rule-induced transfer.\19\
---------------------------------------------------------------------------
\19\ The Department distributes funds through a combination of
multi-step formula distributions, Title III (Wagner-Peyser)
distribution, and national grant competitions that award funds
directly to partners. The Department supplies funding to cover
payments for partners proportionate to their use of one-stop
delivery systems, although partners may instead opt to use pay-in-
kind or other leveraged funds.
---------------------------------------------------------------------------
Costs
At the State level, the Department estimated costs related to this
provision (e.g., the cost of developing memoranda of understanding) by
first multiplying the estimated average number of managers per State
(50), the time required for States to comply with payment requirements
proportional to use of one-stop delivery systems (40 hours), and the
hourly compensation rate. We performed the same calculation for the
following occupational categories: Legal counsel staff (50 staff for 1
hour each), technical staff (100 staff for 40 hours each), and
administrative staff (50 staff for 5 hours each). We summed these
products for all four personnel categories ($419,560) and multiplied
the result by the number of States that need to pay their proportional
share (54) to estimate transfer of $22,656,251 occurring once every
three years, resulting in an average annual transfer of $6,796,875.
s. Establishing Training Provider Eligibility Procedures, Including
Adding Registered Apprenticeship
Under WIOA sec. 122, the Governor, after consultation with the
State WDB, must establish criteria, information requirements, and
procedures regarding the eligibility of providers of training services
to receive funds under WIOA for the provision of training services in
local areas in the State. Training providers, including those operating
under the individual training account exceptions, must qualify as ETPs,
except for those engaged in on-the-job and customized training (for
which the Governor should establish qualifying procedures). Registered
apprenticeship programs are included in the ETPL, provided the program
remains eligible. Only providers that the State determines to be
eligible under WIOA sec. 122 may receive training funds under WIOA
title I-B.
Costs
At the State level, the Department estimated this cost by first
multiplying the estimated average number of managers per State (1), the
time needed to establish procedures for training provider eligibility
(40 hours), and the hourly compensation rate. We performed the same
calculation for the legal counsel staff (1 staff member for 20 hours)
and technical staff (1 staff member for 80 hours). We summed the labor
cost for all three personnel categories ($9,450) and multiplied the
result by the number of States that need to pay their proportional
share (56) to estimate this one-time cost of $529,202, resulting in an
annual cost of $52,920.
t. Determining Eligibility of New and Previously Eligible Providers
Under the requirements of WIOA sec. 122, the procedures for
determining eligibility of providers are established by the Governor,
after consultation with the State WDB and include application and
renewal procedures, eligibility criteria, and information requirements.
Costs
At the State level for DOL programs, the Department estimated this
labor cost by first multiplying the estimated average number of
managers per State (1), the time needed to determine provider
eligibility (40 hours), and the hourly compensation rate. We performed
the same calculation for the technical staff (2 staff for 110 hours
each) and administrative staff (2 staff for 50 hours each). We summed
the labor cost for all three personnel categories ($20,386) and
multiplied the result by the number of States (56) to estimate a one-
time cost of $1,141,628, resulting in an annual cost of $114,163.
u. Biennial Review of Eligibility
Under WIOA sec. 122(c)(2), training provider eligibility criteria
established under this provision must include procedures for biennial
review and renewal of eligibility for providers of training services.
Costs
At the State level, the Department estimated this labor cost by
first multiplying the estimated average number of managers per State
(1), the time needed to perform the eligibility review (30 hours), and
the hourly compensation rate. We performed the same calculation for the
technical staff (2 staff for 60 hours each) and administrative staff (2
staff for 30 hours each). We summed the labor cost for all three
personnel categories ($11,846) and multiplied the result by the number
of States (56) to estimate cost of $663,395 that occurs four times over
the 10-year analysis period, that is, an annual cost of $265,358.
[[Page 20823]]
v. Disseminating the Training Provider List With Accompanying
Information
Under WIOA sec. 122(d), the Governor must ensure preparation of an
appropriate list of providers determined to be eligible under this
section to offer a program in the State (and, as appropriate, in a
local area), accompanied by information identifying the recognized
post-secondary credential offered by the provider and other appropriate
information. The list must be provided to the Local Boards in the
State, and made available to such participants and to members of the
public through the one-stop delivery system in the State.
Costs
At the State level, the Department estimated this labor cost by
first multiplying the estimated average number of managers per State
(1), the time needed to disseminate the ETPL with accompanying
information (30 hours), and the hourly compensation rate. We performed
the same calculation for the following occupational categories:
Technical staff (2 staff for 80 hours each), administrative staff (2
staff for 45 hours), and IT reprogramming (database development) staff
(2 staff for 125 hours each). We summed the labor cost for all four
personnel categories ($30,449) and multiplied the result by the number
of States (56) to estimate a one-time cost of $1,705,125, resulting in
an annual cost of $170,513.
w. Migrant and Seasonal Farmworker Housing
While bringing the Department's housing standards at 20 CFR 654
(ETA Standards) under the Occupational Safety and Health Administration
(OSHA) provisions set forth in 29 CFR 1910.142 will not completely
remedy many of the inadequate housing conditions common among
agricultural housing facilities, the Department anticipates the change
will: (1) Update the housing standards as the OSHA provisions conform
to slightly more modern standards; (2) streamline the compliance
process for employers who will only need to look to one place to comply
with housing standards; and (3) ease the administrative burden on State
and Federal employees who conduct housing inspections as they will only
need to learn and rely upon one set of housing standards.
In estimating the impact of the proposed changes to 20 CFR 654, the
Department consulted various agencies within DOL to uncover pertinent
data. Such data includes the number of H-2A employers approved through
the Office of Foreign Labor Certification (OFLC). The Department
believes that reviewing H-2A employer data is useful as it represents a
subset of population (and, therefore, a minimum) of the total number of
employers that may be offering housing to agricultural workers and who
may be affected by the proposed changes. The Department estimates that
of the approximately 6,400 \20\ employers nationally who hire foreign
workers under the H-2A program and who provide housing, the majority
will not be affected by the proposed changes because it estimates that,
nationally, OSHA housing standards apply more frequently than the ETA
Standards in the context of housing investigations. Specifically, the
Department estimates that every region, except the Northeast and
Pacific Northwest, has agricultural housing that predominantly falls
under the OSHA standards. However, the situation will vary from State
to State. For example, Colorado reported that approximately 84 percent
of the agricultural housing inspected in the State from July 1, 2014 to
January 29, 2015 falls under the ETA standards. Wyoming reported that
64 percent of the housing inspections over the course of a year fell
under ETA standards.
---------------------------------------------------------------------------
\20\ This number is derived from OFLC data on employers that
have submitted H-2A applications. The Department extrapolated the
number of unique employers from the full list of applications to
avoid duplication and to identify the fewest employers that may be
impacted by these proposed changes.
---------------------------------------------------------------------------
However, the housing data currently available to DOL is limited.
The Department collects agricultural housing information as it pertains
to employers' compliance with the appropriate standards. The Department
does not collect or track the number of agricultural housing units
nationally that fall under the ETA versus the OSHA standards. To better
understand the impact of the proposed regulations, the Department would
like to know: (1) The approximate number of agricultural housing units
in the United States provided by agricultural employers for
farmworkers; (2) the approximate percentage of the total farmworker
housing units that currently fall under the ETA Standards set forth in
20 CFR 654; and (3) the estimated cost of bringing those housing units
from the ETA Standards into compliance with the OSHA Standards. The
Department would appreciate public feedback on the aforementioned data
elements.
Specifically, it would be helpful for DOL's analysis if: (1) There
are State Workforce Agencies or States that would share any data on the
total number of employer-provided agricultural housing units in the
State and the percentage of those that are subject to the ETA
Standards; and (2) agricultural employers would furnish estimated costs
for bringing their farmworker housing units from ETA to OSHA Standards.
The Department appreciates any such information that could assist in
the development of the overall impact analysis.
5. Summary of Analysis
Exhibit 3 summarizes the annual and total costs of the proposed
rule. It summarizes the total 10-year total costs and the average
annualized costs for each provision of the proposed rule. The exhibit
also presents high-level benefits resulting from full WIOA
implementation for each provision. These qualitative forecasts are
predicated on program experience and are outcomes for which data will
only become available after implementation. The Department estimates
the average annual cost of the proposed rule over the 10-year period of
analysis at $38.4 million. The largest contributor to this cost is the
provision related to the development and improvement of the workforce
development system, which amounts to an estimated $9.2 million per
year. The next largest cost results from career pathways development at
$7.1 million per year, followed by the cost of partners required to pay
their share for proportionate use of one-stop delivery system at an
estimated $6.8 million per year.
[[Page 20824]]
Exhibit 3--Costs of the Proposed Rule by Provision
----------------------------------------------------------------------------------------------------------------
Total 10-year Average annual
Provision cost cost Percent of Qualitative benefit
(undiscounted) (undiscounted) total cost highlights
----------------------------------------------------------------------------------------------------------------
(a) New State Workforce Development $313,435 $31,343 0.08 Policy implementation
Board Membership Requirements. efficiencies from
reduced size and
maneuverability.
(b) Development and Continuous 92,078,720 9,207,872 23.96 Mission clarification
Improvement of the Workforce and ongoing
Development System. commitment should
foster future
envisioned benefits
continuing to accrue.
(c) Development of Statewide 1,202,284 120,228 0.31 Mission clarification
Policies Affecting the State's One- for State WDBs and
stop System. overall system
building capacity.
(d) Development of Strategies for 2,292,909 229,291 0.60 Recognition of the
Technological Improvements. efficiencies
generated by
technology and
enhanced management
capabilities
especially utilizing
outcome data.
(e) State Plan Modification......... 135,005 13,501 0.04 More efficient use of
public resources;
enhanced customer
service; improved
program management
based on actual
client data.
(f) Identification of Regions....... 1,101,266 110,127 0.29 Enhanced employer and
employee services as
a result of
recognition of real
labor markets
(without artificial
jurisdictional
boundaries).
(g) Appoint New Local Workforce 4,644,773 464,477 1.21 Efficient use of board
Development Board and Appropriate time; avoids
Firewalls. conflicts of interest
and negative
publicity;
administrative
savings.
(h) Career Pathways Development..... 70,679,380 7,067,938 18.39 Improved educational
and employment
outcomes; potential
employees are better
prepared for jobs.
(i) Development of Proven and 2,879,850 287,985 0.75 Improved job
Promising Practices. placements and
customer service.
(j) Technology...................... 23,747,984 2,374,798 6.18 Improved customer
service; better
decision-making from
improved service
level data; reduced
paper costs, improved
collaboration across
service partners;
improved customer
service planning;
reduced duplication
of service intakes.
(k) Selection of the One-stop 19,044,540 1,904,454 4.95 Improved public
Operator. confidence in the
process; avoided
conflicts of
interest.
(l) Coordination with Education 3,195,282 319,528 0.83 Improved preparation
Providers. of workers and youth
for future jobs;
enhanced placements
and outcomes.
(m) Regional Plans.................. 10,342,671 1,034,267 2.69 Savings from expanded
collaboration;
increased services to
customers; reduced
administrative
overhead.
(n) Local and Regional Plan 4,089,800 408,980 1.06 Increased coordination
Modification. of services leading
to resource
efficiencies;
transparency.
(o) Improved Information about 5,518,258 551,826 1.44 Improved customer
Potential Training Program decision-making;
Providers. linkage of resources
to outcomes and
accountability for
training and improved
placement outcomes.
(p) Sanctions on Under-performing 5,209,389 520,939 1.36 Improved services;
States. better use of WIOA
funds; enhanced
recognition of
performance
imperatives by States
and local areas; more
accountability.
(q) Co-location of Wagner-Peyser 63,903,952 6,390,395 16.63 Reduced administrative
Services. overhead; improved
service delivery and
customer service;
more efficient and
effective public
administration.
(r) Partners Required to Pay their 67,968,752 6,796,875 17.68 Expanded system
Share for Proportionate Use of One- cohesion; improved
stop Delivery System. service delivery;
avoidance of
fragmented or
duplication of
services.
(s) Establishing Training Provider 529,202 52,920 0.14 Increased training
Eligibility Procedures, Including opportunities,
Adding Registered Apprenticeship. especially for youth;
effective
administration
linking to
accountability and
outcomes.
(t) Determining Eligibility of New 1,141,628 114,163 0.30 Increased
and Previously Eligible Providers. transparency; uniform
treatment of ETPs;
reduced incidents of
non-meritorious
performance.
(u) Biennial Review of Eligibility.. 2,653,580 265,358 0.69 Increased competition
leading to more and
better placements.
(v) Disseminating the Training 1,705,125 170,513 0.44 More informed customer
Provider List with Accompanying choice; clearer link
Information. of training resources
to desired outcomes;
more transparency.
----------------------------------------------------
[[Page 20825]]
(w) Migrant and Seasonal Farmworker Not quantified. More streamlined
Housing. compliance process
for employers who
will only need to
look to one place to
comply with housing
standards. Eased
administrative burden
on State and Federal
employees who conduct
housing inspections
as they will only
need to learn and
rely on one set of
housing standards.
----------------------------------------------------
Total........................... 384,377,787 38,437,778 100.00 ......................
----------------------------------------------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
Exhibit 4 summarizes the first-year cost of each provision of the
proposed rule. The Department estimates the total first-year cost of
the proposed rule at $94.6 million. The largest contributor to the
first-year cost is the provision related to the colocation of Wagner-
Peyser services $63.9 million. The next largest first-year cost results
from development and continuous improvement of the workforce
development system, amounting to $9.8 million, followed by the cost of
career pathways development at $7.1 million.
Exhibit 4--First-Year Cost of the Proposed Rule by Provision
------------------------------------------------------------------------
Total first-year Percent of total
cost first-year cost
------------------------------------------------------------------------
(a) New State Workforce $313,435 0.33
Development Board Membership
Requirements.....................
(b) Development and Continuous 9,775,773 10.34
Improvement of the Workforce
Development System...............
(c) Development of Statewide 1,202,284 1.27
Policies Affecting the State's
One-stop System..................
(d) Development of Strategies for 229,291 0.24
Technological Improvements.......
(e) State Plan Modification....... 0 0.00
(f) Identification of Regions..... 0 0.00
(g) Appoint New Local Workforce 4,644,773 4.91
Development Board and Appropriate
Firewalls........................
(h) Career Pathways Development... 7,067,938 7.47
(i) Development of Proven and 287,985 0.30
Promising Practices..............
(j) Technology.................... 2,374,798 2.51
(k) Selection of the One-stop 0 0.00
Operator.........................
(l) Coordination with Education 319,528 0.34
Providers........................
(m) Regional Plans................ 0 0.00
(n) Local and Regional Plan 0 0.00
Modification.....................
(o) Improved Information about 551,826 0.58
Potential Training Program
Providers........................
(p) Sanctions on Under-performing 520,939 0.55
States...........................
(q) Co-location of Wagner-Peyser 63,903,952 67.57
Services.........................
(r) Partners Required to Pay their 0 0.00
Share for Proportionate Use of
One-stop Delivery System.........
(s) Establishing Training Provider 529,202 0.56
Eligibility Procedures, Including
Adding Registered Apprenticeship.
(t) Determining Eligibility of New 1,141,628 1.21
and Previously Eligible Providers
(u) Biennial Review of Eligibility 0 0.00
(v) Disseminating the Training 1,705,125 1.80
Provider List with Accompanying
Information......................
-------------------------------------
(w) Migrant and Seasonal
Farmworker (MSFW) Housing........ Not quantified.
-------------------------------------
Total......................... 94,568,477 100.00
------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
Exhibit 5 presents the per-year and total estimated costs of the
proposed rule. The total undiscounted cost of the rule sums to $384.4
million over the 10-year analysis period, which is an average annual
cost of $38.4 million per year. In total, the 10-year discounted costs
of the proposed rule range from $305.6 million to $345.9 million (with
7- and 3-percent discounting, respectively).
To contextualize the cost of the proposed rule, the Department of
Labor's average annual budget for WIA over the past three fiscal years
was $2.8 billion. Thus, the annual additional cost of implementing the
proposed rule is between 1.1 percent and 1.2 percent of the average
annual cost of implementing WIA over the last three fiscal years (with
3 percent and 7 percent discounting, respectively).
Exhibit 5--Monetized Costs of the Proposed DOL Rule
[2013 dollars]
------------------------------------------------------------------------
Year Total costs
------------------------------------------------------------------------
2015.................................................... $94,568,478
2016.................................................... 32,567,226
2017.................................................... 43,153,328
2018.................................................... 24,039,512
2019.................................................... 20,497,077
2020.................................................... 55,886,872
2021.................................................... 20,497,077
2022.................................................... 22,506,238
[[Page 20826]]
2023.................................................... 43,153,328
2024.................................................... 27,508,652
Undiscounted 10-year Total.............................. 384,377,787
10-year Total with 3% Discounting....................... 345,897,084
10-year Total with 7% Discounting....................... 305,556,353
10-year Average......................................... 38,437,778
Annualized with 3% Discounting.......................... 40,549,690
Annualized with 7% Discounting.......................... 43,504,350
------------------------------------------------------------------------
Note: Totals might not sum due to rounding.
Benefits
The Department was unable to quantify the benefits associated with
the proposed rule because of data limitations and a lack of operational
(WIOA) data or evaluation findings on the provisions of the proposed
rule. Thus, the Department is unable to provide monetary estimates of
several important benefits to society, including the increased
employment opportunities for unemployed or under-employed U.S. workers,
benefits of colocation of Wagner-Peyser Services, enhanced ETP process,
regional planning, and evaluation of State programs. In support of a
State's strategic plan and goals, State-conducted evaluation and
research of programs would enable each State to test various
interventions geared toward State conditions and opportunities. Results
from such evaluation and research, if used by States, could improve
service quality and effectiveness and, thus, potentially lead to higher
employment rates and earnings among participants. Implementing various
innovations that have been tested and found effective could also lead
to lower unit costs and increased numbers of individuals served within
a State. Sharing the findings nationally could lead to new service or
management practices that other States could adopt to improve
participant results, lower unit costs, or increase the number served.
The Department invites comments regarding possible data sources or
methodologies for estimating these benefits. In addition, the
Department invites comments regarding other benefits that might arise
from the proposed rule and how these benefits could be estimated.
The Department provides a qualitative description of the
anticipated WIOA benefits below. These qualitative forecasts are
predicated on program experience and are outcomes for which data will
only become available after implementation. Although these studies are
largely based on programs and their existing requirements under WIA, we
believe that they capture the essence of the societal benefits that can
be expected from this proposed rule.
Training's impact on placement. A recent study found that flexible
and innovative training which is closely related to a real and in-
demand occupation is associated with better labor market outcomes for
training participants. Youth disconnected from work and school can
benefit from comprehensive and integrated models of training that
combine education, occupational skills, and support services.\21\
However, the study noted that evidence for effective employment and
training-related programs for youth is less extensive than for adults,
and that there are fewer positive findings from evaluations.\22\ The
WIA youth program remains largely untested.\23\ One study found that
WIA training services increase placement rates by 4.4 percent among
adults and by 5.9 percent among dislocated workers,\24\ while another
study concluded that placement rates are 3 to 5 percent higher among
all training recipients.\25\
---------------------------------------------------------------------------
\21\ Department of Labor et al. ``What Works In Job Training: A
Synthesis of the Evidence.'' July 2014.
\22\ Ibid.
\23\ Decker, Paul T. and Jillian A. Berk. 2011. ``Ten Years of
the Workforce Investment Act (WIA): Interpreting the Research on WIA
and Related Programs.'' Journal of Policy Analysis and Management 30
(4): 906-926.
\24\ Hollenbeck, Kevin, Daniel Schroeder, Christopher T. King,
and Wei-Jang Huang. ``Net Impact Estimates for Services Provided
through the Workforce Investment Act.'' Washington, DC: U.S.
Department of Labor, 2005. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id
=2367&mp=y&start=81&sort=7.
\25\ Heinrich, Carolyn J., Peter R. Mueser, and Kenneth R.
Troske. ``Workforce Investment Act Non-Experimental Net Impact
Evaluation.'' Columbia, MD: IMPAQ International, LLC, 2009.
---------------------------------------------------------------------------
Participants in occupational training had a ``5 percentage points
higher reemployment rate than those who received no training, and
reemployment rates were highest among recipients of on-the-job
training, a difference of 10 to 11 percentage points.'' \26\ However,
the study found that training did not correspond to higher employment
retention or earnings.\27\ A Youth Opportunity Grant Initiative study
found that Youth Opportunity was successful at improving outcomes for
high-poverty youth. Youth Opportunity also increased the labor-force
participation rate overall and for subgroups, including 16- to 19-year-
old adolescents, women, African Americans, and in-school youth.\28\
Department-sponsored research found that participants who received core
services (often funded by Employment Services) and other services in
American Job Centers were more likely to enter and retain
employment.\29\
---------------------------------------------------------------------------
\26\ Park, Jooyoun. ``Does Occupational Training by the Trade
Adjustment Assistance Program Really Help Reemployment? Success
Measured as Matching.'' Washington, DC: U.S. Department of Labor,
Employment and Training Administration, 2011.
\27\ Park, Jooyoun. ``Does Occupational Training by the Trade
Adjustment Assistance Program Really Help Reemployment? Success
Measured as Matching.'' Washington, DC: U.S. Department of Labor,
Employment and Training Administration, 2011.
\28\ Jackson, Russell H., Jamie Diamandopoulos, Carol Pistorino,
Paul Zador, John Lopdell, Juanita Lucas-McLean, and Lee Bruno.
``Youth Opportunity Grant Initiative (YO).'' Houston, TX: Decision
Information Resources, Inc., 2008. Available at http://wdr.doleta.gov/research/FullText_Documents/YO%20Impact%20and%20Synthesis%20Report.pdf.
\29\ Office of Policy Development and Research, U.S. Department
of Labor. ``Five-Year Research and Evaluation Strategic Plan Program
Years 2012-2017.'' May 2013. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_resultDetails&pub_id=2516&mp=y.
---------------------------------------------------------------------------
Training's impact on wages. Before enactment of WIA, Job Training
Partnership Act services had a modest but statistically significant
impact on the earnings of adult participants.\30\ WIA training
increased participants' quarterly earnings by $660; these impacts
persisted beyond two years and were largest among women.\31\ WIA adult
program participants who received core services (e.g. skill assessment,
labor market information) or intensive services (e.g. specialized
assessments, counseling) earned up to $200 more per quarter than non-
WIA participants. Participants who received training services in
addition to core and intensive services initially earned less but
caught up within 10 quarters with the earnings of participants who only
received core or intensive services; marginal benefits of training
could exceed $400 per quarter. Earnings progressions were similar for
WIA adult program participants and users of the
[[Page 20827]]
labor exchange only.\32\ WIA training services also improved
participants' long-term wage rates, doubling earnings after 10 quarters
over those not receiving training services.\33\ However, WIA
participants who did not receive training earned $550 to $700 more in
the first quarter after placement. The study also noted that
individuals who did not receive training received effective short-term
counseling that enabled them to gain an immediate advantage in the
labor market.\34\
---------------------------------------------------------------------------
\30\ Barnow, Burt, and Daniel Gubits. ``Review of Recent Pilot,
Demonstration, Research, and Evaluation Initiatives to Assist in the
Implementation of Programs under the Workforce Investment Act.''
Baltimore, MD: Johns Hopkins University, 2003. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id=2365&mp=y&start=81
&sort=7.
\31\ Barnow, Burt, and Daniel Gubits. ``Review of Recent Pilot,
Demonstration, Research, and Evaluation Initiatives to Assist in the
Implementation of Programs under the Workforce Investment Act.''
Baltimore, MD: Johns Hopkins University, 2003. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp__puListingDetails&pub__id=2365&mp=y&start=81&sort=7.
\32\ Earnings Progression among Workforce Development
Participants: Evidence from Washington State.'' Eugene, OR:
University of Oregon, 2011. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp__puListingDetails&pub__id=2468&mp=y&start=1&sort=7.
\33\ Heinrich, Carolyn J., Peter R. Mueser, and Kenneth R.
Troske. ``Workforce Investment Act Non-Experimental Net Impact
Evaluation.'' Columbia, MD: IMPAQ International, LLC, 2009.
\34\ Heinrich, Carolyn J., Peter R. Mueser, and Kenneth R.
Troske. ``Workforce Investment Act Non-Experimental Net Impact
Evaluation.'' Columbia, MD: IMPAQ International, LLC, 2009.
Available at http://wdr.doleta.gov/research/FullText_Documents/Workforce%20Investment%20Act%20Non-Experimental%20Net%20Impact%20Evaluation%20-%20Final%20Report.pdf.
---------------------------------------------------------------------------
Another Department program, the Job Corps program for disadvantaged
youth and young adults, produced sustained increases in earnings for
participants in their early twenties. Students who completed Job Corps
vocational training experienced average earnings increases by the
fourth follow-up year over the comparison group, whereas those who did
not complete training experienced no increase.\35\
---------------------------------------------------------------------------
\35\ Gritz, Mark, and Terry Johnson. ``National Job Corps Study:
Assessing Program Effects on Earnings for Students Achieving Key
Program Milestones.'' Seattle, WA: Battelle Memorial Institute,
2001. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id=2257&mp=y&start=14
1&sort=7.
---------------------------------------------------------------------------
Another publication also noted that, on average, adults experienced
a $743 quarterly post-exit earnings boost.\36\
---------------------------------------------------------------------------
\36\ Hollenbeck, Kevin, Daniel Schroeder, Christopher T. King,
and Wei-Jang Huang. ``Net Impact Estimates for Services Provided
through the Workforce Investment Act.'' Washington, DC: U.S.
Department of Labor, 2005. Available at http://wdr.doleta.gov/research/FullText_Documents/Net%20Impact%20Estimates%20for%20Services%20Provided%20through%20the%20Workforce%20Investment%20Act-%20Final%20Report.pdf.
---------------------------------------------------------------------------
Those who completed training experienced a 15-percent increase in
employment rates and an increase in hourly wages of $1.21 relative to
participants without training.\37\ Participation in WIA training also
had a distinct positive, but smaller, impact on employment and
earnings, with employment 4.4 percentage points higher and quarterly
earnings $660 higher than comparison group members.
---------------------------------------------------------------------------
\37\ Needels, Karen, Jeanne Bellotti, Mina Dadgar, and Walter
Nicholson. ``Evaluation of the Military Base National Emergency
Grants: Final Report.'' Princeton, NJ: Mathematica Policy Research,
2006.
---------------------------------------------------------------------------
The following are channels through which these benefits might be
achieved:
Better information for workers. The accountability measures would
provide workers with higher-quality information about potential
training program providers and enable them to make better informed
choices about which programs to pursue. The information analyzed and
published by the WDBs about local labor markets also would help
trainees and providers target their efforts and develop reasonable
expectations about outcomes.
Consumers of educational services, including disadvantaged and
displaced workers, require reliable information on the value of
different training options to make informed choices. Displaced workers
tend to be farther removed from schooling and lack information about
available courses and the fields with the highest financial return.\38\
Given these information gaps and financial pressures, it is important
that displaced workers learn of the returns to various training
plans.\39\ Still, one study determined that the cost-effectiveness of
WIA job training for disadvantaged workers is ``modestly positive'' due
perhaps to the limited sample of States on which the research was
based.\40\
---------------------------------------------------------------------------
\38\ Greenstone, Michael, and Adam Looney. ``Building America's
Job Skills with Effective Workforce Programs: A Training Strategy to
Raise Wages and Increase Work Opportunities.'' Washington, DC:
Brookings Institution, 2011.
\39\ Jacobson, Louis, Robert LaLonde, and Daniel Sullivan.
``Policies to reduce high-tenured displaced workers' earnings losses
through retraining.'' Discussion Paper 2011-11, The Hamilton
Project, Brookings Institution, Washington, DC, 2011.
\40\ Heinrich, Carolyn J., Peter R. Mueser, Kenneth R. Troske,
Kyung-Seong Jeon, Daver C. Kahvecioglu. 2009 (November). ``New
Estimates of Public Employment and Training Program Net Impacts: A
Nonexperimental Evaluation of the Workforce Investment Act
Program.'' Discussion Paper 4569, Institute for the Study of Labor
(IZA), Bonn, Germany.
---------------------------------------------------------------------------
Sanctions to under-performing States. WIOA requires the Department
to place sanctions on States that under-perform for two consecutive
years. The sanction would be five percent of set-aside funding. Having
a clear and credible sanction will serve as an incentive for States and
local entities to monitor performance more effectively and to intervene
early in order to avoid the loss of funding.
Evaluations of WIA indicate that sanctions have a larger influence
on programs than incentives. Two-thirds of local workforce investment
areas have indicated that the possibility of sanctions influenced their
programs, whereas only slightly more than half indicated that
incentives had an influence.\41\ Further, several Job Centers consider
student placement outcomes in staff performance evaluations and pay for
vocational instructors.\42\ This practice has significantly increased
staff interest in successful student placement following program
completion.\43\
---------------------------------------------------------------------------
\41\ Dunham, Kate, Melissa Mack, Jeff Salzman, and Andrew
Wiegand. ``Evaluation of the WIA Performance Measurement System:
Survey Report.'' Oakland, CA: SPR Associates, 2005. Available at
http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id=2408&mp=y&start=41
&sort=7.
\42\ Johnson, Terry, Mark Gritz, Russell Jackson, John
Burghardt, Carol Boussy, Jan Leonard, and Carlyn Orians. ``National
Job Corps Study: Report on the Process Analysis.'' Princeton, NJ:
Mathematica Policy Research, 1999. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id=2213&mp=y&start=20
1&sort=7.
\43\ Ibid.
---------------------------------------------------------------------------
Researchers expressed concerns over current WIA metrics for
workforce development program performance. For example, in issuing high
performance bonuses to States in recognition of high performance
achievements, the metric negotiation process does not appropriately
adjust for variations in economic and demographic characteristics or
service mix.\44\ Additionally, the distribution of these bonuses does
not directly correlate with program performance, with some lower
performing States receiving larger bonuses than higher performing
States.\45\
---------------------------------------------------------------------------
\44\ Heinrich, Carolyn J. 2007. ``False or Fitting Recognition?
The Use of High Performance Bonuses in Motivating Organizational
Achievements.'' Journal of Policy Analysis and Management 26(2) 281-
304.
\45\ Ibid.
---------------------------------------------------------------------------
It is possible that the proposed rule might result in unintended
consequences. For example, the efficacy of incentives may be reduced
with poor measures, as compensation or recognition may not be
commensurate with effort and subsequent performance, which could dampen
employee motivation.\46\ Other unintended consequences may include
distortion involving behavior intended to insure against the loss of
compensation; also, misrepresentation of outcomes may occur.\47\
Researchers have expressed concerns about the current measures used to
evaluate performance.\48\ High performance incentives may
unintentionally impact performance negatively if they encourage
programs to focus on receiving the award rather than improving program
design, delivery, and outcomes. High performance
[[Page 20828]]
bonuses, therefore, could represent an inefficient use of
resources.\49\
---------------------------------------------------------------------------
\46\ Ibid.
\47\ Ibid.
\48\ Ibid.
\49\ Wandner, Stephen, and Michael Wiseman. ``Financial
performance incentives for United States government programs:
Lessons learned from the Workforce Investment Act, Temporary
Assistance to Needy Families, and food stamps.'' What the European
Social Fund can learn from the WIA experience, Washington, DC
Retrieved January 16 (2009): 2011.
---------------------------------------------------------------------------
State performance accountability measures. This requirement would
include significant data collection for Local Boards to address
performance measures for the core programs in their jurisdictions. This
data collection would permit the State WDBs to assess performance
across each State. Training providers would be required to provide data
to Local Boards, which would represent a cost in the form of increased
data collection and processing. Employers and employees also would have
to provide information to the training providers, which would take
time. This provision, in combination with the board membership
provision requiring employer/business representation, is expected to
improve the quality of local training and, ultimately, the number and
caliber of job placements.
Implementation of follow-up measures, rather than termination-based
measures, might improve long-term labor market outcomes, although some
could divert resources from training activities.\50\
---------------------------------------------------------------------------
\50\ Courty, Pascal, and Gerald Marschke. ``Making Government
Accountable: Lessons from a Federal Job Training Program.'' Public
Administration Review 67.5 (2007): 904-916.
---------------------------------------------------------------------------
Before-after earning metrics capture the contribution of training
to earnings potential and minimize incentives to select only training
participants with high initial earnings.\51\ The study found that value
added net of social cost is one objective that is too difficult to
measure on a regular basis. With the exception of programs in a few
States, current incentives do not reward enrollment of the least
advantaged.\52\ In addition, the study noted evidence that the
performance-standards can be ``gamed'' in an attempt to maximize their
centers' measured performance.\53\
---------------------------------------------------------------------------
\51\ Heckman, James J., Carolyn Heinrich, and Jeffrey A. Smith.
1997. ``Assessing the Performance of Performance Standards in Public
Bureaucracies.'' American Economic Review 87(2): 389-95.
\52\ Ibid.
\53\ Ibid.
---------------------------------------------------------------------------
Pressure to meet performance levels could lead providers to focus
on offering services to participants most likely to succeed. For
example, current accountability measures might create incentives for
training providers to screen participants for motivation, delay
participation for those needing significant improvement, or discourage
participation by those with high existing wages.\54\
---------------------------------------------------------------------------
\54\ Dunham, Kate, Melissa Mack, Jeff Salzman, and Andrew
Wiegand. ``Evaluation of the WIA Performance Measurement System:
Survey Report.'' Oakland, CA: SPR Associates, 2005. Available at
http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id=2408&mp=y&start=41
&sort=7.
---------------------------------------------------------------------------
The following subsections present additional channels by which
economic benefits may be associated with various aspects of the
proposed rule.
Dislocated workers. A study found that for dislocated workers,
receiving WIA services significantly increased employment rates by 13.5
percent and boosted post-exit quarterly earnings by $951.\55\ However,
another study found that training in the WIA dislocated worker program
had a net benefit close to zero or even negative.\56\
---------------------------------------------------------------------------
\55\ Hollenbeck, Kevin, Daniel Schroeder, Christopher T. King,
and Wei-Jang Huang. ``Net Impact Estimates for Services Provided
through the Workforce Investment Act.'' Washington, DC: U.S.
Department of Labor, 2005. Available at http://wdr.doleta.gov/research/FullText_Documents/Net%20Impact%20Estimates%20for%20Services%20Provided%20through%20the%20Workforce%20Investment%20Act-%20Final%20Report.pdf.
\56\ Heinrich, Carolyn J., Peter R. Mueser, and Kenneth R.
Troske. ``Workforce Investment Act Non-Experimental Net Impact
Evaluation.'' Columbia, MD: IMPAQ International, LLC, 2009.
Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id=2419&mp=y&start=41
&sort=7.
---------------------------------------------------------------------------
Self-employed individuals. Job seekers who received self-employment
services started businesses sooner and had longer lasting businesses
than nonparticipants. Self-employment assistance participants were 19
times more likely to be self-employed than nonparticipants and
expressed high levels of satisfaction with self-employment. A study of
Maine, New Jersey, and New York programs found that participants were
four times more likely to obtain employment of any kind than
nonparticipants.\57\
---------------------------------------------------------------------------
\57\ Kosanovich, William, Heather Fleck, Berwood Yost, Wendy
Armon, and Sandra Siliezar. ``Comprehensive Assessment of Self-
Employment Assistance Programs.'' Arlington, VA: DTI Associates,
2002. Available at http://wdr.doleta.gov/research/keyword.cfm?fuseaction=dsp_puListingDetails&pub_id=2293&mp=y&start=12
1&sort=7.
---------------------------------------------------------------------------
Workers with disabilities. A study of individuals with disabilities
enrolled in training for a broad array of occupations (including
wastewater treatment, auto body repair, meat cutter/wrapper, clerical
support staff, surgical tools technician, and veterinary assistant)
found that the mean hourly wage and hours worked per quarter for
program graduates were higher than for individuals who did not complete
the program.
In conclusion, after a review of the quantitative and qualitative
analysis of the impacts of this NPRM, the Department has determined
that the societal benefits justify the anticipated costs.
B. Paperwork Reduction Act
The purposes of the Paperwork Reduction Act of 1995 (PRA), 44
U.S.C. 3501 et seq., include minimizing the paperwork burden on
affected entities. The PRA requires certain actions before an agency
can adopt or revise a collection of information, including publishing
for public comment a summary of the collection of information and a
brief description of the need for and proposed use of the information.
As part of its continuing effort to reduce paperwork and respondent
burden, the Department conducts a preclearance consultation program to
provide the general public and Federal agencies with an opportunity to
comment on proposed and continuing collections of information in
accordance with the PRA. See 44 U.S.C. 3506(c)(2)(A). This activity
helps to ensure that the public understands the Department's collection
instructions, respondents can provide the requested data in the desired
format, reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the Department can
properly assess the impact of collection requirements on respondents.
Furthermore, the PRA requires all Federal agencies to analyze proposed
regulations for potential time burdens on the regulated community
created by provisions in the proposed regulations, which require the
submission of information. The information collection requirements must
also be submitted to the OMB for approval.
The Department notes that a Federal agency may not conduct or
sponsor a collection of information unless it is approved by the OMB
under the PRA and displays a currently valid OMB control number. The
public is also not required to respond to a collection of information
unless it displays a currently valid OMB control number. In addition,
notwithstanding any other provisions of law, no person will be subject
to penalty for failing to comply with a collection of information if
the collection of information does not display a currently valid OMB
control number (44 U.S.C. 3512).
The information collections in this rule are summarized as follows.
(Detailed information about the information collections identified in
this summary is available in the section-
[[Page 20829]]
by-section discussion of this NPRM, Section IV.) The table below
captures the current and proposed burden hours associated with the
information collections.
Current and Proposed Information Collection Burdens
----------------------------------------------------------------------------------------------------------------
Burden hours
OMB approval No. currently Burden hours Change
approved proposed
----------------------------------------------------------------------------------------------------------------
1205-0NEW....................................................... 0 8,550 8,550
1205-3NEW....................................................... * 161,373 161,373 0
1205-0001....................................................... 416 416 0
1205-0039....................................................... 8,521 8,521 0
1205-0219....................................................... 38,610 38,610 0
1205-0426....................................................... 11,440 19,153 7,713
1205-0439....................................................... 1,006 1,066 60
1205-0461....................................................... 3,392 5,088 1,696
-----------------------------------------------
Total....................................................... 224,758 242,777 18,019
----------------------------------------------------------------------------------------------------------------
* OMB 1205-3NEW would not increase burden hours because it would consolidate information collections from three
currently approved information collections: OMB 1205-0422, OMB 1205-0425, OMB 1205-0464.
The Department anticipates that the above collections may be phased
out or modified, as appropriate, as WIOA requirements are fully
implemented.
Agency: DOL-ETA.
Title of Collection: State Training Provider Eligibility
Collection.
OMB Control Number: 1205-0NEW.
Description: Under WIOA sec. 122, the Governor, after consultation
with the State Board, must establish criteria, information
requirements, and procedures regarding the eligibility of providers of
training services to receive funds under WIOA for the provision of
training services in local areas in the State. The proposed rule
describes the process for adding ``new''' providers to the ETPL,
explains the detailed application process for previously WIA-eligible
providers to remain eligible under WIOA, describes the performance
information that providers are required to submit to the State in order
to establish or renew eligibility, and explains the requirements for
distributing the ETPL and accompanying information about the programs
and providers on the list.
Affected Public: State, local, and tribal governments, and private
sector.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 122).
Total Estimated Number of Respondents Annually: 11,400 (11,400
additional respondents resulting from this rulemaking).
Total Estimated Number of Annual Responses: 11,400 (11,400
additional responses resulting from this rulemaking).
Total Estimated Annual Time Burden: 8,550 hours (8,550 additional
hours resulting from this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 680.450, Sec. 680.460, Sec. 680.490, Sec.
680.500.
Title of Collection: WIOA Performance Management and Information
and Reporting System (YouthBuild, National Farmworkers Jobs Program,
Indian and Native Americans Program).
OMB Control Number: 1205-3NEW.
Description: This new information collection will consolidate the
existing information collections for YouthBuild, National Farmworkers
Jobs Program, Indian and Native Americans Program participants. These
information collections are currently approved under OMB Control
Numbers 1205-0422, 1205-0425, and 1205-0464. The WIOA Performance
Management and Information and Reporting System would standardize the
initial application, quarterly, and annual reporting processes for
program participants.
Affected Public: State, local, and tribal governments, and private
sector.
Obligation to Respond: Required to obtain or retain benefits (WIOA,
sections 166, 167, and 171).
Total Estimated Number of Respondents Annually: 377 (no additional
respondents resulting from this rulemaking).
Total Estimated Number of Annual Responses: 29,682 (no additional
respondents resulting from this rulemaking).
Total Estimated Annual Time Burden: 161,373 hours (no additional
respondents resulting from this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 684.420, Sec. 684.610, Sec. 684.700, Sec.
684.800, Sec. 685.210, Sec. 685.400, Sec. 688.420, Sec. 688.610.
Title of Collection: Work Application and Job Order Recordkeeping.
OMB Control Number: 1205-0001.
Description: The proposed rule would not affect the burden hours
associated with creating work application and job order records.
However, the rule would change the record retention requirements for
work applications and job orders from 1 year to 3 years in order to
align with other Wagner-Peyser record retention requirements.
Affected Public: State governments.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 121).
Total Estimated Number of Respondents Annually: 52 (no change as a
result of this rulemaking).
Total Estimated Number of Annual Responses: 52 (no change as a
result of this rulemaking).
Total Estimated Annual Time Burden: 416 hours (no change as a
result of this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 652.8.
Title of Collection: Migrant and Seasonal Farmworker Monitoring
Report and One-Stop Career Center Complaint/Referral Record.
OMB Control Number: 1205-0039.
Description: WIOA expands the existing complaint system under 20
CFR
[[Page 20830]]
part 658 subpart E to require most employment-related law complaints by
MSFWs to be recorded, referred, and tracked to resolution. Under
existing regulations, employment-related law complaints by MSFWs are
not recorded, referred, and tracked to resolution.
Affected Public: State and local governments, and individuals.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 167).
Total Estimated Number of Respondents Annually: 3,586 (no change as
a result of this rulemaking).
Total Estimated Number of Annual Responses: 3,786 (no change as a
result of this rulemaking).
Total Estimated Annual Time Burden: 8,521 hours (no change as a
result of this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 653.107, Sec. 653.108(g)(6), Sec.
653.108(s), Sec. 653.108(i), Sec. 653.108(m), Sec. 653.410, Sec.
658.601, Sec. 658.601(a).
Title of Collection: Standard Job Corps Contractor Gathering
Information.
OMB Control Number: 1205-0219.
Description: The proposed rule would retain the same information
collection requirements as those currently found at 20 CFR 670.960, but
would relocate the requirements to 20 CFR 686.945. Consistent with
existing rules, the proposed rule would require the Department to
provide guidelines for maintaining records for each student during
enrollment and for disposition of records after separation. As a
result, the Department does not anticipate any changes in the
information collection.
Affected Public: Private sector.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 147).
Total Estimated Number of Respondents Annually: 97 (no change as a
result of this rulemaking).
Total Estimated Number of Annual Responses: 184,628 (no change as a
result of this rulemaking).
Total Estimated Annual Time Burden: 38,610 hours (no change as a
result of this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 686.945.
Title of Collection: Placement Verification and Follow-up of Job
Corps Participants.
OMB Control Number: 1205-0426.
Description: Job Corps' performance management system, which
includes the OMS, is a well-established measurement system the Job
Corps community has been using to track performance of centers and
service providers for many years. It will be updated to reflect the new
requirements of WIOA, including the new primary indicators of
performance, but may also include breakouts of data that will help
program managers target interventions in order to achieve the primary
indicators. As a result, additional information would be collected from
respondents.
Affected Public: Individuals or households and private sector.
Obligation to Respond: Voluntary.
Total Estimated Number of Respondents Annually: 88,060 (34,737
additional respondents resulting from this rulemaking).
Total Estimated Number of Annual Responses: 88,060 (34,737
additional responses resulting from this rulemaking).
Total Estimated Annual Time Burden: 19,153 hours (7,713 additional
hours resulting from this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 686.945, Sec. 686.955, Sec. 686.1000,
Sec. 686.1010, Sec. 686.1020, Sec. 686.1030, and Sec. 686.1040.
Title of Collection: National Emergency Grant Assistance--
Application and Reporting Procedures.
OMB Control Number: 1205-0439.
Description: Specified activities must be conducted before an
application for a National Dislocated Worker Grant (NDWG) is submitted.
The proposed rule requires that a project implementation plan, which is
already required for all NEGs under WIA, be submitted post-NDWG award.
However, currently this requirement is included only in guidance; this
NPRM proposes to add this requirement to the regulations. The project
implementation plan includes more detailed information about project
operations than is required for the initial application. This
information allows the Department to provide grantees with targeted
technical assistance, and to exercise appropriate oversight and
monitoring over the NDWG award.
Affected Public: State, local, and tribal governments.
Obligation to Respond: Required to obtain or retain a benefit (WIOA
sec. 170).
Total Estimated Number of Respondents Annually: 159 (9 additional
respondents resulting from this rulemaking).
Total Estimated Number of Annual Responses: 1,574 (89 additional
responses resulting from this rulemaking).
Total Estimated Annual Time Burden: 1,066 hours (60 additional
hours resulting from this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 687.150.
Title of Collection: Employment and Training Administration
Financial Report Form 9130.
OMB Control Number: 1205-0461.
Description: Existing rules require grantees to submit quarterly
financial reports. The proposed rule reflects OMB's Uniform Guidance,
which standardizes the administrative, cost, and audit provisions for
all grants and cooperative agreements provided under part 683. The
proposed rule would establish consistent and uniform guidance that
increases accountability and transparency, promotes fiscal integrity,
and reduces duplication in the quarterly financial reports.
Affected Public: State, local, and tribal governments, and private
sector.
Obligation to Respond: Required to obtain or retain a benefit (2
CFR 200.327).
Total Estimated Number of Respondents Annually: 848 (no change as a
result of this rulemaking).
Total Estimated Number of Annual Responses: 6,784 (no change as a
result of this rulemaking).
Total Estimated Annual Time Burden: 5,088 hours (1,696 additional
hours as a result of this rulemaking).
Total Estimated Annual Other Costs Burden: $0 (no change as a
result of this rulemaking).
NPRM Sections Containing Information Collections Approved Under
this Control Number: Sec. 681.430, Sec. 683.150, Sec. 683.200, Sec.
683.300, Sec. 683.730, Sec. 683.740, Sec. 683.750.
Interested parties may obtain a copy free of charge of one or more
of the information collection requests submitted to the OMB on the
reginfo.gov Web site at http://www.reginfo.gov/public/do/PRAMain. From
the Information Collection Review tab, select Information Collection
Review. Then select Department of Labor from the Currently Under Review
dropdown menu, and look up the Control Number. A free copy of the
requests may also be obtained by contacting the person named in the
ADDRESSES section of this preamble.
[[Page 20831]]
As noted in the ADDRESSES section of this NPRM, interested parties
may send comments about the information collections to the Department
throughout the 60-day comment period and/or to the OMB within 30 days
of publication of this notice in the Federal Register. In order to help
ensure appropriate consideration, comments should mention the
applicable OMB Control Number(s). The Department and OMB are
particularly interested in comments that:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The Department notes that in order to meet WIOA requirements,
several information collections mentioned in this NPRM need to be in
place prior to the final rule taking effect. The Department will follow
PRA requirements in clearing the collections (emergency procedures, as
appropriate), including providing appropriate public engagement and
taking into account the comments received as part of this rulemaking.
C. Executive Order 13132: Federalism
E.O. 13132 requires Federal agencies to ensure that the principles
of Federalism established by the Framers of our Constitution guide the
executive departments and agencies in the formulation and
implementation of policies and to further the policies of the Unfunded
Mandates Reform Act. Further, agencies shall strictly adhere to
constitutional principles. Agencies shall closely examine the
constitutional and statutory authority supporting any action that would
limit the policy-making discretion of the States and they shall
carefully assess the necessity for any such action. To the extent
practicable, State and local officials shall be consulted before any
such action is implemented. Section 3(b) of the Executive Order further
provides that Federal agencies must implement regulations that have a
substantial direct effect only if statutory authority permits the
regulation and it is of national significance. The Department has
reviewed the WIOA NPRM in light of these requirements and have
determined that, with the enactment of WIOA and its clear requirement
to publish national implementing regulations, that E.O. sec. 3(b) has
been fully reviewed and its requirement satisfied.
Accordingly, the Department has reviewed this WIOA-required NPRM
and has determined that the proposed rulemaking has no Federalism
implications. The proposed rule, as noted above, has no substantial
direct effects on States, on the relationships between the States, or
on the distribution of power and responsibilities among the various
levels of Government as described by E.O. 13132. Therefore, the
Department has determined that this proposed rule does not have a
sufficient Federalism implication to warrant the preparation of a
summary impact statement.
D. Unfunded Mandates Reform Act of 1995
This Act directs agencies to assess the effects of Federal
regulatory actions on State, local, and tribal governments, and the
private sector. A Federal mandate is any provision in a regulation that
imposes an enforceable duty upon State, local, or tribal governments,
or imposes a duty on the private sector that is not voluntary.
The WIOA contains specific language supporting employment and
training activities for Indian, Alaska Natives, and Native Hawaiian
individuals. These program requirements are supported, as is the WIOA
workforce development system generally, by Federal formula grant funds
and accordingly are not considered unfunded mandates. Similarly,
migrant and seasonal farmworker activities are authorized and funded
under the WIOA program as is currently done under the WIA program. The
States are mandated to perform certain activities for the Federal
Government under the WIOA program and will be reimbursed (grant
funding) for the resources required to perform those responsibilities.
The same process and grant relationship exists between States and Local
WDBs under the WIA program and shall continue under the WIOA program
and as identified in this NPRM.
WIOA contains language establishing procedures regarding the
eligibility of training providers to receive funds under the WIOA
program. It also contains clear State information collection
requirements for training entities, for example, submission of
appropriate, accurate, and timely information. A decision by a private
training entity to participate as a provider under the WIOA program is
purely voluntary and therefore information collection burdens do not
impose a duty on the private sector that is not voluntarily assumed.
The Department's following consideration of these factors has
determined that this proposed rule contains no unfunded Federal
mandates, which are defined in 2 U.S.C. 658(6) to include either a
``Federal intergovernmental mandate'' or a ``Federal private sector
mandate.''
E. Plain Language
The Department drafted this WIOA NPRM in plain language.
F. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, enacted as part of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat.
2681) requires the assessment of the impact of this proposed rule on
family well-being. A rule that is determined to have a negative effect
on families must be supported with an adequate rationale. The
Department has assessed this proposed rule in light of this requirement
and determined that the WIOA NPRM would not have a negative effect on
families.
G. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, requires
agencies to prepare a regulatory flexibility analysis to determine
whether a regulation will have a significant economic impact on a
substantial number of small entities. Section 605 of the RFA allows an
agency to certify a rule in lieu of preparing an analysis if the
regulation is not expected to have a significant economic impact on a
substantial number of small entities. Further, under the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C 801 (SBREFA), an
agency is required to produce compliance guidance for small entities if
the rule has a significant economic impact.
The Small Business Administration (SBA) defines a small business as
one that is ``independently owned and operated and which is not
dominant in its field of operation.'' The definition of small business
varies from industry to
[[Page 20832]]
industry to the extent necessary to reflect industry size differences
properly. An agency must either use the SBA definition for a small
entity or establish an alternative definition, in this instance, for
the workforce industry. The Department has adopted the SBA definition
for the purposes of this certification.
The Department has notified the Chief Counsel for Advocacy, SBA,
under the RFA at 5 U.S.C. 605(b), and proposes to certify that this
rule will not have a significant economic impact on a substantial
number of small entities. This finding is supported, in large measure,
by the fact that small entities are already receiving financial
assistance under the WIA program and will likely continue to do so
under the WIOA program as articulated in this NPRM.
Affected Small Entities
The proposed rule can be expected to impact small one-stop center
operators. One-stop operators can be a single entity (public, private,
or nonprofit) or a consortium of entities. The types of entities that
might be a one-stop operator include: (1) An institution of higher
education; (2) an employment service State agency established under the
Wagner-Peyser Act; (3) a community-based organization, nonprofit
organization, or workforce intermediary; (4) a private for-profit
entity; (5) a government agency; (6) a Local Board, with the approval
of the local CEO and the Governor; or (7) another interested
organization or entity that can carry out the duties of the one-stop
operator. Examples include a local chamber of commerce or other
business organization, or a labor organization.
Impact on Small Entities
The Department indicates that transfer payments are a significant
aspect of this analysis in that the majority of WIOA program cost
burdens on State and Local WDBs will be fully financed through Federal
transfer payments to States. We have highlighted costs that are new to
WIOA implementation and this NPRM. Therefore, the Department expects
that the WIOA NPRM will have no cost impact on small entities.
H. Small Business Regulatory Enforcement Fairness Act of 1996
The Department has determined that this proposed rulemaking does
not impose a significant impact on a substantial number of small
entities under the RFA; therefore, the Department is not required to
produce any Compliance Guides for Small Entities as mandated by the
SBREFA.
I. Executive Order 13175 (Indian Tribal Governments)
The Department reviewed this proposed rule under the terms of E.O.
13175 and has determined it to have no tribal implications in addition
to those created through the reimbursement of WIA and future WIOA
program expenses via Federally disbursed formula grant funds. The
proposed rule would have substantial direct effects on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes. As a result, a tribal
summary impact statement has been prepared.
Prior to developing this proposed rule, the Department held three
events to talk with the tribal institutions about their concerns about
the current state of Indian and Native American Programs (INAP) as well
as what concerns they see in the future. These three events consisted
of a consultation webinar and two in-person town hall meetings. The
consultation webinar, entitled ``Listening session on Indian and Native
American Programs,'' occurred on September 15, 2014. Two other
consultations were held, including an October 21, 2014, town hall
meeting with Indian and Native American leaders and membership
organizations serving Indians and Native Americans, Hawaiians, and
Alaskan Natives, and a formal consultation December 17, 2014, with
members of the Native American Employment and Training Advisory Council
to the Secretary of Labor.
The Department received feedback from the Indian and Native
American (INA) community and the general public that established
several areas of interest concerning the Department of Labor's
relationship with Indian and Native American Tribes and Tribal
Governments. These areas of interest are summarized below.
Services Received in American Job Centers
Specifically, the INA community expressed interest in learning how
American Job Centers will account for the use of their INA funding
dollars and how to ensure that the funds intended for the INA
population will be dedicated to that population. In addition, there
were also several individuals that had concerns that INA individuals
that enter an American Job Center may not get the general assistance
that is intended for all people that seek assistance. In other words,
several commenters wanted to ensure that INA individuals should receive
assistance intended for other populations that they may qualify for
when seeking service. Finally, several commenters were interested in
learning more about how INA programs may be required to contribute to
American Job Center infrastructure funding and how American Job Centers
will account for INA members served to ensure that the American Job
Center network is responding to the relevant INA population needs.
Funding Per Participant Was Low for INA Programs Especially When
Compared to Other Job Training Programs
Many of the commenters expressed concern that the funds made
available on a per participant basis for INA programs were not
sufficient to meet the needs of the populations being served.
Specifically, many commenters stated that funds available for INA youth
are inadequate to fully meet their needs. In addition, commenters felt
that more funds were needed for INA job training programs to ensure
that career pathway training could be carried out. Several commenters
compared the cost per participant funding for other programs, such as
Job Corps, as evidence of the lack of funding for INA programs. The
commenters went on to request a comparison of other WIA-funded programs
and the INA programs. Finally, one commenter felt that because of the
lack of funds, INA youth were being served instead of INA adults.
The majority of comments focused on the use of new funding streams
and the requirements attached to those funds. Commenters expressed
concern about the issue of using and transferring WIOA funding to
support activities under Indian Employment, Training, and Related
Services Demonstration Act of 1992, as amended (Pub. L. 102-477).
Specifically, commenters talked about the importance of flexibility in
adherence to the requirements because Public Law 102-477 programs are
tribal programs, may be located in rural areas, and have been
effectively and efficiently reporting through existing processes,
including a single reporting feature in the annual report.
Additionally, commenters suggested that vocational rehabilitation,
adult education reentry, and other applicable job/education-related
program funding also should be allowed to support Public Law 102-477
programs. Clarity around which funding streams are allowable also was
suggested. Commenters also expressed hope that the Department of
Education
[[Page 20833]]
will integrate Carl D. Perkins funding under Public Law 102-477 which
allows Federally-recognized Tribes and Alaska Native entities to
combine formula-funded Federal grant funds administered by the
Department of Interior, which are employment and training-related into
a single plan with a single budget and a single reporting system.
Commenters noted that the Native American Career and Technical
Education Program (NACTEP) is a required partner, and that NACTEP has
limited the partner funds available to fund supportive services and
work experiences. One commenter asked if statutory language regarding
key investments in vulnerable populations would result in an increase
in funding for Division of Indian and Native American Programs (DINAP)
programs. Lastly, it was suggested that the 166 Advisory Council
continue, and DINAP programs continue to be staffed with Native
Americans and Native American Chiefs.
Concerns About the Effects of the New Performance Reporting
Requirements Established in WIOA on the INA Community
Many commenters expressed concern that INA programs would not be
able to meet the performance reporting requirements established by WIOA
for several reasons, including limited funds to train individuals for
the new performance standards and the need to purchase new technology
and equipment to meet the reporting requirements. In addition, several
commenters said that INA programs will have to be more selective in
determining eligibility for training programs because of insufficient
of funding and the increased focus on performance outcomes.
Lack of Funding To Hire and Effectively Train Staff and Ensuring Policy
Is Responsive to INA Community Needs
Commenters stated concerns that INA programs will not be able to
achieve expected performance levels because they lacked funding to
adequately staff programs. Several commenters stated concerns about the
limited number of staff, increased training needs for staff, and the
need to ensure that technical assistance is made available to staff.
Specifically, commenters are concerned that INA programs may transition
slower than States to the new WIOA requirements because of funding and
staff needs. In addition, they stated that INA programs need more funds
to implement new administrative tasks as well as provide services to
the INA community.
Working With States and Other Programs
Commenters expressed concerns about States' accountability to the
INA community and how to make other training programs administered by
the State work comprehensively with INA programs. Others encouraged
flexibility and freedom in funding in working with these same entities
and lauded this flexibility as a way to get more out of funds.
Furthermore, the commenters emphasized how important it is for Indian
and Native American Leaders to have a voice in the policy and guidance
formulation process so that policy is directly responsive to the needs
and funding has to go hand in hand with the needs identified. Some
commenters suggested an on-going dialogue between Indian and Native
American leaders, Workforce Investment Boards, local and State
agencies, and the American Job Centers to discuss training and
education that leads to jobs. Some commenters stated that State-run
programs need to be more accountable for how they interact with INA
populations. Other commenters expressed frustration that some State
programs do not see a need to work with INA programs because the States
think that the INA programs get money from other sources, such as
casinos. Many of the commenters said that they wanted better
collaboration with State-run programs and increased networking among
INA programs and State agencies. Finally, one commenter stated that
collaboration between INA programs and the State-run training systems
would make services to individuals more efficient because it would
prevent ``double-dipping'' in programs.
The Department invites public comment about what can be done to
address the areas summarized above.
J. Executive Order 12630 (Government Actions and Interference With
Constitutionally Protected Property Rights
The Department has determined that this WIOA NPRM is not subject to
E.O. 12630, Governmental Actions and Interference with Constitutionally
Protected Property Rights, because it does not involve implementation
of a policy with takings implications.
K. Executive Order 12988 (Civil Justice Reform)
This NPRM was drafted and reviewed in accordance with E.O. 12988,
Civil Justice Reform, and the Department has determined that the
proposed rule will not burden the Federal court system. The proposed
WIOA regulation was written to minimize litigation and to the extent
feasible, provides a clear legal standard for affected conduct, and has
been reviewed carefully to eliminate drafting errors and ambiguities.
L. Executive Order 13211 (Energy Supply)
This NPRM was drafted and reviewed in accordance with E.O. 13211,
Energy Supply. The Department has determined the NPRM will not have a
significant adverse effect on the supply, distribution, or use of
energy and is not subject to E.O. 13211.
List of Subjects
20 CFR Part 603
Grant programs-labor, Privacy, Reporting and recordkeeping
requirements, Unemployment compensation, Wages.
20 CFR Part 651
Employment, Grant programs-labor.
20 CFR Part 652
Employment, Grant programs-labor, Reporting and recordkeeping
requirements.
20 CFR Part 653
Agriculture, Employment, Equal employment opportunity, Grant
programs-labor, Migrant labor, Reporting and recordkeeping
requirements.
20 CFR Part 654
Employment, Government procurement, Housing standards, Manpower,
Migrant labor, Reporting and recordkeeping requirements.
20 CFR Part 658
Administrative practice and procedure, Employment, Grant programs-
labor, Reporting and recordkeeping requirements.
20 CFR Part 675
Employment, Grant programs-labor.
20 CFR Parts 679-680
Employment, Grant programs-labor.
20 CFR Part 681
Employment, Grant programs-labor, Youth.
20 CFR Part 682
Employment, Grant programs-labor.
20 CFR Part 683
Employment, Grant programs-labor, Reporting and recordkeeping
requirements.
[[Page 20834]]
20 CFR Part 684
Employment, Grant programs-labor, Indians, Reporting and
recordkeeping requirements.
20 CFR Part 685
Employment, Grant programs-labor, Migrant labor, Reporting and
recordkeeping requirements.
20 CFR Part 686
Employment, Grant programs-labor, Job Corps.
20 CFR Part 687
Employment, Grant programs-labor.
20 CFR Part 688
Employment, Grant programs-labor, Youth, YouthBuild.
For the reasons stated in the preamble, ETA proposes to amend title
20 CFR, chapter V, as follows:
PART 603--FEDERAL-STATE UNEMPLOYMENT COMPENSATION (UC) PROGRAM;
CONFIDENTIALITY AND DISCLOSURE OF STATE UC INFORMATION
0
1. Revise the authority citation for part 603 to read as follows:
Authority: Secs. 116, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014); 20 U.S.C 1232g.
0
2. Amend Sec. 603.2 by revising paragraph (d) to read as follows:
Sec. 603.2 What definitions apply to this part?
* * * * *
(d) Public official means:
(1) An official, agency, or public entity within the executive
branch of Federal, State, or local government who (or which) has
responsibility for administering or enforcing a law, or an elected
official in the Federal, State, or local government.
(2) Public post-secondary educational institutions established and
governed under the laws of the State. These include the following:
(i) Institutions that are part of the State's executive branch.
This means the head of the institution must derive his or her authority
from the Governor, either directly or through a State Board,
commission, or similar entity established in the executive branch under
the laws of the State.
(ii) Institutions which are independent of the executive branch.
This means the head of the institution derives his or her authority
from the State's chief executive officer for the State education
authority or agency when such officer is elected or appointed
independently of the Governor.
(iii) Publicly governed, publicly funded community and technical
colleges.
(3) Performance accountability and customer information agencies
designated by the Governor of a State to be responsible for
coordinating the assessment of State and local education or workforce
training program performance and/or evaluating education or workforce
training provider performance.
(4) The chief elected official of a local Workforce Development
Area as defined in WIOA sec. 3(9).
(5) A State educational authority, agency or institution as those
terms are used in the Family Educational Rights and Privacy Act, to the
extent they are public entities.
* * * * *
0
3. Amend Sec. 603.5 by revising paragraph (e) to read as follows:
Sec. 603.5 What are the exceptions to the confidentiality
requirement?
* * * * *
(e) Public official. Disclosure of confidential UC information to a
public official for use in the performance of his or her official
duties is permissible.
(1) ``Performance of official duties'' means administration or
enforcement of law or the execution of the official responsibilities of
a Federal, State, or local elected official. Administration of law
includes research related to the law administered by the public
official. Execution of official responsibilities does not include
solicitation of contributions or expenditures to or on behalf of a
candidate for public or political office or a political party.
(2) For purposes of Sec. 603.2(d)(2) through (5), ``performance of
official duties'' includes, in addition to the activities set out in
paragraph (e)(1) of this section, use of the confidential UC
information for the following limited purposes:
(i) State and local performance accountability under WIOA sec. 116,
including eligible training provider performance accountability under
WIOA secs. 116(d) and 122;
(ii) The requirements of discretionary Federal grants awarded under
WIOA; or
(iii) As otherwise required for education or workforce training
program performance accountability and reporting under Federal or State
law.
* * * * *
0
4. Amend Sec. 603.6 by adding paragraph (b)(8) to read as follows:
Sec. 603.6 What disclosures are required by this subpart?
* * * * *
(b) * * *
(8) To comply with WIOA sec. 116(e)(4), States must, to the extent
practicable, cooperate in the conduct of evaluations (including related
research projects) provided for by the Secretary of Labor or the
Secretary of Education under the provisions of Federal law identified
in WIOA sec. 116(e)(1); WIOA secs. 169 and 242(c)(2)(D); sec. 12(a)(5),
14, and 107 of the Rehabilitation Act of 1973 (29 U.S.C. 709(a)(5),
711, 727) (applied with respect to programs carried out under title I
of that Act (29 U.S.C. 720 et seq.)); and the investigations provided
for by the Secretary of Labor under sec. 10(b) of the Wagner-Peyser Act
(29 U.S.C. 49i(b)). For purposes of this part, States must disclose
confidential UC information to a Federal official (or an agent or
contractor of a Federal official) requesting such information in the
course of such evaluations. This disclosure must be done in accordance
with appropriate privacy and confidentiality protections established in
this part. This disclosure must be made to the ``extent practicable'',
which means that the disclosure would not interfere with the efficient
administration of the State UC law, as required by Sec. 603.5.
* * * * *
0
5. Add part 675 to read as follows:
PART 675--INTRODUCTION TO THE REGULATIONS FOR THE WORKFORCE
INNOVATION AND OPPORTUNITY SYSTEMS UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Sec.
675.100 What are the purposes of title I of the Workforce Innovation
and Opportunity Act?
675.200 What do the regulations for workforce investment systems
under title I of the Workforce Innovation and Opportunity Act cover?
675.300 What definitions apply to these regulations?
Authority: Secs. 2, 3, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Sec. 675.100 What are the purposes of title I of the Workforce
Innovation and Opportunity Act?
The purposes of title I of the Workforce Innovation and Opportunity
Act (WIOA) include:
(a) Increasing access to, and opportunities for individuals to
receive, the employment, education, training, and support services
necessary to succeed in the labor market, with a particular focus on
those individuals with disabilities or other barriers to employment
including out of school
[[Page 20835]]
youth with the goal of improving their outcomes;
(b) Enhancing the strategic role for States and elected officials,
and Local Workforce Development Boards in the workforce system by
increasing flexibility to tailor services to meet employer and worker
needs at State, regional, and local levels;
(c) Streamlining service delivery across multiple programs by
requiring colocation, coordination, and integration of activities and
information to make the system understandable and accessible for
individuals, including people with disabilities and those with other
barriers to employment, and businesses.
(d) Supporting the alignment of the workforce investment,
education, and economic development systems in support of a
comprehensive, accessible, and high-quality workforce development
system at the Federal, State, and local and regional levels;
(e) Improving the quality and labor market relevance of workforce
investment, education, and economic development efforts by promoting
the use of industry and sector partnerships, career pathways, and
regional service delivery strategies in order to both provide America's
workers with the skills and credentials that will enable them to secure
and advance in employment with family-sustaining wages, and to provide
America's employers with the skilled workers the employers need to
succeed in a global economy;
(f) Promoting accountability using core indicators of performance
measured across all WIOA authorized programs, sanctions, and high
quality evaluations to improve the structure and delivery of services
through the workforce development system to address and improve the
employment and skill needs of workers, jobseekers, and employers;
(g) Increasing the prosperity and economic growth of workers,
employers, communities, regions, and States; and
(h) Providing workforce development activities through statewide
and local workforce development systems to increase employment,
retention and earnings of participants and to increase industry-
recognized post-secondary credential attainment to improve the quality
of the workforce, reduce welfare dependency, increase economic self-
sufficiency, meet skill requirements of employers, and enhance
productivity and competitiveness of the nation.
Sec. 675.200 What do the regulations for workforce investment systems
under title I of the Workforce Innovation and Opportunity Act cover?
The regulations found in 20 CFR parts 675 through 687 set forth the
regulatory requirements that are applicable to programs operated with
funds provided under title I of WIOA. This part 675 describes the
purpose of that Act, explains the format of these regulations and sets
forth definitions for terms that apply to each part. Part 676 contains
regulations relating to statewide and local governance of the workforce
investment system. Part 677 describes the one-stop system and the roles
of one-stop partners. Part 678 sets forth requirements applicable to
WIOA title I programs serving adults and dislocated workers. Part 679
sets forth requirements applicable to WIOA title I programs serving
youth. Part 680 contains regulations relating to statewide activities.
Part 681 describes the WIOA performance accountability system. Part 682
sets forth the administrative requirements applicable to programs
funded under WIOA title I. Parts 684 and 685 contain the particular
requirements applicable to programs serving Indians and Native
Americans and Migrant and Seasonal Farmworkers, respectively. Parts 686
and 687 describe the particular requirements applicable to the Job
Corps and the national dislocated worker grant programs, respectively.
Part 687 contains the regulations governing the YouthBuild program. In
addition, part 652 describes the establishment and functioning of State
Employment Services under the Wagner-Peyser Act, and 29 CFR part 37
contains the Department's nondiscrimination regulations implementing
WIA sec. 188.
Sec. 675.300 What definitions apply to these regulations?
In addition to the definitions set forth in WIOA and the WIOA
Regulations the following definitions apply to the regulations in 20
CFR parts 675 through 687:
Consultation means an interactive discussion between two or more
parties for the purpose of exchanging viewpoints and ideas.
Contract means a legal instrument by which a non-Federal entity
purchases property or services needed to carry out the project or
program under a Federal award. The term as used in this part does not
include a legal instrument, even if the non-Federal entity considers it
a contract, when the substance of the transaction meets the definition
of a Federal award or subaward as defined in this section.
Contractor means an entity that receives a contract as defined in
this section.
Cooperative Agreement means a legal instrument of financial
assistance between a Federal awarding agency or pass-through entity and
a non-Federal entity that, consistent with 31 U.S.C. 6302-6305:
(1) Is used to enter into a relationship the principal purpose of
which is to transfer anything of value from the Federal awarding agency
or pass- through entity to the non-Federal entity to carry out a public
purpose authorized by a law of the United States (see 31 U.S.C.
6101(3)); and not to acquire property or services for the Federal
government or pass-through entity's direct benefit or use;
(2) Is distinguished from a grant in that it provides for
substantial involvement between the Federal awarding agency or pass-
through entity and the non-Federal entity in carrying out the activity
contemplated by the Federal award.
(3) The term does not include:
(i) A cooperative research and development agreement as defined in
15 U.S.C. 3710a; or
(ii) An agreement that provides only:
(A) Direct United States Government cash assistance to an
individual;
(B) A subsidy;
(C) A loan;
(D) A loan guarantee; or
(E) Insurance.
Department or DOL means the U.S. Department of Labor, including its
agencies and organizational units.
Employment and training activity means a workforce investment
activity that is carried out for an adult or dislocated worker under 20
CFR part 678.
Equal opportunity data or EO data means data on race and ethnicity,
age, sex, and disability required by 29 CFR part 37 of the DOL
regulations implementing sec. 188 of WIA, governing nondiscrimination.
Employment and Training Administration or ETA means the Employment
and Training Administration of the U.S. Department of Labor, or its
successor organization.
Federal Award means:
(1) The Federal financial assistance that a non-Federal entity
receives directly from a Federal awarding agency or indirectly from a
pass-through entity, as described in 2 CFR 200.101 Applicability;
(2) The cost-reimbursement contract under the Federal Acquisition
Regulations that a non-Federal entity receives directly from a Federal
awarding agency or indirectly from a
[[Page 20836]]
pass-through entity, as described in 2 CFR 200.101 Applicability; and
(3) The instrument setting forth the terms and conditions. The
instrument is the grant agreement, cooperative agreement, other
agreement for assistance covered in paragraph (b) of 2 CFR 200.40
Federal financial assistance, or the cost-reimbursement contract
awarded under the Federal Acquisition Regulations.
(4) Federal award does not include other contracts that a Federal
agency uses to buy goods or services from a contractor or a contract to
operate Federal government owned, contractor operated facilities
(GOCOs).
Federal Financial Assistance means:
(1) For grants and cooperative agreements, assistance in the form
of:
(i) Grants;
(ii) Cooperative agreements;
(iii) Non-cash contributions or donations of property (including
donated surplus property);
(iv) Direct appropriations;
(v) Food commodities; and
(vi) Other financial assistance, except assistance listed in
paragraph (2) of this definition.
(2) For purposes of the audit requirements at 2 CFR part 200,
subpart F, Federal financial assistance includes assistance that non-
Federal entities receive or administer in the form of:
(i) Loans;
(ii) Loan Guarantees;
(iii) Interest subsidies; and
(iv) Insurance.
(3) Federal financial assistance does not include amounts received
as reimbursement for services rendered to individuals as described in 2
CFR 200.502, which outlines the basis for determining Federal awards
expended.
Grant or Grant Agreement means a legal instrument of financial
assistance between a Federal awarding agency and a non-Federal entity
that, consistent with 31 U.S.C. 6302, 6304:
(1) Is used to enter into a relationship the principal purpose of
which is to transfer anything of value from the Federal awarding agency
to carry out a public purpose authorized by a law of the United States
(see 31 U.S.C. 6101(3)); and not to acquire property or services for
the Federal awarding agency's direct benefit or use;
(2) Is distinguished from a cooperative agreement in that it does
not provide for substantial involvement between the Federal awarding
agency or pass-through entity and the non-Federal entity in carrying
out the activity contemplated by the Federal award.
(3) Grant agreement does not include an agreement that provides
only:
(i) Direct United States Government cash assistance to an
individual;
(ii) A subsidy;
(iii) A loan;
(iv) A loan guarantee; or
(v) Insurance.
Grantee means the direct recipient of grant funds from the
Department of Labor under a grant or grant agreement. A grantee may
also be referred to as a recipient.
Individual with a disability means an individual with any
disability (as defined in sec. 3 of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12102)). For purposes of WIOA sec. 188, this term is
defined at 29 CFR 37.4.
Labor Federation means an alliance of two or more organized labor
unions for the purpose of mutual support and action.
Literacy means an individual's ability to read, write, and speak in
English, and to compute, and solve problems, at levels of proficiency
necessary to function on the job, in the family of the individual, and
in society.
Local Board means a Local Workforce Development Board established
under WIOA sec. 107, to set policy for the local workforce investment
system.
Non-Federal entity, as defined in 2 CFR part 2900.2, means a State,
local government, Indian tribe, institution of higher education (IHE),
for-profit entity, foreign public entity, foreign organization or
nonprofit organization that carries out a Federal award as a recipient
or subrecipient.
Obligations when used in connection with a non-Federal entity's
utilization of funds under a Federal award, means orders placed for
property and services, contracts and subawards made, and similar
transactions during a given period that require payment by the non-
Federal entity during the same or a future period.
Outlying area means:
(1) The United States Virgin Islands, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands; and
(2) The Republic of Palau, except during a period that the
Secretaries determine both that a Compact of Free Association is in
effect and that the Compact contains provisions for training and
education assistance prohibiting the assistance provided under the
Workforce Innovation and Opportunity Act.
Pass-through entity means a non-Federal entity that provides a
subaward to a subrecipient to carry out part of a Federal program.
Recipient means a non-Federal entity that receives a Federal award
directly from a Federal awarding agency to carry out an activity under
a Federal program. The term recipient does not include subrecipients.
Register means the process for collecting information, including
identifying information, to determine an individual's eligibility for
services under WIOA title I. Individuals may be registered in a variety
ways, as described in 20 CFR parts 678.105.
Secretary means the Secretary of the U.S. Department of Labor, or
their designee.
Secretaries means the Secretaries of the U.S. Department Labor and
the U.S. Department of Education, or their designees.
Self-certification means an individual's signed attestation that
the information they submit to demonstrate eligibility for a program
under title I of WIOA is true and accurate.
State means each of the several States of the United States, the
District of Columbia and the Commonwealth of Puerto Rico. The term
``State'' does not include outlying areas.
State Board means a State Workforce Development Board established
under WIOA sec. 101.
Subgrant or subaward means an award provided by a pass-through
entity to a subrecipient for the subrecipient to carry out part of a
Federal award received by the pass-through entity. It does not include
payments to a contractor or payments to an individual that is a
beneficiary of a Federal program. A subaward may be provided through
any form of legal agreement, including an agreement that the pass-
through entity considers a contract.
Subrecipient means a non-Federal entity that receives a subaward
from a pass-through entity to carry out part of a Federal program, but
does not include an individual that is a beneficiary of such program. A
subrecipient may also be a recipient of other Federal awards directly
from a Federal awarding agency.
Unliquidated obligations means, for financial reports prepared on a
cash basis, obligations incurred by the non-Federal entity that have
not been paid (liquidated). For reports prepared on an accrual
expenditure basis, these are obligations incurred by the non-Federal
entity for which an expenditure has not been recorded.
Unobligated balance means the amount of funds under a Federal award
that the non-Federal entity has not obligated. The amount is computed
by subtracting the cumulative amount of the non-Federal entity's
unliquidated obligations and expenditures of funds under the Federal
award from the cumulative amount of the funds that the Federal awarding
agency or pass-
[[Page 20837]]
through entity authorized the non- Federal entity to obligate.
Wagner-Peyser Act means the Act of June 6, 1933, as amended,
codified at 29 U.S.C. 49 et seq.
WIA Regulations mean the regulations in 20 CFR parts 660 through
672, the Wagner-Peyser Act regulations in 20 CFR part 652, subpart C,
and the regulations implementing WIA sec. 188 in 29 CFR part 37.
WIOA regulations mean the regulations in 20 CFR parts 675 through
687, the Wagner-Peyser Act regulations in 20 CFR part 652, subpart C,
and the regulations implementing WIA sec. 188 in 29 CFR part 37.
Workforce investment activities mean the array of activities
permitted under title I of WIOA, which include employment and training
activities for adults and dislocated workers, as described in WIOA sec.
134, and youth activities, as described in WIOA sec. 129.
Youth Workforce Investment Activity means a workforce investment
activity that is carried out for eligible youth under 20 CFR part 679.
0
6. Add part 679 to read as follows:
PART 679--STATEWIDE AND LOCAL GOVERNANCE OF THE WORKFORCE
INVESTMENT SYSTEM UNDER TITLE I OF THE WORKFORCE INNOVATION AND
OPPORTUNITY ACT
Subpart A--State Workforce Development Board
Sec.
679.100 What is the vision and purpose of the State Board?
679.110 What is the State Workforce Development Board?
679.120 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
679.130 What are the functions of the State Board?
679.140 How does the State Board meet its requirement to conduct
business in an open manner under ``sunshine provision'' of the
Workforce Innovation and Opportunity Act?
679.150 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Development
Board?
679.160 Under what circumstances may the State Board hire staff?
Subpart B--Workforce Innovation and Opportunity Act Local Governance
(Workforce Development Areas)
679.200 What is the purpose of requiring States to identify regions?
679.210 What are the requirements for identifying a region?
679.220 What is the purpose of the local workforce development area?
679.230 What are the general procedural requirements for designation
of local workforce development areas?
679.240 What are the substantive requirements for designation of
local workforce development areas that were not designated as local
areas under the Workforce Investment Act of 1998?
679.250 What are the requirements for initial and subsequent
designation of workforce development areas that had been designated
as local areas under the Workforce Investment Act of 1998?
679.260 What do the terms ``performed successfully'' and ``sustained
fiscal integrity'' mean for purposes of designating local areas?
679.270 What are the special designation provisions for single-area
States?
679.280 How does the State fulfill the requirement to provide
assistance to local areas within a planning region that wish to
redesignate into a single local area?
679.290 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce
development area?
Subpart C--Local Boards
679.300 What is the vision and purpose of the Local Workforce
Development Board?
679.310 What is the Local Workforce Development Board?
679.320 Who are the required members of the Local Workforce
Development Board?
679.330 Who must chair a Local Board?
679.340 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
679.350 What criteria will be used to establish the membership of
the Local Board?
679.360 What is a standing committee, and what is its relationship
to the Local Board?
679.370 What are the functions of the Local Board?
679.380 How does the Local Board satisfy the consumer choice
requirements for career services and training services?
679.390 How does the Local Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of the
Workforce Innovation and Opportunity Act?
679.400 Who are the staff to the Local Board and what is their role?
679.410 Under what conditions may a Local Board directly be a
provider of career services, or training services, or act as a one-
stop operator?
679.420 What are the functions of the local fiscal agent?
679.430 How do entities performing multiple functions in a local
area demonstrate internal controls and prevent conflict of interest?
Subpart D--Regional and Local Plan
679.500 What is the purpose of the regional and local plan?
679.510 What are the requirements for regional planning?
679.520 What are the requirements for approval of a regional plan?
679.530 When must the regional plan be modified?
679.540 How are local planning requirements reflected in a regional
plan?
679.550 What are the requirements for the development of the local
plan?
679.560 What are the contents of the local plan?
679.570 What are the requirements for approval of a local plan?
679.580 When must the local plan be modified?
Subpart E--Waivers/WorkFlex (Workforce Flexibility Plan)
679.600 What is the purpose of the General Statutory and Regulatory
Waiver Authority in the Workforce Innovation and Opportunity Act?
679.610 What provisions of the Workforce Innovation and Opportunity
Act and the Wagner-Peyser Act may be waived, and what provisions may
not be waived?
679.620 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under the Workforce Innovation and Opportunity Act?
679.630 Under what conditions may the Governor submit a Workforce
Flexibility Plan?
679.640 What limitations apply to the State's Workforce Flexibility
Plan authority under the Workforce Innovation and Opportunity Act?
Authority: Secs. 101, 106, 107, 108, 189, 503, Pub. L. 113-128,
128 Stat. 1425 (Jul. 22, 2014).
Subpart A--State Workforce Development Board
Sec. 679.100 What the purpose of the State Board?
The purpose of the State Board is to convene State, regional, and
local workforce system and partners, to--
(a) Enhance the capacity and performance of the workforce
development system;
(b) Align and improve the outcomes and effectiveness of Federally-
funded and other workforce programs and investments; and
(c) Through these efforts, promote economic growth.
(d) Engage workforce system representatives, including businesses,
education providers, economic development, labor representatives, and
other stakeholders to help the workforce development system achieve the
purpose of the Workforce Innovation and Security Act (WIOA); and
(e) Assist to achieve the State's strategic and operational vision
and goals as outlined in the State Plan.
[[Page 20838]]
Sec. 679.110 What is the State Workforce Development Board?
(a) The State Board is a board established by the Governor in
accordance with the requirements of WIOA sec. 101 and this section.
(b) The membership of the State Board must meet the requirements of
WIOA 101(b) and must represent diverse geographic areas of the State,
including urban, rural, and suburban areas. The Board membership and
must include:
(1) The Governor;
(2) A member of each chamber of the State legislature, appointed by
the appropriate presiding officers of such chamber, as appropriate
under State law; and
(3) Members appointed by the Governor, which must include:
(i) A majority of representatives of businesses or organizations
who:
(A) Are the owner or chief executive officer for the business or
organization, or is an executive with the business or organization with
optimum policy-making or hiring authority, and may also be members of a
Local Board as described in WIOA sec. 107(b)(2)(A)(i);
(B) Represent businesses, or organizations that represent
businesses described in 679.110(b)(3)(i), that, at a minimum, provide
employment and training opportunities that include high-quality, work-
relevant training and development in in-demand industry sectors or
occupations in the State; and
(C) Are appointed from a list of potential members nominated by
State business organizations and business trade associations; and
(D) At a minimum, one member representing small businesses as
defined by the U.S. Small Business Administration.
(ii) Not less than 20 percent who are representatives of the
workforce within the State, which:
(A) Must include two or more representatives of labor organizations
nominated by State labor federations;
(B) Must include one representative who must be a member of a labor
organization or training director from a joint labor-management
apprenticeship program, or, if no such joint program exists in the
State, a member of a labor organization or training director who is a
representative of an apprenticeship program;
(C) May include one or more representatives of community-based
organizations that have demonstrated experience and expertise in
addressing the employment, training, or education needs of individuals
with barriers to employment, including organizations that serve
veterans or provide or support competitive, integrated employment for
individuals with disabilities; and
(D) May include one or more representatives of organizations that
have demonstrated experience and expertise in addressing the
employment, training, or education needs of eligible youth, including
representatives of organizations that serve out-of-school youth.
(iii) The balance of the members:
(A) Must include representatives of the Government including:
(1) The lead State officials with primary responsibility for each
of the core programs. Where the lead official represents more than one
core program, that official must ensure adequate representation of the
needs of all core programs under his or her jurisdiction.
(2) Two or more chief elected officials (collectively representing
both cities and counties, where appropriate).
(B) May include other appropriate representatives and officials
designated by the Governor, such as, but not limited to, State agency
officials responsible for one-stop partner programs, economic
development or juvenile justice programs in the State, individuals who
represent an Indian tribe or tribal organization as defined in WIOA
sec. 166(b), and State agency officials responsible for education
programs in the State, including chief executive officers of community
colleges and other institutions of higher education.
(c) The Governor must select a chairperson for the State Board from
the business representatives on the board described in paragraph
(b)(3)(i) of this section).
(d) The Governor must establish by-laws that at a minimum address:
(1) The nomination process used by the Governor to select the State
Board chair and members;
(2) The term limitations and how the term appointments will be
staggered to ensure only a portion of membership expire in a given
year;
(3) The process to notify the Governor of a board member vacancy to
ensure a prompt nominee;
(4) The proxy and alternative designee process that will be used
when a board member is unable to attend a meeting and assigns a
designee as per the requirements at 679.110(d)(4);
(i) If the alternative designee is a business representative, he or
she must have optimum policy-making hiring authority.
(ii) Other alternative designees should have demonstrated
experience and expertise and optimum policy-making authority.
(5) The use of technology, such as phone and Web-based meetings,
that must be used to promote board member participation; and
(6) The process to ensure members actively participate in convening
the workforce development system's stakeholders, brokering
relationships with a diverse range of employers, and leveraging support
for workforce development activities; and
(7) Other conditions governing appointment or membership on the
State Board as deemed appropriate by the Governor.
(e) Members who represent organizations, agencies or other entities
described in (b)(3)(ii) through (iii) above must be individuals who
have optimum policy-making authority in the organizations that they
represent.
(f)(1) A State Board member may not represent more than one of the
categories described in:
(i) Paragraph (b)(3)(i) of this section (business representatives);
(ii) Paragraph (b)(3)(ii) of this section (workforce
representatives); or
(iii) Paragraph (b)(3)(iii) of this section (government
representatives).
(2) A State Board member may not serve as a representative of more
than one subcategory under paragraph (b)(3)(ii) of this section.
(3) A State Board member may not serve as a representative of more
than one subcategory under paragraph (b)(3)(iii) of this section,
except that where a single government agency is responsible for
multiple required programs, the head of the agency may represent each
of the required programs.
(g) All required board members must have voting privileges. The
Governor may also convey voting privileges to non-required members.
Sec. 679.120 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
For purposes of Sec. 679.110:
(a) A representative with ``optimum policy-making authority'' is an
individual who can reasonably be expected to speak affirmatively on
behalf of the entity he or she represents and to commit that entity to
a chosen course of action.
(b) A representative with ``demonstrated experience and expertise''
means an individual with documented leadership in developing or
implementing workforce development, human resources, training and
development, or a core program function.
[[Page 20839]]
Sec. 679.130 What are the functions of the State Board?
Under WIOA sec. 101(d), the State Board must assist the Governor in
the:
(a) Development, implementation, and modification of the 4-year
State Plan;
(b) Review of statewide policies, programs, and recommendations on
actions that should be taken by the State to align workforce
development programs to support a comprehensive and streamlined
workforce development system. Such review of policies, programs, and
recommendations must include a review and provision of comments on the
State plans, if any, for programs and activities of one-stop partners
that are not core programs.
(c) Development and continuous improvement of the workforce
development system, including--
(1) Identification of barriers and means for removing barriers to
better coordinate, align, and avoid duplication among programs and
activities;
(2) Development of strategies to support career pathways for the
purpose of providing individuals, including low-skilled adults, youth,
and individuals with barriers to employment, including individuals with
disabilities, with workforce investment activities, education, and
supportive services to enter or retain employment;
(3) Development of strategies to provide effective outreach to and
improved access for individuals and employers who could benefit from
workforce development system;
(4) Development and expansion of strategies to meet the needs of
employers, workers, and jobseekers particularly through industry or
sector partnerships related to in-demand industry sectors and
occupations;
(5) Identification of regions, including planning regions for the
purposes of WIOA sec. 106(a), and the designation of local areas under
WIOA sec. 106, after consultation with Local Boards and chief elected
officials;
(6) Development and continuous improvement of the one-stop delivery
system in local areas, including providing assistance to Local Boards,
one-stop operators, one-stop partners, and providers. Such assistance
includes assistance with planning and delivering services, including
training and supportive services, to support effective delivery of
services to workers, jobseekers, and employers; and
(7) Development of strategies to support staff training and
awareness across the workforce development system and its programs.
(d) Development and updating of comprehensive State performance and
accountability measures to assess core program effectiveness under WIOA
sec. 116(b).
(e) Identification and dissemination of information on best
practices, including best practices for--
(1) The effective operation of one-stop centers, relating to the
use of business outreach, partnerships, and service delivery
strategies, including strategies for serving individuals with barriers
to employment;
(2) The development of effective Local Boards, which may include
information on factors that contribute to enabling Local Boards to
exceed negotiated local levels of performance, sustain fiscal
integrity, and achieve other measures of effectiveness; and
(3) Effective training programs that respond to real-time labor
market analysis, that effectively use direct assessment and prior
learning assessment to measure an individual's prior knowledge, skills,
competencies, and experiences for adaptability, to support efficient
placement into employment or career pathways.
(f) Development and review of statewide policies affecting the
coordinated provision of services through the State's one-stop delivery
system described in WIOA sec. 121(e), including the development of--
(1) Objective criteria and procedures for use by Local Boards in
assessing the effectiveness, physical and programmatic accessibility
and continuous improvement of one-stop centers. Where a Local Board
serves as the one-stop operator, the State Board must use such criteria
to assess and certify the one-stop center;
(2) Guidance for the allocation of one-stop center infrastructure
funds under 121(h); and
(3) Policies relating to the appropriate roles and contributions of
entities carrying out one-stop partner programs within the one-stop
delivery system, including approaches to facilitating equitable and
efficient cost allocation in the system.
(g) Development of strategies for technological improvements to
facilitate access to, and improve the quality of services and
activities provided through the one-stop delivery system, including
such improvements to--
(1) Enhance digital literacy skills (as defined in sec. 202 of the
Museum and Library Service Act, 20 U.S.C. 9101);
(2) Accelerate acquisition of skills and recognized post-secondary
credentials by participants;
(3) Strengthen professional development of providers and workforce
professionals; and
(4) Ensure technology is accessible to individuals with
disabilities and individuals residing in remote areas;
(h) Development of strategies for aligning technology and data
systems across one-stop partner programs to enhance service delivery
and improve efficiencies in reporting on performance accountability
measures, including design implementation of common intake, data
collection, case management information, and performance accountability
measurement and reporting processes and the incorporation of local
input into such design and implementation to improve coordination of
services across one-stop partner programs;
(i) Development of allocation formulas for the distribution of
funds for employment and training activities for adults and youth
workforce investment activities, to local areas as permitted under WIOA
secs. 128(b)(3) and 133(b)(3);
(j) Preparation of the annual reports described in paragraphs (1)
and (2) of WIOA sec. 116(d);
(k) Development of the statewide workforce and labor market
information system described in sec. 15(e) of the Wagner-Peyser Act;
and
(l) Development of other policies as may promote statewide
objectives for and enhance the performance of the workforce development
system in the State.
Sec. 679.140 How does the State Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of the
Workforce Innovation and Opportunity Act?
(a) The State Board must conduct business in an open manner as
required by WIOA sec. 101(g).
(b) The State Board must make available to the public, on a regular
basis through electronic means and open meetings, information about the
activities and functions of the State Board, including:
(1) The State Plan, or modification to the State Plan, prior to
submission of the Plan or modification of the Plan;
(2) Information regarding membership;
(3) Minutes of formal meetings of the State Board upon request;
(4) State Board by-laws as described at Sec. 679.110(d).
Sec. 679.150 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Development Board?
(a) The State may use any State entity that meets the requirements
of WIOA sec. 101(e) to perform the functions of the State Board. This
may include:
[[Page 20840]]
(1) A State council;
(2) A State Workforce Development Board within the meaning of the
Workforce Investment Act of 1998, as in effect on the day before the
date of enactment of WIOA; or
(3) A combination of regional Workforce Development Boards or
similar entity.
(b) If the State uses an alternative entity, the State Plan must
demonstrate that the alternative entity meets all three of the
requirements of WIOA sec. 101(e)(1):
(1) Was in existence on the day before the date of enactment of the
Workforce Investment Act of 1998;
(2) Is substantially similar to the State Board described in WIOA
secs. 101(a)-(c) and Sec. 679.110; and
(3) Includes representatives of business and labor organizations in
the State.
(c) If the alternative entity does not provide representatives for
each of the categories required under WIOA sec. 101(b), the State Plan
must explain the manner in which the State will ensure an ongoing role
for any unrepresented membership group in the workforce development
system. The State Board must maintain an ongoing and meaningful role
for an unrepresented membership group, including entities carrying out
the core programs, by such methods as:
(1) Regularly scheduled consultations with entities within the
unrepresented membership groups;
(2) Providing an opportunity for input into the State Plan or other
policy development by unrepresented membership groups, and
(3) Establishing an advisory committee of unrepresented membership
groups.
(d) If the membership structure of the alternative entity had a
significant change after August 7, 1998, the entity will no longer be
eligible to perform the functions of the State Board. In such case, the
Governor must establish a new State Board which meets all of the
criteria of WIOA sec. 101(b).
(e) A significant change in the membership structure includes a
significant change in the organization of the alternative entity or in
the categories of entities represented on the alternative entity which
requires a change to the alternative entity's charter or a similar
document that defines the formal organization of the alternative
entity, regardless of whether the required change to the document has
or has not been made.
(1) A significant change in the membership structure occurs when
the alternative entity adds members to represent groups not previously
represented on the entity.
(2) A significant change in the membership structure does not occur
when the alternative entity adds members to an existing membership
category, when it adds non-voting members, or when it adds members to
fill a vacancy created in an existing membership category.
(f) In 20 CFR parts 675 through 687, all references to the State
Board also apply to an alternative entity used by a State.
Sec. 679.160 Under what circumstances may the State Board hire staff?
(a) The State Board may hire a director and other staff to assist
in carrying out the functions described in WIOA sec. 101(d) and Sec.
679.130 using funds described in WIOA sec. 129(b)(3) or sec.
134(a)(3)(B)(i).
(b) The State Board must establish and apply a set of objective
qualifications for the position of director that ensures the individual
selected has the requisite knowledge, skills, and abilities to meet
identified benchmarks and to assist in effectively carrying out the
functions of the State Board.
(c) The director and staff must be subject to the limitations on
the payment of salary and bonuses described in WIOA sec. 194(15).
Subpart B--Workforce Innovation and Opportunity Act Local
Governance (Workforce Development Areas)
Sec. 679.200 What is the purpose of requiring States to identify
regions?
The purpose of identifying regions is to align workforce
development activities and resources with larger regional economic
development areas and available resources to provide coordinated and
efficient services to both job seekers and employers.
Sec. 679.210 What are the requirements for identifying a region?
(a) The Governor must assign local areas to a region prior to
submission of the State Unified or Combined Plan, in order for the
State to receive WIOA title I-B adult, dislocated worker, and youth
allotments.
(b) The Governor must develop a policy and process for identifying
regions. Such policy must include:
(1) Consultation with the Local Boards and chief local elected
officials in the local area(s) as required in WIOA sec.
102(b)(2)(D)(i)(II) and WIOA sec. 106(a)(1); and
(2) Consideration of the extent to which the local areas in a
proposed region:
(i) Share a single labor market;
(ii) Share a common economic development area; and
(iii) Possess the Federal and non-Federal resources, including
appropriate education and training institutions, to administer
activities under WIOA subtitle B.
(c) In addition to the required criteria described in paragraph
(b)(2) of this section, other factors the Governor may also consider
include:
(1) Population centers
(2) Commuting patterns
(3) Land ownership
(4) Industrial composition
(5) Location quotients
(6) Labor force conditions
(7) Geographic boundaries
(8) Additional factors as determined by the Secretary
(d) Regions must consist of:
(1) One local area;
(2) Two or more contiguous local areas in a single State; or
(3) Two or more contiguous local areas in two or more States.
(e) Planning regions are those regions described in paragraph
(d)(2) or (3) of this section. Planning regions are subject to the
regional planning requirements in Sec. 679.510.
Sec. 679.220 What is the purpose of the local workforce development
area?
(a) The purpose of a local area is to serve as a jurisdiction for
the administration of workforce development activities and execution of
adult, dislocated worker, and youth funds allocated by the State. Such
areas may be aligned with a region identified in WIOA sec. 106(a)(1) or
may be components of a planning region, each with its own Local
Workforce Development Board. Also, significantly, local workforce
development areas are the areas within which Local Workforce
Development Boards oversee their functions, including strategic
planning, operational alignment and service delivery design, and a
jurisdiction where partners align resources at a sub-State level to
design and implement overall service delivery strategies.
(b) The Governor must designate local workforce development areas
(local areas) in order for the State to receive adult, dislocated
worker, and youth funding under title I, subtitle B of WIOA.
Sec. 679.230 What are the general procedural requirements for
designation of local workforce development areas?
As part of the process of designating or redesignating a local
workforce development area, the Governor must develop a policy for
designation of local workforce development areas that must include:
[[Page 20841]]
(a) Consultation with the State Board;
(b) Consultation with the chief elected officials and affected
Local Boards; and
(c) Consideration of comments received through a public comment
process which must:
(1) Offer adequate time for public comment prior to designation of
the local workforce development area; and
(2) Provide an opportunity for comment by representatives of Local
Boards, chief elected officials, businesses, institutions of higher
education, labor organizations, other primary stakeholders, and the
general public regarding the designation of the local area.
Sec. 679.240 What are the substantive requirements for designation of
local workforce development areas that were not designated as local
areas under the Workforce Investment Act of 1998?
(a) Except as provided in Sec. 679.250, the Governor may designate
or redesignate a local workforce development area in accordance with
policies and procedures developed by the Governor, which must include
at a minimum consideration of the extent to which the proposed area:
(1) Is consistent with local labor market areas;
(2) Has a common economic development area; and
(3) Has the Federal and non-Federal resources, including
appropriate education and training institutions, to administer
activities under WIOA subtitle B.
(b) The Governor may approve a request at any time for designation
as a workforce development area from any unit of general local
government, including a combination of such units, if the State Board
determines that the area meets the requirements of paragraph (a)(1) of
this section and recommends designation.
(c) Regardless of whether a local area has been designated under
this section or Sec. 679.250, the Governor may redesignate a local
area if the redesignation has been requested by a local area and the
Governor approves the request.
Sec. 679.250 What are the requirements for initial and subsequent
designation of workforce development areas that had been designated as
local areas under the Workforce Investment Act of 1998?
(a) If the chief elected official and Local Board in a local area
submits a request for initial designation, the Governor must approve
the request if, for the 2 program years preceding the date of enactment
of WIOA, the following criteria are met:
(1) The local area was designated as a local area for purposes of
WIA;
(2) The local area performed successfully; and
(3) The local area sustained fiscal integrity.
(b) If a local area is approved for initial designation, the period
of initial designation applies to program years 2015 and 2016.
(c) After the period of initial designation, if the chief elected
official and Local Board in a local area submits a request for
subsequent designation, the Governor must approve the request if the
following criteria are met for the 2 program years of initial
designation:
(1) The local area performed successfully;
(2) The local area sustained fiscal integrity; and
(3) In the case of a local area in a planning region, the local
area met the regional planning requirements described in WIOA
sec.106(c) paragraph (1).
(d) The Governor:
(1) May review a local area designated under paragraph (c) of this
section at any time to evaluate whether that the area continues to meet
the requirements for subsequent designation under that paragraph; and
(2) Must review a local area designated under paragraph (c) of this
section before submitting its State Plan during each 4-year State
planning cycle to evaluate whether the area continues to meet the
requirements for subsequent designation under that paragraph.
(e) For purposes of subsequent designation under paragraphs (c) and
(d) of this section, the local area and chief elected official must be
considered to have requested continued designation unless the local
area and chief elected official notify the Governor that they no longer
seek designation.
(f) Local areas designated under Sec. 679.240 or States designated
as single-area States under Sec. 679.270 are not subject to the
requirements described in paragraph (c) of this section related to the
subsequent designation of a local area.
(g) Rural concentrated employment programs are not eligible to
apply for initial designation as a local area under paragraph (c) of
this section.
Sec. 679.260 What do the terms ``performed successfully'' and
``sustained fiscal integrity'' mean for purposes of designating local
areas?
(a) For the purpose of initial local area designation, the term
``performed successfully'' means that the local area met or exceeded
the levels of performance the Governor negotiated with Local Board and
chief elected official under WIA sec. 136(c) for the last 2 full
program years before the enactment of WIOA, and that the local area has
not failed any individual measure for the last 2 consecutive program
years before the enactment of WIOA.
(1) The terms ``met or exceeded'' and ``failure'' must be defined
by the Governor consistent with how those terms were defined at the
time the performance levels were negotiated.
(2) When designating local areas, the Governor may not
retroactively apply any higher WIOA threshold to performance negotiated
and achieved under WIA.
(b) For the purpose of determining subsequent local area
designation, the term ``performed successfully'' means that the local
area met or exceeded the levels of performance the Governor negotiated
with Local Board and chief elected official for core indicators of
performance described under WIA sec. 136(c) or WIOA sec. 116(b)(2)(A),
as appropriate, and in accordance with a State-established definition,
provided in the State Plan, of met or exceeded performance.
(c) For the purpose of determining initial and subsequent local
area designation under Sec. 679.250(a) and (c), the term ``sustained
fiscal integrity'' means that the Secretary has not made a formal
determination that either the grant recipient or the administrative
entity of the area misexpended funds due to willful disregard of the
requirements of the provision involved, gross negligence, or failure to
comply with accepted standards of administration for the 2-year period
preceding the determination.
Sec. 679.270 What are the special designation provisions for single-
area States?
(a) The Governor of any State that was a single-State local area
under the Workforce Investment Act as in effect on July 1, 2013 may
designate the State as a single-State local workforce development area
under WIOA.
(b) The Governor of a State local workforce development area under
paragraph (a) of this section who seeks to designate the State as a
single-State local workforce development area under WIOA must:
(1) Identify the State as a single State local area in the Unified
or Combined State Plan; and
(2) Include the local plan for approval as part of the Unified or
Combined State Plan.
(c) The State Board for a single-State local workforce development
area must act as the Local Board and carry out the
[[Page 20842]]
functions of the Local Board in accordance with WIOA sec. 107 and Sec.
679.370, except that the State is not required to meet and report on a
set of local performance accountability measures.
Sec. 679.280 How does the State fulfill the requirement to provide
assistance to local areas within a planning region that wish to
redesignate into a single local area?
(a) When the chief elected officials and Local Boards of each local
area within a planning region make a request to the Governor to
redesignate into a single local area, the State Workforce Development
Board must authorize statewide adult, dislocated worker (WIOA sec.
133(a)(1)), and youth program (WIOA sec. 128(a)) funds to facilitate
such redesignation.
(b) When statewide funds are not available, the State may provide
funds for redesignation in the next available program year.
(c) Redesignation activities that may be carried out by the local
areas include:
(1) Convening sessions and conferences;
(2) Renegotiation of contracts and agreements; and
(3) Other activities directly associated with the redesignation as
deemed appropriate by the State Board.
Sec. 679.290 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce development
area?
(a) A unit of local government (or combination of units) or a local
area which has requested but has been denied its request for
designation as a workforce development area under Sec. 679.250 may
appeal the decision to the State Board, in accordance with appeal
procedures established in the State Plan and 20 CFR 683.630(a).
(b) If a decision on the appeal is not rendered in a timely manner
or if the appeal to the State Board does not result in designation, the
entity may request review by the Secretary of Labor, under the
procedures set forth at 20 CFR 683.640.
Subpart C--Local Boards
Sec. 679.300 What is the vision and purpose of the Local Workforce
Development Board?
(a) The vision for the Local Workforce Development Board (Local
Board) is to serve as a strategic leader and convener of local
workforce development system stakeholders. The Local Board partners
with employers and the workforce development system to develop policies
and investments that support workforce system strategies that support
regional economies, the development of effective approaches including
local and regional sector partnerships and career pathways, and high
quality, customer centered service delivery and service delivery
approaches;
(b) The purpose of the Local Board is to--
(1) Provide strategic and operational oversight in collaboration
with the required and additional partners and workforce stakeholders to
help develop a comprehensive and high-quality workforce development
system in the local area and larger planning region;
(2) Assist in the achievement of the State's strategic and
operational vision and goals as outlined in the Unified State Plan or
Combined State Plan; and
(3) Maximize and continue to improve the quality of services,
customer satisfaction, effectiveness of the services provided.
Sec. 679.310 What is the Local Workforce Development Board?
(a) The Local Board is appointed by the chief elected official(s)
in each local area in accordance with State criteria established under
WIOA sec. 107(b), and is certified by the Governor every 2 years, in
accordance with WIOA sec. 107(c)(2).
(b) In partnership with the chief elected official(s), the Local
Board sets policy for the portion of the statewide workforce investment
system within the local area and consistent with State policies.
(c) The Local Board and the chief elected official(s) may enter
into an agreement that describes the respective roles and
responsibilities of the parties.
(d) The Local Board, in partnership with the chief elected
official(s), develops the local plan and performs the functions
described in WIOA sec. 107(d) and Sec. 679.370.
(e) If a local area includes more than one unit of general local
government in accordance with WIOA sec. 107(c)(1)(B), the chief elected
officials of such units may execute an agreement to describe their
responsibilities for carrying out the roles and responsibilities. If
the chief elected officials are unable to reach agreement after a
reasonable effort, the Governor may appoint the members of the Local
Board from individuals nominated or recommended as specified in WIOA
sec. 107(b).
(f) If the State Plan indicates that the State will be treated as a
local area under WIOA, the State Board must carry out the roles of the
Local Board in accordance with WIOA sec. 107, except that the State is
not required to meet and report on a set of local performance
accountability measures.
(g) The chief local elected official must establish by-laws,
consistent with State policy for Local Board membership, that at a
minimum address:
(1) The nomination process used by the chief local elected official
to elect the Local Board chair and members;
(2) The term limitations and how the term appointments will be
staggered to ensure only a portion of membership expire in a given
year;
(3) The process to notify the chief local elected official of a
board member vacancy to ensure a prompt nominee;
(4) The proxy and alternative designee process that will be used
when a board member is unable to attend a meeting and assigns a
designee as per the requirements at Sec. 679.110(d)(4);
(5) The use of technology, such as phone and Web-based meetings,
that will be used to promote board member participation; and
(6) The process to ensure board members actively participate in
convening the workforce development system's stakeholders, brokering
relationships with a diverse range of employers, and leveraging support
for workforce development activities.
(7) A description of any other conditions governing appointment or
membership on the State Board as deemed appropriate by the chief local
elected official.
Sec. 679.320 Who are the required members of the Local Workforce
Development Board?
(a) For each local area in the State, the members of Local Board
must be selected by the chief elected official consistent with criteria
established under WIOA sec. 107(b)(1) and criteria established by the
Governor, and must meet the requirements of WIOA sec. 107(b)(2).
(b) A majority of the members of the Local Board must be
representatives of business in the local area. At a minimum, two
members must represent small business as defined by the U.S. Small
Business Administration. Business representatives serving on Local
Boards may also serve on the State Board. Each business representative
must meet the following criteria:
(1) Be an owner, chief executive officer, chief operating officer,
or other individual with optimum policy-making or hiring authority; and
(2) provide employment opportunities in in-demand industry sectors
or occupations, as those terms are defined in WIOA sec. 3(23).
(c) At least 20 percent of the members of the Local Board must be
workforce representatives. These representatives:
[[Page 20843]]
(1) Must include two or more representatives of labor
organizations, where such organizations exist in the local area. Where
labor organizations do not exist, representatives must be selected from
other employee representatives;
(2) Must include one or more representatives of a joint labor-
management, or union affiliated, registered apprenticeship program
within the area who must be a training director or a member of a labor
organization. If no union affiliated registered apprenticeship programs
exist in the area, a representative of a registered apprenticeship
program with no union affiliation must be appointed, if one exists;
(3) May include one or more representatives of community-based
organizations that have demonstrated experience and expertise in
addressing the employment, training or education needs of individuals
with barriers to employment, including organizations that serve
veterans or provide or support competitive integrated employment for
individuals with disabilities; and
(4) May include one or more representatives of organizations that
have demonstrated experience and expertise in addressing the
employment, training, or education needs of eligible youth, including
representatives of organizations that serve out-of-school youth.
(d) The Local Board must also include:
(1) At least one eligible provider administering adult education
and literacy activities under WIOA title II;
(2) At least one representative from an institution of higher
education providing workforce investment activities, including
community colleges; and
(3) At least one representative from each of the following
governmental and economic and community development entities:
(i) Economic and community development entities;
(ii) The State employment service office under the Wagner-Peyser
Act (29 U.S.C. 49 et seq.) serving the local area; and
(iii) The programs carried out under title I of the Rehabilitation
Act of 1973, other than sec. 112 or part C of that title;
(e) The membership of Local Boards may include individuals or
representatives of other appropriate entities in the local area,
including:
(1) Entities administering education and training activities who
represent local educational agencies or community-based organizations
with demonstrated expertise in addressing the education or training
needs for individuals with barriers to employment;
(2) Governmental and economic and community development entities
who represent transportation, housing, and public assistance programs;
(3) Philanthropic organizations serving the local area; and
(4) Other appropriate individuals as determined by the chief
elected official.
(f) Members must be individuals with optimum policy-making
authority within the entities they represent.
(g) Chief elected officials must establish a formal nomination and
appointment process, consistent with the criteria established by the
Governor and State Board under sec. 107(b)(1) of WIOA for appointment
of members of the Local Boards, that ensures:
(1) Business representatives are appointed from among individuals
who are nominated by local business organizations and business trade
associations.
(2) Labor representatives are appointed from among individuals who
are nominated by local labor federations (or, for a local area in which
no employees are represented by such organizations, other
representatives of employees); and
(3) When there is more than one local area provider of adult
education and literacy activities under title II, or multiple
institutions of higher education providing workforce investment
activities as described in WIOA 107(b)(2)(C)(i) or (ii), nominations
are solicited from those particular entities. (WIOA sec. 107(b)(6))
(h) An individual may be appointed as a representative of more than
one entity if the individual meets all the criteria for representation,
including the criteria described in paragraphs (c) through (g) of this
section, for each entity.
(i) All required board members must have voting privilege. The
chief elected official may convey voting privileges to non-required
members.
Sec. 679.330 Who must chair a Local Board?
The Local Board must elect a chairperson from among the business
representatives on the board. (WIOA sec. 107(b)(3))
Sec. 679.340 What is meant by the terms ``optimum policy-making
authority'' and ``demonstrated experience and expertise''?
For purposes of selecting representatives to Local Workforce
Development Boards:
(a) A representative with ``optimum policy-making authority'' is an
individual who can reasonably be expected to speak affirmatively on
behalf of the entity he or she represents and to commit that entity to
a chosen course of action.
(b) A representative with ``demonstrated experience and expertise''
means an individual who:-
(1) Is a workplace learning advisor as defined in WIOA sec. 3(70);
(2) Contributes to the field of workforce development, human
resources, training and development, or a core program function; or
(3) The Local Board recognizes for valuable contributions in
education or workforce development related fields.
Sec. 679.350 What criteria will be used to establish the membership
of the Local Board?
The Local Board is appointed by the chief elected official(s) in
the local area in accordance with State criteria established under WIOA
sec. 107(b), and is certified by the Governor every 2 years, in
accordance with WIOA sec. 107(c)(2).
Sec. 679.360 What is a standing committee, and what is its
relationship to the Local Board?
(a) Standing committees may be established by the Local Board to
provide information and assist the Local Board in carrying out its
responsibilities under WIOA sec. 107. Standing committees must be
chaired by a member of the Local Board, may include other members of
the Local Board, and must include other individuals appointed by the
Local Board who are not members of the Local Board and who have
demonstrated experience and expertise in accordance with Sec.
679.340(b) and as determined by the Local Board. Standing committees
may include each of the following:
(1) A standing committee to provide information and assist with
operational and other issues relating to the one-stop delivery system,
which may include representatives of the one-stop partners.
(2) A standing committee to provide information and to assist with
planning, operational, and other issues relating to the provision of
services to youth, which must include community-based organizations
with a demonstrated record of success in serving eligible youth.
(3) A standing committee to provide information and to assist with
operational and other issues relating to the provision of services to
individuals with disabilities, including issues relating to compliance
with WIOA sec. 188, if applicable, and applicable provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101
[[Page 20844]]
et seq.) regarding providing programmatic and physical access to the
services, programs, and activities of the one-stop delivery system, as
well as appropriate training for staff on providing supports for or
accommodations to, and finding employment opportunities for,
individuals with disabilities.
(b) The Local Board may designate other standing committees in
addition to those specified in paragraph (a) of this section.
(c) Local Boards may designate an entity in existence as of the
date of the enactment of WIOA, such as an effective youth council, to
serve as a standing committee as long as the entity meets the
requirements of WIOA sec. 107(b)(4).
Sec. 679.370 What are the functions of the Local Board?
As provided in WIOA sec. 107(d), the Local Board must:
(a) Develop and submit a 4-year local plan for the local area, in
partnership with the chief elected official and consistent with WIOA
sec. 108;
(b) If the local area is part of a planning region that includes
other local areas, develop and submit a regional plan in collaboration
with other local areas. If the local area is part of a planning region,
the local plan must be submitted as a part of the regional plan;
(c) Conduct workforce research and regional labor market analysis
to include:
(1) analyses and regular updates of economic conditions, needed
knowledge and skills, workforce, and workforce development (including
education and training) activities to include an analysis of the
strengths and weaknesses (including the capacity to provide) of such
services to address the identified education and skill needs of the
workforce and the employment needs of employers;
(2) Assistance to the Governor in developing the statewide
workforce and labor market information system under the Wagner-Peyser
Act for the region;
(3) Other research, data collection, and analysis related to the
workforce needs of the regional economy as the board, after receiving
input from a wide array of stakeholders, determines to be necessary to
carry out its functions.
(d) Convene local workforce development system stakeholders to
assist in the development of the local plan under Sec. 679.550 and in
identifying non-Federal expertise and resources to leverage support for
workforce development activities. Such stakeholders may assist the
Local Board and standing committees in carrying out convening,
brokering, and leveraging functions at the direction of the Local
Board;
(e) Lead efforts to engage with a diverse range of employers and
other entities in the region in order to:
(1) Promote business representation (particularly representatives
with optimum policy-making or hiring authority from employers whose
employment opportunities reflect existing and emerging employment
opportunities in the region) on the Local Board;
(2) Develop effective linkages (including the use of
intermediaries) with employers in the region to support employer
utilization of the local workforce development system and to support
local workforce investment activities;
(3) Ensure that workforce investment activities meet the needs of
employers and support economic growth in the region by enhancing
communication, coordination, and collaboration among employers,
economic development entities, and service providers; and
(4) Develop and implement proven or promising strategies for
meeting the employment and skill needs of workers and employers (such
as the establishment of industry and sector partnerships), that provide
the skilled workforce needed by employers in the region, and that
expand employment and career advancement opportunities for workforce
development system participants in in-demand industry sectors or
occupations.
(f) With representatives of secondary and post-secondary education
programs, lead efforts to develop and implement career pathways within
the local area by aligning the employment, training, education, and
supportive services that are needed by adults and youth, particularly
individuals with barriers to employment.
(g) Lead efforts in the local area to identify and promote proven
and promising strategies and initiatives for meeting the needs of
employers, workers and jobseekers, and identify and disseminate
information on proven and promising practices carried out in other
local areas for meeting such needs.
(h) Develop strategies for using technology to maximize the
accessibility and effectiveness of the local workforce development
system for employers, and workers and jobseekers, by:
(1) Facilitating connections among the intake and case management
information systems of the one-stop partner programs to support a
comprehensive workforce development system in the local area;
(2) Facilitating access to services provided through the one-stop
delivery system involved, including access in remote areas;
(3) Identifying strategies for better meeting the needs of
individuals with barriers to employment, including strategies that
augment traditional service delivery, and increase access to services
and programs of the one-stop delivery system, such as improving digital
literacy skills; and
(4) Leveraging resources and capacity within the local workforce
development system, including resources and capacity for services for
individuals with barriers to employment.
(i) In partnership with the chief elected official for the local
area:
(1) Conduct oversight of youth workforce investment activities
authorized under WIOA sec. 129(c), adult and dislocated worker
employment and training activities under WIOA secs. 134 (c) and (d);
and entire one-stop delivery system in the local area; and
(2) Ensure the appropriate use and management of the funds provided
under WIOA subtitle B for the youth, adult, and dislocated worker
activities and one-stop delivery system in the local area; and
(3) Ensure the appropriate use management, and investment of funds
to maximize performance outcomes under WIOA sec. 116.
(j) Negotiate and reach agreement on local performance measures
with the chief elected official and the Governor.
(k) Negotiate with CLEO and required partners on the methods for
funding the infrastructure costs of one-stop centers in the local area
in accordance with Sec. 678.715 or must notify the Governor if they
fail to reach agreement at the local level and will use a State
infrastructure funding mechanism.
(l) Select the following providers in the local area, and where
appropriate terminate such providers in accordance with 2 CFR part 200:
(1) Providers of youth workforce investment activities through
competitive grants or contracts based on the recommendations of the
youth standing committee (if such a committee is established); however,
if the Local Board determines there is an insufficient number of
eligible providers in a local area, the Local Board may award contracts
on a sole-source basis as per the provisions at WIOA sec. 123(b);
(2) Providers of training services consistent with the criteria and
information requirements established by the Governor and WIOA sec. 122;
[[Page 20845]]
(3) Providers of career services through the award of contracts, if
the one-stop operator does not provide such services; and
(4) One-stop operators in accordance with Sec. Sec. 678.600
through 678.635.
(m) In accordance with WIOA sec. 107(d)(10)(E) work with the State
to ensure there are sufficient numbers and types of providers of career
services and training services serving the local area and providing the
services in a manner that maximizes consumer choice, as well as
providing opportunities that lead to competitive integrated employment
for individuals with disabilities.
(n) Coordinate activities with education and training providers in
the local area, including:
(1) Reviewing applications to provide adult education and literacy
activities under title II for the local area to determine whether such
applications are consistent with the local plan;
(2) making recommendations to the eligible agency to promote
alignment with such plan; and
(3) Replicating and implementing cooperative agreements to enhance
the provision of services to individuals with disabilities and other
individuals, such as cross training of staff, technical assistance, use
and sharing of information, cooperative efforts with employers, and
other efforts at cooperation, collaboration, and coordination.
(o) Develop a budget for the activities of the Local Board, with
approval of the chief elected official and consistent with the local
plan and the duties of the Local Board.
(p) Assess, on an annual basis, the physical and programmatic
accessibility of all one-stop centers in the local area, in accordance
with WIOA sec. 188, if applicable, and applicable provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
(q) Certification of one-stop centers in accordance with Sec.
678.800.
Sec. 679.380 How does the Local Board satisfy the consumer choice
requirements for career services and training services?
(a) In accordance with WIOA sec. 122 and in working with the State,
the Local Board satisfies the consumer choice requirement for training
services by:
(1) Determining the initial eligibility of entities providing a
program of training services, renewing the eligibility of providers,
and considering the possible termination of an eligible provider due to
the provider's submission of inaccurate eligibility and performance
information or the provider's substantial violation of WIOA;
(2) Working with the State to ensure there are sufficient numbers
and types of providers of training services, including eligible
providers with expertise in assisting individuals with disabilities and
eligible providers with expertise in assisting adults in need of adult
education and literacy activities described under WIOA sec.
107(d)(10)(E), serving the local area;
(3) Ensuring the dissemination and appropriate use of the State
list through the local one-stop system.
(4) Receiving performance and cost information from the State and
disseminating this information through the one-stop delivery systems
within the State; and
(5) Providing adequate access to services for individuals with
disabilities.
(b) Working with the State, the Local Board satisfies the consumer
choice requirement for career services by:
(1) Determining the career services that are best performed by the
one-stop operator consistent with Sec. Sec. 678.620 and 678.625 and
career services that require contracting with a career service
provider;
(2) Identifying a wide-array of potential career service providers
and awarding contracts where appropriate including to providers to
ensure:
(i) Sufficient access to services for individuals with
disabilities, including opportunities that lead to integrated,
competitive employment for people with disabilities;
(ii) Sufficient access for Adult Education and literacy activities.
Sec. 679.390 How does the Local Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of the
Workforce Innovation and Opportunity Act?
The Local Board must conduct its business in an open manner as
required by WIOA sec. 107(e), by making available to the public, on a
regular basis through electronic means and open meetings, information
about the activities of the Local Board. This includes:
(a) Information about the Local Plan, or modification to the Local
Plan, before submission of the plan;
(b) List and affiliation of Local Board members;
(c) Selection of one-stop operators;
(d) Award of grants or contracts to eligible providers of workforce
investment activities including providers of youth workforce investment
activities;
(e) Minutes of formal meetings of the Local Board; and
(f) Local Board by-laws, consistent with Sec. 679.310(g).
Sec. 679.400 Who are the staff to the Local Board and what is their
role?
(a) WIOA sec. 107(f) grants Local Boards authority to hire a
director and other staff to assist in carrying out the functions of the
Local Board.
(b) Local Boards must establish and apply a set of qualifications
for the position of director that ensures the individual selected has
the requisite knowledge, skills, and abilities to meet identified
benchmarks and to assist in carrying out the functions of the Local
Board.
(c) The Local Board director and staff must be subject to the
limitations on the payment of salary and bonuses described in WIOA sec.
194(15).
(d) In general, Local Board staff may only assist the Local Board
fulfill the required functions at WIOA sec. 107(d).
(e) Should the board select an entity to staff the board that
provides additional workforce functions beyond the functions described
at WIOA sec. 107(d), such an entity is required to enter into a written
agreement with the Local Board and chief elected official(s) to clarify
their roles and responsibilities as required by Sec. 679.430.
Sec. 679.410 Under what conditions may a Local Board directly be a
provider of career services, or training services, or act as a one-stop
operator?
(a)(1) A Local Board may be selected as a one-stop operator:
(i) Through sole source procurement in accordance with Sec.
678.610; or
(ii) Through successful competition in accordance with Sec.
678.615.
(2) The chief elected official in the local area and the Governor
must agree to the selection described in paragraph (a)(1) of this
section.
(3) Where a Local Board acts as a one-stop operator, the State must
ensure certification of one-stop centers in accordance with Sec.
662.600.
(b) A Local Board may act as a provider career services only with
the agreement of the chief elected official in the local area and the
Governor.
(c) A Local Board is prohibited from providing training services,
unless the Governor grants a waiver in accordance with the provisions
in WIOA sec. 107(g)(1).
(1) The State must develop a procedure for approving waivers that
includes the criteria at WIOA sec. 107(g)(1)(B)(i):
(i) Satisfactory evidence that there is an insufficient number of
eligible providers of such a program of training services to meet local
demand in the local area;
(ii) Information demonstrating that the board meets the
requirements for an
[[Page 20846]]
eligible provider of training services under WIOA sec. 122; and
(iii) Information demonstrating that the program of training
services prepares participants for an in-demand industry sector or
occupation in the local area.
(2) The local area must make the proposed request for a waiver
available to eligible providers of training services and other
interested members of the public for a public comment period of not
less than 30 days and includes any comments received during this time
in the final request for the waiver.
(3) The waiver must not exceed the duration of the local plan and
may be renewed by submitting a new waiver request consistent with
paragraphs (c)(1) and (2) of this section for additional periods, not
to exceed the durations of such subsequent plans.
(4) The Governor may revoke the waiver if the Governor determines
the waiver is no longer needed or that the Local Board involved has
engaged in a pattern of inappropriate referrals to training services
operated by the Local Board.
(d) The restrictions on the provision of career and training
services by the Local Board, and on as one-stop operator, also apply to
staff of the Local Board.
Sec. 679.420 What are the functions of the local fiscal agent?
(a) In order to assist in administration of the grant funds, the
chief elected official or the Governor, where the Governor serves as
the local grant recipient for a local area, may designate an entity to
serve as a local fiscal agent. Designation of a fiscal agent does not
relieve the chief elected official or Governor of liability for the
misuse of grant funds. If the CEO designates a fiscal agent, the CEO
must ensure this agent has clearly defined roles and responsibilities.
(b) In general the fiscal agent is responsible for the following
functions:
(1) Receive funds.
(2) Ensure sustained fiscal integrity and accountability for
expenditures of funds in accordance with Office of Management and
Budget circulars, WIOA and the corresponding Federal Regulations and
State policies.
(3) Respond to audit financial findings.
(4) Maintain proper accounting records and adequate documentation.
(5) Prepare financial reports.
(6) Provide technical assistance to subrecipients regarding fiscal
issues.
(c) At the direction of the Local Board or the State Board in
single State areas, the fiscal agent may have the following additional
functions:
(1) Procure contracts or obtain written agreements.
(2) Conduct financial monitoring of service providers.
(3) Ensure independent audit of all employment and training
programs.
Sec. 679.430 How do entities performing multiple functions in a local
area demonstrate internal controls and prevent conflict of interest?
Local organizations often function simultaneously in a variety of
roles, including local fiscal agent, Local Board staff, one-stop
operator, and direct provider of career services or training services.
Any organization that has been selected or otherwise designated to
perform more than one of these functions must develop a written
agreement with the Local Board and chief local elected official to
clarify how the organization will carry out its responsibilities while
demonstrating compliance with the Workforce Innovation and Opportunity
Act and corresponding regulations, relevant Office of Management and
Budget circulars, and the State's conflict of interest policy.
Subpart D--Regional and Local Plan
Sec. 679.500 What is the purpose of the regional and local plan?
(a) The local plan serves as 4-year action plan to develop, align,
and integrate service delivery strategies and to support the State's
vision and strategic and operational goals. The local plan sets forth
the strategy to:
(1) Direct investments in economic, education, and workforce
training programs to focus on providing relevant education and training
to ensure that individuals, including youth and individuals with
barriers to employment, have the skills to compete in the job market
and that employers have a ready supply of skilled workers;
(2) Apply job-driven strategies in the one-stop system;
(3) Enable economic, education, and workforce partners to build a
skilled workforce through innovation in, and alignment of, employment,
training, and education programs; and
(4) Incorporate the local plan into the regional plan per 20 CFR
679.540.
(b) In the case of planning regions, a regional plan is required to
meet the purposes described in paragraph (a) of this section and to
coordinate resources among multiple boards in a region.
Sec. 679.510 What are the requirements for regional planning?
(a) Local Boards and chief elected officials within an identified
planning region (as defined in WIOA secs. 106(a)(2)(B)-(C) and Sec.
679.200 of this part) must:
(1) Participate in a regional planning process that results in:
(i) The preparation of a regional plan, as described in paragraph
(a)(2) of this section and consistent with any guidance issued by the
Department;
(ii) The establishment of regional service strategies, including
use of cooperative service delivery agreements;
(iii) The development and implementation of sector initiatives for
in-demand industry sectors or occupations for the planning region;
(iv) The collection and analysis of regional labor market data (in
conjunction with the State) which must include the local planning
requirements at Sec. 679.560(a)(1)(i) and (ii);
(v) The coordination of administrative cost arrangements, including
the pooling of funds for administrative costs, as appropriate;
(vi) The coordination of transportation and other supportive
services as appropriate;
(vii) The coordination of services with regional economic
development services and providers; and
(viii) The establishment of an agreement concerning how the
planning region will collectively negotiate and reach agreement with
the Governor on local levels of performance for, and report on, the
performance accountability measures described in WIOA sec. 116(c) for
local areas or the planning region.
(2) Prepare, submit, and obtain approval of a single regional plan
that:
(i) Includes a description of the activities described in paragraph
(a)(1) of this section; and
(ii) Incorporates local plans for each of the local areas in the
planning region, consistent with Sec. 679.540(a).
(b) Consistent with Sec. 679.550(b), the Local Boards representing
each local area in the planning region must provide an opportunity for
public comment on the development of the regional plan or subsequent
plan modifications before submitting the plan to the Governor. To
provide adequate opportunity for public comment, the Local Boards must:
(1) Make copies of the proposed regional plan available to the
public through electronic and other means, such as public hearings and
local news media;
(2) Include an opportunity for comment by members of the public,
including representatives of business, labor organizations, and
education;
(3) Provide no more than a 30-day period for comment on the plan
before its submission to the Governor,
[[Page 20847]]
beginning on the date on which the proposed plan is made available; and
(4) The Local Boards must submit any comments that express
disagreement with the plan to the Governor along with the plan.
(5) Consistent with WIOA sec. 107(e), the Local Board must make
information about the plan available to the public on a regular basis
through electronic means and open meetings.
(c) The State must provide technical assistance and labor market
data, as requested by local areas, to assist with regional planning and
subsequent service delivery efforts.
(d) As they relate to regional areas and regional plans, the terms
local area and local plan are defined in WIOA secs. 106(c)(3)(A)-(B).
Sec. 679.520 What are the requirements for approval of a regional
plan?
Consistent with Sec. 679.570, the Governor must review completed
plans (including a modification to the plan). Such plans will be
considered approved 90 days after submission unless the Governor
determines in writing that:
(a) There are deficiencies in workforce investment activities that
have been identified through audits and the local area has not made
acceptable progress in implementing plans to address deficiencies; or
(b) The plan does not comply with applicable provisions of WIOA and
the WIOA regulations, including the required consultations and public
comment provisions, and the nondiscrimination requirements of 29 CFR
part 37.
(c) The plan does not align with the State Plan, including with
regard to the alignment of the core programs to support the strategy
identified in the State Plan in accordance with WIOA sec. 102(b)(1)(E)
and 20 CFR 676.105.
Sec. 679.530 When must the regional plan be modified?
(a) Consistent with Sec. 679.580, the Governor must establish
procedures governing the modification of regional plans.
(b) At the end of the first 2-year period of the 4-year local plan,
the Local Boards within a planning region, in partnership with the
appropriate chief elected officials, must review the regional plan and
prepare and submit modifications to the regional plan to reflect
changes:
(1) In regional labor market and economic conditions; and
(2) Other factors affecting the implementation of the local plan,
including but not limited to changes in the financing available to
support WIOA title I and partner-provided WIOA services.
Sec. 679.540 How are local planning requirements reflected in a
regional plan?
(a) The regional plan must address the requirements at WIOA secs.
106(c)(1)(A)-(H), and incorporate the local planning requirements
identified for local plans at WIOA secs. 108(b)(1)-(22).
(b) The Governor may issue regional planning guidance that allows
Local Boards and chief elected officials in a planning region to
address any local plan requirements through the regional plan where
there is a shared regional responsibility.
Sec. 679.550 What are the requirements for the development of the
local plan?
(a) Under WIOA sec. 108, each Local Board must, in partnership with
the appropriate chief elected officials, develop and submit a
comprehensive 4-year plan to the Governor.
(1) The plan must identify and describe the policies, procedures,
and local activities that are carried out in the local area, consistent
with the State Plan.
(2) If the local area is part of a planning region, the Local Board
must comply with WIOA sec. 106(c) and Sec. Sec. 679.510 through
679.540 in the preparation and submission of a regional plan.
(b) Consistent with 679.510(b), the Local Board must provide an
opportunity for public comment on the development of the local plan or
subsequent plan modifications before submitting the plan to the
Governor. To provide adequate opportunity for public comment, the Local
Board must:
(1) Make copies of the proposed local plan available to the public
through electronic and other means, such as public hearings and local
news media;
(2) Include an opportunity for comment by members of the public,
including representatives of business, labor organizations, and
education;
(3) Provide no more than a 30-day period for comment on the plan
before its submission to the Governor, beginning on the date on which
the proposed plan is made available, prior to its submission to the
Governor; and
(4) The Local Board must submit any comments that express
disagreement with the plan to the Governor along with the plan.
(5) Consistent WIOA sec. 107(e), the Local Board must make
information about the plan available to the public on a regular basis
through electronic means and open meetings.
Sec. 679.560 What are the contents of the local plan?
(a) The local workforce investment plan must describe strategic
planning elements, including:
(1) A regional analysis of:
(i) Economic conditions including existing and emerging in-demand
industry sectors and occupations; and
(ii) Employment needs of employers in existing and emerging in-
demand industry sectors and occupations.
(iii) As appropriate, a local area may use an existing analysis,
which is a timely current description of the regional economy, to meet
the requirements of paragraphs (a)(1)(i) and (ii) of this section.
(2) Knowledge and skills needed to meet the employment needs of the
employers in the region, including employment needs in in-demand
industry sectors and occupations;
(3) An analysis of the regional workforce, including current labor
force employment and unemployment data, information on labor market
trends, and educational and skill levels of the workforce, including
individuals with barriers to employment;
(4) An analysis of workforce development activities, including
education and training, in the region. This analysis must include the
strengths and weaknesses of workforce development activities and
capacity to provide the workforce development activities to address the
education and skill needs of the workforce, including individuals with
barriers to employment, and the employment needs of employers;
(5) A description of the Local Board's strategic vision to support
regional economic growth and economic self-sufficiency. This must
include goals for preparing an educated and skilled workforce
(including youth and individuals with barriers to employment), and
goals relating to the performance accountability measures based on
performance indicators described in 20 CFR 677.155(a)(1); and
(6) Taking into account analyses described in paragraphs (a)(1)
through (4) of this section, a strategy to work with the entities that
carry out the core programs and required partners to align resources
available to the local area, to achieve the strategic vision and goals
described in paragraph (a)(5) of this section;
(b) The plan must include a description of the following
requirements at WIOA secs. 108(b)(2)-(21):
(1) The workforce development system in the local area that
identifies:
[[Page 20848]]
(i) The programs that are included in the system; and
(ii) How the Local Board will support the strategy identified in
the State Plan under 20 CFR 676.105 and work with the entities carrying
out core programs and other workforce development programs, including
programs of study authorized under the Carl D. Perkins Career and
Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) to support
service alignment.
(2) How the Local Board will work with entities carrying out core
programs to:
(i) Expand access to employment, training, education, and
supportive services for eligible individuals, particularly eligible
individuals with barriers to employment;
(ii) Facilitate the development of career pathways and co-
enrollment, as appropriate, in core programs; and
(iii) Improve access to activities leading to a recognized post-
secondary credential (including a credential that is an industry-
recognized certificate or certification, portable, and stackable);
(3) The strategies and services that will be used in the local
area:
(i) To facilitate engagement of employers in workforce development
programs, including small employers and employers in in-demand industry
sectors and occupations;
(ii) To support a local workforce development system that meets the
needs of businesses in the local area;
(iii) To better coordinate workforce development programs and
economic development;
(iv) To strengthen linkages between the one-stop delivery system
and unemployment insurance programs; and
(v) That may include the implementation of initiatives such as
incumbent worker training programs, on-the-job training programs,
customized training programs, industry and sector strategies, career
pathways initiatives, utilization of effective business intermediaries,
and other business services and strategies designed to meet the needs
of regional employers. These initiatives should support the strategy
described in this paragraph (b)(3).
(4) An examination of how the Local Board will coordinate local
workforce investment activities with regional economic development
activities that are carried out in the local area and how the Local
Board will promote entrepreneurial skills training and microenterprise
services;
(5) The one-stop delivery system in the local area, including:
(i) How the Local Board will ensure the continuous improvement of
eligible providers of services through the system and that such
providers will meet the employment needs of local employers, workers,
and jobseekers;
(ii) How the Local Board will facilitate access to services
provided through the one-stop delivery system, including in remote
areas, through the use of technology and other means;
(iii) How entities within the one-stop delivery system, including
one-stop operators and the one-stop partners, will comply with WIOA
sec. 188, if applicable, and applicable provisions of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) regarding the
physical and programmatic accessibility of facilities, programs and
services, technology, and materials for individuals with disabilities,
including providing staff training and support for addressing the needs
of individuals with disabilities; and
(iv) The roles and resource contributions of the one-stop partners;
(6) A description and assessment of the type and availability of
adult and dislocated worker employment and training activities in the
local area;
(7) A description of how the Local Board will coordinate workforce
investment activities carried out in the local area with statewide
rapid response activities;
(8) A description and assessment of the type and availability of
youth workforce investment activities in the local area including
activities for youth who are individuals with disabilities, which must
include an identification of successful models of such activities;
(9) How the Local Board will coordinate relevant secondary and
post-secondary education programs and activities with education and
workforce investment activities to coordinate strategies, enhance
services, and avoid duplication of services;
(10) How the Local Board will coordinate WIOA title I workforce
investment activities with the provision of transportation and other
appropriate supportive services in the local area;
(11) Plans, assurances, and strategies for maximizing coordination,
improving service delivery, and avoiding duplication of Wagner-Peyser
Act (29 U.S.C. 49 et seq.) services and other services provided through
the one-stop delivery system;
(12) How the Local Board will coordinate WIOA title I workforce
investment activities with adult education and literacy activities
under WIOA title II. This description must include how the Local Board
will carry out the review of local applications submitted under title
II consistent with WIOA secs. 107(d)(11)(A) and (B)(i) and WIOA sec.
232;
(13) Copies of executed cooperative agreements which define how all
local service providers, including additional providers, will carry out
the requirements for integration of and access to the entire set of
services available in the local one-stop system. This includes
cooperative agreements (as defined in WIOA sec. 107(d)(11)) between the
Local Board or other local entities described in WIOA sec.
101(a)(11)(B) of the Rehabilitation Act of 1973 (29 U.S.C.
721(a)(11)(B)) and the local office of a designated State agency or
designated State unit administering programs carried out under title I
of such Act (29 U.S.C. 720 et seq.) (other than sec. 112 or part C of
that title (29 U.S.C. 732, 741) and subject to sec. 121(f)) in
accordance with sec. 101(a)(11) of such Act (29 U.S.C. 721(a)(11)) with
respect to efforts that will enhance the provision of services to
individuals with disabilities and to other individuals, such as cross
training of staff, technical assistance, use and sharing of
information, cooperative efforts with employers, and other efforts at
cooperation, collaboration, and coordination;
(14) An identification of the entity responsible for the disbursal
of grant funds described in WIOA sec. 107(d)(12)(B)(i)(III), as
determined by the chief elected official or the Governor under WIOA
sec. 107(d)(12)(B)(i).
(15) The competitive process that will be used to award the
subgrants and contracts for WIOA title I activities;
(16) The local levels of performance negotiated with the Governor
and chief elected official consistent with WIOA sec. 116(c), to be used
to measure the performance of the local area and to be used by the
Local Board for measuring the performance of the local fiscal agent
(where appropriate), eligible providers under WIOA title I subtitle B,
and the one-stop delivery system in the local area;
(17) The actions the Local Board will take toward becoming or
remaining a high-performing board, consistent with the factors
developed by the State Board (WIOA sec. 101(d)(6));
(18) How training services outlined in WIOA sec. 134 will be
provided through the use of individual training accounts, including, if
contracts for training services will be used, how the use of such
contracts will be coordinated with the use of individual training
accounts under that chapter, and how the Local Board will ensure
informed customer choice in the selection of training programs
regardless of how the training services are to be provided;
[[Page 20849]]
(19) The process used by the Local Board, consistent with WIOA
108(d), to provide a 30-day public comment period prior to submission
of the plan, including an opportunity to have input into the
development of the local plan, particularly for representatives of
businesses, education, and labor organizations;
(20) How one-stop centers are implementing and transitioning to an
integrated, technology-enabled intake and case management information
system for programs carried out under WIOA and by one-stop partners;
and
(21) The direction given by the Governor and the Local Board to the
one-stop operator to ensure priority for adult career and training
services will be given to recipients of public assistance, other low-
income individuals, and individuals who are basic skills deficient
consistent with WIOA 134(c)(3)(E) and Sec. 680.600.
(c) The local plan must include any additional information required
by the Governor.
(d) The local plan should identify the portions that the Governor
has designated as appropriate for common response in the regional plan
where there is a shared regional responsibility, as permitted by Sec.
679.540(b).
(e) Comments submitted during the public comment period that
represent disagreement with the plan must be submitted with the local
plan.
Sec. 679.570 What are the requirements for approval of a local plan?
(a) Consistent with the requirements at Sec. 679.520 the Governor
must review completed plans (including a modification to the plan).
Such plans will be considered approved 90 days after submission unless
the Governor determines in writing that:
(1) There are deficiencies in workforce investment activities that
have been identified through audits and the local area has not made
acceptable progress in implementing plans to address deficiencies; or
(2) The plan does not comply with applicable provisions of WIOA and
the WIOA regulations, including the required consultations and public
comment provisions, and the nondiscrimination requirements of 29 CFR
part 37.
(3) The plan does not align with the State Plan, including with
regard to the alignment of the core programs to support the strategy
identified in the State Plan in accordance with WIOA sec. 102(b)(1)(E)
and 20 CFR 676.105.
(b) In cases where the State is a single local area:
(1) The State must incorporate the local plan into the State's
Unified or Combined State Plan and submit it to the Department of Labor
in accordance with the procedures described in 20 CFR 676.105.
(2) The Secretary of Labor performs the roles assigned to the
Governor as they relate to local planning activities.
(3) The Secretary of Labor will issue planning guidance for such
States.
Sec. 679.580 When must the local plan be modified?
(a) Consistent with the requirements at Sec. 679.530, the Governor
must establish procedures governing the modification of local plans.
(b) At the end of the first 2-year period of the 4-year local plan,
each Local Board, in partnership with the appropriate chief elected
officials, must review the local plan and prepare and submit
modifications to the local plan to reflect changes:
(1) In labor market and economic conditions; and
(2) Other factors affecting the implementation of the local plan,
including but not limited to:
(i) Significant changes in local economic conditions,
(ii) Changes in the financing available to support WIOA title I and
partner-provided WIOA services;
(iii) Changes to the Local Board structure; and
(iv) The need to revise strategies to meet local performance goals.
Subpart E--Waivers/WorkFlex (Workforce Flexibility Plan)
Sec. 679.600 What is the purpose of the General Statutory and
Regulatory Waiver Authority in the Workforce Innovation and Opportunity
Act?
(a) The purpose of the general statutory and regulatory waiver
authority provided at sec. 189(i)(3) of the WIOA is to provide
flexibility to States and local areas and enhance their ability to
improve the statewide workforce investment system to achieve the goals
and purposes of WIOA.
(b) A waiver may be requested to address impediments to the
implementation of a Unified or Combined State Plan, including the
continuous improvement strategy, consistent with the purposes of title
I of WIOA as identified in Sec. 675.100.
Sec. 679.610 What provisions of the Workforce Innovation and
Opportunity Act and the Wagner-Peyser Act may be waived, and what
provisions may not be waived?
(a) The Secretary may waive for a State, or local area in a State,
any of the statutory or regulatory requirements of subtitles A, B and E
of title I of WIOA, except for requirements relating to:
(1) Wage and labor standards;
(2) Non-displacement protections;
(3) Worker rights;
(4) Participation and protection of workers and participants;
(5) Grievance procedures and judicial review;
(6) Nondiscrimination;
(7) Allocation of funds to local areas;
(8) Eligibility of providers or participants;
(9) The establishment and functions of local areas and Local
Boards;
(10) Procedures for review and approval of State and Local plans;
(11) The funding of infrastructure costs for one-stop centers; and
(12) Other requirements relating to the basic purposes of title I
of WIOA described in Sec. 675.100 of this chapter.
(b) The Secretary may waive for a State, or local area in a State,
any of the statutory or regulatory requirements of secs. 8 through 10
of the Wagner-Peyser Act (29 U.S.C. 49g-49i) except for requirements
relating to:
(1) The provision of services to unemployment insurance claimants
and veterans; and
(2) Universal access to the basic labor exchange services without
cost to job seekers.
Sec. 679.620 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under the Workforce Innovation and Opportunity Act?
(a) The Secretary will issue guidelines under which the States may
request general waivers of WIOA and Wagner-Peyser requirements.
(b) A Governor may request a general waiver in consultation with
appropriate chief elected officials:
(1) By submitting a waiver plan which may accompany the State's
WIOA 4-year Unified or Combined State Plan or 2-year modification; or
(2) After a State's WIOA Plan is approved, by separately submitting
a waiver plan.
(c) A Governor's waiver request may seek waivers for the entire
State or for one or more local areas within the State.
(d) A Governor requesting a general waiver must submit to the
Secretary a plan to improve the statewide workforce investment system
that:
(1) Identifies the statutory or regulatory requirements for which a
waiver is requested and the goals that the State or local area, as
appropriate, intends to achieve as a result of the waiver and how those
goals relate to the Unified or Combined State Plan;
(2) Describes the actions that the State or local area, as
appropriate, has
[[Page 20850]]
undertaken to remove State or local statutory or regulatory barriers;
(3) Describes the goals of the waiver and the expected programmatic
outcomes if the request is granted;
(4) Describes how the waiver will align with the Department's
policy priorities, such as:
(i) Supporting employer engagement;
(ii) Connecting education and training strategies;
(iii) Supporting work-based learning;
(iv) Improving job and career results, and
(v) Other priorities as articulated in forthcoming guidance.
(5) Describes the individuals affected by the waiver, including how
the waiver will impact services for disadvantaged populations or
individuals with multiple barriers to employment; and
(6) Describes the processes used to:
(i) Monitor the progress in implementing the waiver;
(ii) Provide notice to any Local Board affected by the waiver;
(iii) Provide any Local Board affected by the waiver an opportunity
to comment on the request;
(iv) Ensure meaningful public comment, including comment by
business and organized labor, on the waiver; and
(v) Collect and report information about waiver outcomes in the
State's WIOA Annual Report.
(7) The Secretary may require that States provide the most recent
data available about the outcomes of the existing waiver in cases where
the State seeks renewal of a previously approved waiver.
(e) The Secretary will issue a decision on a waiver request within
90 days after the receipt of the original waiver request.
(f) The Secretary will approve a waiver request if and only to the
extent that:
(1) The Secretary determines that the requirements for which a
waiver is requested impede the ability of either the State or local
area to implement the State's Plan to improve the statewide workforce
investment system;
(2) The Secretary determines that the waiver plan meets all of the
requirements of WIOA sec. 189(i)(3) and Sec. Sec. 679.600 through
679.620; and
(3) The State has executed a memorandum of understanding (MOU) with
the Secretary requiring the State to meet, or ensure that the local
area meets, agreed-upon outcomes and to implement other appropriate
measures to ensure accountability.
(g) A waiver may be approved for as long as the Secretary
determines appropriate, but for not longer than the duration of the
State's existing Unified or Combined State Plan.
(h) The Secretary may revoke a waiver granted under this section if
the Secretary determines that the State has failed to meet the agreed
upon outcomes, measures, failed to comply with the terms and conditions
in the MOU described in paragraph (f) of this section or any other
document establishing the terms and conditions of the waiver, or if the
waiver no longer meets the requirements of Sec. Sec. 679.600 through
679.620.
Sec. 679.630 Under what conditions may the Governor submit a
Workforce Flexibility Plan?
(a) A State may submit to the Secretary, and the Secretary may
approve, a workforce flexibility (workflex) plan under which the State
is authorized to waive, in accordance with the plan:
(1) Any of the statutory or regulatory requirements under title I
of WIOA applicable to local areas, if the local area requests the
waiver in a waiver application, except for:
(i) Requirements relating to the basic purposes of title I of WIOA
described in Sec. 675.100 of this chapter;
(ii) Wage and labor standards;
(iii) Grievance procedures and judicial review;
(iv) Nondiscrimination;
(v) Eligibility of participants;
(vi) Allocation of funds to local areas;
(vii) Establishment and functions of local areas and Local Boards;
(viii) Procedures for review and approval of local plans; and
(ix) Worker rights, participation, and protection.
(2) Any of the statutory or regulatory requirements applicable to
the State under secs. 8 through 10 of the Wagner-Peyser Act (29 U.S.C.
49g-49i), except for requirements relating to:
(i) The provision of services to unemployment insurance claimants
and veterans; and
(ii) Universal access to basic labor exchange services without cost
to job seekers.
(3) Any of the statutory or regulatory requirements applicable
under the Older Americans Act of 1965 (OAA) (42 U.S.C. 3001 et seq.),
to State agencies on aging with respect to activities carried out using
funds allotted under OAA sec. 506(b) (42 U.S.C. 3056d(b)), except for
requirements relating to:
(i) The basic purposes of OAA;
(ii) Wage and labor standards;
(iii) Eligibility of participants in the activities; and
(iv) Standards for grant agreements.
(b) A workforce flexibility plan submitted under paragraph (a) of
this section must include descriptions of:
(1) The process by which local areas in the State may submit and
obtain State approval of applications for waivers of requirements under
title I of WIOA;
(2) A description of the criteria the State will use to approve
local area waiver requests and how such requests support implementation
of the goals identified State Plan;
(3) The statutory and regulatory requirements of title I of WIOA
that are likely to be waived by the State under the workforce
flexibility plan;
(4) The statutory and regulatory requirements of secs. 8 through 10
of the Wagner-Peyser Act that are proposed for waiver, if any;
(5) The statutory and regulatory requirements of the Older
Americans Act of 1965 that are proposed for waiver, if any;
(6) The outcomes to be achieved by the waivers described in
paragraphs (b)(1) to (b)(5) of this section including, where
appropriate, revisions to adjusted levels of performance included in
the State or local plan under title I of WIOA, and a description of the
data or other information the State will use to track and assess
outcomes; and
(7) The measures to be taken to ensure appropriate accountability
for Federal funds in connection with the waivers.
(c) A State's workforce flexibility plan may accompany the State's
Unified or Combined State Plan, 2-year modification, or may be
submitted separately as a modification to that plan.
(d) The Secretary may approve a workforce flexibility plan
consistent with the period of approval of the State's Unified or
Combined State Plan, and not for more than 5 years.
(e) Before submitting a workforce flexibility plan to the Secretary
for approval, the State must provide adequate notice and a reasonable
opportunity for comment on the proposed waiver requests under the
workforce flexibility plan to all interested parties and to the general
public.
(f) The Secretary will issue guidelines under which States may
request designation as a work-flex State. These guidelines may require
a State to implement an evaluation of the impact of work-flex in the
State.
Sec. 679.640 What limitations apply to the State's Workforce
Flexibility Plan authority under the Workforce Innovation and
Opportunity Act?
(a)(1) Under work-flex waiver authority a State must not waive the
WIOA, Wagner-Peyser or Older
[[Page 20851]]
Americans Act requirements which are excepted from the work-flex waiver
authority and described in Sec. 679.630(a).
(2) Requests to waive statutory and regulatory requirements of
title I of WIOA applicable at the State level may not be granted under
work-flex waiver authority granted to a State. Such requests may only
be granted by the Secretary under the general waiver authority
described at Sec. Sec. 679.610 through 679.620.
(b) As required in Sec. 679.630(b)(6), States must address the
outcomes to result from work-flex waivers as part of its workforce
flexibility plan. The Secretary may terminate a State's work-flex
designation if the State fails to meet agreed-upon outcomes or other
terms and conditions contained in its workforce flexibility plan.
0
7. Add part 680 to read as follows:
PART 680--ADULT AND DISLOCATED WORKER ACTIVITIES UNDER TITLE I OF
THE WORKFORCE INNOVATION AND OPPORTUNITY ACT
Subpart A--Delivery of Adult and Dislocated Worker Activities Under
Title I of the Workforce Innovation and Opportunity Act
Sec.
680.100 What is the role of the adult and dislocated worker programs
in the one-stop delivery system?
680.110 When must adults and dislocated workers be registered and
considered a participant?
680.120 What are the eligibility criteria for career services for
adults in the adult and dislocated worker programs?
680.130 What are the eligibility criteria for career services for
dislocated workers in the adult and dislocated worker programs?
680.140 What Workforce Innovation and Opportunity Act title I adult
and dislocated worker services are Local Boards required and
permitted to provide?
680.150 What career services must be provided to adults and
dislocated workers?
680.160 How are career services delivered?
680.170 What is an internship or work experience for adults and
dislocated workers?
680.180 What is the individual employment plan?
Subpart B--Training Services
680.200 What are training services for adults and dislocated
workers?
680.210 Who may receive training services?
680.220 Are there particular career services an individual must
receive before receiving training services under Workforce
Innovation and Opportunity Act?
680.230 What are the requirements for coordination of Workforce
Innovation and Opportunity Act training funds and other grant
assistance?
Subpart C--Individual Training Accounts
680.300 How are training services provided?
680.310 Can the duration and amount of Individual Training Accounts
be limited?
680.320 Under what circumstances may mechanisms other than
Individual Training Accounts be used to provide training services?
680.330 How can Individual Training Accounts, supportive services,
and needs-related payments be used to support placing participating
adults and dislocated workers into a registered apprenticeship
program and support participants once they are in a registered
apprenticeship program?
680.340 What are the requirements for consumer choice?
Subpart D--Eligible Training Providers
680.400 What is the purpose of this subpart?
680.410 What entities are eligible providers of training services?
680.420 What is a ``program of training services''?
680.430 Who is responsible for managing the eligible provider
process?
680.440 What are the transition procedures for Workforce Investment
Act-eligible providers to become eligible under the Workforce
Innovation and Opportunity Act?
680.450 What is the initial eligibility procedure for new providers?
680.460 What is the application procedure for continued eligibility?
680.470 What is the procedure for registered apprenticeship programs
that seek to be included in a State's eligible training provider
list?
680.480 May an eligible training provider lose its eligibility?
680.490 What kind of performance and cost information must eligible
training providers provide for each program of training?
680.500 How is the State list of eligible training providers
disseminated?
680.510 In what ways can a Local Board supplement the information
available from the State list?
680.520 May individuals choose training providers located outside of
the local area?
680.530 What requirements apply to providers of on-the-job-training,
customized training, incumbent worker training, and other training
exceptions?
Subpart E--Priority and Special Populations
680.600 What priority must be given to low-income adults and public
assistance recipients and individuals who are basic skills deficient
served with adult funds under title I?
680.610 Does the statutory priority for use of adult funds also
apply to dislocated worker funds?
680.620 How does the Temporary Assistance for Needy Families program
relate to the one-stop delivery system?
680.630 How does a displaced homemaker qualify for services under
title I?
680.640 May an individual with a disability whose family does not
meet income eligibility criteria under the Act be eligible for
priority as a low-income adult?
680.650 Do veterans receive priority of service under the Workforce
Innovation and Opportunity Act?
680.660 Are separating military service members eligible for
dislocated worker activities under the Workforce Innovation and
Opportunity Act?
Subpart F--Work-Based Training
680.700 What are the requirements for on-the-job training?
680.710 What are the requirements for on-the-job training contracts
for employed workers?
680.720 What conditions govern on-the-job training payments to
employers?
680.730 Under what conditions may a Governor or Local Board raise
the on-the-job training reimbursement rate up to 75 percent of the
wage rate?
680.740 How can on-the-job training funds be used to support placing
participants into a registered apprenticeship program?
680.750 Can Individual Training Account and on-the-job training
funds be combined to support placing participants into a registered
apprenticeship program?
680.760 What is customized training?
680.770 What are the requirements for customized training for
employed workers?
680.780 Who is an ``incumbent worker'' for purposes of statewide and
local employment and training activities?
680.790 What is incumbent worker training?
680.800 What funds may be used for incumbent worker training?
680.810 What criteria must be taken into account for an employer to
be eligible to receive local incumbent worker funds?
680.820 Are there cost sharing requirements for local area incumbent
worker training?
680.830 What is a transitional job?
680.840 What funds may be used for transitional jobs?
680.850 May funds provided to employers for work-based training be
used to assist, promote, or deter union organizing?
Subpart G--Supportive Services
680.900 What are supportive services for adults and dislocated
workers?
680.910 When may supportive services be provided to participants?
680.920 Are there limits on the amounts or duration of funds for
supportive services?
680.930 What are needs-related payments?
680.940 What are the eligibility requirements for adults to receive
needs-related payments?
680.950 What are the eligibility requirements for dislocated workers
to receive needs-related payments?
[[Page 20852]]
680.960 May needs-related payments be paid while a participant is
waiting to start training classes?
680.970 How is the level of needs-related payments determined?
Authority: Secs. 122, 134, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart A--Delivery of Adult and Dislocated Worker Activities Under
Title I of the Workforce Innovation and Opportunity Act
Sec. 680.100 What is the role of the adult and dislocated worker
programs in the one-stop delivery system?
(a) The one-stop system is the basic delivery system for adult and
dislocated worker services. Through this system, adults and dislocated
workers can access a continuum of services. The services are classified
as career and training services.
(b) The chief elected official or his/her designee(s), as the local
grant recipient(s) for the adult and dislocated worker programs, is a
required one-stop partner and is subject to the provisions relating to
such partners described in part 678 of this chapter. Consistent with
those provisions:
(1) Career services for adults and dislocated workers must be made
available in at least one comprehensive one-stop center in each local
workforce investment area. Services may also be available elsewhere,
either at affiliated sites or at specialized centers. For example,
specialized centers may be established to serve workers being
dislocated from a particular employer or industry, or to serve
residents of public housing.
(2) Through the one-stop system, adults and dislocated workers
needing training are provided Individual Training Accounts (ITAs) and
access to lists of eligible providers and programs of training. These
lists contain quality consumer information, including cost and
performance information for each of the providers' programs, so that
participants can make informed choices on where to use their ITAs.
(ITAs are more fully discussed in subpart C of this part.)
Sec. 680.110 When must adults and dislocated workers be registered
and considered a participant?
(a) Registration is the process for collecting information to
support a determination of eligibility. This information may be
collected through methods that include electronic data transfer,
personal interview, or an individual's application. Participation
occurs after the registration process of collecting information to
support an eligibility determination and begins when the individual
receives a staff-assisted WIOA service, which does not include self-
service or informational activities.
(b) Adults and dislocated workers who receive services funded under
title I other than self-service or informational activities must be
registered and must be a participant.
(c) Employment Opportunity data must be collected on every
individual who is interested in being considered for WIOA title I
financially assisted aid, benefits, services, or training by a
recipient, and who has signified that interest by submitting personal
information in response to a request from the grant recipient or
designated service provider.
Sec. 680.120 What are the eligibility criteria for career services
for adults in the adult and dislocated worker programs?
To be eligible to receive career services as an adult in the adult
and dislocated worker programs, an individual must be 18 years of age
or older. To be eligible for any dislocated worker programs, an
eligible adult must meet the criteria of Sec. 680.130. Eligibility
criteria for training services are found at Sec. 680.210.
Sec. 680.130 What are the eligibility criteria for career services
for dislocated workers in the adult and dislocated worker programs?
(a) To be eligible to receive career services as a dislocated
worker in the adult and dislocated worker programs, an individual must
meet the definition of ``dislocated worker'' at WIOA sec. 3(15).
Eligibility criteria for training services are found at Sec. 680.210.
(b) Governors and Local Boards may establish policies and
procedures for one-stop operators to use in determining an individual's
eligibility as a dislocated worker, consistent with the definition at
WIOA sec. 3(15). These policies and procedures may address such
conditions as:
(1) What constitutes a ``general announcement'' of plant closing
under WIOA sec. 3(15)(B)(ii) or (iii); and
(2) What constitutes ``unemployed as a result of general economic
conditions in the community in which the individual resides or because
of natural disasters'' for determining the eligibility of self-employed
individuals, including family members and farm workers or ranch hands,
under WIOA sec. 3(15)(C).
Sec. 680.140 What Workforce Innovation and Opportunity Act title I
adult and dislocated worker services are Local Boards required and
permitted to provide?
(a) WIOA title I formula funds allocated to local areas for adults
and dislocated workers must be used to provide career and training
services through the one-stop delivery system. Local Boards determine
the most appropriate mix of these services, but both types must be
available for eligible adults and dislocated workers. Different
eligibility criteria apply for each type of services. See Sec. Sec.
680.120, 680.130, and 680.210.
(b) WIOA title I funds may also be used to provide the additional
services described in WIOA sec. 134(d), including:
(1) Job seeker services:
(i) Customer support to enable individuals with barriers to
employment (including individuals with disabilities) and veterans, to
navigate among multiple services and activities (WIOA sec.
134(d)(1)(A)(iv));
(ii) Training programs for displaced homemakers and for individuals
training for nontraditional occupations (as defined in WIOA sec. 3(37)
as occupations or fields of work in which individuals of one gender
comprise less than 25 percent of the individuals so employed), in
conjunction with programs operated in the local area (WIOA sec.
134(d)(1)(A)(viii));
(iii) Work support activities for low-wage workers, in coordination
with one-stop partners, which will provide opportunities for these
workers to retain or enhance employment. These activities may include
any activities available under the WIOA adult and dislocated worker
programs in coordination with activities and resources available
through partner programs. These activities may be provided in a manner
that enhances the worker's ability to participate, for example by
providing them at nontraditional hours or providing on-site child care
(WIOA sec. 134(d)(1)(B));
(iv) Supportive services, including needs-related payments, as
described in subpart G of this part (WIOA secs. 134(d)(2) and (3)); and
(v) Providing transitional jobs, as described in Sec. 680.830, to
individuals with barriers to employment who are chronically unemployed
or have an inconsistent work history (WIOA sec. 134(d)(5)).
(2) Employer services:
(i) Customized screening and referral of qualified participants in
training services to employers (WIOA sec. 134(d)(1)(A)(i));
(ii) Customized employment-related services to employers, employer
associations, or other such organization on a fee-for-service basis
that are in addition to labor exchange services available to employers
under the Wagner-Peyser Act (WIOA sec. 134(d)(1)(A)(ii));
[[Page 20853]]
(iii) Activities to provide business services and strategies that
meet the workforce investment needs of area employers, as determined by
the Local Board and consistent with the local plan (see Sec. 678.435
and WIOA sec. 134(d)(1)(A)(ix)); and
(3) Coordination activities:
(i) Employment and training activities in coordination with child
support enforcement activities, as well as child support services and
assistance activities, of the State and local agencies carrying out
part D of title IV of the Social Security Act (42 U.S.C. 651 et seq.)
(WIOA secs. 134(d)(1)(A)(vi)(I)-(II));
(ii) Employment and training activities in coordination with
cooperative extension programs carried out by the Department of
Agriculture (WIOA sec. 134(d)(1)(A)(vi)(III));
(iii) Employment and training activities in coordination with
activities to facilitate remote access to services provided through a
one-stop delivery system, including facilitating access through the use
of technology (WIOA sec. 134(d)(1)(A)(vi)(IV));
(iv) Improving coordination between workforce investment activities
and economic development activities carried out within the local area
involved, and to promote entrepreneurial skills training and
microenterprise services (WIOA sec. 134(d)(1)(A)(vii)(I));
(v) Improving services and linkages between the local workforce
investment system (including the local one-stop delivery system) and
employers, including small employers, in the local area (WIOA sec.
134(d)(1)(A)(vii)(II));
(vi) Strengthening linkages between the one-stop delivery system
and the unemployment insurance programs (WIOA sec.
134(d)(1)(A)(vii)(III)); and
(vii) Improving coordination between employment and training
activities and programs carried out in the local area for individuals
with disabilities, including programs carried out by State agencies
relating to intellectual disabilities and developmental disabilities,
activities carried out by Statewide Independent Living Councils
established under sec. 705 of the Rehabilitation Act of 1973 (29 U.S.C.
796d), programs funded under part B of chapter 1 of title VII of such
Act (29 U.S.C. 796e et seq.), and activities carried out by centers for
independent living, as defined in sec. 702 of such Act (29 U.S.C. 796a)
(WIOA sec. 134(d)(1)(A)(xi)).
(4) Implementing a pay-for-performance contract strategy for
training services in accordance with Sec. Sec. 683.500 through 683.530
for which up to 10 percent of the Local Board's total adult and
dislocated worker funds may be used (WIOA sec. 134(d)(1)(A)(iii)).
(5) Technical assistance for one-stop operators, partners, and
eligible training providers on the provision of service to individuals
with disabilities in local areas, including staff training and
development, provision of outreach and intake assessments, service
delivery, service coordination across providers and programs, and
development of performance accountability measures (WIOA sec.
134(d)(1)(A)(v)).
(6) Activities to adjust the economic self-sufficiency standards
referred to in WIOA sec. 134(a)(3)(A)(xii) for local factors or
activities to adopt, calculate or commission for approval, economic
self-sufficiency standards for the local areas that specify the income
needs of families, by family size, the number and ages of children in
the family, and sub-State geographical considerations (WIOA sec.
134(d)(1)(A)(x)).
(7) Implementing promising service to workers and businesses, which
may include support for education, training, skill upgrading, and
statewide networking for employees to become workplace learning
advisors and maintain proficiency in carrying out the activities
associated with such advising (WIOA sec. 134(d)(1)(A)(xii)).
(8) Incumbent worker training programs, as described in subpart F
of this part (WIOA sec. 134(d)(4)).
Sec. 680.150 What career services must be provided to adults and
dislocated workers?
(a) At a minimum, all of the career services described in WIOA
secs. 134(c)(2)(A)(i)-(xi) and Sec. 678.430(a) must be provided in
each local area through the one-stop delivery system.
(b) Individualized career services described in WIOA sec.
134(c)(2)(A)(xii) and Sec. 678.430(b) must be made available, if
determined appropriate in order for an individual to obtain or retain
employment.
(c) Follow-up services, as described in WIOA sec.
134(c)(2)(A)(xiii) and Sec. 678.430(c), must be made available, as
appropriate, for a minimum of 12 months following the first day of
employment, to registered participants who are placed in unsubsidized
employment.
Sec. 680.160 How are career services delivered?
Career services must be provided through the one-stop delivery
system. Career services may be provided directly by the one-stop
operator or through contracts with service providers that are approved
by the Local Board. The Local Board may only be a provider of career
services when approved by the chief elected official and the Governor
in accordance with the requirements of WIOA sec. 107(g)(2) and Sec.
679.410.
Sec. 680.170 What is an internship or work experience for adults and
dislocated workers?
For the purposes of WIOA sec. 134(c)(2)(A)(xii)(VII), internships
or work experiences are a planned, structured learning experience that
takes place in a workplace for a limited period of time. Work
experience may be paid or unpaid, as appropriate. An internship or work
experience may be arranged within the private for profit sector, the
non-profit sector, or the public sector. Labor standards apply in any
work experience setting where an employee/employer relationship, as
defined by the Fair Labor Standards Act, exists.
Sec. 680.180 What is the individual employment plan?
The individual employment plan is an individualized career service,
under WIOA sec. 134(c)(2)(A)(xii)(II), that is jointly developed by the
participant and case manager when determined appropriate by the one-
stop operator or one-stop partner. The plan is an ongoing strategy to
identify employment goals, achievement objectives, and an appropriate
combination of services for the participant to achieve the employment
goals.
Subpart B--Training Services
Sec. 680.200 What are training services for adults and dislocated
workers?
Training services are listed in WIOA sec. 134(c)(3)(D). The list in
the Act is not all-inclusive and additional training services may be
provided.
Sec. 680.210 Who may receive training services?
Under WIOA sec. 134(c)(3)(A) training services may be made
available to employed and unemployed adults and dislocated workers who:
(a) A one-stop operator or one-stop partner determines, after an
interview, evaluation, or assessment, and career planning, are:
(1) Unlikely or unable to obtain or retain employment that leads to
economic self-sufficiency or wages comparable to or higher than wages
from previous employment through career services;
(2) In need of training services to obtain or retain employment
leading to economic self-sufficiency or wages comparable to or higher
than wages from previous employment; and
[[Page 20854]]
(3) Have the skills and qualifications to participate successfully
in training services;
(b) Have selected a program of training services that is directly
linked to the employment opportunities in the local area or the
planning region, or in another area to which the individuals are
willing to commute or relocate;
(c) Are unable to obtain grant assistance from other sources to pay
the costs of such training, including such sources as State-funded
training funds, Trade Adjustment Assistance, and Federal Pell Grants
established under title IV of the Higher Education Act of 1965, or
require WIOA assistance in addition to other sources of grant
assistance, including Federal Pell Grants (provisions relating to fund
coordination are found at Sec. 680.230 and WIOA sec. 134(c)(3)(B));
and
(d) If training services are provided through the adult funding
stream, are determined eligible in accordance with the State and local
priority system, if any, in effect for adults under WIOA sec.
134(c)(3)(E) and Sec. 680.600.
Sec. 680.220 Are there particular career services an individual must
receive before receiving training services under Workforce Innovation
and Opportunity Act?
(a) Yes, an individual must at a minimum receive either an
interview, evaluation, or assessment, and career planning or any other
method through which the one-stop operator or partner can obtain enough
information to make an eligibility determination to be determined
eligible for training services see WIOA sec. 134(c)(3)(A)(i). Where
appropriate, a recent interview, evaluation, or assessment, may be used
for the assessment purpose; see WIOA sec. 134(c)(3)(A)(ii); and
(b) The case file must contain a determination of need for training
services under Sec. 680.210 as determined through the interview,
evaluation, or assessment, and career planning informed by local labor
market information and training provider performance information, or
through any other career service received. There is no requirement that
career services be provided as a condition to receipt of training
services; however, if career services are not provided before training,
the Local Board must document the circumstances that justified its
determination to provide training without first providing the services
described in paragraph (a) of this section.
(c) There is no Federally-required minimum time period for
participation in career services before receiving training services.
Sec. 680.230 What are the requirements for coordination of Workforce
Innovation and Opportunity Act training funds and other grant
assistance?
(a) WIOA funding for training is limited to participants who:
(1) Are unable to obtain grant assistance from other sources to pay
the costs of their training; or
(2) Require assistance beyond that available under grant assistance
from other sources to pay the costs of such training. Program operators
and training providers must coordinate funds available to pay for
training as described in paragraphs (b) and (c) of this section. In
making the determination under this paragraph, one-stop operators
should take into account the full cost of participating in training
services, including the cost of support services and other appropriate
costs.
(b) One-stop operators must coordinate training funds available and
make funding arrangements with one-stop partners and other entities to
apply the provisions of paragraph (a) of this section. One-stop
operators must consider the availability of other sources of grants to
pay for training costs such as Temporary Assistance for Needy Families
(TANF), State-funded training funds, and Federal Pell Grants, so that
WIOA funds supplement other sources of training grants.
(c) A WIOA participant may enroll in WIOA-funded training while
his/her application for a Pell Grant is pending as long as the one-stop
operator has made arrangements with the training provider and the WIOA
participant regarding allocation of the Pell Grant, if it is
subsequently awarded. In that case, the training provider must
reimburse the one-stop operator the WIOA funds used to underwrite the
training for the amount the Pell Grant covers. Reimbursement is not
required from the portion of Pell Grant assistance disbursed to the
WIOA participant for education-related expenses. (WIOA sec.
134(c)(3)(B))
Subpart C--Individual Training Accounts
Sec. 680.300 How are training services provided?
Training service for eligible individuals are typically provided by
training providers who receive payment for their services through an
Individual Training Account (ITA). The ITA is a payment agreement
established on behalf of a participant with a training provider. WIOA
title I adult and dislocated workers purchase training services from
eligible providers they select in consultation with the case manager,
which includes discussion of quality and performance information on the
available training providers. Payments from ITAs may be made in a
variety of ways, including the electronic transfer of funds through
financial institutions, vouchers, or other appropriate methods.
Payments may also be made incrementally, e.g., through payment of a
portion of the costs at different points in the training course. (WIOA
sec. 134(c)(4)(G)) Under limited conditions, as provided in Sec.
680.320 and WIOA sec. 134(d)(3)(G), a Local Board may contract for
these services, rather than using an ITA for this purpose. In some
limited circumstances, the Local Board may itself provide the training
services, but only if it obtains a waiver from the Governor for this
purpose, and the Local Board meets the other requirements of Sec.
679.410 and WIOA sec. 107(g)(1).
Sec. 680.310 Can the duration and amount of Individual Training
Accounts be limited?
(a) Yes, the State or Local Board may impose limits on ITAs, such
as limitations on the dollar amount and/or duration.
(b) Limits to ITAs may be established in different ways:
(1) There may be a limit for an individual participant that is
based on the needs identified in the individual employment plan, such
as the participant's occupational choice or goal and the level of
training needed to succeed in that goal; or
(2) There may be a policy decision by the State Board or Local
Board to establish a range of amounts and/or a maximum amount
applicable to all ITAs.
(c) Limitations established by State or Local Board policies must
be described in the State or Local Plan, respectively, but must not be
implemented in a manner that undermines the Act's requirement that
training services are provided in a manner that maximizes customer
choice in the selection of an eligible training provider. ITA
limitations may provide for exceptions to the limitations in individual
cases.
(d) An individual may select training that costs more than the
maximum amount available for ITAs under a State or local policy when
other sources of funds are available to supplement the ITA. These other
sources may include: Pell Grants; scholarships; severance pay; and
other sources.
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Sec. 680.320 Under what circumstances may mechanisms other than
Individual Training Accounts be used to provide training services?
(a) Contracts for services may be used instead of ITAs only when
one or more of the following five exceptions apply:
(1) When the services provided are on-the-job training (OJT),
customized training, incumbent worker training or transitional jobs;
(2) When the Local Board determines that there are an insufficient
number of eligible providers in the local area to accomplish the
purpose of a system of ITAs. The Local Plan must describe the process
to be used in selecting the providers under a contract for services.
This process must include a public comment period for interested
providers of at least 30 days;
(3) When the Local Board determines that there is a training
services program of demonstrated effectiveness offered in the area by a
community-based organization (CBO) or another private organization to
serve individuals with barriers to employment, as described in
paragraph (b) of this section. The Local Board must develop criteria to
be used in determining demonstrated effectiveness, particularly as it
applies to the individuals with barriers to employment to be served.
The criteria may include:
(i) Financial stability of the organization;
(ii) Demonstrated performance in the delivery of services to hard
to serve participant populations through such means as program
completion rate; attainment of the skills, certificates or degrees the
program is designed to provide; placement after training in
unsubsidized employment; and retention in employment; and
(iii) How the specific program relates to the workforce investment
needs identified in the local plan.
(4) When the Local Board determines that it would be most
appropriate to contract with an institution of higher education or
other eligible provider of training services will facilitate the
training of multiple individuals in in-demand industry sectors or
occupations, provided that the contract does not limit consumer choice.
(5) When the Local Board is considering entering into a pay-for-
performance contract, the Local Board ensures that the contract is
consistent with Sec. 683.510.
(b) Under paragraph (a)(3) of this section, individuals with
barriers to employment include those individuals in one or more of the
following categories, as prescribed by WIOA sec. 3(24):
(1) Displaced homemakers;
(2) Low-income individuals;
(3) Indians, Alaska Natives, and Native Hawaiians;
(4) Individuals with disabilities;
(5) Older individuals, i.e., those aged 55 or over;
(6) Ex-offenders;
(7) Homeless individuals;
(8) Youth who are in or have aged out of the foster care system;
(9) Individuals who are English language learners, individuals who
have low levels of literacy, and individuals facing substantial
cultural barriers;
(10) Eligible migrant and seasonal farmworkers, defined in WIOA
sec. 167(i);
(11) Individuals within 2 years of exhausting lifetime eligibility
under TANF (part A of title IV of the Social Security Act);
(12) Single-parents (including single pregnant women);
(13) Long-term unemployed individuals;
(14) Other groups determined by the Governor to have barriers to
employment.
Sec. 680.330 How can Individual Training Accounts, supportive
services, and needs-related payments be used to support placing
participating adults and dislocated workers into a registered
apprenticeship program and support participants once they are in a
registered apprenticeship program?
Registered apprenticeships automatically qualify to be a on a
State's eligible training provider list (ETPL) as described in Sec.
680.470. ITAs can be used to support participants in:
(a) Pre-apprenticeship training, as defined in Sec. 681.480;
(b) Training tuition for a registered apprenticeship program to the
training provider;
(c) Supportive services may be provided as described in Sec. Sec.
680.900 and 680.910; and
(d) Needs-related payments may be provided as described in
Sec. Sec. 680.930, 680.940, 680.950, 680.960, and 680.970;
(e) Work-based training options may also be used to support
participants in registered apprenticeship programs (see Sec. Sec.
680.740 and 680.750).
Sec. 680.340 What are the requirements for consumer choice?
(a) Training services, whether under ITA's or under contract, must
be provided in a manner that maximizes informed consumer choice in
selecting an eligible provider.
(b) Each Local Board, through the one-stop center, must make
available to customers the State list of eligible providers required in
WIOA sec. 122(e). The list includes a description of the programs
through which the providers may offer the training services, the
information identifying eligible providers of on-the-job training and
customized training required under WIOA sec. 122(h) (where applicable),
and the performance and cost information about eligible providers of
training services described in WIOA secs. 122(d) and 122(h).
(c) An individual who has been determined eligible for training
services under Sec. 680.210 may select a provider described in
paragraph (b) of this section after consultation with a career planner.
Unless the program has exhausted training funds for the program year,
the operator must refer the individual to the selected provider, and
establish an ITA for the individual to pay for training. For purposes
of this paragraph, a referral may be carried out by providing a voucher
or certificate to the individual to obtain the training.
(d) The cost of referral of an individual with an ITA to a training
provider is paid by the applicable adult or dislocated worker program
under title I of WIOA.
(e) Each Local Board, through the one-stop center, may coordinate
funding for ITAs with funding from other Federal, State, local, or
private job training programs or sources to assist the individual in
obtaining training services.
(f) Consistent with paragraph (a) of this section, priority
consideration must be given to programs that lead to recognized post-
secondary credentials that are aligned with in-demand industry sectors
or occupations in the local area.
Subpart D--Eligible Training Providers
Sec. 680.400 What is the purpose of this subpart?
(a) This subpart describes the process for determining eligible
training providers for WIOA title I-B adult and dislocated worker
training participants and for publicly disseminating the list of these
providers with relevant information about their programs. The workforce
development system established under WIOA emphasizes informed consumer
choice, job-driven training, provider performance, and continuous
improvement. The quality and selection of providers and programs of
training services is vital to achieving these core principles.
(b) The State eligible training provider list and the related
eligibility procedures ensure the accountability, quality and labor-
market relevance of programs of training services that receive funds
through WIOA title I-B.
[[Page 20856]]
The State list is also a means for ensuring informed customer choice
for individuals eligible for training. In administering the eligible
training provider process, States and local areas must work to ensure
that qualified providers offering a wide variety of job-driven training
programs are available. The State list is made publicly available
online through Web sites and searchable databases as well as any other
means the State uses to disseminate information to consumers. The list
must be accompanied by relevant performance and cost information and
must be presented in a way that is easily understood, in order to
maximize informed consumer choice and serve all significant population
groups, and must also be available in an electronic format. The State
eligible training provider performance reports, as required under WIOA
sec. 116(d)(4), are addressed separately in Sec. 677.230.
Sec. 680.410 What entities are eligible providers of training
services?
(a) Eligible providers of training services are entities that are
eligible to receive WIOA title I-B funds, according to criteria and
procedures established by the Governor in accordance with WIOA sec.
122(b) for adult and dislocated worker participants who enroll in
training services. Potential providers may include:
(1) Institutions of higher education that provide a program which
leads to a recognized post-secondary credential;
(2) Entities that carry out programs registered under the National
Apprenticeship Act (29 U.S.C. 50 et seq.);
(3) Other public or private providers of a program of training
services, which may include joint labor-management organizations and
eligible providers of adult education and literacy activities under
title II if such activities are provided in combination with
occupational skills training; and
(4) Local Boards, if they meet the conditions of WIOA sec.
107(g)(1).
(b) In order to provide training services, a provider must meet the
requirements of this part and WIOA sec. 122.
(1) The requirements of this part apply to the use of WIOA title I-
B adult and dislocated worker funds to provide training:
(i) To individuals using individual training accounts to access
training through the eligible training provider list; and
(ii) To individuals for training provided through the exceptions to
individual training accounts described at Sec. Sec. 680.320 and
680.530. Training services under WIOA title I-B may be provided through
a contract for services rather than Individual Training Accounts under
conditions identified in WIOA sec. 134(c)(3)(G). These exceptions
include: on-the-job training, customized training, incumbent worker
training or transitional employment; instances where the Local Board
determines there are insufficient number of eligible providers of
training services in the local area; where the Local Board determines
an exception is necessary to meet the needs of individuals with
barriers to employment (including assisting individuals with
disabilities or adults in need of adult education and literacy
services); where the Local Board determines that it would be most
appropriate to award a contract to an institution of higher education
or other eligible provider to facilitate the training of multiple
individuals in in-demand industry sectors or occupations (where the
contract does not limit customer choice); and, for pay-for-performance
contracts.
(2) The requirements of this part apply to all entities providing
training to adult and dislocated workers, with specific exceptions for
entities that carry out registered apprenticeship programs, as
described in Sec. 680.470.
Sec. 680.420 What is a ``program of training services''?
A program of training services, as referred to in Sec. 680.410(a),
is one or more courses or classes, or a structured regimen that leads
to:
(a) A recognized post-secondary credential, secondary school
diploma or its equivalent,
(b) Employment, or
(c) Measurable skill gains toward such a credential or employment.
Sec. 680.430 Who is responsible for managing the eligible provider
process?
(a) The Governor, in consultation with the State Board, establishes
the criteria, information requirements and procedures, including
procedures identifying the respective roles of the State and local
areas, governing the eligibility of providers of training services to
receive funds for adult and dislocated worker training activities as
described under WIOA sec. 133(b).
(b) The Governor may designate a State agency (or appropriate State
entity) to assist in carrying out the process and procedures for
determining the eligibility of training providers. The Governor or such
agency (or appropriate State entity) is responsible for:
(1) Ensuring the development and maintenance of the State list of
eligible providers and programs, as described is Sec. Sec. 680.450,
680.460, and 680.490;
(2) Ensuring that programs meet eligibility criteria and
performance levels established by the State, including verifying the
accuracy of the information;
(3) Removing programs that do not meet State-established program
criteria or performance levels, as described in Sec. 680.480(c);
(4) Taking appropriate enforcement actions against providers that
intentionally provide inaccurate information, or that substantially
violate the requirements of WIOA, as described in Sec. 680.480(a) and
(b) (WIOA secs. 122(f)(1)(A) and (B)); and
(5) Disseminating the State list, accompanied by performance and
cost information relating to each provider, to the public and the Local
Boards throughout the State, as further described in Sec. 680.500.
(c) The Local Board must:
(1) Carry out the procedures assigned to the Local Board by the
State, such as determining the initial eligibility of entities
providing a program of training services, renewing the eligibility of
providers, and considering the possible termination of an eligible
provider due to the provider's submission of inaccurate eligibility and
performance information or the provider's substantial violation of WIOA
requirements;
(2) Work with the State to ensure there are sufficient numbers and
types of providers of training services, including eligible providers
with expertise in assisting individuals with disabilities and eligible
providers with expertise in assisting adults in need of adult education
and literacy activities described under WIOA sec. 107(d)(10)(E),
serving the local area; and
(3) Ensure the dissemination and appropriate use of the State list
through the local one-stop system.
(d) The Local Board may:
(1) Make recommendations to the Governor on the procedure used in
determining eligibility of providers;
(2) Require additional criteria and information from local
providers as criteria to become or remain eligible; and
(3) Set higher levels of performance than those required by the
State as criteria for local providers to become or remain eligible to
provide services in that particular local area.
Sec. 680.440 What are the transition procedures for Workforce
Investment Act-eligible providers to become eligible under the
Workforce Innovation and Opportunity Act?
(a) The Governor may establish a transition procedure under which
[[Page 20857]]
providers eligible to provide training services under WIA may continue
to be eligible to provide such services until December 31, 2015 or such
earlier date as the Governor determines to be appropriate.
(b) After this transition period, which may extend no later than
December 31, 2015, the eligibility of these providers will be
determined under the application procedure for continued eligibility
established by the Governor as described in Sec. 680.460.
(c) Providers that were previously eligible under WIA are not
subject to the initial eligibility procedures described under Sec.
680.450.
Sec. 680.450 What is the initial eligibility procedure for new
providers?
(a) All providers that have not previously been an eligible
provider of training services under WIOA sec. 122 or WIA sec. 122,
except for registered apprenticeship programs, must submit required
information to be considered for initial eligibility in accordance with
the Governor's procedures.
(b) Apprenticeship programs registered under the National
Apprenticeship Act (NAA) are exempt from initial eligibility
procedures. Registered apprenticeship programs must be included and
maintained on the list of eligible providers of training services as
long as the corresponding program remains registered, as described at
WIOA sec. 122(a)(3). Procedures for registered apprenticeship programs
to be added and maintained on the list are described in Sec. 680.470.
(c) In establishing the State requirements described in paragraph
(d) of this section, the Governor must, in consultation with the State
Board, develop a procedure for determining the eligibility of training
providers. This procedure, which must be described in the State Plan,
must be developed after:
(1) Soliciting and taking into consideration recommendations from
Local Boards and providers of training services within the State;
(2) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to
submit comments on the procedure; and
(3) Designating a specific time period for soliciting and
considering the recommendations of Local Boards and providers, and for
providing an opportunity for public comment.
(d) For institutions of higher education that provide a program
that leads to a recognized post-secondary credential and for other
public or private providers of programs of training services, including
joint labor-management organizations, and providers of adult education
and literacy activities, the Governor must establish criteria and State
requirements for providers seeking initial eligibility.
(e) The Governor must require providers seeking initial eligibility
to provide verifiable program specific performance information. At a
minimum, these criteria must require applicant providers to:
(1) Describe each program of training services to be offered;
(2) Provide information addressing a factor related to the
indicators of performance, as described in WIOA secs.
116(b)(2)(A)(i)(I)-(IV) and Sec. 680.460(g)(1) through (4) which
include unsubsidized employment during the second quarter after exit,
unsubsidized employment during the fourth quarter after exit, median
earnings and credentials attainment;
(3) Describe whether the provider is in a partnership with a
business;
(4) Provide other information the Governor may require in order to
demonstrate high quality training services, including a program of
training services that leads to a recognized post-secondary credential;
and
(5) Provide information that addresses alignment of the training
services with in-demand industry sectors and occupations, to the extent
possible.
(f) In establishing the initial eligibility procedures and
criteria, the Governor may establish minimum standards, based on the
performance information described in paragraph (e) of this section.
(g) Under WIOA sec. 122(b)(4)(B), providers receive initial
eligibility for only 1 fiscal year for a particular program.
(h) After the initial eligibility expires, these initially-eligible
providers are subject to the Governor's application procedures for
continued eligibility, described at Sec. 680.460, in order to remain
eligible.
Sec. 680.460 What is the application procedure for continued
eligibility?
(a) The Governor must establish an application procedure for
training providers to maintain their continued eligibility. The
application procedure must take into account the provider's prior
eligibility status.
(1) Training providers that were previously eligible under WIA, as
of July 21, 2014, will be subject to the application procedure for
continued eligibility after the close of the Governor's transition
period for implementation, described in Sec. 680.440.
(2) Training providers that were not previously eligible under WIA
and have been determined to be initially-eligible under WIOA, under the
procedures described at Sec. 680.450, will be subject to the
application procedure for continued eligibility after their initial
eligibility expires.
(b) The Governor must develop this procedure after:
(1) Soliciting and taking into consideration recommendations from
Local Boards and providers of training services within the State;
(2) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to
submit comments on such procedure; and
(3) Designating a specific time period for soliciting and
considering the recommendations of Local Boards and providers, and for
providing an opportunity for public comment.
(c) Apprenticeship programs registered under the National
Apprenticeship Act (NAA) must be included and maintained on the list of
eligible providers of training services for as long as the
corresponding program remains registered. The Governor's procedure must
include a mechanism for registered apprenticeship programs to indicate
interest in being included on the list, as described in Sec. 680.470.
(d) The application procedure must describe the roles of the State
and local areas in receiving and reviewing provider applications and in
making eligibility determinations.
(e) The application procedure must be described in the State Plan.
(f) In establishing eligibility criteria, the Governor must take
into account:
(1) The performance of providers of training services on the
performance accountability measures described in WIOA secs.
116(b)(2)(A)(i)(I)-(IV) and required by WIOA sec. 122(b)(2), which may
include minimum performance standards, and other appropriate measures
of performance outcomes for program participants receiving training
under WIOA title I-B, as determined by the Governor. Until data from
the conclusion of each performance indicator's first data cycle is
available, the Governor may take into account alternate factors related
to such performance measure.
(2) Ensuring access to training services throughout the State
including rural areas and through the use of technology;
(3) Information reported to State agencies on Federal and State
training programs other than programs within WIOA title I-B;
(4) The degree to which training programs relate to in-demand
industry sectors and occupations in the State;
[[Page 20858]]
(5) State licensure requirements of training providers;
(6) Encouraging the use of industry-recognized certificates and
credentials;
(7) The ability of providers to offer programs that lead to post-
secondary credentials;
(8) The quality of the program of training services including a
program that leads to a recognized post-secondary credential;
(9) The ability of the providers to provide training services to
individuals who are employed and individuals with barriers to
employment;
(10) Whether the providers timely and accurately submitted eligible
training provider performance reports as required under WIOA sec.
116(d)(4); and
(11) Other factors that the Governor determines are appropriate in
order to ensure: the accountability of providers; that one-stop centers
in the State will meet the needs of local employers and participants;
and, that participants will be given an informed choice among
providers.
(g) The information requirements that the Governor establishes
under paragraph (f)(1) of this section must require training providers
to submit appropriate, accurate and timely information for participants
receiving training under WIOA title I-B. That information must include:
(1) The percentage of program participants who are in unsubsidized
employment during the second quarter after exit from the program;
(2) The percentage of program participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(3) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(4) The percentage of program participants who obtain a recognized
post-secondary credential, or a secondary school diploma or its
recognized equivalent during participation in or within 1 year after
exit from the program;
(5) Information on recognized post-secondary credentials received
by program participants;
(6) Information on cost of attendance, including costs of tuition
and fees, for program participants;
(7) Information on the program completion rate for such
participants.
(h) The eligibility criteria must require that:
(1) Providers submit performance and cost information as described
in paragraph (g) of this section and in the Governor's procedures for
each program of training services for which the provider has been
determined to be eligible, in a timeframe and manner determined by the
State, but at least every 2 years; and
(2) That the collection of information required to demonstrate
compliance with the criteria is not unduly burdensome or costly to
providers (WIOA sec. 122(b)(1)(J)(iv)).
(i) The procedure for continued eligibility must also provide for
the State to review biennially-required provider eligibility
information to assess the renewal of training provider eligibility.
Such procedures may establish minimum levels of training provider
performance as criteria for continued eligibility.
(j) The procedure for biennial review of the provider eligibility
must include verification of the registration status of registered
apprenticeship programs as described in Sec. 680.470.
(k) Local Boards may require higher levels of performance for local
programs than the levels specified in the procedures established by the
Governor.
(l) The Governor may establish procedures and timeframes for
providing technical assistance to eligible providers of training who
are not intentionally supplying inaccurate information or who have not
substantially violated any of the requirements under this section but
are failing to meet the criteria and information requirements due to
undue cost or burden.
Sec. 680.470 What is the procedure for registered apprenticeship
programs that seek to be included in a State's eligible training
provider list?
(a) All registered apprenticeship programs that are registered with
the U.S. Department of Labor, Office of Apprenticeship, or a recognized
State apprenticeship agency are automatically eligible to be included
in the State list of eligible training providers. Some program sponsors
may not wish to be included on the State eligible training provider
list. Therefore, the Governor must establish a mechanism for registered
apprenticeship program sponsors in the State to indicate that the
program sponsor wishes to be included on the State eligible training
provider list. This mechanism should be developed with the assistance
of the U.S. Department of Labor Office of Apprenticeship representative
in the State or, if the State oversees the administration of the
apprenticeship system, with the assistance of the recognized State
apprenticeship agency.
(b) Once on the State eligible training provider list, registered
apprenticeship programs will remain on the list until they are
deregistered or until the registered apprenticeship program notifies
the State that it no longer wants to be included on the list.
(c) Inclusion of a registered apprenticeship in the State eligible
training provider list allows an individual who is eligible to use WIOA
title I-B funds to use those funds toward apprentice training,
consistent with their availability and limitations as prescribed by
Sec. 680.300. The use of individual training accounts and other WIOA
title I-B funds toward apprenticeship training is further described in
Sec. 680.330.
(d) The Governor is encouraged to consult with the State and Local
Boards, ETA's Office of Apprenticeship, recognized State apprenticeship
agencies (where they exist in the Governor's State) or other State
agencies, to establish voluntary reporting of performance information.
Sec. 680.480 May an eligible training provider lose its eligibility?
(a) Yes. A training provider must deliver results and provide
accurate information in order to retain its status as an eligible
training provider.
(b) Providers determined to have intentionally supplied inaccurate
information or to have substantially violated any provision of title I
of WIOA or the WIOA regulations, including 29 CFR part 37, must be
removed from the list in accordance with the enforcement provisions of
WIOA sec. 122(f). A provider whose eligibility is terminated under
these conditions must be terminated for not less than 2 years and is
liable to repay all adult and dislocated worker training funds it
received during the period of noncompliance. The Governor must specify
in the procedures which individual or entity is responsible for making
these determinations and the process by which the determination will be
made, which must include an opportunity for a hearing that meets the
requirements of 20 CFR 683.630(b).
(c) As a part of the biennial review of eligibility established by
the Governor, the State must remove provider programs that fail to meet
criteria established by the Governor to remain eligible, which may
include failure to meet established minimum performance levels.
(d) The Governor must establish an appeals procedure for providers
of training to appeal a denial of eligibility under this subpart that
meets the requirements of 20 CFR 683.630(b), which explains the appeals
process for
[[Page 20859]]
denial or termination of eligibility of a provider of training
services.
(e) Where a Local Board has established higher minimum standards,
according to Sec. 680.460(k), the Local Board may remove a provider
program from the eligible programs in that local area for failure to
meet established criteria. The Local Board must establish an appeals
procedure for providers of training to appeal a denial of eligibility
under this subpart that meets the requirements of 20 CFR 683.630(b),
which explains the appeals process for denial or termination of
eligibility of a provider of training services.
Sec. 680.490 What kind of performance and cost information must
eligible training providers provide for each program of training?
(a) In accordance with the State procedure and Sec. 680.460(h),
eligible providers of training services must submit, at least every 2
years, appropriate, timely and accurate performance and cost
information.
(b) Program-specific performance information must include:
(1) The information described in WIOA sec. 122(b)(2)(A) for
individuals participating in the programs of training services who are
receiving assistance under WIOA sec. 134. This information includes
indicators of performance as described in WIOA secs. 116(b)(2)(I)-(IV)
and Sec. 680.460(g)(1) through (4).
(2) Information identifying the recognized post-secondary
credentials received by such participants.
(3) Program cost information, including tuition and fees, for WIOA
participants in the program, and
(4) Information on the program completion rate for WIOA
participants.
(c) Governors may require any additional performance information
(such as the information described at WIOA sec. 122(b)(1)) that the
Governor determines to be appropriate to determine or maintain
eligibility.
(d) Governors must establish a procedure by which a provider can
demonstrate that providing additional information required under this
section would be unduly burdensome or costly. If the Governor
determines that providers have demonstrated such extraordinary costs or
undue burden:
(1) The Governor must provide access to cost-effective methods for
the collection of the information;
(2) The Governor may provide additional resources to assist
providers in the collection of the information from funds for statewide
workforce investment activities reserved under WIOA secs. 128(a) and
133(a)(1); or
(3) The Governor may take other steps to assist training providers
in collecting and supplying required information such as offering
technical assistance.
Sec. 680.500 How is the State list of eligible training providers
disseminated?
(a) In order to assist participants in choosing employment and
training activities, the Governor or State agency must disseminate the
State list of eligible training providers and accompanying performance
and cost information to Local Boards in the State and to members of the
public online including through Web sites and searchable databases and
through whatever other means the State uses to disseminate information
to consumers, including the one-stop delivery system and its program
partners throughout the State.
(b) The State list and information must be updated regularly and
provider eligibility must be reviewed biennially according to the
procedures established by the Governor in Sec. 680.460(i).
(c) In order to ensure informed consumer choice, the State eligible
training provider list and accompanying information must be widely
available to the public through electronic means, including Web sites
and searchable databases, as well as through any other means the State
uses to disseminate information to consumers. The list and accompanying
information must be available through the one-stop delivery system and
its partners including the State's secondary and post-secondary
education systems. The eligible training provider list should be
accessible to individuals seeking information on training outcomes, as
well as participants in employment and training activities funded under
WIOA, including those under Sec. 680.210, and other programs. In
accordance with WIOA sec. 188, the State list must also be accessible
to individuals with disabilities.
(d) The State eligible training provider list must be accompanied
by appropriate information to assist participants in choosing
employment and training activities. Such information must include:
(1) Recognized post-secondary credential(s) offered;
(2) Provider information supplied to meet the Governor's
eligibility procedure as described in Sec. Sec. 680.450 and 680.460;
(3) Performance and cost information as described in Sec. 680.490;
and
(4) Additional information as the Governor determines appropriate.
(e) The State list and accompanying information must be made
available in a manner that does not reveal personally identifiable
information about an individual participant. In addition, in developing
the information to accompany the State list described in Sec.
680.490(b), disclosure of personally identifiable information from an
education record must be carried out in accordance with the Family
Educational Rights and Privacy Act, including the circumstances
relating to prior written consent.
Sec. 680.510 In what ways can a Local Board supplement the
information available from the State list?
(a) Local Boards may supplement the criteria and information
requirements established by the Governor in order to support informed
consumer choice and the achievement of local performance measures.
(b) This additional information may include:
(1) Information on programs of training services that are linked to
occupations in demand in the local area;
(2) Performance and cost information, including program-specific
performance and cost information, for the local outlet(s) of multi-site
eligible providers;
(3) Information that shows how programs are responsive to local
requirements; and
(4) Other appropriate information related to the objectives of
WIOA.
Sec. 680.520 May individuals choose training providers located
outside of the local area?
Yes, individuals may choose any of the eligible providers and
programs on the State list. A State may also establish a reciprocal
agreement with other States to permit providers of eligible training
programs in each State to accept individual training accounts provided
by the other State. See WIOA sec. 122(g). Providers of training
services that are located outside the local area may not be subject to
State eligibility procedures if the provider has been determined
eligible by another State with such an agreement.
Sec. 680.530 What requirements apply to providers of on-the-job-
training, customized training, incumbent worker training, and other
training exceptions?
Providers of on-the-job training, customized training, incumbent
worker training, internships, paid or unpaid work experience, or
transitional employment are not subject to the same requirements as
entities listed on the eligible training provider list. For these
training programs, one-stop operators in a local area must collect such
performance information as the Governor may require and determine
whether the providers meet the Governor's performance criteria. The
Governor may require one-stop
[[Page 20860]]
operators to disseminate a list of providers that have met the
performance criteria, along with the relevant performance information
about them, through the one-stop delivery system. Providers that meet
the criteria are considered eligible providers of training services.
These providers are not subject to the other requirements of WIOA sec.
122 or this part.
Subpart E--Priority and Special Populations
Sec. 680.600 What priority must be given to low-income adults and
public assistance recipients and individuals who are basic skills
deficient served with adult funds under title I?
(a) WIOA states, in sec. 134(c)(3)(E), that priority for
individualized career services (see Sec. 678.430(b)) and training
services funded with title I adult funds must be given to recipients of
public assistance, other low-income individuals, who are basic skills
deficient (as defined in WIOA sec. 3(5)(B)) in the local area.
(b) States and local areas must establish criteria by which the
one-stop operator will apply the priority under WIOA sec. 134(c)(3)(E).
Such criteria may include the availability of other funds for providing
employment and training-related services in the local area, the needs
of the specific groups within the local area, and other appropriate
factors.
(c) The priority established under paragraph (b) of this section
does not necessarily mean that these services may only be provided to
recipients of public assistance, other low-income individuals, and
individuals without basic work skills. The Local Board and the Governor
may establish a process that also gives priority to other individuals
eligible to receive such services, provided that it is consistent with
priority of service for veterans (see Sec. 680.650).
Sec. 680.610 Does the statutory priority for use of adult funds also
apply to dislocated worker funds?
No, the statutory priority applies only to adult funds for
individualized career services, as described in Sec. 680.150(b), and
training services. Funds allocated for dislocated workers are not
subject to this requirement.
Sec. 680.620 How does the Temporary Assistance for Needy Families
program relate to the one-stop delivery system?
The local TANF program is a required partner in the one-stop
delivery system. Part 678 describes the roles of such partners in the
one-stop delivery system and it applies to the TANF program. TANF
serves individuals who may also be served by the WIOA programs and,
through appropriate linkages and referrals, these customers will have
access to a broader range of services through the cooperation of the
TANF program in the one-stop system. TANF participants, who are
determined to be WIOA eligible, and who need occupational skills
training may be referred through the one-stop system to receive WIOA
training, when TANF grant and other grant funds are not available to
the individual in accordance with Sec. 680.230(a). WIOA participants
who are also determined TANF eligible may be referred to the TANF
operator for assistance.
Sec. 680.630 How does a displaced homemaker qualify for services
under title I?
(a) Individuals who meet the definitions of a ``displaced
homemaker'' (WIOA sec. 3(16)) qualify for career and training services
with dislocated worker title I funds.
(b) Displaced homemakers may also qualify for career and training
services with adult funds under title I if the requirements of this
part are met (see Sec. Sec. 680.120 and 680.600).
(c) Displaced homemakers may also be served in statewide employment
and training projects conducted with reserve funds for innovative
programs for displaced homemakers, as described in 20 CFR 682.210(c).
(d) The definition of displaced homemaker includes the dependent
spouse of a member of the Armed Forces on active duty (as defined in
sec. 101(d)(1) of title 10, United States Code) and whose family income
is significantly reduced because of a deployment, a call or order to
active duty under a provision of law referred to in sec. 101(a)(13)(B)
of title 10, United State Code, a permanent change of station, or the
service-connected death or disability of the member.
Sec. 680.640 May an individual with a disability whose family does
not meet income eligibility criteria under the Act be eligible for
priority as a low-income adult?
Yes, even if the family of an individual with a disability does not
meet the income eligibility criteria, the individual with a disability
is to be considered a low-income individual if the individual's own
income:
(a) Meets the income criteria established in WIOA sec.
3(36)(A)(vi); or
(b) Meets the income eligibility criteria for payments under any
Federal, State or local public assistance program (see WIOA sec.
3(36)(A)(i)).
Sec. 680.650 Do veterans receive priority of service under the
Workforce Innovation and Opportunity Act?
Yes, veterans under WIOA sec. 3(63)(A) and 38 U.S.C. 101 receive
priority of service in all Department of Labor-funded training programs
under 38 U.S.C. 4215 and described in 20 CFR 1010. A veteran must still
meet each program's eligibility criteria to receive services under the
respective employment and training program. For income-based
eligibility determinations, amounts paid while on active duty or paid
by the Department of Veterans Affairs (VA) for vocational
rehabilitation, disability payments, or related VA-funded programs are
not to be considered as income in accordance with 38 U.S.C. 4213 and 20
CFR 683.230.
Sec. 680.660 Are separating military service members eligible for
dislocated worker activities under the Workforce Innovation and
Opportunity Act?
If the separating service member is separating from the Armed
Forces with a discharge that is anything other than dishonorable, the
separating service member qualifies for dislocated worker activities
based on the following criteria:
(a) The separating service member has received a notice of
separation, a DD-214 from the Department of Defense, or other
documentation showing a separation or imminent separation from the
Armed Forces to satisfy the termination or layoff part of the
dislocated worker eligibility criteria in WIOA sec. 3(15)(A)(i);
(b) The separating service member qualifies for the dislocated
worker eligibility criteria on eligibility for or exhaustion of
unemployment compensation in WIOA sec. 3(15)(A)(ii)(I) or (II); and,
(c) As a separating service member, the individual meets the
dislocated worker eligibility criteria that the individual is unlikely
to return to a previous industry or occupation in WIOA sec.
3(15)(A)(iii).
Subpart F--Work-Based Training
Sec. 680.700 What are the requirements for on-the-job training?
(a) On-the-job training (OJT) is defined at WIOA sec. 3(44). OJT is
provided under a contract with an employer in the public, private non-
profit, or private sector. Through the OJT contract, occupational
training is provided for the WIOA participant in exchange for the
reimbursement, typically up to 50 percent of the wage rate of the
participant, for the extraordinary costs of providing the
[[Page 20861]]
training and supervision related to the training. In limited
circumstances, as provided in WIOA sec. 134(c)(3)(h) and Sec. 680.730,
the reimbursement may be up to 75 percent of the wage rate of the
participant.
(b) On-the-job training contracts under WIOA title I, must not be
entered into with an employer who has received payments under previous
contracts under WIOA or WIA if the employer has exhibited a pattern of
failing to provide on-the-job training participants with continued
long-term employment as regular employees with wages and employment
benefits (including health benefits) and working conditions at the same
level and to the same extent as other employees working a similar
length of time and doing the same type of work. (WIOA sec. 194(4))
(c) An OJT contract must be limited to the period of time required
for a participant to become proficient in the occupation for which the
training is being provided. In determining the appropriate length of
the contract, consideration should be given to the skill requirements
of the occupation, the academic and occupational skill level of the
participant, prior work experience, and the participant's individual
employment plan. (WIOA sec. 3(44)(C))
Sec. 680.710 What are the requirements for on-the-job training
contracts for employed workers?
OJT contracts may be written for eligible employed workers when:
(a) The employee is not earning a self-sufficient wage as
determined by Local Board policy;
(b) The requirements in Sec. 680.700 are met; and
(c) The OJT relates to the introduction of new technologies,
introduction to new production or service procedures, upgrading to new
jobs that require additional skills, workplace literacy, or other
appropriate purposes identified by the Local Board.
Sec. 680.720 What conditions govern on-the-job training payments to
employers?
(a) On-the-job training payments to employers are deemed to be
compensation for the extraordinary costs associated with training
participants and potentially lower productivity of the participants
while in the OJT.
(b) Employers may be reimbursed up to 50 percent of the wage rate
of an OJT participant, and up to 75 percent using the criteria in Sec.
680.730, for the extraordinary costs of providing the training and
additional supervision related to the OJT. (WIOA secs. 3(44) and
134(c)(3)(H)(i))
(c) Employers are not required to document such extraordinary
costs.
Sec. 680.730 Under what conditions may a Governor or Local Board
raise the on-the-job training reimbursement rate up to 75 percent of
the wage rate?
(a) The Governor may increase the reimbursement rate for OJT
contracts funded through the statewide employment and training
activities described in Sec. 682.210 up to 75 percent, and the Local
Board may also increase the reimbursement rate for OJT contracts
described in Sec. 680.320(a)(1) up to 75 percent, when taking into
account the following factors: (WIOA sec. 134(c)(H)(ii))
(1) The characteristics of the participants taking into
consideration whether they are ``individuals with barriers to
employment,'' as defined in WIOA sec. 3(24);
(2) The size of the employer, with an emphasis on small businesses;
(3) The quality of employer-provided training and advancement
opportunities, for example if the OJT contract is for an in-demand
occupation and will lead to an industry-recognized credential; and
(4) Other factors the Governor or Local Board may determine to be
appropriate, which may include the number of employees participating,
wage and benefit levels of the employees (both at present and after
completion), and relation of the training to the competitiveness of the
participant.
(b) Governors or Local Boards must document the factors used when
deciding to increase the wage reimbursement levels above 50 percent up
to 75 percent.
Sec. 680.740 How can on-the-job training funds be used to support
placing participants into a registered apprenticeship program?
(a) OJT contracts may be written with registered apprenticeship
programs or participating employers in registered apprenticeship
programs for the on-the-job training portion of the registered
apprenticeship program consistent with Sec. 680.700. Depending on the
length of the registered apprenticeship and State and local OJT
policies, these funds may cover some or all of the registered
apprenticeship training.
(b) If the apprentice is unemployed at the time of participation,
the OJT must be conducted as described in Sec. 680.700. If the
apprentice is employed at the time of participation, the OJT must be
conducted as described in Sec. 680.700
Sec. 680.750 Can Individual Training Account and on-the-job training
funds be combined to support placing participants into a registered
apprenticeship program?
There is no Federal prohibition on using both ITA and OJT funds
when placing participants into a registered apprenticeship program. See
Sec. 680.330 on using ITAs to support participants in registered
apprenticeship.
Sec. 680.760 What is customized training?
Customized training is training:
(a) That is designed to meet the special requirements of an
employer (including a group of employers);
(b) That is conducted with a commitment by the employer to employ
an individual upon successful completion of the training; and
(c) For which the employer pays for a significant cost of the
training, as determined by the Local Board in accordance with the
factors identified in WIOA sec. 3(14).
Sec. 680.770 What are the requirements for customized training for
employed workers?
Customized training of an eligible employed individual may be
provided for an employer or a group of employers when:
(a) The employee is not earning a self-sufficient wage as
determined by Local Board policy;
(b) The requirements in Sec. 680.760 are met; and
(c) The customized training relates to the purposes described in
Sec. 680.710(c) or other appropriate purposes identified by the Local
Board.
Sec. 680.780 Who is an ``incumbent worker'' for purposes of statewide
and local employment and training activities?
States and local areas must establish policies and definitions to
determine which workers, or groups of workers, are eligible for
incumbent worker services (WIOA sec. 134(d)(4)). To qualify as an
incumbent worker, the incumbent worker needs to be employed, meet the
Fair Labor Standards Act requirements for an employer-employee
relationship, and have an established employment history with the
employer for 6 months or more. The training must satisfy the
requirements in WIOA sec. 134(d)(4) and Sec. 680.790 and increase the
competitiveness of the employee or employer. An incumbent worker does
not necessarily have to meet the eligibility requirements for career
and training services for adults and dislocated workers under this Act.
[[Page 20862]]
Sec. 680.790 What is incumbent worker training?
Incumbent Worker training, for purposes of WIOA sec. 134(d)(4)(B),
is training:
(a) Designed to meet the special requirements of an employer
(including a group of employers) to retain a skilled workforce or avert
the need to lay off employees by assisting the workers in obtaining the
skills necessary to retain employment.
(b) Conducted with a commitment by the employer to retain or avert
the layoffs of the incumbent worker(s) trained.
Sec. 680.800 What funds may be used for incumbent worker training?
(a) The local area may reserve up to 20 percent of their combined
total of adult and dislocated worker allotments for incumbent worker
training as described in Sec. 680.790 (see WIOA sec. 134(d)(4)(A)(i));
(b) The State may use their statewide activities funds (per WIOA
sec. 134(a)(3)(A)(i)) and Rapid Response funds for statewide incumbent
worker training activities (see Sec. Sec. 682.210(b) and
682.320(b)(3)).
Sec. 680.810 What criteria must be taken into account for an employer
to be eligible to receive local incumbent worker funds?
The Local Board must consider under WIOA sec. 134(d)(4)(A)(ii):
(a) The characteristics of the participants in the program;
(b) The relationship of the training to the competitiveness of a
participant and the employer; and
(c) Other factors the Local Board determines appropriate, including
number of employees trained, wages and benefits including post training
increases, and the existence of other training opportunities provided
by the employer.
Sec. 680.820 Are there cost sharing requirements for local area
incumbent worker training?
Yes. Under WIOA secs. 134(d)(4)(C) and 134(d)(4)(D)(i)-(iii),
employers participating in incumbent worker training are required to
pay the non-Federal share of the cost of providing training to their
incumbent workers. The amount of the non-Federal share will depend upon
the limits established under WIOA secs. 134(d)(4)(ii)(C) and (D).
Sec. 680.830 What is a transitional job?
A transitional job is one that provides a limited work experience,
that is subsidized in the public, private, or non-profit sectors for
those individuals with barriers to employment because of chronic
unemployment or inconsistent work history; these jobs are designed to
enable an individual to establish a work history, demonstrate work
success, and develop the skills that lead to unsubsidized employment.
(WIOA sec. 134 (d)(5))
Sec. 680.840 What funds may be used for transitional jobs?
The local area may use up to 10 percent of their combined total of
adult and dislocated worker allotments for transitional jobs as
described in Sec. 680.810 (see WIOA sec. 134(d)(5)). Transitional jobs
must be combined with comprehensive career services (see Sec. 680.150)
and supportive services (see Sec. 680.900).
Sec. 680.850 May funds provided to employers for work-based training
be used to assist, promote, or deter union organizing?
No, funds provided to employers for work-based training, as
described in this subpart, must not be used to directly or indirectly
assist, promote or deter union organizing. (WIOA sec. 181(b)(7))
Subpart G--Supportive Services
Sec. 680.900 What are supportive services for adults and dislocated
workers?
Supportive services for adults and dislocated workers are defined
at WIOA sec. 3(59) and secs. 134(d)(2) and (3). They include services
such as transportation, child care, dependent care, housing, and needs-
related payments that are necessary to enable an individual to
participate in activities authorized under WIOA secs. 134(c)(2) and
(3). Local Boards, in consultation with the one-stop partners and other
community service providers, must develop a policy on supportive
services that ensures resource and service coordination in the local
area. The policy should address procedures for referral to such
services, including how such services will be funded when they are not
otherwise available from other sources. The provision of accurate
information about the availability of supportive services in the local
area, as well as referral to such activities, is one of the career
services that must be available to adults and dislocated workers
through the one-stop delivery system. (WIOA sec. 134(c)(2)(A)(ix) and
Sec. 678.430) Local Boards must ensure that needs-related payments are
made in a manner consistent with Sec. Sec. 680.930, 680.940, 680.950,
680.960, and 680.970.
Sec. 680.910 When may supportive services be provided to
participants?
(a) Supportive services may only be provided to individuals who
are:
(1) Participating in career or training services as defined in WIOA
secs. 134(c)(2) and (3); and
(2) Unable to obtain supportive services through other programs
providing such services. (WIOA sec. 134(d)(2)(B))
(b) Supportive services may only be provided when they are
necessary to enable individuals to participate in career service or
training activities. (see WIOA sec. 134(d)(2)(A) and WIOA sec. 3(59))
Sec. 680.920 Are there limits on the amounts or duration of funds for
supportive services?
(a) Local Boards may establish limits on the provision of
supportive services or provide the one-stop operator with the authority
to establish such limits, including a maximum amount of funding and
maximum length of time for supportive services to be available to
participants.
(b) Procedures may also be established to allow one-stop operators
to grant exceptions to the limits established under paragraph (a) of
this section.
Sec. 680.930 What are needs-related payments?
Needs-related payments provide financial assistance to participants
for the purpose of enabling them to participate in training and are a
supportive service authorized by WIOA sec. 134(d)(3). Unlike other
supportive services, in order to qualify for needs-related payments a
participant must be enrolled in training.
Sec. 680.940 What are the eligibility requirements for adults to
receive needs-related payments?
Adults must:
(a) Be unemployed,
(b) Not qualify for, or have ceased qualifying for, unemployment
compensation; and
(c) Be enrolled in a program of training services under WIOA sec.
134(c)(3).
Sec. 680.950 What are the eligibility requirements for dislocated
workers to receive needs-related payments?
To receive needs-related payments, a dislocated worker must:
(a) Be unemployed, and:
(1) Have ceased to qualify for unemployment compensation or trade
readjustment allowance under TAA; and
(2) Be enrolled in a program of training services under WIOA sec.
134(c)(3) by the end of the 13th week after the most recent layoff that
resulted in a determination of the worker's
[[Page 20863]]
eligibility as a dislocated worker, or, if later, by the end of the 8th
week after the worker is informed that a short-term layoff will exceed
6 months; or
(b) Be unemployed and did not qualify for unemployment compensation
or trade readjustment assistance under TAA and be enrolled in a program
of training services under WIOA sec. 134(c)(3).
Sec. 680.960 May needs-related payments be paid while a participant
is waiting to start training classes?
Yes, payments may be provided if the participant has been accepted
in a training program that will begin within 30 calendar days. The
Governor may authorize local areas to extend the 30-day period to
address appropriate circumstances.
Sec. 680.970 How is the level of needs-related payments determined?
(a) The payment level for adults must be established by the Local
Board.
(b) For dislocated workers, payments must not exceed the greater of
either of the following levels:
(1) The applicable weekly level of the unemployment compensation
benefit, for participants who were eligible for unemployment
compensation as a result of the qualifying dislocation; or
(2) The poverty level for an equivalent period, for participants
who did not qualify for unemployment compensation as a result of the
qualifying layoff. The weekly payment level must be adjusted to reflect
changes in total family income, as determined by Local Board policies.
(WIOA sec. 134(d)(3)(C))
0
8. Add part 681 to read as follows:
PART 681--YOUTH ACTIVITIES UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Subpart A--Standing Youth Committees
Sec.
681.100 What is a standing youth committee?
681.110 Who is included on a standing youth committee?
681.120 What does a standing youth committee do?
Subpart B--Eligibility for Youth Services
Sec.
681.200 Who is eligible for youth services?
681.210 Who is an ``out-of-school youth''?
681.220 Who is an ``in-school youth''?
681.230 What does ``school'' refer to in the ``not attending or
attending any school'' in the out-of-school and in-school
definitions?
681.240 When do local youth programs verify dropout status,
particular for youth attending alternative schools?
681.250 Who does the low-income eligibility requirement apply to?
681.260 How does the Department define ``high poverty area'' for the
purposes of the special rule for low-income youth in Workforce
Innovation and Opportunity Act?
681.270 May a local program use eligibility for free or reduced
price lunches under the National School Lunch Program as a
substitute for the income eligibility criteria under title I of the
Workforce Innovation and Opportunity Act?
681.280 Is a youth with a disability eligible for youth services
under the Act if their family income exceeds the income eligibility
criteria?
681.290 How does the Department define the ``basic skills
deficient'' criterion this part?
681.300 How does the Department define the ``requires additional
assistance to complete an educational program, or to secure and hold
employment'' criterion in this part?
681.310 Must youth participants enroll to participate in the youth
program?
Subpart C--Youth Program Design, Elements, and Parameters
Sec.
681.400 What is the process used to select eligible youth providers?
681.410 Does the requirement that a State and local area expend at
least 75 percent of youth funds to provide services to out-of-school
youth apply to all youth funds?
681.420 How must Local Boards design Workforce Innovation and
Opportunity Act youth programs?
681.430 May youth participate in both the Workforce Innovation and
Opportunity Act youth and adult programs concurrently, and how do
local program operators track concurrent enrollment in the Workforce
Innovation and Opportunity Act youth and adult programs?
681.440 How does a local youth program determine if an 18 to 24 year
old is enrolled in the Workforce Innovation and Opportunity Act
youth program or the Workforce Innovation and Opportunity Act adult
program?
681.450 For how long must a local Workforce Innovation and
Opportunity Act youth program serve a participant?
681.460 What services must local programs offer to youth
participants?
681.470 Does the Department require local programs to use WIOA funds
for each of the 14 program elements?
681.480 What is a pre-apprenticeship program?
681.490 What is adult mentoring?
681.500 What is financial literacy education?
681.510 What is comprehensive guidance and counseling?
681.520 What are leadership development opportunities?
681.530 What are positive social and civic behaviors?
681.540 What is occupational skills training?
681.550 Are Individual Training Accounts permitted for youth
participants?
681.560 What is entrepreneurial skills training and how is it
taught?
681.570 What are supportive services for youth?
681.580 What are follow-up services for youth?
681.590 What is the work experience priority?
681.600 What are work experiences?
681.610 How will local Workforce Innovation and Opportunity Act
youth programs track the work experience priority?
681.620 Does the Workforce Innovation and Opportunity Act require
Local Boards to offer summer employment opportunities in the local
youth program?
681.630 How are summer employment opportunities administered?
681.640 What does education offered concurrently with and in the
same context as workforce preparation activities and training for a
specific occupation or occupational cluster mean?
681.650 Does the Department allow incentive payments for youth
participants?
681.660 How can parents, youth, and other members of the community
get involved in the design and implementation of local youth
programs?
Subpart D--One-Stop Services to Youth
Sec.
681.700 What is the connection between the youth program and the
one-stop service delivery system?
681.710 Do Local Boards have the flexibility to offer services to
area youth who are not eligible under the youth program through the
one-stop centers?
Authority: Secs. 107, 121, 123, 129, 189, 503, Pub. L. 113-128,
128 Stat. 1425 (Jul. 22, 2014).
Subpart A--Standing Youth Committees
Sec. 681.100 What is a standing youth committee?
WIOA eliminates the requirement for Local Boards to establish a
youth council. However, the Local Board may choose to establish a
standing committee to provide information and to assist with planning,
operational, oversight, and other issues relating to the provision of
services to youth. If the Local Board does not designate a standing
youth committee, it retains responsibility for all aspects of youth
formula programs.
Sec. 681.110 Who is included on a standing youth committee?
(a) If a Local Board decides to form a standing youth committee,
the committee must include a member of the Local Board, who chairs the
committee, members of community-based organizations with a demonstrated
record of success in serving eligible youth and other individuals with
appropriate expertise
[[Page 20864]]
and experience who are not members of the Local Board (WIOA secs.
107(b)(4)(A) and (ii)).
(b) The committee should reflect the needs of the local area. The
committee members appointed for their experience and expertise may
bring their expertise to help the committee address the employment,
training education, human and supportive service needs of eligible
youth including out-of-school youth. Members may represent agencies
such as education, training, health, mental health, housing, public
assistance, and justice, or be representatives of philanthropic or
economic and community development organizations, and employers. The
committee may also include parents, participants, and youth. (WIOA sec.
129(c)(3)(C))
(c) A Local Board may designate an existing entity such as an
effective youth council as the standing youth committee if it fulfills
the requirements above in paragraph (a) of this section.
Sec. 681.120 What does a standing youth committee do?
Under the direction of the Local Board, a standing youth committee
may:
(a) Recommend policy direction to the Local Board for the design,
development, and implementation of programs that benefit all youth;
(b) Recommend the design of a comprehensive community workforce
development system to ensure a full range of services and opportunities
for all youth, including disconnected youth;
(c) Recommend ways to leverage resources and coordinate services
among schools, public programs, and community-based organizations
serving youth;
(d) Recommends ways to coordinate youth services and recommend
eligible youth service providers; and
(e) Provide on-going leadership and support for continuous quality
improvement for local youth programs;
(f) Assist with planning, operational, and other issues relating to
the provision of services to youth; and
(g) If so delegated by the Local Board after consultation with the
CEO, oversee eligible youth providers, as well as other youth program
oversight responsibilities.
Subpart B--Eligibility for Youth Services
Sec. 681.200 Who is eligible for youth services?
Both in-school youth (ISY) and out-of-school youth (OSY) are
eligible for youth services. (WIOA sec. 3(18))
Sec. 681.210 Who is an ``out-of-school youth''?
An out-of-school youth (OSY) is an individual who is:
(a) Not attending any school (as defined under State law);
(b) Not younger than 16 or older than age 24 at time of enrollment.
Because age eligibility is based on age at enrollment, participants may
continue to receive services beyond the age of 24 once they are
enrolled in the program; and
(c) One or more of the following:
(1) A school dropout;
(2) A youth who is within the age of compulsory school attendance,
but has not attended school for at least the most recent complete
school year calendar quarter. School year calendar quarter is based on
how a local school district defines its school year quarters;
(3) A recipient of a secondary school diploma or its recognized
equivalent who is a low-income individual and is either basic skills
deficient or an English language learner;
(4) An individual who is subject to the juvenile or adult justice
system;
(5) A homeless individual (as defined in sec. 41403(6) of the
Violence Against Women Act of 1994 (42 U.S.C. 14043e-2(6))), a homeless
child or youth (as defined in sec. 725(2) of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11434a(2))), a runaway, in foster
care or has aged out of the foster care system, a child eligible for
assistance under sec. 477 of the Social Security Act (42 U.S.C. 677),
or in an out-of-home placement;
(6) An individual who is pregnant or parenting;
(7) An individual with a disability;
(8) A low-income individual who requires additional assistance to
enter or complete an educational program or to secure or hold
employment. (WIOA secs. 3(46) and 129(a)(1)(B))
Sec. 681.220 Who is an ``in-school youth''?
An in-school youth (ISY) is an individual who is:
(a) Attending school (as defined by State law), including secondary
and post-secondary school;
(b) Not younger than age 14 or (unless an individual with a
disability who is attending school under State law) older than age 21
at time of enrollment. Because age eligibility is based on age at
enrollment, participants may continue to receive services beyond the
age of 21 once they are enrolled in the program;
(c) A low-income individual; and
(d) One or more of the following:
(1) Basic skills deficient;
(2) An English language learner;
(3) An offender;
(4) A homeless individual (as defined in sec. 41403(6) of the
Violence Against Women Act of 1994 (42 U.S.C. 14043e-2(6))), a homeless
child or youth (as defined in sec. 725(2) of the McKinney-Vento
Homeless Assistance Act (42 U.S.C. 11434a(2))), a runaway, in foster
care or has aged out of the foster care system, a child eligible for
assistance under sec. 477 of the Social Security Act (42 U.S.C. 677),
or in an out-of-home placement;
(5) An individual who is pregnant or parenting;
(6) An individual with a disability;
(7) An individual who requires additional assistance to enter or
complete an educational program or to secure or hold employment. (WIOA
secs. 3(27) and 129(a)(1)(C))
Sec. 681.230 What does ``school'' refer to in the ``not attending or
attending any school'' in the out-of-school and in-school definitions?
In general, the applicable State law for secondary and post-
secondary institutions defines ``school.'' However, for purposes of
WIOA, the Department does not consider providers of Adult Education
under title II of WIOA, YouthBuild programs, and Job Corps programs to
be schools. Therefore, WIOA youth programs may consider a youth to be
out-of-school youth for purposes of WIOA youth program eligibility if
they are attending Adult Education provided under title II of WIOA,
YouthBuild, or Job Corps.
Sec. 681.240 When do local youth programs verify dropout status,
particular for youth attending alternative schools?
Local WIOA youth programs must verify a youth's dropout status at
the time of WIOA youth program enrollment. A youth attending an
alternative school at the time of enrollment is not a dropout. States
must define ``alternative school'' in their State Plan. The definition
should be consistent with their State Education Agency definition, if
available. An individual who is out-of-school at the time of enrollment
and subsequently placed in an alternative school or any school, is an
out-of-school youth for the purposes of the 75 percent expenditure
requirement for out-of-school youth.
Sec. 681.250 Who does the low-income eligibility requirement apply
to?
(a) For OSY, only those youth who are the recipient of a secondary
school diploma or its recognized equivalent and are either basic skills
deficient or an English language learner and youth who require
additional assistance to enter or complete an educational program or to
[[Page 20865]]
secure or hold employment must be low-income. All other OSY meeting OSY
eligibility under Sec. 681.210(c)(1), (2) and (4) through (7) are not
required to be low-income. (WIOA secs. 129(a)(1)(iii)(I)-(II) and
129(a)(1)(iii)(IV)-(VII))
(b) All ISY must be low-income to meet the ISY eligibility
criteria, except those that fall under the low-income exception.
(c) WIOA allows a low-income exception where five percent of all
WIOA youth participants may be participants who ordinarily would be
required to be low-income for eligibility purposes and who meet all
other eligibility criteria for WIOA youth except the low-income
criteria. A program must calculate the five percent based on the
percent of all youth served by the program in the local area's WIOA
youth program in a given program year.
(d) In addition to the criteria in the definition of ``low-income
individual'' in WIOA sec. 3(36), a youth is low-income if he or she
receives or is eligible to receive a free or reduced price lunch under
the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 et
seq. or if she or her lives in a high-poverty area.
Sec. 681.260 How does the Department define ``high poverty area'' for
the purposes of the special rule for low-income youth in Workforce
Innovation and Opportunity Act?
A youth who lives in a high poverty area is automatically
considered to be a low-income individual. A high-poverty area is a
Census tract, a set of contiguous Census tracts, Indian Reservation,
tribal land, or Native Alaskan Village or county that has a poverty
rate of at least 30 percent as set every 5 years using American
Community Survey 5-Year data.
Sec. 681.270 May a local program use eligibility for free or reduced
price lunches under the National School Lunch Program as a substitute
for the income eligibility criteria under title I of the Workforce
Innovation and Opportunity Act?
Yes, WIOA sec. 3(36) defines a low-income individual to include an
individual who receives (or is eligible to receive) a free or reduced
price lunch under the Richard B. Russell National School Lunch Act.
Sec. 681.280 Is a youth with a disability eligible for youth services
under the Act if their family income exceeds the income eligibility
criteria?
Yes, for an individual with a disability, income level for
eligibility purposes is based on the individual's own income rather
than his or her family's income. WIOA sec. 3(36)(A)(vi) states that an
individual with a disability whose own income meets the low-income
definition in clause (ii) (income that does not exceed the higher of
the poverty line or 70 percent of the lower living standard income
level), but who is a member of a family whose income exceeds this
income requirement is eligible for youth services.
Sec. 681.290 How does the Department define the ``basic skills
deficient'' criterion in this part?
(a) As defined in Sec. 681.210(c)(3), a youth is ``basic skills
deficient'' if they:
(1) Have English reading, writing, or computing skills at or below
the 8th grade level on a generally accepted standardized test; or
(2) Are unable to compute or solve problems, or read, write, or
speak English at a level necessary to function on the job, in the
individual's family, or in society. (WIOA sec. 3(5))
(b) The State or Local Board must establish its policy on paragraph
(a)(2) of this section in its respective State or local plan.
(c) In assessing basic skills, local programs must use assessment
instruments that are valid and appropriate for the target population,
and must provide reasonable accommodation in the assessment process, if
necessary, for people with disabilities.
Sec. 681.300 How does the Department define the ``requires additional
assistance to complete an educational program, or to secure and hold
employment'' criterion in this part?
As defined in Sec. 681.200(c)(8), either the State or the local
level may establish definitions and eligibility documentation
requirements for the ``requires additional assistance to complete an
educational program, or to secure and hold employment'' criterion of
Sec. 681.200(c)(8). In cases where the State Board establishes State
policy on this criterion, the State Board must include the definition
in the State Plan. In cases where the State Board does not establish a
policy, the Local Board must establish a policy in their local plan if
using this criterion.
Sec. 681.310 Must youth participants enroll to participate in the
youth program?
(a) Yes, to participate in youth programs, participants must enroll
in the WIOA youth program.
(b) Enrollment in this case requires:
(1) The collection of information to support an eligibility
determination; and
(2) Participation in any of the fourteen WIOA youth program
elements.
Subpart C--Youth Program Design, Elements, and Parameters
Sec. 681.400 What is the process used to select eligible youth
providers?
(a) As provided in WIOA sec. 123, the Local Board must identify
eligible providers of youth workforce investment activities in the
local area by awarding grants or contracts on a competitive basis,
except as provided below in paragraph (a)(3) of this section, based on
the recommendation of the youth standing committee, if they choose to
establish a standing youth committee and assign it that function. If
such a committee is not established for the local area, this
responsibility falls to the Local Board.
(1) Local areas must include the criteria used to identify youth
providers in the State Plan (including such quality criteria
established by the Governor for a training program that leads to a
recognized post-secondary credential) taking into consideration the
ability of the provider to meet the performance accountability measures
based on primary indicators of performance for youth programs.
(2) Local areas must conduct a full and open competition to secure
youth service providers according to the Federal procurement guidelines
at 2 CFR parts 200 and 2900, in addition to applicable State and local
procurement laws.
(3) Where the Local Board determines there is an insufficient
number of eligible providers of youth workforce investment activities
in the local area, such as a rural area, the Local Board may award
grants or contracts on a sole source basis (WIOA sec. 123(b)).
(b) The requirement in WIOA sec. 123 that eligible providers of
youth services be selected by awarding a grant or contract on a
competitive basis does not apply to the design framework services when
these services are more appropriately provided by the grant recipient/
fiscal agent. Design framework services include intake, objective
assessments and the development of individual service strategy, case
management, and follow-up services.
Sec. 681.410 Does the requirement that a State and local area expend
at least 75 percent of youth funds to provide services to out-of-school
youth apply to all youth funds?
Yes. The 75 percent requirement applies to both statewide youth
activities funds and local youth funds with two exceptions.
(a) Only statewide funds spent on direct services to youth are
subject to the OSY expenditure requirement.
[[Page 20866]]
Funds spent on statewide youth activities that do not provide direct
services to youth, such as most of the required statewide youth
activities listed in WIOA sec. 129(b)(1), are not subject to the OSY
expenditure requirement. For example, administrative costs, monitoring,
and technical assistance are not subject to OSY expenditure
requirement; while funds spent on direct services to youth such as
statewide demonstration projects, are subject to the OSY expenditure
requirement.
(b) For a State that receives a small State minimum allotment under
WIOA sec. 127(b)(1)(C)(iv)(II) or WIOA sec. 132(b)(1)(B)(iv)(II), the
State may submit a request to the Secretary to decrease the percentage
to a percentage not less than 50 percent for a local area in the State,
and the Secretary may approve such a request for that program year, if
the State meets the following requirements:
(1) After an analysis of the in-school youth and out-of-school
youth populations in the local area, the State determines that the
local area will be unable to use at least 75 percent of the local area
WIOA youth funds to serve out-of-school youth due to a low number of
out-of-school youth; and
(2) The State submits to the Secretary, for the local area, a
request including a proposed percentage decreased to not less than 50
percent to provide workforce investment activities for out-of-school
youth.
(c) In the exercise of the discretion afforded by WIOA sec.
129(a)(4) the Secretary has determined that requests to decrease the
percentage of funds used to provide activities to OSY will not be
granted to States based on their having received 90 percent of the
allotment percentage for the preceding year. Therefore, when the
Secretary receives such a request from a State based on having received
90 percent of the allotment percentage for the preceding year, the
request will be denied without the Secretary exercising further
discretion.
(d) For local area funds, the administrative costs of carrying out
local workforce investment activities described in WIOA sec. 128(b)(4)
are not subject to the OSY expenditure requirement. All other local
area youth funds beyond the administrative costs are subject to the OSY
expenditure requirement.
Sec. 681.420 How must Local Boards design Workforce Innovation and
Opportunity Act youth programs?
(a) The design framework services of local youth programs must:
(1) Provide for an objective assessment of each youth participant
that meets the requirements of WIOA sec. 129(c)(1)(A), and includes a
review of the academic and occupational skill levels, as well as the
service needs, of each youth for the purpose of identifying appropriate
services and career pathways for participants and informing the
individual service strategy;
(2) Develop, and update as needed, an individual service strategy
for each youth participant that is directly linked to one or more
indicators of performance described in WIOA sec. 116(b)(2)(A)(ii), that
identifies appropriate career pathways that include education and
employment goals, that considers career planning and the results of the
objective assessment and that prescribes achievement objectives and
services for the participant; and
(3) Provides case management of youth participants, including
follow-up services.
(b) The local plan must describe the design framework for youth
programs in the local area, and how the fourteen program elements
required in Sec. 681.460 are to be made available within that
framework.
(c) Local Boards must ensure appropriate links to entities that
will foster the participation of eligible local area youth. Such links
may include connections to:
(1) Local area justice and law enforcement officials;
(2) Local public housing authorities;
(3) Local education agencies;
(4) Local human service agencies;
(5) WIOA title II adult education providers;
(6) Local disability-serving agencies and providers and health and
mental health providers;
(7) Job Corps representatives; and
(8) Representatives of other area youth initiatives, such as
YouthBuild, and including those that serve homeless youth and other
public and private youth initiatives.
(d) Local Boards must ensure that WIOA youth service providers meet
the referral requirements in WIOA sec. 129(c)(3)(A) for all youth
participants, including:
(1) Providing these participants with information about the full
array of applicable or appropriate services available through the Local
Board or other eligible providers, or one-stop partners; and
(2) Referring these participants to appropriate training and
educational programs that have the capacity to serve them either on a
sequential or concurrent basis.
(e) If a youth applies for enrollment in a program of workforce
investment activities and either does not meet the enrollment
requirements for that program or cannot be served by that program, the
eligible provider of that program must ensure that the youth is
referred for further assessment, if necessary, or referred to
appropriate programs to meet the skills and training needs of the
youth.
(f) In order to meet the basic skills and training needs of
applicants who do not meet the eligibility requirements of a particular
program or who cannot be served by the program, each youth provider
must ensure that these youth are referred:
(1) For further assessment, as necessary, and
(2) To appropriate programs, in accordance with paragraph (d)(2) of
this section. (WIOA sec. 129(c)(3)(B))
(g) Local Boards must ensure that parents, youth participants, and
other members of the community with experience relating to youth
programs are actively involved in both the design and implementation of
its youth programs. (WIOA sec. 129(c)(3)(C))
(h) The objective assessment required under paragraph (a)(1) of
this section or the individual service strategy required under
paragraph (a)(2) of this section is not required if the program
provider determines that it is appropriate to use a recent objective
assessment or individual service strategy that was developed under
another education or training program. (WIOA sec. 129(c)(1)(A))
(i) The Local Board may implement a pay-for-performance contract
strategy for program elements described at Sec. 681.460, for which the
Local Board may reserve and use not more than 10 percent of the total
funds allocated to the local area under WIOA sec. 128(b). For
additional rules on pay-for-performance contracts see Sec. 683.500.
Sec. 681.430 May youth participate in both the Workforce Innovation
and Opportunity Act youth and adult programs concurrently, and how do
local program operators track concurrent enrollment in the Workforce
Innovation and Opportunity Act youth and adult programs?
(a) Yes, individuals who meet the respective program eligibility
requirements may participate in adult and youth programs concurrently.
Such individuals must be eligible under the youth or adult eligibility
criteria applicable to the services received. Local program operators
may determine, for these individuals, the appropriate
[[Page 20867]]
level and balance of services under the youth and adult programs.
(b) Local program operators must identify and track the funding
streams which pay the costs of services provided to individuals who are
participating in youth and adult programs concurrently, and ensure no
duplication of services.
(c) Individuals who meet the respective program eligibility
requirements for WIOA youth title I and title II may participate in
title I youth and title II concurrently.
Sec. 681.440 How does a local youth program determine if an 18 to 24
year old is enrolled in the Workforce Innovation and Opportunity Act
youth program or the Workforce Innovation and Opportunity Act adult
program?
A local program should determine the appropriate program for the
participant based on the service needs of the participant and if the
participant is career-ready based on an objective assessment of their
occupational skills, prior work experience, employability, and
participants needs as required in WIOA sec. 129(c)(1)(A).
Sec. 681.450 For how long must a local Workforce Innovation and
Opportunity Act youth program serve a participant?
Local youth programs must provide service to a participant for the
amount of time necessary to ensure successful preparation to enter
post-secondary education and/or unsubsidized employment. While there is
no minimum or maximum time a youth can participate in the WIOA youth
program, programs must link participation to the individual service
strategy and not the timing of youth service provider contracts or
program years.
Sec. 681.460 What services must local programs offer to youth
participants?
(a) Local programs must make each of the following 14 services
available to youth participants (WIOA sec. 129(c)(2)):
(1) Tutoring, study skills training, instruction and evidence-based
dropout prevention and recovery strategies that lead to completion of
the requirements for a secondary school diploma or its recognized
equivalent (including a recognized certificate of attendance or similar
document for individuals with disabilities) or for a recognized post-
secondary credential;
(2) Alternative secondary school services, or dropout recovery
services, as appropriate;
(3) Paid and unpaid work experiences that have academic and
occupational education as a component of the work experience, which may
include the following types of work experiences:
(i) Summer employment opportunities and other employment
opportunities available throughout the school year;
(ii) Pre-apprenticeship programs;
(iii) Internships and job shadowing; and
(iv) On-the-job training opportunities;
(4) Occupational skill training, which includes priority
consideration for training programs that lead to recognized post-
secondary credentials that align with in-demand industry sectors or
occupations in the local area involved, if the Local Board determines
that the programs meet the quality criteria described in WIOA sec. 123;
(5) Education offered concurrently with and in the same context as
workforce preparation activities and training for a specific occupation
or occupational cluster;
(6) Leadership development opportunities, including community
service and peer-centered activities encouraging responsibility and
other positive social and civic behaviors;
(7) Supportive services, including the services listed in Sec.
681.570;
(8) Adult mentoring for a duration of at least 12 months, that may
occur both during and after program participation;
(9) Follow-up services for not less than 12 months after the
completion of participation, as provided in Sec. 681.580;
(10) Comprehensive guidance and counseling, which may include drug
and alcohol abuse counseling, as well as referrals to counseling, as
appropriate to the needs of the individual youth;
(11) Financial literacy education;
(12) Entrepreneurial skills training;
(13) Services that provide labor market and employment information
about in-demand industry sectors or occupations available in the local
area, such as career awareness, career counseling, and career
exploration services; and
(14) Activities that help youth prepare for and transition to post-
secondary education and training.
(b) Local programs have the discretion to determine what specific
program services a youth participant receives, based on each
participant's objective assessment and individual service strategy.
Local programs are not required to provide every program service to
each participant.
Sec. 681.470 Does the Department require local programs to use WIOA
funds for each of the 14 program elements?
No. The Department does not require local programs to use WIOA
youth funds for each of the program elements. Local programs may
leverage partner resources to provide some of the readily available
program elements. However, the local area must ensure that if a program
element is not funded with WIOA title I youth funds, the local program
has an agreement in place with a partner organization to ensure that
the program element will be offered. The Local Board must ensure that
the program element is closely connected and coordinated with the WIOA
youth program.
Sec. 681.480 What is a pre-apprenticeship program?
A pre-apprenticeship is a program or set of strategies designed to
prepare individuals to enter and succeed in a registered apprenticeship
program and has a documented partnership with at least one, if not
more, registered apprenticeship program(s).
Sec. 681.490 What is adult mentoring?
(a) Adult mentoring for youth must:
(1) Last at least 12 months and may take place both during the
program and following exit from the program;
(2) Be a formal relationship between a youth participant and an
adult mentor that includes structured activities where the mentor
offers guidance, support, and encouragement to develop the competence
and character of the mentee;
(3) Include a mentor who is an adult other than the assigned youth
case manager; and
(4) While group mentoring activities and mentoring through
electronic means are allowable as part of the mentoring activities, at
a minimum, the local youth program must match the youth with an
individual mentor with whom the youth interacts on a face-to-face
basis.
(b) Mentoring may include workplace mentoring where the local
program matches a youth participant with an employer or employee of a
company.
Sec. 681.500 What is financial literacy education?
The financial literacy education program element includes
activities which:
(a) Support the ability of participants to create budgets, initiate
checking and savings accounts at banks, and make informed financial
decisions;
(b) Support participants in learning how to effectively manage
spending, credit, and debt, including student loans, consumer credit,
and credit cards;
(c) Teach participants about the significance of credit reports and
credit scores; what their rights are regarding their credit and
financial information; how to determine the accuracy of a credit report
and how to correct inaccuracies; and how to improve or maintain good
credit;
[[Page 20868]]
(d) Support a participant's ability to understand, evaluate, and
compare financial products, services, and opportunities and to make
informed financial decisions;
(e) Educate participants about identity theft, ways to protect
themselves from identify theft, and how to resolve cases of identity
theft and in other ways understand their rights and protections related
to personal identity and financial data;
(f) Support activities that address the particular financial
literacy needs of non-English speakers, including providing the support
through the development and distribution of multilingual financial
literacy and education materials;
(g) Provide financial education that is age appropriate, timely,
and provides opportunities to put lessons into practice, such as by
access to safe and affordable financial products that enable money
management and savings; and
(h) Implement other approaches to help participants gain the
knowledge, skills, and confidence to make informed financial decisions
that enable them to attain greater financial health and stability by
using high quality, age-appropriate, and relevant strategies and
channels, including, where possible, timely and customized information,
guidance, tools, and instruction.
Sec. 681.510 What is comprehensive guidance and counseling?
Comprehensive guidance and counseling provides individualized
counseling to participants. This includes career and academic
counseling, drug and alcohol abuse counseling, mental health
counseling, and referral to partner programs, as appropriate. (WIOA
sec. 129(c)(1)(C)(J)) When referring participants to necessary
counseling that cannot be provided by the local youth program or its
service providers, the local youth program must coordinate with the
organization it refers to in order to ensure continuity of service.
Sec. 681.520 What are leadership development opportunities?
Leadership development opportunities are opportunities that
encourage responsibility, confidence, employability, self-determination
and other positive social behaviors such as:
(a) Exposure to post-secondary educational possibilities;
(b) Community and service learning projects;
(c) Peer-centered activities, including peer mentoring and
tutoring;
(d) Organizational and team work training, including team
leadership training;
(e) Training in decision-making, including determining priorities
and problem solving;
(f) Citizenship training, including life skills training such as
parenting and work behavior training;
(g) Civic engagement activities which promote the quality of life
in a community; and
(h) Other leadership activities that place youth in a leadership
role such as serving on youth leadership committees, such as a Standing
Youth Committee. (WIOA sec. 129(c)(2)(F))
Sec. 681.530 What are positive social and civic behaviors?
Positive social and civic behaviors are outcomes of leadership
opportunities, which are incorporated by local programs as part of
their menu of services. Positive social and civic behaviors focus on
areas that may include the following:
(a) Positive attitudinal development;
(b) Self-esteem building;
(c) Openness to work with individuals from diverse backgrounds;
(d) Maintaining healthy lifestyles, including being alcohol- and
drug-free;
(e) Maintaining positive social relationships with responsible
adults and peers, and contributing to the well-being of one's
community, including voting;
(f) Maintaining a commitment to learning and academic success;
(g) Avoiding delinquency;
(h) Postponing parenting and responsible parenting, including child
support education;
(i) Positive job attitudes and work skills; and
(j) Keeping informed in community affairs and current events.
Sec. 681.540 What is occupational skills training?
(a) The Department defines occupational skills training as an
organized program of study that provides specific vocational skills
that lead to proficiency in performing actual tasks and technical
functions required by certain occupational fields at entry,
intermediate, or advanced levels. Local areas must give priority
consideration to training programs that lead to recognized post-
secondary credentials that align with in-demand industry sectors or
occupations in the local area. Such training must:
(1) be outcome-oriented and focused on an occupational goal
specified in the individual service strategy;
(2) be of sufficient duration to impart the skills needed to meet
the occupational goal; and
(3) result in attainment of a recognized post-secondary credential.
(b) The chosen occupational skills training must meet the quality
standards in WIOA sec. 123.
Sec. 681.550 Are Individual Training Accounts permitted for youth
participants?
Yes. In order to enhance individual participant choice in their
education and training plans and provide flexibility to service
providers, the Department allows WIOA ITAs for out-of-school youth,
ages 18 to 24 using WIOA youth funds when appropriate.
Sec. 681.560 What is entrepreneurial skills training and how is it
taught?
Entrepreneurial skills training provides the basics of starting and
operating a small business.
(a) Such training must develop the skills associated with
entrepreneurship. Such skills include, but are not limited to, the
ability to:
(1) Take initiative;
(2) Creatively seek out and identify business opportunities;
(3) Develop budgets and forecast resource needs;
(4) Understand various options for acquiring capital and the trade-
offs associated with each option; and
(5) Communicate effectively and market oneself and one's ideas.
(b) Approaches to teaching youth entrepreneurial skills include,
but are not limited to, the following:
(1) Entrepreneurship education that provides an introduction to the
values and basics of starting and running a business. Entrepreneurship
education programs often guide youth through the development of a
business plan and may also include simulations of business start-up and
operation.
(2) Enterprise development which provides supports and services
that incubate and help youth develop their own businesses. Enterprise
development programs go beyond entrepreneurship education by helping
youth access small loans or grants that are needed to begin business
operation and by providing more individualized attention to the
development of viable business ideas.
(3) Experiential programs that provide youth with experience in the
day-to-day operation of a business. These programs may involve the
development of a youth-run business that young people participating in
the program work in and manage. Or, they may facilitate placement in
apprentice or internship positions with adult entrepreneurs in the
community.
Sec. 681.570 What are supportive services for youth?
Supportive services for youth, as defined in WIOA sec. 3(59), are
services
[[Page 20869]]
that enable an individual to participate in WIOA activities. These
services include, but are not limited to, the following:
(a) Linkages to community services;
(b) Assistance with transportation;
(c) Assistance with child care and dependent care;
(d) Assistance with housing;
(e) Needs-related payments;
(f) Assistance with educational testing;
(g) Reasonable accommodations for youth with disabilities;
(h) Referrals to health care; and
(i) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eye glasses and protective
eye gear.
Sec. 681.580 What are follow-up services for youth?
(a) Follow-up services are critical services provided following a
youth's exit from the program to help ensure the youth is successful in
employment and/or post-secondary education and training.
(b) Follow-up services for youth may include:
(1) The leadership development and supportive service activities
listed in Sec. Sec. 681.520 and 681.570;
(2) Regular contact with a youth participant's employer, including
assistance in addressing work-related problems that arise;
(3) Assistance in securing better paying jobs, career pathway
development, and further education or training;
(4) Work-related peer support groups;
(5) Adult mentoring; and/or
(6) Services necessary to ensure the success of youth participants
in employment and/or post-secondary education.
(c) All youth participants must receive some form of follow-up
services for a minimum duration of 12 months. Follow-up services may be
provided beyond 12 months at the State or Local Board's discretion. The
types of services provided and the duration of services must be
determined based on the needs of the individual and therefore, the type
and intensity of follow-up services may differ for each participant.
However, follow-up services must include more than only a contact
attempted or made for securing documentation in order to report a
performance outcome. (WIOA sec. 129(c)(2)(I))
Sec. 681.590 What is the work experience priority?
Local youth programs must expend not less than 20 percent of the
funds allocated to them to provide in-school youth and out-of-school
youth with paid and unpaid work experiences that fall under the
categories listed in Sec. 681.460(a)(3) and further defined in Sec.
681.600. (WIOA sec. 129(c)(4))
Sec. 681.600 What are work experiences?
(a) Work experiences are a planned, structured learning experience
that takes place in a workplace for a limited period of time. Work
experience may be paid or unpaid, as appropriate. A work experience may
take place in the private for-profit sector, the non-profit sector, or
the public sector. Labor standards apply in any work experience where
an employee/employer relationship, as defined by the Fair Labor
Standards Act or applicable State law, exists. Work experiences provide
the youth participant with opportunities for career exploration and
skill development.
(b) Work experiences must include academic and occupational
education.
(c) The types of work experiences include the following categories:
(1) Summer employment opportunities and other employment
opportunities available throughout the school year;
(2) Pre-apprenticeship programs;
(3) Internships and job shadowing; and
(4) On-the-job training opportunities as defined in WIOA sec. 3(44)
and in Sec. 680.700.
Sec. 681.610 How will local Workforce Innovation and Opportunity Act
youth programs track the work experience priority?
Local WIOA youth programs must track program funds spent on paid
and unpaid work experiences, including wages and staff costs for the
development and management of work experiences, and report such
expenditures as part of the local WIOA youth financial reporting. The
percentage of funds spent on work experience is calculated based on the
total local area youth funds expended for work experience rather than
calculated separately for in-school and out-of-school youth. Local area
administrative costs are not subject to the 20 percent minimum work
experience expenditure requirement.
Sec. 681.620 Does the Workforce Innovation and Opportunity Act
require Local Boards to offer summer employment opportunities in the
local youth program?
No, WIOA does not require Local Boards to offer summer youth
employment opportunities as summer employment is no longer its own
program element under WIOA. However, WIOA does require Local Boards to
offer work experience opportunities using at least 20 percent of their
funding, which may include summer employment.
Sec. 681.630 How are summer employment opportunities administered?
Summer employment opportunities are a component of the work
experience program element. Providers administering the work experience
program element must be selected by the Local Board by awarding a grant
or contract on a competitive basis as described in WIOA sec. 123, based
on criteria contained in the State Plan. However, the summer employment
administrator does not need to select the employers who are providing
the employment opportunities through a competitive process.
Sec. 681.640 What does education offered concurrently with and in the
same context as workforce preparation activities and training for a
specific occupation or occupational cluster mean?
This program element reflects the integrated education and training
model and requires integrated education and training to occur
concurrently and contextually with workforce preparation activities and
workforce training. This program element describes how workforce
preparations activities, basic academic skills, and hands-on
occupational skills training are to be taught within the same time
frame and connected to training in a specific occupation, occupational
cluster, or career pathway. (WIOA sec. 129(c)(2)(E))
Sec. 681.650 Does the Department allow incentive payments for youth
participants?
Yes, the Department allows incentive payments to youth participants
for recognition and achievement directly tied to training activities
and work experiences. The local program must have written policies and
procedures in place governing the awarding of incentives and must
ensure that such incentive payments are:
(a) Tied to the goals of the specific program;
(b) Outlined in writing before the commencement of the program that
may provide incentive payments;
(c) Align with the local program's organizational policies; and
(d) Accord with the requirements contained in 2 CFR 200.
Sec. 681.660 How can parents, youth, and other members of the
community get involved in the design and implementation of local youth
programs?
Local Boards and programs must provide opportunities for parents,
participants, and other members of the
[[Page 20870]]
community with experience working with youth to be involved in the
design and implementation of youth programs. Parents, youth
participants, and other members of the community can get involved in a
number of ways including serving on youth standing committees, if they
exist and they are appointed by the Local Board. They can also get
involved by serving as mentors, serving as tutors, and providing input
into the design and implementation of other program design elements.
Local Boards must also make opportunities available to successful
participants to volunteer to help participants as mentors, tutors or in
other activities.
Subpart D--One-Stop Services to Youth
Sec. 681.700 What is the connection between the youth program and the
one-stop service delivery system?
(a) WIOA sec. 121(b)(1)(B)(i) requires that the youth program
function as a required one-stop partner and fulfill the roles and
responsibilities of a one-stop partner described in WIOA sec.
121(b)(1)(A).
(b) In addition to the provisions of 20 CFR part 678, connections
between the youth program and the one-stop system may include those
that facilitate:
(1) The coordination and provision of youth activities;
(2) Linkages to the job market and employers;
(3) Access for eligible youth to the information and services
required in Sec. 681.460;
(4) Services for non-eligible youth such as basic labor exchange
services, other self-service activities such as job searches, career
exploration, use of career center resources, and referral as
appropriate; and
(5) Other activities described in WIOA secs. 129(b)-(c).
(c) Local Boards must either collocate WIOA youth program staff at
one-stop centers and/or ensure one-stop centers and staff are equipped
to advise youth in order to increase youth access to services and
connect youth to the program that best aligns with their needs.
Sec. 681.710 Do Local Boards have the flexibility to offer services
to area youth who are not eligible under the youth program through the
one-stop centers?
Yes. However, Local Boards must ensure one-stop centers fund
services for non-eligible youth through programs authorized to provide
services to such youth. For example, one-stop centers may provide basic
labor exchange services under the Wagner-Peyser Act to any youth.
0
9. Add part 682 to read as follows:
PART 682--STATEWIDE ACTIVITIES UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Subpart A--General Description
Sec.
682.100 What are the statewide employment and training activities
under title I of the Workforce Innovation and Opportunity Act?
682.110 How are statewide employment and training activities funded?
Subpart B--Required and Allowable Statewide Employment and Training
Activities
682.200 What are required statewide employment and training
activities?
682.210 What are allowable statewide employment and training
activities?
682.220 What are States' responsibilities in regard to evaluations
and research?
Subpart C--Rapid Response Activities
682.300 What is rapid response, and what is its purpose?
682.310 Who is responsible for carrying out rapid response
activities?
682.320 What is layoff aversion, and what are appropriate layoff
aversion strategies and activities?
682.330 What rapid response activities are required?
682.340 May other activities be undertaken as part of rapid
response?
682.350 What is meant by ``provision of additional assistance'' in
the Workforce Innovation and Opportunity Act?
682.360 What rapid response, layoff aversion, or other information
will States be required to report to the Employment and Training
Administration?
682.370 What are ``allowable statewide activities'' for which rapid
response funds remaining unspent at the end of the year of
obligation may be recaptured by the State?
Authority: Secs. 129, 134, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart A--General Description
Sec. 682.100 What are the statewide employment and training
activities under title I of the Workforce Innovation and Opportunity
Act?
Statewide employment and training activities include those
activities for adults and dislocated workers, as described in WIOA sec.
134(a), and statewide youth activities, as described in WIOA sec.
129(b). They include both required and allowable activities. In
accordance with the requirements of this subpart, the State may develop
policies and strategies for use of statewide employment and training
funds. Descriptions of these policies and strategies must be included
in the State Plan.
Sec. 682.110 How are statewide employment and training activities
funded?
(a) Except for the statewide rapid response activities described in
paragraph (c) of this section, statewide employment and training
activities are supported by funds reserved by the Governor under WIOA
sec. 128(a).
(b) Funds reserved by the Governor for statewide workforce
investment activities may be combined and used for any of the
activities authorized in WIOA sec. 129(b), 134(a)(2)(B), or
134(a)(3)(A) (which are described in Sec. Sec. 682.200 and 682.210),
regardless of whether the funds were allotted through the youth, adult,
or dislocated worker funding streams.
(c) Funds for statewide rapid response activities are reserved
under WIOA sec. 133(a)(2) and may be used to provide the activities
authorized at WIOA sec. 134(a)(2)(A) (which are described in Sec. Sec.
682.310 through 682.330). (WIOA secs. 129(b), 133(a)(2), 134(a)(2)(A),
and 134(a)(3)(A))
Subpart B--Required and Allowable Statewide Employment and Training
Activities
Sec. 682.200 What are required statewide employment and training
activities?
Required statewide employment and training activities are:
(a) Required rapid response activities, as described in Sec.
682.310;
(b) Disseminating by various means, as provided by WIOA sec.
134(a)(2)(B):
(1) The State list of eligible providers of training services
(including those providing non-traditional training services), for
adults and dislocated workers and eligible providers of apprenticeship
programs;
(2) Information identifying eligible providers of on-the-job
training (OJT), customized training, incumbent worker training (see
Sec. 680.780 of this chapter), internships, paid or unpaid work
experience opportunities (see Sec. 680.170 of this chapter) and
transitional jobs (see Sec. 680.830 of this chapter);
(3) Information on effective outreach and partnerships with
business;
(4) Information on effective service delivery strategies and
promising practices to serve workers and job seekers;
(5) Performance information and information on the cost of
attendance, including tuition and fees as described in Sec. 680.490 of
this chapter;
(6) A list of eligible providers of youth activities as described
in WIOA sec. 123; and
(7) Information of physical and programmatic accessibility for
individuals with disabilities. (WIOA sec. 134(a)(2)(b)(v)(VI)).
[[Page 20871]]
(c) States must assure that the information listed in paragraphs
(b)(1) through (b)(7) of this section is widely available;
(d) Conducting evaluations (WIOA sec. 134(a)(2)(B)(vi)) under WIOA
sec. 116(e), consistent with the requirements found under Sec.
682.220.
(e) Providing technical assistance to local areas in carrying out
activities described in the State Plan, including coordination and
alignment of data systems used to carry out the requirements of this
Act;
(f) Assisting local areas, one-stop operators, one-stop partners,
and eligible providers, including development of staff, including staff
training to provide opportunities for individuals with barriers to
employment to enter in-demand industry sectors or occupations and
nontraditional occupations, and the development of exemplary program
activities. (WIOA sec. 134(a)(2)(B)(IV));
(g) Assisting local areas for carrying out the regional planning
and service delivery efforts required under WIOA sec. 106(c);
(h) Assisting local areas by providing information on and support
for the effective development, convening, and implementation of
industry and sector partnerships;
(i) Providing technical assistance to local areas that fail to meet
local performance accountability measure described in 20 CFR 677.205
(WIOA secs. 129(b)(2)(E) and 134(a)(2)(B)(IV));
(j) Carrying out monitoring and oversight of activities for
services to youth, adults, and dislocated workers under WIOA title I,
and which may include a review comparing the services provided to male
and female youth (WIOA sec. 129(b)(1)(E));
(k) Providing additional assistance to local areas that have a high
concentration of eligible youth (WIOA sec. 129(b)(1)(F)); and
(l) Operating a fiscal and management accountability information
system, based on guidelines established by the Secretary (WIOA secs.
129(b)(1)((D)), 134(a)(2)(B)(iii)).
Sec. 682.210 What are allowable statewide employment and training
activities?
Allowable statewide employment and training activities include:
(a) State administration of the adult, dislocated worker and youth
workforce investment activities, consistent with the five percent
administrative cost limitation at WIOA sec. 134(a)(3)(B) and Sec.
683.205(a)(1) of this chapter;
(b) Developing and implementing innovative programs and strategies
designed to meet the needs of all employers (including small employers)
in the State, including the programs and strategies referenced in WIOA
sec. 134(a)(3)(A)(i);
(c) Developing strategies for serving individuals with barriers to
employment, and for coordinating programs and services among one-stop
partners (WIOA sec. 134(a)(3)(A)(ii));
(d) Development or identification of education and training
programs that have the characteristics referenced in WIOA sec.
134(a)(3)(A)(iii);
(e) Implementing programs to increase the number of individuals
training for and placed in non-traditional employment (WIOA sec.
134(a)(3)(A)(iv));
(f) Conducting research and demonstrations related to meeting the
employment and education needs of youth, adults and dislocated workers
(WIOA sec. 134(a)(3)(A)(ix));
(g) Supporting the development of alternative, evidence-based
programs, and other activities that enhance the choices available to
eligible youth and which encourage youth to reenter and complete
secondary education, enroll in post-secondary education and advanced
training, progress through a career pathway, and enter into
unsubsidized employment that leads to economic self-sufficiency (WIOA
sec. 129(b)(2)(B);
(h) Supporting the provision of career services in the one-stop
delivery system in the State as described in Sec. 678.430 and WIOA
secs. 129(b)(2)(C) and 134(c)(2);
(i) Supporting financial literacy activities as described in Sec.
681.500 and WIOA sec. 129(b)(2)(D);
(j) Providing incentive grants to local areas for performance by
the local areas on local performance accountability measures (WIOA sec.
134(a)(3)(A)(xi));
(k) Providing technical assistance to Local Boards, chief elected
officials, one-stop operators, one-stop partners, and eligible
providers in local areas on the development of exemplary program
activities and on the provision of technology to facilitate remote
access to services provided through the one-stop delivery system in the
State (WIOA sec. 129(b)(2)(E));
(l) Providing technical assistance to local areas that are
implementing WIOA Pay-for-Performance contract strategies and
conducting evaluations of such strategies. Technical assistance may
include providing assistance with data collections, meeting data entry
requirements, and identifying level of performance (WIOA sec.
134(a)(3)(A)(xiv));
(m) Carrying out activities to facilitate remote access to training
services provided through the one-stop delivery system (WIOA sec.
134(a)(3)(A)(v));
(n) Activities that include:
(1) Activities to improve coordination of workforce investment
activities, with economic development activities (WIOA sec.
134(a)(3)(A)(viii)(I)); and
(2) Activities to improve coordination of employment and training
activities with child support services and activities, cooperative
extension programs carried out by the Department of Agriculture,
programs carried out by local areas for individuals with disabilities
(including the programs identified in WIOA sec.
134(a)(3)(A)(viii)(II)(cc)), adult education and literacy activities
including those provided by public libraries, activities in the
correction systems to assist ex-offenders in reentering the workforce
and financial literacy activities (WIOA sec. 134(a)(3)(A)(viii)(II));
and
(3) Developing and disseminating workforce and labor market
information (WIOA sec. 134(a)(3)(A)(viii)(III)).
(o) Implementation of promising practices for workers and
businesses as described in WIOA sec. 134(a)(3)(A)(x);
(p) Adopting, calculating, or commissioning for approval an
economic self-sufficiency standard for the State that specifies the
income needs of families, by family size, the number and ages of
children in the family, and sub-State geographical considerations (WIOA
sec. 134(a)(3)(A)(xii));
(q) Developing and disseminating common intake procedures and
related items, including registration processes, across core and
partner programs (WIOA sec. 134(A)(3)(A)(xiii)); and
(r) Coordinating activities with the child welfare system to
facilitate provision of services for children and youth who are
eligible for assistance under sec. 477 of the Social Security Act (WIOA
sec. 134(a)(3)(A)(vii)).
Sec. 682.220 What are States' responsibilities in regard to
evaluations and research?
(a)(1) As required by Sec. 682.200(d), States must use funds
reserved by the Governor for statewide activities to conduct
evaluations of activities under the WIOA title I core programs, in
order to promote continuous improvement; test innovative services and
strategies, and achieve high levels of performance and outcomes;
(2) States may use the funds reserved by the Governor for statewide
activities (under Sec. 682.210(f)), to conduct research and
demonstration projects relating to the education and employment needs
of youth, adults, and dislocated worker programs;
[[Page 20872]]
(3) States may use funds from any WIOA title II-IV core program to
conduct evaluations and other research, as determined through the
processes associated with paragraph (b)(1) of this section;
(b) Evaluations and research projects funded in whole or in part
with WIOA title I funds must:
(1) Be coordinated with and designed in conjunction with State and
Local Boards and with State agencies responsible for the administration
of all core programs;
(2) When appropriate, include analysis of customer feedback and
outcome and process measures in the statewide workforce development
system;
(3) Use designs that employ the most rigorous analytical and
statistical methods that are reasonably feasible, such as the use of
control groups; and
(4) To the extent feasible, be coordinated with the evaluations
provided for by the Secretary of Labor and the Secretary of Education
under WIOA sec. 169 (regarding title I programs and other employment-
related programs), WIOA sec. 242(c)(2)(D) (regarding Adult Education),
secs. 12(a)(5), 14, and 107 of the Rehabilitation Act of 1973 (29
U.S.C. 709(a)(5), 711, 727) [applied with respect to programs carried
out under title I of that Act (29 U.S.C. 720 et seq.)] and the
investigations provided by the Secretary of Labor under sec. 10(b) of
the Wagner-Peyser Act [29 U.S.C. 49i(b)].
(c) States must annually prepare, submit to the State Board and
Local Boards in the State, and make available to the public (including
by electronic means), reports containing the results of the evaluations
and other research described in paragraph (a) of this section.
(d) States must cooperate, to the extent practicable, in
evaluations and related research projects conducted by the Secretaries
of Labor and Education or their agents under sec. 116(e)(4) of WIOA.
Such cooperation must, at a minimum, meet the following requirements:
(1) The timely provision of:
(i) Data, in accordance with appropriate privacy protections
established by the Secretary of Labor;
(ii) Responses to surveys;
(iii) Site visits; and
(iv) Data and survey responses from local subgrantees and State and
Local Boards, and assuring that subgrantees and boards allow timely
site visits.
(2) Encouraging other one-stop partners at the local level to
cooperate in timely provision of data, survey responses and site visits
as listed in paragraphs (f)(1)(a)-(c) of this section.
(3) If a State determines that timely cooperation in data provision
as described in paragraph (d)(1) of this section is not practicable,
the Governor must inform the Secretary in writing and explain the
reasons why it is not practicable. In such circumstances, the State
must cooperate with the Department in developing a plan or strategy to
mitigate or overcome the problems preventing timely provision of data,
survey responses, and site visits.
(e) States may use or combine funds, consistent with Federal and
State law, regulation and guidance, from other public or private
sources, to conduct evaluations, research, and demonstration projects
relating to activities under the WIOA title I-IV core programs.
Subpart C--Rapid Response Activities
Sec. 682.300 What is rapid response, and what is its purpose?
(a) Rapid response is described in Sec. Sec. 682.310 through
682.370, and encompasses the strategies and activities necessary to:
(1) Plan for and respond to as quickly as possible following
either:
(i) An announcement of a closure or layoff; or,
(ii) Mass job dislocation resulting from a natural or other
disaster; and
(2) Deliver services to enable dislocated workers to transition to
new employment as quickly as possible.
(b) The purpose of rapid response is to promote economic recovery
and vitality by developing an ongoing, comprehensive approach to
identifying, planning for, responding to layoffs and dislocations, and
preventing or minimizing their impacts on workers, businesses, and
communities. A successful rapid response system includes:
(1) Informational and direct reemployment services for workers,
including but not limited to information and support for filing
unemployment insurance claims, information on the impacts of layoff on
health coverage or other benefits, information on and referral to
career services, reemployment-focused workshops and services, and
training;
(2) Delivery of solutions to address the needs of businesses in
transition, provided across the business lifecycle (expansion and
contraction), including comprehensive business engagement and layoff
aversion strategies and activities designed to prevent or minimize the
duration of unemployment;
(3) Convening, brokering, and facilitating the connections,
networks and partners to ensure the ability to provide assistance to
dislocated workers and their families such as home heating assistance,
legal aid, and financial advice; and
(4) Strategic planning, data gathering and analysis designed to
anticipate, prepare for, and manage economic change.
Sec. 682.310 Who is responsible for carrying out rapid response
activities?
(a) Rapid response activities must be carried out by the State or
an entity designated by the State, in conjunction with the Local
Boards, chief elected officials, and other stakeholders, as provided by
WIOA secs. 133(a)(2) and 134(a)(2)(A);
(b) States must establish and maintain a rapid response unit to
carry out statewide rapid response activities and to oversee rapid
response activities undertaken by a designated State entity, Local
Board, or the chief elected officials for affected local areas, as
provided under WIOA sec. 134(a)(2)(A)(i)(I).
Sec. 682.320 What is layoff aversion, and what are appropriate layoff
aversion strategies and activities?
(a) Layoff aversion consists of strategies and activities,
including those provided in paragraph (b)(2) of this section and
Sec. Sec. 682.330 and 682.340, to prevent or minimize the duration of
unemployment resulting from layoffs;
(b) Layoff aversion activities may include:
(1) Providing assistance to employers in managing reductions in
force, which may include early identification of firms at risk of
layoffs, assessment of the needs of and options for at-risk firms, and
the delivery of services to address these needs, as provided by WIOA
sec. 134(d)(1)(A)(ix)(II)(cc);
(2) Ongoing engagement, partnership, and relationship-building
activities with businesses in the community, in order to create an
environment for successful layoff aversion efforts and to enable the
provision of assistance to dislocated workers in obtaining reemployment
as soon as possible;
(3) Funding feasibility studies to determine if a company's
operations may be sustained through a buyout or other means to avoid or
minimize layoffs;
(4) Developing and managing incumbent worker training programs or
other worker up skilling approaches;
(5) Connecting companies to:
(i) Short-time compensation or other programs designed to prevent
layoffs or
[[Page 20873]]
to quickly reemploy dislocated workers, available under Unemployment
Insurance programs;
(ii) Employer loan programs for employee skill upgrading; and
(iii) Other Federal, State and local resources as necessary to
address other business needs that cannot be funded with resources
provided under this title.
(6) Establishing linkages with economic development activities at
the Federal, State and local levels, including Federal Department of
Commerce programs and available State and local business retention and
expansion activities;
(7) Partnering or contracting with business-focused organizations
to assess risks to companies, propose strategies to address those
risks, implement services, and measure impacts of services delivered;
(8) Conducting analyses of the suppliers of an affected company to
assess their risks and vulnerabilities from a potential closing or
shift in production of their major customer;
(9) Engaging in proactive measures to identify opportunities for
potential economic transition and training needs in growing industry
sectors or expanding businesses; and
(10) Connecting businesses and workers to short-term, on-the-job,
or customized training programs and apprenticeships before or after
layoff to help facilitate rapid reemployment.
Sec. 682.330 What rapid response activities are required?
Rapid response activities must include:
(a) Layoff aversion activities as described in Sec. 682.320, as
applicable.
(b) Immediate and on-site contact with the employer,
representatives of the affected workers, and the local community,
including an assessment of and plans to address the:
(1) Layoff plans and schedule of the employer;
(2) Background and probable assistance needs of the affected
workers;
(3) Reemployment prospects for workers; and
(4) Available resources to meet the short and long-term assistance
needs of the affected workers.
(c) The provision of information and access to unemployment
compensation benefits and programs, such as Short-Time Compensation,
comprehensive one-stop system services, and employment and training
activities, including information on the Trade Adjustment Assistance
(TAA) program (19 U.S.C. 2271 et seq.), Pell Grants, the GI Bill, and
other resources;
(d) The delivery of other necessary services and resources
including workshops and classes, use of worker transition centers, and
job fairs, to support reemployment efforts for affected workers;
(e) Partnership with the Local Board(s) and chief elected
official(s) to ensure a coordinated response to the dislocation event
and, as needed, obtain access to State or local economic development
assistance. Such coordinated response may include the development of an
application for a national dislocated worker grant as provided under
WIOA secs. 101(38) and 134(a)(2)(A) and 20 CFR part 687;
(f) The provision of emergency assistance adapted to the particular
layoff or disaster;
(g) As appropriate, developing systems and processes for:
(1) Identifying and gathering information for early warning of
potential layoffs or opportunities for layoff aversion;
(2) Analyzing, and acting upon, data and information on
dislocations and other economic activity in the State, region, or local
area; and
(3) Tracking outcome and performance data and information related
to the activities of the rapid response program.
(h) Developing and maintaining partnerships with other appropriate
Federal, State and local agencies and officials, employer associations,
technical councils, other industry business councils, labor
organizations, and other public and private organizations, as
applicable, in order to:
(1) Conduct strategic planning activities to develop strategies for
addressing dislocation events and ensuring timely access to a broad
range of necessary assistance;
(2) Develop mechanisms for gathering and exchanging information and
data relating to potential dislocations, resources available, and the
customization of layoff aversion or rapid response activities, to
ensure the ability to provide rapid response services as early as
possible;
(i) Delivery of services to worker groups for which a petition for
Trade Adjustment Assistance has been filed;
(j) The provision of additional assistance, as described in Sec.
682.350, to local areas that experience disasters, layoffs, or other
dislocation events when such events exceed the capacity of the local
area to respond with existing resources as provided under WIOA sec.
134(a)(2)(A)(i)(II).
(k) Provision of guidance and financial assistance as appropriate,
in establishing a labor-management committee if voluntarily agreed to
by the employee's bargaining representative and management. The
committee may devise and oversee an implementation strategy that
responds to the reemployment needs of the workers. The assistance to
this committee may include:
(1) The provision of training and technical assistance to members
of the committee; and;
(2) Funding the operating costs of a committee to enable it to
provide advice and assistance in carrying out rapid response activities
and in the design and delivery of WIOA-authorized services to affected
workers.
Sec. 682.340 May other activities be undertaken as part of rapid
response?
(a) Yes, in order to conduct layoff aversion activities, or to
prepare for and respond to dislocation events, in addition to the
activities required under Sec. 682.330, a State or designated entity
may devise rapid response strategies or conduct activities that are
intended to minimize the negative impacts of dislocation on workers,
businesses, and communities and ensure rapid reemployment for workers
affected by layoffs.
(b) When circumstances allow, rapid response may provide guidance
and/or financial assistance to establish community transition teams to
assist the impacted community in organizing support for dislocated
workers and in meeting the basic needs of their families, including
heat, shelter, food, clothing and other necessities and services that
are beyond the resources and ability of the one-stop delivery system to
provide.
Sec. 682.350 What is meant by ``provision of additional assistance''
in the Workforce Innovation and Opportunity Act?
As stated in WIOA sec. 134(a)(2)(A)(ii), up to 25 percent of
dislocated worker funds may be reserved for rapid response activities.
Once the State has reserved adequate funds for rapid response
activities, such as those described in Sec. Sec. 682.310, 682.320, and
682.330, any of the remaining funds reserved may be provided to local
areas that experience increases of unemployment due to natural
disasters, layoffs or other events, for provision of direct career
services to participants if there are not adequate local funds
available to assist the dislocated workers. States may wish to
establish the policies or procedures governing the provision of
additional assistance as described in Sec. 682.330.
[[Page 20874]]
Sec. 682.360 What rapid response, layoff aversion, or other
information will States be required to report to the Employment and
Training Administration?
States must report information regarding the receipt of rapid
response services by individuals enrolled as dislocated workers on the
WIOA individual record.
Sec. 682.370 What are ``allowable statewide activities'' for which
rapid response funds remaining unspent at the end of the year of
obligation may be recaptured by the State?
WIOA permits a State to recapture rapid response funds, which
remain unspent at the end of the program year in which they were
obligated, to be used for allowable statewide activities, including
prioritizing the planning for and delivery of activities designed to
prevent job loss, increasing the rate of reemployment, building
relationships with businesses and other stakeholders, building and
maintaining early warning networks and systems, and otherwise
supporting efforts to allow long-term unemployed workers to return to
work.
0
10. Add part 683 to read as follows:
PART 683--ADMINISTRATIVE PROVISIONS UNDER TITLE I OF THE WORKFORCE
INNOVATION AND OPPORTUNITY ACT
Subpart A--Funding and Closeout
Sec.
683.100 When do Workforce Innovation and Opportunity Act grant funds
become available for obligation?
683.105 What award document authorizes the expenditure of funds
under title I of the Workforce Innovation and Opportunity Act and
the Wagner-Peyser Act?
683.110 What is the period of performance of Workforce Innovation
and Opportunity Act title I and Wagner-Peyser Act funds?
683.115 What planning information must a State submit in order to
receive a formula grant?
683.120 How are Workforce Innovation and Opportunity Act title I
formula funds allocated to local areas?
683.125 What minimum funding provisions apply to Workforce
Innovation and Opportunity Act adult, dislocated worker, and youth
allocations?
683.130 Does a Local Board have the authority to transfer funds
between the adult employment and training activities allocation and
the dislocated worker employment and training activities allocation?
683.135 What reallotment procedures does the Secretary use?
683.140 What reallocation procedures must the Governors use?
683.145 What merit review and risk assessment does the Department
conduct for Federal financial assistance awards made under the
Workforce Innovation and Opportunity Act title I, subtitle D?
683.150 What closeout requirements apply to grants funded with
Workforce Innovation and Opportunity Act title I and Wagner-Peyser
funds?
Subpart B--Administrative Rules, Costs, and Limitations
683.200 What general fiscal and administrative rules apply to the
use of Workforce Innovation and Opportunity Act title I and Wagner-
Peyser funds?
683.205 What administrative cost limitations apply to Workforce
Innovation and Opportunity Act title I grants?
683.210 What audit requirements apply to the use of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser funds?
683.215 What Workforce Innovation and Opportunity Act title I
functions and activities constitute the costs of administration
subject to the administrative cost limitation?
683.220 What are the internal controls requirements for recipients
and subrecipients of Workforce Innovation and Opportunity Act title
I and Wagner-Peyser funds?
683.225 What requirements relate to the enforcement of the Military
Selective Service Act?
683.230 Are there special rules that apply to veterans when income
is a factor in eligibility determinations?
683.235 May Workforce Innovation and Opportunity Act title I funds
be spent for construction?
683.240 What are the instructions for using real property with
Federal equity?
683.245 Are employment generating activities, or similar activities,
allowable under the Workforce Innovation and Opportunity Act title
I?
683.250 What other activities are prohibited under title I of the
Workforce Innovation and Opportunity Act?
683.255 What are the limitations related to religious activities of
title I of the Workforce Innovation and Opportunity Act?
683.260 What prohibitions apply to the use of Workforce Innovation
and Opportunity Act title I funds to encourage business relocation?
683.265 What procedures and sanctions apply to violations of this
part?
683.270 What safeguards are there to ensure that participants in
Workforce Innovation and Opportunity Act employment and training
activities do not displace other employees?
683.275 What wage and labor standards apply to participants in
activities under title I of the Workforce Innovation and Opportunity
Act?
683.280 What health and safety standards apply to the working
conditions of participants in activities under title I of the
Workforce Innovation and Opportunity Act?
683.285 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
683.290 Are there salary and bonus restrictions in place for the use
of title I and Wagner-Peyser funds?
683.295 Is earning of profit allowed under the Workforce Innovation
and Opportunity Act?
Subpart C--Reporting Requirements
683.300 What are the reporting requirements for programs funded
under the Workforce Innovation and Opportunity Act?
Subpart D--Oversight and Resolution of Findings
683.400 What are the Federal and State monitoring and oversight
responsibilities?
683.410 What are the oversight roles and responsibilities of
recipients and subrecipients of Federal financial assistance awarded
under title I of the Workforce Innovation and Opportunity Act and
Wagner-Peyser?
683.420 What procedures apply to the resolution of findings arising
from audits, investigations, monitoring, and oversight reviews?
683.430 How does the Secretary resolve investigative and monitoring
findings?
683.440 What is the Grant Officer resolution process?
Subpart E--Pay-for-Performance Contract Strategies
683.500 What is a Workforce Innovation and Opportunity Act Pay-for-
Performance contract strategy?
683.510 What is a Workforce Innovation and Opportunity Act Pay-for-
Performance contract?
683.520 What funds can be used to support Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies?
683.530 How long are funds used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies available?
683.540 What is the State's role in assisting local areas in using
Workforce Innovation and Opportunity Act Pay-for-Performance
contract strategies?
Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
683.600 What local area, State, and direct recipient grievance
procedures must be established?
683.610 What processes does the Secretary use to review grievances
and complaints of title I recipients?
683.620 How are complaints and reports of criminal fraud and abuse
addressed under the Workforce Innovation and Opportunity Act?
683.630 What additional appeal processes or systems must a State
have for the Workforce Innovation and Opportunity Act program?
683.640 What procedures apply to the appeals of non-designation of
local areas?
683.650 What procedures apply to the appeals of the Governor's
imposition of sanctions for substantial violations or performance
failures by a local area?
[[Page 20875]]
Subpart G--Sanctions, Corrective Actions, and Waiver of Liability
683.700 When can the Secretary impose sanctions and corrective
actions on recipients and subrecipients of title I Workforce
Innovation and Opportunity Act funds?
683.710 Who is responsible for funds provided under title I and
Wagner-Peyser?
683.720 What actions are required to address the failure of a local
area to comply with the applicable uniform administrative
provisions?
683.730 When can the Secretary waive the imposition of sanctions?
683.740 What is the procedure to handle a recipient of title I
Workforce Innovation and Opportunity Act funds' request for advance
approval of contemplated corrective actions?
683.750 What procedure must be used for administering the offset/
deduction provisions of the Workforce Innovation and Opportunity
Act?
Subpart H--Administrative Adjudication and Judicial Review
683.800 What actions of the Department may be appealed to the Office
of Administrative Law Judges?
683.810 What rules of procedure apply to hearings conducted under
this subpart?
683.820 What authority does the Administrative Law Judge have in
ordering relief as an outcome of an administrative hearing?
683.830 When will the Administrative Law Judge issue a decision?
683.840 Is there an alternative dispute resolution process that may
be used in place of an Office of Administrative Law Judges hearing?
683.850 Is there judicial review of a final order of the Secretary
issued under WIOA?
Authority: Secs. 102, 116, 121, 127, 128, 132, 133, 147, 167,
169, 171, 181, 185, 189, 195, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
Subpart A--Funding and Closeout
Sec. 683.100 When do Workforce Innovation and Opportunity Act grand
funds become available for obligation?
(a) Title I. Except as provided in paragraph (b) of this section or
in the applicable fiscal year appropriation, fiscal year appropriations
for programs and activities carried out under title I are available for
obligation on the basis of a program year. A program year begins on
July 1 in the fiscal year for which the appropriation is made and ends
on June 30 of the following year.
(b) Youth funds. Fiscal year appropriations for a program year's
youth activities, authorized under chapter 2, subtitle B, title I of
WIOA may be made available for obligation beginning on April 1 of the
fiscal year for which the appropriation is made.
(c) Wagner-Peyser Employment Service. Fiscal year appropriations
for activities authorized under sec. 6 of the Wagner Peyser Act, 29
U.S.C. 49e, are available for obligation on the basis of a program
year. A program year begins July 1 in the fiscal year for which the
appropriation is made and ends on June 30 of the following year.
(d) Discretionary Grants. Discretionary grant funds are available
for obligation in accordance with the fiscal year appropriation.
Sec. 683.105 What award document authorizes the expenditure of funds
under title I of the Workforce Innovation and Opportunity Act and the
Wagner-Peyser Act?
(a) Agreement. All WIOA title I and Wagner-Peyser funds are awarded
by grant or cooperative agreement, as defined under 2 CFR 200.51 and 2
CFR 200.24 respectively, or contract, as defined in 2 CFR 200.22. All
grant or cooperative agreements are awarded by the Grant Officer
through negotiation with the recipient (the non-Federal entity). The
agreement describes the terms and conditions applicable to the award of
WIOA title I and Wagner-Peyser funds and will conform to the
requirements of 2 CFR 200.210. Contracts are issued by the Contracting
Officer in compliance with the Federal Acquisition Regulations.
(b) Grant funds awarded to States and outlying areas. The Federal
funds allotted to the States and outlying areas each program year in
accordance with secs. 127(b) and 132(b) of WIOA will be obligated by
grant agreement.
(c) Native American programs. Awards of grants, contracts or
cooperative agreements for the WIOA Native American program will be
made to eligible entities on a competitive basis every 4 program years
for a 4-year period, in accordance with the provisions of sec. 166 of
WIOA.
(d) Migrant and seasonal farmworker programs. Awards of grants or
contracts for the Migrant and Seasonal Farmworker Program will be made
to eligible entities on a competitive basis every 4 program years for a
4-year period, in accordance with the provisions of sec. 167 of WIOA.
(e) Awards for evaluation and research under sec. 169 of WIOA. (1)
Awards of grants, contracts or cooperative agreements will be made to
eligible entities for programs or activities authorized under WIOA sec.
169. These funds are for:
(i) Evaluations;
(ii) Research;
(iii) Studies;
(iv) Multi-State projects; and
(v) Dislocated worker projects.
(2) Contracts and grants under paragraphs (e)(1)(ii) through (iv)
of this section in amounts that exceed $100,000 will be awarded on a
competitive basis, except that a noncompetitive award may be made in
the case of a project that is funded jointly with other public or
private sector entities that provide a substantial portion of the
assistance under the grant or contract for the project.
(3) Grants or contracts for carrying out projects in paragraphs
(e)(1)(ii) through (iv) of this section may not be awarded on a
noncompetitive basis to the same organization for more than 3
consecutive years.
(4) Entities with nationally recognized expertise in the methods,
techniques and knowledge of workforce investment activities will be
provided priority in awarding contracts or grants for the projects
under paragraphs (e)(1)(ii) through (iv) of this section. The duration
of such projects will be specified in the grant or contract agreement.
(5) A peer review process will be used to review and evaluate
projects under this paragraph (e) for grants that exceed $500,000, and
to designate exemplary and promising programs.
(f) Termination. Each grant, cooperative agreement, or contract
terminates as indicated in the terms of the agreement or when the
period of fund availability has expired. The grant must be closed in
accordance with the closeout provisions at 2 CFR 200.343 and 2 CFR 2900
as applicable.
Sec. 683.110 What is the period of performance of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser Act funds?
(a) The statutory period of availability for expenditure for WIOA
title I grants will be established as the period of performance for
such grants unless otherwise provided in the grant agreement or
cooperative agreement. All funds should be fully expended by the
expiration of the period of performance or they risk losing their
availability. Unless otherwise authorized in a grant or cooperative
agreement or subsequent modification, recipients should expend funds
with the shortest period of availability first.
(b) Grant funds expended by States. Funds allotted to States under
WIOA secs. 127(b) and 132(b) for any program year are available for
expenditure by the State receiving the funds only during that program
year and the 2 succeeding program years as identified in Sec. 683.100.
(c) Grant funds expended by local areas as defined in WIOA sec.
106. (1)(i)
[[Page 20876]]
Funds allocated by a State to a local area under WIOA secs. 128(b) and
133(b), for any program year are available for expenditure only during
that program year and the succeeding program year;
(ii) Pay for performance exception. Funds used to carry out pay-
for-performance contract strategies will remain available until
expended in accordance with WIOA sec. 189(g)(2)(B).
(2) Funds which are not expended by a local area(s) in the 2-year
period described in paragraph (c)(1)(i) of this section, must be
returned to the State. Funds so returned are available for expenditure
by State and local recipients and subrecipients only during the third
program year of availability in accordance with WIOA secs. 128(c) and
132(c). These funds are available for only the following purposes:
(i) For statewide projects, or
(ii) For distribution to local areas which had fully expended their
allocation of funds for the same program year within the 2-year period.
(d) Native American programs. Funds awarded by the Department under
WIOA sec. 166(c) are available for expenditure for the period
identified in the grant or contract award document, which will not
exceed 4 years.
(e) Migrant and seasonal farmworker programs. Funds awarded by the
Department under WIOA sec. 167 are available for expenditure for the
period identified in the grant award document, which will not exceed 4
years.
(f) Evaluations and research. Funds awarded by the Department under
WIOA sec. 169 are available for expenditure for any program or activity
authorized under sec. 169 of WIOA and will remain available until
expended or as specified in the terms and conditions of award.
(g) Other programs under title I of WIOA, including secs. 170 and
171, and all other grants, contracts and cooperative agreements. Funds
are available for expenditure for a period of performance identified in
the grant or contract agreement.
(h) Wagner-Peyser. Funds allotted to States for grants under secs.
3 and 15 of the Wagner-Peyser Act for any program year are available
for expenditure by the State receiving the funds only during that
program year and the 2 succeeding program years. The program year
begins on July 1 of the fiscal year for which the appropriation is
made.
Sec. 683.115 What planning information must a State submit in order
to receive a formula grant?
Each State seeking financial assistance under subtitle B, chapter 2
(youth) or chapter 3 (adults and dislocated workers), of title I of
WIOA, or under the Wagner-Peyser Act must submit a Unified State Plan,
under sec. 102 of WIOA or a Combined State Plan under WIOA sec. 103.
The requirements for the plan content and the plan review process are
described in sec. 102 of WIOA, sec. 8 of Wagner-Peyser Act, and 20 CFR
676.100 through 676.135 and 20 CFR 652.211 through 652.214.
Sec. 683.120 How are Workforce Innovation and Opportunity Act title I
formula funds allocated to local areas?
(a) General. The Governor must allocate WIOA formula funds allotted
for services to youth, adults and dislocated workers in accordance with
secs. 128 and 133 of WIOA and this section.
(1) State Boards must assist Governors in the development of any
youth or adult discretionary within-State allocation formulas. (WIOA
secs. 128(b)(3) and 133(b)(3)).
(2) Within-State allocations must be made:
(i) In accordance with the allocation formulas contained in secs.
128(b) and 133(b) of WIOA and in the State Plan, and
(ii) After consultation with chief elected officials and Local
Boards in each of the local areas.
(iii) In accordance with sec. 182(e) of WIOA, and must be made
available to local areas not later than 30 days after the date funds
are made available to the State or 7 days after the date the local plan
for the area is approved, whichever is later.
(b) State reserve. Of the WIOA formula funds allotted for services
to youth, adults and dislocated workers, the Governor must reserve not
more than 15 percent of the funds from each of these sources to carry
out statewide activities. Funds reserved under this paragraph may be
combined and spent on statewide activities under secs. 129(b) and
134(a) of WIOA and statewide employment and training activities, for
adults and dislocated workers, and youth activities, as described in 20
CFR 682.200 and 682.210, without regard to the funding source of the
reserved funds.
(c) Youth allocation formula. (1) Unless the Governor elects to
distribute funds in accordance with the discretionary allocation
formula described in paragraph (c)(2) of this section, the remainder of
youth funds not reserved under paragraph (b) of this section must be
allocated:
(i) 33\1/3\ percent on the basis of the relative number of
unemployed individuals in areas of substantial unemployment in each
local area, compared to the total number of unemployed individuals in
all areas of substantial unemployment in the State;
(ii) 33\1/3\ percent on the basis of the relative excess number of
unemployed individuals in each local area, compared to the total excess
number of unemployed individuals in the State; and
(iii) 33\1/3\ percent on the basis of the relative number of
disadvantaged youth in each local area, compared to the total number of
disadvantaged youth in the State except for local areas as described in
sec. 107(c)(1)(C) of WIOA where the allotment must be based on the
greater of either the number of individuals aged 16 to 21 in families
with an income below the low-income level for the area or the number of
disadvantaged youth in the area.
(2) Discretionary youth allocation formula. In lieu of making the
formula allocation described in paragraph (c)(1) of this section, the
State may allocate youth funds under a discretionary formula. Under
this discretionary formula, the State must allocate a minimum of 70
percent of youth funds not reserved under paragraph (b) of this section
on the basis of the formula in paragraph (c)(1) of this section, and
may allocate up to 30 percent on the basis of a formula that:
(i) Incorporates additional factors (other than the factors
described in paragraph (c)(1) of this section) relating to:
(A) Excess youth poverty in urban, rural and suburban local areas;
and
(B) Excess unemployment above the State average in urban, rural and
suburban local areas; and
(ii) Was developed by the State Board and approved by the Secretary
of Labor as part of the State Plan.
(d) Adult allocation formula. (1) Unless the Governor elects to
distribute funds in accordance with the discretionary allocation
formula described in paragraph (d)(2) of this section, the remainder of
adult funds not reserved under paragraph (b) of this section must be
allocated:
(i) 33\1/3\ percent on the basis of the relative number of
unemployed individuals in areas of substantial unemployment in each
local area, compared to the total number of unemployed individuals in
areas of substantial unemployment in the State;
(ii) 33\1/3\ percent on the basis of the relative excess number of
unemployed individuals in each local area, compared to the total excess
number of unemployed individuals in the State; and
(iii) 33\1/3\ percent on the basis of the relative number of
disadvantaged adults
[[Page 20877]]
in each local area, compared to the total number of disadvantaged
adults in the State. Except for local areas as described in sec.
107(c)(1)(C) of WIOA where the allotment must be based on the higher of
either the number of adults with an income below the low-income level
for the area or the number of disadvantaged adults in the area.
(2) Discretionary adult allocation formula. In lieu of making the
formula allocation described in paragraph (d)(1) of this section, the
State may allocate adult funds under a discretionary formula, Under
this discretionary formula, the State must allocate a minimum of 70
percent of adult funds not reserved under paragraph (b) of this section
on the basis of the formula in paragraph (d)(1), and may allocate up to
30 percent on the basis of a formula that:
(i) Incorporates additional factors (other than the factors
described in paragraph (d)(1) of this section) relating to:
(A) Excess poverty in urban, rural and suburban local areas; and
(B) Excess unemployment above the State average in urban, rural and
suburban local areas; and
(ii) Was developed by the State Board and approved by the Secretary
of Labor as part of the State Plan.
(e) Dislocated worker allocation formula. (1) The remainder of
dislocated worker funds not reserved under paragraph (b) of this
section must be allocated on the basis of a formula prescribed by the
Governor that distributes funds in a manner that addresses the State's
dislocated worker needs. Funds so distributed must not be less than 60
percent of the State's formula allotment.
(2) The Governor's dislocated worker formula must use the most
appropriate information available to the Governor, including
information on:
(i) Insured unemployment data,
(ii) Unemployment concentrations,
(iii) Plant closings and mass layoff data,
(iv) Declining industries data,
(v) Farmer-rancher economic hardship data, and
(vi) Long-term unemployment data.
(3) The Governor may not amend the dislocated worker formula more
than once for any program year.
(f) Rapid response. (1) Of the WIOA formula funds allotted for
services to dislocated workers in sec. 132(b)(2)(B) of WIOA, the
Governor must reserve not more than 25 percent of the funds for
statewide rapid response activities described in WIOA sec. 134(a)(2)(A)
and 20 CFR 682.300 through 682.370.
(2) Unobligated funds. Funds reserved by a Governor for rapid
response activities under sec. 133(a)(2) of WIOA, and sec. 133(a)(2) of
the Workforce Investment Act (as in effect on the day before the date
of enactment of WIOA), to carry out sec. 134(a)(2)(A) of WIOA that
remain unobligated after the first program year for which the funds
were allotted, may be used by the Governor to carry out statewide
activities authorized under paragraph (b) of this section and
Sec. Sec. 682.200 and 682.210.
(g) Special Rule. For the purpose of the formula in paragraphs
(c)(1) and (d)(1) of this section, the State must, as appropriate and
to the extent practicable, exclude college students and members of the
Armed Forces from the determination of the number of disadvantaged
youth and disadvantaged adults.
Sec. 683.125 What minimum funding provisions apply to Workforce
Innovation and Opportunity Act adult, dislocated worker, and youth
allocations?
(a) For funding authorized by secs. 128(b)(2)(ii), 133(b)(ii), and
133(b)(2)(B)(iii) of WIOA, a local area must not receive an allocation
percentage for fiscal year 2016 or subsequent fiscal year that is less
than 90 percent of the average allocation percentage of the local area
for the 2 preceding fiscal years.
(b) Amounts necessary to increase allocations to local areas to
comply with paragraph (a) of this section must be obtained by ratably
reducing the allocations to be made to other local areas.
(c) If the amounts of WIOA funds appropriated in a fiscal year are
not sufficient to provide the amount specified in paragraph (a) of this
section to all local areas, the amounts allocated to each local area
must be ratably reduced.
Sec. 683.130 Does a Local Board have the authority to transfer funds
between the adult employment and training activities allocation and the
dislocated worker employment and training activities allocation?
(a) A Local Board may transfer up to 100 percent of a program year
allocation for adult employment and training activities, and up to 100
percent of a program year allocation for dislocated worker employment
and training activities between the two programs.
(b) Before making any such transfer, a Local Board must obtain the
Governor's written approval.
(c) Local Boards may not transfer funds to or from the youth
program.
Sec. 683.135 What reallotment procedures does the Secretary use?
(a) The Secretary determines, during the second quarter of each
program year, whether a State has obligated its required level of at
least 80 percent of the funds allotted under secs. 127 and 132 of WIOA
for programs serving youth, adults, and dislocated workers for the
prior program year, as separately determined for each of the three
funding streams. The amount to be recaptured from each State for
reallotment, if any, is based on State obligations of the funds
allotted to each State under secs. 127 and 132 of WIOA for programs
serving youth, adults or dislocated workers, less any amount reserved
(up to five percent at the State level) for the costs of
administration. The recapture amount, if any, is separately determined
for each funding stream.
(b) The Secretary reallots youth, adult and dislocated worker funds
among eligible States in accordance with the provisions of secs. 127(c)
and 132(c) of WIOA, respectively. To be eligible to receive a
reallotment of youth, adult, or dislocated worker funds under the
reallotment procedures, a State must have obligated at least 80 percent
of the prior program year's allotment, less any amount reserved for the
costs of administration at the State level of youth, adult, or
dislocated worker funds. A State's eligibility to receive a reallotment
is separately determined for each funding stream.
(c) The term ``obligation'' is defined at 2 CFR 200.71. Obligations
must be reported on the required Department of Labor (DOL or the
Department) financial form, such as the ETA-9130 form. For purposes of
this section, the Secretary will also treat as State obligations:
(1) Amounts allocated by the State, under secs. 128(b) and 133(b)
of WIOA, to the local area, including a single-State local area if the
State has been designated as a single local area as described in sec.
106(d) of WIOA or to a balance of State local area administered by a
unit of the State government, and;
(2) Inter-agency transfers and other actions treated by the State
as encumbrances against amounts reserved by the State under secs.
128(a) and 133(a) of WIOA for statewide workforce investment
activities.
Sec. 683.140 What reallocation procedures must the Governors use?
(a) The Governor, after consultation with the State Board, may
reallocate youth, adult, and dislocated worker funds among local areas
within the State in accordance with the provisions of secs. 128(c) and
133(c) of WIOA. If the
[[Page 20878]]
Governor chooses to reallocate funds, the provisions in paragraphs (b)
and (c) of this section apply.
(b) For the youth, adult and dislocated worker programs, the amount
to be recaptured from each local area for purposes of reallocation, if
any, must be based on the amount by which the prior year's unobligated
balance of allocated funds exceeds 20 percent of that year's allocation
for the program, less any amount reserved (up to 10 percent) for the
costs of administration. Unobligated balances must be determined based
on allocations adjusted for any allowable transfer between funding
streams. The amount to be recaptured, if any, must be separately
determined for each funding stream. The term ``obligation'' is defined
at 2 CFR 200.71.
(c) To be eligible to receive youth, adult or dislocated worker
funds under the reallocation procedures, a local area must have
obligated at least 80 percent of the prior program year's allocation,
less any amount reserved (up to 10 percent) for the costs of
administration, for youth, adult, or dislocated worker activities, as
separately determined. A local area's eligibility to receive a
reallocation must be separately determined for each funding stream.
Sec. 683.145 What merit review and risk assessment does the
Department conduct for Federal financial assistance awards made under
Workforce Innovation and Opportunity Act title I, subtitle D?
(a) For competitive awards, the Department will design and execute
a merit review process for applications as prescribed under 2 CFR
200.204 when issuing Federal financial assistance awards made under
WIOA title I, subtitle D. This process will be described or
incorporated by reference in the applicable funding opportunity
announcement.
(b) Prior to issuing a Federal financial assistance award under
WIOA title I, subtitle D, the Department will conduct a risk assessment
to assess the organization's overall ability to administer Federal
funds as required under 2 CFR 200.205. As part of this assessment, the
Department may consider any information that has come to its attention
and will consider the organization's history with regard to the
management of other grants, including DOL grants.
(c) In evaluating risks posed by applicants, the Department will
consider the following:
(1) Financial stability;
(2) Quality of management systems and ability to meet the
management standards prescribed in this part;
(3) History of performance. The applicant's record in managing
Federal awards, if it is a prior recipient of Federal awards, including
timeliness of compliance with applicable reporting requirements,
conformance to the terms and conditions of previous Federal awards, and
if applicable, the extent to which any previously awarded amounts will
be expended prior to future awards;
(4) Reports and findings from audits; and
(5) The applicant's ability to implement effectively statutory,
regulatory, or other requirements imposed on non-Federal entities.
Sec. 683.150 What closeout requirements apply to grants funded with
Workforce Innovation and Opportunity Act title I and Wagner-Peyser
funds?
(a) After the expiration of the period of performance, the
Department will close-out the Federal award when it determines that all
applicable administrative actions and all required work of the Federal
award have been completed by the grant recipient. This section
specifies the actions the grant recipient and the Department must take
to complete this process.
(1) The grant recipient must submit, no later than 90 calendar days
after the end date of the period of performance, all financial,
performance, and other reports as required by the terms and conditions
of the Federal award.
(2) The Department may approve extensions when requested by the
grant recipient.
(b) Unless the Department authorizes an extension, the grant
recipient must liquidate all obligations and/or accrued expenditures
incurred under the Federal award not later than 90 calendar days after
the end date of the period of performance as specified in the terms and
conditions of the Federal award.
(c) The Department must make prompt payments to the grant recipient
for allowable reimbursable costs under the Federal award being closed
out.
(d) The grant recipient must promptly refund any balances of
unobligated cash that the Department paid in advance or paid and that
is not authorized to be retained by the grant recipient. See Office of
Management and Budget Circular A-129, 2 CFR 200.345, and 2 CFR part
2900 for requirements regarding unreturned amounts that become
delinquent debts.
(e) Consistent with the terms and conditions of the Federal award,
the Department must make a settlement for any upward or downward
adjustments to the Federal share of costs after closeout reports are
received.
(f) The grant recipient must account for any real and personal
property acquired with Federal funds or received from the Federal
government in accordance with 2 CFR 200.310 to 200.316, and 200.329.
(g) The Department should complete all closeout actions for Federal
awards no later than 1 year after receipt and acceptance of all
required final reports.
(h) The closeout of an award does not affect any of the following:
(1) The right of the Department to disallow costs and recover funds
on the basis of a later audit or other review.
(2) The obligation of the grant recipient to return any funds due
as a result of later refunds, corrections, or other transactions.
(3) Audit requirements as described in 2 CFR part 200, subpart F.
(4) Property management requirements in 2 CFR 200.310 to 200.316.
(5) Records retention as required in 2 CFR 200.333 to 200.337.
(i) After closeout of an award, a relationship created under the
award may be modified or ended in whole or in part with the consent of
the Department and the grant recipient, provided the responsibilities
of the grant recipient referred to in 2 CFR 200.344(a) and 2 CFR
200.310 to 200.316 are considered, and provisions are made for
continuing responsibilities of the grant recipient, as appropriate.
(j) Grant recipients that award WIOA funds to subrecipients must
institute a timely closeout process after the end of performance to
ensure a timely closeout in accordance with 2 CFR 200.343 to 200.344.
Subpart B--Administrative Rules, Costs, and Limitations
Sec. 683.200 What general fiscal and administrative rules apply to
the use of Workforce Innovation and Opportunity Act title I and Wagner-
Peyser funds?
(a) Uniform guidance. Recipients and subrecipients of a Federal
award under title I of WIOA and Wagner-Peyser must follow the uniform
guidance at 2 CFR parts 200, 215, 225, 230 and Appendices I through XI,
including any exceptions identified by the Department at 2 CFR part
2900.
(1) Commercial organizations, for-profit entities, and foreign
entities that are recipients and subrecipients of a Federal award must
adhere to 2 CFR part 200, including any exceptions identified by the
Department under 2 CFR part 2900 and to the Federal Acquisition
Regulations (FAR), including 48 CFR part 31.
(b) Allowable costs and cost principles. (1) Recipients and
subrecipients of a Federal award under title I of WIOA and Wagner-
Peyser must
[[Page 20879]]
follow the cost principles at subpart E and Appendices III through IX
of 2 CFR part 200, including any exceptions identified by the
Department at 2 CFR part 2900.
(2) Prior approval: Unless specified in the grant agreement, for
those items requiring prior approval in the Uniform Guidance (e.g.,
selected items of cost, budget realignment), the authority to grant or
deny approval is delegated to the Governor for programs funded under
sec. 127 or 132 of WIOA or under Wagner-Peyser.
(3) Costs of workforce councils, advisory councils, Native American
Employment and Training Councils, and Local Board committees
established under title I of WIOA are allowable.
(c) Uniform administrative requirements. (1) Except as provided in
paragraphs (c)(3) through (6) of this section, all recipients and
subrecipients of a Federal award under title I of WIOA and under
Wagner-Peyser must follow subparts A through D and Appendices I through
II of 2 CFR part 200, including any exceptions identified by the
Department at 2 CFR part 2900.
(2) Unless otherwise specified in the grant agreement, expenditures
must be reported on accrual basis.
(3) In accordance with the requirements at 2 CFR 200.400(g),
subgrantees may not earn or keep any profit resulting from Federal
financial assistance, unless expressly authorized by the terms and
conditions of the Federal award.
(4) In addition to the requirements at 2 CFR 200.317 through
200.326 (as appropriate), all procurement contracts between Local
Boards and units of State or local governments must be conducted only
on a cost reimbursement basis.
(5) In addition to the requirements at 2 CFR 200.318, which address
codes of conduct and conflict of interest the following applies:
(i) A State Board member, Local Board member, or Board standing
committee member must neither cast a vote on, nor participate in any
decision-making capacity, on the provision of services by such member
(or any organization which that member directly represents), nor on any
matter which would provide any direct financial benefit to that member
or a member of his immediate family.
(ii) Neither membership on the State Board, the Local Board, or a
Board standing committee, nor the receipt of WIOA funds to provide
training and related services, by itself, violates these conflict of
interest provisions.
(iii) In accordance with the requirements at 2 CFR 200.112,
recipients of Federal awards must disclose in writing any potential
conflict of interest to the Department. Subrecipients must disclose in
writing any potential conflict of interest to the recipient of grant
funds.
(6) The addition method, described at 2 CFR 200.307, must be used
for all program income earned under title I of WIOA and Wagner-Peyser
grants. When the cost of generating program income has been charged to
the program, the gross amount earned must be added to the WIOA program.
However, the cost of generating program income must be subtracted from
the amount earned to establish the net amount of program income
available for use under the grants when these costs have not been
charged to the WIOA program.
(7) Any excess of revenue over costs incurred for services provided
by a governmental or non-profit entity must be included in program
income. (WIOA secs. 194(7)(A)-(B))
(8) Interest income earned on funds received under title I of WIOA
and Wagner-Peyser must be included in program income. (WIOA sec.
194(7)(B)(iii))
(9) On a fee-for-service basis, employers may use local area
services, facilities, or equipment funded under title I of WIOA to
provide employment and training activities to incumbent workers:
(i) When the services, facilities, or equipment are not being used
by eligible participants;
(ii) If their use does not affect the ability of eligible
participants to use the services, facilities, or equipment; and
(iii) If the income generated from such fees is used to carry out
programs authorized under this title.
(d) Government-wide debarment and suspension, and government-wide
drug-free workplace requirements. All WIOA title I and Wagner-Peyser
grant recipients and subrecipients must comply with the government-wide
requirements for debarment and suspension, and the government-wide
requirements for a drug-free workplace, codified at 29 CFR part 98.
(e) Restrictions on lobbying. All WIOA title I and Wagner-Peyer
grant recipients and subrecipients must comply with the restrictions on
lobbying specified in WIOA sec. 195 and codified in the Department
regulations at 29 CFR part 93.
(f) Buy-American. As stated in sec. 502 of WIOA, all funds
authorized in title I of WIOA and Wagner- Peyser must be expended on
only American-made equipment and products, as required by the Buy
American Act (41 U.S.C. 8301-8305).
(g) Nepotism. (1) No individual may be placed in a WIOA employment
activity if a member of that person's immediate family is directly
supervised by or directly supervises that individual.
(2) To the extent that an applicable State or local legal
requirement regarding nepotism is more restrictive than this provision,
such State or local requirement must be followed.
(h) Mandatory disclosures. All WIOA title I and Wagner-Peyser
recipients of Federal awards must disclose as required at 2 CFR
200.113, in a timely manner, in writing to the Federal awarding agency
or pass-through entity all violations of Federal criminal law involving
fraud, bribery, or gratuity violations potentially affecting the
Federal award. Failure to make required disclosures can result in any
of the remedies described in 2 CFR 200.338 (Remedies for
noncompliance), including suspension or debarment.
Sec. 683.205 What administrative cost limitations apply to Workforce
Innovation and Opportunity Act title I grants?
(a) State formula grants. (1) As part of the 15 percent that a
State may reserve for statewide activities, the State may spend up to 5
percent of the amount allotted under secs. 127(b)(1), 132(b)(1), and
132(b)(2) of WIOA for the administrative costs of statewide activities.
(2) Local area expenditures for administrative purposes under WIOA
formula grants are limited to no more than 10 percent of the amount
allocated to the local area under secs. 128(b) and 133(b) of WIOA.
(3) The 5 percent reserved for statewide administrative costs and
the 10 percent reserved for local administrative costs may be used for
administrative costs for any of the statewide youth workforce
investment activities or statewide employment and training activities
under secs. 127(b)(1), 128(b), and 132(b) of WIOA.
(4) In a one-stop environment, administrative costs borne by other
sources of funds, such as the Wagner-Peyser Act, are not included in
the administrative cost limit calculation. Each program's
administrative activities are chargeable to its own grant and subject
to its own administrative cost limitations.
(5) Costs of negotiating a MOU or infrastructure agreement under
title I of WIOA are excluded from the administrative cost limitations.
(b) Discretionary grants. (1) Limits on administrative costs, if
any, for programs operated under subtitle D of
[[Page 20880]]
title I of WIOA will be identified in the grant or cooperative
agreement.
Sec. 683.210 What audit requirements apply to the use of Workforce
Innovation and Opportunity Act title I and Wagner-Peyser funds?
(a)(1) All recipients of WIOA title I and Wagner-Peyser funds that
expend more than the minimum amounts specified in 2 CFR part 200,
subpart F in Federal awards during their fiscal year must have a
program specific or single audit conducted in accordance with 2 CFR
part 200, subpart F.
(2) Commercial or for-profit. Grant recipients and subrecipients of
title I and Wagner-Peyser funds that are commercial or for-profit
entities must adhere to the requirements contained in 2 CFR part 200,
subpart F.
(3) Subrecipients and contractors. An auditee may simultaneously be
a recipient, a subrecipient, and a contractor depending on the
substance of its agreements with Federal awarding agencies and pass-
through entities. Federal awards expended as a recipient or
subrecipient are subject to audit requirements under 2 CFR part 200,
subpart F.
(4) Contractors. The payments received for goods or services
provided as a contractor are not Federal awards. Subrecipient and
contractor determinations made under 2 CFR 200.330 should be considered
in determining whether payments constitute a Federal award or a payment
for goods and services provided as a contractor.
Sec. 683.215 What Workforce Innovation and Opportunity Act title I
functions and activities constitute the costs of administration subject
to the administrative cost limitation?
(a) The costs of administration are expenditures incurred by State
and Local Workforce Development Boards, Regions, direct grant
recipients, including State grant recipients under subtitle B of title
I of WIOA, and recipients of awards under subtitle D of title I, as
well as local grant recipients, local grant subrecipients, local fiscal
agents and one-stop operators that are associated with those specific
functions identified in paragraph (b) of this section and which are not
related to the direct provision of workforce investment services,
including services to participants and employers. These costs can be
both personnel and non-personnel and both direct and indirect.
(b) The costs of administration are the costs associated with
performing the following functions:
(1) Performing the following overall general administrative
functions and coordination of those functions under title I of WIOA:
(i) Accounting, budgeting, financial and cash management functions;
(ii) Procurement and purchasing functions;
(iii) Property management functions;
(iv) Personnel management functions;
(v) Payroll functions;
(vi) Coordinating the resolution of findings arising from audits,
reviews, investigations and incident reports;
(vii) Audit functions;
(viii) General legal services functions;
(ix) Developing systems and procedures, including information
systems, required for these administrative functions; and
(x) Fiscal agent responsibilities;
(2) Performing oversight and monitoring responsibilities related to
WIOA administrative functions;
(3) Costs of goods and services required for administrative
functions of the program, including goods and services such as rental
or purchase of equipment, utilities, office supplies, postage, and
rental and maintenance of office space;
(4) Travel costs incurred for official business in carrying out
administrative activities or the overall management of the WIOA system;
and
(5) Costs of information systems related to administrative
functions (for example, personnel, procurement, purchasing, property
management, accounting and payroll systems) including the purchase,
systems development and operating costs of such systems.
(c)(1) Awards to subrecipients or contractors that are solely for
the performance of administrative functions are classified as
administrative costs.
(2) Personnel and related non-personnel costs of staff that perform
both administrative functions specified in paragraph (b) of this
section and programmatic services or activities must be allocated as
administrative or program costs to the benefitting cost objectives/
categories based on documented distributions of actual time worked or
other equitable cost allocation methods.
(3) Specific costs charged to an overhead or indirect cost pool
that can be identified directly as a program cost are to be charged as
a program cost. Documentation of such charges must be maintained.
(4) Except as provided at paragraph (c)(1) of this section, all
costs incurred for functions and activities of subrecipients and
contractors are program costs.
(5) Continuous improvement activities are charged to administration
or program category based on the purpose or nature of the activity to
be improved. Documentation of such charges must be maintained.
(6) Costs of the following information systems including the
purchase, systems development, and operational costs (e.g., data entry)
are charged to the program category:
(i) Tracking or monitoring of participant and performance
information;
(ii) Employment statistics information, including job listing
information, job skills information, and demand occupation information;
(iii) Performance and program cost information on eligible
providers of training services, youth activities, and appropriate
education activities;
(iv) Local area performance information; and
(v) Information relating to supportive services and unemployment
insurance claims for program participants.
(d) Where possible, entities identified in item (a) must make
efforts to streamline the services in paragraphs (b)(1) through (5) of
this section to reduce administrative costs by minimizing duplication
and effectively using information technology to improve services.
Sec. 683.220 What are the internal controls requirements for
recipients and subrecipients of Workforce Innovation and Opportunity
Act title I and Wagner-Peyser funds?
(a) Recipients and subrecipients of WIOA title I and Wagner-Peyser
Act funds must have an internal control structure and written policies
in place that provide safeguards to protect personally identifiable
information, records, contracts, grant funds, equipment, sensitive
information, tangible items, and other information that is readily or
easily exchanged in the open market, or that the Department or the
recipient or subrecipient considers to be sensitive, consistent with
applicable Federal, State and local privacy and confidentiality laws.
Internal controls also must include reasonable assurance that the
entity is:
(1) Managing the award in compliance with Federal statutes,
regulations, and the terms and conditions of the Federal award;
(2) Complying with Federal statutes, regulations, and the terms and
conditions of the Federal awards;
(3) Evaluating and monitoring the recipient's and subrecipient's
compliance with the statute, regulations and the terms and conditions
of Federal awards; and
[[Page 20881]]
(4) Taking prompt action when instances of noncompliance are
identified.
(b) Internal controls should be in compliance with the guidance in
``Standards for Internal Control in the Federal Government'' issued by
the Comptroller General of the United States and the ``Internal Control
Integrated Framework'', issued by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO). See 2 CFR 200.303.
Sec. 683.225 What requirements relate to the enforcement of the
Military Selective Service Act?
The requirements relating to the enforcement of the Military
Selective Service Act are found at WIOA sec. 189(h).
Sec. 683.230 Are there special rules that apply to veterans when
income is a factor in eligibility determinations?
Yes, under 38 U.S.C. 4213, when past income is an eligibility
determinant for Federal employment or training programs, any amounts
received as military pay or allowances by any person who served on
active duty, and certain other specified benefits must be disregarded
for the veteran and for other individuals for whom those amounts would
normally be applied in making an eligibility determination. This
applies when determining if a person is a ``low-income individual'' for
eligibility purposes (for example, in the WIOA youth, or NFJP
programs). Also, it applies when income is used as a factor when a
local area provides priority of service for ``low-income individuals''
with title I WIOA funds (see 20 CFR 680.600 and 20 CFR 680.650).
Questions regarding the application of 38 U.S.C. 4213 should be
directed to the Veterans' Employment and Training Service.
Sec. 683.235 May Workforce Innovation and Opportunity Act title I
funds be spent for construction?
WIOA title I funds must not be spent on construction, purchase of
facilities or buildings, or other capital expenditures for improvements
to land or buildings, except with the prior written approval of the
Secretary.
Sec. 683.240 What are the instructions for using real property with
Federal equity?
(a) SESA properties. Federal equity acquired in real property
through grants to States awarded under title III of the Social Security
Act or the Wagner-Peyser Act, including State Employment Security
Agency (SESA) real property, is transferred to the States that used the
grant to acquire such equity.
(1) The portion of any real property that is attributable to the
Federal equity transferred under this section must be used to carry out
activities authorized under WIOA, title III of the Social Security Act
(Unemployment Compensation program) or the Wagner-Peyser Act.
(2) When such real property is no longer needed for the activities
described in paragraph (a)(1) of this section, the States must request
disposition instructions from the Grant Officer prior to disposition or
sale of the property. The portion of the proceeds from the disposition
of the real property that is attributable to the Federal equity
transferred under this section must be used to carry out activities
authorized under WIOA, title III of the Social Security Act, or the
Wagner-Peyser Act.
(3) Limitation on use of funds. States must not use funds awarded
under WIOA, title III of the Social Security Act, or the Wagner-Peyser
Act to amortize the costs of real property that is purchased by any
State on or after February 15, 2007, the date of enactment of the
Revised Continuing Appropriations Resolution, 2007.
(4) Properties occupied by Wagner-Peyser must be collocated with
one-stop centers.
(b) Reed Act-funded properties. Properties with Reed Act equity may
be used for the one-stop service delivery system to the extent that the
proportionate share of Reed Act equity is less than or equal to the
proportionate share of occupancy by the Unemployment Compensation and
Wagner-Peyser Act programs in such properties. When such real property
is no longer needed as described in the previous sentence, the State
must request disposition instructions from the Grant Officer prior to
disposition or sale.
(c) Job Training Partnership Act-funded properties. Real property
that was purchased with JTPA funds and transferred to WIA, is now
transferred to the WIOA title I programs and must be used for WIOA
purposes. When such real property is no longer needed for the
activities of WIOA, the recipient or subrecipient must seek
instructions from the Grant Officer or State (in the case of a
subrecipient) prior to disposition or sale.
Sec. 683.245 Are employment generating activities, or similar
activities, allowable under the Workforce Innovation and Opportunity
Act title I?
(a) Under sec. 181(e) of WIOA, title I funds must not be spent on
employment generating activities, investment in revolving loan funds,
capitalization of businesses, investment in contract bidding resource
centers, economic development activities, or similar activities, unless
they are directly related to training for eligible individuals. For
purposes of this prohibition, employer outreach and job development
activities are directly related to training for eligible individuals.
(b) These employer outreach and job development activities may
include:
(1) Contacts with potential employers for the purpose of placement
of WIOA participants;
(2) Participation in business associations (such as chambers of
commerce); joint labor management committees, labor associations, and
resource centers;
(3) WIOA staff participation on economic development boards and
commissions, and work with economic development agencies to:
(i) Provide information about WIOA programs,
(ii) Coordinate activities in a region or local area to promote
entrepreneurial training and microenterprise services,
(iii) Assist in making informed decisions about community job
training needs, and
(iv) Promote the use of first source hiring agreements and
enterprise zone vouchering services;
(4) Active participation in local business resource centers
(incubators) to provide technical assistance to small businesses and
new businesses to reduce the rate of business failure;
(5) Subscriptions to relevant publications;
(6) General dissemination of information on WIOA programs and
activities;
(7) The conduct of labor market surveys;
(8) The development of on-the-job training opportunities; and
(9) Other allowable WIOA activities in the private sector.
Sec. 683.250 What other activities are prohibited under title I of
the Workforce Innovation and Opportunity Act?
(a) WIOA title I funds must not be spent on:
(1) The wages of incumbent employees during their participation in
economic development activities provided through a statewide workforce
investment system (WIOA secs. 181(b)(1) and 181(b)(2));
(2) Public service employment, except as specifically authorized
under title I of WIOA (WIOA sec. 194(10)).
(3) Expenses prohibited under any other Federal, State or local law
or regulation.
[[Page 20882]]
(4) Subawards or contracts with parties that are debarred,
suspended, or otherwise excluded from or ineligible for participation
in Federal programs or activities.
(5) Contracts with persons falsely labeling products made in
America.
(b) WIOA formula funds available to States and local areas under
subtitle B, title I must not be used for foreign travel (WIOA sec.
181(e)).
Sec. 683.255 What are the limitations related to religious activities
of title I of the Workforce Innovation and Opportunity Act?
(a) Section 188(a)(3) of WIOA prohibits the use of funds to employ
participants to carry out the construction, operation, or maintenance
of any part of any facility used for sectarian instruction or as a
place for religious worship with the exception of maintenance of
facilities that are not primarily used for instruction or worship and
are operated by organizations providing services to WIOA participants.
(b) 29 CFR part 2, subpart D governs the circumstances under which
Department support, including WIOA title I financial assistance, may be
used to employ or train participants in religious activities. Under
that subpart, such assistance may be used for such employment or
training only when the assistance is provided indirectly within the
meaning of the Establishment Clause of the U.S. Constitution, and not
when the assistance is provided directly. That subpart also contains
requirements related to equal treatment in Department of Labor programs
for religious organizations, and to protecting the religious liberty of
Department of Labor social service providers and beneficiaries. (29 CFR
part 2, subpart D--Equal Treatment in Department of Labor Programs for
Religious Organizations, Protection of Religious Liberty of Department
of Labor Social Service Providers and Beneficiaries).
Sec. 683.260 What prohibitions apply to the use of Workforce
Innovation and Opportunity Act title I funds to encourage business
relocation?
(a) Section 181(d) of WIOA states that funds must not be used or
proposed to be used for:
(1) The encouragement or inducement of a business, or part of a
business, to relocate from any location in the United States, if the
relocation results in any employee losing his or her job at the
original location;
(2) Customized training, skill training, on-the-job training,
incumbent worker training, transitional employment, or company specific
assessments of job applicants for or employees of any business or part
of a business that has relocated from any location in the United
States, until the company has operated at that location for 120 days,
if the relocation has resulted in any employee losing his or her jobs
at the original location.
(b) Pre-award review. To verify that a business establishment which
is new or expanding is not, in fact, relocating employment from another
area, standardized pre-award review criteria developed by the State
must be completed and documented jointly by the local area and the
business establishment as a prerequisite to WIOA assistance.
(1) The review must include names under which the establishment
does business, including predecessors and successors in interest; the
name, title, and address of the company official certifying the
information, and whether WIOA assistance is sought in connection with
past or impending job losses at other facilities, including a review of
whether WARN notices relating to the employer have been filed.
(2) The review may include consultations with labor organizations
and others in the affected local area(s).
Sec. 683.265 What procedures and sanctions apply to violations of
this part?
(a) The Grant Officer will promptly review and take appropriate
action on alleged violations of the provisions relating to:
(1) Construction (Sec. 683.235);
(2) Employment generating activities (Sec. 683.245);
(3) Other prohibited activities (Sec. 683.250);
(4) The limitation related to religious activities (Sec. 683.255);
and
(5) The use of WIOA title I funds to encourage business relocation
(Sec. 683.260).
(b) Procedures for the investigation and resolution of the
violations are provided under the Grant Officer's resolution process at
Sec. 683.440.
(c) Sanctions and remedies are provided for under sec. 184(c) of
WIOA for violations of the provisions relating to:
(1) Construction (Sec. 683.235);
(2) Employment generating activities (Sec. 683.245);
(3) Other prohibited activities (Sec. 683.250); and
(4) The limitation related to religious activities (Sec.
683.255(b)).
(d) Sanctions and remedies are provided for in sec. 181(d)(3) of
WIOA for violations of Sec. 683.260, which addresses business
relocation.
(e) Violations of Sec. 683.255(a) will be handled in accordance
with the Department's nondiscrimination regulations implementing sec.
188 of WIOA, codified at 29 CFR part 37.
Sec. 683.270 What safeguards are there to ensure that participants in
Workforce Innovation and Opportunity Act employment and training
activities do not displace other employees?
(a) A participant in a program or activity authorized under title I
of WIOA must not displace (including a partial displacement, such as a
reduction in the hours of non-overtime work, wages, or employment
benefits) any currently employed employee (as of the date of the
participation).
(b) A program or activity authorized under title I of WIOA must not
impair existing contracts for services or collective bargaining
agreements. When a program or activity authorized under title I of WIOA
would be inconsistent with a collective bargaining agreement, the
appropriate labor organization and employer must provide written
concurrence before the program or activity begins.
(c) A participant in a program or activity under title I of WIOA
may not be employed in or assigned to a job if:
(1) Any other individual is on layoff from the same or any
substantially equivalent job;
(2) The employer has terminated the employment of any regular,
unsubsidized employee or otherwise caused an involuntary reduction in
its workforce with the intention of filling the vacancy so created with
the WIOA participant; or
(3) The job is created in a promotional line that infringes in any
way on the promotional opportunities of currently employed workers as
of the date of the participation.
(d) Regular employees and program participants alleging
displacement may file a complaint under the applicable grievance
procedures found at Sec. 683.600. (WIOA sec. 181)
Sec. 683.275 What wage and labor standards apply to participants in
activities under title I of the Workforce Innovation and Opportunity
Act?
(a) Individuals in on-the-job training or individuals employed in
activities under title I of WIOA must be compensated at the same rates,
including periodic increases, as trainees or employees who are
similarly situated in similar occupations by the same employer and who
have similar training, experience and skills. Such rates must be in
accordance with applicable law, but may not be less than the higher of
the rate specified in sec. 6(a)(1) of the Fair Labor Standards Act of
1938 (29 U.S.C. 206(a)(1)) or the
[[Page 20883]]
applicable State or local minimum wage law. (WIOA sec. 181(a)(1)(A))
(b) The reference in paragraph (a) of this section to sec. 6(a)(1)
of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) is not
applicable for individuals in territorial jurisdictions in which sec.
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))
does not apply. (WIOA sec. 181(a)(1)(B))
(c) Individuals in on-the-job training or individuals employed in
programs and activities under title I of WIOA must be provided benefits
and working conditions at the same level and to the same extent as
other trainees or employees working a similar length of time and doing
the same type of work. (WIOA sec. 181(b)(5)).
(d) Allowances, earnings, and payments to individuals participating
in programs under title I of WIOA are not considered as income for
purposes of determining eligibility for and the amount of income
transfer and in-kind aid furnished under any Federal or Federally-
assisted program based on need, other than as provided under the Social
Security Act (42 U.S.C. 301 et seq.). (WIOA sec. 181(a)(2))
(e) Funds under title I of WIOA must not be used to pay the wages
of incumbent employees during their participation in economic
development activities provided through a statewide workforce delivery
system. (WIOA sec. 181(b)(1))
Sec. 683.280 What health and safety standards apply to the working
conditions of participants in activities under title I of the Workforce
Innovation and Opportunity Act?
(a) Health and safety standards established under Federal and State
law otherwise applicable to working conditions of employees are equally
applicable to working conditions of participants engaged in programs
and activities under title I of WIOA.
(b)(1) To the extent that a State workers' compensation law
applies, workers' compensation must be provided to participants in
programs and activities under title I of WIOA on the same basis as the
compensation is provided to other individuals in the State in similar
employment.
(2) If a State workers' compensation law applies to a participant
in work experience, workers' compensation benefits must be available
for injuries suffered by the participant in such work experience. If a
State workers' compensation law does not apply to a participant in work
experience, insurance coverage must be secured for injuries suffered by
the participant in the course of such work experience.
Sec. 683.285 What are a recipient's obligations to ensure
nondiscrimination and equal opportunity, and what are a recipient's
obligations with respect to religious activities?
(a)(1) Recipients, as defined in 29 CFR 37.4, must comply with the
nondiscrimination and equal opportunity provisions of WIOA sec. 188 and
its implementing regulations, codified at 29 CFR part 37. Under that
definition, the term ``recipients'' includes State and Local Workforce
Development Boards, one-stop operators, service providers, Job Corps
contractors, and subrecipients, as well as other types of individuals
and entities.
(2) Nondiscrimination and equal opportunity requirements and
procedures, including complaint processing and compliance reviews, are
governed by the regulations implementing sec. 188 of WIOA, codified at
29 CFR part 37, and are administered and enforced by the DOL Civil
Rights Center.
(3) As described in sec. 188 of WIOA, financial assistance provided
under title I of WIOA may be used to meet a recipient's obligation to
provide physical and programmatic accessibility and reasonable
accommodation/modification in regard to the WIOA program, as required
by sec. 504 of the Rehabilitation Act of 1973, as amended, the
Americans with Disabilities Act of 1990, as amended, sec. 188 of WIOA,
and the regulations implementing these statutory provisions.
(4) No person may discriminate against an individual who is a
participant in a program or activity that receives funds under title I
of WIOA, with respect to the terms and conditions affecting, or rights
provided to, the individual, solely because of the status of the
individual as a participant.
(5) Participation in programs and activities or receiving funds
under title I of WIOA must be available to citizens and nationals of
the United States, lawfully admitted permanent resident aliens,
refugees, asylees, and parolees, and other immigrants authorized by the
Attorney General to work in the United States.
(b)(1) 29 CFR part 2, subpart D governs the circumstances under
which recipients may use Department support, including WIOA title I and
Wagner-Peyser Act financial assistance, to employ or train participants
in religious activities. As explained in that subpart, such assistance
may be used for such employment or training only when the assistance is
provided indirectly within the meaning of the Establishment Clause of
the U.S. Constitution, and not when the assistance is provided
directly. As explained in that subpart, assistance provided through an
Individual Training Account is generally considered indirect, and other
mechanisms may also be considered indirect. See also Sec. 683.255 and
29 CFR 37.6(f)(1).
(2) 29 CFR part 2, subpart D also contains requirements related to
equal treatment of religious organizations in Department of Labor
programs, and to protection of religious liberty for Department of
Labor social service providers and beneficiaries. Limitations on the
employment of participants under WIOA title I to carry out the
construction, operation, or maintenance of any part of any facility
used or to be used for religious instruction or as a place of religious
worship are described at 29 CFR 37.6(f)(2). See also WIOA sec.
188(a)(3).
Sec. 683.290 Are there salary and bonus restrictions in place for the
use of title I and Wagner-Peyser funds?
(a) No funds available under title I of WIOA or the Wagner-Peyser
Act may be used by a recipient or subrecipient of such funds to pay the
salary and bonuses of an individual, either as direct costs or indirect
costs, at a rate in excess of the annual rate of basic pay prescribed
for level II of the Executive Schedule under 5 U.S.C. 5313, which can
be found at www.opm.gov.
(b) In instances where funds awarded under title I of WIOA or the
Wagner-Peyser Act pay only a portion of the salary or bonus, the WIOA
title I or Wagner-Peyser Act funds may only be charged for the share of
the employee's salary or bonus attributable to the work performed on
the WIOA title I or Wagner-Peyser Act grant. That portion cannot exceed
the proportional Executive level II rate. The restriction applies to
the sum of salaries and bonuses charged as either direct costs or
indirect costs under title I of WIOA and the Wagner-Peyser Act.
(c) The limitation described in paragraph (a) of this section will
not apply to contractors (as defined in 2 CFR 200.23) providing goods
and services. In accordance with 2 CFR part 200.330, characteristics
indicative of contractor are the following:
(1) Provides the goods and services within normal business
operations;
(2) Provides similar goods or services to many different
purchasers;
(3) Normally operates in a competitive environment;
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(4) Provides goods or services that are ancillary to the operation
of the Federal program; and
(5) Is not subject to compliance requirements of the Federal
program as a result of the agreement, though similar requirements may
apply for other reasons.
(d) If a State is a recipient of such funds, the State may
establish a lower limit than is provided in paragraph (a) of this
section for salaries and bonuses of those receiving salaries and
bonuses from a subrecipient of such funds, taking into account factors
including the relative cost of living in the State, the compensation
levels for comparable State or local government employees, and the size
of the organizations that administer the Federal programs involved.
(e) When an individual is working for the same recipient or
subrecipient in multiple offices that are funded by title I of WIOA or
the Wagner-Peyser Act, the recipient or subrecipient must ensure that
the sum of the individual's salary and bonus does not exceed the
prescribed limit in paragraph (a) of this section.
Sec. 683.295 Is earning of profit allowed under the Workforce
Innovation and Opportunity Act?
(a)(1) Under secs. 121(d) and 134(b) of WIOA, for-profit entities
are eligible to be one-stop operators, service providers, and eligible
training providers.
(2) Where for-profit entities are one-stop operators, service
providers, and eligible training providers, and those entities are
recipients of Federal financial assistance, the recipient or
subrecipient and the for-profit entity must follow 2 CFR 200.323.
(3) Where for-profit entities are one-stop operators, service
providers, and eligible training providers, and those entities are
providing services under a contract, profit is allowable, and the
requirements of 2 CFR 200.323 apply.
(b) For programs authorized by other sections of WIOA, 2 CFR
200.400(g) prohibits earning and keeping of profit in Federal financial
assistance unless expressly authorized by the terms and conditions of
the Federal award.
(c) Income earned by a public or private nonprofit entity may be
retained by such entity only if such income is used to continue to
carry out the program. (WIOA sec. 194(7)).
Subpart C--Reporting Requirements
Sec. 683.300 What are the reporting requirements for programs funded
under the Workforce Innovation and Opportunity Act?
(a) General. All States and other direct grant recipients must
report financial, participant, and other performance data in accordance
with instructions issued by the Secretary. Reports, records, plans, or
any other data required to be submitted or made available must, to the
extent practicable, be submitted or made available through electronic
means. Reports will not be required to be submitted more frequently
than quarterly (unless otherwise specified by Congress) within a time
period specified in the reporting instructions.
(b) Subrecipient reporting. (1) For the annual eligible training
provider performance reports described in Sec. 677.230 of this chapter
and local area performance reports described in Sec. 677.205 of this
chapter, the State must require the template developed under WIOA sec.
116(d)(1) to be used.
(2) For financial reports and performance reports other than those
described in paragraph (b)(1) of this section, a State or other grant
recipient may impose different forms or formats, shorter due dates, and
more frequent reporting requirements on subrecipients.
(3) If a State intends to impose different reporting requirements
on subrecipients, it must describe those reporting requirements in its
State WIOA Plan.
(c) Financial reports. (1) Each grant recipient must submit
financial reports on a quarterly basis.
(2) Local Boards will submit quarterly financial reports to the
Governor.
(3) Each State will submit to the Secretary a summary of the
reports submitted to the Governor pursuant to paragraph (c)(2) of this
section.
(4) Reports must include cash on hand, obligations, expenditures,
any income or profits earned, including such income or profits earned
by subrecipients, indirect costs, recipient share of expenditures and
any expenditures incurred (such as stand-in costs) by the recipient
that are otherwise allowable except for funding limitations.
(5) Reported expenditures, matching funds, and program income,
including any profits earned, must be reported on the accrual basis of
accounting and cumulative by fiscal year of appropriation. If the
recipient's accounting records are not normally kept on the accrual
basis of accounting, the recipient must develop accrual information
through an analysis of the documentation on hand.
(d) Performance reports. (1) States must submit an annual
performance report for each of the core workforce programs administered
under WIOA as required by sec. 116(d) of WIOA and in accordance with 20
CFR part 667, subpart A.
(2) For all programs authorized under subtitle D of WIOA, each
grant recipient must complete reports on performance measures or goals
specified in its grant agreement.
(e) Due date. (1) For the core programs, performance reports are
due on the date set forth in guidance.
(2) Financial reports and all performance and data reports not
described in paragraph (e)(1) of this section are due no later than 45
days after the end of each quarter unless otherwise specified in
reporting instructions. A final financial report is required 90 days
after the expiration of a period of performance or period of fund
availability (whichever comes first) and/or termination of the grant.
(f) Format. All reports whenever practicable should be collected,
transmitted, and stored in open and machine readable formats.
(g) Systems compatibility. States and grant recipients will develop
strategies for aligning data systems based upon guidelines issued by
the Secretary of Labor and the Secretary of Education.
Subpart D--Oversight and Resolution of Findings
Sec. 683.400 What are the Federal and State monitoring and oversight
responsibilities?
(a) The Secretary is authorized to monitor all recipients and
subrecipients of all Federal financial assistance awarded and funds
expended under title I of WIOA and Wagner-Peyser to determine
compliance with the Acts and Department regulations, and may
investigate any matter deemed necessary to determine such compliance.
Federal oversight will be conducted primarily at the recipient level.
(b) As funds allow, in each fiscal year, the Secretary will also
conduct in-depth reviews in several States, including financial and
performance monitoring, to assure that funds are spent in accordance
with the Acts.
(c)(1) Each recipient and subrecipient must monitor grant-supported
activities in accordance with 2 CFR part 200.
(2) In the case of grants under secs. 128 and 133 of WIOA, the
Governor must develop a State monitoring system that meets the
requirements of Sec. 683.410(b). The Governor must
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monitor Local Boards and regions annually for compliance with
applicable laws and regulations in accordance with the State monitoring
system. Monitoring must include an annual review of each local area's
compliance with 2 CFR part 200.
(d) Documentation of monitoring, including monitoring reports and
audit work papers, conducted under paragraph (c) of this section, along
with corrective action plans, must be made available for review upon
request of the Secretary, Governor, or a representative of the Federal
government authorized to request the information.
Sec. 683.410 What are the oversight roles and responsibilities of
recipients and subrecipients of Federal financial assistance awarded
under title I of the Workforce Innovation and Opportunity Act and
Wagner-Peyser?
(a) Each recipient and subrecipient of funds under title I of WIOA
and under Wagner-Peyser must conduct regular oversight and monitoring
of its WIOA and Wagner-Peyser program(s) and those of its subrecipients
and contractors as required under title I of WIOA and Wagner-Peyser, as
well as under 2 CFR part 200, including 2 CFR 200.327, 200.328,
200.330, 200.331, and Department exceptions at 2 CFR part 2900, in
order to:
(1) Determine that expenditures have been made against the proper
cost categories and within the cost limitations specified in the Act
and the regulations in this part;
(2) Determine whether there is compliance with other provisions of
the Act and the WIOA regulations and other applicable laws and
regulations;
(3) Assure compliance with 2 CFR part 200; and
(4) Determine compliance with the nondiscrimination, disability,
and equal opportunity requirements of sec. 188 of WIOA, including the
Assistive Technology Act of 1998 (29 U.S.C. 3003).
(b) State roles and responsibilities for grants under secs. 128 and
133 of WIOA:
(1) The Governor is responsible for the development of the State
monitoring system. The Governor must be able to demonstrate, through a
monitoring plan or otherwise, that the State monitoring system meets
the requirements of paragraph (b)(2) of this section.
(2) The State monitoring system must:
(i) Provide for annual on-site monitoring reviews of local areas'
compliance with 2 CFR part 200, as required by sec. 184(a)(3) of WIOA;
(ii) Ensure that established policies to achieve program
performance and outcomes meet the objectives of the Act and the WIOA
regulations;
(iii) Enable the Governor to determine if subrecipients and
contractors have demonstrated substantial compliance WIOA and Wagner-
Peyser requirements;
(iv) Enable the Governor to determine whether a local plan will be
disapproved for failure to make acceptable progress in addressing
deficiencies, as required in sec. 108(e) of WIOA; and
(v) Enable the Governor to ensure compliance with the
Nondiscrimination, disability, and equal opportunity requirements of
sec. 188 of WIOA, including the Assistive Technology Act of 1998 (29
U.S.C. 3003).
(3) The State must conduct an annual on-site monitoring review of
each local area's compliance with 2 CFR part 200, as required by sec.
184(a)(4) of WIOA.
(4) The Governor must require that prompt corrective action be
taken if any substantial violation of standards identified in
paragraphs (b)(2) or (3) of this section is found (WIA sec. 184(a)(5)).
(5) The Governor must impose the sanctions provided in secs.
184(b)-(c) of WIOA in the event of a subrecipient's failure to take
required corrective action required under paragraph (b)(4) of this
section.
(6) The Governor may issue additional requirements and instructions
to subrecipients on monitoring activities.
(7) The Governor must certify to the Secretary every 2 years that:
(i) The State has implemented 2 CFR part 200;
(ii) The State has monitored local areas to ensure compliance with
2 CFR part 200, including annual certifications and disclosures as
outlined in 2 CFR 200.113, Mandatory Disclosures. Failure to do so may
result in remedies described under 2 CFR 200.338, including suspension
and debarment; and
(iii) The State has taken appropriate corrective action to secure
such compliance (WIOA secs. 184 and 188).
Sec. 683.420 What procedures apply to the resolution of findings
arising from audits, investigations, monitoring, and oversight reviews?
(a) Resolution of subrecipient-level findings. (1) The Governor or
direct grant recipient is responsible for resolving findings that arise
from the monitoring reviews, investigations, other Federal monitoring
reviews, and audits (including under 2 CFR part 200) of subrecipients
awarded funds through title I of WIOA or Wagner-Peyser.
(i) A State or direct grant recipient must utilize the written
monitoring and audit resolution, debt collection and appeal procedures
that it uses for other Federal grant programs.
(ii) If a State or direct grant recipient does not have such
written procedures, it must prescribe standards and procedures to be
used for this grant program.
(2) For subrecipients awarded funds through a recipient of grant
funds under subtitle D of title I of WIOA, the direct recipient of the
grant funds must have written monitoring and resolution procedures in
place that are consistent with 2 CFR part 200.
(b) Resolution of State and other direct recipient-level findings.
(1) The Secretary is responsible for resolving findings that arise from
Federal audits, monitoring reviews, investigations, incident reports,
and audits under 2 CFR part 200 for direct recipients of Federal awards
under title I of WIOA and Wagner Peyser.
(2) The Secretary will use the Department audit resolution process,
consistent with 2 CFR part 200 (and Department modifications at 2 CFR
part 2900), and Grant Officer Resolution provisions of Sec. 683.440,
as appropriate.
(3) A final determination issued by a Grant Officer under this
process may be appealed to the DOL Office of Administrative Law Judges
under the procedures at Sec. 683.800.
(c) Resolution of nondiscrimination findings. Findings arising from
investigations or reviews conducted under nondiscrimination laws will
be resolved in accordance with WIOA sec. 188 of WIOA and the Department
of Labor nondiscrimination regulations implementing sec. 188 of WIOA,
codified at 29 CFR part 37.
Sec. 683.430 How does the Secretary resolve investigative and
monitoring findings?
(a) As a result of an investigation, on-site visit, other
monitoring, or an audit (i.e., Single Audit, OIG Audit, GAO Audit, or
other audit), the Secretary will notify the direct recipient of the
Federal award of the findings of the investigation and give the direct
recipient a period of time (not more than 60 days) to comment and to
take appropriate corrective actions.
(1) Adequate resolution. The Grant Officer in conjunction with the
Federal project officer, reviews the complete file of the monitoring
review, monitoring report, or final audit report and the recipient's
response and actions under this paragraph (a). The Grant Officer's
review takes into account the sanction provisions of secs. 184(b)-(c)
of WIOA. If the Grant Officer agrees with the recipient's handling of
the situation, the Grant Officer so notifies the recipient.
[[Page 20886]]
This notification constitutes final agency action.
(2) Inadequate resolution. If the direct recipient's response and
actions to resolve the findings are found to be inadequate, the Grant
Officer will begin the Grant Officer resolution process under Sec.
683.440.
(b) Audits from 2 CFR part 200 will be resolved through the Grant
Officer resolution process, as discussed in Sec. 683.440.
Sec. 683.440 What is the Grant Officer resolution process?
(a) General. When the Grant Officer is dissatisfied with the a
recipient's disposition of an audit or other resolution of findings
(including those arising out of site visits, incident reports or
compliance reviews), or with the recipient's response to findings
resulting from investigations or monitoring reports, the initial and
final determination process as set forth in this section is used to
resolve the matter.
(b) Initial determination. The Grant Officer makes an initial
determination on the findings for both those matters where there is
agreement and those where there is disagreement with the recipient's
resolution, including the allowability of questioned costs or
activities. This initial determination is based upon the requirements
of WIOA, Wagner-Peyser, and applicable regulations, and the terms and
conditions of the grants, contracts, or other agreements under the
award.
(c) Informal resolution. Except in an emergency situation, when the
Secretary invokes the authority described in sec. 184(e) of WIOA, the
Grant Officer may not revoke a recipient's grant in whole or in part,
nor institute corrective actions or sanctions, without first providing
the recipient with an opportunity to present documentation or arguments
to resolve informally those matters in dispute contained in the initial
determination. The initial determination must provide for an informal
resolution period of at least 60 days from issuance of the initial
determination. If the matters are resolved informally, the Grant
Officer must issue a final determination under paragraph (d) of this
section which notifies the parties in writing of the nature of the
resolution and may close the file.
(d) Final determination. (1) Upon completion of the informal
resolution process, the Grant Officer provides each party with a
written final determination by certified mail, return receipt
requested. For audits of recipient-level entities and other recipients
which receive WIOA funds directly from the Department, ordinarily, the
final determination is issued not later than 180 days from the date
that the Office of Inspector General (OIG) issues the final approved
audit report to the Employment and Training Administration. For audits
of subrecipients conducted by the OIG, ordinarily the final
determination is issued not later than 360 days from the date the OIG
issues the final approved audit report to ETA.
(2) A final determination under this paragraph (d) must:
(i) Indicate whether efforts to resolve informally matters
contained in the initial determination have been unsuccessful;
(ii) List those matters upon which the parties continue to
disagree;
(iii) List any modifications to the factual findings and
conclusions set forth in the initial determination and the rationale
for such modifications;
(iv) Establish a debt, if appropriate;
(v) Require corrective action, when needed;
(vi) Determine liability, method of restitution of funds, and
sanctions; and
(vii) Offer an opportunity for a hearing in accordance with Sec.
683.800.
(3) Unless a hearing is requested, a final determination under this
paragraph (d) is final agency action and is not subject to further
review.
Subpart E--Pay-for-Performance Contract Strategies
Sec. 683.500 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract strategy?
(a) A WIOA Pay-for-Performance contract strategy is a specific type
of performance-based contract strategy that has four distinct
characteristics:
(1) It is a strategy to use WIOA Pay-for-Performance contracts as
they are described in Sec. 683.510;
(2) It must include the identification of the problem space and
target populations for which a local area will pursue a WIOA Pay-for-
Performance contract strategy; the outcomes the local area would hope
to achieve through a Pay-for-Performance contract relative to baseline
performance; the acceptable cost to government associated with
implementing such a strategy; and a feasibility study to determine
whether the intervention is suitable for a WIOA Pay-for-Performance
contracting strategy;
(3) It must include a strategy for independently validating the
performance outcomes achieved under each contract within the strategy
prior to payment occurring;
(4) It must include a description of how the State or local area
will reallocate funds to other activities under the contract strategy
in the event a service provider does not achieve performance benchmarks
under a WIOA Pay-for-Performance contract.
(b) The WIOA Pay-for-Performance contract strategy must be
developed in accordance with guidance issued by the Secretary.
Sec. 683.510 What is a Workforce Innovation and Opportunity Act Pay-
for-Performance contract?
(a) Pay-for-Performance contract. A WIOA Pay-for-Performance
contract is a type of Performance-Based contract.
(b) Applicability. WIOA Pay-for-Performance contracts may only be
entered into when they are a part of a WIOA Pay-for-Performance
contract strategy described in Sec. 683.500.
(c) Cost-plus percentage contracts. Use of cost-plus percentage
contracts is prohibited. (2 CFR 200.323.)
(d) Services provided. WIOA Pay-for-Performance contracts must be
used to provide adult training services described in sec. 134(c)(3) of
WIOA or youth activities described in sec. 129(c)(2) of WIOA.
(e) Structure of payment. WIOA Pay-for-Performance contracts must
specify a fixed amount that will be paid to the service provider based
on the achievement of specified levels of performance on the
performance outcomes in sec. 116(b)(2)(A) of WIOA for target
populations within a defined timetable. Outcomes must be independently
validated, as described in Sec. Sec. 683.500 and 683.510(j), prior to
disbursement of funds.
(f) Eligible service providers. WIOA Pay-for-Performance contracts
may be entered into with eligible service providers, which may include
local or national community-based organizations or intermediaries,
community colleges, or other training providers that are eligible under
sec. 122 or 123 of WIOA (as appropriate). (WIOA sec. 3(47)(A))
(g) Target populations. WIOA Pay-for-Performance contracts must
identify target populations as specified by the Local Board, which may
include individuals with barriers to employment. (WIOA sec. 3(47)(A))
(h) Bonus and incentive payments. WIOA Pay-for-Performance
contracts may include bonus and/or incentive payments for the
contractor, based on achievement of specified levels of performance.
(1) Bonus payments for achieving outcomes above and beyond those
specified in the contract must be used
[[Page 20887]]
by the service provider to expand capacity to provide effective
training.
(2) Incentive payments must be consistent with incentive payments
for performance-based contracting as described in the Federal
Acquisition Regulations.
(i) Performance reporting. Performance outcomes achieved under the
WIOA Pay-for-Performance contract, measured against the levels of
performance specified in the contract, must be tracked by the local
area and reported to the State pursuant to WIOA sec. 116(d)(2)(K) and
Sec. 677.160.
(j) Validation. WIOA Pay-for-Performance contracts must include
independent validation of the contractor's achievement of the
performance benchmarks specified in the contract. (WIOA sec. 3(47)(B))
This validation must be based on high-quality, reliable, and verified
data.
(k) Guidance. The Secretary may issue additional guidance related
to use of WIOA Pay-for-Performance contracts.
Sec. 683.520 What funds can be used to support Workforce Innovation
and Opportunity Act Pay-for-Performance contract strategies?
(a) For WIOA Pay-for-Performance contract strategies providing
adults and dislocated worker training services, funds allocated under
secs. 133(b)(2)-(3) of WIOA can be used. For WIOA Pay-for-Performance
contract strategies providing youth activities, funds allocated under
WIOA sec. 128(b) can be used.
(b) No more than 10 percent of the total local adult and dislocated
worker allotments can be expended on the implementation of WIOA Pay-
for-Performance contract strategies for adult training services
described in sec. 134(c)(3) of WIOA. No more than 10 percent of the
local youth allotment can be expended on the implementation of WIOA
Pay-for-Performance contract strategies for youth training services and
other activities described in secs. 129(c)(1)-(2) of WIOA.
Sec. 683.530 How long are funds used for Workforce Innovation and
Opportunity Act Pay-for-Performance contract strategies available?
Section 189(g)(2)(D) of WIOA authorizes funds used for WIOA Pay-
for-Performance contract strategies to be available until expended.
Under WIOA sec. 3(47)(C), funds that are obligated but not expended due
to a contractor not achieving the levels of performance specified in a
WIOA Pay-for-Performance contract may be reallocated for further
activities related to WIOA Pay-for-Performance contract strategies
only. The Secretary will issue additional guidance related to the funds
availability and reallocation.
Sec. 683.540 What is the State's role in assisting local areas in
using Workforce Innovation and Opportunity Act Pay-for-Performance
contract strategies?
(a) Using funds from the Governor's reserve the State may:
(1) Provide technical assistance to local areas including
assistance with structuring WIOA Pay-for-Performance contracting
strategies, performance data collection, meeting performance data entry
requirements, and identifying levels of performance.
(2) Conduct evaluations of local WIOA Pay-for-Performance
contracting strategies, if appropriate.
(b) Using non-Federal funds, Governors may establish incentives for
Local Boards to implement WIOA Pay-for-Performance contract strategies
as described in this subpart.
(c) In the case of a State in which local areas are implementing
WIOA Pay-for-Performance contract strategies, the State must:
(1) Collect and report to DOL data on the performance of service
providers entering into WIOA Pay-for-Performance contracts, measured
against the levels of performance benchmarks specified in the
contracts, pursuant to sec. 116(d)(2)(K) of WIOA and Sec. 677.160 and
in accordance with any additional guidance issued by the Secretary.
(2) Collect and report to DOL State and/or local evaluations of the
design and performance of the WIOA Pay-for-Performance contract
strategies, and, where possible, the level of satisfaction with the
strategies among employers and participants benefitting from the
strategies, pursuant to sec. 116(d)(2)(K) of WIOA and Sec. 677.160,
and in accordance with any guidance issued by the Secretary.
(3) Monitor local areas' use of WIOA Pay-for-Performance contract
strategies to ensure compliance with the five required elements listed
in Sec. 683.500, the contract specifications in Sec. 683.510, and
State procurement policies.
(4) Monitor local areas' expenditures to ensure that no more than
10 percent of a local area's adult and dislocated worker allotment and
no more than 10 percent of a local area's youth allotments is expended
on WIOA Pay-for-Performance contract strategies.
(d) The Secretary will issue additional guidance on State roles in
WIOA Pay-for-Performance contract strategies.
Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
Sec. 683.600 What local area, State, and direct recipient grievance
procedures must be established?
(a) Each local area, State, outlying area, and direct recipient of
funds under title I of WIOA, except for Job Corps, must establish and
maintain a procedure for participants and other interested parties to
file grievances and complaints alleging violations of the requirements
of title I of WIOA, according to the requirements of this section. The
grievance procedure requirements applicable to Job Corps are set forth
at 20 CFR 686.1050.
(b) Each local area, State, and direct recipient must:
(1) Provide information about the content of the grievance and
complaint procedures required by this section to participants and other
interested parties affected by the local Workforce Investment System,
including one-stop partners and service providers;
(2) Require that every entity to which it awards title I funds
provide the information referred to in paragraph (b)(1) of this section
to participants receiving title I-funded services from such entities;
and
(3) Must make reasonable efforts to assure that the information
referred to in paragraph (b)(1) of this section will be understood by
affected participants and other individuals, including youth and those
who are limited-English speaking individuals. Such efforts must comply
with the language requirements of 29 CFR 37.35 regarding the provision
of services and information in languages other than English.
(c) Local area procedures must provide:
(1) A process for dealing with grievances and complaints from
participants and other interested parties affected by the local
Workforce Investment System, including one-stop partners and service
providers;
(2) An opportunity for an informal resolution and a hearing to be
completed within 60 days of the filing of the grievance or complaint;
(3) A process which allows an individual alleging a labor standards
violation to submit the grievance to a binding arbitration procedure,
if a collective bargaining agreement covering the parties to the
grievance so provides; and
(4) An opportunity for a local level appeal to a State entity when:
(i) No decision is reached within 60 days; or
(ii) Either party is dissatisfied with the local hearing decision.
[[Page 20888]]
(d) State procedures must provide:
(1) A process for dealing with grievances and complaints from
participants and other interested parties affected by the statewide
Workforce Investment programs;
(2) A process for resolving appeals made under paragraph (c)(4) of
this section;
(3) A process for remanding grievances and complaints related to
the local Workforce Innovation and Opportunity Act programs to the
local area grievance process; and
(4) An opportunity for an informal resolution and a hearing to be
completed within 60 days of the filing of the grievance or complaint;
and
(5) An opportunity for appeal to the Secretary under the
circumstances described in Sec. 683.610(a).
(e) Procedures of direct recipients must provide:
(1) A process for dealing with grievance and complaints from
participants and other interested parties affected by the recipient's
Workforce Innovation and Opportunity Act programs; and
(2) An opportunity for an informal resolution and a hearing to be
completed within 60 days of the filing of the grievance or complaint.
(f) The remedies that may be imposed under local, State and direct
recipient grievance procedures are enumerated at WIOA sec. 181(c)(3).
(g)(1) The provisions of this section on grievance procedures do
not apply to discrimination complaints brought under WIOA sec. 188 and/
or 29 CFR part 37. Such complaints must be handled in accordance with
the procedures set forth in that regulatory part.
(2) Questions about or complaints alleging a violation of the
nondiscrimination provisions of WIOA sec. 188 may be directed or mailed
to the Director, Civil Rights Center, U.S. Department of Labor, Room
N4123, 200 Constitution Avenue NW., Washington, DC 20210, for
processing.
(h) Nothing in this subpart precludes a grievant or complainant
from pursuing a remedy authorized under another Federal, State or local
law.
Sec. 683.610 What processes does the Secretary use to review
grievances and complaints of title I recipients?
(a) The Secretary investigates allegations arising through the
grievance procedures described in Sec. 683.600 when:
(1) A decision on a grievance or complaint under Sec. 683.600(d)
has not been reached within 60 days of receipt of the grievance or
complaint or within 60 days of receipt of the request for appeal of a
local level grievance and either party appeals to the Secretary; or
(2) A decision on a grievance or complaint under Sec. 683.600(d)
has been reached and the party to which such decision is adverse
appeals to the Secretary.
(b) The Secretary must make a final decision on an appeal under
paragraph (a) of this section no later than 120 days after receiving
the appeal.
(c) Appeals made under paragraph (a)(2) of this section must be
filed within 60 days of the receipt of the decision being appealed.
Appeals made under paragraph (a)(1) of this section must be filed
within 120 days of the filing of the grievance with the State, or the
filing of the appeal of a local grievance with the State. All appeals
must be submitted by certified mail, return receipt requested, to the
Secretary, U.S. Department of Labor, 200 Constitution Ave. NW.,
Washington, DC 20210, Attention: ASET. A copy of the appeal must be
simultaneously provided to the appropriate ETA Regional Administrator
and the opposing party.
(d) Except for complaints arising under WIOA sec. 184(f) or sec.
188, grievances or complaints made directly to the Secretary will be
referred to the appropriate State or local area for resolution in
accordance with this section, unless the Department notifies the
parties that the Department of Labor will investigate the grievance
under the procedures at Sec. 683.430. Discrimination complaints
brought under WIOA sec. 184(f) or sec. 188 or 29 CFR part 37 will be
referred to the Director of the Civil Rights Center.
(e) Complaints and grievances from participants receiving services
under the Wagner-Peyser Act will follow the procedures outlined at 20
CFR 658.
Sec. 683.620 How are complaints and reports of criminal fraud and
abuse addressed under the Workforce Innovation and Opportunity Act?
(a) Information and complaints involving criminal fraud, waste,
abuse or other criminal activity must be reported immediately through
the Department's Incident Reporting System to the DOL Office of
Inspector General, Office of Investigations, Room S5514, 200
Constitution Avenue NW., Washington, DC 20210, or to the corresponding
Regional Inspector General for Investigations, with a copy
simultaneously provided to the Employment and Training Administration.
The Hotline number is 1-800-347-3756. The Web site is http://www.oig.dol.gov/contact.htm.
(b) Complaints of a non-criminal nature may be handled under the
procedures set forth in Sec. 683.600 or through the Department's
Incident Reporting System.
Sec. 683.630 What additional appeal processes or systems must a State
have for the Workforce Innovation and Opportunity Act program?
(a) Non-designation of local areas:
(1) The State must establish, and include in its State Plan, due
process procedures which provide expeditious appeal to the State Board
for a unit of general local government (including a combination of such
units) or grant recipient that requests, but is not granted, initial or
subsequent designation of an area as a local area under WIOA sec.
106(b)(2) or 106(b)(3) and 20 CFR 679.250.
(2) These procedures must provide an opportunity for a hearing and
prescribe appropriate time limits to ensure prompt resolution of the
appeal.
(3) If the appeal to the State Board does not result in
designation, the appellant may request review by the Secretary under
Sec. 683.640.
(b) Denial or termination of eligibility as a training provider:
(1) A State must establish procedures which allow providers of
training services the opportunity to appeal:
(i) Denial of eligibility by a Local Board or the designated State
agency under WIOA sec. 122(b), 122(c), or 122(d).
(ii) Termination of eligibility or other action by a Local Board or
State agency under WIOA sec. 122(f); or
(iii) Denial of eligibility as a provider of on-the-job training
(OJT) or customized training by a one-stop operator under WIOA sec.
122(h).
(2) Such procedures must provide an opportunity for a hearing and
prescribe appropriate time limits to ensure prompt resolution of the
appeal.
(3) A decision under this State appeal process may not be appealed
to the Secretary.
(c) Testing and sanctioning for use of controlled substances.
(1) A State must establish due process procedures, in accordance
with WIOA sec. 181(f), which provide expeditious appeal for:
(i) Participants in programs under title I subtitle B of WIOA
subject to testing for use of controlled substances, imposed under a
State policy established under WIOA sec. 181(f)(1); and
(ii) Participants in programs under title I subtitle B of WIOA who
are sanctioned, in accordance with WIOA sec. 181(f)(2), after testing
positive for
[[Page 20889]]
the use of controlled substances, under the policy described in
paragraph (c)(1)(i) of this section.
(2) A decision under this State appeal process may not be appealed
to the Secretary.
Sec. 683.640 What procedures apply to the appeals of non-designation
of local areas?
(a) A unit of general local government (including a combination of
such units) or grant recipient whose appeal of the denial of a request
for initial or subsequent designation as a local workforce investment
area to the State Board has not resulted in such designation, may
appeal the State Board's denial to the Secretary.
(b) Appeals made under paragraph (a) of this section must be filed
no later than 30 days after receipt of written notification of the
denial from the State Board, and must be submitted by certified mail,
return receipt requested, to the Secretary, U.S. Department of Labor,
200 Constitution Ave. NW., Washington, DC 20210, Attention: ASET. A
copy of the appeal must be simultaneously provided to the State Board.
(c) The appellant must establish that it was not accorded
procedural rights under the appeal process set forth in the State Plan,
or establish that it meets the requirements for designation in WIOA
sec. 106(b)(2) or 106(b)(3) and 20 CFR 679.250.
(d) If the Secretary determines that the appellant has met its
burden of establishing that it was not accorded procedural rights under
the appeal process set forth in the State Plan, or that it meets the
requirements for designation in WIOA sec. 106(b)(2) or 106(b)(3) and 20
CFR 679.250, the Secretary may require that the area be designated as a
local workforce investment area. In making this determination the
Secretary may consider any comments submitted by the State Board in
response to the appeal made under paragraph (a) of this section.
(e) The Secretary must issue a written decision to the Governor and
the appellant.
Sec. 683.650 What procedures apply to the appeals of the Governor's
imposition of sanctions for substantial violations or performance
failures by a local area?
(a) A local area which has been found in substantial violation of
WIOA title I, and has received notice from the Governor that either all
or part of the local plan will be revoked or that a reorganization will
occur, may appeal such sanctions to the Secretary under WIOA sec.
184(b). The appeal must be filed no later than 30 days after receipt of
written notification of the revoked plan or imposed reorganization.
(b) The sanctions described in paragraph (a) of this section do not
become effective until:
(1) The time for appeal has expired; or
(2) The Secretary has issued the decision described in paragraph
(e) of this section.
(c) A local area which has failed to meet local performance
accountability measures for 3 consecutive program years, and has
received the Governor's notice of intent to impose a reorganization
plan, may appeal to the Governor to rescind or revise such plan, in
accordance with 20 CFR 677.225.
(d) Appeals to the Secretary made under paragraph (a) of this
section must be submitted by certified mail, return receipt requested,
to the Secretary, U.S. Department of Labor, 200 Constitution Ave. NW.,
Washington, DC 20210, Attention: ASET. A copy of the appeal must be
simultaneously provided to the Governor.
(e) The Secretary will notify the Governor and the appellant in
writing of the Secretary's decision under paragraph (a) of this section
within 45 days after receipt of the appeal. In making this
determination the Secretary may consider any comments submitted by the
Governor in response to the appeals.
Subpart G--Sanctions, Corrective Actions, and Waiver of Liability
Sec. 683.700 When can the Secretary impose sanctions and corrective
actions on recipients and subrecipients of title I Workforce Innovation
and Opportunity Act funds?
(a)(1) Except for actions under WIOA secs. 116 and 188(a) or 29 CFR
parts 31, 32, 35, 37 and 49 CFR part 25, the Grant Officer must use the
procedures outlined in Sec. 683.440 before imposing a sanction on, or
require corrective action by, recipients of funds under title I of
WIOA.
(2) To impose a sanction or corrective action for a violation of
WIOA sec. 188(a) the Department will use the procedures set forth in 29
CFR part 37.
(3) To impose a sanction or corrective action for a violation of
WIOA sec. 116 the Department will use the procedures set forth in 20
CFR part 677.
(b) States. When a Grant Officer determines that the Governor has
not fulfilled its requirements under 2 CFR part 200, an audit, or a
monitoring compliance review set forth at sec. 184(a)(4) of WIOA and
Sec. 683.200(a), or has not taken corrective action to remedy a
violation as required by WIOA secs. 184(a)(5) and 184(b)(1), the Grant
Officer must require the Governor to impose the necessary corrective
actions set forth at WIOA secs. 184(a)(5) and 184(b)(1), or may require
repayment of funds under WIOA sec. 184(c). If the Secretary determines
it is necessary to protect the funds or ensure the proper operation of
a program or activity, the Secretary may immediately suspend or
terminate financial assistance in accordance with WIOA sec. 184(e).
(c) Local areas. If the Governor fails to promptly take the actions
specified in WIOA sec. 184(b)(1) when it determines that a local area
has failed to comply with the requirements described in Sec.
683.720(a), and that the local area has not taken the necessary
corrective action, the Grant Officer may impose such actions directly
against the local area.
(d) Direct grant recipients. When the Grant Officer determines that
a direct grant recipient of subtitle D of title I of WIOA has not taken
corrective action to remedy a substantial violation as the result of
noncompliance with 2 CFR part 200, the Grant Officer may impose
sanctions against the grant recipient.
(e) Subrecipients. The Grant Officer may impose a sanction directly
against a subrecipient, as authorized in WIOA sec. 184(d)(3) and 2 CFR
200.338. In such a case, the Grant Officer will inform the direct grant
recipient of the action.
Sec. 683.710 Who is responsible for funds provided under title I and
Wagner-Peyser?
(a) The recipient of the funds is responsible for all funds under
its grant(s) awarded under WIOA title I and the Wagner-Peyser Act.
(b)(1) The local government's chief elected official(s) in a local
workforce investment area is liable for any misuse of the WIOA grant
funds allocated to the local area under WIOA secs. 128 and 133, unless
the chief elected official(s) reaches an agreement with the Governor to
bear such liability.
(2) When a local workforce area or region is composed of more than
one unit of general local government, the liability of the individual
jurisdictions must be specified in a written agreement between the
chief elected officials.
(3) When there is a change in the chief elected official(s), the
Local Board is required to inform the new chief elected official(s), in
a timely manner, of their responsibilities and liabilities as well as
the need to review and update any written agreements among the chief
elected official(s).
(4) The use of a fiscal agent does not relieve the chief elected
official, or
[[Page 20890]]
Governor if designated under paragraph (b)(1) of this section, of
responsibility for any misuse of grant funds allocated to the local
area under WIOA secs. 128 and 133.
Sec. 683.720 What actions are required to address the failure of a
local area to comply with the applicable uniform administrative
provisions?
(a) If, as part of the annual on-site monitoring of local areas,
the Governor determines that a local area is not in compliance with 2
CFR part 200, including the failure to make the required disclosures in
accordance with 2 CFR 200.113 or the failure to address all violations
of Federal criminal law involving fraud, bribery or gratuity violations
(2 CFR part 180), the Governor must:
(1) Require corrective action to secure prompt compliance; and
(2) Impose the sanctions provided for at WIOA sec. 184(b) if the
Governor finds that the local area has failed to take timely corrective
action.
(b) An action by the Governor to impose a sanction against a local
area, in accordance with this section, may be appealed to the Secretary
in accordance with Sec. 683.650.
(c)(1) If the Secretary finds that the Governor has failed to
monitor and certify compliance of local areas with the administrative
requirements under WIOA sec. 184(a), or that the Governor has failed to
take the actions promptly required upon a determination under paragraph
(a) of this section, the Secretary must take the action described in
Sec. 683.700(b).
(2) If the Governor fails to take the corrective actions required
by the Secretary under paragraph (c)(1) of this section, the Secretary
may immediately suspend or terminate financial assistance under WIOA
sec. 184(e).
Sec. 683.730 When can the Secretary waive the imposition of
sanctions?
(a)(1) A recipient of title I funds may request that the Secretary
waive the imposition of sanctions authorized under WIOA sec. 184.
(2) A Grant officer may approve the waiver described in paragraph
(a)(1) of this section if the grant officer finds that the recipient
has demonstrated substantial compliance with the requirements of WIOA
sec. 184(d)(2).
(b)(1) When the debt for which a waiver is request was established
in a non-Federal resolution proceeding, the resolution report must
accompany the waiver request.
(2) When the waiver request is made during the ETA Grant Officer
resolution process, the request must be made during the informal
resolution period described in Sec. 683.440(c).
(c) A waiver of the recipient's liability must be considered by the
Grant Officer only when:
(1) The misexpenditure of WIOA funds occurred at a subrecipient's
level;
(2) The misexpenditure was not due to willful disregard of the
requirements of title I of the Act, gross negligence, failure to
observe accepted standards of administration, and did not constitute
fraud or failure to make the required disclosures in accordance with 2
CFR part 200.113 addressing all violations of Federal criminal law
involving fraud, bribery or gratuity violations (2 CFR part 180 and 31
U.S.C 3321)
(3) If fraud did exist, was perpetrated against the recipient/
subrecipients, and:
(i) The recipient/subrecipients discovered, investigated, reported,
and cooperated in any prosecution of the perpetrator of the fraud; and
(ii) After aggressive debt collection action, it has been
documented that further attempts at debt collection from the
perpetrator of the fraud would be inappropriate or futile;
(4) The recipient has issued a final determination which disallows
the misexpenditure, the recipient's appeal process has been exhausted,
and a debt has been established; and
(5) The recipient provides documentation to demonstrate that it has
substantially complied with the requirements of WIOA sec. 184(d)(2) and
this section.
(d) The recipient will not be released from liability for misspent
funds under the determination required by WIOA sec. 184(d) unless the
Grant Officer determines that further collection action, either by the
recipient or subrecipient(s), would be inappropriate or would prove
futile.
Sec. 683.740 What is the procedure to handle a recipient of title I
Workforce Innovation and Opportunity Act funds' request for advance
approval of contemplated corrective actions?
(a) The recipient may request advance approval from the Grant
Officer for contemplated corrective actions, including debt collection
actions, which the recipient plans to initiate or to forego. The
recipient's request must include a description and an assessment of all
actions taken to collect the misspent funds.
(b) Based on the recipient's request, the Grant Officer may
determine that the recipient may forego certain debt collection actions
against a subrecipient when:
(1) The subrecipient meets the criteria set forth in WIOA sec.
184(d)(2);
(2) The misexpenditure of funds:
(i) Was not made by that subrecipient but by an entity that
received WIOA funds from that subrecipient;
(ii) Was not a violation of WIOA sec. 184(d)(1), did not constitute
fraud, or failure to disclose, in a timely manner, all violations of
Federal criminal law involving fraud, bribery, or gratuity violations
potentially affecting the Federal award; or
(iii) If fraud did exist,
(A) It was perpetrated against the subrecipient;
(B) The subrecipient discovered, investigated, reported, and
cooperated in any prosecution of the perpetrator of the fraud; and
(C) After aggressive debt collection action, it has been documented
that further attempts at debt collection from the perpetrator of the
fraud would be inappropriate or futile;
(3) A determination which disallows the misexpenditure and
establishes a debt has been issued at the appropriate level; and,
(4) Further debt collection action by that subrecipient or the
recipient would be either inappropriate or futile.
Sec. 683.750 What procedure must be used for administering the
offset/deduction provisions of the Workforce Innovation and Opportunity
Act?
(a)(1) For misexpenditures by direct recipients of title I and
Wagner-Peyser formula funds the Grant Officer may determine that a
debt, or a portion thereof, may be offset against amounts that are
allotted to the recipient. Recipients must submit a written request for
an offset to the Grant Officer. Generally, the Grant Officer will apply
the offset against amounts that are available at the recipient level
for administrative costs.
(2) The Grant Officer may approve an offset request, under
paragraph (a)(1) of this section, if the misexpenditures were not due
to willful disregard of the requirements of the Act and regulations,
fraud, gross negligence, failure to observe accepted standards of
administration or a pattern of misexpenditure.
(b) For subrecipient misexpenditures that were not due to willful
disregard of the requirements of the Act and regulations, fraud, gross
negligence, failure to observe accepted standards of administration or
a pattern of misexpenditure, if the Grant Officer has required the
State to repay or offset such amount, the State may deduct an amount
equal to the misexpenditure from the subrecipient's allocation of the
program year after the determination was made. Deductions are to be
made
[[Page 20891]]
from funds reserved for the administrative costs of the local programs
involved, as appropriate.
(c) If offset is granted, the debt will not be fully satisfied
until the Grant Officer reduces amounts allotted to the recipient by
the amount of the misexpenditure.
(d) For recipients of funds under title I and Wagner-Peyser funds,
a direct recipient may not make a deduction under paragraph (b) of this
section until the State has taken appropriate corrective action to
ensure full compliance within the local area with regard to appropriate
expenditure of WIOA funds.
Subpart H--Administrative Adjudication and Judicial Review
Sec. 683.800 What actions of the Department may be appealed to the
Office of Administrative Law Judges?
(a) An applicant for financial assistance under title I of WIOA who
is dissatisfied by a determination not to award Federal financial
assistance, in whole or in part, to such applicant; or a recipient,
subrecipient, or a contractor against which the Grant Officer has
directly imposed a sanction or corrective action under sec. 184 of
WIOA, including a sanction against a State under 20 CFR part 677, may
appeal to the U.S. Department of Labor, Office of Administrative Law
Judges (OALJ) within 21 days of receipt of the final determination.
(b) Failure to request a hearing within 21 days of receipt of the
final determination constitutes a waiver of the right to a hearing.
(c) A request for a hearing under this subpart must specifically
state those issues or findings in the final determination upon which
review is requested. Issues or findings in the final determination not
specified for review, or the entire final determination when no hearing
has been requested within the 21 days, are considered resolved and not
subject to further review. Only alleged violations of the Act, its
regulations, the grant or other agreement under the Act raised in the
final determination and the request for hearing are subject to review.
(d) A request for a hearing must be transmitted by certified mail,
return receipt requested, to the Chief Administrative Law Judge, U.S.
Department of Labor, Suite 400, 800 K Street NW., Washington, DC 20001,
with one copy to the Departmental official who issued the
determination.
(e) The procedures in this subpart apply in the case of a
complainant who has engaged in the alternative dispute resolution
process set forth in Sec. 683.840, if neither a settlement was reached
nor a decision issued within the 60 days, except that the request for
hearing before the OALJ must be filed within 15 days of the conclusion
of the 60-day period provided in Sec. 683.840. In addition to
including the final determination upon which review is requested, the
complainant must include a copy of any Stipulation of Facts and a brief
summary of proceedings.
Sec. 683.810 What rules of procedure apply to hearings conducted
under this subpart?
(a) Rules of practice and procedure. The rules of practice and
procedure promulgated by the OALJ at subpart A of 29 CFR part 18,
govern the conduct of hearings under this subpart. However, a request
for hearing under this subpart is not considered a complaint to which
the filing of an answer by the Department or a DOL agency or official
is required. Technical rules of evidence will not apply to hearings
conducted pursuant to this part. However, rules or principles designed
to assure production of the most credible evidence available and to
subject testimony to cross-examination will apply.
(b) Prehearing procedures. In all cases, the Administrative Law
Judge (ALJ) should encourage the use of prehearing procedures to
simplify and clarify facts and issues.
(c) Subpoenas. Subpoenas necessary to secure the attendance of
witnesses and the production of documents or other items at hearings
must be obtained from the ALJ and must be issued under the authority
contained in WIOA sec. 183(c), incorporating 15 U.S.C. 49.
(d) Timely submission of evidence. The ALJ must not permit the
introduction at the hearing of any documentation if it has not been
made available for review by the other parties to the proceeding either
at the time ordered for any prehearing conference, or, in the absence
of such an order, at least 3 weeks prior to the hearing date.
(e) Burden of production. The Grant Officer has the burden of
production to support her or his decision. This burden is satisfied
once the Grant Officer prepares and files an administrative file in
support of the decision which must be made part of the record.
Thereafter, the party or parties seeking to overturn the Grant
Officer's decision has the burden of persuasion.
Sec. 683.820 What authority does the Administrative Law Judge have in
ordering relief as an outcome of an administrative hearing?
(a) In ordering relief the ALJ has the full authority of the
Secretary under the Act, except as described in paragraph (b) of this
section.
(b) In grant selection appeals of awards funded under WIOA title I,
subtitle D:
(1) If the Administrative Law Judge rules, under Sec. 683.800,
that the appealing organization should have been selected for an award,
the matter must be remanded to the Grant Officer. The Grant Officer
must, within 10 working days, determine whether the organization
continues to meet the requirements of the applicable solicitation,
whether the funds which are the subject of the ALJ's decision will be
awarded to the organization, and the timing of the award. In making
this determination, the Grant Officer must take into account disruption
to participants, disruption to grantees, and the operational needs of
the program.
(2) If the Administrative Law Judge rules that additional
application review is required, the Grant Officer must implement that
review and, if a new organization is selected, follow the steps laid
out in paragraph (b)(1) of this section to determine whether the grant
funds will be awarded to that organization.
(3) In the event that the Grant Officer determines that the funds
will not be awarded to the appealing organization for the reasons
discussed in paragraph (b)(1) of this section, an organization which
does not have an approved Negotiated Indirect Cost Rate Agreement will
be awarded its reasonable application preparation costs.
(4) If funds are awarded to the appealing organization, the Grant
Officer will notify the current grantee within 10 days. In addition,
the appealing organization is not entitled to the full grant amount but
will only receive the funds remaining in the grant that have not been
obligated by the current grantee through its operation of the grant and
its subsequent closeout.
(5) In the event that an organization, other than the appealing
organization, is adversely effected by the Grant Officer's
determination upon completion of the additional application review
under paragraph (b)(2) of this section, that organization may appeal
that decision to the Office of Administrative Law Judges by following
the procedures set forth in Sec. 683.800.
(6) Any organization selected and/or funded under WIOA title I,
subtitle D, is subject to having its award removed
[[Page 20892]]
if an ALJ decision so orders. As part of this process, the Grant
Officer will provide instructions on transition and closeout to both
the newly selected grantee and to the grantee whose position is
affected or which is being removed. All awardees must agree to the
provisions of this paragraph as a condition of accepting a grant award.
Sec. 683.830 When will the Administrative Law Judge issue a decision?
(a) The ALJ should render a written decision not later than 90 days
after the closing of the record.
(b) The decision of the ALJ constitutes final agency action unless,
within 20 days of the decision, a party dissatisfied with the ALJ's
decision has filed a petition for review with the Administrative Review
Board (ARB) (established under Secretary's Order No. 02-2012),
specifically identifying the procedure, fact, law or policy to which
exception is taken. Any exception not specifically raised in the
petition is deemed to have been waived. A copy of the petition for
review must also be sent to the opposing party and if an applicant or
recipient, to the Grant Officer and the Grant Officer's Counsel at the
time of filing. Unless the ARB, within 30 days of the filing of the
petition for review, notifies the parties that the case has been
accepted for review, the decision of the ALJ constitutes final agency
action. Any case accepted by the ARB must be decided within 180 days of
acceptance. If not so decided, the decision of the ALJ constitutes
final agency action.
Sec. 683.840 Is there an alternative dispute resolution process that
may be used in place of an Office of Administrative Law Judges hearing?
(a) The parties to a complaint which has been filed according to
the requirements of Sec. 683.800 may choose to waive their rights to
an administrative hearing before the OALJ. Instead, they may choose to
transfer the settlement of their dispute to an individual acceptable to
all parties who will conduct an informal review of the stipulated facts
and render a decision in accordance with applicable law. A written
decision must be issued within 60 days after submission of the matter
for informal review.
(b) The waiver of the right to request a hearing before the OALJ
described in paragraph (a) of this section will automatically be
revoked if a settlement has not been reached or a written decision has
not been issued within the 60 days provided in paragraph (a) of this
section.
(c) The decision rendered under this informal review process will
be treated as a final decision of an Administrative Law Judge under
WIOA sec. 186(b).
Sec. 683.850 Is there judicial review of a final order of the
Secretary issued under WIOA?
(a) Any party to a proceeding which resulted in a Secretary's final
order under WIOA sec. 186 in which the Secretary awards, declines to
award, or only conditionally awards financial assistance or with
respect to a corrective action or sanction imposed under WIOA sec. 184
may obtain a review in the United States Court of Appeals having
jurisdiction over the applicant or recipient of funds involved, by
filing a review petition within 30 days of the issuance of the
Secretary's final order in accordance with WIOA sec. 187.
(b) The court has jurisdiction to make and enter a decree
affirming, modifying, or setting aside the order of the Secretary, in
whole or in part.
(c) No objection to the Secretary's order may be considered by the
court unless the objection was specifically urged, in a timely manner,
before the Secretary. The review is limited to questions of law, and
the findings of fact of the Secretary are conclusive if supported by
substantial evidence.
(d) The judgment of the court is final, subject to certiorari
review by the United States Supreme Court.
0
11. Add part 684 to read as follows:
PART 684--INDIAN AND NATIVE AMERICAN PROGRAMS UNDER TITLE I OF THE
WORKFORCE INNOVATION AND OPPORTUNITY ACT
Subpart A--Purposes and Policies
Sec.
684.100 What is the purpose of the programs established to serve
Indians and Native Americans under of the Workforce Innovation and
Opportunity Act?
684.110 How must Indian and Native American programs be
administered?
684.120 What obligation does the Department have to consult with the
Indian and Native American program grantee community in developing
rules, regulations, and standards of accountability for Indian and
Native American programs?
684.130 What definitions apply to terms used in this part?
Subpart B--Service Delivery Systems Applicable to Section 166 Programs
684.200 What are the requirements to apply for a Workforce
Innovation and Opportunity Act grant?
684.210 What priority for awarding grants is given to eligible
organizations?
684.220 What is the process for applying for a Workforce Innovation
and Opportunity Act grant?
684.230 What appeal rights are available to entities that are denied
a grant award?
684.240 Are there any other ways in which an entity may be awarded a
Workforce Innovation and Opportunity Act grant?
684.250 Can an Indian and Native American program grantee's grant
award be terminated?
684.260 Does the Department have to award a grant for every part of
the country?
684.270 How are Workforce Innovation and Opportunity Act funds
allocated to Indian and Native American program grantees?
Subpart C--Services to Customers
684.300 Who is eligible to receive services under the Indian and
Native American program?
684.310 What are Indian and Native American program grantee
allowable activities?
684.320 Are there any restrictions on allowable activities?
684.330 What is the role of Indian and Native American program
grantees in the one-stop system?
684.340 What policies govern payments to participants, including
wages, training allowances or stipends, or direct payments for
supportive services?
684.350 What will the Department do to strengthen the capacity of
Indian and Native American program grantees to deliver effective
services?
Subpart D--Supplemental Youth Services
684.400 What is the purpose of the supplemental youth services
program?
684.410 What entities are eligible to receive supplemental youth
services funding?
684.420 What are the planning requirements for receiving
supplemental youth services funding?
684.430 What individuals are eligible to receive supplemental youth
services?
684.440 How is funding for supplemental youth services determined?
684.450 How will supplemental youth services be provided?
684.460 What performance measures are applicable to the supplemental
youth services program?
Subpart E--Services to Communities
684.500 What services may Indian and Native American program
grantees provide to or for employers under the WIOA?
684.510 What services may Indian and Native American program
grantees provide to the community at large under the WIOA?
684.520 Must Indian and Native American program grantees give
preference to Indian and Native American entities in the selection
of contractors or service providers?
684.530 What rules govern the issuance of contracts and/or
subgrants?
Subpart F--Accountability for Services and Expenditures
684.600 To whom is the Indian and Native American program grantee
accountable for the provision of services and the expenditure of
Indian and Native American funds?
[[Page 20893]]
684.610 How is this accountability documented and fulfilled?
684.620 What performance measures are in place for the Indian and
Native American program?
684.630 What are the requirements for preventing fraud and abuse
under the WIOA?
684.640 What grievance systems must an Indian and Native American
program grantee provide?
684.650 Can Indian and Native American program grantees exclude
segments of the eligible population?
Subpart G--Section 166 Planning/Funding Process
684.700 What is the process for submitting a 4-year plan?
684.710 What information must be included in the 4-year plans as
part of the competitive application?
684.720 When must the 4-year plan be submitted?
684.730 How will the Department review and approve such plans?
684.740 Under what circumstances can the Department or the Indian
and Native American program grantee modify the terms of the
grantee's plan(s)?
Subpart H--Administrative Requirements
684.800 What systems must an Indian and Native American program
grantee have in place to administer an Indian and Native American
program?
684.810 What types of costs are allowable expenditures under the
Indian and Native American program?
684.820 What rules apply to administrative costs under the Indian
and Native American program?
684.830 Does the Workforce Innovation and Opportunity Act
administrative cost limit for States and local areas apply to WIOA
grants?
684.840 How should Indian and Native American program grantees
classify costs?
684.850 What cost principles apply to Indian and Native American
funds?
684.860 What audit requirements apply to Indian and Native American
grants?
684.870 What is ``program income'' and how is it regulated in the
Indian and Native American program?
Subpart I--Miscellaneous Program Provisions
684.900 Does the Workforce Innovation and Opportunity Act provide
regulatory and/or statutory waiver authority?
684.910 What information is required in a waiver request?
684.920 What provisions of law or regulations may not be waived?
684.930 May Indian and Native American program grantees combine or
consolidate their employment and training funds?
684.940 What is the role of the Native American Employment and
Training Council?
684.950 Does the Workforce Innovation and Opportunity Act provide
any additional assistance to unique populations in Alaska and
Hawaii?
Authority: Secs. 134, 166, 189, 503, Pub. L. 113-128, 128 Stat.
1425 (Jul. 22, 2014).
Subpart A--Purposes and Policies
Sec. 684.100 What is the purpose of the programs established to serve
Indians and Native Americans under the Workforce Innovation and
Opportunity Act?
(a) The purpose of WIOA INA programs in sec. 166 is to support
employment and training activities for INAs in order to:
(1) Develop more fully the academic, occupational, and literacy
skills of such individuals;
(2) Make such individuals more competitive in the workforce and to
equip them with entrepreneurial skills necessary for successful self-
employment; and
(3) Promote the economic and social development of INA communities
in accordance with the goals and values of such communities.
(b) The principal means of accomplishing these purposes is to
enable tribes and Native American organizations to provide employment
and training services to INAs and their communities. Services should be
provided in a culturally appropriate manner, consistent with the
principles of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.). (WIOA sec. 166(a)(2)).
Sec. 684.110 How must Indian and Native American programs be
administered?
(a) INA programs will be administered to maximize the Federal
commitment to support the growth and development of INAs and their
communities as determined by representatives of such communities.
(b) In administering these programs, the Department will follow the
Congressional declaration of policy set forth in the Indian Self-
Determination and Education Assistance Act, at 25 U.S.C. 450a, as well
as the Department of Labor's ``American Indian and Alaska Native
Policies.
(c) The regulations in this part are not intended to abrogate the
trust responsibilities of the Federal government to federally-
recognized tribes in any way.
(d) The Department will administer INA programs through a single
organizational unit and consistent with the requirements in sec. 166(i)
of WIOA. The Division of Indian and Native American Programs (DINAP)
within the Employment and Training Administration (ETA) is designated
as this single organizational unit as required by sec. 166(i)(1) of
WIOA.
(e) The Department will establish and maintain administrative
procedures for the selection, administration, monitoring, and
evaluation of INA employment and training programs authorized under
this Act.
Sec. 684.120 What obligation does the Department have to consult with
the Indian and Native American grantee community in developing rules,
regulations, and standards of accountability for Indian and Native
American programs?
The Department's primary consultation vehicle for INA programs is
the Native American Employment and Training Council. The Department
will consult with the INA grantee community in developing policies for
the INA programs, actively seeking and considering the views of INA
grantees prior to establishing INA program policies and regulations.
(WIOA sec. 166(i)(4)). The Department will follow DOL's tribal
consultation policy and Executive Order 13175 of November 6, 2000.
Sec. 684.130 What definitions apply to terms used in this part?
In addition to the definitions found in secs. 3 and 166 of WIOA,
and 20 CFR 675.300, the following definitions apply:
Alaska Native-Controlled Organization means an organization whose
governing board is comprised of 51 percent or more of individuals who
are Alaska Native as defined in secs. 3(b) and 3(r) of the Alaska
Native Claims Settlement Act (43 U.S.C. 1602(b), (r)).
Carry-in means the total amount of funds unobligated by a grantee
at the end of a program year. If the amount of funds unobligated by a
grantee at the end of a program year is more than 20 percent of the
grantee's ``total funds available'' for that program year, such excess
amount is considered ``excess carry-in.''
DINAP means the Division of Indian and Native American Programs
within the Employment and Training Administration of the U.S.
Department of Labor.
Governing body means a body of representatives who are duly
elected, appointed by duly elected officials, or selected according to
traditional tribal means. A governing body must have the authority to
provide services to and to enter into grants on behalf of the
organization that selected or designated it.
Grant Officer means a U.S. Department of Labor official authorized
to obligate Federal funds.
High-poverty area means a Census tract, a set of contiguous Census
tracts, or a county or Indian reservation that has a poverty rate of at
least 30 percent
[[Page 20894]]
as set every 5 years using American Community Survey 5-Year data.
INA Grantee means an entity which is formally selected under
subpart B of this part to operate an INA program and which has a grant
agreement.
Incumbent Grantee means an entity that is currently receiving a
grant under this subpart.
Indian and Native American or INA means, for the purpose of this
part, an individual that is an American Indian, Native American, Native
Hawaiian, or Alaska Native.
Indian-Controlled Organization means an organization whose
governing board is comprised of 51 percent or more individuals who are
members of one or more Federally-recognized tribes. Incumbent grantees
who received funding under WIA can include members of ``State
recognized tribes'' in meeting the 51 percent threshold to continue to
be eligible for WIOA sec. 166 funds as an Indian-Controlled
Organization. Tribal Colleges and Universities meet the definition of
Indian-Controlled Organization for the purposes of this regulation.
Native Hawaiian-Controlled Organization means an organization whose
governing board is comprised of 51 percent or more individuals who are
Native Hawaiian as defined in sec. 7207 of the Native Hawaiian
Education Act (20 U.S.C. 7517).
Total funds available means all funds that a grantee had
``available'' at the beginning of a program year.
Underemployed means an individual who is working part-time but
desires full-time employment, or who is working in employment not
commensurate with the individual's demonstrated level of educational
and/or skill achievement.
Subpart B--Service Delivery Systems Applicable to Section 166
Programs
Sec. 684.200 What are the requirements to apply for a Workforce
Innovation and Opportunity Act grant?
(a) To be eligible to apply for a WIOA, sec. 166 grant, an entity
must have:
(1) Legal status as a government or as an agency of a government,
private non-profit corporation, or a consortium whose members all
qualify as one of these entities; and
(2) A new entity (which is not an incumbent grantee) must have a
population within the designated geographic service area which would
receive at least $100,000 under the funding formula found at Sec.
684.270(b), including any amounts received for supplemental youth
services under the funding formula at Sec. 684.440(a). Incumbent
grantees which do not meet this dollar threshold will be grandfathered
in. Additionally, the Department will make an exception to the $100,000
minimum for grantees wishing to participate in the demonstration
program under Public Law 102-477 if all resources to be consolidated
under the Public Law 102-477 plan total at least $100,000, with at
least $20,000 derived from sec. 166 funds. However, incumbent Public
Law 102-477 grantees that are receiving WIA funding of less than
$20,000 as of the date of implementation of WIOA will be grandfathered
into the program and can continue to be awarded the same amount.
(b) To be eligible to apply as a consortium, each member of the
consortium must meet the requirements of paragraph (a) of this section
and must:
(1) Be in close proximity to one another, but may operate in more
than one State;
(2) Have an administrative unit legally authorized to run the
program and to commit the other members to contracts, grants, and other
legally-binding agreements; and
(3) Be jointly and individually responsible for the actions and
obligations of the consortium, including debts.
(c) Entities eligible under paragraph (a)(1) of this section are:
(1) Federally-recognized Indian tribes;
(2) Tribal organizations, as defined in 25 U.S.C. 450b;
(3) Alaska Native-controlled organizations;
(4) Native Hawaiian-controlled organizations;
(5) Indian-controlled organizations serving INAs; and
(6) A consortium of eligible entities which meets the legal
requirements for a consortium described in paragraph (b) of this
section.
(d) State-recognized tribal organizations that meet the definition
of an Indian-controlled organization are eligible to apply for WIOA
sec. 166 grant funds. State-recognized tribes that do not meet this
definition but are grantees under WIA will be grandfathered into WIOA
as Indian-controlled organizations.
Sec. 684.210 What priority for awarding grants is given to eligible
organizations?
(a) Federally-recognized Indian tribes, Alaska Native entities, or
a consortium of such entities will have priority to receive grants
under this part for those geographic service areas in which they have
legal jurisdiction, such as an Indian reservation, Oklahoma Tribal
Service Area (OTSA), or Alaska Native Village Service Area (ANVSA).
(b) If the Department decides not to make an award to an Indian
tribe or Alaska Native entity that has legal jurisdiction over a
service area, it will consult with such tribe or Alaska Native entity
that has jurisdiction before selecting another entity to provide
services for such areas.
(c) The priority described in paragraphs (a) and (b) of this
section does not apply to service areas outside the legal jurisdiction
of an Indian tribe or Alaska Native entity.
Sec. 684.220 What is the process for applying for a Workforce
Innovation and Opportunity Act grant?
(a) Entities seeking a WIOA sec. 166 grant, including incumbent
grantees, will be provided an opportunity to apply for a WIOA sec. 166
grant every 4 years through a competitive grant process.
(b) As part of the competitive application process, applicants will
be required to submit a 4-year plan as described at Sec. 684.710. The
requirement to submit a 4-year plan does not apply to entities that
have been granted approval to transfer their WIOA funds to the
Department of Interior pursuant to Public Law 102-477.
Sec. 684.230 What appeal rights are available to entities that are
denied a grant award?
Any entity that is denied a grant award for which it applied in
whole or in part may appeal the denial to the Office of the
Administrative Law Judges using the procedures at 20 CFR 683.800 or the
alternative dispute resolution procedures at 20 CFR 683.840. The Grant
Officer will provide an entity whose request for a grant award was
denied, in whole or in part, with a copy of the appeal procedures.
Sec. 684.240 Are there any other ways in which an entity may be
awarded a Workforce Innovation and Opportunity Act grant?
Yes. For areas that would otherwise go unserved, the Grant Officer
may designate an entity, which has not submitted a competitive
application, but which meets the qualifications for a grant award, to
serve the particular geographic area. Under such circumstances, DINAP
will seek the views of INA leaders in the community that would
otherwise go unserved before making the decision to designate the
entity that would serve the community. DINAP will inform the Grant
Officer of the INA leaders' views. The Grant Officer will accommodate
views of INA leaders in such areas to the extent possible.
[[Page 20895]]
Sec. 684.250 Can an Indian and Native American grantee's grant award
be terminated?
(a) Yes, the Grant Officer can terminate a grantee's award for
cause, or the Secretary or another Department of Labor official
confirmed by the Senate can terminate a grantee's award in emergency
circumstances where termination is necessary to protect the integrity
of Federal funds or ensure the proper operation of the program under
sec. 184(e) of WIOA.
(b) The Grant Officer may terminate a grantee's award for cause
only if there is a substantial or persistent violation of the
requirements in WIOA or the WIOA regulations. The grantee must be
provided with written notice 60 days before termination, stating the
specific reasons why termination is proposed. The appeal procedures at
20 CFR 683.800 apply.
Sec. 684.260 Does the Department have to award a grant for every part
of the country?
No, if there are no entities meeting the requirements for a grant
award in a particular area, or willing to serve that area, the
Department will not award funds for that service area. The funds that
otherwise would have been allocated to that area under Sec. 684.270
will be distributed to other INA program grantees, or used for other
program purposes such as technical assistance and training (TAT).
Unawarded funds used for technical assistance and training are in
addition to, and not subject to the limitations on, amounts reserved
under Sec. 684.270(e). Areas which are unserved by the INA program may
be restored during a subsequent grant award cycle, when and if a
current grantee or other eligible entity applies for a grant award to
serve that area.
Sec. 684.270 How are Workforce Innovation and Opportunity Act funds
allocated to Indian and Native American program grantees?
(a) Except for reserved funds described in paragraph (e) of this
section and funds used for other program purposes under Sec. 684.260,
all funds available for WIOA sec. 166(d)(2)(A)(i) comprehensive
workforce investment services program at the beginning of a program
year will be allocated to INA program grantees for the geographic
service area(s) awarded to them through the grant competition.
(b) Each INA program grantee will receive the sum of the funds
calculated using the following formula:
(1) One-quarter of the funds available will be allocated on the
basis of the number of unemployed American Indian, Alaska Native and
Native Hawaiian individuals in the grantee's geographic service area(s)
compared to all such unemployed persons in the United States.
(2) Three-quarters of the funds available will be allocated on the
basis of the number of American Indian, Alaska Native and Native
Hawaiian individuals in poverty in the grantee's geographic service
area(s) as compared to all such persons in poverty in the United
States.
(3) The data and definitions used to implement these formulas are
provided by the U.S. Bureau of the Census.
(c) In years immediately following the use of new data in the
formula described in paragraph (b) of this section, based upon criteria
to be described in the Funding Opportunity Announcement (FOA), the
Department may utilize a hold harmless factor to reduce the disruption
in grantee services which would otherwise result from changes in
funding levels. This factor will be determined in consultation with the
grantee community and the Native American Employment and Training
Council.
(d) The Department may reallocate funds from one INA program
grantee to another if a grantee is unable to serve its area for any
reason, such as audit or debt problems, criminal activity, internal
(political) strife, failure to adhere to or meet grant terms and
conditions, or lack of ability or interest. If a grantee has excess
carry-in for a program year, the Department may also readjust the
awards granted under the funding formula so that an amount that equals
the previous program year's carry-in will be allocated to another INA
program grantee(s).
(e) The Department may reserve up to one percent of the funds
appropriated under WIOA sec. 166(d)(2)(A)(i) for any program year for
technical assistance and training (TAT) purposes. It will consult with
the Native American Employment and Training Council in planning how the
TAT funds will be used, designating activities to meet the unique needs
of the INA communities served by the INA program. Section 166 grantees
also will have access to resources available to other Department
programs to the extent permitted under other law.
Subpart C--Services to Customers
Sec. 684.300 Who is eligible to receive services under the Indian and
Native American program?
(a) A person is eligible to receive services under the INA program
if that person is:
(1) An Indian, as determined by a policy of the INA program
grantee. The grantee's definition must at least include anyone who is a
member of a Federally-recognized tribe; or
(2) An Alaska Native, as defined in WIOA sec. 166(b)(1); or
(3) A Native Hawaiian, as defined in WIOA sec. 166(b)(3).
(b) The person also must be any one of the following:
(1) Unemployed; or
(2) Underemployed, as defined in Sec. 684.130; or
(3) A low-income individual, as defined in sec. 3(36) of WIOA; or
(4) The recipient of a bona fide lay-off notice which has taken
effect in the last 6 months or will take effect in the following 6-
month period, who is unlikely to return to a previous industry or
occupation, and who is in need of retraining for either employment with
another employer or for job retention with the current employer; or
(5) An individual who is employed, but is determined by the grantee
to be in need of employment and training services to obtain or retain
employment that allows for self-sufficiency.
(c) If applicable, male applicants must also register or be
registered for the Selective Service.
Sec. 684.310 What are Indian and Native American program grantee
allowable activities?
(a) Generally, INA program grantees must make efforts to provide
employment and training opportunities to eligible individuals (as
described in Sec. 684.300) who can benefit from, and who are most in
need of, such opportunities. In addition, INA program grantees must
make efforts to develop programs that contribute to occupational
development, upward mobility, development of new careers, and
opportunities for nontraditional employment (WIOA sec. 194(1)).
(b) Allowable activities for INA program grantees are any services
consistent with the purposes of this part that are necessary to meet
the needs of INAs preparing to enter, reenter, or retain unsubsidized
employment leading to self-sufficiency (WIOA sec. 166(d)(1)(B)).
(c) Examples of career services, which may be delivered in
partnership with the one-stop delivery system, are described in sec.
134(c)(2) of WIOA and Sec. 678.430.
(d) Follow-up services, including counseling and supportive
services for up to 12 months after the date of exit to assist
participants in obtaining and retaining employment.
(e) Training services include the activities described in WIOA sec.
134(c)(3)(D).
[[Page 20896]]
(f) Allowable activities specifically designed for youth, as listed
in sec. 129 of WIOA, include:
(1) Tutoring, study skills training, instruction, and evidence-
based dropout prevention and recovery strategies that lead to
completion of the requirements for a secondary school diploma or its
recognized equivalent (including a recognized certificate of attendance
or similar document for individuals with disabilities) or for a
recognized post-secondary credential;
(2) Alternative secondary school services, or dropout recovery
services, as appropriate;
(3) Paid and unpaid work experiences that have as a component
academic and occupational education, which may include:
(i) Summer employment opportunities and other employment
opportunities available throughout the school year;
(ii) Pre-apprenticeship programs;
(iii) Internships and job shadowing; and
(iv) On-the-job training opportunities;
(4) Occupational skill training, which must include priority
consideration for training programs that lead to recognized post-
secondary credentials that are aligned with in-demand industry sectors
or occupations in the local area involved;
(5) Education offered concurrently with and in the same context as
workforce preparation activities and training for a specific occupation
or occupational cluster;
(6) Leadership development opportunities, which may include
community service and peer-centered activities encouraging
responsibility and other positive social and civic behaviors, as
appropriate;
(7) Supportive services as defined in WIOA sec. 3(59);
(8) Adult mentoring for the period of participation and a
subsequent period, for a total of not less than 12 months;
(9) Follow-up services for not less than 12 months after the
completion of participation, as appropriate;
(10) Comprehensive guidance and counseling, which may include drug
and alcohol abuse counseling and referral, as appropriate;
(11) Financial literacy education;
(12) Entrepreneurial skills training;
(13) Services that provide labor market and employment information
about in-demand industry sectors or occupations available in the local
area, such as career awareness, career counseling, and career
exploration services; and
(14) Activities that help youth prepare for and transition to post-
secondary education and training.
(g) In addition, allowable activities include job development and
employment outreach, including:
(1) Support of the Tribal Employment Rights Office (TERO) program;
(2) Negotiation with employers to encourage them to train and hire
participants;
(3) Establishment of linkages with other service providers to aid
program participants;
(4) Establishment of management training programs to support tribal
administration or enterprises; and
(5) Establishment of linkages with remedial education, such as
Adult Basic Education (ABE), basic literacy training, and English-as-a-
second-language (ESL) training programs, as necessary.
(h) Participants may be enrolled in more than one activity at a
time and may be sequentially enrolled in multiple activities.
(i) Services may be provided to a participant in any sequence based
on the particular needs of the participant.
Sec. 684.320 Are there any restrictions on allowable activities?
(a) Training services must be directly linked to an in-demand
industry sector or occupation in the service area, or in another area
to which a participant receiving such services is willing to relocate
(WIOA sec. 134(c)(3)(A)(i)(II)).
(b) INA grantees must provide On-the-Job Training (OJT) services
consistent with the definition provided in WIOA sec. 3(44) and other
limitations in WIOA. Individuals in OJT must:
(1) Be compensated at the same rates, including periodic increases,
as trainees or employees who are similarly situated in similar
occupations by the same employer and who have similar training,
experience, and skills (WIOA sec. 181(a)(1)); and
(2) Be provided benefits and working conditions at the same level
and to the same extent as other trainees or employees working a similar
length of time and doing the same type of work. (WIOA sec. 181(b)(5))
(c) In addition, OJT contracts under this title must not be entered
into with employers who have:
(1) Received payments under previous contracts under WIOA or the
Workforce Investment Act of 1998 and have exhibited a pattern of
failing to provide on-the-job training participants with continued,
long-term employment as regular employees with wages and employment
benefits (including health benefits) and working conditions at the same
level and to the same extent as other employees working a similar
length of time and doing the same type of work (WIOA sec. 194(4)); or
(2) Have exhibited a pattern of violating paragraphs (b)(1) and/or
(2) of this section. (WIOA sec. 194(4)).
(d) INA program grantees are prohibited from using funds to
encourage the relocation of a business, as described in WIOA sec.
181(d) and 20 CFR 683.260.
(e) INA program grantees must only use WIOA funds for activities
that are in addition to those that would otherwise be available to the
INA population in the area in the absence of such funds (WIOA sec.
194(2)).
(f) INA program grantees must not spend funds on activities that
displace currently employed individuals, impair existing contracts for
services, or in any way affect union organizing.
(g) Under 20 CFR 683.255, sectarian activities involving WIOA
financial assistance or participants are limited in accordance with the
provisions of sec. 188(a)(3) of WIOA.
Sec. 684.330 What is the role of Indian and Native American program
grantees in the one-stop system?
(a) In those local workforce investment areas where an INA program
grantee conducts field operations or provides substantial services, the
INA program grantee is a required partner in the local one-stop
delivery system and is subject to the provisions relating to such
partners described in 20 CFR part 678. Consistent with those
provisions, a Memorandum of Understanding (MOU) between the INA program
grantee and the Local Board over the operation of the one-stop
center(s) in the Local Board's workforce investment area also must be
executed. Where the Local Board is an alternative entity under 20 CFR
679.150, the INA program grantee must negotiate with the alternative
entity on the terms of its MOU and the scope of its on-going role in
the local workforce investment system, as specified in 20 CFR
679.410(b)(2). In local areas with a large concentration of potentially
eligible INA participants, which are in an INA program grantee's
service area but in which the grantee does not conduct operations or
provide substantial services, the INA program grantee should encourage
such individuals to participate in the one-stop system in that area in
order to receive WIOA services.
(b) At a minimum, the MOU must contain to the provisions listed in
WIOA sec. 121(c) and:
(1) The exchange of information on the services available and
accessible through the one-stop system and the INA program;
(2) As necessary to provide referrals and case management services,
the
[[Page 20897]]
exchange of information on INA participants in the one-stop system and
the INA program;
(3) Arrangements for the funding of services provided by the one-
stop(s), consistent with the requirements at 20 CFR 678.425 that no
expenditures may be made with INA program funds for individuals who are
not eligible or for services not authorized under this part.
(c) Where the INA program grantee has failed to enter into a MOU
with the Local Board, the INA program grantee must describe in its 4-
year plan the good-faith efforts made in order to negotiate an MOU with
the Local Board.
(d) Pursuant to WIOA sec. 121(h)(2)(D)(iv), INA program grantees
will not be subject to the funding of the one-stop infrastructure
unless otherwise agreed upon in the MOU under subpart C of 20 CFR part
678.
Sec. 684.340 What policies govern payments to participants, including
wages, training allowances or stipends, or direct payments for
supportive services?
(a) INA program grantees may pay training allowances or stipends to
participants for their successful participation in and completion of
education or training services (except such allowance may not be
provided to participants in OJT). Allowances or stipends may not exceed
the Federal or State minimum wage, whichever is higher.
(b) INA program grantees may not pay a participant in a training
activity when the person fails to participate without good cause.
(c) If a participant in a WIOA-funded activity, including
participants in OJT, is involved in an employer-employee relationship,
that participant must be paid wages and fringe benefits at the same
rates as trainees or employees who have similar training, experience
and skills and which are not less than the higher of the applicable
Federal, State or local minimum wage.
(d) In accordance with the policy described in the 4-year plan
submitted as part of the competitive process, INA program grantees may
pay incentive bonuses to participants who meet or exceed individual
employability or training goals established in writing in the
individual employment plan.
(e) INA program grantees must comply with other restrictions listed
in WIOA secs. 181 through 195, which apply to all programs funded under
title I of WIOA, including the provisions on labor standards in WIOA
sec. 181(b).
Sec. 684.350 What will the Department do to strengthen the capacity
of Indian and Native American program grantees to deliver effective
services?
The Department will provide appropriate technical assistance and
training (TAT), as necessary, to INA program grantees. This TAT will
assist INA program grantees to improve program performance and improve
the quality of services to the target population(s), as resources
permit. (WIOA sec. 166(i)(5))
Subpart D--Supplemental Youth Services
Sec. 684.400 What is the purpose of the supplemental youth services
program?
The purpose of this program is to provide supplemental employment
and training and related services to low-income INA youth on or near
Indian reservations and in Oklahoma, Alaska, or Hawaii. (WIOA sec.
166(d)(2)(A)(ii))
Sec. 684.410 What entities are eligible to receive supplemental youth
services funding?
Entities eligible to receive supplemental youth services funding
are limited to Federally-recognized tribes that have a land base in
which they have legal jurisdiction such as an Indian reservation,
Oklahoma Tribal Service Area (OTSA), Alaska Native Village Service Area
(ANVSA) etc., and Native Hawaiian organizations in the State of Hawaii.
American Indian, Alaskan Native -controlled non-profit organizations
may receive youth funding if they are providing services to an area
where the Indian tribe or Alaska Native entity has legal jurisdiction
on behalf of the tribe or entity with legal jurisdiction.
Sec. 684.420 What are the planning requirements for receiving
supplemental youth services funding?
Applicants eligible to apply for supplemental youth funding must
describe the supplemental youth services they intend to provide in the
4-year plan that they will submit as part of the competitive
application process. The information on youth services will be
incorporated into the overall 4-year plan, which is more fully
described in Sec. Sec. 684.700 and 684.710, and is required for both
adult and youth funds. As indicated in Sec. 684.710(c), additional
planning information required for applicants requesting supplemental
youth funding will be provided in the FOA. The Department envisions
that the strategy for youth funds will not be extensive; however,
grantees will be required to provide the number of youth it plans to
serve and projected performance outcomes. The Department also supports
youth activities that preserve INA culture and will support strategies
that promote INA values.
Sec. 684.430 What individuals are eligible to receive supplemental
youth services?
(a) Participants in supplemental youth services activities must be;
(1) American Indian, Alaska Native or Native Hawaiian as determined
by the INA program grantee according to Sec. 684.300(a);
(2) Between the age of 14 and 24; and
(3) A low-income individual as defined at WIOA sec. 3(36) except up
to five percent of the participants during a program year in an INA
youth program may not be low-income individuals provided they meet the
eligibility requirements of paragraphs (a)(1) and (2) of this section.
(b) For the purpose of this section, the term ``low-income'', used
with respect to an individual, also includes a youth living in a high-
poverty area. (WIOA sec.129(a)(2))
Sec. 684.440 How is funding for supplemental youth services
determined?
(a) Supplemental youth funding will be allocated to eligible INA
program grantees on the basis of the relative number of INA youth
between the ages of 14 and 24 living in poverty in the grantee's
geographic service area compared to the number of INA youth between the
ages of 14 and 24 living in poverty in in all eligible geographic
service areas. The Department reserves the right to redefine the
supplemental youth funding stream in future program years, in
consultation with the Native American Employment and Training Council,
as program experience warrants and as appropriate data become
available.
(b) The data used to implement this formula are provided by the
U.S. Bureau of the Census.
(c) The hold harmless factor described in Sec. 684.270(c) also
applies to supplemental youth services funding. This factor also will
be determined in consultation with the grantee community and the Native
American Employment and Training Council.
(d) The reallocation provisions of Sec. 684.270(d) also apply to
supplemental youth services funding.
(e) Any supplemental youth services funds not allotted to a grantee
or refused by a grantee may be used for the purposes outlined in Sec.
684.270(e), as described in Sec. 684.260. Any such funds are in
addition to, and not subject to the limitations on, amounts reserved
under Sec. 684.270(e).
[[Page 20898]]
Sec. 684.450 How will supplemental youth services be provided?
(a) INA program grantees may offer supplemental services to youth
throughout the school year, during the summer vacation, and/or during
other breaks during the school year at their discretion;
(b) The Department encourages INA program grantees to work with
local educational agencies to provide academic credit for youth
activities whenever possible;
(c) INA program grantees may provide participating youth with the
activities referenced in Sec. 684.310(e).
Sec. 684.460 What performance measures are applicable to the
supplemental youth services program?
(a) Pursuant to WIOA secs. 166(e)(5) and 166(h), the performance
measures at WIOA sec. 116(b)(2)(A)(ii) apply to the INA youth program
which must include:
(1) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the second
quarter after exit from the program;
(2) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the fourth
quarter after exit from the program;
(3) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(4) The percentage of program participants who obtain a recognized
post-secondary credential, or a secondary school diploma or its
recognized equivalent (subject to WIOA sec. 116(b)(2)(A)(iii)) during
participation in or within 1 year after exit from the program;
(5) The percentage of program participants who, during a program
year, are in an education or training program that leads to a
recognized post-secondary credential or employment and who are
achieving measurable skill gains toward such a credential or
employment;
(6) The indicators of effectiveness in serving employers
established under WIOA sec. 116(b)(2)(A)(iv).
(b) In addition to the performance measures indicated in paragraphs
(a)(1) through (6) of this section, the Secretary, in consultation with
the Native American Employment and Training Council, must develop a set
of performance indicators and standards that is in addition to the
primary indicators of performance that are applicable to the INA
program under this section.
Subpart E--Services to Communities
Sec. 684.500 What services may Indian and Native American grantees
provide to or for employers under the WIOA?
(a) INA program grantees may provide a variety of services to
employers in their areas. These services may include:
(1) Workforce planning which involves the recruitment of current or
potential program participants, including job restructuring services;
(2) Recruitment and assessment of potential employees, with
priority given to potential employees who are or who might become
eligible for program services;
(3) Pre-employment training;
(4) Customized training;
(5) On-the-Job training (OJT);
(6) Post-employment services, including training and support
services to encourage job retention and upgrading;
(7) Work experience for public or private sector work sites;
(8) Other innovative forms of worksite training.
(b) In addition to the services listed in paragraph (a) of this
section, other grantee-determined services (as described in the
grantee's 4-year plan), which are intended to assist eligible
participants to obtain or retain employment may also be provided to or
for employers.
Sec. 684.510 What services may Indian and Native American grantees
provide to the community at large under the WIOA?
(a) INA program grantees may provide services to the INA
communities in their service areas by engaging in program development
and service delivery activities which:
(1) Strengthen the capacity of Indian-controlled institutions to
provide education and work-based learning services to INA youth and
adults, whether directly or through other INA institutions such as
tribal colleges;
(2) Increase the community's capacity to deliver supportive
services, such as child care, transportation, housing, health, and
similar services needed by clients to obtain and retain employment;
(3) Use program participants engaged in education, training, work
experience, or similar activities to further the economic and social
development of INA communities in accordance with the goals and values
of those communities; and
(4) Engage in other community-building activities described in the
INA grantee's 4-year plan.
(b) INA grantees program should develop their 4-year plan in
conjunction with, and in support of, strategic tribal planning and
community development goals.
Sec. 684.520 Must Indian and Native American program grantees give
preference to Indian and Native American entities in the selection of
contractors or service providers?
Yes, INA program grantees must give as much preference as possible
to Indian organizations and to Indian-owned economic enterprises, as
defined in sec. 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452),
when awarding any contract or subgrant.
Sec. 684.530 What rules govern the issuance of contracts and/or
subgrants?
In general, INA program grantees must follow the rules of Uniform
administrative requirements, Cost Principles, & Audit Requirements for
Federal Awards when awarding contracts and/or subgrants under WIA sec.
166. These requirements are codified at 2 CFR part 200 subpart E.
Common rules implementing those circulars are codified for Department-
funded programs at 29 CFR part 97 (A-102) or 29 CFR part 95 (A-110),
and covered in WIA regulations at 20 CFR 683.200. These rules do not
apply to OJT contract awards.
Subpart F--Accountability for Services and Expenditures
Sec. 684.600 To whom is the Indian and Native American program
grantee accountable for the provision of services and the expenditure
of Indian and Native American funds?
(a) The INA program grantee is responsible to the INA community to
be served by INA funds.
(b) The INA program grantee is also responsible to the Department
of Labor, which is charged by law with ensuring that all WIOA funds are
expended:
(1) According to applicable laws and regulations;
(2) For the benefit of the identified INA client group; and
(3) For the purposes approved in the grantee's plan and signed
grant document.
Sec. 684.610 How is this accountability documented and fulfilled?
(a) Each INA program grantee must establish its own internal
policies and procedures to ensure accountability to the INA program
grantee's governing body, as the representative of the INA
community(ies) served by the INA program. At a minimum, these policies
and procedures must provide a system for governing body review and
oversight of program plans and measures and standards for program
performance.
[[Page 20899]]
(b) Accountability to the Department is accomplished in part
through on-site program reviews (monitoring), which strengthen the INA
program grantee's capability to deliver effective services and protect
the integrity of Federal funds.
(c) In addition to audit information, as described at Sec. 684.860
and program reviews, accountability to the Department is documented and
fulfilled by the submission of quarterly financial and program reports,
and compliance with the terms and conditions of the grant award.
Sec. 684.620 What performance measures are in place for the Indian
and Native American program?
(a) Pursuant to WIOA secs. 166(e)(5) and 166(h), the performance
measures at WIOA sec. 116(b)(2)(A)(i) apply to the INA program which
must include:
(1) The percentage of program participants who are in unsubsidized
employment during the second quarter after exit from the program;
(2) The percentage of program participants who are in unsubsidized
employment during the fourth quarter after exit from the program;
(3) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(4) The percentage of program participants who obtain a recognized
post-secondary credential, or a secondary school diploma or its
recognized equivalent (subject to WIOA sec. 116(b)(2)(A)(iii)) during
participation in or within 1 year after exit from the program;
(5) The percentage of program participants who, during a program
year, are in an education or training program that leads to a
recognized post-secondary credential or employment and who are
achieving measurable skill gains toward such a credential or
employment; and
(6) The indicators of effectiveness in serving employers
established under WIOA sec. 116(b)(2)(A)(iv).
(b) In addition to the performance measures at WIOA sec.
116(b)(2)(A)(i), the Department, in consultation with the Native
American Employment and Training Council, must develop a set of
performance indicators and standards that are applicable to the INA
program.
Sec. 684.630 What are the requirements for preventing fraud and abuse
under the WIOA?
(a) INA program grantees must establish such fiscal control and
fund accounting procedures as may be necessary to assure the proper
disbursal of, and accounting for, Federal funds. Such procedures must
ensure that all financial transactions are conducted and records
maintained in accordance with generally accepted accounting principles.
(b) Each INA program grantee must have rules to prevent conflict of
interest by its governing body. These conflict of interest rules must
include a rule prohibiting any member of any governing body or council
associated with the INA program grantee from voting on any matter which
would provide a direct financial benefit to that member, or to a member
of his or her immediate family, in accordance with 20 CFR 683.200(a)(4)
and 2 CFR 200 and 2900.
(c) Officers or agents of the INA program grantee must not solicit
or personally accept gratuities, favors, or anything of monetary value
from any actual or potential contractor, subgrantee, vendor or
participant. This rule must also apply to officers or agents of the
grantee's contractors and/or subgrantees. This prohibition does not
apply to:
(1) Any rebate, discount or similar incentive provided by a vendor
to its customers as a regular feature of its business;
(2) Items of nominal monetary value distributed consistent with the
cultural practices of the INA community served by the grantee.
(d) No person who selects program participants or authorizes the
services provided to them may select or authorize services to any
participant who is such a person's spouse, parent, sibling, or child
unless:
(1)(i) The participant involved is a low-income individual; or
(ii) The community in which the participant resides has a
population of less than 1,000 INAs combined; and
(2) The INA program grantee has adopted and implemented the policy
described in the 4-year plan to prevent favoritism on behalf of such
relatives.
(e) INA program grantees are subject to the provisions of 41 U.S.C.
8702 relating to kickbacks.
(f) No assistance provided under this Act may involve political
activities (WIOA sec. 194(6)).
(g) INA program grantees must comply with the restrictions on
lobbying activities pursuant to sec. 195 of WIOA and the restrictions
on lobbying codified in the Department regulations at 29 CFR part 93.
(h) The provisions of 18 U.S.C. 665 and 666 prohibiting
embezzlement apply to programs under WIOA.
(i) Recipients of financial assistance under WIOA sec. 166 are
prohibited from discriminatory practices as outlined at WIOA sec. 188,
and the regulations implementing WIA sec. 188, at 29 CFR part 37.
However, this does not affect the legal requirement that all INA
participants be INAs. Also, INA program grantees are not obligated to
serve populations outside the geographic boundaries for which they
receive funds. However, INA program grantees are not precluded from
serving eligible individuals outside their geographic boundaries if the
INA program grantee chooses to do so.
Sec. 684.640 What grievance systems must an Indian and Native
American program granteeprovide?
INA program grantees must establish grievance procedures consistent
with the requirements of WIOA sec. 181(c) and 20 CFR 683.600.
Sec. 684.650 Can Indian and Native American grantees exclude segments
of the eligible population?
(a) No, INA program grantees cannot exclude segments of the
eligible population except as otherwise provided in this part. INA
program grantees must document in their 4-year plan that a system is in
place to afford all members of the eligible population within the
service area for which the grantee was designated an equitable
opportunity to receive WIOA services and activities.
(b) Nothing in this section restricts the ability of INA program
grantees to target subgroups of the eligible population (for example,
the disabled, substance abusers, TANF recipients, or similar
categories), as outlined in an approved 4-year plan. However, it is
unlawful to target services to subgroups on grounds prohibited by WIOA
sec. 188 and 29 CFR part 37, including tribal affiliation (which is
considered national origin). Outreach efforts, on the other hand, may
be targeted to any subgroups.
Subpart G--Section 166 Planning/Funding Process
Sec. 684.700 What is the process for submitting a 4-year plan?
Every 4 years, INA program grantees must submit a 4-year strategy
for meeting the needs of INAs in accordance with WIOA sec. 166(e). This
plan will be part of, and incorporated with, the 4-year competitive
process described in WIOA sec. 166(c) and Sec. 684.220. Accordingly,
specific requirements for the submission of a 4-year plan will be
provided in a Funding Opportunity Announcement (FOA) and will include
the information described at Sec. 684.710.
[[Page 20900]]
Sec. 684.710 What information must be included in the 4-year plans as
part of the competitive application?
(a) The 4-year plan, which will be submitted as part of the
competitive process, must include the information required at WIOA
secs. 166(e)(2)-(5) which are:
(1) The population to be served;
(2) The education and employment needs of the population to be
served and the manner in which the activities to be provided will
strengthen the ability of the individuals served to obtain or retain
unsubsidized employment leading to self-sufficiency;
(3) A description of the activities to be provided and the manner
in which such activities are to be integrated with other appropriate
activities; and
(4) A description of the performance measures and expected levels
of performance.
(b) The 4-year plan must also include any additional information
requested in the FOA.
(c) INA program grantees receiving supplemental youth funds will be
required to provide additional information (at a minimum the number of
youth it plans to serve and the projected performance outcomes) in the
4-year plan that describes a strategy for serving low-income, INA
youth. Additional information required for supplemental youth funding
will be identified in the FOA.
Sec. 684.720 When must the 4-year plan be submitted?
The 4-year plans will be submitted as part of the competitive FOA
process described at Sec. 684.220. Accordingly, the due date for the
submission of the 4-year plan will be specified in the FOA.
Sec. 684.730 How will the Department review and approve such plans?
(a) It is the Department's intent to approve a grantee's 4-year
strategic plan before the date on which funds for the program become
available unless:
(1) The planning documents do not contain the information specified
in the regulations in this part and/or the FOA; or
(2) The services which the INA program grantee proposes are not
permitted under WIOA or applicable regulations.
(b) After competitive grant selections have been made, the DINAP
office will assist INA grantees in resolving any outstanding issues
with the 4-year plan. However, the Department may delay funding to
grantees until all issues have been resolved. If the issues with the
application of an incumbent grantee cannot be solved, the Department
will reallocate funds from the grantee to other grantees that have an
approved 4-year plan. The Grant Officer may delay executing a grant
agreement and obligating funds to an entity selected through the
competitive process until all the required documents--including the 4-
year plan--are in place and satisfactory.
(c) The Department may approve a portion of the plan and disapprove
other portions.
(d) The grantee also has the right to appeal a nonselection
decision or a decision by the Department to deny or reallocate funds
based on unresolved issues with the applicant's application or 4-year
plan. Such an appeal would go to the Office of the Administrative Law
Judges under procedures at 20 CFR 683.800 or 683.840 in the case of a
nonelection.
Sec. 684.740 Under what circumstances can the Department or the
Indian and Native American grantee modify the terms of the grantee's
plan(s)?
(a) The Department may unilaterally modify the INA program
grantee's plan to add funds or, if required by Congressional action, to
reduce the amount of funds available for expenditure.
(b) The INA grantee may request approval to modify its plan to add,
expand, delete, or diminish any service allowable under the regulations
in this part. The INA grantee may modify its plan without our approval,
unless the modification reduces the total number of participants to be
served annually under the grantee's program by a number which exceeds
25 percent of the participants previously proposed to be served, or by
25 participants, whichever is larger.
Subpart H--Administrative Requirements
Sec. 684.800 What systems must an Indian and Native American program
grantee have in place to administer an Indian and Native American
program?
(a) Each INA program grantee must have a written system describing
the procedures the grantee uses for:
(1) The hiring and management of personnel paid with program funds;
(2) The acquisition and management of property purchased with
program funds;
(3) Financial management practices;
(4) A participant grievance system which meets the requirements in
sec. 181(c) of WIOA and 20 CFR 683.600; and
(5) A participant records system.
(b) Participant records systems must include:
(1) A written or computerized record containing all the information
used to determine the person's eligibility to receive program services;
(2) The participant's signature certifying that all the eligibility
information he or she provided is true to the best of his/her
knowledge; and
(3) The information necessary to comply with all program reporting
requirements.
Sec. 684.810 What types of costs are allowable expenditures under the
Indian and Native American program?
Rules relating to allowable costs under WIOA are covered in 20 CFR
683.200 through 683.215.
Sec. 684.820 What rules apply to administrative costs under the
Indian and Native American program?
The definition and treatment of administrative costs are covered in
20 CFR 683.205(b) and 683.215.
Sec. 684.830 Does the Workforce Innovation and Opportunity Act
administrative cost limit for States and local areas apply to WIOA
grants?
No, under 20 CFR 683.205(b), limits on administrative costs for
sec. 166 grants will be negotiated with the grantee and identified in
the grant award document.
Sec. 684.840 How should Indian and Native American program grantees
classify costs?
Cost classification is covered in the WIOA regulations at 20 CFR
683.200 through 683.215. For purposes of the INA program, program costs
also include costs associated with other activities such as Tribal
Employment Rights Office (TERO), and supportive services, as defined in
WIOA sec. 3(59).
Sec. 684.850 What cost principles apply to Indian and Native American
funds?
The cost principles at 2 CFR 200 subpart E of the Uniform
Administrative Requirements, Cost Principles, & Audit Requirements for
Federal Awards published December 26, 2013 apply to INA program
grantees.
Sec. 684.860 What audit requirements apply to Indian and Native
American grants?
(a) WIOA sec. 166 grantees must follow the audit requirements at 2
CFR 200 subpart F of the Uniform Administrative Requirements, Cost
Principles, & Audit Requirements for Federal Awards published December
26, 2013.
(b) Grants made and contracts and cooperative agreements entered
into under sec. 166 of WIOA are subject to the requirements of chapter
75 of subtitle V of title 31, United States Code, and charging of costs
under this
[[Page 20901]]
section are subject to appropriate circulars issued by the Office of
Management and Budget (WIOA, sec. 166(j)).
Sec. 684.870 What is ``program income'' and how is it regulated in
the Indian and Native American program?
(a) Program income is regulated by WIOA sec. 194(7)(A), 20 CFR
683.200(a)(5), and the applicable rules in 2 CFR parts 200 and 2900,
(b) For grants made under this part, program income does not
include income generated by the work of a work experience participant
in an enterprise, including an enterprise owned by an INA entity,
whether in the public or private sector.
(c) Program income does not include income generated by the work of
an OJT participant in an establishment under paragraph (b) of this
section.
Subpart I--Miscellaneous Program Provisions
Sec. 684.900 Does the Workforce Innovation and Opportunity Act
provide regulatory and/or statutory waiver authority?
Yes, WIOA sec. 166(i)(3) permits waivers of any statutory or
regulatory requirement of title I of WIOA that are inconsistent with
the specific needs of the INA grantee (except for the areas cited in
Sec. 684.920). Such waivers may include those necessary to facilitate
WIOA support of long-term community development goals.
Sec. 684.910 What information is required in a waiver request?
(a) To request a waiver, an INA program grantee must submit a
waiver request indicating how the waiver will improve the grantee's
WIOA program activities which must include the items specified at WIOA
secs. 189(i)(3)(B)(i)-(v).
(b) A waiver may be requested at the beginning of a 4-year grant
award cycle or anytime during a 4-year award cycle. However, all
waivers expire at the end of the 4-year award cycle. INA program
grantees seeking to continue an existing waiver in a new 4-year grant
cycle must submit a new waiver request in accordance with Sec.
684.910(a). This requirement also applies to grants transferred under
Public Law 102-477.
Sec. 684.920 What provisions of law or regulations may not be waived?
Requirements relating to:
(a) Wage and labor standards;
(b) Worker rights;
(c) Participation and protection of workers and participants;
(d) Grievance procedures;
(e) Judicial review;
(f) Non-discrimination may not be waived.
Sec. 684.930 May Indian and Native American program grantees combine
or consolidate their employment and training funds?
Yes. INA program grantees may consolidate their employment and
training funds under WIOA with assistance received from related
programs in accordance with the provisions of the Public Law 102-477,
the Indian Employment, Training, and Related Services Demonstration Act
of 1992, as amended by Public Law 106-568, the Omnibus Indian
Advancement Act of 2000 (25 U.S.C. 3401 et seq.). WIOA funds
consolidated under Public Law 102-477 are administered by Department of
Interior (DOI). Accordingly, the administrative oversight for funds
transferred to DOI, including the reporting of financial expenditures
and program outcomes are the responsibility of the DOI. However, the
Department of Labor must review the initial 477 plan and ensure that
all Departmental programmatic and financial obligations have been met
before WIOA funds are approved to be transferred to DOI and
consolidated with other related programs. The initial plan must meet
the statutory requirements of WIOA. After approval of the initial plan,
all subsequent plans that are renewed or updated from the initial plan
may be approved by the Department of Interior without further review by
the Department.
Sec. 684.940 What is the role of the Native American Employment and
Training Council?
The Native American Employment and Training Council is a body
composed of representatives of the grantee community which advises the
Secretary on the operation and administration of the INA employment and
training program. WIOA sec. 166(i)(4) continues the Council essentially
as it is currently constituted. The Department continues to support the
Council.
Sec. 684.950 Does the Workforce Innovation and Opportunity Act
provide any additional assistance to unique populations in Alaska and
Hawaii?
Yes. Notwithstanding any other provision of law, the Secretary is
authorized to award grants, on a competitive basis, to entities with
demonstrated experience and expertise in developing and implementing
programs for the unique populations who reside in Alaska or Hawaii,
including public and private nonprofit organizations, tribal
organizations, American Indian tribal colleges or universities,
institutions of higher education, or consortia of such organizations or
institutions, to improve job training and workforce investment
activities for such unique populations. (WIOA, sec. 166(k))
0
12. Add part 685 to read as follows:
PART 685--NATIONAL FARMWORKER JOBS PROGRAM UNDER TITLE I OF THE
WORKFORCE INNOVATION AND OPPORTUNITY ACT
Subpart A--Purpose and Definitions
Sec.
685.100 What is the purpose of the National Farmworker Jobs Program
and the other services and activities established under the
Workforce Innovation and Opportunity Act?
685.110 What definitions apply to this program?
685.120 How does the Department administer the National Farmworker
Jobs Program?
685.130 How does the Department assist grantees to serve eligible
migrant and seasonal farmworkers?
685.140 What Workforce Innovation and Opportunity Act regulations
apply to the programs authorized under the Workforce Innovation and
Opportunity Act?
Subpart B--The Service Delivery System for the National Farmworker Jobs
Program
685.200 Who is eligible to receive a National Farmworker Jobs
Program grant?
685.210 How does an eligible entity become a grantee?
685.220 What is the role of the grantee in the one-stop delivery
system?
685.230 Can a grantee's designation be terminated?
685.240 How does the Department use funds appropriated under the
Workforce Innovation and Opportunity Act for the National Farmworker
Jobs Program?
Subpart C--The National Farmworker Jobs Program Services to Eligible
Migrant and Seasonal Farmworkers
685.300 What are the general responsibilities of grantees?
685.310 What are the basic components of an National Farmworker Jobs
Program service delivery strategy?
685.320 Who is eligible to receive services under the National
Farmworker Jobs Program?
685.330 How are services delivered to eligible migrant and seasonal
farmworkers?
685.340 What career services must grantees provide to eligible
migrant and seasonal farmworkers?
685.350 What training services must grantees provide to eligible
migrant and seasonal farmworkers?
685.360 What housing services must grantees provide to eligible
migrant and seasonal farmworkers?
685.370 What services may grantees provide to eligible migrant and
seasonal
[[Page 20902]]
farmworkers youth participants aged 14-24?
685.380 What related assistance services may be provided to eligible
migrant and seasonal farmworkers?
685.390 When may eligible migrant and seasonal farmworkers receive
related assistance?
Subpart D--Performance Accountability, Planning, and Waiver Provisions
685.400 What are the indicators of performance that apply to the
National Farmworker Jobs Program?
685.410 What planning documents must a grantee submit?
685.420 What information is required in the grantee program plan?
685.430 Under what circumstances are the terms of the grantee's
program plan modified by the grantee or the Department?
685.440 How are costs classified under the National Farmworker Jobs
Program?
685.450 What is the Workforce Innovation and Opportunity Act
administrative cost limit for National Farmworker Jobs Program
grants?
685.460 Are there regulatory and/or statutory waiver provisions that
apply to the Workforce Innovation and Opportunity Act?
685.470 How can grantees request a waiver?
Subpart E--Supplemental Youth Workforce Investment Activity Funding
Under the Workforce Innovation and Opportunity Act
685.500 What is supplemental youth workforce investment activity
funding?
685.510 What requirements apply to grants funded by the Workforce
Innovation and Opportunity Act?
685.520 What is the application process for obtaining a grant funded
by the Workforce Innovation and Opportunity Act?
685.530 What planning documents are required for grants funded by
the Workforce Innovation and Opportunity Act?
685.540 How are funds allocated to grants funded by the Workforce
Innovation and Opportunity Act?
685.550 Who is eligible to receive services through grants funded by
the Workforce Innovation and Opportunity Act?
Authority: Secs. 167, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
Subpart A--Purpose and Definitions
Sec. 685.100 What is the purpose of the National Farmworker Jobs
Program and the other services and activities established under the
Workforce Innovation and Opportunity Act?
The purpose of the NFJP and the other services and activities
established under WIOA sec. 167 is to strengthen the ability of
eligible migrant and seasonal farmworkers (MSFWs) and their dependents
to obtain or retain unsubsidized employment, stabilize their
unsubsidized employment and achieve economic self-sufficiency,
including upgraded employment in agriculture. This part provides the
regulatory requirements applicable to the expenditure of WIOA secs. 167
and 127(a)(1) funds for such programs, services and activities.
Sec. 685.110 What definitions apply to this program?
In addition to the definitions found in 20 CFR 675.300, the
following definitions apply to programs under this part:
Allowances means direct payments made to participants during their
enrollment to enable them to participate in the career services
described in WIOA sec. 134(c)(2)(A)(xii) or training services as
appropriate.
Dependent means an individual who:
(1) Was claimed as a dependent on the eligible MSFW's Federal
income tax return for the previous year; or
(2) Is the spouse of the eligible MSFW; or
(3) If not claimed as a dependent for Federal income tax purposes,
is able to establish:
(i) A relationship as the eligible MSFW's;
(A) Child, grandchild, great grandchild, including legally adopted
children;
(B) Stepchild;
(C) Brother, sister, half-brother, half-sister, stepbrother, or
stepsister;
(D) Parent, grandparent, or other direct ancestor but not foster
parent;
(E) Foster child;
(F) Stepfather or stepmother;
(G) Uncle or aunt;
(H) Niece or nephew;
(I) Father-in-law, mother-in-law, son-in-law; or
(J) Daughter-in-law, brother-in-law, or sister-in-law; and
(ii) The receipt of over half of his/her total support from the
eligible MSFW's family during the eligibility determination period.
Eligibility determination period means any consecutive 12-month
period within the 24-month period immediately preceding the date of
application for the MSFW program by the applicant MSFW.
Eligible migrant farmworker means an eligible seasonal farmworker
as defined in WIOA sec. 167(i)(3) whose agricultural labor requires
travel to a job site such that the farmworker is unable to return to a
permanent place of residence within the same day; and dependents of the
migrant farmworker, as described in WIOA 167(i)(2).
Eligible migrant and seasonal farmworker means an eligible migrant
farmworker or an eligible seasonal farmworker, also referred to in this
regulation as an ``eligible MSFW,'' as defined in WIOA sec. 167(i).
Eligible MSFW youth means an eligible MSFW aged 14-24 who is
individually eligible or is a dependent of an eligible MSFW. The term
eligible MSFW youth is a subset of the term eligible MSFW defined in
this section.
Eligible seasonal farmworker means a low-income individual who for
12 consecutive months out of the 24 months prior to application for the
program involved, has been primarily employed in agricultural or fish
farming labor that is characterized by chronic unemployment or
underemployment; and faces multiple barriers to economic self-
sufficiency; and dependents of the seasonal farmworker as described in
WIOA 167(i)(3).
Emergency assistance is a form of ``related assistance'' and means
assistance that addresses immediate needs of eligible MSFWs and their
dependents, provided by grantees. An applicant's self-certification is
accepted as sufficient documentation of eligibility for emergency
assistance.
Family, for the purpose of reporting housing assistance grantee
indicators of performance as described in in Sec. 685.400, means the
eligible MSFW(s) and all the individuals identified under the
definition of dependent in this section who are living together in one
physical residence.
Farmwork means work while employed in the occupations described in
20 CFR 651.10.
Grantee means an entity to which the Department directly awards a
WIOA grant to carry out programs to serve eligible MSFWs in a service
area, with funds made available under WIOA sec. 167 or 127(a)(1).
Housing assistance means housing-related services provided to
eligible MSFWs.
Lower living standard income level means the income level as
defined in WIOA sec. 3(36)(B).
Low-income individual means an individual as defined in WIOA sec.
3(36)(A).
MOU means Memorandum of Understanding.
National Farmworker Jobs Program (NFJP) is the Department of Labor-
administered workforce investment program for eligible MSFWs
established by WIOA sec. 167 as a required partner of the one-stop
system and includes both career services and training grants, and
housing grants.
Recognized post-secondary credential means a credential as defined
in WIOA sec. 3(52).
Related assistance means short-term forms of direct assistance
designed to
[[Page 20903]]
assist eligible MSFWs retain or stabilize their agricultural
employment. Examples of related assistance may include, but are not
limited to, services such as transportation assistance or providing
work clothing.
Self-certification means an eligible MSFW's signed attestation that
the information he/she submits to demonstrate eligibility for the NFJP
is true and accurate.
Service area means the geographical jurisdiction, which may be
comprised of one or more designated State or sub-State areas, in which
a WIOA sec. 167 grantee is designated to operate.
Technical assistance means the guidance provided to grantees and
grantee staff by the Department to improve the quality of the program
and the delivery of program services to eligible MSFWs.
Sec. 685.120 How does the Department administer the National
Farmworker Jobs Program?
The Department's Employment and Training Administration (ETA)
administers NFJP activities required under WIOA sec. 167 for eligible
MSFWs. As described in Sec. 685.210, the Department designates
grantees using procedures consistent with standard Federal government
competitive procedures.
Sec. 685.130 How does the Department assist grantees to serve
eligible migrant and seasonal farmworkers?
The Department provides guidance, administrative support, technical
assistance, and training to grantees for the purposes of program
implementation, and program performance management to enhance services
and promote continuous improvement in the employment outcomes of
eligible MSFWs.
Sec. 685.140 What regulations apply to the programs authorized under
the Workforce Innovation and Opportunity Act?
The regulations that apply to programs authorized under WIOA sec.
167 are:
(a) The regulations found in this part;
(b) The general administrative requirements found in 20 CFR part
683, including the regulations concerning Complaints, Investigations
and Hearings found at 20 CFR part 683, subpart D through subpart H,
which cover programs under WIOA sec. 167;
(c) Uniform Guidance at 2 CFR part 200 and the Department's
exceptions at 2 CFR part 2900 pursuant to the effective dates in 2 CFR
part 200 and 2 CFR part 2900;
(d) The regulations on partnership responsibilities contained in 20
CFR parts 679 (Statewide and Local Governance) and 678 (the One-Stop
System); and
(e) The Department's regulations at 29 CFR part 37, which implement
the nondiscrimination provisions of WIOA sec. 188.
Subpart B--The Service Delivery System for the National Farmworker
Jobs Program
Sec. 685.200 Who is eligible to receive a National Farmworker Jobs
Program grant?
To be eligible to receive a grant under this section, an entity
must have:
(a) An understanding of the problems of eligible MSFWs;
(b) A familiarity with the agricultural industries and the labor
market needs of the proposed service area;
(c) The ability to demonstrate a capacity to administer and deliver
effectively a diversified program of workforce investment activities,
including youth workforce investment activities, and related assistance
for eligible MSFWs.
Sec. 685.210 How does an eligible entity become a grantee?
To become a grantee and receive a grant under this subpart, an
applicant must respond to a Funding Opportunity Announcement (FOA).
Under the FOA, grantees will be selected using standard Federal
government competitive procedures. The entity's proposal must include a
program plan, which is a 4-year strategy for meeting the needs of
eligible MSFWs in the proposed service area, and a description of the
entities experience working with the broader workforce delivery system.
Unless specified otherwise in the FOA, grantees may serve eligible
MSFWs, including eligible MSFW youth, under the grant. An applicant
whose application for funding as a grantee under this section is denied
in whole or in part may request an administrative review under 20 CFR
683.800.
Sec. 685.220 What is the role of the grantee in the one-stop delivery
system?
In those local workforce investment areas where the grantee
operates its NFJP as described in its grant agreement, the grantee is a
required one-stop partner, and is subject to the provisions relating to
such partners described in 20 CFR part 678. Consistent with those
provisions, the grantee and Local Workforce Development Board must
develop and enter into an MOU which meets the requirements of 20 CFR
678.500, and which sets forth their respective responsibilities for
providing access to the full range of NFJP services through the one-
stop system to eligible MSFWs.
Sec. 685.230 Can a grantee's designation be terminated?
Yes, a grantee's designation may be terminated by the Department
for cause: (a) in emergency circumstances when such action is necessary
to protect the integrity of Federal funds or to ensure the proper
operation of the program. Any grantee so terminated will be provided
with written notice and an opportunity for a hearing within 30 days
after the termination (WIOA sec. 184(e)); or (b) by the Department's
Grant Officer, if the recipient materially fails to comply with the
terms and conditions of the award. In such a case, the Grant Officer
will follow the administrative regulations at 20 CFR 683.440.
Sec. 685.240 How does the Department use funds appropriated under the
Workforce Innovation and Opportunity Act for the National Farmworker
Jobs Program?
At least 99 percent of the funds appropriated each year for WIOA
sec. 167 activities must be allocated to service areas, based on the
distribution of the eligible MSFW population determined under a formula
established by the Secretary. The Department will use a percentage of
the funds allocated for State service areas for housing grants,
specified in a FOA issued by the Department. The Department will use up
to one percent of the appropriated funds for discretionary purposes,
such as technical assistance to eligible entities and other activities
prescribed by the Secretary.
Subpart C--The National Farmworker Jobs Program Services to
Eligible Migrant and Seasonal Farmworkers
Sec. 685.300 What are the general responsibilities of grantees?
(a) The Department awards career services and training grants and
housing grants through the FOA process described in Sec. 685.210.
Career services and training grantees are responsible for providing
appropriate career services, training, and related assistance to
eligible MSFWs. Housing grantees are responsible for providing housing
assistance to eligible MSFWs.
(b) Grantees will provide these services in accordance with the
service delivery strategy meeting the requirements of Sec. 685.310 and
as described in their approved program plan described in Sec. 685.420.
These services must reflect the needs of the MSFW population in the
service area and include the services that are necessary to achieve
each participant's employment goals or housing needs.
[[Page 20904]]
(c) Grantees are responsible for coordinating services;
particularly outreach to MSFWs, with the State Workforce Agency as
defined in 20 CFR part 651 and the State's monitor advocate.
(d) Grantees are responsible for fulfilling the responsibilities of
one-stop partners described in Sec. 678.420.
Sec. 685.310 What are the basic components of an National Farmworker
Jobs Program service delivery strategy?
The NFJP service delivery strategy must include:
(a) A customer-focused case management approach;
(b) The provision of workforce investment activities to eligible
MSFWs which include career services and training, as described in WIOA
secs. 167(d) and 134, and 20 CFR part 680.
(c) The provision of youth workforce investment activities
described in WIOA sec. 129 and 20 CFR part 681 may be provided to
eligible MSFW youth;
(d) The arrangements under the MOUs with the applicable Local
Workforce Development Boards for the delivery of the services available
through the one-stop system to MSFWs; and
(e) Related assistance services.
Sec. 685.320 Who is eligible to receive services under the National
Farmworker Jobs Program?
Eligible migrant farmworkers (including eligible MSFW youth) and
eligible seasonal farmworkers (including eligible MSFW youth) as
defined in Sec. 685.110 are eligible for services funded by the NFJP.
Sec. 685.330 How are services delivered to eligible migrant and
seasonal farmworkers?
To ensure that all services are focused on the customer's needs,
services are provided through a case-management approach emphasizing
customer choice and may include: appropriate career services and
training; related assistance, which includes emergency assistance; and
supportive services, which includes allowance payments. The basic
services and delivery of case-management activities are further
described in Sec. Sec. 685.340 through 685.390.
Sec. 685.340 What career services must grantees provide to eligible
migrant and seasonal farmworkers?
(a) Grantees must provide the career services described in WIOA
secs. 167(d) and 134(c)(2), and 20 CFR part 680 to eligible MSFWs.
(b) Grantees must provide other services identified in the approved
program plan.
(c) Grantees must provide access to career services through the
one-stop delivery system. Grantees can also provide career services
through sources outside the one-stop system.
(d) The delivery of career services to eligible MSFWs by the
grantee and through the one-stop system must be discussed in the
required MOU between the Local Workforce Development Board and the
grantee.
Sec. 685.350 What training services must grantees provide to eligible
migrant and seasonal farmworkers?
(a) Grantees must provide the training activities described in WIOA
secs. 167(d) and 134(c)(3)(D), and 20 CFR part 680 to eligible MSFWs.
These activities include, but are not limited to, occupational-skills
training and on-the-job training. Eligible MSFWs are not required to
receive career services prior to receiving training services.
(b) Training services must be directly linked to an in-demand
industry sector or occupation in the service area, or in another area
to which an eligible MSFW receiving such services is willing to
relocate.
(c) Training activities must encourage the attainment of recognized
post-secondary credentials as defined in Sec. 685.110 when appropriate
for an eligible MSFW.
Sec. 685.360 What housing services must grantees provide to eligible
migrant and seasonal farmworkers?
(a) Housing grantees must provide housing services to eligible
MSFWs.
(b) Career services and training grantees may provide housing
services to eligible MSFWs as described in their program plan.
(c) Housing services include the following:
(1) Permanent housing that is owner-occupied, or occupied on a
permanent, year-round basis (notwithstanding ownership) as the eligible
MSFW's primary residence to which he/she returns at the end of the work
or training day; and
(2) Temporary housing that is not owner-occupied and is used by
MSFWs whose employment requires occasional travel outside their normal
commuting area.
(d) Permanent housing services include but are not limited to:
Investments in development services, project management, and resource
development to secure acquisition, construction/renovation and
operating funds, property management services, and program management.
New construction, purchase of existing structures, and rehabilitation
of existing structures, as well as the infrastructure, utilities, and
other improvements necessary to complete or maintain those structures
may also be considered part of managing permanent housing.
(e) Temporary housing services include but not limited to: Housing
units intended for temporary occupancy located in permanent structures,
such as rental units in an apartment complex or in mobile structures,
tents, and yurts that provide short-term, seasonal housing
opportunities; temporary structures that may be moved from site to
site, dismantled and re-erected when needed for farmworker occupancy,
closed during the off-season, or handled through other similar
arrangements; and off-farm housing operated independently of employer
interest in, or control of, the housing, or on-farm housing operated by
a nonprofit, including faith-based or community non-profit
organizations, but located on property owned by an agricultural
employer. Managing temporary housing may involve property management of
temporary housing facilities, case management, and referral services,
and emergency housing payments, including vouchers and cash payments
for rent/lease and utilities.
(f) Housing services may only be provided when the services are
required to meet the needs of eligible MSFWs to occupy a unit of
housing for reasons related to seeking or retaining employment, or
engaging in training.
Sec. 685.370 What services may grantees provide to eligible migrant
and seasonal farmworkers youth participants aged 14-24?
(a) Based on an evaluation and assessment of the needs of eligible
MSFW youth, grantees may provide activities and services that include
but are not limited to:
(1) Career services and training as described in Sec. Sec. 685.340
and 685.350;
(2) Youth workforce investment activities specified in WIOA sec.
129;
(3) Life skills activities which may include self- and
interpersonal skills development;
(4) Community service projects;
(b) Other activities and services that conform to the use of funds
for youth activities described in 20 CFR part 681.
(c) Grantees may provide these services to any eligible MSFW youth,
regardless of the participant's eligibility for WIOA title I youth
activities as described in WIOA sec. 129(a).
Sec. 685.380 What related assistance services may be provided to
eligible migrant and seasonal farmworkers?
Related assistance may include short-term direct services and
activities. Examples include emergency assistance, as defined in Sec.
685.110, and those
[[Page 20905]]
activities identified in WIOA sec. 167(d), such as: English language
and literacy instruction; pesticide and worker safety training; housing
(including permanent housing), as described in Sec. 685.360 and as
provided in the approved program plan; and school dropout prevention
and recovery activities. Related assistance may be provided to eligible
MSFWs not enrolled in career services, youth services, or training
services.
Sec. 685.390 When may eligible migrant and seasonal farmworkers
receive related assistance?
Eligible MSFWs may receive related assistance services when the
grantee identifies and documents the need for the related assistance,
which may include a statement by the eligible MSFW.
Subpart D--Performance Accountability, Planning, and Waiver
Provisions
Sec. 685.400 What are the indicators of performance that apply to the
National Farmworker Jobs Program?
(a) For grantees providing career services and training, the
Department will use the indicators of performance common to the adult
and youth programs, described in WIOA sec. 116(b)(2)(A).
(b) For grantees providing career services and training, the
Department will reach agreement with individual grantees on the levels
of performance for each of the primary indicators of performance,
taking into account economic conditions, characteristics of the
individuals served, and other appropriate factors, and using, to the
extent practicable, the statistical adjustment model under WIOA sec.
116(b)(3)(A)(viii). Once agreement on the levels of performance for
each of the primary indicators of performance is reached with
individual grantees, the Department will incorporate the adjusted
levels of performance in the grant plan.
(c) For grantees providing housing services only, grantees will use
the total number of eligible MSFWs served and the total number of
eligible MSFW families served as indicators of performance.
(d) The Department may develop additional performance indicators
with appropriate levels of performance for evaluating programs that
serve eligible MSFWs and which reflect the State service area economy,
local demographics of eligible MSFWs, and other appropriate factors. If
additional performance indicators are developed, the levels of
performance for these additional indicators must be negotiated with the
grantee and included in the approved program plan.
(e) Grantees may develop additional performance indicators and
include them in the program plan or in periodic performance reports.
Sec. 685.410 What planning documents must a grantee submit?
Each grantee receiving WIOA sec. 167 program funds must submit to
the Department a comprehensive program plan and a projection of
participant services and expenditures in accordance with instructions
issued by the Secretary.
Sec. 685.420 What information is required in the grantee program
plan?
A grantee's 4-year program plan must describe:
(a) The service area that the applicant proposes to serve;
(b) The population to be served and the education and employment
needs of the MSFW population to be served;
(c) The manner in which proposed services to eligible MSFWs will
strengthen their ability to obtain or retain unsubsidized employment or
stabilize their unsubsidized employment, including upgraded employment
in agriculture;
(d) The related assistance and supportive services to be provided
and the manner in which such assistance and services are to be
integrated and coordinated with other appropriate services;
(e) The performance accountability measures that will be used to
assess the performance of the entity in carrying out the NFJP program
activities, including the expected levels of performance for the
primary indicators of performance described in Sec. 685.400;
(f) The availability and accessibility of local resources, such as
supportive services, services provided through one-stop delivery
systems, and education and training services, and how the resources can
be made available to the population to be served;
(g) The plan for providing services including strategies and
systems for outreach, career planning, assessment, and delivery through
one-stop delivery systems;
(h) The methods the grantee will use to target its services on
specific segments of the eligible population, as appropriate; and
(i) Such other information as required by the Secretary in
instructions issued under Sec. 685.410.
Sec. 685.430 Under what circumstances are the terms of the grantee's
program plan modified by the grantee or the Department?
(a) Plans must be modified to reflect the funding level for each
year of the grant. The Department will provide instructions annually on
when to submit modifications for each year of funding, which will
generally be no later than June 1 prior to the start of the subsequent
year of the grant cycle.
(b) The grantee must submit a request to the Department for any
proposed modifications to its plan to add, delete, expand, or reduce
any part of the program plan or allowable activities. The Department
will consider the cost principles, uniform administrative requirements,
and terms and conditions of award when reviewing modifications to
program plans.
(c) If the grantee is approved for a regulatory waiver under
Sec. Sec. 685.460 and 685.470, the grantee must submit a modification
of its grant plan to reflect the effect of the waiver.
Sec. 685.440 How are costs classified under the National Farmworker
Jobs Program?
(a) Costs are classified as follows:
(1) Administrative costs, as defined in 20 CFR 683.215; and
(2) Program costs, which are all other costs not defined as
administrative.
(b) Program costs must be classified and reported in the following
categories:
(1) Related assistance (including emergency assistance);
(2) Supportive services; and
(3) All other program services.
Sec. 685.450 What is the Workforce Innovation and Opportunity Act
administrative cost limit for National Farmworker Jobs Program grants?
Under 20 CFR 683.205(b), limits on administrative costs for
programs operated under subtitle D of WIOA title I will be identified
in the grant or contract award document. Administrative costs will not
exceed 15 percent of total grantee funding.
Sec. 685.460 Are there regulatory and/or statutory waiver provisions
that apply to the Workforce Innovation and Opportunity Act?
(a) The statutory waiver provision at WIOA sec. 189(i) and
discussed in 20 CFR 679.600 does not apply to any NFJP grant under WIOA
sec. 167.
(b) Grantees may request waiver of any regulatory provisions only
when such regulatory provisions are:
(1) Not required by WIOA;
(2) Not related to wage and labor standards, non-displacement
protection, worker rights, participation and protection of workers and
participants, and eligibility of participants, grievance procedures,
judicial review,
[[Page 20906]]
nondiscrimination, allocation of funds, procedures for review and
approval of plans; and
(3) Not related to the basic purposes of WIOA, described in 20 CFR
675.100.
Sec. 685.470 How can grantees request a waiver?
To request a waiver, a grantee must submit to the Department a
waiver plan that:
(a) Describes the goals of the waiver, the expected programmatic
outcomes, and how the waiver will improve the provision of program
activities;
(b) Is consistent with any guidelines the Department establishes;
(c) Describes the data that will be collected to track the impact
of the waiver; and
(d) Includes a modified program plan reflecting the effect of the
requested waiver.
Subpart E--Supplemental Youth Workforce Investment Activity Funding
Under the Workforce Innovation and Opportunity Act
Sec. 685.500 What is supplemental youth workforce investment activity
funding?
Pursuant to WIOA sec. 127(a)(1), if Congress appropriates more than
$925 million for WIOA youth workforce investment activities in a fiscal
year, 4 percent of the excess amount must be used to provide workforce
investment activities for eligible MSFW youth under WIOA sec. 167.
Sec. 685.510 What requirements apply to grants funded by the
Workforce Innovation and Opportunity Act?
The requirements in subparts A through D of this regulation apply
to grants funded by WIOA sec. 127(a)(1), except that grants described
in this subpart must be used only for workforce investment activities
for eligible MSFW youth, as described in Sec. 685.370 and WIOA sec.
167(d) (including related assistance and supportive services).
Sec. 685.520 What is the application process for obtaining a grant
funded by the Workforce Innovation and Opportunity Act?
The Department will issue a separate FOA for grants funded by WIOA
sec. 127(a)(1). The selection will be made in accordance with the
procedures described in Sec. 685.210, except that the Department
reserves the right to provide priority to applicants that are WIOA sec.
167 grantees.
Sec. 685.530 What planning documents are required for grants funded
by the Workforce Innovation and Opportunity Act?
The required planning documents will be described in the FOA.
Sec. 685.540 How are funds allocated to grants funded by the
Workforce Innovation and Opportunity Act?
The allocation of funds will be based on the comparative merits of
the applications, in accordance with criteria set forth in the FOA.
Sec. 685.550 Who is eligible to receive services through grants
funded by the Workforce Innovation and Opportunity Act?
Eligible MSFW youth as defined in Sec. 685.110 are eligible to
receive services through grants funded by WIOA sec. 127(a)(1).
0
13. Add part 686 to read as follows:
PART 686--THE JOB CORPS UNDER TITLE I OF THE WORKFORCE INNOVATION
AND OPPORTUNITY ACT
Subpart A--Scope and Purpose
Sec.
686.100 What is the scope of this part?
686.110 What is the Job Corps program?
686.120 What definitions apply to this part?
686.130 What is the role of the Job Corps Director?
Subpart B--Site Selection and Protection and Maintenance of Facilities
686.200 How are Job Corps center locations and sizes determined?
686.210 How are center facility improvements and new construction
handled?
686.220 Who is responsible for the protection and maintenance of
center facilities?
Subpart C--Funding and Selection of Center Operators and Service
Providers
686.300 What entities are eligible to receive funds to operate
centers and provide training and operational support services?
686.310 How are entities selected to receive funding to operate
centers?
686.320 What if a current center operator is deemed to be an
operator of a high-performing center?
686.330 What is the length of an agreement entered into by the
Secretary for operation of a Job Corps center and what are the
conditions for renewal of such an agreement?
686.340 How are entities selected to receive funding to provide
outreach and admission, career transition and other operations
support services?
686.350 What conditions apply to the operation of a Civilian
Conservation Center?
686.360 What are the requirements for award of contracts and
payments to Federal agencies?
Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, and Enrollment
686.400 Who is eligible to participate in the Job Corps program?
686.410 Are there additional factors which are considered in
selecting an eligible applicant for enrollment?
686.420 Are there any special requirements for enrollment related to
the Military Selective Service Act?
686.430 What entities conduct outreach and admissions activities for
the Job Corps program?
686.440 What are the responsibilities of outreach and admissions
providers?
686.450 How are applicants who meet eligibility and selection
criteria assigned to centers?
686.460 What restrictions are there on the assignment of eligible
applicants for nonresidential enrollment in Job Corps?
686.470 May an individual who is determined to be ineligible or an
individual who is denied enrollment appeal that decision?
686.480 At what point is an applicant considered to be enrolled in
Job Corps?
686.490 How long may a student be enrolled in Job Corps?
Subpart E--Program Activities and Center Operations
686.500 What services must Job Corps centers provide?
686.505 What types of training must Job Corps centers provide?
686.510 Are entities other than Job Corps center operators permitted
to provide academic and career technical training?
686.515 What are advanced career training programs?
686.520 What responsibilities do the center operators have in
managing work-based learning?
686.525 Are students permitted to hold jobs other than work-based
learning opportunities?
686.530 What residential support services must Job Corps center
operators provide?
686.535 Are Job Corps centers required to maintain a student
accountability system?
686.540 Are Job Corps centers required to establish behavior
management systems?
686.545 What is Job Corps' zero tolerance policy?
686.550 How does Job Corps ensure that students receive due process
in disciplinary actions?
686.555 What responsibilities do Job Corps centers have in assisting
students with child care needs?
686.560 What are the center's responsibilities in ensuring that
students' religious rights are respected?
686.565 Is Job Corps authorized to conduct pilot and demonstration
projects?
Subpart F--Student Support
686.600 Are students provided with government-paid transportation to
and from Job Corps centers?
686.610 When are students authorized to take leaves of absence from
their Job Corps centers?
686.620 Are Job Corps students eligible to receive cash allowances
and performance bonuses?
686.630 Are student allowances subject to Federal payroll taxes?
686.640 Are students provided with clothing?
[[Page 20907]]
Subpart G--Career Transition and Graduate Services
686.700 What are a Job Corps center's responsibilities in preparing
students for career transition services?
686.710 What career transition services are provided for Job Corps
enrollees?
686.720 Who provides career transition services?
686.730 What are the responsibilities of career transition service
providers?
686.740 What services are provided for program graduates?
686.750 Are graduates provided with transition allowances?
686.760 What services are provided to former enrollees?
Subpart H--Community Connections
686.800 How do Job Corps centers and service providers become
involved in their local communities?
686.810 What is the makeup of a workforce council and what are its
responsibilities?
686.820 How will Job Corps coordinate with other agencies?
Subpart I--Administrative and Management Provisions
686.900 Are damages caused by the acts or omissions of students
eligible for payment under the Federal Tort Claims Act?
686.905 Are loss and damages that occur to persons or personal
property of students at Job Corps centers eligible for
reimbursement?
686.910 If a student is injured in the performance of duty as a Job
Corps student, what benefits may the student receive?
686.915 When is a Job Corps student considered to be in the
performance of duty?
686.920 How are students protected from unsafe or unhealthy
situations?
686.925 What are the requirements for criminal law enforcement
jurisdiction on center property?
686.930 Are Job Corps operators and service providers authorized to
pay State or local taxes on gross receipts?
686.935 What are the financial management responsibilities of Job
Corps center operators and other service providers?
686.940 Are center operators and service providers subject to
Federal audits?
686.945 What are the procedures for management of student records?
686.950 What procedures apply to disclosure of information about Job
Corps students and program activities?
686.955 What are the reporting requirements for center operators and
operational support service providers?
686.960 What procedures are available to resolve complaints and
disputes?
686.965 How does Job Corps ensure that complaints or disputes are
resolved in a timely fashion?
686.970 How does Job Corps ensure that centers or other service
providers comply with the Act and the Workforce Innovation and
Opportunity Act regulations?
686.975 How does Job Corps ensure that contract disputes will be
resolved?
686.980 How does Job Corps resolve disputes between the U.S.
Department of Labor and the U.S. Department of Agriculture regarding
the operation of Job Corps centers?
686.985 What Department of Labor equal opportunity and
nondiscrimination regulations apply to Job Corps?
Subpart J--Performance
686.1000 How is the performance of the Job Corps program assessed?
686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
686.1020 What are the indicators of performance for Job Corps
outreach and admissions providers?
686.1030 What are the indicators of performance for Job Corps career
transition service providers?
686.1040 What information will be collected for use in the Annual
Report?
686.1050 How are the expected levels of performance for Job Corps
centers, outreach and admissions providers and career transition
service providers established?
686.1060 How are center rankings established?
686.1070 How and when will the Secretary use Performance Improvement
Plans?
Authority: Secs. 142, 144, 146, 147, 159, 189, 503, Pub. L.
113-128, 128 Stat. 1425 (Jul. 22, 2014).
Subpart A--Scope and Purpose
Sec. 686.100 What is the scope of this part?
The regulations in this part outline the requirements that apply to
the Job Corps program. More detailed policies and procedures are
contained in a Policy and Requirements Handbook issued by the
Secretary. Throughout this part, ``instructions (procedures) issued by
the Secretary'' and similar references refer to the Policy and
Requirements Handbook and other Job Corps directives.
Sec. 686.110 What is the Job Corps program?
Job Corps is a national program that operates in partnership with
States and communities, Local Workforce Development Boards, Youth
Standing Committees where established, one-stop centers and partners,
and other youth programs to provide academic, career and technical
education, service-learning, and social opportunities primarily in a
residential setting, for low-income young people. The objective of Job
Corps is to support responsible citizenship and provide young people
with the skills they need to lead to successful careers that will
result in economic self-sufficiency and opportunities for advancement
in in-demand industry sectors or occupations or the Armed Forces, or to
enrollment in post-secondary education.
Sec. 686.120 What definitions apply to this part?
The following definitions apply to this part:
Absent Without Official Leave (AWOL) means an adverse enrollment
status to which a student is assigned based on extended, unapproved
absence from his/her assigned center or off-center place of duty.
Students do not earn Job Corps allowances while in AWOL status.
Applicable Local Board means a Local Workforce Development Board
that:
(1) Works with a Job Corps center and provides information on local
employment opportunities and the job skills and credentials needed to
obtain the opportunities; and
(2) Serves communities in which the graduates of the Job Corps seek
employment.
Applicable one-stop center means a one-stop center that provides
career transition services, such as referral, assessment, recruitment,
and placement, to support the purposes of the Job Corps.
Capital improvement means any modification, addition, restoration
or other improvement:
(1) Which increases the usefulness, productivity, or serviceable
life of an existing site, facility, building, structure, or major item
of equipment;
(2) Which is classified for accounting purposes as a ``fixed
asset;'' and
(3) The cost of which increases the recorded value of the existing
building, site, facility, structure, or major item of equipment and is
subject to depreciation.
Career technical training means career and technical education and
training.
Career transition service provider means an organization acting
under a contract or other agreement with Job Corps to provide career
transition services for graduates and, to the extent possible, for
former students.
Civilian Conservation Center (CCC) means a center operated on
public land under an agreement between the Department of Labor (DOL or
the Department) and the Department of Agriculture, which provides, in
addition to other training and assistance, programs of work-based
learning to conserve, develop, or manage public natural resources or
public recreational areas or to develop community projects in the
public interest.
Contract center means a Job Corps center operated under a contract
with the Department.
Contracting officer means an official authorized to enter into
contracts or agreements on behalf of the Department.
[[Page 20908]]
Enrollee means an individual who has voluntarily applied for, been
selected for, and enrolled in the Job Corps program, and remains with
the program, but has not yet become a graduate. Enrollees are also
referred to as ``students'' in this part.
Enrollment means the process by which an individual formally
becomes a student in the Job Corps program.
Former enrollee means an individual who has voluntarily applied
for, been selected for, and enrolled in the Job Corps program, but left
the program prior to becoming a graduate.
Graduate means an individual who has voluntarily applied for, been
selected for, and enrolled in the Job Corps program and who, as a
result of participation in the program, has received a secondary school
diploma or recognized equivalent, or has completed the requirements of
a career technical training program that prepares individuals for
employment leading to economic self-sufficiency or entrance into post-
secondary education or training.
Individual with a disability means an individual with a disability
as defined in sec. 3 of the Americans with Disabilities Act of 1990 (42
U.S.C. 12102).
Interagency agreement means a formal agreement between the
Department and another Federal agency administering and operating
centers. The agreement establishes procedures for the funding,
administration, operation, and review of those centers as well as the
resolution of any disputes.
Job Corps means the Job Corps program established within the
Department of Labor and described in sec. 143 of the Workforce
Innovation and Opportunity Act (WIOA).
Job Corps center means a facility and an organizational entity,
including all of its parts, providing Job Corps training and designated
as a Job Corps center, as described in sec. 147 of WIOA.
Job Corps Director means the chief official of the Job Corps or a
person authorized to act for the Job Corps Director.
Low-income individual means an individual who meets the definition
in WIOA sec. 3(36).
National Office means the national office of Job Corps.
National training contractor means a labor union, union-affiliated
organization, business organization, association or a combination of
such organizations, which has a contract with the national office to
provide career technical training, career transition services, or other
services.
Operational support services means activities or services required
to support the operation of Job Corps, including:
(1) Outreach and admissions services;
(2) Contracted career technical training and off-center training;
(3) Career transition services;
(4) Continued services for graduates;
(5) Certain health services; and
(6) Miscellaneous logistical and technical support.
Operator means a Federal, State or local agency, or a contractor
selected under this subtitle to operate a Job Corps center under an
agreement or contract with the Department.
Outreach and admissions provider means an organization that
performs recruitment services, including outreach activities, and
screens and enrolls youth under a contract or other agreement with Job
Corps.
Participant, as used in this part, includes both graduates and
enrollees and former enrollees that have completed their career
preparation period. It also includes all enrollees and former enrollees
who have remained in the program for at least 60 days.
Placement means student employment, entry into the Armed Forces, or
enrollment in other training or education programs following separation
from Job Corps.
Regional appeal board means the board designated by the Regional
Director to consider student appeals of disciplinary discharges.
Regional Director means the chief Job Corps official of a regional
office or a person authorized to act for the Regional Director.
Regional Office means a regional office of Job Corps.
Regional Solicitor means the chief official of a regional office of
the DOL Office of the Solicitor, or a person authorized to act for the
Regional Solicitor.
Separation means the action by which an individual ceases to be a
student in the Job Corps program, either voluntarily or involuntarily.
Service Provider means an entity selected under this subtitle to
provide operational support services described in this subtitle to a
Job Corps center.
Student means an individual enrolled in the Job Corps.
Unauthorized goods means:
(1) Firearms and ammunition;
(2) Explosives and incendiaries;
(3) Knives with blades longer than 2 inches;
(4) Homemade weapons;
(5) All other weapons and instruments used primarily to inflict
personal injury;
(6) Stolen property;
(7) Drugs, including alcohol, marijuana, depressants, stimulants,
hallucinogens, tranquilizers, and drug paraphernalia except for drugs
and/or paraphernalia that are prescribed for medical reasons; and
(8) Any other goods prohibited by the Secretary, Center Director,
or center operator in a student handbook.
Sec. 686.130 What is the role of the Job Corps Director?
The Job Corps Director has been delegated the authority to carry
out the responsibilities of the Secretary under title I, subtitle C of
WIOA. Where the term ``Secretary'' is used in this part to refer to
establishment or issuance of guidelines and standards directly relating
to the operation of the Job Corps program, the Job Corps Director has
that responsibility.
Subpart B--Site Selection and Protection and Maintenance of
Facilities
Sec. 686.200 How are Job Corps center locations and sizes determined?
(a) The Secretary must approve the location and size of all Job
Corps centers based on established criteria and procedures.
(b) The Secretary establishes procedures for making decisions
concerning the establishment, relocation, expansion, or closing of
contract centers.
Sec. 686.210 How are center facility improvements and new
construction handled?
The Secretary establishes procedures for requesting, approving, and
initiating capital improvements and new construction on Job Corps
centers.
Sec. 686.220 Who is responsible for the protection and maintenance of
center facilities?
(a) The Secretary establishes procedures for the protection and
maintenance of contract center facilities owned or leased by the
Department of Labor, that are consistent with the current Federal
Property Management Regulations.
(b) The U.S. Department of Agriculture, when operating Civilian
Conservation Centers (CCC) on public land, is responsible for the
protection and maintenance of CCC facilities.
(c) The Secretary issues procedures for conducting periodic
facility surveys of centers to determine their condition and to
identify needs such as correction of safety and health deficiencies,
rehabilitation, and/or new construction.
[[Page 20909]]
Subpart C--Funding and Selection of Center Operators and Service
Providers
Sec. 686.300 What entities are eligible to receive funds to operate
centers and provide training and operational support services?
(a) Center Operators. Entities eligible to receive funds under this
subpart to operate centers include:
(1) Federal, State, and local agencies;
(2) Private organizations, including for-profit and non-profit
corporations;
(3) Indian tribes and organizations; and
(4) Area career and technical education or residential career and
technical schools (WIOA sec. 147(a)(1)(A)).
(b) Service Providers. Entities eligible to receive funds to
provide outreach and admissions, career transition services and other
operational support services are local or other entities with the
necessary capacity to provide activities described in this part to a
Job Corps center, including:
(1) Applicable one-stop centers and partners;
(2) Organizations that have a demonstrated record of effectiveness
in serving at-risk youth and placing them into employment, including
community action agencies; business organizations, including private
for-profit and non-profit corporations; and labor organizations; and
(3) Child welfare agencies that are responsible for children and
youth eligible for benefits and services under sec. 477 of the Social
Security Act (42 U.S.C. 677).
Sec. 686.310 How are entities selected to receive funding to operate
centers?
(a) The Secretary selects eligible entities to operate contract
centers on a competitive basis in accordance with applicable statutes
and regulations. In selecting an entity, ETA issues requests for
proposals (RFPs) for the operation of all contract centers according to
the Federal Acquisition Regulation (48 CFR chapter 1) and DOL
Acquisition Regulation (48 CFR chapter 29). ETA develops RFPs for
center operators in consultation with the Governor, the center
workforce council (if established), and the Local Board for the
workforce investment area in which the center is located (WIOA sec.
147(b)(1)(A)).
(b) The RFP for each contract center describes uniform
specifications and standards, as well as specifications and
requirements that are unique to the operation of the specific center.
(c) The Contracting Officer selects and funds Job Corps contract
center operators on the basis of an evaluation of the proposals
received using criteria established by the Secretary, and set forth in
the RFP. The criteria include the following:
(1) The offeror's ability to coordinate the activities carried out
through the Job Corps center with activities carried out under the
appropriate State and local workforce investment plans;
(2) The offeror's ability to offer career technical training that
has been proposed by the workforce council and the degree to which the
training reflects employment opportunities in the local areas in which
most of the enrollees intend to seek employment;
(3) The degree to which the offeror demonstrates relationships with
the surrounding communities, including employers, labor organizations,
State Boards, Local Boards, applicable one-stop centers, and the State
and region in which the center is located; and
(4) The offeror's past performance, if any, relating to operating
or providing activities to a Job Corps center, including information
regarding the offeror in any reports developed by the Office of the
Inspector General of the Department of Labor and the offeror's
demonstrated effectiveness in assisting individuals in achieving the
indicators of performance for eligible youth described in sec.
116(b)(2)(A)(ii) of WIOA, listed in Sec. 686.1010.
(5) The offeror's ability to demonstrate a record of successfully
assisting at-risk youth to connect to the workforce, including
providing them with intensive academics and career technical training.
(d) In order to be eligible to operate a Job Corps center, the
offeror must also submit the following information at such time and in
such manner as required by the Secretary:
(1) A description of the program activities that will be offered at
the center and how the academics and career technical training reflect
State and local employment opportunities, including opportunities in
in-demand industry sectors and occupations recommended by the workforce
council;
(2) A description of the counseling, career transition, and support
activities that will be offered at the center, including a description
of the strategies and procedures the offeror will use to place
graduates into unsubsidized employment or education leading to a
recognized post-secondary credential upon completion of the program;
(3) A description of the offeror's demonstrated record of
effectiveness in placing at-risk youth into employment and post-
secondary education, including past performance of operating a Job
Corps center and as appropriate, the entity's demonstrated
effectiveness in assisting individuals in achieving the indicators of
performance for eligible youth described in sec. 116(b)(2)(A)(ii) of
WIOA, listed in Sec. 686.1010;
(4) A description of the relationships that the offeror has
developed with State Boards, Local Boards, applicable one-stop centers,
employers, labor organizations, State and local educational agencies,
and the surrounding communities in which the center is located;
(5) A description of the offeror's ability to coordinate the
activities carried out through the Job Corps center with activities
carried out under the appropriate State Plan and local plans;
(6) A description of the strong fiscal controls the offeror has in
place to ensure proper accounting of Federal funds and compliance with
the Financial Management Information System established by the
Secretary under sec. 159(a) of WIOA;
(7) A description of the steps to be taken to control costs in
accordance with the Financial Management Information System established
by the Secretary (WIOA sec. 159(a)(3));
(8) A detailed budget of the activities that will be supported
using Federal funds provided under this part and non-Federal resources;
(9) An assurance the offeror is licensed to operate in the State in
which the center is located;
(10) An assurance that the offeror will comply with basic health
and safety codes, including required disciplinary measures and Job
Corps' Zero Tolerance Policy (WIOA sec. 152(b)); and
(11) Any other information on additional selection factors required
by the Secretary.
Sec. 686.320 What if a current center operator is deemed to be an
operator of a high-performing center?
(a) If an offeror meets the requirements as an operator of a high-
performing center as applied to a particular Job Corps center, that
operator will be allowed to compete in any competitive selection
process carried out for an award to operate that center (WIOA sec.
147(b)(1)).
(b) An offeror is considered to be an operator of a high-performing
center if the Job Corps center operated by the offeror:
(1) Is ranked among the top 20 percent of Job Corps centers for the
most recent preceding program year according to the rankings calculated
under Sec. 686.1060; and
(2) Meets the expected levels of performance established under
[[Page 20910]]
Sec. 686.1050 with respect to each of the primary indicators of
performance for Job Corps centers:
(i) For the period of the most recent preceding 3 program years for
which information is available at the time the determination is made,
achieved an average of 100 percent, or higher, of the expected level of
performance for the indicator; and
(ii) For the most recent preceding program year for which
information is available at the time the determination is made,
achieved 100 percent, or higher, of the expected level of performance
established for the indicator.
(c) If any of the program years described in paragraphs (b)(2)(i)
and (ii) of this section precedes the implementation of the
establishment of the expected levels of performance under Sec.
686.1050 and the application of the primary indicators of performance
for Job Corps centers identified in Sec. 686.1010, an entity is
considered an operator of a high-performing center during that period
if the Job Corps center operated by the entity:
(1) Meets the requirements of paragraph (b)(2) of this section with
respect to such preceding program years using the performance of the
Job Corps center regarding the national goals or targets established by
the Office of the Job Corps under the previous performance
accountability system for--
(i) The 6-month follow-up placement rate of graduates in
employment, the military, education or training;
(ii) The 12-month follow-up placement rate of graduates in
employment, the military, education, or training;
(iii) The 6-month follow-up average weekly earnings of graduates;
(iv) The rate of attainment of secondary school diplomas or their
recognized equivalent;
(v) The rate of attainment of completion certificates for career
technical training;
(vi) Average literacy gains; and
(vii) Average numeracy gains; or
(2) Is ranked among the top five percent of Job Corps centers for
the most recent preceding program year according to the rankings
calculated under Sec. 686.1060.
Sec. 686.330 What is the length of an agreement entered into by the
Secretary for operation of a Job Corps center and what are the
conditions for renewal of such an agreement?
(a) Agreements are for not more than a 2-year period. The Secretary
may exercise any contractual option to renew the agreement in 1-year
increments for not more than 3 additional years.
(b) The Secretary will establish procedures for evaluating the
option to renew an agreement that includes: an assessment of the
factors described in paragraph (c) of this section; a review of
contract performance and financial reporting compliance; a review of
the program management and performance data described in Sec. Sec.
686.1000 and 686.1010; an assessment of whether the center is on a
performance improvement plan as described Sec. 686.1070 and if so,
whether the center is making measureable progress in completing the
actions described in the plan; and an evaluation of the factors
described in paragraph (d) of this section.
(c) The Secretary will only renew the agreement of an entity to
operate a Job Corps center if the entity:
(1) Has a satisfactory record of integrity and business ethics;
(2) Has adequate financial resources to perform the agreement;
(3) Has the necessary organization, experience, accounting and
operational controls, and technical skills; and
(4) Is otherwise qualified and eligible under applicable laws and
regulations, including that the contractor is not under suspension or
debarred from eligibility for Federal contractors.
(d) The Secretary will not renew an agreement for an entity to
operate a Job Corps center for any additional 1-year period if, for
both of the 2 most recent preceding program years for which information
is available at the time the determination is made, or if a second
program year is not available, the preceding year for which information
is available, such center:
(1) Has been ranked in the lowest 10 percent of Job Corps centers
according to the rankings calculated under Sec. 686.1060; and
(2) Failed to achieve an average of 50 percent or higher of the
expected level of performance established under Sec. 686.1050 with
respect to each of the primary indicators of performance for eligible
youth described in sec. 116(b)(2)(A)(ii) of WIOA, listed in Sec.
686.1010.
(e) Information Availability:
(1) Information will be considered to be available for a program
year for purposes of paragraph (d) of this section if for each of the
primary indicators of performance, all of the students included in the
cohort being measured either began their participation under the
current center operator or, if they began their participation under the
previous center operator, were on center for at least 6 months under
the current operator.
(2) If complete information for any of the indicators of
performance described in paragraph (d)(2) of this section is not
available for either of the 2 program years described in paragraph (d)
of this section, the Secretary will review partial program year data
from the most recent program year for those indicators, if at least two
quarters of data are available, when making the determination required
under paragraph (d)(2) of this section.
(f) If any of the program years described in paragraph (d) of this
section precede the implementation of the establishment of the expected
levels of performance under Sec. 686.1050 and the application of the
primary indicators of performance for Job Corps centers described in
Sec. 686.1010, the evaluation described in paragraph (d) of this
section will be based on whether in its operation of the center the
entity:
(1) Meets the requirement of paragraph (d)(2) of this section with
respect to such preceding program years using the performance of the
Job Corps center regarding the national goals or targets established by
the Office of the Job Corps under the previous performance
accountability system for--
(i) The 6-month follow-up placement rate of graduates in
employment, the military, education, or training;
(ii) The 12-month follow-up placement rate of graduates in
employment, the military, education, or training;
(iii) The 6-month follow-up average weekly earnings of graduates;
(iv) The rate of attainment of secondary school diplomas or their
recognized equivalent;
(v) The rate of attainment of completion certificates for career
technical training;
(vi) Average literacy gains; and
(vii) Average numeracy gains; or
(2) Is ranked among the lowest 10 percent of Job Corps centers for
the most recent preceding program year according to the ranking
calculated under Sec. 686.1060.
(g) Exception--the Secretary can exercise an option to renew the
agreement with an entity notwithstanding the requirements in paragraph
(d) of this section for no more than 2 additional years if the
Secretary determines that a renewal would be in the best interest of
the Job Corps program, taking into account factors including:
(1) Significant improvements in program performance in carrying out
a performance improvement plan;
(2) That the performance is due to circumstances beyond the control
of the entity, such as an emergency or disaster;
(3) A significant disruption in the operations of the center,
including in
[[Page 20911]]
the ability to continue to provide services to students, or significant
increase in the cost of such operations; or
(4) A significant disruption in the procurement process with
respect to carrying out a competition for the selection of a center
operator.
(h) If the Secretary does make an exception and exercises the
option to renew per paragraph (g) of this section, the Secretary will
provide a detailed explanation of the rationale for exercising the
option to the Committee on Education and the Workforce of the House of
Representatives and the Committee on Health, Education, Labor, and
Pensions of the Senate.
Sec. 686.340 How are entities selected to receive funding to provide
outreach and admission, career transition and other operations support
services?
(a) The Secretary selects eligible entities to provide outreach and
admission, career transition, and operational services on a competitive
basis in accordance with applicable statutes and regulations. In
selecting an entity, ETA issues requests for proposals (RFP) for
operational support services according to the Federal Acquisition
Regulation (48 CFR chapter 1) and DOL Acquisition Regulation (48 CFR
chapter 29). ETA develops RFPs for operational support services in
consultation with the Governor, the center workforce council (if
established), and the Local Board for the workforce investment area in
which the center is located (WIOA sec. 147(a)(1)(A)).
(b) The RFP for each support service contract describes uniform
specifications and standards, as well as specifications and
requirements that are unique to the specific required operational
support services.
(c) The Contracting Officer selects and funds operational support
service contracts on the basis of an evaluation of the proposals
received using criteria established by the Secretary and set forth in
the RFP. The criteria may include the following, as applicable:
(1) The ability of the offeror to coordinate the activities carried
out in relation to the Job Corps center with related activities carried
out under the appropriate State Plan and local plans;
(2) The ability of the entity to offer career technical training
that has been proposed by the workforce council and the degree to which
the training reflects employment opportunities in the local areas in
which most of the students intend to seek employment;
(3) The degree to which the offeror demonstrates relationships with
the surrounding communities, including employers, labor organizations,
State Boards, Local Boards, applicable one-stop centers, and the State
and region in which the services are provided;
(4) The offeror's past performance, if any, relating to providing
services to a Job Corps center, including information regarding the
offeror in any reports developed by the Office of the Inspector General
of the Department of Labor and the offeror's demonstrated effectiveness
in assisting individuals in achieving the indicators of performance for
eligible youth described in sec. 116(b)(2)(A)(ii) of WIOA, listed in
Sec. 686.1010;
(5) The offeror's ability to demonstrate a record of successfully
assisting at-risk youth to connect to the workforce; and
(6) Any other information on additional selection factors required
by the Secretary.
Sec. 686.350 What conditions apply to the operation of a Civilian
Conservation Center?
(a) The Secretary of Labor may enter into an agreement with the
Secretary of Agriculture to operate Job Corps centers located on public
land, which are called Civilian Conservation Centers (CCCs). Located
primarily in rural areas, in addition to academics, career technical
training, and workforce preparation skills training, CCCs provide
programs of work experience to conserve, develop, or manage public
natural resources or public recreational areas or to develop community
projects in the public interest.
(b) When the Secretary of Labor enters into an agreement with the
Secretary of Agriculture for the funding, establishment, and operation
of CCCs, provisions are included to ensure that the Department of
Agriculture complies with the regulations under this part.
(c) Enrollees in CCCs may provide assistance in addressing
national, State, and local disasters, consistent with current child
labor laws. The Secretary of Agriculture must ensure that enrollees are
properly trained, equipped, supervised, and dispatched consistent with
the standards for the conservation and rehabilitation of wildlife
established under the Fish and Wildlife Coordination Act (16 U.S.C. 661
et seq.).
(d) The Secretary of Agriculture must designate a Job Corps
National Liaison to support the agreement between the Departments of
Labor and Agriculture to operate CCCs.
(e) The Secretary of Labor, in consultation with the Secretary of
Agriculture, may select an entity to operate a CCC in accordance with
the requirements of Sec. 686.310 if the Secretary of Labor determines
appropriate.
(f) The Secretary of Labor has the discretion to close CCCs if the
Secretary determines appropriate.
Sec. 686.360 What are the requirements for award of contracts and
payments to Federal agencies?
(a) The requirements of the Federal Property and Administrative
Services Act of 1949, as amended; the Federal Grant and Cooperative
Agreement Act of 1977; the Federal Acquisition Regulation (48 CFR
chapter 1); and the DOL Acquisition Regulation (48 CFR chapter 29)
apply to the award of contracts and to payments to Federal agencies.
(b) Job Corps funding of Federal agencies that operate CCCs are
made by a transfer of obligational authority from the Department to the
respective operating agency.
Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, and Enrollment
Sec. 686.400 Who is eligible to participate in the Job Corps program?
(a) To be eligible to participate in the Job Corps, an individual
must be:
(1) At least 16 and not more than 24 years of age at the time of
enrollment, except that:
(i) The Job Corps Director may waive the maximum age limitation
described in paragraph (a)(1) of this section, and the requirement in
paragraph (a)(1)(ii) of this section for an individual with a
disability if he or she is otherwise eligible according to the
requirements listed in Sec. Sec. 686.400 and 686.410; and
(ii) Not more than 20 percent of individuals enrolled nationwide
may be individuals who are aged 22 to 24 years old;
(2) A low-income individual;
(3) An individual who is facing one or more of the following
barriers to education and employment:
(i) Is basic skills deficient, as defined in WIOA sec. 3;
(ii) Is a school dropout;
(iii) Is homeless as defined in sec. 41403(6) of the Violence
Against Women Act of 1994 (42 U.S.C. 14043e-2(6)); is a homeless child
or youth, as defined in sec. 725(2) of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(2)); or is a runaway, an individual in
foster care; or an individual who was in foster care and has aged out
of the foster care system.
(iv) Is a parent; or
(v) Requires additional education, career technical training, or
workforce preparation skills in order to obtain and
[[Page 20912]]
retain employment that leads to economic self-sufficiency; and
(4) Meets the requirements of Sec. 686.420, if applicable.
(b) Notwithstanding paragraph (a)(2) of this section, a veteran is
eligible to become an enrollee if the individual:
(1) Meets the requirements of paragraphs (a)(1) and (3) of this
section; and
(2) Does not meet the requirement of paragraph (a)(2) of this
section because the military income earned by the individual within the
6-month period prior to the individual's application for Job Corps
prevents the individual from meeting that requirement.
Sec. 686.410 Are there additional factors which are considered in
selecting an eligible applicant for enrollment?
Yes, in accordance with procedures issued by the Secretary, an
eligible applicant may be selected for enrollment only if:
(a) A determination is made, based on information relating to the
background, needs, and interests of the applicant, that the applicant's
educational and career and technical needs can best be met through the
Job Corps program;
(b) A determination is made that there is a reasonable expectation
the applicant can participate successfully in group situations and
activities, and is not likely to engage in actions that would
potentially:
(1) Prevent other students from receiving the benefit of the
program;
(2) Be incompatible with the maintenance of sound discipline; or
(3) Impede satisfactory relationships between the center to which
the student is assigned and surrounding local communities.
(c) The applicant is made aware of the center's rules, what the
consequences are for failure to observe the rules, and agrees to comply
with such rules, as described in procedures issued by the Secretary;
(d) The applicant has not been convicted of a felony consisting of
murder, child abuse, or a crime involving rape or sexual assault (WIOA
secs. 145(b)(1)(C), 145(b)(2), and 145(b)(3)). Other than these felony
convictions, no one will be denied enrollment in Job Corps solely on
the basis of contact with the criminal justice system. All applicants
must submit to a background check conducted according to procedures
established by the Secretary and in accordance with applicable State
and local laws. If the background check finds that the applicant is on
probation, parole, under a suspended sentence, or under the supervision
of any agency as a result of court action or institutionalization, the
court or appropriate supervising agency may certify in writing that it
will approve of the applicant's participation in Job Corps, and provide
full release from its supervision, and that the applicant's
participation and release does not violate applicable laws and
regulations; and
(e) Suitable arrangements are made for the care of any dependent
children for the proposed period of enrollment.
Sec. 686.420 Are there any special requirements for enrollment
related to the Military Selective Service Act?
(a) Yes, each male applicant 18 years of age or older must present
evidence that he has complied with sec. 3 of the Military Selective
Service Act (50 U.S.C. App. 451 et seq.) if required; and
(b) When a male student turns 18 years of age, he must submit
evidence to the center that he has complied with the requirements of
the Military Selective Service Act (50 U.S.C. App. 451 et seq.).
Sec. 686.430 What entities conduct outreach and admissions
activities for the Job Corps program?
The Secretary makes arrangements with outreach and admissions
providers to perform Job Corps recruitment, screening and admissions
functions according to standards and procedures issued by the
Secretary. Entities eligible to receive funds to provide outreach and
admissions services are identified in Sec. 686.300.
Sec. 686.440 What are the responsibilities of outreach and
admissions providers?
(a) Outreach and admissions agencies are responsible for:
(1) Developing outreach and referral sources;
(2) Actively seeking out potential applicants;
(3) Conducting personal interviews with all applicants to identify
their needs and eligibility status; and
(4) Identifying youth who are interested and likely Job Corps
participants.
(b) Outreach and admissions providers are responsible for
completing all Job Corps application forms and determining whether
applicants meet the eligibility and selection criteria for
participation in Job Corps as provided in Sec. Sec. 686.400 and
686.410.
(c) The Secretary may decide that determinations with regard to one
or more of the eligibility criteria will be made by the National
Director or his or her designee.
Sec. 686.450 How are applicants who meet eligibility and selection
criteria assigned to centers?
(a) Each applicant who meets the application and selection
requirements of Sec. Sec. 686.400 and 686.410 is assigned to a center
based on an assignment plan developed by the Secretary in consultation
with the operators of Job Corps centers. The assignment plan identifies
a target for the maximum percentage of students at each center who come
from the State or region nearest the center, and the regions
surrounding the center. The assignment plan is based on an analysis of:
(1) The number of eligible individuals in the State and region
where the center is located and the regions surrounding where the
center is located;
(2) The demand for enrollment in Job Corps in the State and region
where the center is located and in surrounding regions;
(3) The size and enrollment level of the center, including the
education, training, and supportive services provided through the
center; and
(4) The performance of the Job Corps center relating to the
expected levels of performance for indicators described in WIOA sec.
159(c)(1), and whether any actions have been taken with respect to the
center under secs. 159(f)(2) and 159(f)(3) of WIOA.
(b) Eligible applicants are assigned to the center that offers the
type of career technical training selected by the individual, and among
the centers that offer such career technical training, is closest to
the home of the individual. The Secretary may waive this requirement
if:
(1) The enrollee would be unduly delayed in participating in the
Job Corps program because the closest center is operating at full
capacity; or
(2) The parent or guardian of the enrollee requests assignment of
the enrollee to another Job Corps center due to circumstances in the
community that would impair prospects for successful completion by the
enrollee.
(c) If a parent or guardian objects to the assignment of a student
under the age of 18 to a center other than the center closest to home
that offers the desired career technical training, the Secretary must
not make such an assignment.
Sec. 686.460 What restrictions are there on the assignment of
eligible applicants for nonresidential enrollment in Job Corps?
No more than 20 percent of students enrolled in Job Corps
nationwide may be nonresidential students.
[[Page 20913]]
Sec. 686.470 May an individual who is determined to be ineligible or
an individual who is denied enrollment appeal that decision?
(a) A person who is determined to be ineligible to participate in
Job Corps under Sec. 686.400 or a person who is not selected for
enrollment under Sec. 686.410 may appeal the determination to the
outreach and admissions agency within 60 days of the determination. The
appeal will be resolved according to the procedures in Sec. Sec.
686.960 and 686.965. If the appeal is denied by the outreach/admissions
contractor or the center, the person may appeal the decision in writing
to the Regional Director within 60 days of the date of the denial. The
Regional Director will decide within 60 days whether to reverse or
approve the appealed decision. The decision by the Regional Director is
the Department's final decision.
(b) If an applicant believes that he or she has been determined
ineligible or not selected for enrollment based upon a factor
prohibited by sec. 188 of WIOA, the individual may proceed under the
applicable Department nondiscrimination regulations implementing WIOA
sec. 188 at 29 CFR part 37.
(c) An applicant who is determined to be ineligible or a person who
is denied enrollment must be referred to the appropriate one-stop
center or other local service provider.
Sec. 686.480 At what point is an applicant considered to be enrolled
in Job Corps?
(a) To be considered enrolled as a Job Corps student, an applicant
selected for enrollment must physically arrive at the assigned Job
Corps center on the appointed date. However, applicants selected for
enrollment who arrive at their assigned centers by government furnished
transportation are considered to be enrolled on their dates of
departure by such transportation.
(b) Center operators must document the enrollment of new students
according to procedures issued by the Secretary.
Sec. 686.490 How long may a student be enrolled in Job Corps?
(a) Except as provided in paragraph (b) of this section, a student
may remain enrolled in Job Corps for no more than 2 years.
(b)(1) An extension of a student's enrollment may be authorized in
special cases according to procedures issued by the Secretary;
(2) A student's enrollment in an advanced career training program
may be extended in order to complete the program for a period not to
exceed 1 year;
(3) An extension of a student's enrollment may be authorized in the
case of a student with a disability who would reasonably be expected to
meet the standards for a Job Corps graduate if allowed to participate
in the Job Corps for not more than 1 additional year; and
(4) An enrollment extension may be granted to a student who
participates in national service, as authorized by a Civilian
Conservation Center, for the amount of time equal to the period of
national service.
Subpart E--Program Activities and Center Operations
Sec. 686.500 What services must Job Corps centers provide?
(a) Job Corps centers must provide an intensive, well-organized and
fully supervised program including:
(1) Educational activities, including:
(i) Career technical training;
(ii) Academic instruction; and
(iii) Employability and independent learning and living skills
development.
(2) Work-based learning and experience;
(3) Residential support services; and
(4) Other services as required by the Secretary.
(b) In addition, centers must provide students with access to the
career services described in secs. 134(c)(2)(A)(i)-(xi) of WIOA.
Sec. 686.505 What types of training must Job Corps centers provide?
(a) Job Corps centers must provide students with a career technical
training program that is:
(1) Aligned with industry-recognized standards and credentials and
with program guidance; and
(2) Linked to employment opportunities in in-demand industry
sectors and occupations both in the area in which the center is located
and, if practicable, in the area the student plans to reside after
graduation.
(b) Each center must provide education programs, including: an
English language acquisition program, high school diploma or high
school equivalency certification program, and academic skills training
necessary for students to master skills in their chosen career
technical training programs.
(c) Each center must provide programs for students to learn and
practice employability and independent learning and living skills
including: job search and career development, interpersonal relations,
driver's education, study and critical thinking skills, financial
literacy and other skills specified in program guidance.
(d) All Job Corps training programs must be based on industry and
academic skills standards leading to recognized industry and academic
credentials, applying evidence-based instructional approaches, and
resulting in:
(1) Students' employment in unsubsidized, in-demand jobs with the
potential for advancement opportunities;
(2) Enrollment in advanced education and training programs or
apprenticeships, including registered apprenticeship; or
(3) Enlistment in the Armed Services.
(e) Specific career technical training programs offered by
individual centers must be approved by the Regional Director according
to policies issued by the Secretary.
(f) Center workforce councils described in Sec. 670.810 must
review appropriate labor market information, identify in-demand
industry sectors and employment opportunities in local areas where
students will look for employment, determine the skills and education
necessary for those jobs, and as appropriate, recommend changes in the
center's career technical training program to the Secretary.
(g) Each center must implement a system to evaluate and track the
progress and achievements of each student at regular intervals.
(h) Each center must develop a training plan that must be available
for review and approval by the appropriate Regional Director.
Sec. 686.510 Are entities other than Job Corps center operators
permitted to provide academic and career technical training?
(a) The Secretary may arrange for the career technical and academic
education of Job Corps students through local public or private
educational agencies, career and technical educational institutions or
technical institutes, or other providers such as business, union or
union-affiliated organizations as long as the entity can provide
education and training substantially equivalent in cost and quality to
that which the Secretary could provide through other means.
(b) Entities providing these services will be selected in
accordance with the requirements of Sec. 686.310.
Sec. 686.515 What are advanced career training programs?
(a) The Secretary may arrange for programs of advanced career
training (ACT) for selected students, which may be provided through the
eligible providers of training services identified in WIOA sec. 122 in
which the students continue to participate in the Job Corps program for
a period not to exceed 1
[[Page 20914]]
year in addition to the period of participation to which these students
would otherwise be limited.
(b) Students participating in an ACT program are eligible to
receive:
(1) All of the benefits provided to a residential Job corps
student; or
(2) A monthly stipend equal to the average value of the benefits
described in paragraph (b)(1) of this section.
(c) Any operator may enroll more students than otherwise authorized
by the Secretary in an ACT program if, in accordance with standards
developed by the Secretary, the operator demonstrates:
(1) Participants in such a program have achieved a satisfactory
rate of training and placement in training-related jobs; and
(2) For the most recently preceding 2 program years, the operator
has, on average, met or exceeded the expected levels of performance
under WIOA sec. 159(c)(1) for each of the primary indicators described
in WIOA sec. 116(b)(2)(A)(ii), listed in Sec. 686.1010.
Sec. 686.520 What responsibilities do the center operators have in
managing work-based learning?
(a) The center operator must emphasize and implement work-based
learning programs for students through center program activities,
including career and technical skills training, and through
arrangements with employers. Work-based learning must be under actual
working conditions and must be designed to enhance the employability,
responsibility, and confidence of the students. Work-based learning
usually occurs in tandem with students' career technical training.
(b) The center operator must ensure that students are assigned only
to workplaces that meet the safety standards described in Sec.
670.920.
Sec. 686.525 Are students permitted to hold jobs other than work-
based learning opportunities?
Yes, a center operator may authorize a student to participate in
gainful leisure time employment, as long as the employment does not
interfere with required scheduled activities.
Sec. 686.530 What residential support services must Job Corps center
operators provide?
Job Corps center operators must provide the following services
according to procedures issued by the Secretary:
(a) A center-wide quality living and learning environment that
supports the overall training program and includes a safe, secure,
clean and attractive physical and social environment, 7 days a week, 24
hours a day;
(b) An ongoing, structured personal counseling program for students
provided by qualified staff;
(c) A quality, safe and clean food service, to provide nutritious
meals for students;
(d) Medical services, through provision or coordination of a
wellness program which includes access to basic medical, dental and
mental health services, as described in the Policy and Requirements
Handbook, for all students from the date of enrollment until separation
from the Job Corps program;
(e) A recreation/avocational program that meets the needs of all
students;
(f) A student leadership program and an elected student government;
and
(g) A student welfare association for the benefit of all students
that is funded by non-appropriated funds that come from sources such as
snack bars, vending machines, disciplinary fines, and donations, and is
run by an elected student government, with the help of a staff advisor.
Sec. 686.535 Are Job Corps centers required to maintain a student
accountability system?
Yes, each Job Corps center must establish and implement an
effective system to account for and document the daily whereabouts,
participation, and status of students during their Job Corps
enrollment. The system must enable center staff to detect and respond
to instances of unauthorized or unexplained student absence. Each
center must operate its student accountability system according to
requirements and procedures issued by the Secretary.
Sec. 686.540 Are Job Corps centers required to establish behavior
management systems?
(a) Yes, each Job Corps center must establish and maintain its own
student incentives system to encourage and reward students'
accomplishments.
(b) The Job Corps center must establish and maintain a behavior
management system, based on a behavior management plan, according to
standards of conduct and procedures established by the Secretary. The
behavior management plan must be approved by the Job Corps regional
office and reviewed annually. The behavior management system must
include a zero tolerance policy for violence and drugs as described in
Sec. 686.590. All criminal incidents will be promptly reported to
local law enforcement.
Sec. 686.545 What is Job Corps' zero tolerance policy?
(a) All center operators must comply with Job Corps' zero tolerance
policy as established by the Secretary. Job Corps has a zero tolerance
policy for infractions including but not limited to:
(1) Acts of violence, as defined by the Secretary;
(2) Use, sale, or possession of a controlled substance, as defined
at 21 U.S.C. 802;
(3) Abuse of alcohol;
(4) Possession of unauthorized goods; or
(5) Other illegal or disruptive activity.
(b) As part of this policy, all students must be tested for drugs
as a condition of participation. (WIOA secs. 145(a)(2) and 152(b)(2))
(c) The zero tolerance policy specifies the offenses that result in
the separation of students from the Job Corps. The center director is
expressly responsible for determining when there is a violation of a
specified offense.
Sec. 686.550 How does Job Corps ensure that students receive due
process in disciplinary actions?
The center operator must ensure that all students receive due
process in disciplinary proceedings according to procedures developed
by the Secretary. These procedures must include center fact-finding and
behavior review boards, a code of sanctions under which the penalty of
separation from Job Corps might be imposed, and procedures for students
to submit an appeal to a Job Corps regional appeal board following a
center's decision to discharge involuntarily the student from Job
Corps.
Sec. 686.555 What responsibilities do Job Corps centers have in
assisting students with child care needs?
(a) Job Corps centers are responsible for coordinating with
outreach and admissions agencies to assist applicants, whenever
feasible, with making arrangements for child care. Prior to enrollment,
a program applicant with dependent children who provides primary or
custodial care must certify that suitable arrangements for child care
have been established for the proposed period of enrollment.
(b) Child development programs may be located at Job Corps centers
with the approval of the Secretary.
Sec. 686.560 What are the center's responsibilities in ensuring that
students' religious rights are respected?
(a) Centers must ensure that a student has the right to worship or
not worship as he or she chooses.
(b) Students who believe their religious rights have been violated
may
[[Page 20915]]
file complaints under the procedures set forth in 29 CFR part 37.
(c) Requirements related to equal treatment of religious
organizations in Department of Labor programs, and to protection of
religious liberty of Department of Labor social service providers and
beneficiaries, are found at subpart D of 29 CFR part 2. See also 20 CFR
683.255 and 683.285; 29 CFR part 37.
Sec. 686.565 Is Job Corps authorized to conduct pilot and
demonstration projects?
Yes, the Secretary may undertake experimental, research and
demonstration projects related to the Job Corps program according to
WIOA sec. 156(a), provided that such projects are developed, approved,
and conducted in accordance with policies and procedures developed by
the Secretary.
Subpart F--Student Support
Sec. 686.600 Are students provided with government-paid
transportation to and from Job Corps centers?
Yes, Job Corps provides for the transportation of students between
their homes and centers as described in policies and procedures issued
by the Secretary.
Sec. 686.610 When are students authorized to take leaves of absence
from their Job Corps centers?
(a) Job Corps students are eligible for annual leaves, emergency
leaves and other types of leaves of absence from their assigned centers
according to criteria and requirements issued by the Secretary.
Additionally, enrollees in Civilian Conservation Centers may take leave
to provide assistance in addressing national, State, and local
disasters, consistent with current laws and regulations, including
child labor laws and regulations.
(b) Center operators and other service providers must account for
student leave according to procedures issued by the Secretary.
Sec. 686.620 Are Job Corps students eligible to receive cash
allowances and performance bonuses?
(a) Yes, according to criteria and rates established by the
Secretary, Job Corps students receive cash living allowances,
performance bonuses, and allotments for care of dependents. Graduates
receive post-separation transition allowances according to Sec.
686.750.
(b) In the event of a student's death, any amount due under this
section is paid according to the provisions of 5 U.S.C. 5582 governing
issues such as designation of beneficiary, order of precedence, and
related matters.
Sec. 686.630 Are student allowances subject to Federal payroll taxes?
Yes, Job Corps student allowances are subject to Federal payroll
tax withholding and social security taxes. Job Corps students are
considered to be Federal employees for purposes of Federal payroll
taxes. (WIOA sec. 157(a)(2))
Sec. 686.640 Are students provided with clothing?
Yes, Job Corps students are provided cash clothing allowances and/
or articles of clothing, including safety clothing, when needed for
their participation in Job Corps and their successful entry into the
work force. Center operators and other service providers must issue
clothing and clothing assistance to students according to rates,
criteria, and procedures issued by the Secretary.
Subpart G--Career Transition and Graduate Services
Sec. 686.700 What are a Job Corps center's responsibilities in
preparing students for career transition services?
Job Corps centers must assess and counsel students to determine
their competencies, capabilities, and readiness for career transition
services.
Sec. 686.710 What career transition services are provided for Job
Corps enrollees?
Job Corps career transition services focus on placing program
graduates in:
(a) Full-time jobs that are related to their career technical
training and career pathway that lead to economic self-sufficiency;
(b) Post-secondary education;
(c) Advanced training programs, including apprenticeship programs;
or
(d) The Armed Forces.
Sec. 686.720 Who provides career transition services?
The one-stop delivery system must be used to the maximum extent
practicable in placing graduates and former enrollees in jobs. (WIOA
sec. 149(b)) Multiple other resources may also provide post-program
services, including but not limited to Job Corps career transition
service providers under a contract or other agreement with the
Department of Labor, and State vocational rehabilitation agencies for
individuals with disabilities.
Sec. 686.730 What are the responsibilities of career transition
service providers?
(a) Career transition service providers are responsible for:
(1) Contacting graduates;
(2) Assisting them in improving skills in resume preparation,
interviewing techniques and job search strategies;
(3) Identifying job leads or educational and training opportunities
through coordination with Local Workforce Development Boards, one-stop
operators and partners, employers, unions and industry organizations;
(4) Placing graduates in jobs, apprenticeship, the Armed Forces, or
post-secondary education or training, or referring former students for
additional services in their local communities as appropriate; and
(5) Providing placement services for former enrollees according to
procedures issued by the Secretary.
(b) Career transition service providers must record and submit all
Job Corps placement information according to procedures established by
the Secretary.
Sec. 686.740 What services are provided for program graduates?
According to procedures issued by the Secretary, career transition
and support services must be provided to program graduates for up to 12
months after graduation.
Sec. 686.750 Are graduates provided with transition allowances?
Yes, graduates receive post-separation transition allowances
according to policies and procedures established by the Secretary.
Transition allowances are incentive-based to reflect a graduate's
attainment of academic credentials and those associated with career
technical training such as industry-recognized credentials.
Sec. 686.760 What services are provided to former enrollees?
(a) Up to 3 months of employment services, including career
services offered through a one-stop center, may be provided to former
enrollees.
(b) According to procedures issued by the Secretary, other career
transition services as determined appropriate may be provided to former
enrollees.
Subpart H--Community Connections
Sec. 686.800 How do Job Corps centers and service providers become
involved in their local communities?
(a) The director of each Job Corps center must ensure the
establishment and development of mutually beneficial business and
community relationships and networks. Establishing and developing
networks includes relationships with:
(1) Local and distant employers;
(2) Applicable one-stop centers and Local Boards:
(3) Entities offering apprenticeship opportunities and youth
programs;
(4) Labor-management organizations and local labor organizations;
[[Page 20916]]
(5) Employers and contractors that support national training
programs and initiatives; and
(6) Community-based organizations, non-profit organizations, and
intermediaries providing workforce development-related services.
(b) Each Job Corps center also must establish and develop
relationships with members of the community in which it is located.
Members of the community should be informed of the projects of the Job
Corps center and changes in the rules, procedures, or activities of the
center that may affect the community. Events of mutual interest to the
community and the Job Corps center should be planned to create and
maintain community relations and community support.
Sec. 686.810 What is the makeup of a workforce council and what are
its responsibilities?
(a) Each Job Corps center must establish a workforce council,
according to procedures established by the Secretary. The workforce
council must include:
(1) Non-governmental and private sector employers;
(2) Representatives of labor organizations (where present) and of
employees;
(3) Job Corps enrollees and graduates; and
(4) In the case of a single-State local area, the workforce council
must include a representative of the State Board constituted under
Sec. 679.110.
(b) A majority of the council members must be business owners,
chief executives or chief operating officers of nongovernmental
employers or other private sector employers, who have substantial
management, hiring or policy responsibility and who represent
businesses with employment opportunities in the local area and the
areas in which students will seek employment.
(c) The workforce council may include, or otherwise provide for
consultation with, employers from outside the local area who are likely
to hire a significant number of enrollees from the Job Corps center.
(d) The workforce council must:
(1) Work with all applicable Local Boards and review labor market
information to determine and provide recommendations to the Secretary
regarding the center's career technical training offerings, including
identification of emerging occupations suitable for training (WIOA sec.
154(c)(1));
(2) Review all relevant labor market information, including related
information in the State Plan or the local plan, to:
(i) Recommend in-demand industry sectors or occupations in the area
in which the center operates;
(ii) Determine employment opportunities in the areas in which
enrollees intend to seek employment;
(iii) Determine the skills and education necessary to obtain the
identified employment; and
(iv) Recommend to the Secretary the type of career technical
training that should be implemented at the center to enable enrollees
to obtain the employment opportunities identified.
(3) Meet at least once every 6 months to reevaluate the labor
market information, and other relevant information, to determine and
recommend to the Secretary any necessary changes in the career
technical training provided at the center.
Sec. 686.820 How will Job Corps coordinate with other agencies?
(a) The Secretary issues guidelines for the national office,
regional offices, Job Corps centers and operational support providers
to use in developing and maintaining cooperative relationships with
other agencies and institutions, including law enforcement, educational
institutions, communities, and other employment and training programs
and agencies.
(b) The Secretary develops polices and requirements to ensure
linkages with the one-stop delivery system to the greatest extent
practicable, as well as with other Federal, State, and local programs,
and youth programs funded under title I of WIOA. These linkages enhance
services to youth who face multiple barriers to employment and must
include, where appropriate:
(1) Referrals of applicants and students;
(2) Participant assessment;
(3) Pre-employment and work maturity skills training;
(4) Work-based learning;
(5) Job search, occupational, and basic skills training; and
(6) Provision of continued services for graduates.
(c) Job Corps is identified as a required one-stop partner.
Wherever practicable, Job Corps centers and operational support
contractors must establish cooperative relationships and partnerships
with one-stop centers and other one-stop partners, Local Boards, and
other programs for youth.
Subpart I--Administrative and Management Provisions
Sec. 686.900 Are damages caused by the acts or omissions of students
eligible for payment under the Federal Tort Claims Act?
Yes, students are considered Federal employees for purposes of the
FTCA. (28 U.S.C. 2671 et seq.) Claims for such damage should be filed
pursuant to the procedures found in 29 CFR part 15, subpart D.
Sec. 686.905 Are loss and damages that occur to persons or personal
property of students at Job Corps centers eligible for reimbursement?
Yes, the Job Corps may pay students for valid claims under the
procedures found in 29 CFR part 15, subpart D.
Sec. 686.910 If a student is injured in the performance of duty as a
Job Corps student, what benefits may the student receive?
(a) Job Corps students are considered Federal employees for
purposes of the Federal Employees' Compensation Act (FECA) as specified
in sec. 157(a)(3) of WIOA. (29 U.S.C. 2897(a)(3))
(b) Job Corps students may be entitled to benefits under FECA as
provided by 5 U.S.C. 8143 for injuries occurring in the performance of
duty.
(c) Job Corps students must meet the same eligibility tests for
FECA benefits that apply to all other Federal employees. The
requirements for FECA benefits may be found at 5 U.S.C. 8101, et seq.
and part 10 of this title. The Department of Labor's Office of Workers'
Compensation Programs (OWCP) administers the FECA program; all FECA
determinations are within the exclusive authority of the OWCP, subject
to appeal to the Employees' Compensation Appeals Board.
(d) Whenever a student is injured, develops an occupationally
related illness, or dies while in the performance of duty, the
procedures of the OWCP, at part 10 of this title, must be followed. To
assist OWCP in determining FECA eligibility, a thorough investigation
of the circumstances and a medical evaluation must be completed and
required forms must be timely filed by the center operator with the
Department's OWCP. Additional information regarding Job Corps FECA
claims may be found in OWCP's regulations and procedures available on
the Department's Web site located at www.dol.gov
Sec. 686.915 When is a Job Corps student considered to be in the
performance of duty?
(a) Performance of duty is a determination that must be made by the
[[Page 20917]]
OWCP under FECA, and is based on the individual circumstances in each
claim.
(b) In general, residential students may be considered to be in the
``performance of duty'' when:
(1) They are on center under the supervision and control of Job
Corps officials;
(2) They are engaged in any authorized Job Corps activity;
(3) They are in authorized travel status; or
(4) They are engaged in any authorized offsite activity.
(c) Non-resident students are generally considered to be ``in
performance of duty'' as Federal employees when they are engaged in any
authorized Job Corps activity, from the time they arrive at any
scheduled center activity until they leave the activity. The standard
rules governing coverage of Federal employees during travel to and from
work apply. These rules are described in guidance issued by the
Secretary.
(d) Students are generally considered to be not in the performance
of duty when:
(1) They are Absent Without Leave (AWOL);
(2) They are at home, whether on pass or on leave;
(3) They are engaged in an unauthorized offsite activity; or
(4) They are injured or ill due to their own willful misconduct,
intent to cause injury or death to oneself or another, or through
intoxication or illegal use of drugs.
Sec. 686.920 How are students protected from unsafe or unhealthy
situations?
(a) The Secretary establishes procedures to ensure that students
are not required or permitted to work, be trained, reside in, or
receive services in buildings or surroundings or under conditions that
are unsanitary or hazardous. Whenever students are employed or in
training for jobs, they must be assigned only to jobs or training which
observe applicable Federal, State and local health and safety
standards.
(b) The Secretary develops procedures to ensure compliance with
applicable DOL Occupational Safety and Health Administration
regulations and Wage and Hour Division regulations.
Sec. 686.925 What are the requirements for criminal law enforcement
jurisdiction on center property?
(a) All Job Corps property which would otherwise be under exclusive
Federal legislative jurisdiction is considered under concurrent
jurisdiction with the appropriate State and locality with respect to
criminal law enforcement. Concurrent jurisdiction extends to all
portions of the property, including housing and recreational
facilities, in addition to the portions of the property used for
education and training activities.
(b) Centers located on property under concurrent Federal-State
jurisdiction must establish agreements with Federal, State and local
law enforcement agencies to enforce criminal laws.
(c) The Secretary develops procedures to ensure that any searches
of a student's person, personal area or belongings for unauthorized
goods follow applicable right-to-privacy laws.
Sec. 686.930 Are Job Corps operators and service providers authorized
to pay State or local taxes on gross receipts?
(a) A private for-profit or a non-profit Job Corps service provider
is not liable, directly or indirectly, to any State or subdivision for
any gross receipts taxes, business privilege taxes measured by gross
receipts, or any similar taxes in connection with any payments made to
or by such service provider for operating a center or other Job Corps
program or activity. The service provider is not liable to any State or
subdivision to collect or pay any sales, excise, use, or similar tax
imposed upon the sale to or use by such deliverer of any property,
service, or other item in connection with the operation of a center or
other Job Corps program or activity. (WIOA sec. 158(d))
(b) If a State or local authority compels a center operator or
other service provider to pay such taxes, the center operator or
service provider may pay the taxes with Federal funds, but must
document and report the State or local requirement according to
procedures issued by the Secretary.
Sec. 686.935 What are the financial management responsibilities of
Job Corps center operators and other service providers?
(a) Center operators and other service providers must manage Job
Corps funds using financial management information systems that meet
the specifications and requirements of the Secretary.
(b) These financial management systems must:
(1) Provide accurate, complete, and current disclosures of the
costs of their Job Corps activities;
(2) Ensure that expenditures of funds are necessary, reasonable,
allocable and allowable in accordance with applicable cost principles;
(3) Use account structures specified by the Secretary;
(4) Ensure the ability to comply with cost reporting requirements
and procedures issued by the Secretary; and
(5) Maintain sufficient cost data for effective planning,
monitoring, and evaluation of program activities and for determining
the allowability of reported costs.
Sec. 686.940 Are center operators and service providers subject to
Federal audits?
(a) Yes, Center operators and service providers are subject to
Federal audits.
(b) The Secretary arranges for the survey, audit, or evaluation of
each Job Corps center and service provider at least once every 3 years,
by Federal auditors or independent public accountants. The Secretary
may arrange for more frequent audits. (WIOA sec. 159(b)(2))
(c) Center operators and other service providers are responsible
for giving full cooperation and access to books, documents, papers and
records to duly appointed Federal auditors and evaluators. (WIOA sec.
159(b)(1))
Sec. 686.945 What are the procedures for management of student
records?
The Secretary issues guidelines for a system for maintaining
records for each student during enrollment and for disposition of such
records after separation.
Sec. 686.950 What procedures apply to disclosure of information about
Job Corps students and program activities?
(a) The Secretary develops procedures to respond to requests for
information or records or other necessary disclosures pertaining to
students.
(b) Department disclosure of Job Corps information must be handled
according to the Freedom of Information Act and according to Department
regulations at 29 CFR part 70.
(c) Job Corps contractors are not ``agencies'' for Freedom of
Information Act purposes. Therefore, their records are not subject to
disclosure under the Freedom of Information Act or 29 CFR part 70.
(d) The regulations at 29 CFR part 71 apply to a system of records
covered by the Privacy Act of 1974 maintained by the Department or to a
similar system maintained by a contractor, such as a screening agency,
contract center operator, or career transition service provider on
behalf of the Job Corps.
Sec. 686.955 What are the reporting requirements for center operators
and operational support service providers?
The Secretary establishes procedures to ensure the timely and
complete reporting of necessary financial and program information to
maintain accountability. Center operators and operational support
service providers are responsible for the accuracy and
[[Page 20918]]
integrity of all reports and data they provide.
Sec. 686.960 What procedures are available to resolve complaints and
disputes?
(a) Each Job Corps center operator and service provider must
establish and maintain a grievance procedure for filing complaints and
resolving disputes from applicants, students and/or other interested
parties about its programs and activities. A hearing on each complaint
or dispute must be conducted within 30 days of the filing of the
complaint or dispute. A decision on the complaint must be made by the
center operator or service provider, as appropriate, within 60 days
after the filing of the complaint, and a copy of the decision must be
immediately served, by first-class mail, on the complainant and any
other party to the complaint. Except for complaints under Sec. 670.470
or complaints alleging fraud or other criminal activity, complaints may
be filed within 1 year of the occurrence that led to the complaint.
(b) The procedure established under paragraph (a) of this section
must include procedures to process complaints alleging violations of
sec. 188 of WIOA, consistent with Department nondiscrimination
regulations implementing sec. 188 of WIOA at 29 CFR part 37 and Sec.
670.998 of this chapter.
Sec. 686.965 How does Job Corps ensure that complaints or disputes
are resolved in a timely fashion?
(a) If a complaint is not resolved by the center operator or
service provider in the time frames described in Sec. 686.960, the
person making the complaint may request that the Regional Director
determine whether reasonable cause exists to believe that the Act or
regulations for this part of the Act have been violated. The request
must be filed with the Regional Director within 60 days from the date
that the center operator or service provider should have issued the
decision.
(b) Following the receipt of a request for review under paragraph
(a) of this section, the Regional Director must determine within 60
days whether there has been a violation of the Act or the WIOA
regulations. If the Regional Director determines that there has been a
violation of the Act or regulations, (s)he may direct the operator or
service provider to remedy the violation or direct the service provider
to issue a decision to resolve the dispute according to the service
provider's grievance procedures. If the service provider does not
comply with the Regional Director's decision within 30 days, the
Regional Director may impose a sanction on the center operator or
service provider for violating the Act or regulations, and/or for
failing to issue a decision. Decisions imposing sanctions upon a center
operator or service provider may be appealed to the DOL Office of
Administrative Law Judges under 20 CFR 683.800 or 683.840.
Sec. 686.970 How does Job Corps ensure that centers or other service
providers comply with the Act and the Workforce Innovation and
Opportunity Act regulations?
(a) If the Department receives a complaint or has reason to believe
that a center or other service provider is failing to comply with the
requirements of the Act or regulations, the Regional Director must
investigate the allegation and determine within 90 days after receiving
the complaint or otherwise learning of the alleged violation, whether
such allegation or complaint is true.
(b) As a result of such a determination, the Regional Director may:
(1) Direct the center operator or service provider to handle a
complaint through the grievance procedures established under Sec.
686.960; or
(2) Investigate and determine whether the center operator or
service provider is in compliance with the Act and regulations. If the
Regional Director determines that the center or service provider is not
in compliance with the Act or regulations, the Regional Director may
take action to resolve the complaint under Sec. 686.965(b), or will
report the incident to the DOL Office of the Inspector General, as
described in 20 CFR 683.620.
Sec. 686.975 How does Job Corps ensure that contract disputes will be
resolved?
A dispute between the Department and a Job Corps contractor will be
handled according to the Contract Disputes Act and applicable
regulations.
Sec. 686.980 How does Job Corps resolve disputes between the U.S.
Department of Labor and the U.S. Department of Agriculture regarding
the operation of Job Corps centers?
Disputes between the U.S. Department of Labor and the U.S.
Department of Agriculture regarding operating a center will be handled
according to the interagency agreement between the two agencies.
Sec. 686.985 What Department of Labor equal opportunity and
nondiscrimination regulations apply to Job Corps?
Nondiscrimination requirements, procedures, complaint processing,
and compliance reviews are governed by, as applicable, provisions of
the following Department of Labor regulations:
(a) Regulations implementing sec. 188 of WIOA for programs
receiving Federal financial assistance under WIOA found at 29 CFR part
37.
(b) 29 CFR part 33 for programs conducted by the Department of
Labor; and
(c) 41 CFR chapter 60 for entities that have a Federal government
contract.
Subpart J--Performance
Sec. 686.1000 How is the performance of the Job Corps program
assessed?
(a) The performance of the Job Corps program as a whole, and the
performance of individual centers, outreach and admissions providers,
and career transition service providers, is assessed in accordance with
the regulations in this part and procedures and standards issued by the
Secretary, through a national performance management system, including
the Outcome Measurement System (OMS).
(b) The national performance management system will include
measures that reflect the primary indicators of performance described
in Sec. 686.1010, the information needed to complete the Annual Report
described in Sec. 686.1040, and any other information the Secretary
determines is necessary to manage and evaluate the effectiveness of the
Job Corps program. The Secretary will issue annual guidance describing
the performance management system and outcome measurement system.
(c) Annual performance assessments based on the measures described
in paragraph (b) of this section are done for each center operator and
other service providers, including outreach and admissions providers
and career transition providers.
Sec. 686.1010 What are the primary indicators of performance for Job
Corps centers and the Job Corps program?
The primary indicators of performance for eligible youth are
described in sec. 116(b)(2)(A)(ii) of WIOA. They are:
(a) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the second
quarter after exit from the program (WIOA sec. 116(b)(2)(A)(ii)(I));
(b) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the fourth
quarter after exit from the program (WIOA sec. 116(b)(2)(A)(ii)(II));
(c) The median earnings of program participants who are in
unsubsidized
[[Page 20919]]
employment during the second quarter after exit from the program (WIOA
sec. 116(b)(2)(A)(i)(III));
(d) The percentage of program participants who obtain a recognized
post-secondary credential, or a secondary school diploma or its
recognized equivalent during participation in or within 1 year after
exit from the program. (WIOA sec. 116(b)(2)(A)(i)(IV)) Program
participants who obtain a secondary school diploma or its recognized
equivalent will be included in the percentage only if they have also
obtained or retained employment, or are in an education or training
program leading to a recognized post-secondary credential, within 1
year after exit from the program (WIOA sec. 116(b)(2)(A)(iii));
(e) The percentage of program participants who, during a program
year, are in an education or training program that leads to a
recognized post-secondary credential or employment and who are
achieving measurable skill gains toward such a credential or employment
(WIOA sec. 116(b)(2)(A)(i)(V)); and
(f) The indicators of effectiveness in serving employers
established by the Secretaries of Education and Labor, pursuant to sec.
116(b)(2)(A)(iv) of WIOA. (WIOA sec. 116(b)(2)(A)(i)(VI))
Sec. 686.1020 What are the indicators of performance for Job Corps
outreach and admissions providers?
The Secretary establishes performance indicators for outreach and
admission service providers serving the Job Corps program. They
include, but are not limited to:
(a) The number of enrollees recruited, compared to the established
goals for such recruitment, and the number of enrollees who remain
committed to the program for 90 days after enrollment (WIOA sec.
159(c)(2)(A));
(b) The percentage and number of former enrollees, including the
number dismissed under the zero tolerance policy described in sec.
152(b) of WIOA and Sec. 686.545 (WIOA sec. 159(d)(1)(I));
(c) The maximum attainable percent of enrollees at the Job Corps
center that reside in the State in which the center is located, and the
maximum attainable percentage of enrollees at the Job Corps center that
reside in the State in which the center is located and in surrounding
regions, as compared to the percentage targets established by the
Secretary for the center for each of those measures (WIOA sec.
159(d)(1)(L)); and
(d) The cost per enrollee, calculated by comparing the number of
enrollees at the center in a program year to the total budget for such
center in the same program year. (WIOA sec. 159(d)(1)(M)).
Sec. 686.1030 What are the indicators of performance for Job Corps
career transition service providers?
The Secretary establishes performance indicators for career
transition service providers serving the Job Corps program. These
include, but are not limited to, the following:
(a) The primary indicators of performance for eligible youth in
WIOA sec. 116(b)(2)(A)(ii), as listed in Sec. 686.1010;
(b) The number of graduates who entered the Armed Forces (WIOA sec.
159(d)(1)(D));
(c) The number of graduates who entered apprenticeship programs
(WIOA sec. 159(d)(1)(E));
(d) The number of graduates who entered unsubsidized employment
related to the career technical training received through the Job Corps
program (WIOA sec. 159(d)(1)(H));
(e) The number of graduates who entered unsubsidized employment not
related to the education and training received through the Job Corps
program (WIOA sec. 159(d)(1)(H));
(f) The percentage and number of graduates who enter post-secondary
education (WIOA sec. 159(d)(1)(J)); and
(g) The average wage of graduates who entered unsubsidized
employment (WIOA sec. 159(d)(1)(K)):
(1) On the first day of such employment, and
(2) On the day that is 6 months after such first day.
Sec. 686.1040 What information will be collected for use in the
Annual Report?
The Secretary will collect and submit in the Annual Report
described in sec. 159(c)(4) of WIOA, which will include the following
information on each Job Corps center, and the Job Corps program as a
whole:
(a) Information on the performance, based on the performance
indicators described Sec. 686.1010, as compared to the expected level
of performance established under Sec. 686.1050 for each performance
indicator;
(b) Information on the performance of outreach service providers
and career transition service providers on the performance indicators
established under Sec. Sec. 686.1020 and 686.1030, as compared to the
expected levels of performance established under Sec. 686.1050 for
each of those indicators;
(c) The number of enrollees served;
(d) Demographic information on the enrollees served, including age,
race, gender, and education and income level;
(e) The number of graduates of a Job Corps center;
(f) The number of graduates who entered the Armed Forces;
(g) The number of graduates who entered apprenticeship programs;
(h) The number of graduates who received a regular secondary school
diploma;
(i) The number of graduates who received a State recognized
equivalent of a secondary school diploma;
(j) The number of graduates who entered unsubsidized employment
related to the career technical training received through the Job Corps
program and the number who entered unsubsidized employment not related
to the education and training received;
(k) The percentage and number of former enrollees, including the
number dismissed under the zero tolerance policy described in Sec.
686.545;
(l) The percentage and number of graduates who enter post-secondary
education;
(m) The average wage of graduates who enter unsubsidized
employment:
(1) On the first day of such employment; and
(2) On the day that is 6 months after such first day;
(n) The maximum attainable percent of enrollees at a Job Corps
center that reside in the State in which the center is located, and the
maximum attainable percentage of enrollees at a Job Corps center that
reside in the State in which the center is located and in surrounding
regions, as compared to the percentage targets established by the
Secretary for the center for each of those measures;
(o) The cost per enrollee, which is calculated by comparing the
number of enrollees at the center in a program year to the total budget
for such center in the same program year;
(p) The cost per graduate, which is calculated by comparing the
number of graduates of the center in a program year compared to the
total budget for such center in the same program year;
(q) Information regarding the state of Job Corps buildings and
facilities, including a review of requested construction,
rehabilitation, and acquisition projects, by each Job Corps center, and
a review of new facilities under construction;
(r) Available information regarding the national and community
service activities of enrollees, particularly those enrollees at
Civilian Conservation Centers; and
(s) Any additional information required by the Secretary.
[[Page 20920]]
Sec. 686.1050 How are the expected levels of performance for Job
Corps centers, outreach and admissions providers and career transition
service providers established?
(a) The Secretary establishes expected levels of performance for
Job Corps centers, outreach and admissions providers and career
transition service providers and the Job Corps program relating to each
of the primary indicators of performance described in Sec. Sec.
686.1010, 686.1020, and 686.1030.
(b) As described in Sec. 686.1000, the Secretary will issue annual
guidance describing the national performance management system and
outcomes measurement system, which will communicate the expected levels
of performance for each primary indicator of performance for each
center, and each indicator of performance for each outreach and
admission provider, and for each career transition service provider.
Such guidance will also describe how the expected levels of performance
were calculated.
Sec. 686.1060 How are center rankings established?
(a) The Secretary calculates annual rankings of center performance
based on the performance management system described in Sec. 686.1000
as part of the annual performance assessment described in Sec.
686.1000(c).
(b) The Secretary will issue annual guidance that communicates the
methodology for calculating the performance rankings for the year.
Sec. 686.1070 How and when will the Secretary use Performance
Improvement Plans?
(a) The Secretary establishes standards and procedures for
developing and implementing performance improvement plans.
(1) The Secretary will develop and implement a performance
improvement plan for a center when that center fails to meet the
expected levels of performance described in Sec. 686.1050,
(i) The Secretary will consider a center to have failed to meet the
expected level of performance if the center:
(A) Is ranked among the lowest 10 percent of Job Corps centers for
the most recent preceding program year according to the rankings
calculated under Sec. 686.1060; and
(B) The center fails to achieve an average of 90 percent of the
expected level of performance for all of the primary indicators.
(ii) For any program year that precedes the implementation of the
establishment of the expected levels of performance under Sec.
686.1050 and the application of the primary indicators of performance
for Job Corps centers identified in Sec. 686.1010, the Secretary will
consider a center to have failed to meet the expected levels of
performance if the center:
(A) Is ranked among the lowest 10 percent of Job Corps centers for
the most recent preceding program year according to the rankings
calculated under Sec. 686.1060; and
(B) The center's composite OMS score for the program year is 88
percent or less of the year's OMS national average.
(2) The Secretary may also develop and implement additional
performance improvement plans, which will require improvements for a
Job Corps center that fails to meet criteria established by the
Secretary other than the expected levels of performance.
(b) A performance improvement plan will require action be taken to
correct identified performance issues within 1 year of the
implementation of the plan (WIOA sec. 159(f)(2)), and it will identify
criteria that must be met for the center to complete the performance
improvement plan.
(1) The center operator must implement the actions outlined in the
performance improvement plan.
(2) If the center fails to take the steps outlined in the
performance improvement plan or fails to meet the criteria established
to complete the performance improvement plan after 1 year, the center
will be considered to have failed to improve performance under a
performance improvement plan detailed in paragraph (a) of this section.
(i) Such a center will remain on a performance improvement plan and
the Secretary will take action as described in paragraph (c) of this
section.
(ii) If a Civilian Conservation Center fails to meet expected
levels of performance relating to the primary indicators of performance
specified in Sec. 686.1010, or fails to improve performance under a
performance improvement plan detailed in paragraph (a) of this section
after 3 program years, the Secretary, in consultation with the
Secretary of Agriculture, must select an entity to operate the Civilian
Conservation Center on a competitive basis, in accordance with the
requirements of Sec. 686.310. (WIOA sec. 159(f)(4))
(c) Under a performance improvement plan, the Secretary may take
the following actions, as necessary:
(1) Providing technical assistance to the center (WIOA sec.
159(f)(2)(A));
(2) Changing the management staff of a center (WIOA sec.
159(f)(2)(C));
(3) Changing the career technical training offered at the center
(WIOA sec. 159(f)(2)(B));
(4) Replacing the operator of the center (WIOA sec. 159(f)(2)(D));
(5) Reducing the capacity of the center (WIOA sec. 159(f)(2)(E));
(6) Relocating the center (WIOA sec. 159(f)(2)(F)); or
(7) Closing the center (WIOA sec. 159(f)(2)(G)) in accordance with
the criteria established under Sec. 670.200(b).
0
14. Add part 687 to read as follows:
PART 687--NATIONAL DISLOCATED WORKER GRANTS
Sec.
687.100 What are the types and purposes of national disclosed worker
grants under the Workforce Innovation and Opportunity Act?
687.110 What are major economic dislocations or other events which
may qualify for a national dislocated worker grant?
687.120 Who is eligible to apply for national dislocated worker
grants?
687.130 When should applications for national dislocated worker
grants be submitted to the Department?
687.140 What activities are applicants expected to conduct before a
national dislocated worker grant application is submitted?
687.150 What are the requirements for submitting applications for
national dislocated worker grants?
687.160 What is the timeframe for the Department to issue decisions
on national dislocated worker grant applications?
687.170 Who is eligible to be served under national dislocated
worker grants?
687.180 What are the allowable activities under national dislocated
worker grants?
687.190 How do statutory and regulatory waivers apply to national
dislocated worker grants?
687.200 What are the program and administrative requirements that
apply to national dislocated worker grants?
Authority: Secs. 170, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
Sec. 687.100 What are the types and purposes of national disclosed
worker grants under the Workforce Innovation and Opportunity Act?
There are two types of national dislocated worker grants (NDWGs)
under sec. 170 of the WIOA: Regular NDWGs and Disaster NDWGs.
(a) Regular NDWGs provide career services for dislocated workers
and other eligible populations. They are intended to expand service
capacity temporarily at the State and local levels, by providing time-
limited funding assistance in response to significant events that
affect the U.S. workforce that cannot be accommodated with WIOA formula
funds or other relevant existing resources.
[[Page 20921]]
(b) Disaster NDWGs allow for the creation of temporary employment
to assist with clean-up and recovery efforts from emergencies or major
disasters and the provision of career services in certain situations,
as provided in Sec. 687.180(b).
Sec. 687.110 What are major economic dislocations or other events
which may qualify for a national dislocated worker grant?
(a) Qualifying events for Regular NDWGs include:
(1) Mass layoffs affecting 50 or more workers from one employer in
the same area;
(2) Closures and realignments of military installations;
(3) Layoffs that have significantly increased the total number of
unemployed individuals in a community;
(4) Situations where higher than average demand for employment and
training activities for dislocated members of the Armed Forces,
dislocated spouses of members of the Armed Forces on active duty (as
defined in 10 U.S.C. 101(d)(1)), or members of the Armed Forces
described in Sec. 687.170(a)(1)(iii), exceeds State and local
resources for providing such activities; and
(5) Other events, as determined by the Secretary.
(b) Qualifying events for Disaster NDWGs include:
(1) Emergencies or major disasters, as defined in paragraphs (1)
and (2), respectively, of sec. 102 of the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5122(1) and (2)) which
have been declared eligible for public assistance by the Federal
Emergency Management Agency (FEMA);
(2) An emergency or disaster situation of national significance
that could result in a potentially large loss of employment, as
declared or otherwise recognized by the chief official of a Federal
Agency with jurisdiction over the Federal response to the emergency or
disaster situation; and
(3) Situations where a substantial number of workers from a State,
tribal area, or outlying area in which an emergency or disaster has
occurred relocate to another State, tribal area, or outlying area.
Sec. 687.120 Who is eligible to apply for national dislocated worker
grants?
(a) For Regular NDWGs, the following entities are eligible to
apply:
(1) States or outlying areas, or a consortium of States;
(2) Local Boards, or a consortium of boards;
(3) An entity described in sec. 166(c) of WIOA relating to Native
American programs; and,
(4) Other entities determined to be appropriate by the Governor of
the State or outlying area involved; and
(5) Other entities that demonstrate to the Secretary the capability
to respond effectively to circumstances relating to particular
dislocations.
(b) For Disaster NDWGs, only States, outlying areas, and Indian
tribal governments as defined by the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. 5122(6)) are eligible to apply.
Sec. 687.130 When should applications for national dislocated worker
grants be submitted to the Department?
(a) Applications for Regular NDWGs may be submitted at any time
during the year and should be submitted to respond to eligible events
as soon as possible when:
(1) The applicant receives a notification of a mass layoff or a
closure as a result of a Worker Adjustment and Retraining Notification
(WARN) Act notice, a general announcement, or some other means, or in
the case of applications to address situations described in Sec.
687.110(a)(4), when higher than average demand for employment and
training activities for those members of the Armed Forces and military
spouses exceeds State and local resources for providing such
activities;
(2) Worker need and interest in services has been determined
through Rapid Response, or other means, and is sufficient to justify
the need for a NDWG; and
(3) A determination has been made, in collaboration with the
applicable local area, that State and local formula funds are
inadequate to provide the level of services needed by the affected
workers.
(b) Applications for Disaster NDWGs to respond to an emergency or
major disaster should be submitted as soon as possible when:
(1) As described in Sec. 687.110(b)(1), FEMA has declared that the
affected area is eligible for public assistance;
(2) An emergency or disaster situation of national significance
that could result in a potentially large loss of employment occurs, and
the Federal agency with jurisdiction over the Federal response has
issued an appropriate declaration, as described in Sec. 687.110(b)(2)
(such applications must indicate the applicable Federal agency
declaration, describe the impact on the local and/or State economy, and
describe the proposed activities); or
(3) A substantial number of workers from a State, tribal area, or
outlying area in which an emergency or disaster has occurred relocate
to another State, tribal area, or outlying area, as provided under
Sec. 687.110(b)(3), and interest in services has been determined and
is sufficient to justify the need for a NDWG.
Sec. 687.140 What activities are applicants expected to conduct
before a national dislocated worker grant application is submitted?
Prior to submitting an application for NDWG funds, applicants must:
(a) For Regular NDWGs:
(1) Collect information to identify the needs and interests of the
affected workers through Rapid Response activities (described in Sec.
682.330), or other means;
(2) Provide appropriate services to eligible workers with State and
local funds, including funds from State allotments for dislocated
worker training and statewide activities provided under sec.
132(b)(2)(B) of WIOA, as available; and
(3) Coordinate with the Local Board(s) and chief elected
official(s) of the local area(s) in which the proposed NDWG project is
to operate.
(b) For Disaster NDWGs:
(1) Conduct a preliminary assessment of the clean-up and
humanitarian needs of the affected areas;
(2) Put a mechanism in place to reasonably ascertain that there is
a sufficient population of eligible individuals to conduct the planned
work; and
(3) Coordinate with the Local Board(s) and chief elected
official(s) of the local area(s) in which the proposed project is to
operate.
Sec. 687.150 What are the requirements for submitting applications
for national dislocated worker grants?
The Department will publish additional guidance on NDWGs and the
requirements for submitting applications for NDWGs. A project
implementation plan must be submitted after receiving the NDWG award.
The additional guidance also will identify the information which must
be included in the required project implementation plan. The project
implementation plan will include more detailed information than is
required for the initial application.
Sec. 687.160 What is the timeframe for the Department to issue
decisions on national dislocated worker grant applications?
The Department will issue a final decision on a NDWG application
within 45 calendar days of receipt of an application that meets the
requirements of this part. Applicants are strongly encouraged to review
their NDWG
[[Page 20922]]
application submissions carefully and consult with the appropriate
Employment and Training Administration Regional Office to ensure their
applications meet the requirements established in this part and those
that may be set forth in additional guidance.
Sec. 687.170 Who is eligible to be served under national dislocated
worker grants?
(a) For Regular NDWGs:
(1) In order to receive career services, as prescribed by sec.
134(c)(2)(A) of WIOA and Sec. 680.130(a) of this chapter under a NDWG,
an individual must be:
(i) A dislocated worker within the meaning of sec. 3(15) of WIOA;
(ii) A person who is either:
(A) A civilian employee of the Department of Defense or the
Department of Energy employed at a military installation that is being
closed or will undergo realignment within 24 months after the date of
determination of eligibility; or
(B) An individual employed in a non-managerial position with a
Department of Defense contractor determined by the Secretary of Defense
to be at risk of termination from employment as a result of reductions
in defense expenditures and whose employer is converting from defense
to non-defense applications in order to prevent worker layoffs; or
(iii) A member of the Armed Forces who:
(A) was on active duty or full-time National Guard duty;
(B) is involuntarily separated from active duty or full-time
National Guard duty (as defined in 10 U.S.C. 1141), or is separated
from active duty or full-time National Guard duty pursuant to a special
separation benefits program under 10 U.S.C. 1174a or the voluntary
separation incentive program under 10 U.S.C. 1175;
(C) is not entitled to retired or retained pay incident to the
separation described in paragraph (a)(1)(ii) of this section; and
(D) applies for employment and training assistance under this part
before the end of the 180-day period beginning on the date of the
separation described in paragraph (a)(1)(ii) of this section.
(iv) For Regular NDWGs awarded for situations described in Sec.
687.110(a)(4), a person who is:
(A) A dislocated member of the Armed Forces, or member of the Armed
Forces described in paragraph (a)(1)(iii) of this section; or
(B) The dislocated spouse of a member of the Armed Forces on active
duty (as defined in 10 U.S.C. 101(d)(1)).
(b) For Disaster NDWGs:
(1) In order to be eligible to receive disaster relief employment
under sec. 170(b)(1)(B)(i) of WIOA, an individual must be:
(i) A dislocated worker;
(ii) A long-term unemployed individual;
(iii) An individual who is temporarily or permanently laid off as a
consequence of the emergency or disaster; or
(iv) An individual who is self-employed and becomes unemployed or
significantly underemployed as a result of the emergency or disaster.
(2) In order to be eligible to receive employment-related
assistance, and in rare instances, humanitarian-related temporary
employment under sec. 170(b)(1)(B)(ii) of WIOA, an individual must have
relocated or evacuated from an area as a result of a disaster that has
been declared or otherwise recognized, and be:
(i) A dislocated worker;
(ii) A long-term unemployed individual;
(iii) An individual who is temporarily or permanently laid off as a
consequence of the emergency or disaster; or
(iv) An individual who is self-employed and becomes unemployed or
significantly underemployed as a result of the emergency or disaster.
Sec. 687.180 What are the allowable activities under national
dislocated worker grants?
(a) For Regular NDWGs:
(1) Employment and training activities include career services and
training authorized at secs. 134(c)-(d) and 170(b)(1) of WIOA. The
services to be provided in a particular project are negotiated between
the Department and the grantee, taking into account the needs of the
target population covered by the grant, and may be changed through
grant modifications, if necessary.
(2) NDWGs may provide for supportive services, including needs-
related payments (subject to the restrictions in sec. 134(d)(3) of
WIOA, where applicable), to help workers who require such assistance to
participate in the activities provided for in the grant. Generally, the
terms of a grant must be consistent with local policies governing such
financial assistance under its formula funds (including the payment
levels and duration of payments). The terms of the grant agreement may
diverge from established local policies, in the following instances:
(i) If unemployed dislocated workers served by the project are not
able to meet the 13 or 8 weeks enrollment in training requirement
established by sec. 134(d)(3)(B) of WIOA because of the lack of formula
or NDWG funds in the State or local area at the time of the
dislocation, such individuals may be eligible for needs-related
payments if they are enrolled in training by the end of the 6th week
following the date of the NDWG award; or
(ii) Under other circumstances as specified in the NDWG application
requirements.
(b) For Disaster NDWGs: NDWG funds provided under sec. 170(b)(1)(B)
of WIOA can support a different array of activities, depending on the
circumstances surrounding the situation for which the grant was
awarded:
(1) For NDWGs serving individuals in a disaster area declared
eligible for public assistance by FEMA disaster relief, employment is
authorized to support projects that provide food, clothing, shelter,
and other humanitarian assistance for emergency and disaster victims,
and projects regarding demolition, cleaning, repair, renovation, and
reconstruction of damaged and destroyed structures, facilities, and
lands located within the disaster area and in offshore areas related to
the emergency or disaster in coordination with the Administrator of
FEMA. Employment and training activities may also be provided, as
appropriate. An individual's disaster relief employment is limited to
12 months or less for work related to recovery from a single emergency
or disaster. The Secretary may extend an individual's disaster relief
employment for up to an additional 12 months, if it is requested and
sufficiently justified by the State.
(2) For NDWGs serving individuals who have relocated from a
disaster area, only career services and training activities will be
authorized, except where temporary employment for humanitarian
assistance is appropriate.
(3) For NDWGs awarded to States for events that have designations
from Federal agencies (other than FEMA) that recognize an emergency or
disaster situation as one of national significance that could result in
a potentially large loss of employment, disaster relief employment and/
or career services may be authorized, depending on the circumstances
associated with the specific event.
(4) Disaster NDWG funds may be expended through public and private
agencies and organizations engaged in the disaster relief, humanitarian
assistance, and clean-up projects described in this paragraph (b) of
this section.
[[Page 20923]]
Sec. 687.190 How do statutory and regulatory waivers apply to
national dislocated worker grants?
(a) Grantees may request and the Department may approve the
application of existing general statutory or regulatory waivers to a
NDWG award. The application for NDWG grant funds must describe any
statutory waivers which the applicant wishes to apply to the project
that the State and/or Local Board, as applicable, have been granted
under its waiver plan. The Department will consider such requests as
part of the overall application review and decision process.
(b) If, during the operation of the project, the grantee wishes to
apply a waiver not identified in the application, the grantee must
request a modification which includes the provision to be waived, the
operational barrier to be removed, and the effect upon the outcome of
the project.
Sec. 687.200 What are the program and administrative requirements
that apply to national dislocated worker grants?
(a) Unless otherwise authorized in a NDWG agreement, the financial
and administrative rules contained in part 683 apply to awards under
this part.
(b) Exceptions include:
(1) Funds provided in response to a disaster may be used for
temporary job creation in areas declared eligible for public assistance
by FEMA, and, in some instances, areas impacted by an emergency or
disaster situation of national significance, as provided in Sec.
687.110(b)(2), and subject to the limitations of sec. 170(d) of WIOA,
this part, and any additional guidance issued by the Department;
(2) Per sec. 170(d)(4) of WIOA, in extremely limited instances, as
determined by the Secretary or the Secretary's designee, any Disaster
NDWG funds that are available for expenditure under any grant awarded
under this part may be used for additional disasters or situations of
national significance experienced by the State in the same program year
the funds were awarded;
(3) NDWG funds may be used to pay an appropriate level of
administrative costs based on the design and complexity of the project.
The Department will negotiate administration costs with the applicant
as part of the application review and grant award and modification
processes;
(4) The period of availability for expenditure of funds under a
NDWG is specified in the grant agreement;
(5) The Department may establish supplemental reporting,
monitoring, and oversight requirements for NDWGs. The requirements will
be identified in the grant application instructions or the grant
document; and
(6) The Department may negotiate and fund projects under terms
other than those specified in this part where it can be clearly
demonstrated that such adjustments will achieve a greater positive
benefit for the workers and/or communities being assisted.
0
15. Add part 688 to read as follows:
PART 688--PROVISIONS GOVERNING THE YOUTHBUILD PROGRAM
Subpart A--Purpose and Definitions
Sec.
688.100 What is YouthBuild?
688.110 What are the purposes of the YouthBuild program?
688.120 What definitions apply to this part?
Subpart B--Funding and Grant Applications
Sec.
688.200 How are YouthBuild grants funded and administered?
688.210 How does an eligible entity apply for grant funds to operate
a YouthBuild program?
688.220 How are eligible entities selected to receive grant funds?
688.230 What are the minimum requirements to apply for YouthBuild
funds?
688.240 How are eligible entities notified of approval for grant
funds?
Subpart C--Program Requirements
Sec.
688.300 Who is an eligible participant?
688.310 Are there special rules that apply to veterans?
688.320 What eligible activities may be funded under the YouthBuild
program?
688.330 What level of training qualifies a construction project as a
qualifying work site under the YouthBuild program?
688.340 What timeframes apply to participation?
688.350 What timeframes must be devoted to education and workforce
investment or other activities?
688.360 What timeframes apply to follow-up services?
688.370 What are the requirements for exit from the YouthBuild
program?
688.380 What is the role of the YouthBuild grantee in the one-stop
system?
Subpart D--Performance Indicators
Sec.
688.400 What are the performance indicators for YouthBuild grants?
688.410 What are the required levels of performance for the
performance indicators?
688.420 What are the reporting requirements for YouthBuild grantees?
688.430 What are the due dates for quarterly reporting?
Subpart E--Administrative Rules, Costs, and Limitations
Sec.
688.500 What administrative regulations apply to the YouthBuild
program?
688.510 How may grantees provide services under the YouthBuild
program?
688.520 What cost limits apply to the use of YouthBuild program
funds?
688.530 What are the cost-sharing or matching requirements of the
YouthBuild program?
688.540 What are considered to be leveraged funds?
688.550 How are the costs associated with real property treated in
the YouthBuild program?
688.560 What participant costs are allowable under the YouthBuild
program?
688.570 Does the Department allow incentive payments in the
YouthBuild program?
688.580 What effect do payments to YouthBuild participants have on
eligibility for other Federal needs-based benefits?
688.590 What program income requirements apply under the YouthBuild
program?
688.600 Are YouthBuild programs subject to the Davis-Bacon Act labor
standards?
688.610 What are the recordkeeping requirements for YouthBuild
programs?
Subpart F--Additional Requirements
Sec.
688.700 What are the safety requirements for the YouthBuild program?
688.710 What are the reporting requirements for youth safety?
688.720 What environmental protection laws apply to the YouthBuild
program?
688.730 What requirements apply to YouthBuild housing?
Authority: Secs. 171, 189, 503, Pub. L. 113-128, 128 Stat. 1425
(Jul. 22, 2014).
Subpart A--Purpose and Definitions
Sec. 688.100 What is YouthBuild?
(a) YouthBuild is a workforce development program that provides
employment, education, leadership development, and training
opportunities to disadvantaged and low-income youth between the ages of
16 and 24, most of whom are secondary school drop outs and are either a
member of a low-income family, a foster care youth, a youth who is
homeless, an offender, a youth with a disability, a child of an
incarcerated parent, or a migrant youth.
(b) Program participants receive education services that may lead
to either a high school diploma or its State-recognized equivalent.
Further, they receive occupational skills training and are encouraged
to pursue post-secondary education or additional training, including
registered apprenticeship and pre-apprenticeship programs. The program
is designed to create a skilled workforce either in the construction
industry, through the rehabilitation and construction of housing for
homeless and low-income individuals and families, as well as
[[Page 20924]]
public facilities, or in other in-demand jobs. The program also
benefits the larger community because it provides increased access to
affordable housing.
Sec. 688.110 What are the purposes of the YouthBuild program?
The overarching goal of the YouthBuild program is to provide
disadvantaged and low-income youth the opportunity to obtain education
and employment skills in local in-demand jobs to achieve economic self-
sufficiency. Additionally, the YouthBuild program has as goals:
(a) To enable disadvantaged youth to obtain the education and
employment skills necessary to achieve economic self-sufficiency
through employment in in-demand occupations and pursuit of post-
secondary education and training opportunities;
(b) To provide disadvantaged youth with opportunities for
meaningful work and service to their communities;
(c) To foster the development of employment and leadership skills
and commitment to community development among youth in low-income
communities;
(d) To expand the supply of permanent affordable housing for
homeless individuals and families, homeless youth, and low-income
families by utilizing the talents of disadvantaged youth. The program
seeks to increase the number of affordable and transitional housing
units available to decrease the rate of homelessness in communities
with YouthBuild programs.
(e) To improve the quality and energy efficiency of community and
other non-profit and public facilities, including those that are used
to serve homeless and low-income families.
Sec. 688.120 What definitions apply to this part?
In addition to the definitions at sec. 3 of WIOA and 20 CFR
675.300, the following definitions apply:
Adjusted income means, with respect to a family, the amount (as
determined by the Housing Development Agency) of the income of the
members of the family residing in a dwelling unit or the persons on a
lease, after any income exclusions as follows:
(1) Mandatory exclusions. In determining adjusted income, a Housing
Development Agency must exclude from the annual income of a family the
following amounts:
(2) Elderly and disabled families. $400 for any elderly or disabled
family.
(3) Medical expenses. The amount by which three percent of the
annual family income is exceeded by the sum of:
(i) Unreimbursed medical expenses of any elderly family or disabled
family;
(ii) Unreimbursed medical expenses of any family that is not
covered under paragraph (3)(i) of this definition, except that this
paragraph applies only to the extent approved in appropriation Acts;
and
(iii) Unreimbursed reasonable attendant care and auxiliary
apparatus expenses for each handicapped member of the family, to the
extent necessary to enable any member of such family (including such
handicapped member) to be employed.
(4) Child care expenses. Any reasonable child care expenses
necessary to enable a member of the family to be employed or to further
his or her education.
(5) Minors, students, and persons with disabilities. $480 for each
member of the family residing in the household (other than the head of
the household or his or her spouse) who is less than 18 years of age or
is attending school or vocational training on a full-time basis, or who
is 18 years of age or older and is a person with disabilities.
(6) Child support payments. Any payment made by a member of the
family for the support and maintenance of any child who does not reside
in the household, except that the amount excluded under this clause may
not exceed $480 for each child for whom such payment is made; except
that this clause applies only to the extent approved in appropriations
Acts.
(7) Spousal support expenses. Any payment made by a member of the
family for the support and maintenance of any spouse or former spouse
who does not reside in the household, except that the amount excluded
under this clause must not exceed the lesser of the amount that such
family member has a legal obligation to pay, or $550 for each
individual for whom such payment is made; except that this clause
applies only to the extent approved in appropriations Acts.
(8) Earned income of minors. The amount of any earned income of a
member of the family who is not:
(i) 18 years of age or older; and
(ii) The head of the household (or the spouse of the head of the
household).
(9) Permissive exclusions for public housing. In determining
adjusted income, a Housing Development Agency may, in the discretion of
the agency, establish exclusions from the annual income of a family
residing in a public housing dwelling unit. Such exclusions may include
the following amounts:
(10) Excessive travel expenses. Excessive travel expenses in an
amount not to exceed $25 per family per week, for employment or
education-related travel.
(11) Earned income. An amount of any earned income of the family,
established at the discretion of the Housing Development Agency, which
may be based on--
(i) All earned income of the family,
(ii) The amount earned by particular members of the family;
(iii) The amount earned by families having certain characteristics;
or
(iv) The amount earned by families or members during certain
periods or from certain sources.
(12) Others. Such other amounts for other purposes, as the Housing
Development Agency may establish.
Applicant means an eligible entity that has submitted an
application under Sec. 688.210.
Basic Skills Deficient means an individual:
(1) Who is a youth, that the individual has English reading,
writing, or computing skills at or below the 8th grade level on a
generally accepted standardized test; or
(2) Who is a youth or adult, that the individual is unable to
compute or solve problems, or read, write, or speak English, at a level
necessary to function on the job, in the individual's family, or in
society.
Community or other public facility means those facilities which are
either privately owned by non-profit organizations, including faith-
based and community-based organizations, and publicly used for the
benefit of the community, or publicly owned and publicly used for the
benefit of the community.
Construction Plus means the inclusion of occupational skills
training for YouthBuild participants in in-demand occupations other
than construction.
Eligible entity means a public or private non-profit agency or
organization (including a consortium of such agencies or
organizations), including:
(1) A community-based organization;
(2) A faith-based organization;
(3) An entity carrying out activities under this title, such as a
Local Board;
(4) A community action agency;
(5) A State or local housing development agency;
(6) An Indian tribe or other agency primarily serving Indians;
(7) A community development corporation;
(8) A State or local youth service or conservation corps; and
(9) Any other entity eligible to provide education or employment
training under a Federal program (other
[[Page 20925]]
than the program carried out under this section).
English language learner, when used with respect to a participant,
means an eligible individual who has limited ability in reading,
writing, speaking, or comprehending the English language, and:
(1) Whose native language is a language other than English; or
(2) Who lives in a family or community environment where a language
other than English is the dominant language.
Exit, as used in Sec. 688.400, has the same meaning as in Sec.
676.150(c).
Follow-up services include:
(1) The leadership development and supportive service activities
listed in Sec. Sec. 681.520 and 681.570;
(2) Regular contact with a youth participant's employer, including
assistance in addressing work-related problems that arise;
(3) Assistance in securing better paying jobs, career development
and further education;
(4) Work-related peer support groups;
(5) Adult mentoring; and
(6) Services necessary to ensure the success of youth participants
in employment and/or post-secondary education.
Homeless individual means an individual who lacks a fixed, regular,
and adequate nighttime residence and includes an individual who:
(1) Is sharing the housing of other persons due to loss of housing,
economic hardship, or similar reason;
(2) Is living in a motel, hotel, trailer park, or campground due to
the lack of alternative adequate accommodations;
(3) Is living in an emergency or transitional shelter;
(4) Is abandoned in a hospital; or is awaiting foster care
placement;
(5) An individual who has a primary nighttime residence that is a
public or private place not designed for or ordinarily used as regular
sleeping accommodation for human beings; or
(6) Migratory children who qualify as homeless under this section
because the children are living in circumstances described in this
definition.
Homeless child or youth means an individual who lacks a fixed,
regular, and adequate nighttime residence and includes:
(1) Children and youths who are sharing the housing of other
persons due to loss of housing, economic hardship, or a similar reason;
(2) Are living in motels, hotels, trailer parks, or camping grounds
due to the lack of alternative adequate accommodations;
(3) Are living in emergency or transitional shelters; are abandoned
in hospitals; or are awaiting foster care placement;
(4) Children and youths who have a primary nighttime residence that
is a public or private place not designed for or ordinarily used as a
regular sleeping accommodation for human beings;
(5) Children and youths who are living in cars, parks, public
spaces, abandoned buildings, substandard housing, bus or train
stations, or similar settings; or
(6) Migratory children who qualify as homeless for the purposes of
this part because the children are living in circumstances described in
this definition.
Housing Development Agency means any agency of a Federal, State or
local government, or any private non-profit organization, that is
engaged in providing housing for homeless individuals or low-income
families.
Income, as defined in the United States Housing Act of 1937 (42
U.S.C. 1437 a(b)(2)), means income is from all sources of each member
of the household, as determined in accordance with the criteria
prescribed by the Secretary of Labor, in consultation with the
Secretary of Agriculture, except that any amounts not actually received
by the family and any amounts which would be eligible for exclusion
under sec. 1382b(a)(7) of the United States Housing Act of 1937, may
not be considered as income under this definition.
In-Demand Industry Sector or Occupation means:
(1) An industry sector that has a substantial current or potential
impact (including through jobs that lead to economic self-sufficiency
and opportunities for advancement) on the State, regional, or local
economy, as appropriate, and that contributes to the growth or
stability of other supporting business, or the growth of other industry
sectors; or
(2) An occupation that currently has or is projected to have a
number of positions (including positions that lead to economic self-
sufficiency and opportunities for advancement) in an industry sector so
as to have a significant impact on the State, regional, or local
economy, as appropriate.
Indian, as defined in the Indian Self- Determination and Education
Assistance Act (25 U.S.C. 450b), means a person who is a member of an
Indian tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688) (43 U.S.C.
1601 et seq.), which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
Individual with a disability means an individual:
(1) With a physical or mental impairment that substantially limits
one or more major life activities of such individual;
(2) With a record of such an impairment; or
(3) Regarded as having such an impairment.
(i) An individual is regarded as having such an impairment if the
individual establishes that he or she has been subjected to an action
prohibited under the Americans with Disabilities Act of 1990 because of
an actual or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.
(ii) An individual is not considered an individual with a
disability under paragraph (3) of this section if the impairment has an
actual or expected duration of 6 months or less.
(4) For purposes of paragraphs (1) through (3) of this definition,
major life activity, includes, but is not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating,
and working; and
(ii) The operation of a major bodily function, including but not
limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.
Low-income family means a family whose income does not exceed 80
percent of the median income for the area unless the Secretary
determines that a higher or lower ceiling is warranted. This definition
includes families consisting of one person as defined by 42 U.S.C.
1437a(b)(3).
Migrant youth means a youth, or a youth who is the dependent of
someone who, during the previous 12 months has:
(1) Worked at least 25 days in agricultural labor that is
characterized by chronic unemployment or underemployment;
(2) Made at least $800 from agricultural labor that is
characterized by chronic unemployment or underemployment, if at least
50 percent of his or her income came from such agricultural labor;
[[Page 20926]]
(3) Was employed at least 50 percent of his or her total employment
in agricultural labor that is characterized by chronic unemployment or
underemployment; or
(4) Was employed in agricultural labor that requires travel to a
jobsite such that the farmworker is unable to return to a permanent
place of residence within the same day.
Needs-based payments means additional payments beyond regular
stipends for program participation that are based on defined needs that
enable a youth to participate in the program.
Occupational skills training means an organized program of study
that provides specific vocational skills that lead to proficiency in
performing actual tasks and technical functions required by certain
occupational fields at entry, intermediate, or advanced levels.
Occupational skills training includes training programs that lead to
recognized post-secondary credentials that align with in-demand
industry sectors or occupations in the local area. Such training must:
(1) Be outcome-oriented and focused on an occupational goal
specified in the individual service strategy;
(2) Be of sufficient duration to impart the skills needed to meet
the occupational goal; and
(3) Result in attainment of a recognized post-secondary credential.
Offender means an adult or juvenile who:
(1) Is or has been subject to any stage of the criminal justice
process, and who may benefit from WIOA services; or
(2) Requires assistance in overcoming artificial barriers to
employment resulting from a record of arrest or conviction.
Participant means an individual who has been determined eligible to
participate in the YouthBuild program, and that enrolls in the program
and receives services or training described in Sec. 688.320.
Pre-apprenticeship means a program or set of strategies designed to
prepare individuals to enter and succeed in a registered apprenticeship
program and has a documented partnership with at least one, if not
more, registered apprenticeship programs. A quality pre-apprenticeship
program incorporates at least one of the following elements:
(1) Approved training and curriculum;
(2) Strategies for long-term success;
(3) Access to appropriate support services;
(4) Promotes greater use of registered apprenticeship to increase
future opportunities;
(5) Meaningful hands-on training that does not displace paid
employees; and
(6) Facilitated entry and/or articulation.
Recognized post-secondary credential means a credential consisting
of an industry-recognized certificate or certification, a certificate
of completion of an apprenticeship, a license recognized by the State
involved or Federal government, or an associate or baccalaureate
degree.
Registered apprenticeship program means an apprenticeship program
that:
(1) Is registered under the Act of August 16, 1937 (commonly known
as the ``National Apprenticeship Act''; 50 Stat. 664, chapter 663; 20
U.S.C. 50 et seq.); and
(2) Meets such other criteria as the Secretary may establish.
School dropout means an individual who no longer attends any school
and who has not received a secondary school diploma or its State-
recognized equivalent.
Secondary school means a nonprofit institutional day or residential
school, including a public secondary charter school, that provides
secondary education, as determined under State law, except that the
term does not include any education beyond grade twelve.
Section 3 means to a program described in sec. 3 of the Housing and
Urban Development Act of 1968, as amended by the Housing and Community
Development Act of 1992.
Supportive services means services that enable an individual to
participate in WIOA activities. These services include, but are not
limited to, the following:
(1) Linkages to community services;
(2) Assistance with transportation;
(3) Assistance with child care and dependent care;
(4) Referrals to child support;
(5) Assistance with housing;
(6) Needs-related payments;
(7) Assistance with educational testing;
(8) Reasonable accommodations for youth with disabilities
(9) Referrals to medical services; and
(10) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eye glasses and protective
eye gear.
Transitional housing means housing provided to ease the movement of
individuals and families experiencing homelessness to permanent housing
within 24 months or such longer period.
YouthBuild program means any program that receives assistance under
this section and provides disadvantaged youth with opportunities for
employment, education, leadership development, and training through the
rehabilitation (which for purposes of this section, includes energy
efficiency enhancements) or construction of housing for homeless
individuals and low-income families, and public facilities.
Youth in foster care means youth currently in foster care or youth
who have ever been in foster care.
Subpart B--Funding and Grant Applications
Sec. 688.200 How are YouthBuild grants funded and administered?
The Secretary uses funds authorized for appropriation under WIOA
sec. 171(i) to administer YouthBuild as a national program under title
I, subtitle D of the Act. YouthBuild grants are awarded to eligible
entities, as defined in Sec. 688.120, through the competitive
selection process described in Sec. 688.210.
Sec. 688.210 How does an eligible entity apply for grant funds to
operate a YouthBuild program?
The Secretary announces the availability of grant funds through a
Funding Opportunity Announcement (FOA). The FOA contains instructions
for what the Department requires in the grant application, describes
eligibility requirements, the rating criteria that the Department will
use in reviewing grant applications, and special reporting requirements
to operate a YouthBuild project. The FOA, along with the requisite
forms needed to apply for grant funds, can be found athttp://
www.doleta.gov/grants/find_grants.cfm.
Sec. 688.220 How are eligible entities selected to receive grant
funds?
In order to receive funds under the YouthBuild program, an eligible
entity must meet selection criteria established by the Secretary which
include:
(a) The qualifications or potential capabilities of an applicant;
(b) An applicant's potential to develop a successful YouthBuild
program;
(c) The need for an applicant's proposed program, as determined by
the degree of economic distress of the community from which
participants would be recruited (measured by indicators such as
poverty, youth unemployment, and the number of individuals who have
dropped out of secondary school) and of the community in which the
housing and community and public facilities proposed to be
rehabilitated or constructed are located (measured by indicators such
as incidence of homelessness, shortage of affordable housing, and
poverty);
[[Page 20927]]
(d) The commitment of an applicant to provide skills training,
leadership development, counseling and case management, and education
to participants;
(e) The focus of a proposed program on preparing youth for local
in-demand sectors or occupations, or post-secondary education and
training opportunities;
(f) The extent of an applicant's coordination of activities to be
carried out through the proposed program with:
(1) Local Boards, one-stop career center operators, and one-stop
partners participating in the operation of the one-stop delivery system
involved, or the extent of the applicant's good faith efforts, as
determined by the Secretary, in achieving such coordination;
(2) Public education, criminal justice, housing and community
development, national service, or post-secondary education or other
systems that relate to the goals of the proposed program; and
(3) Employers in the local area.
(g) The extent to which a proposed program provides for inclusion
of tenants who were previously homeless individuals or families in the
rental of housing provided through the program;
(h) The commitment of additional resources to the proposed program
(in addition to the funds made available through the grant) by:
(1) An applicant;
(2) Recipients of other Federal, State, or local housing and
community development assistance who will sponsor any part of the
rehabilitation, construction, operation and maintenance, or other
housing and community development activities undertaken as part of the
proposed program; or
(3) Entities carrying out other Federal, State, or local activities
or activities conducted by Indian tribes, including vocational
education programs, adult and language instruction educational
programs, and job training using funds provided under WIOA;
(i) An applicant's ability to enter partnerships with:
(1) Education and training providers including:
(i) The kindergarten through twelfth grade educational system;
(ii) Adult education programs;
(iii) Community and technical colleges;
(iv) Four-year colleges and universities;
(v) Registered apprenticeship programs; and
(vi) Other training entities;
(2) Employers, including professional organizations and
associations. An applicant will be evaluated on the extent to which
employers participate in:
(i) Defining the program strategy and goals;
(ii) Identifying needed skills and competencies;
(iii) Designing training approaches and curricula;
(iv) Contributing financial support; and
(v) Hiring qualified YouthBuild graduates.
(3) The workforce investment system which may include:
(i) State and Local Workforce Development Boards;
(ii) State workforce agencies; and
(iii) One-stop career centers and their cooperating partners.
(4) The juvenile and adult justice systems, and the extent to which
they provide:
(i) Support and guidance for YouthBuild participants with court
involvement;
(ii) Assistance in the reporting of recidivism rates among
YouthBuild participants; and
(iii) Referrals of eligible participants through diversion or
reentry from incarceration.
(5) Faith-based and community organizations, and the extent to
which they provide a variety of grant services such as:
(i) Case management;
(ii) Mentoring;
(iii) English as a Second Language courses; and
(iv) Other comprehensive supportive services, when appropriate.
(j) The applicant's potential to serve different regions, including
rural areas and States that may not have previously received grants for
YouthBuild programs; and
(k) Such other factors as the Secretary determines to be
appropriate for purposes of evaluating an applicant's potential to
carry out the proposed program in an effective and efficient manner.
(l) The weight to be given to these factors will be described in
the FOA issued under Sec. 688.210.
Sec. 688.230 What are the minimum requirements to apply for
YouthBuild funds?
At minimum, applications for YouthBuild funds must include the
following elements:
(a) Labor market information for the relevant labor market area,
including both current data (as of the date of submission of the
application) and projections on career opportunities in construction
and in-demand industry sectors or occupations;
(b) A request for the grant, specifying the amount of the grant
requested and its proposed uses;
(c) A description of the applicant and a statement of its
qualifications, including a description of the applicant's relationship
with Local Boards, one-stop operators, local unions, entities carrying
out registered apprenticeship programs, other community groups, and
employers, and the applicant's past experience, with rehabilitation or
construction of housing or public facilities (including experience with
HUD's Section 3 of the Housing and Urban Development Act of 1968 (12
U.S.C. 1701u), and with youth education and employment training
programs;
(d) A description of the proposed site for the proposed program;
(e) A description of the educational and job training activities,
work opportunities, post-secondary education and training
opportunities, and other services that will be provided to
participants, and how those activities, opportunities and services will
prepare youth for employment in in-demand industry sectors or
occupations in the labor market area described in paragraph (a) of this
section;
(1) A description of the proposed activities to be undertaken under
the grant related to rehabilitation or construction, and, in the case
of an applicant requesting approval from the Secretary to carry out
additional activities related to in-demand industry sectors or
occupations, a description of such additional activities.
(2) The anticipated schedule for carrying out all activities
proposed under paragraph (f) of this section;
(f) A description of the manner in which eligible youth will be
recruited and selected as participants, including a description of
arrangements that will be made with Local Boards, one-stop operators,
faith and community-based organizations, State educational agencies or
local education agencies (including agencies of Indian tribes), public
assistance agencies, the courts of jurisdictions, agencies that serve
youth who are homeless individuals (including those that operate
shelters), foster care agencies, and other appropriate public and
private agencies;
(g) A description of the special outreach efforts that will be
undertaken to recruit eligible young women (including young women with
dependent children) as participants;
(h) A description of the specific role of employers in the proposed
program, such as their role in developing the proposed program and
assisting in
[[Page 20928]]
service provision and placement activities;
(i) A description of how the proposed program will be coordinated
with other Federal, State, and local activities conducted by Indian
tribes, such as workforce investment activities, career and technical
education and training programs, adult and language instruction
educational programs, activities conducted by public schools,
activities conducted by community colleges, national service programs,
and other job training provided with funds available under WIOA, in
particular how programs will coordinate with local Workforce
Development funds outlined in WIOA sec. 129(c)(2).
(j) Assurances that there will be a sufficient number of adequately
trained supervisory personnel in the proposed program;
(k) A description of the level of performance to be achieved with
respect to primary indicators of performance for eligible youth as
described in Sec. 688.410;
(l) The organization's past performance under a grant issued by the
Secretary to operate a YouthBuild program;
(m) A description of the applicant's relationship with local
building trade unions regarding their involvement in training to be
provided through the proposed program, the relationship of the proposed
program to established registered apprenticeship programs and
employers, the ability of the applicant to grant an industry-recognized
certificate or certification through the program, and the quality of
the program leading to the certificate or certification;
(n) A description of activities that will be undertaken to develop
leadership skills of participants;
(o) A detailed budget and description of the system of fiscal
controls, and auditing and accounting procedures, that will be used to
ensure fiscal soundness for the proposed program;
(p) A description of the commitments for any additional resources
(in addition to funds made available through the grant) to be made
available to the proposed program from:
(1) The applicant;
(2) Recipients of other Federal, State, or local housing and
community development assistance that will sponsor any part of the
rehabilitation or construction, operation or maintenance, or other
housing and community development activities undertaken as part of the
proposed program; or
(3) Entities carrying out other Federal, State or local activities
conducted by Indian tribes, including career and technical education
and training programs, and job training provided with funds under WIOA.
(q) Information identifying, and a description of, the financing
proposed for any:
(1) Rehabilitation of the property involved;
(2) Acquisition of the property; or
(3) Construction of the property;
(r) Information identifying, and a description, of the entity that
will manage and operate the property;
(s) Information identifying, and a description of, the data
collection systems to be used;
(t) A certification, by a public official responsible for the
housing strategy for the State or unit of general local government
within which the proposed program is located, that the proposed program
is consistent with the housing strategy; and
(u) A certification that the applicant will comply with
requirements of the Fair Housing Act (42 U.S.C. 3601 et seq.) and will
affirmatively further fair housing.
(v) Any additional requirements that the Secretary determines are
appropriate.
Sec. 688.240 How are eligible entities notified of approval for grant
funds?
The Secretary will, to the extent practicable, notify each eligible
entity applying for funds no later than 5 months from the date the
application is received, whether the application is approved or
disapproved. In the event additional funds become available, ETA
reserves the right to use such funds to select additional grantees from
applications submitted in response to a FOA.
Subpart C--Program Requirements
Sec. 688.300 Who is an eligible participant?
(a) Eligibility criteria. Except as provided in paragraph (b) of
this section, an individual is eligible to participate in a YouthBuild
program if the individual is:
(1) Not less than age 16 and not more than age 24 on the date of
enrollment; and
(2) A school dropout or an individual who has dropped out of school
and has subsequently reenrolled; and
(3) Is one or more of the following:
(i) A member of a low-income family;
(ii) A youth in foster care;
(iii) An offender;
(iv) A youth who is an individual with a disability;
(v) The child of a current or formerly incarcerated parent; or
(vi) A migrant youth.
(b) Exceptions. Not more than 25 percent of the participants in a
program, under this section, may be individuals who do not meet the
requirements of paragraph (a)(2) or (3) of this section, if such
individuals:
(1) Are basic skills deficient, as defined in Sec. 688.120,
despite attainment of a secondary school diploma or its recognized
State equivalent (including recognized certificates of attendance or
similar documents for individuals with disabilities); or
(2) Have been referred by a local secondary school for
participation in a YouthBuild program leading to the attainment of a
secondary school diploma if such referral is to a YouthBuild program
offering a secondary school diploma.
Sec. 688.310 Are there special rules that apply to veterans?
Special rules for determining income for veterans are found in 20
CFR 683.230 and for the priority of service provisions for qualified
persons are found in 20 CFR part 1010. Those special rules apply to
covered persons who are eligible to participate in the YouthBuild
program.
Sec. 688.320 What eligible activities may be funded under the
YouthBuild program?
Grantees may provide one or more of the following education and
workforce investment and other activities to YouthBuild participants--
(a) Eligible education and workforce activities including:
(1) Work experience and skills training (coordinated, to the
maximum extent feasible, with registered apprenticeship programs),
including:
(i) Supervision and training for participants in the rehabilitation
or construction of housing, including residential housing for homeless
individuals or low-income families, or transitional housing for
homeless individuals and in additional in-demand industry sectors or
occupations in the region in which the program operates (as approved by
the Secretary);
(ii) Supervision and training for participants in the
rehabilitation or construction of community and other public
facilities, except that not more than 15 percent of grant funds-
appropriated to carry out this section may be used for this activity;
and
(iii) Supervision and training for participants in in-demand
industry sectors or occupations in the region in which the program
operates, if such activity is approved by the Secretary.
(2) Occupational skills training;
(3) Other paid and unpaid work experiences, including internships
and job shadowing;
[[Page 20929]]
(4) Services and activities designed to meet the educational needs
of participants, including:
(i) Basic skills instruction and remedial education;
(ii) Language instruction educational programs for participants who
are English language learners;
(iii) Secondary education services and activities, including
tutoring, study skills training, and school dropout prevention and
recovery activities, designed to lead to the attainment of a secondary
school diploma or its recognized equivalent (including recognized
certificates of attendance or similar document for individuals with
disabilities);
(iv) Counseling and assistance in obtaining post-secondary
education and required financial aid and;
(v) Alternative secondary school services;
(5) Counseling services and related activities, such as
comprehensive guidance and counseling on drug and alcohol abuse;
referrals to mental health services, and referrals to victim services;
(6) Activities designed to develop employment and leadership
skills, which may include community service and peer-centered
activities encouraging responsibility and other positive social
behaviors, and activities related to youth policy committees that
participate in decision-making related to the program;
(7)(i) Supportive services and needs-based payments necessary to
enable individuals to participate in the program and to assist
individuals for a period of time not to exceed 12 months after the
completion of training, in obtaining or retaining employment or
applying for and transitioning to post-secondary education or training.
(ii) To provide needs-based payments, a grantee must have a written
policy which:
(A) Establishes participant eligibility for such payments;
(B) Establishes the amounts to be provided;
(C) Describes the required documentation and criteria for payments,
and
(D) Is applied consistently to all program participants.
(8) Job search and assistance.
(b) Payment of the administrative costs of the applicant, including
recruitment and selection of participants, except that not more than 10
percent of the amount awarded under Sec. 688.210 may be used for such
costs.
(c) Adult mentoring.
(d) Provision of wages, stipends, or benefits to participants in
the program;
(e) Ongoing training and technical assistance that is related to
developing and carrying out the program, and;
(f) Follow-up services.
Sec. 688.330 What level of training qualifies a construction project
as a qualifying work site under the YouthBuild program?
At a minimum, in order to qualify as a work site for the purposes
of the YouthBuild program, a work site must:
(a) Provide participants with the opportunity to have hands-on
training and experience in two or more modules in a construction skills
training program that offers an industry-recognized credential;
(b) Be built or renovated for low-income individuals or families;
(c) Provide substantial hands-on experience for youth;
(d) Have a restrictive covenant in place that only allows for
rental or resale to low-income participants as required by Sec.
688.730.
(e) Adhere to the allowable construction and other capital asset
costs applicable to the YouthBuild program.
Sec. 688.340 What timeframes apply to participation?
An eligible individual selected for participation in the program
must be offered full-time participation in the program for not less
than 6 months and not more than 24 months.
Sec. 688.350 What timeframes must be devoted to education and
workforce investment or other activities?
YouthBuild grantees must structure programs so that participants in
the program are offered:
(a) Education and related services and activities designed to meet
educational needs, such as those specified in Sec. 688.320(a)(4)
through (7), during at least 50 percent of the time during which they
participate in the program; and
(b) Workforce and skills development activities, such as those
specified in Sec. 688.320(a)(1) through (3), during at least 40
percent of the time during which they participate in the program.
(c) The remaining 10 percent of the time of participation can be
used for the activities described in paragraphs (a) and (b) of this
section and/or for leadership development and community service
activities.
Sec. 688.360 What timeframes apply to follow-up services?
Grantees must provide follow-up services to all YouthBuild
participants for a period of 12 months after a participant successfully
exits a YouthBuild program.
Sec. 688.370 What are the requirements for exit from the YouthBuild
program?
At a minimum, to be a successful exit, the Department of Labor
requires that:
(a) Participants receive hands-on construction training or hands-on
training in another industry or occupation, in the case of Construction
Plus grantees;
(b) Participants meet the exit policies established by the grantee.
(1) Such policy must describe the program outcomes and/or
individual goals that must be met by participants in order to
successfully complete the program; and
(2) Grantees must apply the policy consistently to determine when
successful exit has occurred.
Sec. 688.380 What is the role of the YouthBuild grantee in the one-
stop system?
In those local workforce investment areas where the grantee
operates its YouthBuild program, the grantee is a required partner of
the local one-stop delivery system and is subject to the provisions
relating to such partners described in 20 CFR part 678.
Subpart D--Performance Indicators
Sec. 688.400 What are the performance indicators for YouthBuild
grants?
(a) The percentage of program participants who are in education and
training activities, or in unsubsidized employment, during the second
quarter after exit from the program;
(b) The percentage of program participants who are in education or
training activities, or in unsubsidized employment, during the fourth
quarter after exit from the program;
(c) The median earnings of program participants who are in
unsubsidized employment during the second quarter after exit from the
program;
(d) The percentage of program participants who obtain a recognized
post-secondary credential or secondary school diploma or its recognized
equivalent (and for those achieving the secondary diploma or its
recognized equivalent, such participants have also obtained or retained
employment or are in an education or training program leading to a
recognized post-secondary credential within 1 year after exit from the
program);
(e) The percentage of program participants, who during a program
year, are in an education and training program that leads to a
recognized post-secondary credential or employment and who are
achieving measurable skill gains toward such a credential or
employment;
[[Page 20930]]
(f) The indicator of effectiveness in serving employers described
at Sec. 676.155(d)(6); and
(g) Other indicators of performance as may be required by the
Secretary.
Sec. 688.410 What are the required levels of performance for the
performance indicators?
(a) The Secretary must annually establish expected levels of
performance for YouthBuild programs relating to each of the primary
indicators of performance. The expected levels of performance for each
of the common performance indicators are national standards that are
provided in separately issued guidance. Short-term or other performance
indicators will be provided in separately issued guidance or as part of
the FOA or grant agreement. Performance level expectations will be
based on available YouthBuild data and data from similar WIOA youth
programs and may change between grant competitions. The expected
national levels of performance will take into account the extent to
which the levels promote continuous improvement in performance.
(b) The levels of performance established will, at a minimum:
(1) Be expressed in an objective, quantifiable, and measurable
form; and
(2) Indicate continuous improvement in performance.
Sec. 688.420 What are the reporting requirements for YouthBuild
grantees?
Each grantee must provide such reports as are required by the
Secretary in separately issued guidance, including:
(a) The quarterly performance report;
(b) The quarterly narrative progress report;
(c) The financial report; and
(d) Such other reports as may be required by the grant agreement.
Sec. 688.430 What are the due dates for quarterly reporting?
(a) Quarterly reports are due no later than 45 days after the end
of the reporting quarter, unless otherwise specified in the reporting
guidance issued under Sec. 688.420; and
(b) A final financial report is required 90 days after the
expiration of a funding period or the termination of grant support.
Subpart E--Administrative Rules, Costs, and Limitations
Sec. 688.500 What administrative regulations apply to the YouthBuild
program?
Each YouthBuild grantee must comply with the following:
(a) The regulations found in this part.
(b) The general administrative requirements found in 20 CFR part
683, except those that apply only to the WIOA title I-B program and
those that have been modified by this section.
(c) The Department's regulations on government-wide requirements,
which include:
(1) The regulations codifying the Office of Management and Budget's
government-wide grants requirements at 2 CFR 200 and 2900, as
applicable;
(2) The Department's regulations at 29 CFR part 37, which implement
the nondiscrimination provisions of WIA sec. 188;
(3) The Department's regulations at 29 CFR parts 93, 94, and 98
relating to restrictions on lobbying, drug free workplace, and
debarment and suspension; and
(4) The audit requirements of the Office of Management and Budget
at 2 CFR 200 and 2900, as applicable.
(d) Relevant State and local educational standards.
Sec. 688.510 How may grantees provide services under the YouthBuild
program?
Each recipient of a grant under the YouthBuild program may provide
the services and activities described in these regulations either
directly or through subgrants, contracts, or other arrangements with
local educational agencies, post-secondary educational institutions,
State or local housing development agencies, other public agencies,
including agencies of Indian tribes, or private organizations.
Sec. 688.520 What cost limits apply to the use of YouthBuild program
funds?
(a) Administrative costs for programs operated under YouthBuild are
limited to 10 percent of the grant award. The definition of
administrative costs can be found in 20 CFR 683.215.
(b) The cost of supervision and training for participants involved
in the rehabilitation or construction of community and other public
facilities is limited to no more than 10 percent of the grant award.
Sec. 688.530 What are the cost-sharing or matching requirements of
the YouthBuild program?
(a) In addition to the rules described in paragraphs (b) through
(f) of this section, the cost-sharing or matching requirements
applicable to a YouthBuild grant will be addressed in the grant
agreement.
(b) The value of construction materials used in the YouthBuild
program is an allowable cost for the purposes of the required non-
Federal share or match.
(c) The value of land acquired for the YouthBuild program is not an
allowable cost-sharing or match.
(d) Federal funds may not be used as cost-sharing or match
resources except as provided by Federal law.
(e) The value of buildings acquired for the YouthBuild program is
an allowable match, provided that the following conditions apply:
(1) The purchase cost of buildings used solely for training
purposes is allowable; and
(2) For buildings used for training and other purposes, the
allowable amount is determined based on the proportionate share of the
purchase price related to direct training activities.
(f) Grantees must follow the requirements of 2 CFR parts 200 and
2900 in the accounting, valuation, and reporting of the required non-
Federal share.
Sec. 688.540 What are considered to be leveraged funds?
(a) Leveraged funds may be used to support allowable YouthBuild
program activities and consist of payments made for allowable costs
funded by both non-YouthBuild Federal, and non-Federal, resources which
include:
(1) Costs which meet the criteria for cost-sharing or match in
Sec. 688.530 and are in excess of the amount of cost-sharing or match
resources required;
(2) Costs which would meet the criteria in Sec. 688.530 except
that they are paid for with other Federal resources; and
(3) Costs which benefit the grant program and are otherwise
allowable under the cost principles but are not allowable under the
grant because of some statutory, regulatory, or grant provision,
whether paid for with Federal or non-Federal resources.
(b) The use of leveraged funds must be reported in accordance with
Departmental instructions.
Sec. 688.550 How are the costs associated with real property treated
in the YouthBuild program?
(a) As provided in paragraphs (b) and (c) of this section, the
costs of the following activities associated with real property are
allowable solely for the purpose of training YouthBuild participants:
(1) Rehabilitation of existing structures for use by homeless
individuals and families or low-income families or for use as
transitional housing.
(2) Construction of buildings for use by homeless individuals and
families or low-income families or for use as transitional housing.
[[Page 20931]]
(3) Construction or rehabilitation of community or other public
facilities, except, as provided in Sec. 688.520(b), only 15 percent of
the grant award is allowable for such construction and rehabilitation.
(b) The costs for acquisition of buildings that are used for
activities described in paragraph (a) of this section are allowable
with prior grant officer approval and only under the following
conditions:
(1) The purchase cost of buildings used solely for training
purposes is allowable; and
(2) For buildings used for training and other purposes, the
allowable amount is determined based on the proportionate share of the
purchase cost related to direct training.
(c) The following costs are allowable to the extent allocable to
training YouthBuild participants in the construction and rehabilitation
activities specified in paragraph (a) of this section:
(1) Trainees' tools and clothing including personal protective
equipment (PPE);
(2) On-site trainee supervisors;
(3) Construction management;
(4) Relocation of buildings; and
(5) Clearance and demolition.
(d) Architectural fees, or a proportionate share thereof, are
allowable when such fees can be related to items such as architectural
plans or blueprints on which participants will be trained.
(e) The following costs are unallowable:
(1) The costs of acquisition of land.
(2) Brokerage fees.
Sec. 688.560 What participant costs are allowable under the
YouthBuild program?
Allowable participant costs include:
(a) The costs of payments to participants engaged in eligible work-
related YouthBuild activities.
(b) The costs of payments provided to participants engaged in non-
work-related YouthBuild activities.
(c) The costs of needs-based payments.
(d) The costs of supportive services.
(e) The costs of providing additional benefits to participants or
individuals who have exited the program and are receiving follow-up
services, which may include:
(1) Tuition assistance for obtaining college education credits;
(2) Scholarships to an apprenticeship, technical, or secondary
education program; and
(3) Sponsored health programs.
Sec. 688.570 Does the Department allow incentive payments in the
YouthBuild program?
(a) Grantees are permitted to provide incentive payments to youth
participants for recognition and achievement directly tied to training
activities and work experiences. Grantees must tie the incentive
payments to the goals of the specific grant program and outline such
goals in writing prior to starting the program that makes incentive
payments.
(b) Prior to providing incentive payments the organization must
have written policies and procedures in place governing the awarding of
incentives and the incentives provided under the grant must align with
these organizational policies.
(c) All incentive payments must comply with the requirements in 2
CFR 200.
Sec. 688.580 What effect do payments to YouthBuild participants have
on eligibility for other Federal needs-based benefits?
Under 20 CFR 683.275(c), the Department does not consider
allowances, earnings, and payments to individuals participating in
programs under title I of WIOA as income for purposes of determining
eligibility for and the amount of income transfer and in-kind aid
furnished under any Federal or Federally-assisted program based on need
other than as provided under the Social Security Act (42 U.S.C. 301).
Sec. 688.590 What program income requirements apply under the
YouthBuild program?
(a) Except as provided in paragraph (b) of this section, program
income requirements, as specified in the applicable Uniform
Administrative Requirements at 2 CFR parts 200 and 2900, apply to
YouthBuild grants.
(b) Revenue from the sale of buildings rehabilitated or constructed
under the YouthBuild program to homeless individuals and families and
low-income families is not considered program income. Grantees are
encouraged to use that revenue for the long-term sustainability of the
YouthBuild program.
Sec. 688.600 Are YouthBuild programs subject to the Davis-Bacon Act
labor standards?
(a) YouthBuild programs and grantees are subject to Davis-Bacon
labor standards requirements under the circumstances set forth in
paragraph (b) of this section. In those instances where a grantee is
subject to Davis-Bacon requirements, the grantee must follow applicable
requirements in the Department's regulations at 29 CFR parts 1, 3, and
5, including the requirements contained in the Davis-Bacon contract
provisions set forth in 29 CFR 5.5.
(b) YouthBuild participants are subject to Davis-Bacon Act labor
standards when they perform Davis-Bacon-covered laborer or mechanic
work, defined at 29 CFR 5.2(m), on Federal or Federally-assisted
projects that are subject to the Davis-Bacon Act labor standards. The
Davis-Bacon prevailing wage requirements apply to hours worked on the
site of the work.
(c) YouthBuild participants who are not registered and
participating in a training program approved by the Employment and
Training Administration must be paid not less than the applicable wage
rate on the wage determination for the classification of work actually
performed.
Sec. 688.610 What are the recordkeeping requirements for YouthBuild
programs?
(a) Grantees must follow the recordkeeping requirements specified
in the Uniform Administrative Requirements, at 29 CFR 95.53 and 29 CFR
97.42, as appropriate.
(b) Grantees must maintain such additional records related to the
use of buildings constructed or rehabilitated with YouthBuild funds as
specified in the grant agreement or in the Department's guidance.
Subpart F--Additional Requirements
Sec. 688.700 What are the safety requirements for the YouthBuild
program?
(a) YouthBuild Grantees must comply with 20 CFR 683.280, which
applies Federal and State health and safety standards to the working
conditions under WIOA-funded projects and programs. These health and
safety standards include ``hazardous orders'' governing child labor at
29 CFR part 570.
(b) YouthBuild grantees are required to:
(1) Provide comprehensive safety training for youth working on
YouthBuild construction projects;
(2) Have written, jobsite-specific safety plans overseen by an on-
site supervisor with authority to enforce safety procedures;
(3) Provide necessary personal protective equipment to youth
working on YouthBuild projects; and
(4) Submit required injury incident reports.
Sec. 688.710 What are the reporting requirements for youth safety?
YouthBuild grantees must ensure that YouthBuild program sites
comply with
[[Page 20932]]
the Occupational Safety and Health Administration's (OSHA) reporting
requirements in 29 CFR part 1904. A YouthBuild grantee is responsible
for sending a copy of OSHA's injury incident report form, to U.S.
Department of Labor, Employment and Training Administration within 7
days of any reportable injury suffered by a YouthBuild participant. The
injury incident report form is available from OSHA and can be
downloaded at http://www.osha.gov/recordkeeping/RKforms.html.
Reportable injuries include those that result in death, days away from
work, restricted work or transfer to another job, medical treatment
beyond first aid, or loss of consciousness.
Sec. 688.720 What environmental protection laws apply to the
YouthBuild program?
YouthBuild Program grantees are required, where applicable, to
comply with all environmental protection statutes and regulations.
Sec. 688.730 What requirements apply to YouthBuild housing?
(a) YouthBuild grantees must ensure that all residential housing
units which are constructed or rehabilitated using YouthBuild funds
must be available solely for:
(1) Sale to homeless individuals and families or low-income
families;
(2) Rental by homeless individuals and families or low-income
families;
(3) Use as transitional or permanent housing for the purpose of
assisting in the movement of homeless individuals and families to
independent living. In the case of transitional housing, the unit(s)
must be occupied no more than 24 months by the same individual(s); or
(4) Rehabilitation of homes for low-income homeowners.
(b) For rentals of residential units located on the property which
are constructed or rehabilitated using YouthBuild funds:
(1) The property must maintain at least a 90 percent level of
occupancy for low-income families. The income test will be conducted
only at the time of entry for each available unit or rehabilitation of
occupant-owned home. If the grantee cannot find a qualifying tenant to
lease the unit, the unit may be leased to a family whose income is
above the income threshold to qualify as a low-income family but below
the median income for the area. Leases for tenants with higher incomes
will be limited to not more than 2 years. The leases provided to
tenants with higher incomes are not subject to the termination clause
that is described in paragraph (b)(2) of this section.
(2) The property owner must not terminate the tenancy or refuse to
renew the lease of a tenant occupying a residential rental housing unit
constructed or rehabilitated using YouthBuild funds except for serious
or repeated violations of the terms and conditions of the lease, for
violation of applicable Federal, State or local laws, or for good
cause. Any termination or refusal to renew the lease must be preceded
by not less than a 30-day written notice to the tenant specifying the
grounds for the action. The property owner may waive the written notice
requirement for termination in dangerous or egregious situations
involving the tenant.
(c) All transitional or permanent housing for homeless individuals
or families or low-income families must be safe and sanitary. The
housing must meet all applicable State and local housing codes and
licensing requirements in the jurisdiction in which the housing is
located.
(d) For sales or rentals of residential housing units constructed
or rehabilitated using YouthBuild funds, YouthBuild grantees must
ensure that owners of the property record a restrictive covenant at the
time that an occupancy permit is issued against such property which
includes the use restrictions set forth in paragraphs (a), (b), and (c)
of this section and incorporates the following definitions at Sec.
688.120: Homeless Individual; Low-Income Housing; and Transitional
Housing. The term of the restrictive covenant must be at least 5 years
from the time of the issuance of the occupancy permit, unless a time
period of more than 5 years has been established by the grantee. Any
additional stipulations imposed by a grantee or property owner should
be clearly stated in the covenant.
(e) Any conveyance document prepared in the 5-year period of the
restrictive covenant must inform the buyer of the property that all
residential housing units constructed or rehabilitated using YouthBuild
funds are subject to the restrictions set forth in paragraphs (a)
through (d) of this section.
PART 651--GENERAL PROVISIONS GOVERNING THE FEDERAL-STATE EMPLOYMENT
SERVICE SYSTEM
0
16. Revise the authority citation for part 651 to read as follows:
Authority: Wagner-Peyser Act sec. 49a, as amended by Pub. L.
113-128 sec. 302; 38 U.S.C. part III, 4101, 4211; Secs. 503, 3, 189,
Pub. L. 113-128, 128 Stat. 1425 (Jul. 22, 2014).
0
17. Revise Sec. 651.10 to read as follows:
Sec. 651.10 Definitions of terms used in parts 651, 652, 653, and
658.
Act means the Wagner-Peyser Act (codified at 29 U.S.C. 49 et seq.).
Administrator, Office of Workforce Investment (OWI Administrator)
means the chief official of the Office of Workforce Investment (OWI) or
the Administrator's designee.
Affirmative action means positive, result-oriented action imposed
on or assumed by an employer pursuant to legislation, court order,
consent decree, directive of a fair employment practice authority,
government contract, grant or loan, or voluntary affirmative action
plan adopted pursuant to the affirmative action guidelines of the Equal
Employment Opportunity Commission (see 29 CFR part 1608) to provide
equal employment opportunities for members of a specified group which
for reasons of past custom, historical practice, or other non-
occupationally valid purposes has been discouraged from entering
certain occupational fields.
Agricultural worker see Farmworker.
Applicant Holding Office means an employment service office that is
in receipt of a clearance order and has access to U.S.-based workers
who may be willing and available to perform farmwork on a less than
year-round basis.
Applicant Holding State means a State Workforce Agency that is in
receipt of a clearance order from another State and potentially has
U.S.-based workers who may be willing and available to perform farmwork
on a less than year-round basis.
Bona Fide Occupational Qualification (BFOQ) means that an
employment decision or request based on age, sex, national origin or
religion is based on a finding that such characteristic is necessary to
the individual's ability to perform the job in question. Since a BFOQ
is an exception to the general prohibition against discrimination on
the basis of age, sex, national origin or religion, it must be
interpreted narrowly in accordance with the Equal Employment
Opportunity Commission regulations set forth at 29 CFR parts 1604,
1605, and 1627.
Career Services means the services described in sec. 134(b)(2) of
WIOA and 20 CFR 678.430.
Clearance Order means a job order that is processed through the
clearance system under the Agricultural Recruitment System (ARS).
Clearance System means the orderly movement of job seekers as they
are referred through the employment placement process by an employment
[[Page 20933]]
service office. This includes joint action of local employment service
offices in different labor market areas and/or States.
Complainant means the individual, employer, organization,
association, or other entity filing a complaint.
Complaint means a representation made or referred to a State or
employment service office of an alleged violation of the employment
service regulations and/or other Federal laws enforced by DOL's Wage
and Hour Division (WHD) or Occupational Safety and Health
Administration (OSHA), as well as other Federal, State, or local
agencies enforcing employment-related law.
Decertification means the rescission by the Secretary of the year-
end certification made under sec. 7 of the Wagner-Peyser Act to the
Secretary of the Treasury that the State agency may receive funds
authorized by the Wagner-Peyser Act.
Department or DOL means the United States Department of Labor,
including its agencies and organizational units.
Employer means a person, firm, corporation or other association or
organization which currently has a location within the United States to
which U.S. workers may be referred for employment, and which proposes
to employ a worker at a place within the United States and which has an
employer relationship with respect to employees under this subpart as
indicated by the fact that it hires, pays, fires, supervises and
otherwise controls the work of such employees. An association of
employers is considered an employer if it has all of the indicia of an
employer set forth in this definition. Such an association, however, is
considered as a joint employer with the employer member if either
shares in exercising one or more of the definitional indicia.
Employment and Training Administration (ETA) means the component of
the Department of Labor that administers Federal government job
training and worker dislocation programs, Federal grants to States for
public employment service programs, and unemployment insurance
benefits. These services are primarily provided through State and local
workforce development systems.
Employment-related laws means those laws enforced by DOL's Wage and
Hour Division (WHD), Occupational Safety and Health Administration
(OSHA), or by other Federal, State, or local agencies enforcing
employment-related laws.
Employment Service (ES) means the national system of public
employment service offices described under the Wagner-Peyser Act. The
employment services are delivered through a nationwide system of one-
stop centers, and are managed by State agencies and the various offices
of the State agencies, and funded by the United States Department of
Labor.
Employment Service Office means a local office of a State Workforce
Agency (SWA).
Employment Service regulations means the Federal regulations at 20
CFR parts 651, 652, 653, 654, 658, and 29 CFR part 75.
Establishment means a public or private economic employing unit
generally at a single physical location which produces and/or sells
goods or services, for example, a mine, factory, store, farm, orchard
or ranch. It is usually engaged in one, or predominantly one, type of
commercial or governmental activity. Each branch or subsidiary unit of
a large employer in a geographical area or community should be
considered an individual establishment, except that all such units in
the same physical location is considered a single establishment. A
component of an establishment which may not be located in the same
physical structure (such as the warehouse of a department store) should
also be considered as part of the parent establishment. For the purpose
of the ``seasonal farmworker'' definition, farm labor contractors and
crew leaders are not considered establishments; it is the organizations
to which they supply the workers that are the establishments.
Farmwork means the cultivation and tillage of the soil, dairying,
the production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities. This includes the raising of
livestock, bees, fur-bearing animals, or poultry, the farming of fish,
and any practices (including any forestry or lumbering operations)
performed by a farmer or on a farm as an incident to or in conjunction
with such farming operations, including preparation for market,
delivery to storage or to market or to carriers for transportation to
market. It also includes the handling, planting, drying, packing,
packaging, processing, freezing, or grading prior to delivery for
storage of any agricultural or horticultural commodity in its
unmanufactured state. For the purpose of this section, agricultural
commodities means all commodities produced on a farm including crude
gum (oleoresin) from a living tree products processed by the original
producer of the crude gum (oleoresin) from which they are derived,
including gum spirits of turpentine and gum rosin. Farmwork also means
any service or activity covered under 20 CFR 655.103(c) and/or 29 CFR
500.20(e) and any service or activity so identified through official
Department guidance such as a Training and Employment Guidance Letter.
Farmworker means an individual employed in farmwork as defined in
this section.
Field Checks means random, unannounced appearances by State agency
personnel at agricultural worksites to which employment service
placements have been made through the intrastate or interstate
clearance system to ensure that conditions are as stated on the job
order and that the employer is not violating an employment-related law.
Field Visits means appearances by monitor advocates or State agency
outreach personnel to the working and living areas of MSFWs. The
monitor advocates or outreach personnel must keep records to discuss ES
services and other employment-related programs with MSFWs, crew
leaders, and employers.
Governor means the chief executive of a State or an outlying area.
Hearing Officer means a Department of Labor Administrative Law
Judge, designated to preside at Department administrative hearings.
Interstate clearance order means an agricultural job order for
temporary employment (employment on a less than year-round basis)
describing one or more hard-to-fill job openings, which an employment
service office uses to request recruitment assistance from other
employment service offices in a different State.
Intrastate clearance order means an agricultural job order for
temporary employment (employment on a less than year-round basis)
describing one or more hard-to-fill job openings, which an employment
service office uses to request recruitment assistance from other
employment service offices within the State.
Job development means the process of securing a job interview with
a public or private employer for a specific applicant for whom the
employment service office has no suitable opening on file.
Job information means information derived from data compiled in the
normal course of employment service activities from reports, job
orders, applications, and the like.
Job opening means a single job opportunity for which the employment
service office has on file a request to select and refer participants.
Job order means the document containing the material terms and
[[Page 20934]]
conditions of employment relating to wages, hours, working conditions,
worksite and other benefits, submitted by an employer.
Job referral means:
(1) The act of bringing to the attention of an employer an
applicant or group of applicants who are available for specific job
openings or for a potential job; and
(2) The record of such referral. ``Job referral'' means the same as
``referral to a job.''
Labor market area means an economically integrated geographic area
within which individuals can reside and find employment within a
reasonable distance or can readily change employment without changing
their place of residence. Such an area must be identified in accordance
with criteria used by DOL's Bureau of Labor Statistics in defining such
areas or similar criteria established by a Governor.
Local Office Manager means the official in charge of all employment
service activities in a one-stop center.
Local Workforce Development Board means a Local Workforce
Development Board established under sec. 107 of WIOA.
Migrant farmworker means a seasonal farmworker (as defined in this
section) who travels to the job site so that the farmworker is unable
to return to his/her permanent residence within the same day. Full-time
students traveling in organized groups rather than with their families
are excluded.
Migrant food processing worker see Migrant Farmworker.
MSFW means a migrant farmworker or a seasonal farmworker.
Occupational Information Network (O*NET) system means the online
reference database which contains detailed descriptions of U.S.
occupations, distinguishing characteristics, classification codes, and
information on tasks, knowledge, skills, abilities, and work activities
as well as information on interests, work styles, and work values.
One-stop center means a one-stop delivery system described in sec.
121(e)(2) of WIOA.
One-stop delivery system means a one-stop delivery system described
in sec. 121(e) of WIOA.
One-stop partner means an entity described in sec. 121(b) of WIOA
and 20 CFR 678.400 that is participating in the operation of a one-stop
delivery system.
O*NET-SOC means the occupational codes and titles used in the O*NET
system, based on and grounded in the Standard Occupational
Classification (SOC), which are the titles and codes utilized by
Federal statistical agencies to classify workers into occupational
categories for the purpose of collecting, calculating, and
disseminating data. The SOC system is issued by the Office of
Management and Budget and the Department of Labor is authorized to
develop additional detailed O*NET occupations within existing SOC
categories. The Department uses O*NET-SOC titles and codes for the
purposes of collecting descriptive occupational information and for
State reporting of data on training, credential attainment, and
placement in employment by occupation.
Onsite Review means an appearance by the State monitor advocate
and/or Federal staff at an employment service office to monitor the
delivery of services and protections afforded by employment service
regulations to MSFWs by the State agency and local offices.
Order Holding Office means an employment service office that has
accepted a clearance order from an employer seeking U.S.-based workers
to perform farmwork on a less than year-round basis through the
Agricultural Recruitment System.
Outreach Contact means each MSFW that receives the presentation of
information, offering of assistance, or follow-up activity from an
outreach worker.
Participant means a person who applies for or is receiving Wagner-
Peyser Act employment services.
Placement means the hiring by a public or private employer of an
individual referred by the employment service office for a job or an
interview, provided that the employment office completed all of the
following steps:
(1) Prepared a job order form prior to referral, except in the case
of a job development contact on behalf of a specific applicant;
(2) Made prior arrangements with the employer for the referral of
an individual or individuals;
(3) Referred an individual who had not been specifically designated
by the employer, except for referrals on agricultural job orders for a
specific crew leader or worker;
(4) Verified from a reliable source, preferably the employer, that
the individual had entered on a job; and
(5) Appropriately recorded the placement.
Public housing means housing operated by or on behalf of any public
agency.
Regional Administrator (RA) means the chief DOL Employment and
Training Administration (ETA) official in each Department regional
office.
Respondent means the employer or State agency (including a State
agency official) who is alleged to have committed the violation
described in a complaint.
Seasonal farmworker means an individual who is employed, or was
employed in the past 12 months, in farmwork (as described in this
section) of a seasonal or other temporary nature and is not required to
be absent overnight from his/her permanent place of residence. Non-
migrant individuals who are full-time students are excluded. Labor is
performed on a seasonal basis where, ordinarily, the employment
pertains to or is of the kind exclusively performed at certain seasons
or periods of the year and which, from its nature, may not be
continuous or carried on throughout the year. A worker who moves from
one seasonal activity to another, while employed in farmwork, is
employed on a seasonal basis even though he/she may continue to be
employed during a major portion of the year. A worker is employed on
other temporary basis where he/she is employed for a limited time only
or his/her performance is contemplated for a particular piece of work,
usually of short duration. Generally, employment which is contemplated
to continue indefinitely is not temporary.
Secretary means the Secretary of the U.S. Department of Labor or
the Secretary's designee.
Significant MSFW one-stop centers are those designated annually by
the Department and include those employment service offices where MSFWs
account for 10 percent or more of annual participants in employment
services and those local ES offices which the administrator determines
should be included due to special circumstances such as an estimated
large number of MSFWs in the service area. In no event may the number
of significant MSFW one-stop centers be less than 100 centers on a
nationwide basis.
Significant MSFW States are those States designated annually by the
Department and must include the 20 States with the highest number of
MSFW participants.
Significant multilingual MSFW one-stop centers are those designated
annually by the Department and include those significant MSFW
employment service offices where 10 percent or more of MSFW
participants are estimated to require service provisions in a
language(s) other than English unless the administrator determines
other one-stop centers also should be included due to special
circumstances.
[[Page 20935]]
Solicitor means the chief legal officer of the U.S. Department of
Labor or the Solicitor's designee.
Standard Metropolitan Statistical Area (SMSA) means a metropolitan
area designated by the Bureau of Census which contains:
(1) At least one city of 50,000 inhabitants or more; or
(2) Twin cities with a combined population of at least 50,000.
State means any of the 50 States, the District of Columbia, Guam,
Puerto Rico, and the Virgin Islands.
State Administrator means the chief official of the State Workforce
Agency (SWA).
State agency or State Workforce Agency (SWA) means the State
employment service agency designated under sec. 4 of the Wagner-Peyser
Act.
State hearing official means a State official designated to preside
at State administrative hearings convened to resolve complaints
involving ES-regulations pursuant to subpart E of part 658 of this
chapter.
State Workforce Development Board (State Board) means the entity
within a State appointed by the Governor under sec. 101 of WIOA.
Supply State(s) means a State that potentially has U.S.-based
workers who may be recruited for referral through the Agricultural
Recruitment System to the area of intended employment in a different
State.
Supportive services means services such as transportation, child
care, dependent care, housing, needs-related payments, and others, that
are necessary to enable an individual to participate in activities
authorized under WIOA or the Wagner-Peyser Act.
Training Services means services described in sec. 134(c)(3) of
WIOA.
Unemployment Insurance claimant means a person who files a claim
for benefits under any State or Federal unemployment compensation law.
United States Employment Service (USES) means the component of the
Employment and Training Administration of the Department which was
established under the Wagner-Peyser Act of 1933 to promote and develop
a national system of public employment service offices.
WIOA means the Workforce Innovation and Opportunity Act of 2014
(codified at 29 U.S.C. 3901 et seq.).
Workforce and Labor Market Information (WLMI) means that body of
knowledge pertaining to the socio-economic factors influencing the
employment, training, and business decisions in national, State, sub-
State, and local labor market areas. These factors, which affect labor
demand-supply relationships, worker preparation, and educational
program offerings, also define the content of the WLMI programs and
system. WLMI includes, but is not limited to:
(1) Employment and unemployment numbers and rates;
(2) Population growth and decline, classified by age, sex, race,
and other characteristics;
(3) Short- and long-term industry and occupational employment
projections;
(4) Information on business employment dynamics, including the
number and nature of business establishments, and share and location of
industrial production;
(5) Local employment dynamics, including business turnover rates;
new hires, job separations, net job losses;
(6) Job vacancy counts;
(7) Job search information and employment data from the public
labor exchange system;
(8) Identification of high growth and high demand industries,
occupations, and jobs;
(9) Payroll, earnings, work hours, benefits, unionization, trade
disputes, conditions of employment, and retirement;
(10) Emerging occupations and evolving skill demands;
(11) Business skill and hiring requirements;
(12) Workforce characteristics, described by skills, experience,
education, competencies, etc.;
(13) Workforce available in geographic areas;
(14) Regional and local economic development, including job
creation through business start-ups and expansions;
(15) Educational programs, training and apprenticeship
opportunities;
(16) Trends in industrial and occupational restructuring;
(17) Shifts in consumer demands;
(18) Data contained in governmental or administrative reporting
including wage records as identified in 20 CFR 652.301;
(19) Labor market intelligence gained from interaction with
businesses, industry or trade associations, education agencies,
government entities, and the public; and
(20) Other economic factors.
Workforce and Labor Market Information System (WLMIS) means the
system that collects, analyzes, interprets, and disseminates workforce
characteristics and employment-related data, statistics, and
information at national, State, and local labor market areas and makes
that information available to the public, workforce development system,
one-stop partner programs, and the education and economic development
communities.
Workforce Development Activity means an activity carried out
through a workforce development program as defined in sec. 3 of WIOA.
Working days or business days means those days that the order-
holding employment service office is open for public business, for
purposes of the Agricultural Recruitment System.
Work test means activities designed to ensure that an individual
whom a State determines to be eligible for unemployment insurance
benefits is able to work, available for work, and actively seeking work
in accordance with the State's unemployment compensation law.
0
18. Revise part 652 to read as follows:
PART 652--ESTABLISHMENT AND FUNCTIONING OF STATE EMPLOYMENT
SERVICES
Subpart A--Employment Service Operations
Sec.
652.1 Introduction.
652.2 Scope and purpose of the employment service system.
652.3 Public labor exchange services system.
652.4 Allotment of funds and grant agreement.
652.5 Services authorized.
652.6 [Reserved].
652.7 [Reserved].
652.8 Administrative provisions.
652.9 Labor disputes.
Subpart B--Services for Veterans
652.100 Services for veterans.
Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
652.200 What is the purpose of this subpart?
652.201 What is the role of the State agency in the one-stop
delivery system?
652.202 May local Employment Service Offices exist outside of the
one-stop service delivery system?
652.203 Who is responsible for funds authorized under the Act in the
workforce investment system?
652.204 Must funds authorized under the Act (the Governor's reserve)
flow through the one-stop delivery system?
652.205 May funds authorized under the Act be used to supplement
funding for labor exchange programs authorized under separate
legislation?
652.206 May a State use funds authorized under the Act to provide
applicable ``career services,'' as defined in the Workforce
Innovation and Opportunity Act?
652.207 How does a State meet the requirement for universal access
to services provided under the Act?
652.208 How are applicable career services related to the methods of
service delivery described in this part?
[[Page 20936]]
652.209 What are the requirements under the Act for providing
reemployment services and other activities to referred unemployment
insurance claimants?
652.210 What are the Act's requirements for administration of the
work test, including eligibility assessments, as appropriate, and
assistance to unemployment insurance claimants?
652.211 What are State planning requirements under the Act?
652.215 Do any provisions in the Workforce Innovation and
Opportunity Act change the requirement that State merit staff
employees must deliver services provided under the Act?
652.216 May the one-stop operator provide guidance to State merit
staff employees in accordance with the Act?
Subpart D--Workforce and Labor Market Information
Sec.
652.300 What role does the Secretary of Labor have concerning the
Workforce and Labor Market Information System?
652.301 What are wage records for purposes of the Wagner-Peyser Act?
652.302 How do the Secretary of Labor's responsibilities described
in this part apply to State wage records?
652.303 How do the requirements of part 603 of this chapter apply to
wage records?
Authority: Wagner-Peyser Act sec. 15 as amended by Pub. L. 113-
128 sec. 308, 29 U.S.C. 491-2; Pub. L. 113-128 secs. 189, 503.
Subpart A--Employment Service Operations
Sec. 652.1 Introduction.
These regulations implement the provisions of the Wagner-Peyser
Act, known hereafter as the Act, as amended by the Workforce Innovation
and Opportunity Act (WIOA), Public Law 113-128. Congress intended that
the States exercise broad authority in implementing provisions of the
Act.
Sec. 652.2 Scope and purpose of the employment service system.
The basic purpose of the employment service system is to improve
the functioning of the nation's labor markets by bringing together
individuals who are seeking employment and employers who are seeking
workers.
Sec. 652.3 Public labor exchange services system.
At a minimum, each State must administer a labor exchange system
which has the capacity:
(a) To assist jobseekers in finding employment, including promoting
their familiarity with the Department's electronic tools;
(b) To assist employers in filling jobs;
(c) To facilitate the match between jobseekers and employers;
(d) To participate in a system for clearing labor between the
States, including the use of standardized classification systems issued
by the Secretary, under sec. 15 of the Act;
(e) To meet the work test requirements of the State unemployment
compensation system; and
(f) Provide labor exchange services as identified in Sec.
678.430(a) of this chapter and sec. 134(c)(2)(A)(iv) of WIOA.
Sec. 652.4 Allotment of funds and grant agreement.
(a) Allotments. The Secretary must provide planning estimates in
accordance with sec. 6(b)(5) of the Act. Within 30 days of receipt of
planning estimates from the Secretary, the State must make public the
sub-State resource distributions, and describe the process and schedule
under which these resources will be issued, planned and committed. This
notification must include a description of the procedures by which the
public may review and comment on the sub-State distributions, including
a process by which the State will resolve any complaints.
(b) Grant agreement. To establish a continuing relationship under
the Act, the Governor and the Secretary must sign a grant agreement,
including a statement assuring that the State must comply with the Act
and all applicable rules and regulations. Consistent with this
agreement and sec. 6 of the Act, State allotments will be obligated
through a notification of obligation.
Sec. 652.5 Services authorized.
The funds allotted to each State under sec. 6 of the Act must be
expended consistent with an approved plan under 20 CFR 676.100 through
676.135 and Sec. 652.211. At a minimum, each State must provide the
minimum labor exchange elements listed at Sec. 652.3.
Sec. 652.6 [Reserved].
Sec. 652.7 [Reserved].
Sec. 652.8 Administrative provisions.
(a) Administrative requirements. The Employment Security Manual is
not applicable to funds appropriated under the Wagner-Peyser Act.
Except as provided for in paragraph (f) of this section, administrative
requirements and cost principles applicable to grants under this part
652 are as specified in 2 CFR 200 and 2900.
(b) Management systems, reporting and recordkeeping. (1) The State
must ensure that financial systems provide fiscal control and
accounting procedures sufficient to permit preparation of required
reports, and the tracing of funds to a level of expenditure adequate to
establish that funds have not been expended in violation of the
restrictions on the use of such funds. (sec. 10(a))
(2) The financial management system and the program information
system must provide Federally-required records and reports that are
uniform in definition, accessible to authorized Federal and State
staff, and verifiable for monitoring, reporting, audit and evaluation
purposes. (sec. 10(c))
(c) Reports required. (1) Each State must make reports pursuant to
instructions issued by the Secretary and in such format as the
Secretary prescribes.
(2) The Secretary is authorized to monitor and investigate pursuant
to sec. 10 of the Act.
(d) Special administrative and cost provisions. (1) Neither the
Department nor the State is a guarantor of the accuracy or truthfulness
of information obtained from employers or applicants in the process of
operating a labor exchange activity.
(2) Prior approval authority, as described in various sections of
29 CFR part 97, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments, and Office of
Management and Budget Circular A-87 (Revised), is delegated to the
State except that the Secretary reserves the right to require transfer
of title on nonexpendable Automated Data Processing Equipment (ADPE),
in accordance with provisions contained in 2 CFR 200 and 2900. The
Secretary reserves the right to exercise prior approval authority in
other areas, after providing advance notice to the State.
(3) Application for financial assistance and modification
requirements must be as specified under this part.
(4) Cost of promotional and informational activities consistent
with the provisions of the Act, describing services offered by
employment security agencies, job openings, labor market information,
and similar items are allowable.
(5) Each State must retain basic documents for the minimum period
specified below, consistent with 2 CFR 200 and 2900:
(i) Work application: 3 Years.
(ii) Job order: 3 Years.
(6) Payments from the State's Wagner-Peyser allotment made into a
State's account in the Unemployment Trust Fund for the purpose of
reducing charges against Reed Act funds (sec. 903(c) of the Social
Security Act, as amended (42 U.S.C. 1103(c)) are allowable costs,
provided that:
[[Page 20937]]
(i) The charges against Reed Act funds were for amounts
appropriated, obligated, and expended for the acquisition of automatic
data processing installations or for the acquisition or major
renovation of State-owned office building; and
(ii) With respect to each acquisition of improvement of property
pursuant to paragraph (d)(6)(i) of this section, the payments are
accounted for in the State's records as credits against equivalent
amounts of Reed Act funds used for administrative expenditures.
(e) Disclosure of information. (1) The State must assure the proper
disclosure of information pursuant to sec. 3(b) of the Act.
(2) The information specified in sec. 3(b) and other sections of
the Act, must also be provided to officers or any employee of the
Federal government or of a State government lawfully charged with
administration of unemployment compensation laws, employment service
activities under the Act or other related legislation, but only for
purposes reasonably necessary for the proper administration of such
laws.
(f) Audits. (1) The State must follow the audit requirements found
at 20 CFR 683.210, except that funds expended pursuant to sec. 7(b) of
the Act must be audited annually.
(2) The Comptroller General and the Inspector General of the
Department have the authority to conduct audits, evaluations or
investigations necessary to meet their responsibilities under sec.
9(b)(1) and 9(b)(2), respectively, of the Act.
(3) The audit, conducted pursuant to paragraph (f)(1) or (2) of
this section, must be submitted to the Secretary who will follow the
resolution process specified in 20 CFR 667.420 through 667.440.
(g) Sanctions for violation of the Act. (1) The Secretary may
impose appropriate sanctions and corrective actions for violation of
the Act, regulations, or State Plan, including the following:
(i) Requiring repayment, for debts owed the government under the
grant, from non-Federal funds;
(ii) Offsetting debts arising from the misexpenditure of grant
funds, against amounts to which the State is or may be entitled under
the Act, provided that debts arising from gross negligence or willful
misuse of funds may not be offset against future grants. When the
Secretary reduces amounts allotted to the State by the amount of the
misexpenditure, the debt must be fully satisfied;
(iii) Determining the amount of Federal cash maintained by the
State or a subrecipient in excess of reasonable grant needs,
establishing a debt for the amount of such excessive cash, and charging
interest on that debt;
(iv) Imposing other appropriate sanctions or corrective actions,
except where specifically prohibited by the Act or regulations.
(2) To impose a sanction or corrective action, the Secretary must
utilize the initial and final determination procedures outlined in
(f)(3) of this section.
(h) Other violations. Violations or alleged violations of the Act,
regulations, or grant terms and conditions except those pertaining to
audits or discrimination must be determined and handled in accordance
with 20 CFR part 658, subpart H.
(i) Fraud and abuse. Any persons having knowledge of fraud,
criminal activity or other abuse must report such information directly
and immediately to the Secretary. Similarly, all complaints involving
such matters should also be reported to the Secretary directly and
immediately.
(j) Nondiscrimination and affirmative action requirements. States
must:
(1) Assure that no individual be excluded from participation in,
denied the benefits of, subjected to discrimination under, or denied
employment in the administration or in connection with any services or
activities authorized under the Act in violation of any applicable
nondiscrimination law, including laws prohibiting discrimination on the
basis of age, race, sex, color, religion, national origin, disability,
political affiliation or belief. All complaints alleging discrimination
must be filed and processed according to the procedures in the
applicable DOL nondiscrimination regulations.
(2) Assure that discriminatory job orders will not be accepted,
except where the stated requirement is a bona fide occupational
qualification (BFOQ). See, generally, 42 U.S.C. 2000(e)-2(e), 29 CFR
parts 1604, 1606, 1625.
(3) Assure that employers' valid affirmative action requests will
be accepted and a significant number of qualified applicants from the
target group(s) will be included to enable the employer to meet its
affirmative action obligations.
(4) Assure that employment testing programs will comply with 41 CFR
part 60-3 and 29 CFR part 32 and 29 CFR 1627.3(b)(iv).
(5) Nondiscrimination and equal opportunity requirements and
procedures, including complaint processing and compliance reviews, will
be governed by the applicable DOL nondiscrimination regulations.
Sec. 652.9 Labor disputes.
(a) State agencies may not make a job referral on job orders which
will aid directly or indirectly in the filling of a job opening which
is vacant because the former occupant is on strike, or is being locked
out in the course of a labor dispute, or the filling of which is
otherwise an issue in a labor dispute involving a work stoppage.
(b) Written notification must be provided to all applicants
referred to jobs not at issue in the labor dispute that a labor dispute
exists in the employing establishment and that the job to which the
applicant is being referred is not at issue in the dispute.
(c) When a job order is received from an employer reportedly
involved in a labor dispute involving a work stoppage, State agencies
must:
(1) Verify the existence of the labor dispute and determine its
significance with respect to each vacancy involved in the job order;
and
(2) Notify all potentially affected staff concerning the labor
dispute.
(d) State agencies must resume full referral services when they
have been notified of, and verified with the employer and workers'
representative(s), that the labor dispute has been terminated.
(e) State agencies must notify the regional office in writing of
the existence of labor disputes which:
(1) Result in a work stoppage at an establishment involving a
significant number of workers; or
(2) Involve multi-establishment employers with other establishments
outside the reporting State.
Subpart B--Services for Veterans
Sec. 652.100 Services for veterans.
Veterans receive priority of service for all DOL-funded employment
and training programs as described in 20 CFR part 1010. The
Department's Veterans' Employment and Training Service (VETS)
administers the Jobs for Veterans State Grants (JVSG) program under
chapter 41 of title 38 of the U.S. Code and other activities and
training programs which provide services to specific populations of
eligible veterans. VETS' general regulations are located in parts 1001,
1002, and 1010 of this title.
[[Page 20938]]
Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
Sec. 652.200 What is the purpose of this subpart?
(a) This subpart provides guidance to States to implement the
services provided under the Act, as amended by WIOA, in a one-stop
delivery system environment.
(b) Except as otherwise provided, the definitions contained in 20
CFR part 651 and sec. 2 of the Act apply to this subpart.
Sec. 652.201 What is the role of the State agency in the one-stop
delivery system?
(a) The role of the State agency in the one-stop delivery system is
to ensure the delivery of services authorized under sec. 7(a) of the
Act. The State agency is a required one-stop partner in each local one-
stop delivery system and is subject to the provisions relating to such
partners that are described at 20 CFR part 678.
(b) Consistent with those provisions, the State agency must:
(1) Participate in the one-stop delivery system in accordance with
sec. 7(e) of the Act;
(2) Be represented on the Workforce Development Boards that oversee
the local and State one-stop delivery system and be a party to the
Memorandum of Understanding, described at 20 CFR 678.500, addressing
the operation of the one-stop delivery system; and
(3) Provide these services as part of the one-stop delivery system.
Sec. 652.202 May local Employment Service Offices exist outside of
the one-stop service delivery system?
No. Local Employment Service Offices may not exist outside of the
one-stop service delivery system. A State must collocate employment
services, as provided in 20 CFR 678.310-678.315.
Sec. 652.203 Who is responsible for funds authorized under the Act in
the workforce investment system?
The State agency retains responsibility for all funds authorized
under the Act, including those funds authorized under sec. 7(a)
required for providing the services and activities delivered as part of
the one-stop delivery system.
Sec. 652.204 Must funds authorized under the Act (the Governor's
reserve) flow through the one-stop delivery system?
No, these funds are reserved for use by the Governor for
performance incentives, supporting exemplary models of service
delivery, and services for groups with special needs, as described in
sec. 7(b) of the Act. However, these funds may flow through the one-
stop delivery system.
Sec. 652.205 May funds authorized under the Act be used to supplement
funding for labor exchange programs authorized under separate
legislation?
(a) Section 7(c) of the Act enables States to use funds authorized
under sec. 7(a) or 7(b) of the Act to supplement funding of any
workforce activity carried out under WIOA.
(b) Funds authorized under the Act may be used under sec. 7(c) to
provide additional funding to other activities authorized under WIOA
if:
(1) The activity meets the requirements of the Act, and its own
requirements;
(2) The activity serves the same individuals as are served under
the Act;
(3) The activity provides services that are coordinated with
services under the Act; and
(4) The funds supplement, rather than supplant, funds provided from
non-Federal sources.
Sec. 652.206 May a State use funds authorized under the Act to
provide applicable ``career services,'' as defined in the Workforce
Innovation and Opportunity Act?
Yes, funds authorized under sec. 7(a) of the Act must be used to
provide basic career services as identified in Sec. 678.430(a) of this
chapter and secs. 134(c)(2)(A)(i)-(xi) of WIOA, and may be used to
provide individualized career services as identified in Sec.
678.430(b) of this chapter and sec. 134(c)(2)(A)(xii) of WIOA. Funds
authorized under sec. 7(b) of the Act may be used to provide career
services. Career services must be provided consistent with the
requirements of the Wagner-Peyser Act.
Sec. 652.207 How does a State meet the requirement for universal
access to services provided under the Act?
(a) A State has discretion in how it meets the requirement for
universal access to services provided under the Act. In exercising this
discretion, a State must meet the Act's requirements.
(b) These requirements are:
(1) Labor exchange services must be available to all employers and
job seekers, including unemployment insurance (UI) claimants, veterans,
migrant and seasonal farmworkers, and individuals with disabilities;
(2) The State must have the capacity to deliver labor exchange
services to employers and job seekers, as described in the Act, on a
statewide basis through:
(i) Self-service, including virtual services;
(ii) Facilitated self-help service; and
(iii) Staff-assisted service;
(3) In each local workforce investment area, in at least one
comprehensive physical center, staff funded under the Act must provide
labor exchange services (including staff-assisted labor exchange
services) and career services as described in Sec. 652.206; and
(4) Those labor exchange services provided under the Act in a local
workforce investment area must be described in the Memorandum of
Understanding (MOU) described in Sec. 678.500.
Sec. 652.208 How are applicable career services related to the
methods of service delivery described in in this part?
Career services may be delivered through any of the applicable
three methods of service delivery described in Sec. 652.207(b)(2).
These methods are:
(a) Self-service, including virtual services;
(b) Facilitated self-help service; and
(c) Staff-assisted service.
Sec. 652.209 What are the requirements under the Act for providing
reemployment services and other activities to referred unemployment
insurance claimants?
(a) In accordance with sec. 3(c)(3) of the Act, the State agency,
as part of the one-stop delivery system, must provide reemployment
services to UI claimants for whom such services are required as a
condition for receipt of UI benefits. Services must be appropriate to
the needs of UI claimants who are referred to reemployment services
under any Federal or State UI law.
(b) The State agency must also provide other activities, including:
(1) Coordination of labor exchange services with the provision of
UI eligibility services as required by sec. 5(b)(2) of the Act;
(2) Administration of the work test, conducting eligibility
assessments, and registering UI claimants for employment services in
accordance with a State's unemployment compensation law, and provision
of job finding and placement services as required by sec. 3(c)(3) and
described in sec. 7(a)(3)(F) of the Act;
(3) Referring UI claimants to, and providing application assistance
for, training and education resources and programs, including Federal
Pell grants and other student assistance under title IV of the Higher
Education Act, the Montgomery GI Bill, Post-9/11 GI Bill, and other
Veterans Educational Assistance, training provided for youth, and adult
and dislocated workers, as well as other employment training programs
under WIOA, and for Vocational Rehabilitation Services under title I of
the Rehabilitation Act of 1973.
[[Page 20939]]
Sec. 652.210 What are the Act's requirements for administration of
the work test, including eligibility assessments, as appropriate, and
assistance to unemployment insurance claimants?
(a) State UI law or rules establish the requirements under which UI
claimants must register and search for work in order to fulfill the UI
work test requirements.
(b) Staff funded under the Act must assure that:
(1) UI claimants receive the full range of labor exchange services
available under the Act that are necessary and appropriate to
facilitate their earliest return to work, including career services
specified in Sec. 652.206 and listed in sec. 134(c)(2)A) of WIOA;
(2) UI claimants requiring assistance in seeking work receive the
necessary guidance and counseling to ensure they make a meaningful and
realistic work search; and
(3) ES staff will provide UI program staff with information about
UI claimants' ability or availability for work, or the suitability of
work offered to them.
Sec. 652.211 What are State planning requirements under the Act?
The Employment Service is a core program identified in WIOA and
must be included as part of each State's Unified or Combined State
Plans. See Sec. Sec. 676.105 through 676.125 for planning requirements
for the core programs.
Sec. 652.215 Do any provisions in the Workforce Innovation and
Opportunity Act change the requirement that State merit staff employees
must deliver services provided under the Act?
This section stipulates that only State merit staff may provide
Wagner-Peyser services. The only change proposed in this section is to
change ``WIA'' to ``WIOA'' in the section question; the remainder of
the text has not changed from the existing regulation. The Department
has followed this policy since the earliest years of the ES, in order
to ensure minimum standards for the quality of the services provided. A
1998 U.S. District Court decision, Michigan v. Herman, 81 F. Supp. 2nd
840 (http://law.justia.com/cases/federal/district-courts/FSupp2/81/840/2420800/) upheld this policy. State merit staff employees are directly
accountable to State government entities, and the standards for their
performance and their determinations on the use of public funds require
that decisions be made in the best interest of the public and of the
population to be served. State merit staff meet objective professional
qualifications and provide impartial, transparent information and
services to all customers while complying with established government
standards.
Sec. 652.216 May the one-stop operator provide guidance to State
merit staff employees in accordance with the Act?
Yes, the one-stop delivery system envisions a partnership in which
Wagner-Peyser Act labor exchange services are coordinated with other
activities provided by other partners in a one-stop setting. As part of
the local Memorandum of Understanding described in Sec. 678.500, the
State agency, as a one-stop partner, may agree to have staff receive
guidance from the one-stop operator regarding the provision of labor
exchange services. Personnel matters, including compensation, personnel
actions, terms and conditions of employment, performance appraisals,
and accountability of State merit staff employees funded under the Act,
remain under the authority of the State agency. The guidance given to
employees must be consistent with the provisions of the Act, the local
Memorandum of Understanding, and applicable collective bargaining
agreements.
Subpart D--Workforce and Labor Market Information
Sec. 652.300 What role does the Secretary of Labor have concerning
the Workforce and Labor Market Information System?
(a) The Secretary of Labor must oversee the development,
maintenance, and continuous improvement of the workforce and labor
market information system defined in Wagner-Peyser Act sec. 15 and 20
CFR 651.10.
(b) With respect to data collection, analysis, and dissemination of
workforce and labor market information as defined in Wagner-Peyser Act
sec. 15 and 20 CFR 651.10, the Secretary must:
(1) Assign responsibilities within the Department of Labor for
elements of the workforce and labor market information system described
in sec. 15(a) of the Wagner-Peyser Act to ensure that the statistical
and administrative data collected are consistent with appropriate
Bureau of Labor Statistics standards and definitions, and that the
information is accessible and understandable to users of such data;
(2) Actively seek the cooperation of heads of other Federal
agencies to establish and maintain mechanisms for ensuring
complementarity and non-duplication in the development and operation of
statistical and administrative data collection activities;
(3) Solicit, receive, and evaluate the recommendations of the
Workforce Information Advisory Council established by Wagner-Peyser Act
sec. 15(d);
(4) Eliminate gaps and duplication in statistical undertakings;
(5) Through the Bureau of Labor Statistics and the Employment and
Training Administration, and in collaboration with States, develop and
maintain the elements of the workforce and labor market information
system, including the development of consistent procedures and
definitions for use by States in collecting and reporting the workforce
and labor market information data described in Wagner-Peyser Act sec.
15 and defined in 20 CFR 651.10; and
(6) Establish procedures for the system to ensure that the data and
information are timely, and paperwork and reporting for the system are
reduced to a minimum.
Sec. 652.301 What are wage records for purposes of the Wagner-Peyser
Act?
Wage records, for purposes of the Wagner-Peyser Act, are records
that contain ``wage information'' as defined in 20 CFR 603.2(k). In
this part, ``State wage records'' refers to wage records produced or
maintained by a State.
Sec. 652.302 How do the Secretary of Labor's responsibilities
described in this part apply to State wage records?
(a) State wage records, as defined in Sec. 652.301, are source
data used in the development of a significant portion of the workforce
and labor market information defined in Sec. 651.10.
(b) Based on the Secretary of Labor's responsibilities described in
Wagner-Peyser Act sec. 15 and 20 CFR 652.300, the Secretary of Labor
will, in consultation with the Workforce Information Advisory Council
described in Wagner-Peyser Act sec. 15(d), Federal agencies, and
States, develop:
(1) Standardized definitions for the data elements comprising
``wage records'' as defined in Sec. 652.301; and
(2) Improved processes and systems for the collection and reporting
of wage records.
(c) In carrying out these activities, the Secretary may also
consult with other stakeholders, such as employers.
Sec. 652.303 How do the requirements of part 603 of this chapter
apply to wage records?
All information collected by the State in wage records referred to
in Sec. 652.302 is subject to the confidentiality regulations at 20
CFR part 603.
0
19. Revise part 653 to read as follows:
[[Page 20940]]
PART 653--SERVICES OF THE EMPLOYMENT SERVICE SYSTEM
Subpart A--[Reserved]
Subpart B--Services for Migrant and Seasonal Farmworkers (MSFWs)
Sec.
653.100 Purpose and scope of subpart.
653.101 Provision of services to migrant and seasonal farmworkers.
653.102 Job information.
653.103 Process for migrant and seasonal farmworkers to participate
in workforce development activities.
653.107 Outreach and Agricultural Outreach Plan.
653.108 State Workforce Agency and State monitor advocate
responsibilities.
653.109 Data collection and performance accountability measures.
653.110 Disclosure of data.
653.111 State agency staffing requirements.
Subpart C-E--[Reserved]
Subpart F--Agricultural Recruitment System for U.S. Farmworkers (ARS)
653.500 Purpose and scope of subpart.
653.501 Requirements for processing clearance orders.
653.502 Conditional access to the agricultural recruitment system.
653.503 Field checks.
Authority: Pub. L. 113-128 secs. 167, 189, 503; Wagner-Peyser
Act, as amended by Pub. L. 113-128 secs. 302-308, 29 U.S.C. 49 et
seq.; 38 U.S.C. part III, chapters 41 and 42.
Subpart A--[Reserved]
Subpart B--Services for Migrant and Seasonal Farmworkers (MSFWs)
Sec. 653.100 Purpose and scope of subpart.
(a) This subpart sets forth the principal regulations of the United
States Employment Service (USES) concerning the provision of services
for MSFWs consistent with the requirement that all services of the
workforce development system be available to all job seekers in an
equitable fashion. This includes ensuring that MSFWs have access to
these services in a way that meets their unique needs. MSFWs must
receive services on a basis which is qualitatively equivalent and
quantitatively proportionate to services provided to non-MSFWs.
(b) This subpart contains requirements that State agencies
establish a system to monitor their own compliance with USES
regulations governing services to MSFWs.
(c) Special services to ensure that MSFWs receive the full range of
employment related services are established under this subpart.
Sec. 653.101 Provision of services to migrant and seasonal
farmworkers.
Each employment service office must offer MSFWs the full range of
career and supportive services, benefits and protections, and job and
training referral services as are provided to non-MSFWs. In providing
such services, the employment service offices must consider and be
sensitive to the preferences, needs, and skills of individual MSFWs and
the availability of job and training opportunities.
Sec. 653.102 Job information.
All State agencies must make job order information conspicuous and
available to MSFWs by all reasonable means. Such information must, at
minimum, be available through internet labor exchange systems and
through the one-stop centers. Employment service offices must provide
adequate staff assistance to MSFWs to access job order information
easily and efficiently. In designated significant MSFW multilingual
offices, such assistance must be provided to MSFWs in their native
language, whenever requested or necessary.
Sec. 653.103 Process for migrant and seasonal farmworkers to
participate in workforce development activities.
(a) Each employment service office must determine whether or not
participants are MSFWs as defined at Sec. 651.10 of this chapter.
(b) All State Workforce Agencies (SWAs) will ensure that MSFWs with
limited English proficiency (LEP) receive, free of charge, the language
assistance necessary to afford them meaningful access to the programs,
services, and information offered by the one-stop centers.
(c) Employment service office staff members must provide MSFWs a
list of available career and supportive services in their native
language.
(d) Employment service staff must refer and/or register MSFWs for
services, as appropriate, if the MSFW is interested in obtaining such
services.
Sec. 653.107 Outreach and Agricultural Outreach Plan.
(a) State agency outreach responsibilities. (1) Each State agency
must employ an adequate number of outreach workers to conduct MSFW
outreach in their service areas. SWA Administrators must ensure that
State monitor advocates and outreach workers coordinate their outreach
efforts with WIOA title I sec. 167 grantees as well as with public and
private community service agencies and MSFW groups.
(2) As part of their outreach, States agencies:
(i) Should communicate the full range of workforce development
services to MSFWs.
(ii) Should, in supply States, conduct thorough outreach efforts
with extensive follow-up activities .
(3) For purposes of hiring and assigning staff to conduct outreach
duties, and to maintain compliance with State agencies' Affirmative
Action programs, State agencies must seek, through merit system
procedures, qualified candidates:
(i) Who are from MSFW backgrounds;
(ii) Who speak a language common among MSFWs in the State; and
(4) The 20 States with the highest estimated year-round MSFW
activity, as identified in guidance issued by the Secretary, must
assign, in accordance with State merit staff requirements, full-time,
year-round staff to conduct outreach duties. The remainder of the
States must hire year-round part-time outreach staff and, during
periods of the highest MSFW activity must hire full-time outreach
staff. All outreach staff must be multilingual if warranted by the
characteristics of the MSFW population in the State, and must spend a
majority of their time in the field.
(5) The State agency must publicize the availability of employment
services through such means as newspaper and electronic media
publicity. Contacts with public and private community agencies,
employers and/or employer organizations, and MSFW groups also must be
utilized to facilitate the widest possible distribution of information
concerning employment services.
(b) Outreach worker's responsibilities. Outreach workers must
locate and contact MSFWs who are not being reached by the normal intake
activities conducted by the employment service offices. Outreach
worker's responsibilities include:
(1) Explaining to MSFWs at their working, living or gathering areas
(including day-haul sites), by means of written and oral presentations
either spontaneous or recorded, in a language readily understood by
them, the following;
(i) The services available at the local one-stop center (which
includes the availability of referrals to training, supportive
services, and career services, as well as specific employment
opportunities), and other related services;
(ii) Information on the employment service complaint system;
(iii) Information on the other organizations serving MSFWs in the
area; and
(iv) A basic summary of farmworker rights, including their rights
with respect to the terms and conditions of employment;
[[Page 20941]]
(2) Outreach workers may not enter an employer's property or work
area to perform outreach duties described in this section without
permission of the employer, owner, or farm labor contractor, unless
otherwise authorized to enter by law. Outreach workers may not enter
workers' living areas without the permission of the workers, and must
comply with appropriate State laws regarding access.
(3) After making the presentation, outreach workers must urge the
MSFWs to go to the local one-stop center to obtain the full range of
employment and training services.
(4) If an MSFW cannot or does not wish to visit the local one-stop
center, the outreach worker must offer to provide on-site the
following:
(i) Assistance in the preparation of applications for employment
services;
(ii) Assistance in obtaining referral(s) to current and future
employment opportunities;
(iii) Assistance in the preparation of either employment service or
employment-related law complaints;
(iv) Referral of complaints to the employment service office
complaint specialist or employment service officer manager;
(v) Referral to supportive services and/or career services in which
the individual or a family member may be interested; and
(vi) As needed, assistance in making appointments and arranging
transportation for individual MSFW(s) or members of his/her family to
and from local one-stop centers or other appropriate agencies.
(5) Outreach workers must make follow-up contacts as necessary and
appropriate to provide the assistance specified in paragraphs (b)(1)
through (b)(4) of this section.
(6) Outreach workers must be alert to observe the working and
living conditions of MSFWs and, upon observation or upon receipt of
information regarding a suspected violation of Federal or State
employment-related law, document and refer information to the
employment service office manager for processing in accordance with
Sec. 658.411 of this chapter. Additionally, if an outreach worker
observes or receives information about apparent violations (as
described in 20 CFR 658.419), the outreach worker must document and
refer the information to the appropriate local employment service
office manager.
(7) Outreach workers must be trained in local office procedures and
in the services, benefits, and protections afforded MSFWs by the
employment service system, including training on protecting farmworkers
against sexual harassment. They must also be trained in the procedure
for informal resolution of complaints. The program for such training
must be formulated by the State Administrator, pursuant to uniform
guidelines developed by ETA; the State monitor advocate must be given
an opportunity to review and comment on the State's program.
(8) Outreach workers must maintain complete records of their
contacts with MSFWs and the services they perform. These records must
include a daily log, a copy of which must be sent monthly to the
employment service office manager and maintained on file for at least 2
years. These records must include the number of contacts, the names of
contacts (if available), and the services provided (e.g., whether a
complaint was received, whether a request for career services was
received, and whether a referral was made). Outreach workers also must
maintain records of each possible violation or complaint of which they
have knowledge, and their actions in ascertaining the facts and
referring the matters as provided herein. These records must include a
description of the circumstances and names of any employers who have
refused outreach workers access to MSFWs pursuant to Sec.
653.107(b)(2).
(9) Outreach workers must not engage in political, unionization or
anti-unionization activities during the performance of their duties.
(10) Outreach workers must be provided with, carry and display,
upon request, identification cards or other material identifying them
as employees of the State agency.
(c) Employment service office outreach responsibilities. Each
employment service office manager must file with the State monitor
advocate a monthly summary report of outreach efforts. These reports
must summarize information collected, pursuant to paragraph (b)(8) of
this section. The employment service office manager and/or other
appropriate State office staff members must assess the performance of
outreach workers by examining the overall quality and productivity of
their work, including the services provided and the methods and tools
used to offer services. Performance must not be judged solely by the
number of contacts made by the outreach worker. The monthly reports and
daily outreach logs must be made available to the State monitor
advocate and Federal on-site review teams.
(d) State Agricultural Outreach Plan (AOP). (1) Each State agency
must develop an AOP every 4 years as part of the Unified or Combined
State Plan required under sec. 102 or 103 of WIOA.
(2) The AOP must:
(i) Provide an assessment of the unique needs of MSFWs in the area
based on past and projected agricultural and MSFW activity in the
State;
(ii) Provide an assessment of available resources for outreach;
(iii) Describe the State agency's proposed outreach activities
including strategies on how to contact MSFWs who are not being reached
by the normal intake activities conducted by the employment service
offices;
(iv) Describe the activities planned for providing the full range
of employment and training services to the agricultural community, both
MSFWs and agricultural employers, through the one-stop centers.
(v) Provide an assurance that the State agency is complying with
the requirements under Sec. 653.111 if the State has significant MSFW
one-stop centers.
(3) The AOP must be submitted in accordance with the regulations at
20 CFR 653.107(d) and planning guidance issued by the Department.
(4) The Annual Summaries required at Sec. 653.108(s) must update
annually the Department on the State agency's progress toward meetings
its goals set forth in the AOP.
Sec. 653.108 State Workforce Agency and State monitor advocate
responsibilities.
(a) State Administrators must assure that their State agencies
monitor their own compliance with ES regulations in serving MSFWs on an
ongoing basis. The State Administrator has overall responsibility for
State agency self-monitoring.
(b) The State Administrator must appoint a State monitor advocate.
The State Administrator must inform farmworker organizations and other
organizations with expertise concerning MSFWs of the opening and
encourage them to refer qualified applicants to apply through the State
merit system prior to appointing a State monitor advocate. Among
qualified candidates determined through State merit system procedures,
the State agencies must seek persons:
(1) Who are from MSFW backgrounds; and/or
(2) Who speak Spanish or other languages of a significant
proportion of the State MSFW population; and/or
(3) Who have substantial work experience in farmworker activities.
(c) The State monitor advocate must have direct, personal access,
when necessary, to the State Administrator. The State monitor advocate
must have
[[Page 20942]]
status and compensation as approved by the civil service classification
system and be comparable to other State positions assigned similar
levels of tasks, complexity, and responsibility.
(d) The State monitor advocates must be assigned staff necessary to
fulfill effectively all of their duties as set forth in this subpart.
The number of staff positions must be determined by reference to the
number of MSFWs in the State, as measured at the time of the peak MSFW
population, and the need for monitoring activity in the State. The
State monitor advocates must devote full-time to monitor advocate
functions. Any State that proposes less than full-time dedication must
demonstrate to its Regional Administrator that the State monitor
advocate function can be effectively performed with part-time staffing.
(e) All State monitor advocates and their staff must attend, within
the first 3 months of their tenure, a training session conducted by the
regional monitor advocate. They must also attend whatever additional
training sessions are required by the regional or national monitor
advocate.
(f) The State monitor advocate must provide any relevant
documentation requested from the State agency by the regional monitor
advocate.
(g) The State monitor advocate must:
(1) Conduct an ongoing review of the delivery of services and
protections afforded by employment service regulations to MSFWs by the
State agency and local employment service offices (including progress
made in achieving affirmative action staffing goals). The State monitor
advocate, without delay, must advise the State agency and local offices
of problems, deficiencies, or improper practices in the delivery of
services and protections afforded by these regulations and may request
a corrective action plan to address these deficiencies. The State
monitor advocate must advise the State agency on means to improve the
delivery of services.
(2) Participate in on-site reviews on a regular basis, using the
following procedures:
(i) Before beginning an onsite review, the State monitor advocate
and/or review staff must study:
(A) Program performance data;
(B) Reports of previous reviews;
(C) Corrective action plans developed as a result of previous
reviews;
(D) Complaint logs; and
(E) Complaints elevated from the office or concerning the office.
(ii) Ensure that the onsite review format, developed by ETA, is
used as a guideline for onsite reviews.
(iii) Upon completion of an onsite monitoring review, the State
monitor advocate must hold one or more wrap-up sessions with the
employment service office manager and staff to discuss any findings and
offer initial recommendations and appropriate technical assistance.
(iv) After each review the State monitor advocate must conduct an
in-depth analysis of the review data. The conclusions and
recommendations of the State monitor advocate must be put in writing,
and must be sent to the State Administrator, to the official of the
State agency with line authority over the employment service office,
and other appropriate State agency officials.
(v) If the review results in any findings of noncompliance with the
regulations under this chapter, the employment service office manager
must develop and propose a written corrective action plan. The plan
must be approved or revised by appropriate superior officials and the
State monitor advocate. The plan must include actions required to
correct or to take major steps to correct any compliance issues within
30 days, and if the plan allows for more than 30 days for full
compliance, the length of, and the reasons for, the extended period
must be specifically stated. State agencies are responsible for
assuring and documenting that the employment service office is in
compliance within the time period designated in the plan.
(vi) State agencies must submit to the appropriate ETA regional
office copies of the onsite review reports and corrective action plans
for employment service offices.
(vii) The State monitor advocate may recommend that the review
described in paragraph (g)(2) of this section be delegated to a
responsible, professional member of the administrative staff of the
State agency, if and when the State Administrator finds such delegation
necessary. In such event, the State monitor advocate is responsible for
and must approve the written report of the review.
(3) Assure that all significant MSFW one-stop centers not reviewed
onsite by Federal staff, are reviewed at least once per year by State
staff, and that, if necessary, those employment service offices in
which significant problems are revealed by required reports, management
information, the employment service complaint system, or other means
are reviewed as soon as possible.
(4) Review and approve the State agency's Agricultural Outreach
Plan (AOP).
(5) On a random basis, review outreach workers' daily logs and
other reports including those showing or reflecting the workers'
activities.
(6) Write and submit annual summaries to the State Administrator
with a copy to the Regional Administrator as described in paragraph (s)
of this section.
(h) The State monitor advocate must participate in Federal reviews
conducted pursuant to 20 CFR part 658 subpart G.
(i) At the discretion of the State Administrator, the State monitor
advocate may be assigned the responsibility as the complaint
specialist. The State monitor advocate must participate in and monitor
the performance of the complaint system, as set forth at 20 CFR 658.400
et seq. The State monitor advocate must review the employment service
office managers' informal resolution of complaints relating to MSFWs
and must ensure that the local employment service office manager
transmits copies of the logs of all MSFW complaints pursuant to 20 CFR
658 subpart E to the State agency.
(j) The State monitor advocate must serve as an advocate to improve
services for MSFWs.
(k) The State monitor advocate must establish an ongoing liaison
with WIOA title I sec. 167 National Farmworker Jobs Program (NFJP)
grantees and other organizations serving farmworkers, employers, and
employer organizations in the State.
(l) The State monitor advocate must meet (either in person or by
alternative means), at minimum, quarterly, with representatives of the
organizations pursuant to paragraph (k) of this section, to receive
complaints, assist in referrals of alleged violations to enforcement
agencies, receive input on improving coordination with employment
service offices or improving the coordination of services to MSFWs. To
foster such collaboration, a Memorandum of Understanding (MOU) (or
multiple MOUs) must be established between the State monitor advocate
and the different organizations.
(m) The State monitor advocate must conduct frequent field visits
to the working and living areas of MSFWs, and must discuss employment
services and other employment-related programs with MSFWs, crew
leaders, and employers. Records must be kept of each such field visit.
(n) The State monitor advocate must participate in the appropriate
regional public meeting(s) held by the Department of Labor Regional
Farm Labor Coordinated Enforcement Committee, other Occupational Safety
[[Page 20943]]
and Health Administration and Wage and Hour Division task forces, and
other committees as appropriate.
(o) The State monitor advocate must ensure that outreach efforts in
all significant MSFW employment service offices are reviewed at least
yearly. This review will include accompanying at least one outreach
worker from each significant MSFW local office on their field visits to
MSFWs' working and living areas. The State monitor advocate must review
findings from these reviews with the employment service office
managers.
(p) The State monitor advocate must review on at least a quarterly
basis all statistical and other MSFW-related data reported by
employment service offices in order:
(1) To determine the extent to which the State agency has complied
with the employment service regulations; and
(2) To identify the areas of non-compliance.
(q) The State monitor advocate must have full access to all
statistical and other MSFW-related information gathered by State
agencies and local employment service offices, and may interview State
and local employment service office staff with respect to reporting
methods. Subsequent to each review, the State monitor advocate must
consult, as necessary, with State and local employment service offices
and provide technical assistance to ensure accurate reporting.
(r) The State monitor advocate must review and comment on proposed
State employment service directives, manuals, and operating
instructions relating to MSFWs and must ensure:
(1) That they accurately reflect the requirements of the
regulations, and
(2) That they are clear and workable. The State monitor advocate
also must explain and make available at the requestor's cost, pertinent
directives and procedures to employers, employer organizations,
farmworkers, farmworker organizations and other parties expressing an
interest in a readily identifiable directive or procedure issued and
receive suggestions on how these documents can be improved.
(s) Annual summary. The State monitor advocates must prepare for
the State Administrator, the regional monitor advocate, and the
national monitor advocate an annual summary describing how the State
provides employment services to MSFWs within their State based on
statistical data and their reviews and activities as required in this
chapter. The summary must include:
(1) A description of the activities undertaken during the program
year by the State monitor advocate pertaining to his/her
responsibilities set forth in this section and other applicable
regulations in this part.
(2) An assurance that the State monitor advocate has direct,
personal access, whenever he/she finds it necessary, to the State
Administrator and that the State monitor advocate has status and
compensation approved by the civil service classification system, and
is comparable to other State positions assigned similar levels of
tasks, complexity, and responsibility.
(3) An assurance that the State monitor advocate devotes all of
his/her time to monitor advocate functions, or, if the State agency
proposes conducting necessary State monitor advocate functions on a
part-time basis, an explanation of how the State monitor advocate
functions are effectively performed with part-time staffing.
(4) A summary of the monitoring reviews conducted by the State
monitor advocate, including:
(i) A description of any problems, deficiencies, or improper
practices the State monitor advocate identified in the delivery of
services,
(ii) A summary of the actions taken by the State agency to resolve
the problems, deficiencies, or improper practices described in its
service delivery, and
(iii) A summary of any technical assistance the State monitor
advocate provided for the State agency and the local employment service
offices.
(5) A summary of the outreach efforts undertaken by all significant
and non-significant MSFW employment service offices.
(6) A summary of the State's actions taken under the complaint
system described in 20 CFR 658 subpart E, identifying any challenges,
complaint trends, findings from reviews of the complaint system,
trainings offered throughout the year, and steps taken to inform MSFWs
and employers, and farmworker advocacy groups about the complaint
system.
(7) A summary of how the State monitor advocate is working with
WIOA title I sec. 167 NFJP grantees and other organizations serving
farmworkers, employers and employer organizations, in the State, and an
assurance that the State monitor advocate is meeting at least quarterly
with representatives of these organizations.
(8) A summary of the statistical and other MSFW-related data and
reports gathered by State agencies and employment service offices for
the year, including an overview of the State monitor advocate's
involvement in the State agency's reporting systems.
(9) A summary of the training conducted for State agency personnel,
including local office personnel, on techniques for accurately
reporting data.
(10) A summary of activities related to the agricultural outreach
plan, and an explanation of how those activities helped the State reach
the goals and objectives described in the AOP. At the end of the 4-year
AOP cycle, the summary must include a synopsis of the State agency's
achievements over the previous 4 years to accomplish the goals set
forth in the AOP, and a description of the goals which were not
achieved and the steps the State agency will take to address those
deficiencies.
(11) For significant MSFW employment offices, a summary of the
functioning of the State's affirmative action staffing program under 20
CFR 653.111.
Sec. 653.109 Data collection and performance accountability measures.
State agencies must:
(a) Collect career service indicator data specified in WIOA title I
sec. 134(c)(2)(A)(xii).
(b) Collect data, in accordance with applicable ETA Reports and
Guidance, on:
(1) The number of MSFWs contacted through outreach activities;
(2) The number of MSFWs and non-MSFWs registered for career
services;
(3) The number of MSFWs referred to and placed in agricultural
jobs;
(4) The number of MSFWs referred to and placed in non-agricultural
jobs;
(5) The entered employment rate for MSFWs;
(6) The average earnings for MSFWs in both agricultural and non-
agricultural jobs;
(7) The employment retention rate for MSFWs;
(8) The number of MSFWs served who identified themselves as male,
female, African-American, Hispanic, American Indian, Asian, or Pacific
Islander;
(9) Agricultural clearance orders (including field checks), MSFW
complaints, and monitoring activities; and
(10) Any other data required by the Department.
(c) Provide necessary training to State agency personnel, including
local office personnel, on techniques for accurately reporting data;
(d) Collect and submit data on MSFWs required by the Unified State
Plan, as directed by the Department.
(e) Periodically verify data required to be collected under this
section, take necessary steps to ensure its validity, and submit the
data for verification to
[[Page 20944]]
the Department, as directed by the Department.
(f) Submit additional reports to the Department as directed.
(g) Meet equity indicators that address ES controllable services
and include, at a minimum, individuals referred to a job, receiving job
development, and referred to supportive or career services.
(h) Meet minimum levels of service in significant MSFW States. That
is, only significant MSFW State agencies will be required to meet
minimum levels of service to MSFWs. Minimum level of service indicators
must include, at a minimum, individuals placed in a job; individuals
placed long-term (150 days or more) in a non-agricultural job; a review
of significant MSFW local employment service offices; field checks
conducted, outreach contacts per week; and processing of complaints.
The determination of the minimum service levels required of significant
MSFW States for each year must be based on the following:
(1) Past State agency performance in serving MSFWs, as reflected in
on-site reviews and data collected under Sec. 653.109;
(2) The need for services to MSFWs in the following year, comparing
prior and projected levels of MSFW activity.
Sec. 653.110 Disclosure of data.
(a) State agencies must disclose to the public, on written request,
in conformance with applicable State and Federal law, the data
collected by State and local employment service offices pursuant to
Sec. 653.109, if possible within 10 working days after receipt of the
request.
(b) If a request for data held by a State agency is made to the ETA
national or regional office, the ETA must forward the request to the
State agency for response.
(c) If the State agency cannot supply the requested data within 10
business days after receipt of the request, the State agency must
respond to the requestor in writing, giving the reason for the delay
and specifying the date by which it expects to be able to comply.
(d) State agency intra-agency memoranda and reports (or parts
thereof) and memoranda and reports (or parts thereof) between the State
agency and the ETA, to the extent that they contain statements of
opinion rather than facts, may be withheld from public disclosure
provided the reason for withholding is given to the requestor in
writing. Similarly, documents or parts thereof, which, if disclosed,
would constitute an unwarranted invasion of personal or employer
privacy, or are otherwise privileged against disclosure, may also be
withheld provided the reason is given to the requestor in writing.
Sec. 653.111 State agency staffing requirements.
(a) The State agency must implement and maintain an affirmative
action program for staffing in significant MSFW one-stop centers, and
will employ ES staff in a manner facilitating the delivery of ES
services tailored to the special needs of MSFWs, including:
(1) The positioning of multilingual staff in offices serving a
significant number of Spanish-speaking or LEP participants; and
(2) The hiring of staff members from the MSFW community or members
of community-based migrant programs.
(b) The State agency must hire sufficient numbers of qualified,
permanent minority staff in significant MSFW employment service
offices. State agencies will determine whether a ``sufficient number''
of staff has been hired by conducting a comparison between the
characteristics of the staff and the workforce and determining if the
composition of the local office staff(s) is representative of the
racial and ethnic characteristics of the work force in the local
employment office service area(s). State agencies with significant MSFW
local employment service offices, must undertake special efforts to
recruit MSFWs and persons from MSFW backgrounds for its staff.
(1) Where qualified minority applicants are not available to be
hired as permanent staff, qualified minority part-time, provisional, or
temporary staff must be hired in accordance with State merit system
procedures, where applicable.
(2) If a local employment service office does not have a sufficient
number of qualified minority staff, the State agency must establish a
goal to achieve sufficient staffing at the local employment service
office. The State agency will also establish a reasonable timetable for
achieving the staffing goal by hiring or promoting available, qualified
staff in the under-represented categories. In establishing timetables,
the State agency must consider the vacancies anticipated through
expansion, contraction, and turnover in the office(s) and available
funds. All affirmative action programs must establish timetables that
are designed to achieve the staffing goal no later than 1 year after
the submission of the Unified or Combined State Plan or annual summary,
whichever is sooner. Once such goals have been achieved, the State
agency must submit a State Plan modification request to the Department
with the assurance that the requirements of paragraph (b) of this
section have been achieved.
(3) The State monitor advocates, regional monitor advocates, or the
national monitor advocate, as part of their regular reviews of State
agency compliance with these regulations, must monitor the extent to
which the State agency has complied with its affirmative action
program.
Subpart C-E--[Reserved]
Subpart F--Agricultural Recruitment System for U.S. Farmworkers
(ARS)
Sec. 653.500 Purpose and scope of subpart.
This subpart includes the requirements for the acceptance of
intrastate and interstate job clearance orders which seek U.S. workers
to perform farmwork on a temporary, less than year-round basis. Orders
seeking workers to perform farmwork on a year-round basis are not
subject to the requirements of this subpart. This section affects all
job orders for workers who are recruited through the employment service
interstate and intrastate clearance systems for less than year-round
farmwork, including both MSFWs and non-MSFW job seekers.
Sec. 653.501 Requirements for processing clearance orders.
(a) No local employment service office or State agency may place a
job order seeking workers to perform farmwork into intrastate or
interstate clearance unless:
(1) The local employment service office and employer have
attempted, and have not been able, to obtain sufficient workers within
the local labor market area, or
(2) The local employment service office anticipates a shortage of
local workers.
(b) Employment service office responsibilities. (1) Each employment
service office must ensure that the agricultural clearance form
prescribed by the Department (ETA Form 790 or its subsequently issued
form), and its attachments are complete when placing intrastate or
interstate clearance orders seeking farmworkers.
(2) All clearance orders must be posted in accordance with
applicable ETA guidance. If the job order for the local employment
service office incorporates offices beyond the local office commuting
area, the employment service office must suppress the employer
information in order to facilitate the orderly movement of workers
within the employment service system.
[[Page 20945]]
(3) Employment service staff must determine, through a preoccupancy
housing inspection performed by employment service staff or other
appropriate public agency, that the housing assured by the employer is
either available and meets the applicable housing standards or has been
approved for conditional access to the clearance system as set forth in
20 CFR 653.502; except that mobile range housing for sheepherders and
goatherders must meet existing Departmental guidelines and/or
applicable regulations.
(c) State agency responsibilities. (1) State agencies must ensure
that intrastate and interstate orders:
(i) Include the following language: ``In view of the statutorily
established basic function of the employment service as a no-fee labor
exchange, that is, as a forum for bringing together employers and job
seekers, neither the ETA nor the State agencies are guarantors of the
accuracy or truthfulness of information contained on job orders
submitted by employers. Nor does any job order accepted or recruited
upon by the employment service constitute a contractual job offer to
which the ETA or a State agency is in any way a party;''
(ii) Do not contain an unlawful discriminatory specification by
race, color, religion, national origin, sex, sexual orientation, gender
identity, age, disability, or genetic information;
(iii) Are signed by the employer; and
(iv) State all the material terms and conditions of the employment,
including:
(A) The crop;
(B) The nature of the work;
(C) The anticipated period and hours of employment;
(D) The anticipated starting and ending date of employment and the
anticipated number of days and hours per week for which work will be
available;
(E) The hourly wage rate or the piece rate estimated in hourly wage
rate equivalents for each activity and unit size;
(F) Any deductions to be made from wages;
(G) A specification of any non-monetary benefits to be provided by
the employer;
(H) Any hours, days or weeks for which work is guaranteed, and, for
each guaranteed week of work except as provided in paragraph (c)(3)(i)
of this section, the exclusive manner in which the guarantee may be
abated due to weather conditions or other acts of God beyond the
employer's control; and
(I) Any bonus or work incentive payments or other expenses which
will be paid by the employer in addition to the basic wage rate,
including the anticipated time period(s) within which such payments
will be made.
(2) State agencies must ensure that:
(i) The wages and working conditions offered are not less than the
prevailing wages and working conditions among similarly employed
farmworkers in the area of intended employment or the applicable
Federal or State minimum wage, whichever is higher. If the wages
offered are expressed as piece rates or as base rates and bonuses, the
employer must make the method of calculating the wage and supporting
materials available to employment service staff who must check if the
employer's calculation of the estimated hourly wage rate is reasonably
accurate and is not less than the prevailing wage rate or applicable
Federal or State minimum wage, whichever is higher; and
(ii) The employer has agreed to provide or pay for the
transportation of the workers and their families at or before the end
of the period of employment specified in the job order on at least the
same terms as transportation is commonly provided by employers in the
area of intended employment to farmworkers and their families recruited
from the same area of supply. Under no circumstances may the payment or
provision of transportation occur later than the departure time needed
to return home to begin the school year, in the case of any worker with
children 18 years old or younger, or be conditioned on the farmworker
performing work after the period of employment specified in the job
order.
(3) State agencies must ensure that the clearance order includes
the following assurances:
(i) The employer will provide to workers referred through the
clearance system the number of hours of work cited in paragraph
(c)(1)(iv)(D) of this section for the week beginning with the
anticipated date of need, unless the employer has amended the date of
need at least 10 working days prior to the original date of need
(pursuant to paragraph (c)(3)(iv) of this section) by so notifying the
order-holding office. The State agency must make a record of this
notification and must attempt to expeditiously inform referred workers
of the change.
(ii) No extension of employment beyond the period of employment
specified in the clearance order may relieve the employer from paying
the wages already earned, or if specified in the clearance order as a
term of employment, providing transportation or paying transportation
expenses to the worker's home.
(iii) The working conditions comply with applicable Federal and
State minimum wage, child labor, social security, health and safety,
farm labor contractor registration and other employment-related laws.
(iv) The employer will expeditiously notify the order-holding
office or State agency by emailing and telephoning immediately upon
learning that a crop is maturing earlier or later, or that weather
conditions, over-recruitment or other factors have changed the terms
and conditions of employment.
(v) The employer, if acting as a farm labor contractor (``FLC'') or
farm labor contractor employee (``FLCE'') on the order, has a valid
Federal FLC certificate or Federal FLCE identification card; and when
appropriate, any required State farm labor contractor certificate.
(vi) The availability of no cost or public housing which meets the
Federal standards and which is sufficient to house the specified number
of workers requested through the clearance system. This assurance must
cover the availability of housing for only those workers, and, when
applicable, family members who are unable to return to their residence
in the same day.
(vii) Outreach workers must have reasonable access to the workers
in the conduct of outreach activities pursuant to Sec. 653.107.
(viii) The job order contains all the material terms and conditions
of the job. The employer must assure this by signing the following
statement in the clearance order: ``This clearance order describes the
actual terms and conditions of the employment being offered by me and
contains all the material terms and conditions of the job.''
(4) If a State agency discovers that an employer's clearance order
contains a material misrepresentation, the State agency may initiate
the Discontinuation of Services as set forth in 20 CFR part 658,
subpart F.
(5) If there is a change to the anticipated date of need and the
employer fails to notify the order-holding office at least 10 working
days prior to the original date of need the employer must pay eligible
(pursuant to paragraph (d)(4) of this section) workers referred through
the clearance system the specified hourly rate of pay, or if the pay is
piece-rate, the higher of the Federal or State minimum wage for the
first week starting with the originally anticipated date of need or
provide alternative work if such alternative work is stated on the
clearance order. If an employer fails to comply under this
[[Page 20946]]
section the order holding office may notify DOL's Wage and Hour
Division for possible enforcement.
(d) Processing clearance orders. This section does not apply to
clearance orders that are attached to applications for foreign
temporary agricultural workers pursuant to 20 CFR 655 subpart B.
(1) The order-holding office must transmit an electronic copy of
the approved clearance order to the State agency. The State agency must
distribute additional electronic copies of the form with all
attachments (except that the State agency may, at its discretion,
delegate this distribution to the local office) as follows:
(i) At least one copy of the clearance order must be sent to each
of the State agencies selected for recruitment (areas of supply);
(ii) At least one copy of the clearance order must be sent to each
applicant-holding ETA regional office;
(iii) At least one copy of the clearance order must be sent to the
order-holding ETA regional office; and
(iv) At least one copy of the clearance order must be sent to the
Regional Farm Labor Coordinated Enforcement Committee and/or other
Occupational Safety and Health Administration and Wage and Hour
Division regional agricultural coordinators, and/or other committees as
appropriate in the area of employment.
(2) The local office may place an intrastate or interstate order
seeking workers to perform farmwork for a specific farm labor
contractor or for a worker preferred by an employer provided the order
meets employment service nondiscrimination criteria. The order would
not meet such criteria, for example, if it requested a ``white male
crew leader'' or ``any white male crew leader.''
(3) The ETA regional office must review and approve the order
within 10 working days of its receipt of the order, and the Regional
Administrator or his/her designee must approve the areas of supply to
which the order will be extended. Any denial by the Regional
Administrator or his/her designee must be in writing and state the
reasons for the denial.
(4) The applicant holding office must notify all referred
farmworkers, farm labor contractors on behalf of farmworkers, or family
heads on behalf of farmworker family members, to contact a local
employment service office, preferably the order-holding office, to
verify the date of need cited in the clearance order between nine and 5
working days prior to the original date of need cited in the clearance
order; and that failure to do so will disqualify the referred
farmworker from the first weeks' pay as described in paragraph
(c)(3)(i) of this section. The State agency must make a record of this
notification.
(5) If the worker referred through the clearance system contacts a
local employment service office (in any State) other than the order
holding office, that local employment service office must assist the
referred worker in contacting the order holding office on a timely
basis. Such assistance must include, if necessary, contacting the order
holding office by telephone or other timely means on behalf of the
worker referred through the clearance system.
(6) Local employment service office staff must assist all
farmworkers, upon request in their native language, to understand the
terms and conditions of employment set forth in intrastate and
interstate clearance orders and must provide such workers with
checklists in their native language showing wage payment schedules,
working conditions, and other material specifications of the clearance
order.
(7) If an order holding office learns that a crop is maturing
earlier than expected or that other material factors, including weather
conditions and recruitment levels, have changed since the date the
clearance order was accepted, the agency must immediately contact the
applicant holding office which must immediately inform crews and
families scheduled to report to the job site of the changed
circumstances and must adjust arrangements on behalf of such crews and
families.
(8) When there is a delay in the date of need, State agencies must
document notifications by employers and contacts by individual
farmworkers or crew leaders on behalf of farmworkers or family heads on
behalf of farmworker family members to verify the date of need.
(9) If weather conditions, over-recruitment or other conditions
have eliminated the scheduled job opportunities, the State agencies
involved must make every effort to place the workers in alternate job
opportunities as soon as possible, especially if the worker(s) is
already en-route or at the job site. Employment service office staff
must keep records of actions under this section.
(10) Applicant-holding offices must provide workers referred on
clearance orders with a checklist summarizing wages, working conditions
and other material specifications in the clearance order. Such
checklists, where necessary, must be in the workers' native language.
The checklist must include language notifying the worker that a copy of
the original clearance order is available upon request. State agencies
must use a standard checklist format provided by the Department (such
as in Form WH516 or a successor form).
(11) The applicant-holding office must give each referred worker a
copy of the list of worker's rights described in the Department's ARS
Handbook.
(12) If the labor supply State agency accepts a clearance order,
the State agency must actively recruit workers for referral. In the
event a potential labor supply State agency rejects a clearance order,
the reasons for rejection must be documented and submitted to the
Regional Administrator having jurisdiction over the State agency. The
Regional Administrator will examine the reasons for rejection, and, if
the Regional Administrator agrees, will inform the Regional
Administrator with jurisdiction over the order-holding State agency of
the rejection and the reasons. If the Regional Administrator who
receives the notification of rejection does not concur with the reasons
for rejection, that Regional Administrator will inform the national
monitor advocate, who, in consultation with the Administrator of ETA's
Office of Workforce Investment, will make a final determination on the
acceptance or rejection of the order.
Sec. 653.502 Conditional access to the agricultural recruitment
system.
(a) Filing requests for conditional access--(1) ``Noncriteria''
employers. Except as provided in paragraph (a)(2) of this section, an
employer whose housing does not meet applicable standards may file with
the local employment service office serving the area in which its
housing is located, a written request that its clearance orders be
conditionally allowed into the intrastate or interstate clearance
system, provided that the employer's request assures that its housing
will be in full compliance with the requirements of the applicable
housing standards at least 20 calendar days (giving the specific date)
before the housing is to be occupied.
(2) ``Criteria'' employers. If the request for conditional access
described in paragraph (a)(1) of this section is from an employer
filing a clearance order pursuant to an application for temporary alien
agricultural labor certification for H-2A workers under subpart B of
part 655 of this chapter, the request must be filed with the Certifying
Officer (CO) at the Department's Chicago National Processing Center
(NPC) designated by the Office of Foreign Labor Certification (OFLC)
Administrator to make determinations on applications for temporary
[[Page 20947]]
employment certification under the H-2A program.
(3) Assurance. The employer's request pursuant to paragraphs (a)(1)
or (2) of this section must contain an assurance that the housing will
be in full compliance with the applicable housing standards at least 20
calendar days (stating the specific date) before the housing is to be
occupied.
(b) Processing requests--(1) State agency processing. Upon receipt
of a written request for conditional access to the intrastate or
interstate clearance system under paragraph (a)(1) of this section, the
local employment service office must send the request to the State
agency, which, in turn, must forward it to the Regional Administrator.
(2) Regional office processing and determination. Upon receipt of a
request for conditional access pursuant to paragraph (b)(1) of this
section, the Regional Administrator must review the matter and, as
appropriate, must either grant or deny the request.
(c) Authorization. The authorization for conditional access to the
intrastate or interstate clearance system must be in writing, and must
state that although the housing does not comply with the applicable
standards, the employer's job order may be placed into intrastate or
interstate clearance until a specified date. The Regional Administrator
must send the authorization to the employer and must send copies (hard
copy or electronic) to the appropriate State agency and local
employment service office. The employer must submit and the local
employment service office must attach copies of the authorization to
each of the employer's clearance orders which is placed into intrastate
or interstate clearance.
(d) Notice of denial. If the Regional Administrator denies the
request for conditional access to the intrastate or interstate
clearance system they must provide written notice to the employer, the
appropriate State agency, and the local employment service office,
stating the reasons for the denial.
(e) Inspection. The local employment service office serving the
area containing the housing of any employer granted conditional access
to the intrastate or interstate clearance system must assure that the
housing is inspected no later than the date by which the employer has
promised to have its housing in compliance with the applicable housing
standards. An employer, however, may request an earlier preliminary
inspection. If, on the date set forth in the authorization, the housing
is not in full compliance with the applicable housing standards as
assured in the request for conditional access, the local employment
service office must afford the employer 5 calendar days to bring the
housing into full compliance. After the 5-calendar-day period, if the
housing is not in full compliance with the applicable housing standards
as assured in the request for conditional access, the local employment
service office immediately:
(1) Must notify the RA, or the NPC designated by the Regional
Administrator;
(2) Must remove the employer's clearance orders from intrastate and
interstate clearance; and
(3) Must, if workers have been recruited against these orders, in
cooperation with the employment service agencies in other States, make
every reasonable attempt to locate and notify the appropriate crew
leaders or workers, and to find alternative and comparable employment
for the workers.
Sec. 653.503 Field checks.
(a) If a worker is placed on a clearance order, the State agency
must notify the employer in writing that the State agency, through its
local employment service offices, and/or Federal staff, must conduct
random, unannounced field checks to determine and document whether
wages, hours, and working and housing conditions are being provided as
specified in the clearance order.
(b) The State agency must conduct field checks on at least 25
percent of all agricultural worksites where placements have been made
through the intrastate or interstate clearance system or at 100 percent
of the worksites where less than 10 employment service placements have
been made. This requirement must be met on a quarterly basis.
(c) Field checks must include visit(s) to the worksite at a time
when workers are present. When conducting field checks, local
employment service staff must consult both the employees and the
employer to ensure compliance with the full terms and conditions of
employment.
(d) If State agency or Federal personnel observe or receive
information, or otherwise have reason to believe that conditions are
not as stated in the clearance order or that an employer is violating
an employment-related law, the State agency must document the finding
and attempt informal resolution. If the matter has not been resolved
within 5 working days, the State agency must initiate the
Discontinuation of Services as set forth at 20 CFR part 658 subpart F
and must refer apparent violations of employment-related laws to
appropriate enforcement agencies in writing.
(e) State agencies may enter into formal or informal arrangements
with appropriate State and Federal enforcement agencies where the
enforcement agency staff may conduct field checks instead of and on
behalf of State agency personnel. The agreement may include the sharing
of information and any actions taken regarding violations of the terms
and conditions of the employment as stated in the clearance order and
any other violations of employment related laws. An enforcement agency
field check must satisfy the requirement for State agency field checks
where all aspects of wages, hours, working and housing conditions have
been reviewed by the enforcement agency. The State agency must
supplement enforcement agency efforts with field checks focusing on
areas not addressed by enforcement agencies.
(g) ES staff must keep records of all field checks.
PART 654--SPECIAL RESPONSIBILITIES OF THE EMPLOYMENT SERVICE SYSTEM
0
20. Revise the authority citation for part 654 to read as follows:
Authority: 29 U.S.C. 49k; 8 U.S.C. 1188(c)(4); 41 Op.A.G. 406
(1959).
0
21. Revise subpart E of part 654 to read as follows:
Subpart E--Housing for Agricultural Workers
Purpose and Applicability
Sec.
654.400 Scope and purpose.
654.401 Applicability.
654.402 Variances.
654.403 [Reserved].
Housing Standards
654.404 Housing site.
654.405 Water supply.
654.406 Excreta and liquid waste disposal.
654.407 Housing.
654.408 Screening.
654.409 Heating.
654.410 Electricity and lighting.
654.411 Toilets.
654.412 Bathing, laundry, and hand washing.
654.413 Cooking and eating facilities.
654.414 Garbage and other refuse.
654.415 Insect and rodent control.
654.416 Sleeping facilities.
654.417 Fire, safety, and first aid.
Subpart E--Housing for Agricultural Workers
Purpose and Applicability
Sec. 654.400 Scope and purpose.
(a) This subpart sets forth the Department's Employment and
Training Administration (ETA) standards for agricultural housing and
variances.
[[Page 20948]]
Local employment service offices, as part of the State employment
service agencies and in cooperation with the United States Employment
Service, assist employers in recruiting agricultural workers from
places outside the area of intended employment. The experiences of the
employment service agencies indicate that employees so referred have on
many occasions been provided with inadequate, unsafe, and unsanitary
housing conditions. To discourage this practice, it is the policy of
the Federal-State employment service system to deny its intrastate and
interstate recruitment services to employers until the State employment
service agency has ascertained that the employer's housing meets
certain standards.
(b) To implement this policy, Sec. 653.501 of this chapter
provides that recruitment services must be denied unless the employer
has signed an assurance that if the workers are to be housed, a
preoccupancy inspection has been conducted and the employment service
staff has ascertained that, with respect to intrastate or interstate
clearance orders, the employer's housing meets the full set of
standards set forth at 29 CFR 1910.142 or 20 CFR 654 subpart E, except
that mobile range housing for sheepherders or goatherders must meet
existing Departmental guidelines and/or applicable regulations.
(c) Per Sec. 654.401(a) below, this subpart is effective only
until [ONE YEAR AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER].
Sec. 654.401 Applicability.
(a) Housing that was completed or under construction prior to April
3, 1980 or was under a signed contract for construction prior to March
4, 1980 may continue to follow the full set of the Department's ETA
standards set forth in this subpart until the date specified in
paragraph (b) of this section.
(b) On [ONE YEAR AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE
FEDERAL REGISTER] all housing for agricultural workers governed by the
standards set forth in this subpart must comply with the Occupational
Safety and Health Administration's (OSHA) housing standards set forth
in 29 CFR 1910.142.
(c) To effectuate the transition to the OSHA standards,
agricultural housing to which this subpart applies and which complies
with the full set of standards and provisions set forth in this subpart
must be considered to be in compliance with the OSHA temporary labor
camp standards at 29 CFR 1910.142 until [ONE YEAR AFTER DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
Sec. 654.402 Variances.
(a) An employer may apply for a structural variance from a specific
standard(s) in this subpart by filing a written application for such a
variance with the local employment service office serving the area in
which the housing is located. This application must:
(1) Clearly specify the standard(s) from which the variance is
desired;
(2) Provide adequate justification that the variance is necessary
to obtain a beneficial use of an existing facility, and to prevent a
practical difficulty or unnecessary hardship; and
(3) Clearly set forth the specific alternative measures which the
employer has taken to protect the health and safety of workers and
adequately show that such alternative measures have achieved the same
result as the standard(s) from which the employer desires the variance.
(b) Upon receipt of a written request for a variance under
paragraph (a) of this section, the local employment service office must
send the request to the State office which, in turn, must forward it to
the ETA Regional Administrator (RA). The RA must review the matter and,
after consultation with OSHA, must either grant or deny the request for
a variance.
(c) The variance granted by the RA must be in writing, must state
the particular standard(s) involved, and must state as conditions of
the variance the specific alternative measures which have been taken to
protect the health and safety of the workers. The RA must send the
approved variance to the employer and must send copies to OSHA's
Regional Administrator, the Regional Administrator of the Wage and Hour
Division (WHD), and the appropriate State agency and the local
employment service office. The employer must submit and the local
employment service office must attach copies of the approved variance
to each of the employer's job orders which is placed into intrastate or
interstate clearance.
(d) If the RA denies the request for a variance, the RA must
provide written notice stating the reasons for the denial to the
employer, the appropriate State agency and the local employment service
office. The notice must also offer the employer an opportunity to
request a hearing before a DOL Hearing Officer, provided the employer
requests such a hearing from the RA within 30 calendar days of the date
of the notice. The request for a hearing must be handled in accordance
with the complaint procedures set forth at Sec. Sec. 658.424 and
658.425 of this chapter.
(e) The procedures of paragraphs (a) through (d) of this section
only apply to an employer who has chosen, as evidenced by its written
request for a variance, to comply with the ETA housing standards at
Sec. Sec. 654.404-654.417 of this subpart.
(f) All requests and/or approvals for variance under this section
will expire on [ONE YEAR AFTER DATE OF PUBLICATION OF THE FINAL RULE IN
THE FEDERAL REGISTER]. After that date no requests for variance will be
accepted by the Department.
Sec. 654.403 [Reserved].
Housing Standards
Sec. 654.404 Housing site.
(a) Housing sites must be well drained and free from depressions in
which water may stagnate. They must be located where the disposal of
sewage is provided in a manner which neither creates nor is likely to
create a nuisance, or a hazard to health.
(b) Housing must not be subject to, or in proximity to conditions
that create or are likely to create offensive odors, flies, noise,
traffic, or any similar hazards.
(c) Grounds within the housing site must be free from debris,
noxious plants (poison ivy, etc.) and uncontrolled weeds or brush.
(d) The housing site must provide a space for recreation reasonably
related to the size of the facility and the type of occupancy.
Sec. 654.405 Water supply.
(a) An adequate and convenient supply of water that meets the
standards of the State health authority must be provided.
(b) A cold water tap must be available within 100 feet of each
individual living unit when water is not provided in the unit. Adequate
drainage facilities must be provided for overflow and spillage.
(c) Common drinking cups are not permitted.
Sec. 654.406 Excreta and liquid waste disposal.
(a) Facilities must be provided and maintained for effective
disposal of excreta and liquid waste. Raw or treated liquid waste may
not be discharged or allowed to accumulate on the ground surface.
(b) Where public sewer systems are available, all facilities for
disposal of excreta and liquid wastes must be connected thereto.
(c) Where public sewers are not available, a subsurface septic
tank-
[[Page 20949]]
seepage system or other type of liquid waste treatment and disposal
system, privies or portable toilets must be provided. Any requirements
of the State health authority must be complied with.
Sec. 654.407 Housing.
(a) Housing must be structurally sound, in good repair, in a
sanitary condition and must provide protection to the occupants against
the elements.
(b) Housing must have flooring constructed of rigid materials,
smooth finished, readily cleanable, and so located as to prevent the
entrance of ground and surface water.
(c) The following space requirements must be provided:
(1) For sleeping purposes only in family units and in dormitory
accommodations using single beds, not less than 50 square feet of floor
space per occupant;
(2) For sleeping purposes in dormitory accommodations using double
bunk beds only, not less than 40 square feet per occupant;
(3) For combined cooking, eating, and sleeping purposes not less
than 60 square feet of floor space per occupant.
(d) Housing used for families with one or more children over 6
years of age must have a room or partitioned sleeping area for the
husband and wife. The partition must be of rigid materials and
installed so as to provide reasonable privacy.
(e) Separate sleeping accommodations must be provided for each sex
or each family.
(f) Adequate and separate arrangements for hanging clothing and
storing personal effects for each person or family must be provided.
(g) At least one-half of the floor area in each living unit must
have a minimum ceiling height of 7 feet. No floor space may be counted
toward minimum requirements where the ceiling height is less than 5
feet.
(h) Each habitable room (not including partitioned areas) must have
at least one window or skylight opening directly to the out-of-doors.
The minimum total window or skylight area, including windows in doors,
must equal at least 10 percent of the usable floor area. The total
openable area must equal at least 45 percent of the minimum window or
skylight area required, except where comparably adequate ventilation is
supplied by mechanical or some other method.
Sec. 654.408 Screening.
(a) All outside openings must be protected with screening of not
less than 16 mesh.
(b) All screen doors must be tight fitting, in good repair, and
equipped with self-closing devices.
Sec. 654.409 Heating.
(a) All living quarters and service rooms must be provided with
properly installed, operable heating equipment capable of maintaining a
temperature of at least 68 [deg]F if during the period of normal
occupancy the temperature in such quarters falls below 68 [deg]F.
(b) Any stoves or other sources of heat utilizing combustible fuel
must be installed and vented in such a manner as to prevent fire
hazards and a dangerous concentration of gases. No portable heaters
other than those operated by electricity may be provided. If a solid or
liquid fuel stove is used in a room with wooden or other combustible
flooring, there must be a concrete slab, insulated metal sheet, or
other fireproof material on the floor under each stove, extending at
least 18 inches beyond the perimeter of the base of the stove.
(c) Any wall or ceiling within 18 inches of a solid or liquid fuel
stove or a stovepipe must be of fireproof material. A vented metal
collar must be installed around a stovepipe, or vent passing through a
wall, ceiling, floor or roof.
(d) When a heating system has automatic controls, the controls must
be of the type which cut off the fuel supply upon the failure or
interruption of the flame or ignition, or whenever a predetermined safe
temperature or pressure is exceeded.
Sec. 654.410 Electricity and lighting.
(a) All housing sites must be provided with electric service.
(b) Each habitable room and all common use rooms, and areas such
as: laundry rooms, toilets, privies, hallways, stairways, etc., must
contain adequate ceiling or wall-type light fixtures. At least one
wall-type electrical convenience outlet must be provided in each
individual living room.
(c) Adequate lighting must be provided for the yard area, and
pathways to common use facilities.
(d) All wiring and lighting fixtures must be installed and
maintained in a safe condition.
Sec. 654.411 Toilets.
(a) Toilets must be constructed, located and maintained so as to
prevent any nuisance or public health hazard.
(b) Water closets or privy seats for each sex must be in the ratio
of not less than one such unit for each 15 occupants, with a minimum of
one unit for each sex in common use facilities.
(c) Urinals, constructed of nonabsorbent materials, may be
substituted for men's toilet seats on the basis of one urinal or 24
inches of trough-type urinal for one toilet seat up to a maximum of
one-third of the required toilet seats.
(d) Except in individual family units, separate toilet
accommodations for men and women must be provided. If toilet facilities
for men and women are in the same building, they must be separated by a
solid wall from floor to roof or ceiling. Toilets must be distinctly
marked ``men'' and ``women'' in English and in the native language of
the persons expected to occupy the housing.
(e) Where common use toilet facilities are provided, an adequate
and accessible supply of toilet tissue, with holders, must be
furnished.
(f) Common use toilets and privies must be well lighted and
ventilated and must be clean and sanitary.
(g) Toilet facilities must be located within 200 feet of each
living unit.
(h) Privies may not be located closer than 50 feet from any living
unit or any facility where food is prepared or served.
(i) Privy structures and pits must be fly tight. Privy pits must
have adequate capacity for the required seats.
Sec. 654.412 Bathing, laundry, and hand washing.
(a) Bathing and hand washing facilities, supplied with hot and cold
water under pressure, must be provided for the use of all occupants.
These facilities must be clean and sanitary and located within 200 feet
of each living unit.
(b) There must be a minimum of 1 showerhead per 15 persons.
Showerheads must be spaced at least 3 feet apart, with a minimum of 9
square feet of floor space per unit. Adequate, dry dressing space must
be provided in common use facilities. Shower floors must be constructed
of nonabsorbent nonskid materials and sloped to properly constructed
floor drains. Except in individual family units, separate shower
facilities must be provided each sex. When common use shower facilities
for both sexes are in the same building they must be separated by a
solid nonabsorbent wall extending from the floor to ceiling, or roof,
and must be plainly designated ``men'' or ``women'' in English and in
the native language of the persons expected to occupy the housing.
(c) Lavatories or equivalent units must be provided in a ratio of 1
per 15 persons.
(d) Laundry facilities, supplied with hot and cold water under
pressure, must
[[Page 20950]]
be provided for the use of all occupants. Laundry trays or tubs must be
provided in the ratio of 1 per 25 persons. Mechanical washers may be
provided in the ratio of 1 per 50 persons in lieu of laundry trays,
although a minimum of 1 laundry tray per 100 persons must be provided
in addition to the mechanical washers.
Sec. 654.413 Cooking and eating facilities.
(a) When workers or their families are permitted or required to
cook in their individual unit, a space must be provided and equipped
for cooking and eating. Such space must be provided with:
(1) A cookstove or hot plate with a minimum of two burners;
(2) Adequate food storage shelves and a counter for food
preparation;
(3) Provisions for mechanical refrigeration of food at a
temperature of not more than 45 [deg]F;
(4) A table and chairs or equivalent seating and eating
arrangements, all commensurate with the capacity of the unit; and
(5) Adequate lighting and ventilation.
(b) When workers or their families are permitted or required to
cook and eat in a common facility, a room or building separate from the
sleeping facilities must be provided for cooking and eating. Such room
or building must be provided with:
(1) Stoves or hot plates, with a minimum equivalent of two burners,
in a ratio of 1 stove or hot plate to 10 persons, or 1 stove or hot
plate to 2 families;
(2) Adequate food storage shelves and a counter for food
preparation;
(3) Mechanical refrigeration for food at a temperature of not more
than 45 [deg]F.;
(4) Tables and chairs or equivalent seating adequate for the
intended use of the facility;
(5) Adequate sinks with hot and cold water under pressure;
(6) Adequate lighting and ventilation; and
(7) Floors must be of nonabsorbent, easily cleaned materials.
(c) When central mess facilities are provided, the kitchen and mess
hall must be in proper proportion to the capacity of the housing and
must be separate from the sleeping quarters. The physical facilities,
equipment and operation must be in accordance with provisions of
applicable State codes.
(d) Wall surface adjacent to all food preparation and cooking areas
must be of nonabsorbent, easily cleaned material. In addition, the wall
surface adjacent to cooking areas must be of fire-resistant material.
Sec. 654.414 Garbage and other refuse.
(a) Durable, fly-tight, clean containers in good condition of a
minimum capacity of 20 gallons, must be provided adjacent to each
housing unit for the storage of garbage and other refuse. Such
containers must be provided in a minimum ratio of 1 per 15 persons.
(b) Provisions must be made for collection of refuse at least twice
a week, or more often if necessary. The disposal of refuse, which
includes garbage, must be in accordance with State and local law.
Sec. 654.415 Insect and rodent control.
Housing and facilities must be free of insects, rodents, and other
vermin.
Sec. 654.416 Sleeping facilities.
(a) Sleeping facilities must be provided for each person. Such
facilities must consist of comfortable beds, cots, or bunks, provided
with clean mattresses.
(b) Any bedding provided by the housing operator must be clean and
sanitary.
(c) Triple deck bunks may not be provided.
(d) The clear space above the top of the lower mattress of a double
deck bunk and the bottom of the upper bunk must be a minimum of 27
inches. The distance from the top of the upper mattress to the ceiling
must be a minimum of 36 inches.
(e) Beds used for double occupancy may be provided only in family
accommodations.
Sec. 654.417 Fire, safety, and first aid.
(a) All buildings in which people sleep or eat must be constructed
and maintained in accordance with applicable State or local fire and
safety laws.
(b) In family housing and housing units for less than 10 persons,
of one story construction, two means of escape must be provided. One of
the two required means of escape may be a readily accessible window
with an openable space of not less than 24 x 24 inches.
(c) All sleeping quarters intended for use by 10 or more persons,
central dining facilities, and common assembly rooms must have at least
two doors remotely separated so as to provide alternate means of escape
to the outside or to an interior hall.
(d) Sleeping quarters and common assembly rooms on the second story
must have a stairway, and a permanent, affixed exterior ladder or a
second stairway.
(e) Sleeping and common assembly rooms located above the second
story must comply with the State and local fire and building codes
relative to multiple story dwellings.
(f) Fire extinguishing equipment must be provided in a readily
accessible place located not more than 100 feet from each housing unit.
Such equipment must provide protection equal to a 2\1/2\ gallon stored
pressure or 5-gallon pump-type water extinguisher.
(g) First aid facilities must be provided and readily accessible
for use at all time. Such facilities must be equivalent to the 16 unit
first aid kit recommended by the American Red Cross, and provided in a
ratio of 1 per 50 persons.
(h) No flammable or volatile liquids or materials must be stored in
or adjacent to rooms used for living purposes, except for those needed
for current household use.
(i) Agricultural pesticides and toxic chemicals may not be stored
in the housing area.
0
22. Revise part 658 to read as follows:
PART 658--ADMINISTRATIVE PROVISIONS GOVERNING THE EMPLOYMENT
SERVICE SYSTEM
Subpart A-D--[Reserved]
Subpart E--Employment Service and Employment-Related Law Complaint
System (Complaint System)
Sec.
658.400 Purpose and scope of subpart.
Complaints Filed at the Local and State Level
658.410 Establishment of local and State complaint systems.
658.411 Action on complaints.
658.417 State hearings.
658.418 Decision of the State hearing official.
658.419 Apparent violations.
When a Complaint Rises to the Federal Level
658.420 Responsibilities of the Employment and Training
Administration regional office.
658.421 Handling of employment service regulation-related
complaints.
658.422 Handling of employment-related law complaints by the
Regional Administrator.
658.424 Proceedings before the Office of Administrative Law Judges.
658.425 Decision of Department of Labor Administrative Law Judge.
658.426 Complaints against the United States Employment Service.
Subpart F--Discontinuation of Services to Employers by the Employment
Service System
658.500 Scope and purpose of subpart.
658.501 Basis for discontinuation of services.
658.502 Notification to employers.
658.503 Discontinuation of services.
658.504 Reinstatement of services.
[[Page 20951]]
Subpart G--Review and Assessment of State Agency Compliance With
Employment Service Regulations
658.600 Scope and purpose of subpart.
658.601 State agency responsibility.
658.602 Employment and Training Administration National Office
responsibility.
658.603 Employment and Training Administration regional office
responsibility.
658.604 Assessment and evaluation of program performance data.
658.605 Communication of findings to State agencies.
Subpart H--Federal Application of Remedial Action to State Agencies
658.700 Scope and purpose of subpart.
658.701 Statements of policy.
658.702 Initial action by the Regional Administrator.
658.703 Emergency corrective action.
658.704 Remedial actions.
658.705 Decision to decertify.
658.706 Notice of decertification.
658.707 Requests for hearings.
658.708 Hearings.
658.709 Conduct of hearings.
658.710 Decision of the Administrative Law Judge.
658.711 Decision of the Administrative Review Board.
Authority: Pub. L. 113-128 secs. 189, 503; Wagner-Peyser Act,
as amended by Pub. L. 113-128 secs. 302-308, 29 U.S.C. 49 et seq.
Subpart A-D--[Reserved]
Subpart E--Employment Service and Employment-Related Law Complaint
System (Complaint System)
Sec. 658.400 Purpose and scope of subpart.
(a) This subpart sets forth the regulations governing the Complaint
System for the employment service system at the State and Federal
levels. Specifically, the Complaint System handles complaints against
an employer about the specific job to which the applicant was referred
through the employment service system and complaints involving the
failure to comply with the employment service regulations under this
part. As noted below, this subpart only covers employment service-
related complaints made within 2 years of the alleged violation.
(b) Any complaints alleging violations under the Unemployment
Insurance program, under WIOA title I programs, or complaints by
veterans alleging employer violations of the mandatory listing
requirements under 38 U.S.C. 4212 are not covered by this subpart,
rather they are referred to the appropriate administering agency which
would follow the procedures set forth in the respective regulations.
(c) The Complaint System also accepts, refers, and, under certain
circumstances, tracks complaints involving employment-related laws as
defined in 20 CFR 651.10.
Complaints Filed at the Local and State Level
Sec. 658.410 Establishment of local and State complaint systems.
(a) Each State Workforce Agency (SWA) must establish and maintain a
Complaint System pursuant to this subpart.
(b) The State Administrator must have overall responsibility for
the operation of the Complaint System. At the local employment service
office level the manager must be responsible for the operation of the
Complaint System.
(c) SWAs must ensure that centralized control procedures are
established for the processing of complaints. The manager of the local
employment service office and the SWA Administrator must ensure that a
central complaint log is maintained, listing all complaints taken by
the local employment service office or the SWA, and specifying for each
complaint:
(1) The name of the complainant;
(2) The name of the respondent (employer or State agency);
(3) The date the complaint is filed;
(4) Whether the complaint is by or on behalf of an MSFW;
(5) Whether the complaint concerns an employment-related law or the
employment services regulations; and
(6) The action taken and whether the complaint has been resolved.
(d) State agencies must ensure that information pertaining to the
use of the Complaint System is publicized, which must include, but is
not limited to, the prominent display of an ETA-approved Complaint
System poster in each one-stop center.
(e) Each local employment service office must ensure that there is
appropriate staff available during regular office hours to take
complaints.
(f) Complaints may be accepted in any local employment service
office of the State employment service agency, or by a State Workforce
Agency, or elsewhere by an outreach worker.
(g) All complaints filed through the local employment service
office must be handled by a trained Complaint System representative.
(h) All complaints received by a SWA must be assigned to a State
agency official designated by the State Administrator, provided that
the State agency official designated to handle MSFW complaints must be
the State monitor advocate (SMA).
(i) State agencies must ensure that any action taken by the
Complaint System representative, including referral, on a complaint
from an MSFW is fully documented containing all relevant information,
including a notation of the type of each complaint pursuant to
Department guidance, a copy of the original complaint form, a copy of
any employment service related reports, any relevant correspondence, a
list of actions taken, a record of pertinent telephone calls and all
correspondence relating thereto.
(j) Within 1 month after the end of the calendar quarter, the
employment service office manager must transmit an electronic copy of
the quarterly Complaint System log described in paragraph (c) of this
section to the SMA. These logs must be made available to the Department
upon request.
(k) The appropriate SWA or local employment office representative
handling a complaint must offer to assist the complainant through the
provision of appropriate services.
(l) The State Administrator must establish a referral system for
cases where a complaint is filed alleging a violation that occurred in
the same State but through a different local employment service office.
(m) Follow-up on unresolved complaints. When a complaint is
submitted or referred to a SWA, the Complaint System representative
(where the complainant is an MSFW, the Complaint System representative
will be the SMA), must follow-up monthly regarding MSFW complaints and
quarterly regarding non-MSFW complaints, and must inform the
complainant of the status of the complaint periodically.
Sec. 658.411 Action on complaints.
(a) Filing complaints. (1) Whenever an individual indicates an
interest in filing a complaint with a local employment service office
or SWA representative, or an outreach worker, the individual receiving
the complaint must offer to explain the operation of the Complaint
System and must offer to take the complaint in writing.
(2) During the initial discussion with the complainant, the staff
taking the complaint must:
(i) Make every effort to obtain all the information he/she
perceives to be necessary to investigate the complaint;
(ii) Request that the complainant indicate all of the physical
addresses, email, and telephone numbers through which he/she might be
contacted during the investigation of the complaint;
(iii) Request that the complainant contact the Complaint System
[[Page 20952]]
representative before leaving the area if possible, and explain the
need to maintain contact during the investigation.
(3) The staff must ensure that the complainant submits the
complaint on the Complaint/Referral Form prescribed or approved by the
Department. The Complaint/Referral Form must be used for all
complaints, including complaints about unlawful discrimination, except
as provided in paragraph (a)(4) of this section. The staff must offer
to assist the complainant in filling out the form, and must do so if
the complainant desires such assistance. If the complainant also
represents several other complainants, all such complainants must be
named on the Complaint/Referral Form. The complainant must sign the
completed form in writing or electronically. The identity of the
complainant(s) and any persons who furnish information relating to, or
assisting in, an investigation of a complaint must be kept confidential
to the maximum extent possible, consistent with applicable law and a
fair determination of the complaint. A copy of the completed Complaint/
Referral Form must be given to the complainant(s), and the complaint
form must be given to the appropriate Complaint System representative
described in Sec. 658.410 (g).
(4) Any complaint in a reasonable form (letter or email) which is
signed by the complainant and includes sufficient information to
initiate an investigation must be treated as if it were a properly
completed Complaint/Referral Form filed in person. A letter (via hard
copy or email) confirming that the complaint was received must be sent
to the complainant and the document must be sent to the appropriate
Complaint System representative. The Complaint System representative
must request additional information from the complainant if the
complaint does not provide sufficient information to investigate the
matter expeditiously.
(b) Complaints regarding an employment-related law. (1) When a
complaint is filed regarding an employment-related law with a local
employment service office or a SWA the office must determine if the
complainant is an MSFW.
(i) If the complainant is a non-MSFW, the office must immediately
refer the complainant to the appropriate enforcement agency, another
public agency, a legal aid organization, and/or a consumer advocate
organization, as appropriate, for assistance. Upon completing the
referral the local or State representative is not required to follow-up
with the complainant.
(ii) If the complainant is a MSFW, the local employment service
office or SWA Complaint System representative must:
(A) Take from the MSFW or his/her representative, in writing (hard
copy or electronic), the complaint(s) describing the alleged
violation(s) of the employment-related law(s);
(B) Attempt to resolve the issue at the local level, except in
cases where the complaint was submitted to the SWA and the SMA
determines that he/she must take immediate action. Concurrently, the
representative must offer to refer the MSFW to other employment
services should the MSFW be interested.
(C) If the issue is not resolved within 5 business days, the
representative must determine if the complaint should be referred to
the appropriate enforcement agency, another public agency, a legal aid
organization, or a consumer advocate organization, as appropriate, for
further assistance.
(D) If the local employment service office or SWA Complaint System
representative determines that the complaint should be referred to a
State or Federal agency, he/she must refer the complaint to the SMA who
must immediately refer the complaint to the appropriate enforcement
agency for prompt action.
(E) If the complaint was referred to the SMA under paragraph
(b)(1)(ii)(D) of this section, the representative must provide the
SMA's contact information to the complainant. The SMA must notify the
complainant of the enforcement agency to which the complaint was
referred.
(2) If an enforcement agency makes a final determination that the
employer violated an employment-related law and the complaint is
connected to a job order, the SWA must initiate procedures for
discontinuation of services immediately in accordance with subpart F.
If this occurs, the SWA must notify the complainant and the employer of
this action.
(c) Complaints alleging a violation of rights under the Equal
Employment Opportunity Commission Regulations. (1) All complaints
received by a local employment service office alleging unlawful
discrimination by race, color, religion, national origin, sex, sexual
orientation, gender identity, age, disability, or genetic information,
as well as reprisal for protected activity, the local Complaint System
representative must refer the complaint to a local employment service
Equal Opportunity (EO) representative and must notify the complainant
of the referral in writing.
(2) If the local employment service office does not have an EO
representative, the complaint must be sent to the SWA for assignment to
the State EO representative or, where appropriate, handled in
accordance with the procedures set forth at 29 CFR part 31.
(3) All such complaints initially received by the State Agency must
be assigned to the State EO and, where appropriate, handled in
accordance with the procedures set forth at 29 CFR part 31.
(4) Regardless of whether the complaint is initially received or
referred to the State agency, the State EO representative must
determine if the complaint is alleging discrimination by an employer.
If so, the State EO representative must refer the complaint to the
Equal Employment Opportunity Commission (EEOC) or another appropriate
enforcement agency. Complaints not referred must be subject to the
hearing and appeal rights provided in this subpart. The Complaint
System representative must notify the complainant of the referral in
writing.
(d) Complaints regarding the Employment Services Regulations (ES
Complaints). (1) When an ES complaint is filed with a local employment
service office or a SWA the following procedures apply:
(i) When an ES complaint is filed against an employer, the proper
office to handle the complaint is the local employment service office
serving the area in which the employer is located.
(ii) When a complaint is against an employer in another State or
against another SWA:
(A) The local employment service office or SWA receiving the
complaint must send, after ensuring that the Complaint/Referral Form is
adequately completed, a copy of the Complaint/Referral Form and copies
of any relevant documents to the SWA in the other State. Copies of the
referral letter must be sent to the complainant, and copies of the
complaint and referral letter must be sent to the ETA Regional
Office(s) with jurisdiction over the transferring and receiving State
agencies. All such copies must be sent via hard copy or electronic
mail.
(B) The SWA receiving the complaint must handle the complaint as if
it had been initially filed with that SWA.
(C) The ETA regional office with jurisdiction over the receiving
SWA must follow-up with it to ensure the complaint is handled in
accordance with these regulations.
(D) If the complaint is against more than one SWA, the complaint
must so clearly state.
[[Page 20953]]
(The complaint must be processed as separate complaints and must be
handled according to procedures at paragraph (d) of this section.)
(iii) When an ES complaint is filed against a local employment
service office, the proper office to handle the complaint is the local
employment service office serving the area in which the alleged
violation occurred.
(iv) When an ES complaint is filed against more than one local
employment service office and is in regard to an alleged agency-wide
violation the SWA representative or his/her designee must process the
complaint.
(v) When a complaint is filed alleging a violation that occurred in
the same State but through a different local employment service office,
the local employment service office where the complaint is filed must
ensure that the Complaint/Referral Form is adequately completed and
send the form to the appropriate local employment service office for
tracking, further referral if necessary, and follow-up. A copy of the
referral letter must be sent to the complainant via hard copy or
electronic mail.
(2)(i) If a complaint regarding the employment services regulations
is filed in a local employment service office by either a non-MSFW or
MSFW, or their representatives, the appropriate local employment
service office Complaint System representative must investigate and
attempt to resolve the complaint immediately upon receipt.
(ii) If resolution has not been achieved to the satisfaction of the
complainant within 15 working days after receipt of the complaint, or 5
working days with respect to complaints filed by or on behalf of MSFWs,
the Complaint System representative must send the complaint to the SWA
for resolution or further action, except that if the local employment
service office has made a written request (via hard copy or electronic
mail) for information pursuant to paragraph (e)(3) of this section.
These time periods do not apply until the complainant's response is
received in accordance with paragraph (e)(3) of this section.
(iii) The local employment service office must notify the
complainant and the respondent, in writing (via hard copy or electronic
mail), of the determination (pursuant to paragraph(d)(5) of this
section) of its investigation under paragraph (d)(2)(i) of this
section, or of the referral to the SWA (if referred).
(3) When a non-MSFW or his/her representative files a complaint
regarding the employment service regulations with a SWA, or when a non-
MSFW complaint is referred from a local employment office the following
procedures apply:
(i) If the complaint is not transferred to an enforcement agency
under paragraph (b)(1)(i) of this section the Complaint System
representative must investigate and attempt to resolve the complaint
immediately upon receipt.
(ii) If resolution at the SWA level has not been accomplished
within 30 working days after the complaint was received by the SWA,
whether the complaint was received directly or from a local employment
service office pursuant to paragraph (d)(2)(ii) of this section, the
SWA must make a written determination regarding the complaint and must
send electronic copies to the complainant and the respondent except if
the SWA has made a written request for information pursuant to
paragraph (e)(3) of this section, this time period does not apply until
the complainant's response is received in accordance with paragraph
(e)(3) of this section. The determination must follow the procedures
set forth in paragraph (d)(5) of this section.
(4)(i) When a MSFW or his/her representative files a complaint
regarding the employment service regulations directly with a SWA, or
when a MSFW complaint is referred from a local employment office, the
SMA must investigate and attempt to resolve the complaint immediately
upon receipt and may, if necessary, conduct a further investigation.
(ii) If resolution at the SWA level has not been accomplished
within 20 business days after the complaint was received by the SWA,
the SMA must make a written determination regarding the complaint and
must send electronic copies to the complainant and the respondent
except that if the SWA has made a written request for information
pursuant to paragraph (a)(4) of this section, this time period does not
apply until the complainant's response is received in accordance with
paragraph (e)(3) of this section. The determination must follow the
procedures set forth in paragraph (d)(5) of this section.
(5) Written Determinations.
(i) All written determinations by local employment service or SWA
officials on complaints under the employment services regulations must
be sent by certified mail (or another legally viable method) and a copy
of the determination may be sent via electronic mail. The determination
must include all of the following:
(A) The results of any SWA investigation;
(B) The conclusions reached on the allegations of the complaint;
(C) If a resolution was not reached, an explanation of why the
complaint was not resolved;
(D) If the complaint is against the SWA, an offer to the
complainant of the opportunity to request, in writing, a hearing within
20 working days after the certified date of receipt of the
notification.
(ii) If the SWA determines that the employer has not violated the
employment service regulations, the SWA must offer to the complainant
the opportunity to request a hearing within 20 working days after the
certified date of receipt of the notification.
(iii) If the SWA, within 20 working days from the certified date of
receipt of the notification provided for in paragraph (d)(5) of this
section, receives a written request (via hard copy or electronic mail)
for a hearing, the SWA must refer the complaint to a State hearing
official for hearing. The SWA must, in writing (via hard copy or
electronic mail), notify the respective parties to whom the
determination was sent that:
(A) The parties will be notified of the date, time, and place of
the hearing;
(B) The parties may be represented at the hearing by an attorney or
other representative;
(C) The parties may bring witnesses and/or documentary evidence to
the hearing;
(D) The parties may cross-examine opposing witnesses at the
hearing;
(E) The decision on the complaint will be based on the evidence
presented at the hearing;
(F) The State hearing official may reschedule the hearing at the
request of a party or its representative; and
(G) With the consent of the SWA's representative and of the State
hearing official, the party who requested the hearing may withdraw the
request for hearing in writing before the hearing.
(iv) If the State agency makes a final determination that the
employer who has or is currently using the employment service system
has violated the employment service regulations, the determination,
pursuant to paragraph (d)(5) of this section, must state that the State
will initiate procedures for discontinuation of services to the
employer in accordance with subpart F of this part.
(6) A complaint regarding the employment service regulations must
be handled to resolution by these regulations only if it is made within
2 years of the alleged occurrence.
(e) Resolution of complaints. A complaint is considered resolved
when:
[[Page 20954]]
(1) The complainant indicates satisfaction with the outcome via
written correspondence;
(2) The complainant chooses not to elevate the complaint to the
next level of review;
(3) The complainant or the complainant's authorized representative
fails to respond within 20 working days or, in cases where the
complainant is an MSFW, 40 working days of a written request by the
appropriate local employment service office or State agency;
(4) The complainant exhausts all available options for review; or
(5) A final determination has been made by the enforcement agency
to which the complaint was referred.
Sec. 658.417 State hearings.
(a) The hearing described in Sec. 658.411 must be held by State
hearing officials. A State hearing official may be any State official
authorized to hold hearings under State law. Examples of hearing
officials are referees in State unemployment compensation hearings and
officials of the State agency authorized to preside at State
administrative hearings.
(b) The State hearing official may decide to conduct hearings on
more than one complaint concurrently if he/she determines that the
issues are related or that the complaints will be handled more
expeditiously if conducted together.
(c) The State hearing official, upon the referral of a case for a
hearing, must:
(1) Notify all involved parties of the date, time, and place of the
hearing; and
(2) Reschedule the hearing, as appropriate.
(d) In conducting a hearing, the State hearing official must:
(1) Regulate the course of the hearing;
(2) Issue subpoenas if necessary, provided the official has the
authority to do so under State law;
(3) Ensure that all relevant issues are considered;
(4) Rule on the introduction of evidence and testimony; and
(5) Take all actions necessary to ensure an orderly proceeding.
(e) All testimony at the hearing must be recorded and may be
transcribed when appropriate.
(f) The parties must be afforded the opportunity to present,
examine, and cross-examine witnesses.
(g) The State hearing official may elicit testimony from witnesses,
but may not act as advocate for any party.
(h) The State hearing official must receive and include in the
record, documentary evidence offered by any party and accepted at the
hearing. Copies thereof must be made available by the party submitting
the document to other parties to the hearing upon request.
(i) Federal and State rules of evidence do not apply to hearings
conducted pursuant to this section; however rules or principles
designed to assure production of the most credible evidence available
and to subject testimony to test by cross-examination, must be applied
where reasonably necessary by the State hearing official. The State
hearing official may exclude irrelevant, immaterial, or unduly
repetitious evidence.
(j) The case record, or any portion thereof, must be available for
inspection and copying by any party at, prior to, or subsequent to the
hearing upon request. Special procedures may be used for disclosure of
medical and psychological records such as disclosure to a physician
designated by the individual.
(k) The State hearing official must, if feasible, resolve the
dispute at any time prior to the conclusion of the hearing.
(l) At the State hearing official's discretion, other appropriate
individuals, organizations, or associations may be permitted to
participate in the hearing as amicus curiae (friends of the court) with
respect to any legal or factual issues relevant to the complaint. Any
documents submitted by the amicus curiae must be included in the
record.
(m) If the parties to the hearing are located in more than one
State or are located in the same State but access to the hearing
location is extremely inconvenient for one or more parties as
determined by the State hearing official, the hearing official must:
(1) Whenever possible, hold a single hearing at a location
convenient to all parties or their representatives wishing to appear
and present evidence, with all such parties and/or their
representatives present.
(2) If a hearing location cannot be established by the State
hearing official under paragraph (m)(1) of this section, the State
hearing official may conduct, with the consent of the parties, the
hearing by a telephone conference call from a State agency office. If
the hearing is conducted via telephone conference call the parties and
their representatives must have the option to participate in person or
via telephone.
(3) Where the State agency is not able, for any reason, to conduct
a telephonic hearing under paragraph (m)(2) of this section, the State
agencies in the States where the parties are located must take evidence
and hold the hearing in the same manner as used for appealed interstate
unemployment claims in those States, to the extent that such procedures
are consistent with this section.
Sec. 658.418 Decision of the State hearing official.
(a) The State hearing official may:
(1) Rule that it lacks jurisdiction over the case;
(2) Rule that the complaint has been withdrawn properly in writing;
(3) Rule that reasonable cause exists to believe that the request
has been abandoned;
(4) Render such other rulings as are appropriate to resolve the
issues in question. However, the State hearing official does not have
authority or jurisdiction to consider the validity or constitutionality
of the employment service regulations or of the Federal statutes under
which they are promulgated.
(b) Based on the entire record, including the investigations and
determinations of the local employment service offices and State
agencies and any evidence provided at the hearing, the State hearing
official must prepare a written decision. The State hearing official
must send a copy of the decision stating the findings of fact and
conclusions of law, and the reasons therefor to the complainant, the
respondent, entities serving as amicus capacity (if any), the State
agency, the Regional Administrator, and the Solicitor of Labor, Attn:
Associate Solicitor for Employment and Training Legal Services,
Department of Labor, room N2101, 200 Constitution Avenue NW.,
Washington, DC 20210. The notification to the complainant and
respondent must be sent by certified mail or by other legally viable
means.
(c) All decisions of a State hearing official must be accompanied
by a written notice informing the parties (not including the Regional
Administrator, the Solicitor of Labor, or entities serving in an amicus
capacity) that they may appeal the judge's decision within 20 working
days of the certified date of receipt of the decision, file an appeal
in writing with the Regional Administrator. The notice must give the
address of the Regional Administrator.
Sec. 658.419 Apparent violations.
(a) If a State agency, local employment service office employee, or
outreach worker, observes, has reason to believe, or is in receipt of
information regarding a suspected violation of employment-related laws
or employment service regulations by an employer, except as provided at
Sec. 658.419 (field checks) or Sec. 658.411 (complaints), the
employee must
[[Page 20955]]
document the suspected violation and refer this information to the
local employment service office manager.
(b) If the employer has filed a job order with the employment
service office within the past 12 months, the local employment service
office must attempt informal resolution provided at Sec. 658.411.
(c) If the employer has not filed a job order with the local office
during the past 12 months, the suspected violation of an employment-
related law must be referred to the appropriate enforcement agency in
writing.
When a Complaint Rises to the Federal Level
Sec. 658.420 Responsibilities of the Employment and Training
Administration regional office.
(a) Each Regional Administrator must establish and maintain a
Complaint System within each ETA regional office.
(b) The Regional Administrator must designate DOL officials to
handle employment service regulation-related complaints as follows:
(1) All complaints alleging discrimination by race, color,
religion, national origin, sex, sexual orientation, gender identity,
age, disability, or genetic information, as well as reprisal for
protected activity, must be assigned to a Regional Director for Equal
Opportunity and Special Review and, where appropriate, handled in
accordance with procedures at 29 CFR part 31.
(2) All complaints other than those described in paragraph (b)(1)
of this section, must be assigned to a regional office official
designated by the Regional Administrator, provided that the regional
office official designated to handle MSFW complaints must be the
regional monitor advocate (RMA).
(c) The Regional Administrator must designate DOL officials to
handle employment-related law complaints in accordance with Sec.
658.411, provided that the regional official designated to handle MSFW
employment-related law complaints must be the RMA.
(d) The Regional Administrator must assure that all complaints and
all related documents and correspondence are logged with a notation of
the nature of each item.
Sec. 658.421 Handling of employment service regulation-related
complaints.
(a)(1) No complaint alleging a violation of the employment service
regulations must be handled at the ETA regional office level until the
complainant has exhausted the SWA administrative remedies set forth at
Sec. Sec. 658.411 through 658.418. If the Regional Administrator
determines that a complaint has been prematurely filed with an ETA
regional office, the Regional Administrator must inform the complainant
within 10 working days in writing that the complainant must first
exhaust those remedies before the complaint may be filed in the
regional office. A copy of this letter and a copy of the complaint must
also be sent to the State Administrator.
(2) If the Regional Administrator determines that the nature and
scope of a complaint described in paragraph (a) of this section is such
that the time required to exhaust the administrative procedures at the
SWA level would adversely affect a significant number of individuals,
the RA must accept the complaint and take the following action:
(i) If the complaint is filed against an employer, the regional
office must handle the complaint in a manner consistent with the
requirements imposed upon State agencies by Sec. Sec. 658.411 and
658.418. A hearing must be offered to the parties once the Regional
Administrator makes a determination on the complaint.
(ii) If the complaint is filed against a SWA, the regional office
must follow procedures established at Sec. 658.411(d).
(b) The ETA regional office is responsible for handling appeals of
determinations made on complaints at the SWA level. An appeal includes
any letter or other writing which the Regional Administrator reasonably
understands to be requesting review if it is received by the regional
office and signed by a party to the complaint.
(c)(1) Once the Regional Administrator receives a timely appeal he/
she must request the complete SWA file, including the original
Complaint/Referral Form from the appropriate SWA.
(2) The Regional Administrator must review the file in the case and
must determine within 10 business days whether any further
investigation or action is appropriate; however if the Regional
Administrator determines that it needs to request legal advice from the
Office of the Solicitor at the U.S. Department of Labor then the
Regional Administrator may have 20 business days to make this
determination.
(d) If the Regional Administrator determines that no further action
is warranted, the Regional Administrator must send his/her
determination in writing to the appellant within 5 days of the
determination and must offer the appellant a hearing before a DOL
Administrative Law Judge (ALJ), provided the appellant requests such a
hearing in writing from the Regional Administrator within 20 working
days of the certified date of receipt of the Regional Administrator's
offer of hearing.
(e) If the Regional Administrator determines that further
investigation or other action is warranted, the Regional Administrator
must undertake such an investigation or other action necessary to
resolve the complaint.
(f) After taking the actions described in paragraph (e) of this
section, the Regional Administrator must either affirm, reverse, or
modify the decision of the State hearing official, and must notify each
party to the State hearing official's hearing or to whom the State
office determination was sent, notice of the determination and notify
the parties that they may appeal the determination to the Department of
Labor's Office of Administrative Law Judges within 20 business days of
the party's receipt of the notice.
(g) If the Regional Administrator finds reason to believe that a
SWA or one of its local employment service offices has violated ES
regulations, the Regional Administrator must follow the procedures set
forth at subpart H of this part.
Sec. 658.422 Handling of employment-related law complaints by the
Regional Administrator.
(a) Each complaint filed by an MSFW alleging violation(s) of
employment-related laws must be taken in writing, logged, and referred
to the appropriate enforcement agency for prompt action.
(b) Each complaint submitted by a non-MSFW alleging violation(s) of
employment-related laws must be referred to the appropriate enforcement
agency for prompt action.
(c) Upon referring the complaint in accordance with paragraph (a)
of this section, the regional official must inform the complainant of
the enforcement agency (and individual, if known) to which the
complaint was referred.
Sec. 658.424 Proceedings before the Office of Administrative Law
Judges.
(a) If a party requests a hearing pursuant to Sec. 658.417 or
Sec. 658.707, the Regional Administrator must:
(1) Send the party requesting the hearing and all other parties to
the prior State level hearing, a written notice (hard copy or
electronic) containing the statements set forth at Sec. 658.418(c);
(2) Compile four hearing files (hard copy or electronic) containing
copies of all documents relevant to the case, indexed and compiled
chronologically;
(3) Send simultaneously one hearing file to the DOL Chief
Administrative Law Judge (ALJ), 800 K Street NW.,
[[Page 20956]]
Suite 400, Washington, DC 20001-8002, one hearing file to the OWI
Administrator, and one hearing file to the Solicitor of Labor, Attn:
Associate Solicitor for Employment and Training Legal Services, and
retain one hearing file.
(b) Proceedings under this section are governed by the rules of
practice and procedure at subpart A of 29 CFR part 18, except where as
otherwise specified in this section or Sec. 658.425.
(c) Upon the receipt of a hearing file, the ALJ designated to the
case must notify the party requesting the hearing, all parties to the
prior State hearing official hearing (if any), the State agency, the
Regional Administrator, the OWI Administrator, and the Solicitor of
Labor of the receipt of the case. After conferring all the parties, the
ALJ may decide to make a determination on the record in lieu of
scheduling a hearing.
(d) The ALJ may decide to consolidate cases and conduct hearings on
more than one complaint concurrently if he/she determines that the
issues are related or that the complaints will be handled more
expeditiously.
(e) If the parties to the hearing are located in more than one
State or are located in the same State but access to the hearing
location is extremely inconvenient for one or more parties as
determined by the ALJ, the ALJ must:
(1) Whenever possible, hold a single hearing, at a location
convenient to all parties or their representatives wishing to appear
and present evidence, with all such parties and/or their
representatives present.
(2) If a hearing location cannot be established by the ALJ at a
location pursuant to paragraph (e)(1) of this section, the ALJ may
conduct, with the consent of the parties, the hearing by a telephone
conference call. If the hearing is conducted via telephone conference
call the parties and their representatives must have the option to
participate in person or via telephone.
(3) Where the ALJ is unable, for any reason, to conduct a
telephonic hearing under paragraph (e)(2) of this section, the ALJ must
confer with the parties on how to proceed.
(f) Upon deciding to hold a hearing, the ALJ must:
(1) Notify all involved parties of the date, time and place of the
hearing; and
(2) Reschedule the hearing, as appropriate.
(g) The parties to the hearing must be afforded the opportunity to
present, examine, and cross-examine witnesses. The ALJ may elicit
testimony from witnesses, but may not act as advocate for any party.
(h) The ALJ must receive, and make part of the record, documentary
evidence offered by any party and accepted at the hearing, provided
that copies of such evidence is provided to the other parties to the
proceeding prior to the hearing at the time required by the ALJ and
agreed to by the parties.
(i) Technical rules of evidence do not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination must be applied where reasonably
necessary by the ALJ conducting the hearing. The ALJ may exclude
irrelevant, immaterial, or unduly repetitious evidence.
(j) The case record, or any portion thereof, must be available for
inspection and copying by any party to the hearing at, prior to, or
subsequent to the hearing upon request. Special procedures may be used
for disclosure of medical and psychological records such as disclosure
to a physician designated by the individual concerned.
(k) The ALJ must, if feasible, encourage resolution of the dispute
by conciliation at any time prior to the conclusion of the hearing.
Sec. 658.425 Decision of Department of Labor Administrative Law
Judge.
(a) The ALJ may:
(1) Rule that he/she they lacks jurisdiction over the case;
(2) Rule that the appeal has been withdrawn, with the written
consent of all parties;
(3) Rule that reasonable cause exists to believe that the appeal
has been abandoned; or
(4) Render such other rulings as are appropriate to the issues in
question. However, the ALJ does not have jurisdiction to consider the
validity or constitutionality of the employment service regulations or
of the Federal statutes under which they are promulgated.
(b) Based on the entire record, including any legal briefs, the
record before the State agency, the investigation (if any) and
determination of the Regional Administrator, and evidence provided at
the hearing, the ALJ must prepare a written decision. The ALJ must send
a copy of the decision stating the findings of fact and conclusions of
law to the parties to the hearing, including the State agency, the
Regional Administrator, the OWI Administrator, and the Solicitor, and
to entities filing amicus briefs (if any).
(c) The decision of the ALJ serves as the final decision of the
Secretary.
Sec. 658.426 Complaints against the United States Employment Service.
(a) Complaints alleging that an ETA regional office or the National
Office of the United States Employment Service (USES) has violated ES
regulations should be mailed to the Assistant Secretary for Employment
and Training, U.S. Department of Labor, Washington, DC 20210. Such
complaints should include:
(1) A specific allegation of the violation;
(2) The date of the incident;
(3) Location of the incident;
(4) The individual alleged to have committed the violation; and
(5) Any other relevant information available to the complainant.
(b) The Assistant Secretary or the Regional Administrator as
designated must make a determination and respond to the complainant
after investigation of the complaint.
Subpart F--Discontinuation of Services to Employers by the
Employment Service System
Sec. 658.500 Scope and purpose of subpart.
This subpart contains the regulations governing the discontinuation
of services provided pursuant to 20 CFR part 653 to employers by the
USES, including SWAs.
Sec. 658.501 Basis for discontinuation of services.
(a) The State agency must initiate procedures for discontinuation
of services to employers who:
(1) Submit and refuse to alter or withdraw job orders containing
specifications which are contrary to employment-related laws;
(2) Submit job orders and refuse to provide assurances, in
accordance with the Agricultural Recruitment System U.S. Workers at 20
CFR 653 subpart F, that the jobs offered are in compliance with
employment-related laws, or to withdraw such job orders;
(3) Are found through field checks or otherwise to have either
misrepresented the terms or conditions of employment specified on job
orders or failed to comply fully with assurances made on job orders;
(4) Are found by a final determination by an appropriate
enforcement agency to have violated any employment-related laws and
notification of this final determination has been provided to the ES by
that enforcement agency;
(5) Are found to have violated ES regulations pursuant to Sec.
658.411;
(6) Refuse to accept qualified workers referred through the
clearance system;
[[Page 20957]]
(7) Refuse to cooperate in the conduct of field checks conducted
pursuant to Sec. 653.503; or
(8) Repeatedly cause the initiation of the procedures for
discontinuation of services pursuant to paragraphs (a)(1) through (7)
of this section.
(b) The SWA may discontinue services immediately if, in the
judgment of the State Administrator, exhaustion of the administrative
procedures set forth in this subpart in paragraphs (a)(1) through (7)
of this section would cause substantial harm to a significant number of
workers. In such instances, procedures at Sec. Sec. 658.503 et seq.
must be followed.
(c) If it comes to the attention of a local employment service
office or SWA that an employer participating in the employment service
system may not have complied with the terms of its temporary labor
certification, under, for example the H-2A and H-2B visa programs,
State agencies must engage in the procedures for discontinuation of
services to employers pursuant to paragraphs (a)(1) through (a)(8) of
this section and simultaneously notify the Chicago National Processing
Center (CNPC) of the alleged non-compliance for investigation and
consideration of ineligibility pursuant to 20 CFR 655.184 or 20 CFR
655.73 respectively for subsequent temporary labor certification.
Sec. 658.502 Notification to employers.
(a) The SWA must notify the employer in writing that it intends to
discontinue the provision of ES services pursuant to 20 CFR parts 652,
653, 654, and 658, and the reason therefore:
(1) Where the decision is based on submittal and refusal to alter
or to withdraw job orders containing specifications contrary to
employment-related laws, the SWA must specify the date the order was
submitted, the job order involved, the specifications contrary to
employment-related laws and the laws involved. The employer must be
notified in writing that all ES services will be terminated in 20
working days unless the employer within that time:
(i) Provides adequate evidence that the specifications are not
contrary to employment-related laws, or
(ii) Withdraws the specifications and resubmits the job order in
compliance with all employment-related laws, or
(iii) If the job is no longer available makes assurances that all
future job orders submitted will be in compliance with all employment-
related laws, or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(2) Where the decision is based on the employer's submittal of an
order and refusal to provide assurances that the job is in compliance
with employment-related laws or to withdraw the order, the SWA must
specify the date the order was submitted, the job order involved and
the assurances involved. The employer must be notified that all ES
services will be terminated within 20 working days unless the employer
within that time:
(i) Resubmits the order with the appropriate assurances;
(ii) If the job is no longer available, make assurances that all
future job orders submitted will contain all necessary assurances that
the job offered is in compliance with employment-related laws; or
(iii) Requests a hearing from the SWA pursuant to Sec. 658.417.
(3) Where the decision is based on a finding that the employer has
misrepresented the terms or conditions of employment specified on job
orders or failed to comply fully with assurances made on job orders,
the State agency must specify the basis for that determination. The
employer must be notified that all ES services will be terminated in 20
working days unless the employer within that time:
(i) Provides adequate evidence that terms and conditions of
employment were not misrepresented; or
(ii) Provides adequate evidence that there was full compliance with
the assurances made on the job orders; or
(iii) Provides resolution of a complaint which is satisfactory to a
complainant referred by the ES; and
(iv) Provides adequate assurance that specifications on future
orders will accurately represent the terms and conditions of employment
and that there will be full compliance with all job order assurances;
or
(v) Requests a hearing from the SWA pursuant to Sec. 658.417.
(4) Where the decision is based on a final determination by an
enforcement agency, the SWA must specify the enforcement agency's
findings of facts and conclusions of law. The employer must be notified
that all ES services will be terminated in 20 working days unless the
employer within that time:
(i) Provides adequate evidence that the enforcement agency has
reversed its ruling and that the employer did not violate employment-
related laws; or
(ii) Provides adequate evidence that the appropriate fines have
been paid and/or appropriate restitution has been made; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future.
(5) Where the decision is based on a finding of a violation of ES
regulations under Sec. 658.411, the SWA must specify the finding. The
employer must be notified that all ES services will be terminated in 20
working days unless the employer within that time:
(i) Provides adequate evidence that the employer did not violate ES
regulations; or
(ii) Provides adequate evidence that appropriate restitution has
been made or remedial action taken; and
(iii) Provides assurances that any policies, procedures, or
conditions responsible for the violation have been corrected and the
same or similar violations are not likely to occur in the future; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(6) Where the decision is based on an employer's failure to accept
qualified workers referred through the clearance system, the SWA must
specify the workers referred and not accepted. The employer must be
notified that all ES services will be terminated in 20 working days
unless the employer within that time:
(i) Provides adequate evidence that the workers were accepted; or
(ii) Provides adequate evidence that the workers were not available
to accept the job; or
(iii) Provides adequate evidence that the workers were not
qualified; and
(iv) Provides adequate assurances that qualified workers referred
in the future will be accepted; or
(v) Requests a hearing from the SWA pursuant to Sec. 658.417.
(7) Where the decision is based on lack of cooperation in the
conduct of field checks, the SWA must specify the lack of cooperation.
The employer must be notified that all ES services will be terminated
in 20 working days unless the employer within that time:
(i) Provides adequate evidence that he/she did cooperate; or
(ii) Cooperates immediately in the conduct of field checks; and
(iii) Provides assurances that he/she will cooperate in future
field checks in further activity; or
(iv) Requests a hearing from the SWA pursuant to Sec. 658.417.
(b) If the employer chooses to respond pursuant to this section by
providing documentary evidence or assurances, he/she must at the same
time request a hearing if such hearing is desired in the event that the
State agency does not accept the documentary evidence or assurances as
adequate.
[[Page 20958]]
(c) Where the decision is based on repeated initiation of
procedures for discontinuation of services, the employer must be
notified that services have been terminated.
(d) If the employer makes a timely request for a hearing, in
accordance with this section, the SWA must follow procedures set forth
at Sec. 658.411 and notify the complainant whenever the
discontinuation of services is based on a complaint pursuant to Sec.
658.411.
Sec. 658.503 Discontinuation of services.
(a) If the employer does not provide a satisfactory response in
accordance with Sec. 658.502, within 20 working days, or has not
requested a hearing, the SWA must immediately terminate services to the
employer.
(b) If services are discontinued to an employer subject to Federal
Contractor Job Listing Requirements, the SWA must notify the ETA
regional office immediately.
Sec. 658.504 Reinstatement of services.
(a) Services may be reinstated to an employer after discontinuation
under Sec. 658.502, if:
(1) The State is ordered to do so by a Federal ALJ Judge or
Regional Administrator, or
(2)(i) The employer provides adequate evidence that any policies,
procedures or conditions responsible for the previous discontinuation
of services have been corrected and that the same or similar
circumstances are not likely to occur in the future, and
(ii) The employer provides adequate evidence that he/she has
responded adequately to any findings of an enforcement agency, State ES
agency, or USES, including restitution to the complainant and the
payment of any fines, which were the basis of the discontinuation of
services.
(b) The SWA must notify, the employer requesting reinstatement
within 20 working days whether his/her request has been granted. If the
State denies the request for reinstatement, the basis for the denial
must be specified and the employer must be notified that he/she may
request a hearing within 20 working days.
(c) If the employer makes a timely request for a hearing, the SWA
must follow the procedures set forth at Sec. 658.417.
(d) The SWA must reinstate services to an employer if ordered to do
so by a State hearing official, Regional Administrator, or Federal ALJ
as a result of a hearing offered pursuant to paragraph (c) of this
section.
Subpart G--Review and Assessment of State Agency Compliance With
Employment Service Regulations
Sec. 658.600 Scope and purpose of subpart.
This subpart sets forth the regulations governing review and
assessment of State Workforce Agency (SWA) compliance with the
Employment Service regulations at 20 CFR parts 651, 652, 653, 654, and
658. All recordkeeping and reporting requirements contained in parts
653 and 658 have been approved by the Office of Management and Budget
as required by the Federal Reports Act of 1942.
Sec. 658.601 State agency responsibility.
(a) Each State agency must establish and maintain a self-appraisal
system for employment service operations to determine success in
reaching goals and to correct deficiencies in performance. The self-
appraisal system must include numerical (quantitative) appraisal and
non-numerical (qualitative) appraisal.
(1) Numerical appraisal at the local employment service office
level must be conducted as follows:
(i) Performance must be measured on a quarterly-basis against
planned service levels as stated in the Unified State Plan. The State
Plan must be consistent with numerical goals contained in local
employment service office plans.
(ii) To appraise numerical activities/indicators, actual results as
shown on the Department's ETA 9002A report, or any successor report
required by the Department must be compared to planned levels.
Differences between achievement and plan levels must be identified.
(iii) When the numerical appraisal of required activities/
indicators identifies significant differences from planned levels,
additional analysis must be conducted to isolate possible contributing
factors. This data analysis must include, as appropriate, comparisons
to past performance, attainment of Unified State Plan goals and
consideration of pertinent non-numerical factors.
(iv) Results of local employment service office numerical reviews
must be documented and significant deficiencies identified. A
corrective action plan as described in paragraph (a)(6) of this section
must be developed to address these deficiencies.
(v) The result of local employment service office appraisal,
including corrective action plans, must be communicated in writing to
the next higher level of authority for review. This review must cover
adequacy of analysis, appropriateness of corrective actions, and need
for higher level involvement. When this review is conducted at an area
or district office, a report describing local employment service office
performance within the area or district jurisdiction must be
communicated to the SWA on a quarterly basis.
(2) Numerical appraisal at the SWA level must be conducted as
follows:
(i) Performance must be measured on a quarterly basis against
planned service levels as stated in the Unified State Plan. The State
Plan must be consistent with numerical goals contained in local
employment service office plans.
(ii) To appraise these key numerical activities/indicators, actual
results as shown on the ETA 9002A report, or any successor report
required by DOL must be compared to planned levels. Differences between
achievement and plan levels must be identified.
(iii) The SWA must review statewide data, and performance against
planned service levels as stated in the Unified State Plan on at least
a quarterly basis to identify significant statewide deficiencies and to
determine the need for additional analysis, including identification of
trends, comparisons to past performance, and attainment of Unified
State Plan goals.
(iv) Results of numerical reviews must be documented and
significant deficiencies identified. A corrective action plan as
described in paragraph (a)(5) of this section must be developed to
address these deficiencies. These plans must be submitted to the ETA
Regional Office as part of the periodic performance process described
at Sec. 658.603(d)(2).
(3) Non-numerical (qualitative) appraisal of local employment
service office activities must be conducted at least annually as
follows:
(i) Each local employment service office must assess the quality of
its services to applicants, employers, and the community and its
compliance with Federal regulations.
(ii) At a minimum, non-numerical review must include an assessment
of the following factors:
(A) Appropriateness of services provided to participants and
employers;
(B) Timely delivery of services to participants and employers;
(C) Staff responsiveness to individual participants and employer
needs;
(D) Thoroughness and accuracy of documents prepared in the course
of service delivery; and
(E) Effectiveness of ES interface with external organizations,
i.e., other ETA-funded programs, community groups, etc.
(iii) Non-numerical review methods must include:
(A) Observation of processes;
[[Page 20959]]
(B) Review of documents used in service provisions; and
(C) Solicitation of input from applicants, employers, and the
community.
(iv) The result of non-numerical reviews must be documented and
deficiencies identified. A corrective action plan that addresses these
deficiencies as described in paragraph (a)(6) of this section must be
developed.
(v) The result of local employment service office non-numerical
appraisal, including corrective actions, must be communicated in
writing to the next higher level of authority for review. This review
must cover thoroughness and adequacy of local employment service office
appraisal, appropriateness of corrective actions, and need for higher
level involvement. When this review is conducted at an area or district
level, a report summarizing local employment service office performance
within that jurisdiction must be communicated to the SWA on an annual
basis.
(4) As part of its oversight responsibilities, the SWA must conduct
onsite reviews in those local employment service offices which show
continuing internal problems or deficiencies in performance as
indicated by such sources as data analysis, non-numerical appraisal, or
other sources of information.
(5) Non-numerical (qualitative) review of SWA employment service
activities must be conducted as follows:
(i) SWA operations must be assessed annually to determine
compliance with Federal regulations.
(ii) Results of non-numerical reviews must be documented and
deficiencies identified. A corrective action plan that addresses these
deficiencies must be developed.
(6) Corrective action plans developed to address deficiencies
uncovered at any administrative level within the State as a result of
the self-appraisal process must include:
(i) Specific descriptions of the type of action to be taken, the
time frame involved and the assignment of responsibility.
(ii) Provision for the delivery of technical assistance as needed.
(iii) A plan to conduct follow-up on a timely basis to determine if
action taken to correct the deficiencies has been effective.
(7)(i) The provisions of the ES regulations which require numerical
and non-numerical assessment of service to special applicant groups,
e.g., services to veterans at 20 CFR part 1001--Services for Veterans
and services to MSFWs at 20 CFR 653 and 658, are supplementary to the
provisions of this section.
(ii) Each State Administrator and local employment service office
manager must ensure that their staff know and carry out ES regulations,
including regulations on performance standards and program emphases,
and any corrective action plans imposed by the SWA or by the
Department.
(iii) Each State Administrator must ensure that the SWA complies
with its approved Unified State Plan.
(iv) Each State Administrator must ensure to the maximum extent
feasible the accuracy of data entered by the SWA into Department-
required management information systems. Each SWA must establish and
maintain a data validation system pursuant to Department instructions.
The system must review every local employment service office at least
once every 4 years. The system must include the validation of time
distribution reports and the review of data gathering procedures.
Sec. 658.602 Employment and Training Administration National Office
responsibility.
The ETA National Office must:
(a) Monitor ETA Regional Offices' operations under ES regulations;
(b) From time to time, conduct such special reviews and audits as
necessary to monitor ETA regional office and SWA compliance with ES
regulations;
(c) Offer technical assistance to the ETA regional offices and SWAs
in carrying out ES regulations and programs;
(d) Have report validation surveys conducted in support of resource
allocations;
(e) Develop tools and techniques for reviewing and assessing SWA
performance and compliance with ES regulations.
(f) ETA must appoint a national monitor advocate (NMA), who must
devote full time to the duties set forth in this subpart. The NMA must:
(1) Review the effective functioning of the Regional monitor
advocates (RMAs) and SMAs;
(2) Review the performance of SWAs in providing the full range of
ES services to MSFWs;
(3) Take steps to resolve or refer ES-related problems of MSFWs
which come to his/her attention;
(4) Take steps to refer non ES-related problems of MSFWs which come
to his/her attention;
(5) Recommend to the Administrator changes in policy toward MSFWs;
and
(6) Serve as an advocate to improve services for MSFWs within the
employment service system. The NMA must be a member of the National
Farm Labor Coordinated Enforcement Staff Level Working Committee and/or
other OSHA and WHD task forces, and/or other committees as appropriate.
(g) The NMA must be appointed by the Office of Workforce Investment
Administrator (Administrator) after informing farmworker organizations
and other organizations with expertise concerning MSFWs of the opening
and encouraging them to refer qualified applicants to apply through the
Federal merit system. Among qualified candidates, determined through
merit systems procedures, individuals must be sought who meet the
criteria used in the selection of the SMAs, as provided in 20 CFR
653.108(b).
(h) The NMA must be assigned staff necessary to fulfill effectively
all the responsibilities set forth in this subpart.
(i) The NMA must submit an annual report (Annual Report) to the OWI
Administrator, the ETA Assistant Secretary, and the National Farm Labor
Coordinated Enforcement Committee covering the matters set forth in
this subpart.
(j) The NMA must monitor and assess SWA compliance with ES
regulations affecting MSFWs on a continuing basis. His/her assessment
must consider:
(1) Information from RMAs and SMAs;
(2) Program performance data, including the service indicators;
(3) Periodic reports from regional offices;
(4) All Federal on-site reviews;
(5) Selected State on-site reviews;
(6) Other relevant reports prepared by USES;
(7) Information received from farmworker organizations and
employers; and
(8) His/her personal observations from visits to State ES offices,
agricultural work sites and migrant camps. In the annual report, the
NMA must include both a quantitative and qualitative analysis of his/
her findings and the implementation of his/her recommendations by State
and Federal officials, and must address the information obtained from
all of the foregoing sources.
(k) The NMA must review the activities of the State/Federal
monitoring system as it applies to services to MSFWs and the Complaint
System including the effectiveness of the regional monitoring function
in each region and must recommend any appropriate changes in the
operation of the system. The NMA's findings and recommendations must be
fully set forth in the annual report.
[[Page 20960]]
(l) If the NMA finds that the effectiveness of any RMA has been
substantially impeded by the Regional Administrator or other Regional
Office official, he/she must, if unable to resolve such problems
informally, report and recommend appropriate actions directly to the
OWI Administrator. If the NMA receives information that the
effectiveness of any SMA has been substantially impeded by the State
Administrator or other State or Federal ES official, he/she must, in
the absence of a satisfactory informal resolution at the regional
level, report and recommend appropriate actions directly to the OWI
Administrator.
(m) The NMA must be informed of all proposed changes in policy and
practice within USES, including ES regulations, which may affect the
delivery of services to MSFWs. The NMA must advise the Administrator
concerning all such proposed changes which may adversely affect MSFWs.
The NMA must propose directly to the OWI Administrator changes in ES
policy and administration which may substantially improve the delivery
of services to MSFWs. He/she must also recommend changes in the funding
of SWAs and/or adjustment or reallocation of the discretionary portions
of funding formulae.
(n) The NMA must participate in the review and assessment
activities required in this section and Sec. Sec. 658.700 et seq. As
part of such participation, the NMA, or if he/she is unable to
participate a RMA must accompany the National Office review team on
National Office on-site reviews. The NMA must engage in the following
activities in the course of each State on-site review:
(1) He/she must accompany selected outreach workers on their field
visits.
(2) He/she must participate in a random field check[s] of migrant
camps or work site[s] where MSFWs have been placed on inter or
intrastate clearance orders.
(3) He/she must contact local WIOA sec. 167 National Farmworker
Jobs Program grantees or other farmworker organizations as part of the
on-site review, and, discuss with representatives of these
organizations current trends and any other pertinent information
concerning MSFWs.
(4) He/she must meet with the SMA and discuss the full range of the
ES services to MSFWs, including monitoring and the Complaint System.
(o) In addition to the duties specified in paragraph (f)(8) of this
section, the NMA each year during the harvest season must visit the
four States with the highest level of MSFW activity during the prior
fiscal year, if they are not scheduled for a National Office on-site
review during the current fiscal year, and must:
(1) Meet with the SMA and other SWA staff to discuss MSFW service
delivery, and
(2) Contact representatives of MSFW organizations and interested
employer organizations to obtain information concerning ES service
delivery and coordination with other agencies.
(p) The NMA must perform duties specified in Sec. Sec. 658.700 et
seq. As part of this function, he/she must monitor the performance of
regional offices in imposing corrective action. The NMA must report any
deficiencies in performance to the Administrator.
(q) The NMA must establish routine and regular contacts with WIOA
sec. 167 National Farmworker Jobs Program grantees, other farmworker
organizations and agricultural employers and/or employer organizations.
He/she must attend conferences or meetings of these groups wherever
possible and must report to the Administrator and the National Farm
Labor Coordinated Enforcement Committee on these contacts when
appropriate. The NMA must include in the annual report recommendations
as to how the Department might better coordinate ES and WIOA sec. 167
National Farmworker Jobs Program services as they pertain to MSFWs.
(r) In the event that any SMA or RMA, enforcement agency or MSFW
group refers a matter to the NMA which requires emergency action, he/
she must assist them in obtaining action by appropriate agencies and
staff, inform the originating party of the action taken, and, upon
request, provide written confirmation.
(s) Through all the mechanisms provided in this subpart, the NMA
must aggressively seek to ascertain and remedy, if possible, systemic
deficiencies in the provisions of ES services and protections afforded
by these regulations to MSFWs. The NMA must:
(1) Use the regular reports on complaints submitted by SWAs and ETA
regional offices to assess the adequacy of these systems and to
determine the existence of systemic deficiencies.
(2) Provide technical assistance to ETA regional office and State
agency staff for administering the Complaint System, and any other ES
services as appropriate.
(3) Recommend to the Administrator specific instructions for action
by regional office staff to correct any ES-related systemic
deficiencies. Prior to any ETA review of regional office operations
concerning ES services to MSFWs, the NMA must provide to the
Administrator a brief summary of ES-related services to MSFWs in that
region and his/her recommendations for incorporation in the regional
review materials as the Administrator and ETA reviewing organization
deem appropriate.
(4) Recommend to the National Farm Labor Coordinated Enforcement
Committee specific instructions for action by WHD and OSHA regional
office staff to correct any non-ES-related systemic deficiencies of
which he/she is aware.
Sec. 658.603 Employment and Training Administration regional office
responsibility.
(a) The Regional Administrator must have responsibility for the
regular review and assessment of SWA performance and compliance with ES
regulations.
(b) The Regional Administrator must participate with the National
Office staff in reviewing and approving the Unified State Plan for the
SWAs within the region. In reviewing the Unified State Plans the
Regional Administrator and appropriate National Office staff must
consider relevant factors including the following:
(1) State agency compliance with ES regulations;
(2) State agency performance against the goals and objectives
established in the previous Unified State Plan;
(3) The effect which economic conditions and other external factors
considered by the ETA in the resource allocation process may have had
or are expected to have on the SWA's performance;
(4) State agency adherence to national program emphasis; and
(5) The adequacy and appropriateness of the Unified State Plan for
carrying out ES programs.
(c) The Regional Administrator must assess the overall performance
of SWAs on an ongoing basis through desk reviews and the use of
required reporting systems and other available information.
(d) As appropriate, Regional Administrators must conduct or have
conducted:
(1) Comprehensive on-site reviews of SWAs and their offices to
review SWA organization, management, and program operations;
(2) Periodic performance reviews of SWA operation of ES programs to
measure actual performance against the Unified State Plan, past
performance, the performance of other SWAs, etc.;
(3) Audits of SWA programs to review their program activity and to
assess
[[Page 20961]]
whether the expenditure of grant funds has been in accordance with the
approved budget. Regional Administrators may also conduct audits
through other agencies or organizations or may require the SWA to have
audits conducted;
(4) Validations of data entered into management information systems
to assess:
(i) The accuracy of data entered by the SWAs into the management
information system;
(ii) Whether the SWAs' data validating and reviewing procedures
conform to Department instructions; and
(iii) Whether SWAs have implemented any corrective action plans
required by the Department to remedy deficiencies in their validation
programs;
(5) Technical assistance programs to assist SWAs in carrying out ES
regulations and programs;
(6) Reviews to assess whether the SWA has complied with corrective
action plans imposed by the Department or by the SWA itself; and
(7) Random, unannounced field checks of a sample of agricultural
work sites to which ES placements have been made through the clearance
system to determine and document whether wages, hours, working and
housing conditions are as specified on the job order. If regional
office staff find reason to believe that conditions vary from job order
specifications, findings should be documented on the ES Complaint
Referral Form and provided to the State agency to be handled as a
complaint under Sec. 658.411.
(e) The Regional Administrator must provide technical assistance to
SWAs to assist them in carrying out ES regulations and programs.
(f) The Regional Administrator must appoint a RMA who must devote
full time to the duties set forth in this subpart. The RMA must:
(1) Review the effective functioning of the SMAs in his/her region;
(2) Review the performance of SWAs in providing the full range of
ES services to MSFWs;
(3) Take steps to resolve ES-related problems of MSFWs which come
to his/her attention;
(4) Recommend to the Regional Administrator changes in policy
towards MSFWs;
(5) Review the operation of the Complaint System; and
(6) Serve as an advocate to improve service for MSFWs within the ES
system. The RMA must be a member of the Regional Farm Labor Coordinated
Enforcement Committee.
(g) The RMA must be appointed by the Regional Administrator after
informing farmworker organizations and other organizations in the
region with expertise concerning MSFWs of the opening and encouraging
them to refer qualified applicants to apply through the Federal merit
system. The RMA must have direct personal access to the Regional
Administrator wherever he/she finds it necessary. Among qualified
candidates, individuals must be sought who meet the criteria used in
the selection of the SMAs, as provided in 20 CFR 653.108(b).
(h) The Regional Administrator must ensure that staff necessary to
fulfill effectively all the regional office responsibilities set forth
in this section are assigned. The RMA must notify the Regional
Administrator of any staffing deficiencies and the Regional
Administrator must take appropriate action.
(i) The RMA within the first 3 months of their tenure must
participate in a training session(s) approved by the National Office.
(j) At the regional level, the RMA must have primary responsibility
for:
(1) Monitoring the effectiveness of the Complaint System set forth
at subpart E of this part;
(2) Apprising appropriate State and ETA officials of deficiencies
in the Complaint System; and
(3) Providing technical assistance to SMAs in the region.
(k) At the ETA regional level, the RMA must have primary
responsibility for ensuring that SWA compliance with ES regulations as
they pertain to services to MSFWs is monitored by the regional office.
He/she must independently assess on a continuing basis the provision of
ES services to MSFWs, seeking out and using:
(1) Information from SMAs, including all reports and other
documents;
(2) Program performance data;
(3) The periodic and other required reports from State ES offices;
(4) Federal on-site reviews;
(5) Other reports prepared by the National Office;
(6) Information received from farmworker organizations and
employers; and
(7) Any other pertinent information which comes to his/her
attention from any possible source.
(8) In addition, the RMA must consider his/her personal
observations from visits to ES offices, agricultural work sites and
migrant camps.
(l) The RMA must assist the Regional Administrator and other
appropriate line officials in applying appropriate corrective and
remedial actions to State agencies.
(m) The Regional Administrator's quarterly report to the National
Office must include the RMA's summary of his/her independent assessment
as required in paragraph (f)(5) of this section. The fourth quarter
summary must include an annual summary from the region. The summary
also must include both a quantitative and a qualitative analysis of
his/her reviews and must address all the matters with respect to which
he/she has responsibilities under these regulations.
(n) The RMA must review the activities and performance of the SMAs
and the State monitoring system in the region, and must recommend any
appropriate changes in the operation of the system to the Regional
Administrator. The RMA's review must include a determination whether
the SMA:
(1) Does not have adequate access to information;
(2) Is being impeded in fulfilling his/her duties; or
(3) Is making recommendations which are being consistently ignored
by SWA officials. If the RMA believes that the effectiveness of any SMA
has been substantially impeded by the State Administrator, other State
agency officials, or any Federal officials, he/she must report and
recommend appropriate actions to the Regional Administrator. Copies of
the recommendations must be provided to the NMA electronically or in
hard copy.
(o) The RMA must be informed of all proposed changes in policy and
practice within USES, including ES regulations, which may affect the
delivery of services to MSFWs. He/she must advise the Regional
Administrator on all such proposed changes which, in his/her opinion,
may adversely affect MSFWs or which may substantially improve the
delivery of services to MSFWs. The RMA may also recommend changes in ES
policy or regulations, as well as changes in the funding of State
agencies and/or adjustments of reallocation of the discretionary
portions of funding formulae as they pertain to MSFWs.
(p) The RMA must participate in the review and assessment
activities required in this section and 20 CFR part 658.700 et seq. He/
she, an assistant, or another RMA, must participate in National Office
and regional office on-site statewide reviews of ES services to MSFWs
in States in the region. The RMA must engage in the following
activities in the course of participating in an on-site SWA review:
(1) He/she must accompany selected outreach workers on their field
visits;
(2) He/she must participate in a random field check of migrant
camps or
[[Page 20962]]
work sites where MSFWs have been placed on intrastate or interstate
clearance orders;
(3) He/she must contact local WIOA sec. 167 National Farmworker
Jobs Program grantees or other farmworker organizations as part of the
on-site review, and must discuss with representatives of these
organizations perceived trends, and/or other relevant information
concerning MSFWs in the area; and
(4) He/she must meet with the SMA and discuss the full range of the
ES services to MSFWs, including monitoring and the Complaint System.
(q) During the calendar quarter preceding the time of peak MSFW
activity in each State, the RMA must meet with the SMA and must review
in detail the State agency's capability for providing full services to
MSFWs as required by ES regulations, during the upcoming harvest
season. The RMA must offer technical assistance and recommend to the
SWA and/or the Regional Administrator any changes in State policy or
practice that he/she finds necessary.
(r) The RMA each year during the peak harvest season must visit
each State in the region not scheduled for an on-site review during
that fiscal year and must:
(1) Meet with the SMA and other SWA staff to discuss MSFW service
delivery; and
(2) Contact representatives of MSFW organizations to obtain
information concerning ES service delivery and coordination with other
agencies and interested employer organizations.
(s) The RMA must initiate and maintain regular and personal
contacts, including informal contacts in addition to those specifically
required by these regulations, with SMA in the region. In addition, the
RMA must have personal and regular contact with the NMA. The RMA must
also establish routine and regular contacts with WIOA sec. 167 National
Farmworker Jobs Program grantees, other farmworker organizations and
agricultural employers and/or employer organizations in his/her region.
He/she must attend conferences or meetings of these groups wherever
possible and must report to the Regional Administrator and the Regional
Farm Labor Coordinated Enforcement Committee on these contacts when
appropriate. He/she must also make recommendations as to how the
Department might better coordinate ES and WIOA sec. 167 National
Farmworker Jobs Program services to MSFWs.
(t) The RMA must attend MSFW-related public meeting(s) conducted in
the region. Following such meetings or hearings, the RMA must take such
steps or make such recommendations to the Regional Administrator, as
he/she deems necessary to remedy problem(s) or condition(s) identified
or described therein.
(u) The RMA must attempt to achieve regional solutions to any
problems, deficiencies or improper practices concerning services to
MSFWs which are regional in scope. Further, he/she must recommend
policies, offer technical assistance or take any other necessary steps
as he/she deems desirable or appropriate on a regional, rather than
State-by-State basis, to promote region-wide improvement in the
delivery of employment services to MSFWs. He/she must facilitate
region-wide coordination and communication regarding provision of ES
services to MSFWs among SMAs, State Administrators and Federal ETA
officials to the greatest extent possible. In the event that any SWA or
other RMA, enforcement agency, or MSFW group refers a matter to the RMA
which requires emergency action, he/she must assist them in obtaining
action by appropriate agencies and staff, inform the originating party
of the action taken, and, upon request, provide written confirmation.
(v) The RMA must initiate and maintain such contacts as he/she
deems necessary with RMAs in other regions to seek to resolve problems
concerning MSFWs who work, live or travel through the region. He/she
must recommend to the Regional Administrator and/or the National Office
inter-regional cooperation on any particular matter, problem, or policy
with respect to which inter-regional action is desirable.
(w) The RMA must establish regular contacts with the regional
agricultural coordinators from WHD and OSHA and any other regional
staff from other Federal enforcement agencies and, must establish
contacts with the staff of other Department agencies represented on the
Regional Farm Labor Coordinated Enforcement Committee, and to the
extent necessary, on other pertinent task forces or committees.
(x) The RMA must participate in the regional reviews of the Unified
State Plans, and must comment to the Regional Administrator as to the
SWA compliance with the ES regulations as they pertain to services to
MSFWs, including the staffing of employment service offices.
Sec. 658.604 Assessment and evaluation of program performance data.
(a) State agencies must compile program performance data required
by the Department, including statistical information on program
operations.
(b) The Department must use the program performance data in
assessing and evaluating whether each SWA has complied with ES
regulations and its Unified State Plan.
(c) In assessing and evaluating program performance data, the
Department must act in accordance with the following general
principles:
(1) The fact that the program performance data from a SWA, whether
overall or relative to a particular program activity, indicate poor
program performance does not by itself constitute a violation of ES
regulations or of the State agency's responsibilities under its Unified
State Plan;
(2) Program performance data, however, may so strongly indicate
that a SWA's performance is so poor that the data may raise a
presumption (prima facie case) that a SWA is violating ES regulations
or the Unified State Plan. A SWA's failure to meet the operational
objectives set forth in the Unified State Plan raises a presumption
that the agency is violating ES regulations and/or obligations under
its Unified State Plan. In such cases the Department must afford the
SWA an opportunity to rebut the presumption of a violation pursuant to
the procedures at subpart H of this part.
(3) The Department must take into account that certain program
performance data may measure items over which SWAs have direct or
substantial control while other data may measure items over which the
SWA has indirect or minimal control.
(i) Generally, for example, a SWA has direct and substantial
control over the delivery of employment services such as referrals to
jobs, job development contacts, counseling, referrals to career and
supportive services and the conduct of field checks.
(ii) State Workforce Agencies, however, have only indirect control
over the outcome of services. For example, SWAs cannot guarantee that
an employer will hire a referred applicant, nor can they guarantee that
the terms and conditions of employment will be as stated on a job
order.
(iii) Outside forces, such as a sudden heavy increase in
unemployment rates, a strike by SWA employees, or a severe drought or
flood may skew the results measured by program performance data.
(4) The Department must consider a SWA's failure to keep accurate
and complete program performance data
[[Page 20963]]
required by ES regulations as a violation of the ES regulations.
Sec. 658.605 Communication of findings to State agencies.
(a) The Regional Administrator must inform SWAs in writing of the
results of review and assessment activities and, as appropriate, must
discuss with the State Administrator the impact or action required by
the Department as a result of review and assessment activities.
(b) The ETA National Office must transmit the results of any review
and assessment activities it conducted to the Regional Administrator
who must send the information to the SWA.
(c) Whenever the review and assessment indicates a SWA violation of
ES regulations or its Unified State Plan, the Regional Administrator
must follow the procedures set forth at subpart H of this part.
(d) Regional Administrators must follow-up any corrective action
plan imposed on a SWA under subpart H of this part by further review
and assessment of the State agency pursuant to this subpart.
Subpart H--Federal Application of Remedial Action to State Agencies
Sec. 658.700 Scope and purpose of subpart.
This subpart sets forth the procedures which the Department must
follow upon either discovering independently or receiving from other(s)
information indicating that SWAs may not be adhering to ES regulations.
Sec. 658.701 Statements of policy.
(a) It is the policy of the Department to take all necessary
action, including the imposition of the full range of sanctions set
forth in this subpart, to ensure that State agencies comply with all
requirements established by ES regulations.
(b) It is the policy of the Department to initiate decertification
procedures against SWAs in instances of serious or continual violations
of ES regulations if less stringent remedial actions taken in
accordance with this subpart fail to resolve noncompliance.
(c) It is the policy of the Department to act on information
concerning alleged violations by SWAs of the ES regulations received
from any person or organization.
Sec. 658.702 Initial action by the Regional Administrator.
(a) The ETA Regional Administrator is responsible for ensuring that
all SWAs in his/her region are in compliance with ES regulations.
(b) Wherever a Regional Administrator discovers or is apprised of
possible SWA violations of ES regulations by the review and assessment
activities under subpart G of this part, or through required reports or
written complaints from individuals, organizations or employers which
are elevated to the Department after the exhaustion of SWA
administrative remedies, the Regional Administrator must conduct an
investigation. Within 10 days after receipt of the report or other
information, the Regional Administrator must make a determination
whether there is probable cause to believe that a SWA has violated ES
regulations.
(c) The Regional Administrator must accept complaints regarding
possible SWA violations of ES regulations from employee organizations,
employers or other groups, without exhaustion of the complaint process
described at subpart E, if the Regional Administrator determines that
the nature and scope of the complaint are such that the time required
to exhaust the administrative procedures at the State level would
adversely affect a significant number of applicants. In such cases, the
Regional Administrator must investigate the matter within 10 working
days, may provide the SWA 10 working days for comment, and must make a
determination within an additional 10 working days whether there is
probable cause to believe that the SWA has violated ES regulations.
(d) If the Regional Administrator determines that there is no
probable cause to believe that a SWA has violated ES regulations, he/
she must retain all reports and supporting information in Department
files. In all cases where the Regional Administrator has insufficient
information to make a probable cause determination, he/she must so
notify the Administrator in writing and the time for the investigation
must be extended 20 additional working days.
(e) If the Regional Administrator determines that there is probable
cause to believe that a SWA has violated ES regulations, he/she must
issue a Notice of Initial Findings of Non-compliance by registered mail
(or other legally viable means) to the offending SWA. The notice will
specify the nature of the violation, cite the regulations involved, and
indicate corrective action which may be imposed in accordance with
paragraphs (g) and (h) of this section. If the non-compliance involves
services to MSFWs or the Complaint System, a copy of said notice must
be sent to the NMA.
(f)(1) The SWA may have 20 working days to comment on the findings,
or a longer period, up to 20 additional days, if the Regional
Administrator determines that a longer period is appropriate. The SWA's
comments must include agreement or disagreement with the findings and
suggested corrective actions, where appropriate.
(2) After the period elapses, the Regional Administrator must
prepare within 20 working days, written final findings which specify
whether or not the SWA has violated ES regulations. If in the final
findings the Regional Administrator determines that the SWA has not
violated ES regulations, the Regional Administrator must notify the
State Administrator of this finding and retain supporting documents in
his/her files. If the final finding involves services to MSFWs or the
Complaint System, the Regional Administrator must also notify the NMA.
If the Regional Administrator determines that a SWA has violated ES
regulations, the Regional Administrator must prepare a Final Notice of
Noncompliance which must specify the violation(s) and cite the
regulations involved. The Final Notice of Noncompliance must be sent to
the SWA by registered mail or other legally viable means. If the
noncompliance involves services to MSFWs or the Complaint System, a
copy of the Final Notice must be sent to the NMA.
(g) If the violation involves the misspending of grant funds, the
Regional Administrator may order in the Final Notice of Noncompliance a
disallowance of the expenditure and may either demand repayment or
withhold future funds in the amount in question. If the Regional
Administrator disallows costs, the Regional Administrator must give the
reasons for the disallowance, inform the SWA that the disallowance is
effective immediately and that no more funds may be spent in the
disallowed manner, and offer the SWA the opportunity to request a
hearing pursuant to Sec. 658.707. The offer, or the acceptance of an
offer of a hearing, however, does not stay the effectiveness of the
disallowance. The Regional Administrator must keep complete records of
the disallowance.
(h) If the violation does not involve misspending of grant funds or
the Regional Administrator determines that the circumstances warrant
other action:
(1) The Final Notice of Noncompliance must direct the SWA to
implement a specific corrective action plan to correct all violations.
If the SWA's comment demonstrates with supporting evidence (except
where inappropriate) that all violations have already been corrected,
the Regional Administrator need not impose a corrective action plan and
instead may cite the violation(s) and accept their
[[Page 20964]]
resolution, subject to follow-up review, if necessary. If the Regional
Administrator determines that the violation(s) cited had been found
previously and that the corrective action(s) taken had not corrected
the violation(s) contrary to the findings of previous follow-up
reviews, the Regional Administrator must apply remedial actions to the
SWA pursuant to Sec. 658.704.
(2) The Final Notice of Noncompliance must specify the time by
which each corrective action must be taken. This period may not exceed
40 working days unless the Regional Administrator determines that
exceptional circumstances necessitate corrective actions requiring a
longer time period. In such cases, and if the violations involve
services to MSFWs or the Complaint System, the Regional Administrator
must notify the Administrator in writing of the exceptional
circumstances which necessitate a longer time period, and must specify
that time period. The specified time period must commence with the date
of signature on the registered mail receipt.
(3) When the time period provided for in paragraph (h)(2) of this
section elapses, Department staff must review the SWA's efforts as
documented by the SWA to determine if the corrective action(s) has been
taken and if the SWA has achieved compliance with ES regulations. If
necessary, Department staff must conduct a follow-up visit as part of
this review.
(4) If, as a result of this review, the Regional Administrator
determines that the SWA has corrected the violation(s), the Regional
Administrator must record the basis for this determination, notify the
SWA, send a copy to the Administrator, and retain a copy in Department
files.
(5) If, as a result of this review, the Regional Administrator
determines that the SWA has taken corrective action but is unable to
determine if the violation has been corrected due to seasonality or
other factors, the Regional Administrator must notify in writing the
SWA and the Administrator of his/her findings. The Regional
Administrator must conduct further follow-up at an appropriate time to
make a final determination if the violation has been corrected. If the
Regional Administrator's further follow-up reveals that violations have
not been corrected, the Regional Administrator must apply remedial
actions to the SWA pursuant to Sec. 658.704.
(6) If, as a result of the review the Regional Administrator
determines that the SWA has not corrected the violations and has not
made good faith efforts and adequate progress toward the correction of
the violations, the Regional Administrator must apply remedial actions
to the SWA pursuant to Sec. 658.704.
(7) If, as a result of the review, the Regional Administrator
determines that the SWA has made good faith efforts and adequate
progress toward the correction of the violation and it appears that the
violation will be fully corrected within a reasonable time period, the
SWA must be advised by registered mail or other legally viable means
(with a copy sent to the Administrator) of this conclusion, of
remaining differences, of further needed corrective action, and that
all deficiencies must be corrected within a specified time period. This
period may not exceed 40 working days unless the Regional Administrator
determines that exceptional circumstances necessitate corrective action
requiring a longer time period. In such cases, the Regional
Administrator must notify the Administrator in writing of the
exceptional circumstances which necessitate a longer time period, and
must specify that time period. The specified time period commences with
the date of signature on the registered mail receipt.
(8)(i) If the SWA has been given an additional time period pursuant
to paragraph (h)(7) of this section, Department staff must review the
SWA's efforts as documented by the SWA at the end of the time period.
If necessary, the Department must conduct a follow-up visit as part of
this review.
(ii) If the SWA has corrected the violation(s), the Regional
Administrator must document that finding, notify in writing the SWA and
the Administrator, and retain supporting documents in Department files.
If the SWA has not corrected the violation(s), the Regional
Administrator must apply remedial actions pursuant to Sec. 658.704.
Sec. 658.703 Emergency corrective action.
In critical situations as determined by the Regional Administrator,
where it is necessary to protect the integrity of the funds, or insure
the proper operation of the program, the Regional Administrator may
impose immediate corrective action. Where immediate corrective action
is imposed, the Regional Administrator must notify the SWA of the
reason for imposing the emergency corrective action prior to providing
the SWA an opportunity to comment.
Sec. 658.704 Remedial actions.
(a) If a SWA fails to correct violations as determined pursuant to
Sec. 658.702, the Regional Administrator must apply one or more of the
following remedial actions to the SWA:
(1) Imposition of special reporting requirements for a specified
period of time;
(2) Restrictions of obligational authority within one or more
expense classifications;
(3) Implementation of specific operating systems or procedures for
a specified time;
(4) Requirement of special training for SWA personnel;
(5) With the approval of the Assistant Secretary and after
affording the State Administrator the opportunity to request a
conference with the Assistant Secretary, the elevation of specific
decision-making functions from the State Administrator to the Regional
Administrator;
(6) With the approval of the Assistant Secretary and after
affording the State Administrator the opportunity to request a
conference with the Assistant Secretary, the imposition of Federal
staff in key State agency positions;
(7) With the approval of the Assistant Secretary and after
affording the State Administrator the opportunity to request a
conference with the Assistant Secretary, funding of the State agency on
a short-term basis or partial withholding of funds for a specific
function or for a specific geographical area;
(8) Holding of public hearings in the State on the SWA's
deficiencies;
(9) Disallowance of funds pursuant to Sec. 658.702 (g); or
(10) If the matter involves a serious or continual violation, the
initiation of decertification procedures against the State agency, as
set forth in paragraph (e) of this section.
(b) The Regional Administrator must send, by registered mail, a
Notice of Remedial Action to the SWA. The Notice of Remedial Action
must set forth the reasons for the remedial action. When such a notice
is the result of violations of regulations governing services to MSFWs
(20 CFR 653.100 et seq.) or the Complaint System (Sec. Sec. 658.400
et seq.), a copy of said notice must be sent to the Administrator, who
must publish the notice promptly in the Federal Register.
(c) If the remedial action is other than decertification, the
notice must state that the remedial action must take effect
immediately. The notice must also state that the SWA may request a
hearing pursuant to Sec. 658.707 by filing a request in writing with
the Regional Administrator pursuant to Sec. 658.707 within 20 working
days of the SWA's receipt of the notice. The offer of
[[Page 20965]]
hearing, or the acceptance thereof, however, does not stay or otherwise
delay the implementation of remedial action.
(d) Within 60 working days after the initial application of
remedial action, the Regional Administrator must conduct a review of
the SWA's compliance with ES regulations unless the Regional
Administrator determines that a longer time period is necessary. In
such cases, the Regional Administrator must notify the Administrator in
writing of the circumstances which necessitate a longer time period,
and specify that time period. If necessary, Department staff must
conduct a follow-up visit as part of this review. If the SWA is in
compliance with the ES regulations, the Regional Administrator must
fully document these facts and must terminate the remedial actions. The
Regional Administrator must notify the SWA of his/her findings. When
the case involves violations of regulations governing services to MSFWs
or the Complaint System, a copy of said notice must be sent to the
Administrator, who must promptly publish the notice in the Federal
Register. The Regional Administrator must conduct, within a reasonable
time after terminating the remedial actions, a review of the SWA's
compliance to determine whether any remedial actions should be
reapplied.
(e) If, upon conducting the on-site review referred to in paragraph
(c) of this section, the Regional Administrator finds that the SWA
remains in noncompliance, the Regional Administrator must continue the
remedial action and/or impose different additional remedial actions.
The Regional Administrator must fully document all such decisions and,
when the case involves violations of regulations governing services to
MSFWs or the Complaint System, must send copies to the Administrator,
who must promptly publish the notice in the Federal Register.
(f)(1) If the SWA has not brought itself into compliance with ES
regulations within 120 working days of the initial application of
remedial action, the Regional Administrator must initiate
decertification unless the Regional Administrator determines that
circumstances necessitate continuing remedial action for a longer
period of time. In such cases, the Regional Administrator must notify
the Administrator in writing of the circumstances which necessitate the
longer time period, and specify the time period.
(2) The Regional Administrator must notify the SWA by registered
mail or by other legally viable means of the decertification
proceedings, and must state the reasons therefor. Whenever such a
notice is sent to a State agency, the Regional Administrator must
prepare five copies (hard copies or electronic copies) containing, in
chronological order, all the documents pertinent to the case along with
a request for decertification stating the grounds therefor. One copy
must be retained. Two must be sent to the ETA National Office, one must
be sent to the Solicitor of Labor, Attention: Associate Solicitor for
Employment and Training, and, if the case involves violations of
regulations governing services to MSFWs or the Complaint System, one
copy must be sent to the NMA. All copies must also be sent
electronically to each respective party. The notice sent by the
Regional Administrator must be published promptly in the Federal
Register.
Sec. 658.705 Decision to decertify.
(a) Within 30 working days of receiving a request for
decertification, the ETA Assistant Secretary must review the case and
must decide whether to proceed with decertification.
(b) The Assistant Secretary must grant the request for
decertification unless he/she makes a finding that:
(1) The violations of ES regulations are neither serious nor
continual;
(2) The State agency is in compliance; or
(3) The Assistant Secretary has reason to believe that the SWA will
achieve compliance within 80 working days unless exceptional
circumstances necessitate a longer time period, pursuant to the
remedial action already applied or to be applied. (In the event the
Assistant Secretary does not have sufficient information to act upon
the request, he/she may postpone the determination for up to an
additional 20 working days in order to obtain any available additional
information.) In making a determination of whether violations are
``serious'' or ``continual,'' as required by paragraph (b)(1) of this
section, the Assistant Secretary must consider:
(i) Statewide or multiple deficiencies as shown by performance data
and/or on-site reviews;
(ii) Recurrent violations, even if they do not persist over
consecutive reporting periods, and
(iii) The good faith efforts of the State to achieve full
compliance with ES regulations as shown by the record.
(c) If the Assistant Secretary denies a request for
decertification, he/she must write a complete report documenting his/
her findings and, if appropriate, instructing that an alternate
remedial action or actions be applied. Electronic copies of the report
must be sent to the Regional Administrator. Notice of the Assistant
Secretary's decision must be published promptly in the Federal
Register, and the report of the Assistant Secretary must be made
available for public inspection and copying.
(d) If the Assistant Secretary decides that decertification is
appropriate, he/she must submit the case to the Secretary providing
written explanation for his/her recommendation of decertification.
(e) Within 30 working days after receiving the Assistant
Secretary's report, the Secretary must determine whether to decertify
the SWA. The Secretary must grant the request for decertification
unless he/she makes one of the three findings set forth in paragraph
(b) of this section. If the Secretary decides not to decertify, he/she
must then instruct that remedial action be continued or that alternate
actions be applied. The Secretary must write a report explaining his/
her reasons for not decertifying the SWA and copies (hard copy and
electronic) will be sent to the State agency. Notice of the Secretary's
decision must be published promptly in the Federal Register, and the
report of the Secretary must be made available for public inspection
and copy.
(f) Where either the Assistant Secretary or the Secretary denies a
request for decertification and order further remedial action, the
Regional Administrator must continue to monitor the SWA's compliance.
If the SWA achieves compliance within the time period established
pursuant to paragraph (b) of this section, the Regional Administrator
must terminate the remedial actions. If the SWA fails to achieve full
compliance within that time period after the Secretary's decision not
to decertify, the Regional Administrator must submit a report of his/
her findings to the Assistant Secretary who must reconsider the request
for decertification pursuant to the requirements of paragraph (b) of
this section.
Sec. 658.706 Notice of decertification.
If the Secretary decides to decertify a SWA, he/she must send a
Notice of Decertification to the State agency stating the reasons for
this action and providing a 10 working day period during which the SWA
may request an administrative hearing in writing to the Secretary. The
notice must be published promptly in the Federal Register.
[[Page 20966]]
Sec. 658.707 Requests for hearings.
(a) Any SWA which received a Notice of Decertification under Sec.
658.706 or a notice of disallowance under Sec. 658.702(g) may request
a hearing on the issue by filing a written request for hearing with the
Secretary within 10 working days of receipt of the notice. This request
must state the reasons the SWA believes the basis of the decision to be
wrong, and it must be signed by the State Administrator (electronic
signatures may be accepted).
(b) When the Secretary receives a request for a hearing from a
State agency, he/she must send copies of a file containing all
materials and correspondence relevant to the case to the Assistant
Secretary, the Regional Administrator, the Solicitor of Labor, and the
DOL Chief Administrative Law Judge. When the case involves violations
of regulations governing services to MSFWs or the Complaint System, a
copy must be sent to the NMA.
(c) The Secretary must publish notice of hearing in the Federal
Register. This notice must invite all interested parties to attend and
to present evidence at the hearing. All interested parties who make
written request to participate must thereafter receive copies (hard
copy and/or electronic) of all documents filed in said proceedings.
Sec. 658.708 Hearings.
(a) Upon receipt of a hearing file by the Chief Administrative Law
Judge, the case must be docketed and notice sent by electronic mail and
registered mail, return receipt requested, to the Solicitor of Labor,
Attention: Associate Solicitor for Employment and Training, the
Administrator, the Regional Administrator and the State Administrator.
The notice must set a time, place, and date for a hearing on the matter
and must advise the parties that:
(1) They may be represented at the hearing;
(2) They may present oral and documentary evidence at the hearing;
(3) They may cross-examine opposing witnesses at the hearing; and
(4) They may request rescheduling of the hearing if the time,
place, or date set are inconvenient.
(b) The Solicitor of Labor or the Solicitor's designee will
represent the Department at the hearing.
Sec. 658.709 Conduct of hearings.
(a) Hearings must be conducted in accordance with secs. 5-8 of the
Administrative Procedure Act, 5 U.S.C. 553 et seq.
(b) Technical rules of evidence do not apply, but rules or
principles designed to assure production of the most credible evidence
available and to subject testimony to test by cross-examination, must
be applied if necessary by the ALJ conducting the hearing. The ALJ may
exclude irrelevant, immaterial or unduly repetitious evidence. All
documents and other evidence offered or taken for the record must be
open to examination by the parties. Opportunity must be given to refute
facts and arguments advanced on either side of the issue. A transcript
must be made of the oral evidence except to the extent the substance
thereof is stipulated for the record.
(c) The general provisions governing discovery as provided in the
Rules of Civil Procedure for the United States District Court, title V,
28 U.S.C., rules 26 through 37, may be made applicable to the extent
that the Administrative Law Judge concludes that their use would
promote the proper advancement of the hearing.
(d) When a public officer is a respondent in a hearing in an
official capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the proceeding does not abate and the officer's
successor is automatically substituted as a party. Proceedings
following the substitution must be in the name of the substituted
party, but any misnomer not affecting the substantive rights of the
parties must be disregarded. An order of substitution may be entered at
any time, but the omission to enter such an order may not affect the
substitution.
Sec. 658.710 Decision of the Administrative Law Judge.
(a) The ALJ has jurisdiction to decide all issues of fact and
related issues of law and to grant or deny appropriate motions, but
does not have jurisdiction to decide upon the validity of Federal
statutes or regulations.
(b) The decision of the ALJ must be based on the hearing record,
must be in writing, and must state the factual and legal basis of the
decision. Notice of the decision must be published in the Federal
Register and the ALJ's decision must be available for public inspection
and copying.
(c) Except when the case involves the decertification of a SWA, the
decision of the ALJ will be considered the final decision of the
Secretary.
(d) If the case involves the decertification of an appeal to the
State agency, the decision of the ALJ must contain a notice stating
that, within 30 calendar days of the decision, the State agency or the
Administrator may appeal to the Administrative Review Board, United
States Department of Labor, by sending by registered mail, return
receipt requested, a written appeal to the Administrative Review Board,
in care of the Administrative Law Judge who made the decision.
Sec. 658.711 Decision of the Administrative Review Board.
(a) Upon the receipt of an appeal to the Administrative Review
Board, United States Department of Labor, the ALJ must certify the
record in the case to the Administrative Review Board, which must make
a decision to decertify or not on the basis of the hearing record.
(b) The decision of the Administrative Review Board must be final,
must be in writing, and must set forth the factual and legal basis for
the decision. Notice of the Administrative Review Board's decision must
be published in the Federal Register, and copies must be made available
for public inspection and copying.
Thomas E. Perez,
Secretary of Labor.
[FR Doc. 2015-05530 Filed 4-2-15; 4:15 pm]
BILLING CODE 4510-FR-P; 4510-FT-P