[Title 20 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2012 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 20
Employees' Benefits
________________________
Part 657 to End
Revised as of April 1, 2012
Containing a codification of documents of general
applicability and future effect
As of April 1, 2012
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
As of April 1, 2012
Title 20, Part 500 to End
Revised as of April 1, 2011
Is Replaced by
Title 20, Parts 500 to 656
and
Title 20, Part 657 to End
[[Page v]]
Table of Contents
Page
Explanation................................................. vii
Title 20:
Chapter V--Employment and Training Administration,
Department of Labor (Continued) 3
Chapter VI--Office of Workers' Compensation
Programs, Department of Labor 177
Chapter VII--Benefits Review Board, Department of
Labor 373
Chapter VIII--Joint Board for the Enrollment of
Actuaries 391
Chapter IX--Office of the Assistant Secretary for
Veterans' Employment and Training Service,
Department of Labor 427
Finding Aids:
Table of CFR Titles and Chapters........................ 481
Alphabetical List of Agencies Appearing in the CFR...... 501
List of CFR Sections Affected........................... 511
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 20 CFR 658.400
refers to title 20, part
658, section 400.
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[[Page vii]]
EXPLANATION
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
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The appropriate revision date is printed on the cover of each
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collection request.
[[Page viii]]
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[[Page ix]]
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Office of the Federal Register.
April 1, 2012.
[[Page xi]]
THIS TITLE
Title 20--Employees' Benefits is composed of four volumes. The first
volume, containing parts 1-399, includes current regulations issued by
the Office of Workers' Compensation Programs, Department of Labor and
the Railroad Retirement Board. The second volume, containing parts 400-
499, includes all current regulations issued by the Social Security
Administration. The third volume, containing parts 500 to 656, includes
current regulations issued by the Employees' Compensation Appeals Board,
and the Employment and Training Administration. The fourth volume,
containing part 657 to End, includes the current regulations issued by
the Office of Workers' Compensation Programs, the Benefits Review Board,
the Office of the Assistant Secretary for Veterans' Employment and
Training Service (all of the Department of Labor) and the Joint Board
for the Enrollment of Actuaries. The contents of these volumes represent
all current regulations codified under this title of the CFR as of April
1, 2012.
An index to chapter III appears in the second volume.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 20--EMPLOYEES' BENEFITS
(This book contains part 657 to end)
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Part
chapter v--Employment and Training Administration,
Department of Labor (Continued)........................... 657
chapter vi--Office of Workers' Compensation Programs,
Department of Labor....................................... 701
chapter vii--Benefits Review Board, Department of Labor..... 801
chapter viii--Joint Board for the Enrollment of Actuaries... 900
chapter ix--Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of Labor...... 1001
[[Page 3]]
CHAPTER V--EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR
(CONTINUED)
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Part Page
657
Provisions governing grants to State agencies for employment services
activities [Reserved]
658 Administrative provisions governing the Job
Service System.......................... 5
660 Introduction to the regulations for
workforce investment systems under Title
I of the Workforce Investment Act....... 34
661 Statewide and local governance of the
workforce investment system under Title
I of the Workforce Investment Act....... 37
662 Description of the one-stop system under
Title I of the Workforce Investment Act. 51
663 Adult and dislocated worker activities under
Title I of the Workforce Investment Act. 58
664 Youth activities under Title I of the
Workforce Investment Act................ 74
665 Statewide workforce investment activities
under Title I of the Workforce
Investment Act.......................... 82
666 Performance accountability under Title I of
the Workforce Investment Act............ 86
667 Administrative provisions under Title I of
the Workforce Investment Act............ 92
668 Indian and Native American programs under
Title I of the Workforce Investment Act. 118
669 National farmworkers jobs program under
Title I of the Workforce Investment Act. 135
670 The Job Corps under Title I of the Workforce
Investment Act.......................... 145
671 National emergency grants for dislocated
workers................................. 162
672 Provisions governing the Youthbuild Program. 165
[[Page 5]]
PART 657_PROVISIONS GOVERNING GRANTS TO STATE AGENCIES FOR EMPLOYMENT
SERVICES ACTIVITIES [RESERVED]
PART 658_ADMINISTRATIVE PROVISIONS GOVERNING THE JOB SERVICE SYSTEM--
Table of Contents
Subparts A-D [Reserved]
Subpart E_Job Service Complaint System
Sec.
658.400 Purpose and scope of subpart.
658.401 Types of complaints handled by the JS complaint system.
State Agency JS Complaint System
658.410 Establishment of State agency JS complaint system.
658.411 Filing and assignment of JS-related complaints.
658.412 Complaint resolution.
658.413 Initial handling of complaints by the State or local office.
658.414 Referral of non-JS-related complaints.
658.415 Transferring complaints to proper JS office.
658.416 Action on JS-related complaints.
658.417 Hearings.
658.418 Decision of the State hearing official.
Federal JS Complaint System
658.420 Establishment of JS complaint system at the ETA regional office.
658.421 Handling of JS-related complaints.
658.422 Handling of non-JS-related complaints by the Regional
Administrator.
658.423 Handling of other complaints by the Regional Administrator.
658.424 Federal hearings.
658.425 Decision of DOL Administrative Law Judge.
658.426 Complaints against USES.
Subpart F_Discontinuance of Services to Employers by the Job 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.
Subpart G_Review and Assessment of State Agency Compliance with Job
Service Regulations
658.600 Scope and purpose of subpart.
658.601 State agency responsibility.
658.602 ETA national office responsibility.
658.603 ETA 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: Wagner-Peyser Act of 1933, as amended, 29 U.S.C. 49 et
seq.; 38 U.S.C. chapters 41 and 42; 5 U.S.C. 301 et seq.; sections
658.410, 658.411 and 658.413 also issued under 44 U.S.C. 3501 et seq.
Source: 45 FR 39468, June 10, 1980, unless otherwise noted.
Subparts A-D [Reserved]
Subpart E_Job Service Complaint System
Sec. 658.400 Purpose and scope of subpart.
This subpart sets forth the regulations governing the Job Service
complaint system at both the State and Federal levels.
Sec. 658.401 Types of complaints handled by the JS complaint system.
(a)(1) The types of complaints (JS related complaints) which shall
be handled to resolution by the JS complaint system are as follows: (i)
Complaints against an employer about the specific job to which the
applicant was referred by the JS involving violations of the terms and
conditions of the job order or employment-related law (employer-related
complaint) and (ii) complaints about Job Service actions or omissions
under JS regulations (agency-related complaints). These complaint
procedures are not applicable to UI, or WIA
[[Page 6]]
complaints. Complaints alleging violations of UI, or WIA regulations
should be handled within the procedures set forth in the respective
regulations.
(2) A complaint shall be handled to resolution by these regulations
only if it is made within one year of the alleged occurrence.
(b) Complaints by veterans alleging employer violations of the
mandatory listing requirements under 38 U.S.C. 2012 shall not be handled
under this subpart. The State agency shall handle such complaints under
the Department's regulations at 41 CFR part 60-250.
(c) Complaints from MSFWs alleging violations of employment-related
laws enforced by ESA or OSHA shall be taken in writing by the State
agency and the ETA regional office and referred to ESA or OSHA pursuant
to the procedures set forth in Sec.Sec. 658.414 and 658.422. All other
complaints alleging violations of employment-related Federal, State or
local laws other than JS regulations by employers, their agents, or DOL
subagencies other than JS (non-JS related complaints) shall be logged by
the State agency and the ETA regional office and the complainant shall
be referred to the appropriate agency pursuant to procedures set forth
in Sec.Sec. 658.414 and 658.422.
(d) Certain types of complaints, such as, but not limited to,
complaints by MSFWs, and complaints alleging unlawful discrimination,
shall, as set forth in this subpart, be handled by specified officials
of the State agency or of ETA.
[45 FR 39468, June 10, 1980, as amended at 71 FR 35523, June 21, 2006]
State Agency JS Complaint System
Sec. 658.410 Establishment of State agency JS complaint system.
(a) Each State agency shall establish and maintain a Job Service
complaint system pursuant to this subpart.
(b) The State Administrator shall have overall responsibility for
the operation of the State agency JS complaint system. At the local
office level, the local office manager shall be responsible for the
management of the JS complaint system.
(c)(1) State agencies shall ensure that centralized control
procedures are established for the handling of complaints and files
relating to the handling of complaints. The Manager or Administrator of
the local or State office taking the complaint shall ensure that a
central complaint log is maintained, listing all complaints received,
and specifying for each complaint:
(i) The name of the complainant,
(ii) The name of the respondent (employer or State agency),
(iii) The date the complaint is filed,
(iv) Whether the complaint is by or on behalf of an MSFW,
(v) Whether the complaint is JS-related,
(vi) If the complaint is JS-related, whether it is employer-related
or agency-related,
(vii) If the complaint is non-JS-related, the information required
bySec. 658.414(c), and
(viii) The action taken, including for JS-related complaints,
whether the complaint has been resolved.
(2) Within one month after the end of the calendar quarter during
which a local office receives an MSFW complaint (JS or non-JS related),
the local office manager shall transmit a copy of that portion of the
log containing the information on the MSFW complaint(s) or a separate
listing of the relevant information from the log for each MSFW complaint
to the State Administrator. Within two months after the end of each
calendar quarter the State Administrator shall transmit copies of all
local and State office complaint logs received for that quarter to the
Regional Administrator.
(3) State agencies shall ensure that any action taken by the
responsible official, including referral, on a JS-related or non-JS
related complaint from an MSFW alleging a violation of employment
related laws enforced by ESA or OSHA is fully documented in a file
containing all relevant information, including a copy of the original
complaint form, a copy of any JS reports, any related correspondence, a
list of actions taken, and a record of related telephone calls.
(4) At the State office level, the State Administrator shall ensure
that all JS-related complaints referred from local
[[Page 7]]
offices, and all correspondence relating thereto are logged with a
notation of the nature of each item.
(d) State agencies shall ensure that information pertaining to the
use of the JS complaint system is publicized. This shall include the
prominent display of an ETA-approved JS complaint system poster in each
local office, satellite or district office, and at each State agency
operated day-haul facility.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39468, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982]
Sec. 658.411 Filing and assignment of JS-related complaints.
(a) JS-related complaints may be filed in any office of the State
job service agency.
(b) Assignment of complaints to local office personnel shall be as
follows:
(1) All JS-related complaints filed with a local office, and
alleging unlawful discrimination by race, color, religion, national
origin, sex, age, or physical or mental status unrelated to job
performance (handicap) shall be assigned to a local office Equal
Opportunity (EO) representative if the local office has a trained and
designated EO representative, or, if the local office does not have such
a representative, shall be sent immediately to the State agency for
logging and assignment to the EO representative or, where appropriate,
handled in accordance with the procedures set forth at 29 CFR part 31.
The EO representative shall refer complaints alleging discrimination by
employers to the Equal Employment Opportunity Commission or other
appropriate enforcement agency. Complaints retained by an EO
representative shall be subject to the hearing and appeal rights as are
normally provided in accordance with this subpart. The State agency
complaint specialist shall follow-up with the EO representative or with
other responsible enforcement agency monthly regarding MSFW complaints
and quarterly regarding non-MSFW complaints, and shall inform the
complainants of the status of the complaint periodically.
(2) All JS-related and non-JS related complaints other than those
described in paragraph (b)(1) of this section shall be handled by the
local office manager or assigned by the local office manager to a local
office employee trained in JS complaint procedures.
(c) Assignment of complaints to State office personnel shall be as
follows:
(1) The handling of all JS-related complaints received by the State
office alleging unlawful discrimination by race, color, religion,
national origin, sex, age, physical or mental status unrelated to job
performance (handicap) status shall be assigned to a State EO
representative and, where appropriate, handled in accordance with
procedures set forth at 29 CFR part 31.
(2) The handling of all other JS-related complaints and all non-JS-
related complaints received by the State office shall be assigned to a
State agency official designated by the State Administrator, provided
that the State agency official designated to handle MSFW complaints
shall be the State MSFW Monitor Advocate.
Sec. 658.412 Complaint resolution.
(a) A JS-related complaint is resolved when:
(1) The complainant indicates satisfaction with the outcome, or
(2) The complainant chooses not to elevate the complaint to the next
level of review, or
(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 or State office, or
(4) The complainant exhausts the final level of review, or
(5) A final determination has been made by the enforcement agency to
which the complaint was referred.
Sec. 658.413 Initial handling of complaints by the State or
local office.
(a) There shall be an appropriate official available during regular
office hours to take complaints in each local office.
[[Page 8]]
(b) Whenever an individual indicates an interest in making any
complaint to a State agency office, the appropriate JS official shall
offer to explain the operation of the JS complaint system. The
appropriate JS official shall offer to take the complaint in writing if
it is JS related, or if non-JS related, it alleges violations of
employment related laws enforced by ESA or OSHA and is filed by or on
behalf of an MSFW. The official shall require that the complainant put
the complaint on the JS Complaint/Referral Form prescribed or approved
by the ETA. The JS Complaint/Referral Form shall be used for all
complaints taken by a State agency, including complaints about unlawful
discrimination, except as provided in paragraph (c) of this section. The
State agency official shall offer to assist the complainant in filling
out the form and shall do so if the complainant desires such assistance.
If the complainant also represents several other complainants, all such
complainants shall be named on the JS Complaint/Referral Form. The
complainant shall sign the completed form. The identity of the
complainant(s) and any persons who furnish information relating to, or
assisting in, an investigation of a complaint shall be kept confidential
to the maximum extent possible, consistent with applicable law and a
fair determination of the complaint. A copy of the completed JS
Complaint/Referral Form shall be given to the complainant(s), and the
complaint form shall be given to the appropriate JS official.
(c) If a JS official receives a complaint in any form (e.g., a
letter) which is signed by the complainant and includes sufficient
information for the JS official to initiate an investigation, the
document shall be treated as if it were a properly completed JS
Complaint/Referral Form filed in person by the complainant. The JS
official shall send a confirming letter to this effect to the
complainant and shall give the document to the appropriate JS official.
If the complainant has not provided sufficient information to
investigate the matter expeditiously, the JS official shall request
additional information from the complainant.
(d) If the appropriate JS official determines that the complaint is
not JS-related, the official shall follow the procedures set forth in
Sec. 658.414.
(e) If the appropriate JS official determines that the complaint is
JS-related, the official shall ensure that the complaint is handled in
accordance with this subpart E.
(f) During the initial discussion with the complainant, the JS
official receiving the complaint shall:
(1) Make every effort to obtain all the information he/she perceives
to be necessary to investigate the complaint;
(2) Request that the complainant indicate all of the addresses
through which he or she might be contacted during the investigation of
the complaint;
(3) Request that the complainant contact the JS before leaving the
area if possible, and explain the need to maintain contact during the
complaint investigation.
(Approved by the Office of Management and Budget under control number
1205-0039)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[45 FR 39468, June 10, 1980, as amended at 47 FR 145, Jan. 5, 1982]
Sec. 658.414 Referral of non-JS-related complaints.
(a) To facilitate the operation of the coordinated enforcement
procedures established at 29 CFR part 42, the State agency shall take
from MSFWs in writing non-JS related complaints which allege violations
of employment related laws enforced by ESA or OSHA. The official shall
immediately refer the complaint to ESA or OSHA for prompt action. The JS
official shall inform the MSFW of the enforcement agency (and the
individual if known) to which the complaint will be referred and refer
the complainant to other agencies, attorney, consumer advocate and/or
other assistance where appropriate.
(b) Upon receipt of all other non-JS related complaints, the JS
official shall refer the complainant to the appropriate enforcement
agency, another public agency, an attorney, a consumer advocate and/or
other appropriate assistance.
(c) For all non-JS-related complaints received pursuant to
paragraphs (a) and (b) of this section, the appropriate
[[Page 9]]
JS official shall record the referral of the complainant and the
complaint where paragraph (a) is applicable, and the agency or agencies
(and individual(s), if known) to which the complainant and the complaint
where paragraph (a) is applicable, were referred on the complaint log
specified inSec. 658.410(c)(1). The JS official shall also prepare and
keep the file specified inSec. 658.410(c)(3) for the complaints filed
pursuant to paragraph (a) of this section.
Sec. 658.415 Transferring complaints to proper JS office.
(a) Where a JS-related complaint deals with an employer, the proper
office to handle the complaint initially is ordinarily the local office
serving the area in which the employer is located. Where a JS-related
complaint deals with an office of a State agency, the proper office to
handle the complaint initially is the local office serving the area in
which the alleged violation of the JS regulations occurred. Where an
agency-related complaint deals with more than one office of a State
agency, with an alleged agency-wide violation, or with the State office,
the appropriate State agency official may direct that the State office
of that agency handle the complaint initially.
(b) The State Administrator shall establish a system whereby the
office in which an JS-related complaint is filed, alleging a violation
in that same State, ensures that the JS Complaint/Referral Form is
adequately completed and then sent to the proper State or local office
of that agency. A copy of the referral letter shall be sent to the
complainant.
(c) Whenever a JS-related complaint deals with an employer in
another State or another State agency, the State JS agency shall send,
after ensuring that the JS Complaint/Referral Form is adequately
completed, a copy of the JS Complaint/Referral Form and copies of any
relevant documents to the State agency in the other State. Copies of the
referral letter shall be sent to the complainant, and copies of the
complaint and referral letter shall be sent to the ETA Regional
Office(s) with jurisdiction over the transferring and receiving State
agencies.
(d) The State agency receiving the complaint after an interstate
transferral under paragraph (c) of this section shall handle the
complaint as if it had been initially filed with that office.
(e) The ETA regional office with jurisdiction over the receiving
State shall follow-up with the receiving State agency to ensure the
complaint is handled in accordance with these regulations.
(f) If the JS complaint is against more than one State JS agency,
the complaint shall so clearly state. The complaint shall be handled as
separate complaints and shall be handled according to procedures at
Sec. 658.416(c) and paragraph (c) of this section.
Sec. 658.416 Action on JS-related complaints.
(a) The appropriate State agency official handling an JS-related
complaint shall offer to assist the complainant through the provision of
appropriate JS services. For complaints against employers, this may
include such services as referring a worker-complainant to another job.
(b)(1) If the JS-related complaint concerns violations of an
employment-related law, the local or State office official shall refer
the complaint to the appropriate enforcement agency and notify the
complainant in writing of the referral. The agency shall follow-up with
the enforcement agency monthly regarding MSFW complaints and quarterly
regarding non-MSFW complaints, and shall inform the complainant of the
status of the complaint periodically.
(2) If the enforcement agency makes a final determination that the
employer violated an employment related law, the State JS agency shall
initiate procedures for discontinuation of services immediately in
accordance with subpart F. The State agency shall notify the complainant
and the employer of this action.
(c) If the complaint is filed initially in a local office, and is
not referred under paragraph (b), the appropriate local office official
shall investigate and attempt to resolve the complaint immediately upon
receipt. If resolution
[[Page 10]]
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 local office
official shall send the complaint to the State office for resolution or
further action except that if the local office has made a written
request for information pursuant toSec. 658.412(a)(3), these time
periods shall not apply until the complainant's response is received in
accordance withSec. 658.412(a)(3). The local office shall notify the
complainant and the respondent, in writing, of the results of its
investigation pursuant to this paragraph, and of the referral to the
State office.
(d) If the complaint is filed initially with the State office, and
is not transferred to a local office underSec. 658.415(a), or not
referred to an enforcement agency under paragraph (b) of this section,
the appropriate State office official shall investigate and attempt to
resolve the complaint immediately upon receipt. If the State office
receives the complaint on referral from a local office, the State
official shall attempt to resolve the complaint immediately and may, if
necessary, conduct a further investigation. If resolution at the State
office level has not been accomplished within 30 working days (20
working days with respect to complaints by MSFWs) after the complaint
was received by the State office (whether the complaint was received
directly or from a local office pursuant to paragraph (c) of this
section), the State office shall make a written determination regarding
the complaint and shall send copies to the complainant and the
respondent except that if the State office has made a written request
for information pursuant toSec. 658.412 (a)(3) these time periods
shall not apply until the complainant's response is received in
accordance withSec. 658.412(a)(3). The determination must be sent by
certified mail. The determination shall include all of the following:
(1) The results of any State office investigation pursuant to this
paragraph.
(2) Conclusions reached on the allegations of the complaint.
(3) An explanation of why the complaint was not resolved.
(4) If the complaint is against an employer, and the State office
has found that the employer has violated JS regulations, the
determination shall state that the State will initiate procedures for
discontinuation of services to the employer in accordance with subpart
F.
(5) If the complaint is against an employer and has not been
referred to an enforcement agency pursuant to paragraph (b)(1) of this
section, and the State office has found that the employer has not
violated JS regulations, an offer to the complainant of the opportunity
to request a hearing within 20 working days after the certified date of
receipt of the notification.
(6) If the complaint is against the State agency, 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.
(e) If the State office, within 20 working days from the certified
date of receipt of the notification provided for in paragraph (d) of
this section, receives a written request for a hearing in response
thereto, the State office shall refer the complaint to a State hearing
official for hearing. The parties to whom the determination was sent
(the State agency may also be a party) shall then be notified in writing
by the State office that:
(1) The parties will be notified of the date, time and place of the
hearing;
(2) The parties may be represented at the hearing by an attorney or
other representative;
(3) The parties may bring witnesses and/or documentary evidence to
the hearing;
(4) The parties may cross-examine opposing witnesses at the hearing;
(5) The decision on the complaint will be based on the evidence
presented at the hearing;
(6) The State hearing official may reschedule the hearing at the
request of a party or its representative; and
(7) With the consent of the State agency'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.
[[Page 11]]
Sec. 658.417 Hearings.
(a) Hearings shall be held by State hearing officials. A State
hearing official may be any State official authorized to hold hearings
under State law. They may be, for example, the same referees who hold
hearings under the State unemployment compensation law or any official
of the State agency, authorized by State law 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 in this fashion.
(c) The State hearing official, upon the referral of a case for a
hearing, shall:
(1) Notify all involved parties of the date, time and place of the
hearing; and
(2) Re-schedule the hearing, as appropriate.
(d) In conducting a hearing the State hearing official shall:
(1) Regulate the course of the hearing;
(2) Issue subpoenas, if empowered to do so under State law, if
necessary;
(3) Assure that all relevant issues are considered;
(4) Rule on the introduction of evidence and testimony; and
(5) Take any other action which is necessary to insure an orderly
hearing.
(e) The testimony at the hearing shall be recorded and may be
transcribed when appropriate.
(f) The parties shall be afforded the opportunity to present,
examine, and cross-examine witnesses.
(g) The State hearing official may elicit testimony from witnesses,
but shall not act as advocate for any party.
(h) The State hearing official shall receive and include in the
record, documentary evidence offered by any party and accepted at the
hearing. Copies thereof shall be made available by the party submitting
the document to other parties to the hearing upon request.
(i) Technical rules of evidence shall not apply to hearings
conducted pursuant to this section, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination, shall 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, shall 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 shall, if feasible, resolve the
dispute by conciliation 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 specific legal or factual issues relevant to the complaint.
Any documents submitted by the amicus curiae shall be included in the
record.
(m) The following standards shall apply to the location of hearings
involving parties in more than one State or in locations within a State
but which are separated geographically so that access to the hearing
location is extremely inconvenient for one or more parties as determined
by the State hearing official.
(1) Whenever possible, the State hearing official shall hold a
single hearing, at a location convenient to all parties or their
representatives wishing to appear and present evidence, and with all
such parties and/or their representatives present.
(2) If a hearing location cannot be established by the State hearing
official pursuant to 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 with all parties
and their representatives not choosing to be present at that location
permitted to participate in the hearing from their distant locations.
(3) Where the State agency does not have the facilities to conduct
hearings
[[Page 12]]
by telephone pursuant to paragraph (m)(1) or (m)(2) of this section, the
State agencies in the States where the parties are located shall 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 withSec. 658.416.
[45 FR 39468, June 10, 1980, as amended at 71 FR 35523, June 21, 2006]
Sec. 658.418 Decision of the State hearing official.
(a) The State hearing official may:
(1) Rule that the case is improperly before it, that is, that there
is a lack of jurisdiction over the case;
(2) Rule that the complaint has been withdrawn properly and in
writing;
(3) Rule that reasonable cause exists to believe that the request
has been abandoned or that repeated requests for re-scheduling are
arbitrary and for the purpose of unduly delaying or avoiding a hearing;
(4) Render such other rulings as are appropriate to the issues in
question. However, the State hearing official shall not have
jurisdiction to consider the validity or constitutionality of JS
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 and State offices and any evidence provided
at the hearing, the State hearing official shall prepare a written
decision. The State hearing official shall send a copy of the decision
stating the findings and conclusions of law and fact and the reasons
therefor to the complainant, the respondent, entities serving as amicus
capacity (if any), the State office, 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 certified mail.
(c) All decisions of a State hearing official shall 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, if they are not satisfied, they may, within 20 working
days of the certified date of receipt of the decision, file an appeal in
writing with the Regional Administrator. The notice shall give the
address of the Regional Administrator.
Federal JS Complaint System
Sec. 658.420 Establishment of JS complaint system at the ETA
regional office.
(a) Each Regional Administrator shall establish and maintain a JS
complaint system at the DOL regional office level.
(b) The Regional Administrator shall designate DOL officials to
handle JS-related complaints as follows:
(1) The handling of all JS-related complaints alleging
discrimination by race, color, religion, national origin, sex, age, or
physical or mental status unrelated to job performance (handicap), shall
be assigned to a Regional Director for Equal Opportunity and Special
Review (RDEOSR) and, where appropriate, handled in accordance with
procedures at 29 CFR part 31.
(2) The handling of all JS-related complaints other than those
described in paragraphs (b)(1) of this section, shall be assigned to a
regional office official designated by the Regional Administrator,
provided that the regional office official designated to handle MSFW
complaints shall be the Regional MSFW Monitor Advocate.
(c) The Regional Administrator shall designate DOL officials to
handle non-JS-related complaints in accordance withSec. 658.422:
Provided, That the regional official designated to handle MSFW non-JS-
related complaints shall be the Regional MSFW Monitor Advocate.
(d) The Regional Administrator shall assure that all JS-related
complaints and all correspondence relating thereto are logged, with a
notation of the nature of each item.
Sec. 658.421 Handling of JS-related complaints.
(a) No JS-related complaint shall be handled at the ETA regional
office level until the complainant has exhausted the State agency
administrative remedies set forth at Sec.Sec. 658.410
[[Page 13]]
through 658.418. Therefore, if the Regional Administrator determines
that any complainant, who has filed a JS-related complaint with the
regional office, has not yet exhausted the administrative remedies at
the State agency level, the Regional Administrator shall 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 shall be sent to the State
Administrator. However, nothing in this provision shall prevent an ETA
regional office from accepting and handling to resolution a JS-related
complaint pursuant toSec. 658.423 orSec. 658.702(c).
(b) The ETA regional office shall be responsible for handling
appeals of determinations made on complaints at the State level. An
``appeal'' shall include any letter or other writing requesting review
if it is received by the regional office and signed by a party to the
complaint. Upon receipt of an appeal by the Regional Administrator after
the exhaustion of State agency administrative remedies, the Regional
Administrator immediately shall send for the complete State agency file,
including the original JS Complaint/Referral Form.
(c) The Regional Administrator shall review the file in the case and
shall determine within ten (10) days whether any further investigation
or action is appropriate, provided however that the Regional
Administrator shall have twenty (20) working days to make this
determination if legal advice is necessary.
(d) If the Regional Administrator determines that no further action
is warranted, the Regional Administrator shall send this determination
in writing by certified mail to the appellant within five (5) days of
his/her determination and may, in the Regional Administrator's
discretion, offer the appellant a hearing before a DOL Administrative
Law Judge, 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
immediately shall undertake such an investigation, informal resolution
or other action.
(f) If the Regional Administrator determines to reverse or modify
the decision of the State hearing official or the State Administrator,
the Regional Administrator shall offer in writing by certified mail each
party to the State hearing official's hearing or to whom the State
office determination was sent, the opportunity for a hearing before a
DOL Administrative Law Judge, provided the party requests such a hearing
in writing within 20 working days of the certified date of the Regional
Administrator's offer of hearing.
(g) If the Regional Administrator finds reason to believe that a
State agency or one of its local offices has violated JS regulations,
the Regional Administrator shall follow the procedures set forth at
subpart H of this part.
(h) If the appeal is not resolved, pursuant to paragraph (e) of this
section, to the appellant's satisfaction, the Regional Administrator
may, in the Regional Administrator's discretion, offer the appellant in
writing by certified mail a hearing before a DOL Administrative Law
Judge 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.
Sec. 658.422 Handling of non-JS-related complaints by the Regional
Administrator.
(a) Each non-JS-related complaint filed by an MSFW alleging
violations of employment related laws enforced by ESA or OSHA shall be
taken in writing, and referrred to ESA or OSHA for prompt action
pursuant to 29 CFR part 42.
(b) Upon referring the complaint in accordance with paragraph (a) of
this section, the regional official shall inform the complainant of the
enforcement agency (and individual, if known) to which the complaint was
referred and shall also refer the complainant to
[[Page 14]]
the enforcement agency, another public agency, an attorney, a consumer
advocate and/or other appropriate assistance.
(c) All other non-JS-related complaints alleging violations of
employment related laws shall be logged. The complainant shall be
referred to the appropriate agency for assistance.
(d) For all non-JS-related complaints received and/or referred, the
appropriate regional official shall record the referral of the
complainant (or complaint filed on behalf of an MSFW), and the agency or
agencies (and individual(s) if known) to which the complainant (or
complaint) was referred on a complaint log, similar to the one described
inSec. 658.410(c)(1). The appropriate regional official shall also
prepare and keep the file specified inSec. 658.410(c)(3).
Sec. 658.423 Handling of other complaints by the Regional Administrator.
Whenever the regional office receives a JS-related complaint and the
appropriate official 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, he/she shall take the complaint and follow up on
the complaint as follows: for a complaint against an employer, the
regional office shall handle the complaint in a manner consistent with
the requirements imposed upon State agencies by Sec.Sec. 658.413 and
658.416 of this part. A hearing shall be offered to the parties once the
Regional Administrator makes a determination on the complaint. For a
complaint against a State agency, the regional office shall follow
procedures established atSec. 658.702(c).
Sec. 658.424 Federal hearings.
(a) If a party requests a hearing pursuant toSec. 658.421 (d),
(f), or (h) orSec. 658.423, the Regional Administrator shall:
(1) Send the party requesting the hearing and all other parties to
the prior State agency hearing, a written notice containing the
statements set forth atSec. 658.416(e);
(2) Compile four hearing files 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, 800 K Street, NW., suite 400, Washington, DC
20001-8002, one hearing file to the 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) Upon the receipt of a hearing file, the DOL Administrative Law
Judge designated by the Chief Administrative Law Judge shall notify the
party requesting the hearing, all parties to the prior State hearing
official hearing (if any), the State agency, the Regional Administrator,
the Administrator, and the Solicitor of the receipt of the case. The DOL
Administrative Law Judge shall afford the non-Federal parties 20 working
days to submit legal arguments and supporting documentation, if any, in
the case. The DOL Administrative Law Judge shall afford the Solicitor 20
working days to submit legal arguments and supporting documentation, if
any, in the case on behalf of the Federal parties. After the 20 working
days elapse, the Hearing Officer shall decide whether to schedule a
hearing, or make a determination on the record.
(c) The DOL Administrative Law Judge 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 in this fashion.
(d) At the DOL Administrative Law Judge's discretion, other
appropriate individuals, organizations, or associations may be permitted
to participate in the hearing as amicus curiae with respect to specific
legal or factual issues relevant to the complaint. Any documents
submitted by the amicus curiae shall be included in the record.
(e) The following standards shall apply to the location of hearings
involving parties in more than one State or in locations which are
within a State but which are separated geographically so that access to
the hearing location is extremely inconvenient for one or more parties
as determined by the Administrative Law Judge.
[[Page 15]]
(1) Whenever possible, the Administrative Law Judge shall hold a
single hearing, at a location convenient to all parties or their
representatives wishing to appear and present evidence, and with all
such parties and/or their representatives present.
(2) If a hearing location cannot be established by the
Administrative Law Judge at a location pursuant to paragraph (e)(1) of
this section, the Administrative Law Judge may conduct, with the consent
of the parties, the hearing by a telephone conference call from an
office with all parties and their representatives not choosing to be
present at that location permitted to participate in the hearing from
their distant locations.
(3) Where the Administrative Law Judge is unable to locate
facilities to conduct hearings by telephone pursuant to paragraph (e)(1)
or (e)(2) of this section, the Administrative Law Judge shall take
evidence in the States where the parties are located 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 withSec. 658.416.
(f) The DOL Administrative Law Judge shall:
(1) Notify all involved parties of the date, time and place of the
hearing; and
(2) Re-schedule the hearing, as appropriate.
(g) In conducting a hearing the DOL Administrative Law Judge shall:
(1) Regulate the course of the hearing;
(2) Issue subpoenas if necessary;
(3) Consider all relevant issues which are raised;
(4) Rule on the introduction of evidence and testimony;
(5) Take any other action which is necessary to insure an orderly
hearing.
(h) The testimony at the hearing shall be recorded, and shall be
transcribed if appropriate.
(i) The parties to the hearing shall be afforded the opportunity to
present, examine, and cross-examine witnesses. The DOL Administrative
Law Judge may elicit testimony from witnesses, but shall not act as
advocate for any party.
(j) The DOL Administrative Law Judge shall receive, and make part of
the record, documentary evidence offered by any party and accepted at
the hearing. Copies thereof shall be made available by the party
submitting the documentary evidence, to any part to the hearing upon
request.
(k) Technical rules of evidence shall 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 shall be applied where reasonably
necessary by the Administrative Law Judge conducting the hearing. The
Administrative Law Judge may exclude irrelevant, immaterial, or unduly
repetitious evidence.
(l) The case record, or any portion thereof, shall 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.
(m) The DOL Administrative Law Judge shall, if feasible, encourage
resolution of the dispute by conciliation at any time prior to the
conclusion of the hearing.
[45 FR 39468, June 10, 1980, as amended at 56 FR 54708, Oct. 22, 1991]
Sec. 658.425 Decision of DOL Administrative Law Judge.
(a) The DOL Administrative Law Judge may:
(1) Rule that there is a lack of jurisdiction over the case;
(2) Rule that the appeal has been withdrawn properly and in writing,
with the written consent of all the parties;
(3) Rule that reasonable cause exists to believe that the appeal has
been abandoned or that repeated requests for re-scheduling are arbitrary
and for the purpose of unduly delaying or avoiding a hearing; or
(4) Render such other rulings as are appropriate to the issues in
question. However, the DOL Administrative Law Judge shall not have
jursidiction to consider the validity or constitutionality of JS
regulations or of the
[[Page 16]]
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 DOL Administrative Law Judge shall prepare a written
decision. The DOL Administrative Law Judge shall send a copy of the
decision stating the findings and conclusions of law and fact and the
reasons therefor to the parties to the hearing, including the State
agency, the Regional Administrator, the Administrator, and the
Solicitor, and to entities filing amicus briefs (if any).
(c) The decision of the DOL Administrative Law Judge shall be the
final decision of the Secretary.
Sec. 658.426 Complaints against USES.
Complaints alleging that an ETA regional office or the national
office of USES has violated JS regulations should be mailed to the
Assistant Secretary for Employment and Training, U.S. Department of
Labor, Washington, DC 20210. Such complaints should include:
(a) The allegations of wrong-doing, (b) the date of the incident,
(c) location of the incident, (d) who the complaint is against, and (e)
any other relevant information available to the complainant. The
Assistant Secretary or the Regional Administrator as designated shall
make a determination and respond to the complainant after investigation
of the complaint.
Subpart F_Discontinuation of Services to Employers by the Job 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 State agencies.
Sec. 658.501 Basis for discontinuation of services.
(a) The State agency shall 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 paragraph (d) above, 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 JS by that enforcement
agency;
(5) Are found to have violated JS regulations pursuant toSec.
658.416(d)(4);
(6) Refuse to accept qualified workers referred through the
clearance system;
(7) Refuse to cooperate in the conduct of field checks conducted
pursuant toSec. 653.503; or
(8) Repeatedly cause the initiation of the procedures for
discontinuation of services pursuant to paragraphs (a)(1) through (6) of
this section.
(b) The State agency may discontinue services immediately if, in the
judgment of the State Administrator, exhaustion of the administrative
procedures set forth in this subpart at Sec.Sec. 658.501 through
658.502 would cause substantial harm to a significant number of workers.
In such instances, procedures atSec. 658.503 (b) et seq. shall be
followed.
(c) For employers who are alleged to have not complied with the
terms of the temporary labor certification, State agencies shall notify
the Regional Adminstrator of the alleged non-compliance for
investigation and pursuant toSec. 655.210 consideration of
ineligibility for subsequent temporary labor certification.
Sec. 658.502 Notification to employers.
(a) The State agency shall notify the employer in writing that it
intends to
[[Page 17]]
discontinue the provision of JS services pursuant to 20 CFR part 653 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 State agency shall specify the date the order was
submitted, the job order involved, the specifications contrary to
employment-related laws and the laws involved. The employer shall be
notified in writing that all JS 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 State agency pursuant toSec.
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 State agency
shall specify the date the order was submitted, the job order involved
and the assurances involved. The employer shall be notified that all JS
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 State agency pursuant toSec.
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 shall specify the basis for that determination. The
employer shall be notified that all JS 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 JS, 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 State agency pursuant toSec.
658.417.
(4) Where the decision is based on a final determination by an
enforcement agency that the employer-related laws, the State agency
shall specify the determination. The employer shall be notified that all
JS 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 JS
regulations underSec. 658.416(d)(4), the State agency shall specify
the finding. The employer shall be notified that all JS services will be
terminated in 20 working days unless the employer within that time:
(i) Provides adequate evidence that the employer did not violate JS
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
[[Page 18]]
corrected and the same or similar violations are not likely to occur in
the future, or
(iv) Requests a hearing from the State agency pursuant toSec.
658.417.
(6) Where the decision is based on an employer's failure to accept
qualified workers referred through the clearance system, the State
agency shall specify the workers referred and not accepted. The employer
shall be notified that all JS 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 State agency pursuant toSec.
658.417.
(7) Where the decision is based on lack of cooperation in the
conduct of field checks, the State agency shall specify the lack of
cooperation, the employer shall be notified that all JS services will be
terminated in 20 working days unless the employer within that time:
(i) Provides adequate evidence that he 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 State agency pursuant toSec.
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.
(c) Where the decision is based on repeated initiation of procedures
for discontinuation of services, the employer shall be notified that
services have been terminated.
(d) If the employer makes a timely request for a hearing, in
accordance with this section, the State agency shall follow procedures
set forth atSec. 658.417 and notify the complainant whenever the
discontinuation of services is based on a complaint pursuant toSec.
658.501(a)(5).
Sec. 658.503 Discontinuation of services.
(a) If the employer does not provide a satisfactory response in
accordance withSec. 658.502, within 20 working days, or has not
requested a hearing, the State agency shall immediately terminate
services to the employer.
(b) If services are discontinued to an employer subject to Federal
Contractor Job Listing Requirements, the State agency shall notify the
ETA regional office immediately.
Sec. 658.504 Reinstatement of services.
(a) Services may be reinstated to an employer after discontinuation
underSec. 658.503, if:
(1) The State is ordered to do so by a Federal Administrative Law
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 difficulties
are not likely to occur in the future, and
(ii) The employer provides adequate evidence that the employer has
responded adequately to any findings of an enforcement agency, State JS
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 State agency shall notify, within 20 working days, the
employer requesting reinstatement whether his request has been granted.
If the State denies the request for reinstatement, the basis for the
denial shall be specified and the employer shall 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 State
agency shall follow the procedures set forth atSec. 658.417.
(d) The State agency shall reinstate services to an employer if
ordered to do so by a State hearing officer, Regional Administrator, or
Federal Administrative Law Judge as a result of a hearing
[[Page 19]]
offered pursuant to paragraph (c) of this section.
Subpart G_Review and Assessment of State Agency Compliance With Job
Service Regulations
Authority: Wagner-Peyser Act of 1933, as amended, 29 U.S.C. 49 et
seq. 5 U.S.C. 301 et seq.
Sec. 658.600 Scope and purpose of subpart.
This subpart sets forth the regulations governing review and
assessment of State agency compliance with the Job Service regulations
at 20 CFR parts 601, 602, 603, 604, 620, 621, 651-658 and 29 CFR part 8.
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 shall establish and maintain a self-appraisal
system for job service operations to determine success in reaching goals
and to correct deficiencies in performance. The self-appraisal system
shall include numerical (quantitative) appraisal and non-numerical
(qualitative) appraisal.
(1) Numerical appraisal at the local office level shall be conducted
as follows:
(i) Performance shall be measured on a quarterly-basis against
planned service levels as stated in the State Program and Budget Plan
(PBP). The State plan shall be consistent with numerical goals contained
in local office plans.
(ii) To appraise numerical activities/indicators, actual results as
shown on the Employment Security Automated Reporting System (ESARS)
tables and Cost Accounting Reports shall be compared to planned levels.
Variances between achievement and plan shall be identified.
(iii) When the numerical appraisal of required activities/indicators
identifies significant variances from planned levels, additional
analysis shall be conducted to isolate possible contributing factors.
This data analysis shall include, as appropriate, comparisons to past
performance, attainment of PBP goals and consideration of pertinent non-
numerical factors.
(iv) Results of local office numerical reviews shall be documented
and significant deficiencies identified. A corrective action plan as
described in paragraph (a)(6) shall be developed to address these
deficiencies.
(v) The result of local office appraisal, including corrective
action plans, shall be communicated in writing to the next higher level
of authority for review. This review shall 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 office performance within the area or
district jurisdiction shall be communicated to the central office on a
quarterly basis.
(2) Numerical appraisal at the central office level shall be
conducted as follows:
(i) Performance shall be measured on a quarterly basis against
planned service levels as stated in the State Program and Budget Plan
(PBP). The State plan shall be consistent with numerical goals contained
in local office plans.
(ii) To appraise these key numerical activities/indicators, actual
results as shown on the Employment Security Automated Reporting System
(ESARS) tables and Cost Accounting Reports shall be compared to planned
levels. Variances between achievement and plan shall be identified.
(iii) The central office shall review Statewide data, and
performance against planned service levels as stated in the State
Program and Budget Plan (PBP) 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 PBP goals.
(iv) Results of numerical reviews shall be documented and
significant deficiencies identified. A corrective action plan as
described in paragraph (a)(5) of this section shall be developed to
address these deficiencies. These plans shall be submitted to the ETA
[[Page 20]]
Regional Office as part of the periodic performance process described at
20 CFR 658.603(d)(2).
(3) Nonnumerical (qualitative) appraisal of local office job service
title III activities shall be conducted at least annually as follows:
(i) Each local office shall assess the quality of its services to
applicants, employers, and the community and its compliance with Federal
regulations.
(ii) At a minimum, nonnumerical review shall include an assessment
of the following factors:
(A) Appropriateness of services provided to applicants and
employers;
(B) Timely delivery of services to applicants and employers;
(C) Staff responsiveness to individual applicant and employer needs;
(D) Thoroughness and accuracy of documents prepared in the course of
service delivery; and
(E) Effectiveness of JS interface with external organizations, i.e.,
other ETA funded programs, community groups, etc.
(iii) Nonnumerical review methods shall include:
(A) Observation of processes;
(B) Review of documents used in service provisions; and
(C) Solicitation of input from applicants, employers, and the
community.
(iv) The result of nonnumerical reviews shall be documented and
deficiencies identified. A corrective action plan that addresses these
deficiencies as described in paragraph (a)(6) of this section shall be
developed.
(v) The result of local office nonnumerical appraisal, including
corrective actions, shall be communicated in writing to the next higher
level of authority for review. This review shall cover thoroughness and
adequacy of local 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
office performance within that jurisdiction shall be communicated to the
central office on an annual basis.
(4) As part of its oversight responsibilities, the central office
shall conduct onsite reviews in those local offices which show
continuing internal problems or deficiencies in performance as indicated
by such sources as data analysis, nonnumerical appraisal, or other
sources of information.
(5) Nonnumerical (qualitative) review of central office job service
activities shall be conducted as follows:
(i) Central office operations shall be assessed annually to
determine compliance with Federal regulations and to assess progress
made on annually established work plans established for central office
staff.
(ii) Results of nonnumerical reviews shall be documented and
deficiencies identified. A corrective action plan that addresses these
deficiencies shall 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 shall 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)(a) The provisions of the JS regulations which require numerical
and nonnumerical assessment of service to special applicant groups,
e.g., services to veterans at 20 CFR 653.221 through 653.230 and
services to MSFWs at 20 CFR 653.108, are supplementary to the provisions
of this section.
(b) Each State Administrator and local office manager shall assure
that their staffs know and carry out JS regulations, including
regulations on performance standards and program emphases, and any
corrective action plans imposed by the State agency or by the ETA.
(c) Each State Administrator shall assure that the State agency
complies with its approved program budget plan.
(d) Each State Administrator shall assure to the maximum extent
feasible the accuracy of data entered by the State agency into ETA
required management information systems. Each State agency shall
establish and maintain a data validation system pursuant to ETA
instructions. The system shall
[[Page 21]]
review every local office at least once every four years. The system
shall include the validation of time distribution reports and the review
of data gathering procedures.
Sec. 658.602 ETA national office responsibility.
The ETA national office shall:
(a) Monitor ETA regional offices' carrying out of JS regulations;
(b) From time to time, conduct such special reviews and audits as
necessary to monitor ETA regional office and State agency compliance
with JS regulations;
(c) Offer technical assistance to the ETA regional offices and State
agencies in carrying out JS regulations and programs;
(d) Have report validation surveys conducted in support of resource
allocations;
(e) Develop tools and techniques for reviewing and assessing State
agency performance and compliance with JS regulations.
(f) ETA shall appoint a National MSFW Monitor Advocate, who shall
devote full time to the duties set forth in this subpart. The National
MSFW Monitor Advocate shall:
(i) Review the effective functioning of the Regional and State MSFW
Monitor Advocates;
(ii) Review the performance of State agencies in providing the full
range of JS services to MSFWs;
(iii) Take steps to resolve or refer JS-related problems of MSFWs
which come to his/her attention;
(iv) Take steps to refer non JS-related problems of MSFWs which come
to his/her attention;
(v) Recommend to the Administrator changes in policy toward MSFWs;
and
(vi) Serve as an advocate to improve services for MSFWs within JS.
The National MSFW Monitor Advocate shall be a member of the National
Farm Labor Coordinated Enforcement Staff Level Working Committee.
(1) The National MSFW Monitor Advocate shall be appointed by the
Administrator after informing farmworker organizations and other
organizations with expertise concerning MSFWs of the openings and
encouraging them to refer qualified applicants to apply through the
federal merit system. Among qualified candidates, determined through
merit systems procedures, individuals shall be sought who meet the
criteria used in the selection of the State MSFW Monitor Advocates, as
provided inSec. 653.108(b).
(2) The National MSFW Monitor Advocate shall be assigned staff
necessary to fulfill effectively all the responsibilities set forth in
this subpart.
(3) The National MSFW Monitor Advocate shall submit an annual report
(``Annual Report'') to the Administrator, the ETA Assistant Secretary,
and the National Farm Labor Coordinating Committee covering the matters
set forth in this subpart.
(4) The National MSFW Monitor Advocate shall monitor and assess
State agency compliance with JS regulations affecting MSFWs on a
continuing basis. His/her assessment shall consider
(i) Information from Regional and State MSFW Monitor Advocates;
(ii) Program performance data, including the service indicators;
(iii) Periodic reports from regional offices;
(iv) All federal on-site reviews;
(v) Selected State on-site reviews;
(vi) Other relevant reports prepared by USES;
(vii) Information received from farmworker organizations and
employers; and
(viii) His/her personal observations from visits to State JS
offices, agricultural work sites and migrant camps. In the Annual
Report, the National MSFW Monitor Advocate shall include both a
quantitative and qualitative analysis of his/her findings and the
implementation of his/her recommendations by State and federal
officials, and shall address the information obtained from all of the
foregoing sources.
(5) The National MSFW Monitor Advocate shall review the activities
of the State/federal monitoring system as it applies to services to
MSFWs and the JS complaint system including the effectiveness of the
regional monitoring function in each region and shall recommend any
appropriate changes in
[[Page 22]]
the operation of the system. The National MSFW Monitor Advocate's
findings and recommendations shall be fully set forth in the Annual
Report.
(6) If the National MSFW Monitor Advocate finds that the
effectiveness of any Regional MSFW Monitor Advocate has been
substantially impeded by the Regional Administrator or other Regional
Office official, he/she shall, if unable to resolve such problems
informally, report and recommend appropriate actions directly to the
Administrator. If the National MSFW Monitor Advocate receives
information that the effectiveness of any State Monitor Advocate has
been substantially impeded by the State Administrator or other State or
federal JS official, he/she shall, in the absence of a satisfactory
informal resolution at the regional level, report and recommend
appropriate actions directly to the Administrator.
(7) The National MSFW Monitor Advocate shall be informed of all
proposed changes in policy and practice within USES, including JS
regulations, which may affect the delivery of services to MSFWs. The
National MSFW Monitor Advocate shall advise the Administrator concerning
all such proposed changes which may adversely affect MSFWs. The National
MSFW Monitor Advocate shall propose directly to the Administrator
changes in JS policy and administration which may substantially improve
the delivery of services to MSFWs. He/she shall also recommend changes
in the funding of state agencies and/or adjustment or reallocation of
the discretionary portions of funding formulae.
(8) The National MSFW Monitor Advocate shall participate in the
review and assessment activities required in this section andSec.
658.700 et seq. As part of such participation, the National MSFW Monitor
Advocate, or if he/she is unable to participate a Regional MSFW Monitor
Advocate, shall accompany the National Office review team on National
Office on-site reviews. The National MSFW Monitor Advocate shall engage
in the following activities in the course of each State on-site review:
(i) He/she shall accompany selected outreach workers on their field
visits.
(ii) He/she shall participate in a random field check[s] of migrant
camps or work site[s] where MSFWs have been placed on inter or intra
state clearance orders.
(iii) He/she shall contact local WIA 167 National Farmworker Jobs
program organizations or other farmworker organizations as part of the
on-site review, and, conduct an interview with representatives of the
organizations.
(iv) He/she shall meet with the State MSFW Monitor Advocate and
discuss the full range of the JS services to MSFWs, including the
monitoring and complaint systems.
(9) In addition to the duties specified in paragraph (f)(8) of this
section, the National MSFW Monitor Advocate each year during the harvest
season shall 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
shall:
(i) Meet with the State MSFW Monitor Advocate and other central
office staff to discuss MSFW service delivery, and (ii) contact
representatives of MSFW organizations and interested employer
organizations to obtain information concerning JS service delivery and
coordination with other agencies.
(10) The National MSFE Monitor Advocate shall perform the duties
specified inSec. 658.700. As part of this function, he/she shall
monitor the performance of regional offices in imposing corrective
action. The National MSFW Monitor Advocate shall report any deficiencies
in performance to the Administrator.
(11) The National MSFW Monitor Advocate shall establish routine and
regular contacts with WIA 167 National Farmworker Jobs program
organizations, other farmworker organizations and agricultural employers
and/or employer organizations. He/she shall attend conferences or
meetings of these groups wherever possible and shall report to the
Administrator and the National Farm Labor Coordinated Enforcement
Committee on these contacts when appropriate. The National MSFW Monitor
Advocate shall include in the Annual Report recommendations as to how
DOL might better coordinate
[[Page 23]]
JS and WIA 167 National Farmworker Jobs program services as they pertain
to MSFWs.
(12) In the event that any State or Regional MSFW Monitor Advocate,
enforcement agency or MSFW group refers a matter to the National MSFW
Monitor Advocate which requires emergency action, he/she shall assist
them in obtaining action by appropriate agencies and staff, inform the
originating party of the action taken, and, upon request, provide
written conformation.
(13) Through all the mechanisms provided in this subpart, the
National MSFW Monitor Advocate shall aggressively seek to ascertain and
remedy, if possible, systemic deficiencies in the provisions of JS
services and protections afforded by these regulations to MSFWs. The
National MSFW Monitor Advocate shall:
(i) Use the regular reports on complaints submitted by State
agencies and ETA regional offices to assess the adequacy of these
systems and to determine the existence of systemic deficiencies.
(ii) Provide technical assistance to ETA regional office and State
agency staffs for administering the JS complaint system.
(iii) Recommend to the Administrator specific instructions for
action by regional office staff to correct any JS-related systemic
deficiencies. Prior to any ETA review of regional office operations
concerning JS services to MSFWs, the National MSFW Monitor Advocate
shall provide to the Administrator a brief summary of JS-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.
(iv) Recommend to the National Farm Labor Coordinated Enforcement
Committee specific instructions for action by ESA and OSHA regional
office staff to correct any non-JS-related systemic deficiencies of
which he/she is aware.
[45 FR 39468, June 10, 1980, as amended at 71 FR 35523, June 21, 2006]
Sec. 658.603 ETA regional office responsibility.
(a) The Regional Administrator shall have responsibility for the
regular review and assessment of State agency performance and compliance
with JS regulations.
(b) The Regional Administrator shall review and approve annual
program budget plans for the State agencies within the region. In
reviewing the program budget plans the Regional Administrator shall
consider relevant factors including the following:
(1) State agency compliance with JS regulations;
(2) State agency performance against the goals and objectives
established in the previous year's program budget 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 State agency performance;
(4) State agency adherence to national program emphasis; and
(5) The adequacy and appropriateness of the program budget plan for
carrying out JS programs.
(c) The Regional Administrator shall assess the overall performance
of State agencies on an ongoing basis through desk reviews and the use
of required reporting systems and other available information.
(d) As appropriate, Regional Administrators shall conduct or have
conducted:
(1) Comprehensive on-site reviews of State agencies and their
offices to review State agency organization, management, and program
operations;
(2) Periodic performance reviews of State agency operation of JS
programs to measure actual performance against the program budget plan,
past performance, the performance of other State agencies, etc.;
(3) Audits of State agency programs to review State agency program
activity and to assess 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 State agency to have audits conducted;
[[Page 24]]
(4) Validations of data entered into management information systems
to assess:
(i) The accuracy of data entered by the State agencies into
management information system;
(ii) Whether the State agencies' data validating and reviewing
procedures conform to ETA instructions; and
(iii) Whether State agencies have implemented any corrective action
plans required by the ETA to remedy deficiencies in their validation
programs;
(5) Technical assistance programs to assist State agencies in
carrying out JS regulations and programs;
(6) Reviews to assess whether the State agency has complied with
corrective action plans imposed by the ETA or by the State agency
itself; and
(7) Random, unannounced field checks of a sample of agricultural
work sites to which JS 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 JS Complaint
Referral Form and provided to the State agency to be handled as a
complaint underSec. 658.411(b).
(e) The Regional Administrator shall provide technical assistance to
State agencies to assist them in carrying out JS regulations and
programs.
(f) The Regional Administrator shall appoint a Regional MSFW Monitor
Advocate who shall devote full time to the duties set forth in this
subpart. The Regional MSFW Monitor Advocate shall:
(i) Review the effective functioning of the State MSFW Monitor
Advocates in his/her region;
(ii) Review the performance of State agencies in providing the full
range of JS services to MSFWs;
(iii) Take steps to resolve JS-related problems of MSFWs which come
to his/her attention;
(iv) Recommend to the Regional Administrator changes in policy
towards MSFWs;
(v) Review the operation of the JS complaint system; and
(vi) Serve as an advocate to improve service for MSFWs within JS.
The Regional MSFW Monitor Advocate shall be a member of the Regional
Farm Labor Coordinated Enforcement Committee.
(1) The Regional MSFW Monitor Advocate shall 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 Regional MSFW Monitor Advocate
shall have direct personal access to the Regional Administrator wherever
he/she finds it necessary. Among qualified candidates, individuals shall
be sought who meet the criteria used in the selection of the State MSFW
Monitor Advocates, as provided inSec. 653.108(b).
(2) The Regional Administrator shall ensure that staff necessary to
fulfill effectively all the regional office responsibilities set forth
in this subsection are assigned. The Regional MSFW Monitor Advocate
shall notify the Regional Administrator of any staffing deficiencies and
the Regional Administrator shall take appropriate action.
(3) The Regional MSFW Monitor Advocate within the first three months
of their tenure shall participate in a training session(s) approved by
the National office.
(4) At the regional level, the Regional MSFW Monitor Advocate shall
have primary responsibility for (i) monitoring the effectiveness of the
JS complaint system set forth at subpart E of this part; (ii) apprising
appropriate State and ETA officials of deficiencies in the complaint
system; and (iii) providing technical assistance to State MSFW Monitor
Advocates in the region.
(5) At the ETA regional level, the Regional MSFW Monitor Advocate
shall have primary responsibility for ensuring that State agency
compliance with JS regulations as they pertain to services to MSFWs is
monitored by the regional office. He/she shall independently assess on a
continuing basis the provision of JS services to MSFWs, seeking out and
using:
[[Page 25]]
(i) Information from State MSWF Monitor Advocates, including all
reports and other documents; (ii) program performance data; (iii) the
periodic and other required reports from State JS offices; (iv) federal
on-site reviews; (v) other reports prepared by the National office; (vi)
information received from farmworker organizations and employers; and
(vii) any other pertinent information which comes to his/her attention
from any possible source. In addition, the Regional MSFW Monitor
Advocate shall consider his/her personal observations from visits to JS
offices, agricultural work sites and migrant camps. The Regional MSFW
Monitor Advocate shall assist the Regional Administrator and other
appropriate line officials in applying appropriate corrective and
remedial actions to State agencies.
(6) The Regional Administrator's quarterly report to the National
office shall include the Regional MSFW Monitor Advocate's summary of
his/her independent assessment as required in paragraph (f)(5) of this
section. The fourth quarter summary shall include an annual summary from
the region. The summary also shall include both a quantitative and a
qualitative analysis of his/her reviews and shall address all the
matters with respect to which he/she has responsibilities under these
regulations.
(7) The Regional MSFW Monitor Advocate shall review the activities
and performance of the State MSFW Monitor Advocates and the State
monitoring system in the region, and shall recommend any appropriate
changes in the operation of the system to the Regional Administrator.
The Regional MSFW Monitor Advocate's review shall include a
determination whether the State MSFW Monitor Advocate (i) does not have
adequate access to information, (ii) is being impeded in fulfilling his/
her duties, or (iii) is making recommendations which are being
consistently ignored by State agency officials. If the Regional MSFW
Monitor Advocate believes that the effectiveness of any State MSFW
Monitor Advocate has been substantially impeded by the State
Administrator, other State office officials, or any Federal officials,
he/she shall report and recommend appropriate actions to the Regional
Administrator. Information copies of the recommendations shall be
provided the National MSFW Monitor Advocate.
(8) The Regional MSFW Monitor Advocate shall be informed of all
proposed changes in policy and practice within USES, including JS
regulations, which may affect the delivery of services to MSFWs. He/she
shall 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 Regional
MSFW Monitor Advocate may also recommend changes in JS 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.
(9) The Regional MSFW Monitor Advocate shall participate in the
review and assessment activities required in this section andSec.
658.700 et seq. He/she, an Assistant, or another Regional MSFW Monitor
Advocate, shall participate in national office and regional office on-
site statewide reviews of JS services to MSFWs in States in the region.
The Regional MSFW Monitor Advocate shall engage in the following
activities in the course of participating in an on-site State agency
review:
(i) He/she shall accompany selected outreach workers on their field
visits;
(ii) He/she shall participate in a random field check of migrant
camps or work sites where MSFWs have been placed on inter or intrastate
clearance orders;
(iii) He/she shall contact local WIA 167 National Farmworker Jobs
program organizations or other farmworker organizations as part of the
on-site review, and shall conduct interviews with representatives of the
organizations; and
(iv) He/she shall meet with the State MSFW Monitor Advocate and
discuss the full range of the JS services to MSFWs, including the
monitoring and complaint system.
(10) During the calendar quarter preceding the time of peak MSFW
activity in each State, the Regional MSFW Monitor Advocate shall meet
with the State MSFW Monitor Advocate and
[[Page 26]]
shall review in detail the State agency's capability for providing full
services to MSFWs as required by JS regulations, during the upcoming
harvest season. The Regional MSFW Monitor Advocate shall offer technical
assistance and recommend to the State agency and/or the Regional
Administrator any changes in State policy or practice that he/she finds
necessary.
(11) The Regional MSFW Monitor Advocate each year during the peak
harvest season shall visit each state in the region not scheduled for an
on-site review during that fiscal year and shall:
(i) Meet with the State MSFW Monitor Advocate and other central
office staff to discuss MSFW service delivery, and (ii) contact
representatives of MSFW organizations to obtain information concerning
JS service delivery and coordination with other agencies and interested
employer organizations.
(12) The Regional MSFW Monitor Advocate shall initiate and maintain
regular and personal contacts, including informal contacts in addition
to those specifically required by these regulations, with State MSFW
Monitor Advocates in the region. In addition, the Regional MSFW Monitor
Advocate shall have personal and regular contact with the National MSFW
Monitor Advocate. The Regional MSFW Monitor Advocate shall also
establish routine and regular contacts with WIA 167 National Farmworker
Jobs program organizations, other farmworker organizations and
agricultural employers and/or employer organizations in his/her region.
He/she shall attend conferences or meetings of these groups wherever
possible and shall report to the Regional Administrator and the Regional
Farm Labor Coordinated Enforcement Committee on these contacts when
appropriate. He/she shall also make recommendations as to how DOL might
better coordinate JS and WIA 167 National Farmworker Jobs program
services to MSFWs.
(13) The Regional MSFW Monitor Advocate shall attend MSFW-related
public meeting(s) conducted in the region, pursuant to 29 CFR 42.20.
Following such meetings or hearings, the Regional MSFW Monitor Advocate
shall 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.
(14) The Regional MSFW Monitor Advocate shall attempt to achieve
regional solutions to any problems, deficiencies or improper practices
concerning services to MSFWs which are regional in scope. Further, he/
she shall 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 JS services to MSFWs. He/she shall facilitate region-wide
coordination and communication regarding provision of JS services to
MSFWs among State MSFW Monitor Advocates, State Administrators and
federal ETA officials to the greatest extent possible. In the event that
any State or other Regional MSFW Monitor Advocate, enforcement agency,
or MSFW group refers a matter to the Regional MSFW Monitor Advocate
which requires emergency action, he/she shall assist them in obtaining
action by appropriate agencies and staff, inform the originating party
of the action taken, and, upon request, provide written confirmation.
(15) The Regional MSFW Monitor Advocate shall initiate and maintain
such contacts as he/she deems necessary with Regional MSFW Monitor
Advocates in other regions to seek to resolve problems concerning MSFWs
who work, live or travel through the region. He/she shall 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.
(16) The Regional MSFW Monitor Advocate shall establish regular
contacts with the ESA and OSHA farmworker specialists in the region and,
to the extent necessary, shall establish contacts with the staff of
other DOL agencies represented on the Regional Farm Labor Coordinated
Enforcement Committee. The Regional MSFW Monitor Advocate shall
coordinate his/her efforts with specialists in the region to ensure that
the policy specified in 29 CFR 42.20(c)(3) is followed.
[[Page 27]]
(17) The Regional MSFW Monitor Advocate shall participate in the
regional reviews of State agency Program Budget Plans, and shall comment
to the Regional Administrator as to the adequacy of the affirmative
action plans, the outreach plans, and other specific plans included
therein.
[45 FR 39468, June 10, 1980, as amended at 71 FR 35523, June 21, 2006]
Sec. 658.604 Assessment and evaluation of program performance data.
(a) State agencies shall compile program performance data required
by ETA, including statistical information on program operations.
(b) The ETA shall use the program performance data in assessing and
evaluating whether the State agencies have complied with JS regulations
and their State agency program budget plans.
(c) In assessing and evaluating program performance data, the ETA
shall act in accordance with the following general principles:
(1) The fact that the program performance data from a State agency,
whether overall or relative to a particular program activity, indicate
poor program performance does not by itself constitute a violation of JS
regulations or of the State agency's responsibilities under its State
agency program budget plan;
(2) Program performance data, however, may so strongly indicate that
a State agency's performance is poor that the data may raise a
presumption (prima facie case) that a State agency is violating JS
regulations or the State agency program budget plan. A State agency's
failure to meet the operational objectives set forth in the PBP shall
raise a presumption that the agency is violating JS regulations and/or
its PBP. In such cases the ETA shall afford the State agency an
opportunity to rebut the presumption of a violation pursuant to the
procedures at subpart H of this part.
(3) The ETA shall take into account that certain program performance
data may measure items over which State agencies have direct or
substantial control while other data may measure items over which the
State agency has indirect or minimal control.
(i) Generally, for example, a State agency has direct and
substantial control over the delivery of job services such as referrals
to jobs, job development contacts, applicant counseling, referrals to
supportive services and the conduct of field checks.
(ii) State agencies, however, have only indirect control over the
outcome of services. State agencies, for example, 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, moreover, such as a sudden heavy increase in
unemployment rates, a strike by State agency employees, or a severe
drought or flood may skew the results measured by program performance
data;
(4) The ETA shall consider a State agency's failure to keep accurate
and complete program performance data required by JS regulations as a
violation of the JS regulations.
Sec. 658.605 Communication of findings to State agencies.
(a) The Regional Administrator shall inform State agencies in
writing of the results of review and assessment activities and, as
appropriate, shall discuss with the State Administrator the impact or
action required by ETA as a result of review and assessment activities.
(b) The ETA national office shall transmit the results of any review
and assessment activities conducted by it to the Regional Administrator
who shall send the information to the State agency.
(c) Whenever the review and assessment indicates a State agency
violation of JS regulations or its State agency program budget plan, the
Regional Administrator shall follow the procedures set forth at subpart
H of this part.
(d) Regional Administrators shall follow-up any corrective action
plan imposed on a State agency under subpart H of this part by further
review and assessment of the State agency pursuant to this subpart.
[[Page 28]]
Subpart H_Federal Application of Remedial Action to State Agencies
Authority: Wagner-Peyser Act of 1933, as amended, 29 U.S.C. 49 et
seq.; 5 U.S.C. 301 et seq.
Sec. 658.700 Scope and purpose of subpart.
This subpart sets forth the procedures which ETA shall follow upon
either discovering independently or receiving from other(s) information
indicating that State agencies may not be adhering to JS regulations.
Sec. 658.701 Statements of policy.
(a) It is the policy of the Employment and Training Administration
(ETA) 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 JS regulations.
(b) It is the policy of ETA to initiate decertification procedures
against State agencies in instances of serious or continual violations
of JS regulations if less stringent remedial actions taken in accordance
with this subpart fail to resolve noncompliance.
(c) It is the policy of the ETA to act on information concerning
alleged violations by State agencies of the JS regulations received from
any person or organization.
Sec. 658.702 Initial action by the Regional Administrator.
(a) The ETA Regional Administrator shall be responsible for ensuring
that all State agencies in his/her region are in compliance with JS
regulations.
(b) Wherever a Regional Administrator discovers or is apprised of
possible State agency violations of JS 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 ETA after the exhaustion of State agency
administrative remedies, the Regional Administrator shall conduct an
investigation. Within 10 days after receipt of the report or other
information, the Regional Administrator shall make a determination
whether there is probable cause to believe that a State agency has
violated JS regulations.
(c) The Regional Administrator shall accept complaints regarding
possible State agency violations of JS 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 shall investigate the matter within 10
working days, may provide the State agency 10 working days for comment,
and shall make a determination within an additional 10 working days
whether there is probable cause to believe that the State agency has
violated JS regulations.
(d) If the Regional Administrator determines that there is no
probable cause to believe that a State agency has violated JS
regulations, he/she shall retain all reports and supporting information
in ETA files. In all cases where the Regional Administrator has
insufficient information to make a probable cause determination, he/she
shall so notify the Administrator in writing and the time for the
investigation shall be extended 20 additional working days.
(e) If the Regional Administrator determines that there is probable
cause to believe that a State agency has violated JS regulations, he/she
shall issue a Notice of Initial Findings of Non-compliance by registered
mail to the offending State agency. 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 JS
complaint system, a copy of said notice shall be sent to the National
MSFW Monitor Advocate.
(f)(1) The State agency shall have 20 working days to comment on the
findings, or a longer period, up to 20 additional days, if the Regional
Administrator determines that such a longer
[[Page 29]]
period is appropriate. The State agency's comments shall include
agreement or disagreement with the findings and suggested corrective
actions, where appropriate.
(2) After the period elapses, the Regional Administrator shall
prepare within 20 working days, written final findings which specify
whether or not the State agency has violated JS regulations. If in the
final findings the Regional Administrator determines that the State
agency has not violated JS regulations, the Regional Administrator shall
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 JS complaint system, the Regional Administrator shall also
notify the National Monitor Advocate. If the Regional Administrator
determines that a State agency has violated JS regulations, the Regional
Administrator shall prepare a Final Notice of Noncompliance which shall
specify the violation(s) and cite the regulations involved. The Final
Notice of Noncompliance shall be sent to the State agency by registered
mail. If the noncompliance involves services to MSFWs or the JS
complaint system, a copy of the Final Notice shall be sent to the
National MSFW Monitor Advocate.
(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 shall give the
reasons for the disallowance, inform the State agency that the
disallowance is effective immediately and that no more funds may be
spent in the unallowed manner, and offer the State agency the
opportunity to request a hearing pursuant toSec. 658.707. The offer,
or the acceptance of an offer of a hearing, however, shall not stay the
effectiveness of the disallowance. The Regional Administrator shall 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 shall direct the State agency
to implement a specific corrective action plan to correct all
violations. If the State agency'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 violations and accept their
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 shall apply remedial actions to the State agency
pursuant toSec. 658.704.
(2) The Final Notice of Noncompliance shall specify the time by
which each corrective action must be taken. This period shall 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 JS complaint system, the Regional Administrator
shall notify the Administrator in writing of the exceptional
circumstances which necessitate a longer time period, and shall specify
that time period. The specified time period shall 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, ETA staff shall review the State agency's efforts as
documented by the State agency to determine if the corrective action(s)
has been taken and if the State agency has achieved compliance with JS
regulations. If necessary, ETA staff shall conduct a follow-up visit as
part of this review.
(4) If, as a result of this review, the Regional Administrator
determines that the State agency has corrected the violation(s), the
Regional Administrator shall record the basis for this determination,
notify the State agency, send a copy to the Administrator, and retain a
copy in ETA files.
[[Page 30]]
(5) If, as a result of this review, the Regional Administrator
determines that the State has taken corrective action but is unable to
determine if the violation has been corrected due to seasonality or
other factors, the Regional Administrator shall notify in writing the
State agency and the Administrator of his/her findings. The Regional
Administrator shall 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 shall apply remedial
actions to the State agency pursuant toSec. 658.704.
(6) If, as a result of the review the Regional Administrator
determines that the State agency has not corrected the violations and
has not made good faith efforts and adequate progress toward the
correction of the violations, the Regional Administrator shall apply
remedial actions to the State agency pursuant toSec. 658.704.
(7) If, as a result of the review, the Regional Administrator
determines that the State agency 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 State agency shall be advised by registered mail (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 shall 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 shall notify the Administrator in writing of the
exceptional circumstances which necessitate a longer time period, and
shall specify that time period. The specified time period shall commence
with the date of signature on the registered mail receipt.
(8)(i) If the State agency has been given an additional time period
pursuant to paragraph (b)(7) of this section, ETA staff shall review the
State agency's efforts as documented by the State agency at the end of
the time period. If necessary, ETA shall conduct a follow-up visit as
part of this review.
(ii) If the State agency has corrected the violation(s), the
Regional Administrator shall document that finding, notify in writing
the State agency and the Administrator, and retain supporting documents
in ETA files. If the State agency has not corrected the violation(s),
the Regional Administrator shall 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 shall notify the State agency of the
reason for imposing the corrective action prior to providing the State
agency an opportunity to comment.
Sec. 658.704 Remedial actions.
(a) If a State agency fails to correct violations as determined
pursuant toSec. 658.702, the Regional Administrator shall apply one or
more of the following remedial actions to the State agency:
(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 State agency 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
[[Page 31]]
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 State agency's
deficiencies;
(9) Disallowance of funds pursuant toSec. 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 shall send, by registered mail, a
Notice of Remedial Action to the State agency. The Notice of Remedial
Action shall 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 JS complaint system (20 CFR
658.400 et seq.), a copy of said notice shall be sent to the OWI
Administrator, who shall publish the notice promptly in the Federal
Register.
(c) If the remedial action is other than decertification, the notice
shall state that the remedial action shall take effect immediately. The
notice shall also state that the State agency may request a hearing
pursuant toSec. 658.707 by filing a request in writing with the
Regional Administrator pursuant toSec. 658.707 within 20 working days
of the State agency's receipt of the notice. The offer of hearing, or
the acceptance thereof, however, shall not stay the implementation of
remedial action.
(d) Within 60 working days after the initial application of remedial
action, the Regional Administrator shall conduct a review of the State
agency's compliance with JS regulations unless the Regional
Administrator determines that a longer time period is necessary. In such
cases, the Regional Administrator shall notify the OWI Administrator in
writing of the circumstances which necessitate a longer time period, and
specify that time period. If necessary, ETA staff shall conduct a
follow-up visit as part of this review. If the State agency is in
compliance with the JS regulations, the Regional Administrator shall
fully document these facts and shall terminate the remedial actions. The
Regional Administrator shall notify the State agency of his/her
findings. When the case involves violations of regulations governing
services to MSFWs or the JS complaint system, a copy of said notice
shall be sent to the OWI Administrator, who shall promptly publish the
notice in the Federal Register. The Regional Administrator shall
conduct, within a reasonable time after terminating the remedial
actions, a review of the State agency'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 State
agency remains in noncompliance, the Regional Administrator shall
continue the remedial action and/or impose different additional remedial
actions. The Regional Administrator shall fully document all such
decisions and, when the case involves violations of regulations
governing services to MSFWs or the JS complaint system, shall send
copies to the OWI Administrator, who shall promptly publish the notice
in the Federal Register.
(f)(1) If the State agency has not brought itself into compliance
with JS regulations within 120 working days of the initial application
of remedial action, the Regional Administrator shall 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 shall notify the OWI
Administrator in writing of the circumstances which necessitate the
longer time period, and specify the time period.
(2) The Regional Administrator shall notify the State agency by
registered mail of the decertification proceedings, and shall state the
reasons therefor. Whenever such a notice is sent to a State agency, the
Regional Administrator shall prepare five indexed copies
[[Page 32]]
containing, in chronological order, all the documents pertinent to the
case along with a request for decertification stating the grounds
therefor. One copy shall be retained. Two shall be sent to the ETA
national office, one shall 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 shall be sent to the National MSFW Monitor
Advocate. The notice sent by the Regional Administrator shall be
published promptly in the Federal Register.
[45 FR 39468, June 10, 1980, as amended at 71 FR 35523, June 21, 2006]
Sec. 658.705 Decision to decertify.
(a) Within 30 working days of receiving a request for
decertification, the Assistant Secretary for ETA shall review the case
and shall decide whether to proceed with decertification.
(b) The Assistant Secretary shall grant the request for
decertification unless he/she makes a finding that (1) the violations of
JS regulations are neither serious nor continual; (2) the State agency
is in compliance; or (3) the Assistant Secretary has reason to believe
that the State agency 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 this subsection, the
Assistant Secretary shall 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 JS regulations as shown by the record.
(c) If the Assistant Secretary denies a request for decertification,
he/she shall write a complete report documenting his/her findings and,
if appropriate, instructing that an alternate remedial action or actions
be applied. Copies of the report shall be sent to the Regional
Administrator. Notice of the Assistant Secretary's decision shall be
published promptly in the Federal Register, and the report of the
Assistant Secretary shall be made available for public inspection and
copying.
(d) If the Assistant Secretary decides that decertification is
appropriate, he/she shall submit the case to the Secretary providing
written explanation for his/her recommendation of decertification.
(e) Within 30 working days after receiving the report of the
Assistant Secretary, the Secretary shall determine whether to decertify
the State agency. The Secretary shall grant the request for
decertification unless he/she makes one of the three findings set forth
inSec. 658.705(b). If the Secretary decides not to decertify, he/she
shall then instruct that remedial action be continued or that alternate
actions be applied. The Secretary shall write a report explaining his/
her reasons for not decertifying the State agency and copies will be
sent to the State agency. Notice of the Secretary's decision shall be
published promptly in the Federal Register, and the report of the
Secretary shall 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 shall continue to monitor the State agency's
compliance. If the agency achieves compliance within the time period
established pursuant toSec. 658.705(b), the Regional Administrator
shall terminate the remedial actions. If the State agency fails to
achieve full compliance within that time period after the Secretary's
decision not to decertify, the Regional Administrator shall submit a
report of his/her findings to the Assistant Secretary who shall
reconsider the request for decertification pursuant to the requirements
ofSec. 658.705(b).
[[Page 33]]
Sec. 658.706 Notice of decertification.
If the Secretary decides to decertify a State agency, he/she shall
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
State agency may request an administrative hearing in writing to the
Secretary. The notice shall be published promptly in the Federal
Register.
Sec. 658.707 Requests for hearings.
(a) Any State agency which received a Notice of Decertification
underSec. 658.706 or a notice of disallowance underSec. 658.702 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 shall state the reasons the State agency believes the basis of
the decision to be wrong, and it must be signed by the State
Administrator.
(b) When the Secretary receives a request for a hearing from a State
agency, he/she shall 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 Chief
Administrative Law Judge of the DOL. When the case involves violations
of regulations governing services to MSFWs or the ES complaint system, a
copy shall be sent to the National MSFW Monitor Advocate.
(c) The Secretary shall publish notice of hearing in the Federal
Register. This notice shall invite all interested parties to attend and
to present evidence at the hearing. All interested parties who make
written request to participate shall thereafter receive copies 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 shall be docketed and notice sent by 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 shall set
a time, place, and date for a hearing on the matter and shall 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 shall
represent the Department at the hearing.
Sec. 658.709 Conduct of hearings.
(a) Hearings shall be conducted in accordance with sections 5-8 of
the Administrative Procedure Act, 5 U.S.C. 553 et seq.
(b) Technical rules of evidence shall 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, shall
be applied if necessary by the Administrative Law Judge conducting the
hearing. The Administrative Law Judge may exclude irrelevant, immaterial
or unduly repetitious evidence. All documents and other evidence offered
or taken for the record shall be open to examination by the parties.
Opportunity shall be given to refute facts and arguments advanced on
either side of the issue. A transcript shall 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 shall be in the name of the substituted party, but any
misnomer not affecting the substantive
[[Page 34]]
rights of the parties shall be disregarded. An order of substitution may
be entered at any time, but the omission to enter such an order shall
not affect the substitution.
Sec. 658.710 Decision of the Administrative Law Judge.
(a) The Administrative Law Judge shall have jurisdiction to decide
all issues of fact and related issues of law and to grant or deny
appropriate motions, but shall not have jurisdiction to decide upon the
validity of Federal statutes or regulations.
(b) The decision of the Administrative Law Judge shall be based on
the hearing record, shall be in writing and shall state the factual and
legal basis of the decision. Notice of the decision shall be published
in the Federal Register and the Administrative Law Judge's decision
shall be available for public inspection and copying.
(c) Except when the case involves the decertification of a State
agency, the decision of the Administrative Law Judge shall be the final
decision of the Secretary.
(d) If the case involves the decertification of an appeal to the
State agency, the decision of the Administrative Law Judge shall 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.
[45 FR 39468, June 10, 1980, as amended at 61 FR 19983, May 3, 1996]
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 Administrative Law Judge
shall certify the record in the case to the Administrative Review Board,
which shall make a decision to decertify or not on the basis of the
hearing record.
(b) The decision of the Administrative Review Board shall be final,
shall be in writing, and shall set forth the factual and legal basis for
the decision. Notice of the Administrative Review Board's decision shall
be published in the Federal Register, and copies shall be made available
for public inspection and copying.
[61 FR 19983, May 3, 1996]
PART 660_INTRODUCTION TO THE REGULATIONS FOR WORKFORCE INVESTMENT
SYSTEMS UNDER TITLE I OF THE WORKFORCE INVESTMENT ACT--
Table of Contents
Sec.
660.100 What is the purpose of title I of the Workforce Investment Act
of 1998?
660.200 What do the regulations for workforce investment systems under
title I of the Workforce Investment Act cover?
660.300 What definitions apply to the regulations for workforce
investment systems under title I of WIA?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49388, Aug. 11, 2000, unless otherwise noted.
Sec. 660.100 What is the purpose of title I of the Workforce
Investment Act of 1998?
The purpose of title I of the Workforce Investment Act of 1998
(WIA)
is to provide workforce investment activities that increase the
employment, retention and earnings of participants, and increase
occupational skill attainment by participants, which will improve the
quality of the workforce, reduce welfare dependency, and enhance the
productivity and competitiveness of the Nation's economy. These goals
are achieved through the workforce investment system. (WIA sec. 106.)
Sec. 660.200 What do the regulations for workforce investment
systems under title I of the Workforce Investment Act cover?
The regulations found in 20 CFR parts 660 through 671 set forth the
regulatory requirements that are applicable to programs operated with
funds provided under title I of WIA. This part 660 describes the purpose
of that Act, explains the format of these regulations and sets forth
definitions for terms that apply to each part. Part 661 contains
regulations relating to Statewide
[[Page 35]]
and local governance of the workforce investment system. Part 662
describes the One-Stop system and the roles of One-Stop partners. Part
663 sets forth requirements applicable to WIA title I programs serving
adults and dislocated workers. Part 664 sets forth requirements
applicable to WIA title I programs serving youth. Part 665 contains
regulations relating to Statewide activities. Part 666 describes the WIA
title I performance accountability system. Part 667 sets forth the
administrative requirements applicable to programs funded under WIA
title I. Parts 668 and 669 contain the particular requirements
applicable to programs serving Indians and Native Americans and Migrant
and Seasonal Farmworkers, respectively. Parts 670 and 671 describe the
particular requirements applicable to the Job Corps and other national
programs, respectively. 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 section 188.
Sec. 660.300 What definitions apply to the regulations for workforce
investment systems under title I of WIA?
In addition to the definitions set forth at WIA section 101, the
following definitions apply to the regulations in 20 CFR parts 660
through 671:
Department or DOL means the U.S. Department of Labor, including its
agencies and organizational units.
Designated region means a combination of local areas that are partly
or completely in a single labor market area, economic development
region, or other appropriate contiguous subarea of a State, that is
designated by the State under WIA section 116(c), or a similar
interstate region that is designated by two or more States under WIA
section 116(c)(4).
Employment and training activity means a workforce investment
activity that is carried out for an adult or dislocated worker.
EO data means data on race and ethnicity, age, sex, and disability
required by 29 CFR part 37 of the DOL regulations implementing section
188 of WIA, governing nondiscrimination.
ETA means the Employment and Training Administration of the U.S.
Department of Labor.
Grant means an award of WIA financial assistance by the U.S.
Department of Labor to an eligible WIA recipient.
Grantee means the direct recipient of grant funds from the
Department of Labor. A grantee may also be referred to as a recipient.
Individual with a disability means an individual with any disability
(as defined in section 3 of the Americans with Disabilities Act of 1990
(42 U.S.C. 12102)). For purposes of WIA section 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 Investment Board established
under WIA section 117, to set policy for the local workforce investment
system.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a funding period that will require payment by the recipient or
subrecipient during the same or a future period. For purposes of the
reallotment process described at 20 CFR 667.150, the Secretary also
treats as State obligations any amounts allocated by the State under WIA
sections 128(b) and 133(b) to a single area State or to a balance of
State local area administered by a unit of the State government, and
inter-agency transfers and other actions treated by the State as
encumbrances against amounts reserved by the State under WIA sections
128(a) and 133(a) for Statewide workforce investment activities.
Outlying area means the United States Virgin Islands, Guam, American
Samoa, the Commonwealth of the
[[Page 36]]
Northern Mariana Islands, the Republic of the Marshall Islands, the
Federated States of Micronesia, and the Republic of Palau.
Participant means an individual who has registered under 20 CFR
663.105 or 664.215 and has been determined to be eligible to participate
in and who is receiving services (except for follow up services) under a
program authorized by WIA title I. Participation commences on the first
day, following determination of eligibility, on which the individual
begins receiving core, intensive, training or other services provided
under WIA title I.
Recipient means an entity to which a WIA grant is awarded directly
from the Department of Labor to carry out a program under title I of
WIA. The State is the recipient of funds awarded under WIA sections
127(b)(1)(C)(I)(II), 132(b)(1)(B) and 132(b)(2)(B). The recipient is the
entire legal entity that received the award and is legally responsible
for carrying out the WIA program, even if only a particular component of
the entity is designated in the grant award document.
Register means the process for collecting information to determine
an individual's eligibility for services under WIA title I. Individuals
may be registered in a variety ways, as described in 20 CFR 663.105 and
20 CFR 664.215.
Secretary means the Secretary of the U.S. Department of Labor.
Self certification means an individual's signed attestation that the
information he/she submits to demonstrate eligibility for a program
under title I of WIA 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 Investment Board established
under WIA section 111.
Subgrant means an award of financial assistance in the form of
money, or property in lieu of money made under a grant by a grantee to
an eligible subrecipient. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of Grant in this part.
Subrecipient means an entity to which a subgrant is awarded and
which is accountable to the recipient (or higher tier subrecipient) for
the use of the funds provided. DOL's audit requirements for States,
local governments, and non-profit organizations provides guidance on
distinguishing between a subrecipient and a vendor at 29 CFR 99.210.
Unobligated balance means the portion of funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
Vendor means an entity responsible for providing generally required
goods or services to be used in the WIA program. These goods or services
may be for the recipient's or subrecipient's own use or for the use of
participants in the program. DOL's audit requirements for States, local
governments, and non-profit organizations provides guidance on
distinguishing between a subrecipient and a vendor at 29 CFR 99.210.
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
671, the Wagner-Peyser Act regulations in 20 CFR part 652, subpart C,
and the regulations implementing WIA section 188 in 29 CFR part 37.
Workforce investment activities mean the array of activities
permitted under title I of WIA, which include employment and training
activities for adults and dislocated workers, as described in WIA
section 134, and youth activities, as described in WIA section 129.
Youth activity means a workforce investment activity that is carried
out for youth.
[[Page 37]]
PART 661_STATEWIDE AND LOCAL GOVERNANCE OF THE WORKFORCE INVESTMENT
SYSTEM UNDER TITLE I OF THE WORKFORCE INVESTMENT ACT--
Table of Contents
Subpart A_General Governance Provisions
Sec.
661.100 What is the workforce investment system?
661.110 What is the role of the Department of Labor as the Federal
governmental partner in the governance of the workforce
investment system?
661.120 What are the roles of the local and State governmental partner
in the governance of the workforce investment system?
Subpart B_State Governance Provisions
661.200 What is the State Workforce Investment Board?
661.203 What is meant by the terms ``optimum policy making authority''
and ``expertise relating to [a] program, service or
activity''?
661.205 What is the role of the State Board?
661.207 How does the State Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of
WIA section 111(g)?
661.210 Under what circumstances may the Governor select an alternative
entity in place of the State Workforce Investment Board?
661.220 What are the requirements for the submission of the State
Workforce Investment Plan?
661.230 What are the requirements for modification of the State
Workforce Investment Plan?
661.240 How do the unified planning requirements apply to the five-year
strategic WIA and Wagner-Peyser plan and to other Department
of Labor plans?
661.250 What are the requirements for designation of local workforce
investment areas?
661.260 What are the requirements for automatic designation of workforce
investment areas relating to units of local government with a
population of 500,000 or more?
661.270 What are the requirements for temporary and subsequent
designation of workforce investment areas relating to areas
that had been designated as service delivery areas under JTPA?
661.280 What right does an entity have to appeal the Governor's decision
rejecting a request for designation as a workforce investment
area?
661.290 Under what circumstances may States require Local Boards to take
part in regional planning activities?
Subpart C_Local Governance Provisions
661.300 What is the Local Workforce Investment Board?
661.305 What is the role of the Local Workforce Investment Board?
661.307 How does the Local Board meet its requirement to conduct
business in an open manner under the ``sunshine provision'' of
WIA section 117(e)?
661.310 Under what limited conditions may a Local Board directly be a
provider of core services, intensive services, or training
services, or act as a One-Stop Operator?
661.315 Who are the required members of the Local Workforce Investment
Boards?
661.317 Who may be selected to represent a particular One-Stop partner
program on the Local Board when there is more than one partner
program entity in the local area?
661.320 Who must chair a Local Board?
661.325 What criteria will be used to establish the membership of the
Local Board?
661.330 Under what circumstances may the State use an alternative entity
as the Local Workforce Investment Board?
661.335 What is a youth council, and what is its relationship to the
Local Board?
661.340 What are the responsibilities of the youth council?
661.345 What are the requirements for the submission of the local
workforce investment plan?
661.350 What are the contents of the local workforce investment plan?
661.355 When must a local plan be modified?
Subpart D_Waivers and Work-Flex Waivers
661.400 What is the purpose of the General Statutory and Regulatory
Waiver Authority provided at section 189(i)(4) of the
Workforce Investment Act?
661.410 What provisions of WIA and the Wagner-Peyser Act may be waived,
and what provisions may not be waived?
661.420 Under what conditions may a Governor request, and the Secretary
approve, a general waiver of statutory or regulatory
requirements under WIA section189(i)(4)?
661.430 Under what conditions may the Governor submit a Workforce
Flexibility Plan?
661.440 What limitations apply to the State's Workforce Flexibility Plan
authority under WIA?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
[[Page 38]]
Source: 65 FR 49390, Aug. 11, 2000, unless otherwise noted.
Subpart A_General Governance Provisions
Sec. 661.100 What is the workforce investment system?
Under title I of WIA, the workforce investment system provides the
framework for delivery of workforce investment activities at the State
and local levels to individuals who need those services, including job
seekers, dislocated workers, youth, incumbent workers, new entrants to
the workforce, veterans, persons with disabilities, and employers. Each
State's Governor is required, in accordance with the requirements of
this part, to establish a State Board; to designate local workforce
investment areas; and to oversee the creation of Local Boards and One-
Stop service delivery systems in the State.
Sec. 661.110 What is the role of the Department of Labor as the
Federal governmental partner in the governance of the workforce
investment system?
(a) Successful governance of the workforce investment system will be
achieved through cooperation and coordination of Federal, State and
local governments.
(b) The Department of Labor sees as one of its primary roles
providing leadership and guidance to support a system that meets the
objectives of title I of WIA, and in which State and local partners have
flexibility to design systems and deliver services in a manner designed
to best achieve the goals of WIA based on their particular needs. The
WIA regulations provide the framework in which State and local officials
can exercise such flexibility within the confines of the statutory
requirements. Wherever possible, system features such as design options
and categories of services are broadly defined, and are subject to State
and local interpretation.
(c) The Secretary, in consultation with other Federal Agencies, as
appropriate, may publish guidance on interpretations of statutory and
regulatory provisions. State and local policies, interpretations,
guidelines and definitions that are consistent with interpretations
contained in such guidance will be considered to be consistent with the
Act for purposes ofSec. 661.120.
Sec. 661.120 What are the roles of the local and State governmental
partner in the governance of the workforce investment system?
(a) Local areas should establish policies, interpretations,
guidelines and definitions to implement provisions of title I of WIA to
the extent that such policies, interpretations, guidelines and
definitions are not inconsistent with the Act and the regulations issued
under the Act, Federal statutes and regulations governing One-Stop
partner programs, and with State policies.
(b) States should establish policies, interpretations, guidelines
and definitions to implement provisions of title I of WIA to the extent
that such policies, interpretations, guidelines and definitions are not
inconsistent with the Act and the regulations issued under the Act, as
well as Federal statutes and regulations governing One-Stop partner
programs.
Subpart B_State Governance Provisions
Sec. 661.200 What is the State Workforce Investment Board?
(a) The State Board is a board established by the Governor in
accordance with the requirements of WIA section 111 and this section.
(b) The membership of the State Board must meet the requirements of
WIA section 111(b). The State Board must contain two or more members
representing the categories described in WIA section 111(b)(1)(C)(iii)-
(v), and special consideration must be given to chief executive officers
of community colleges and community based organizations in the selection
of members representing the entities identified in WIA section
111(b)(1)(C)(v).
(c) The Governor may appoint any other representatives or agency
officials, such as agency officials responsible for economic
development, child support and juvenile justice programs in the State.
[[Page 39]]
(d) Members who represent organizations, agencies or other entities
must be individuals with optimum policy making authority within the
entities they represent.
(e) A majority of members of the State Board must be representatives
of business. Members who represent business must be individuals who are
owners, chief executive officers, chief operating officers, or other
individuals with optimum policy making or hiring authority, including
members of Local Boards.
(f) The Governor must appoint the business representatives from
among individuals who are nominated by State business organizations and
business trade associations. The Governor must appoint the labor
representatives from among individuals who are nominated by State labor
federations.
(g) The Governor must select a chairperson of the State Board from
the business representatives on the board.
(h) The Governor may establish terms of appointment or other
conditions governing appointment or membership on the State Board.
(i) For the programs and activities carried out by One-Stop
partners, as described in WIA section 121(b) and 20 CFR 662.200 and
662.210, the State Board must include:
(1) The lead State agency officials with responsibility for such
program, or
(2) In any case in which no lead State agency official has
responsibility for such a program service, a representative in the State
with expertise relating to such program, service or activity.
(3) If the director of the designated State unit, as defined in
section 7(8)(B) of the Rehabilitation Act, does not represent the State
Vocational Rehabilitation Services program (VR program) on the State
Board, then the State must describe in its State plan how the member of
the State Board representing the VR program will effectively represent
the interests, needs, and priorities of the VR program and how the
employment needs of individuals with disabilities in the State will be
addressed.
(j) 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 (d) through (f) of this
section, for each entity. (WIA sec. 111)
Sec. 661.203 What is meant by the terms ``optimum policy making
authority'' and ``expertise relating to [a] program, service
or activity''?
For purposes of selecting representatives to State and local
workforce investment 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 ``expertise relating to [a] program,
service or activity'' includes a person who is an official with a One-
stop partner program and a person with documented expertise relating to
the One-stop partner program.
Sec. 661.205 What is the role of the State Board?
The State Board must assist the Governor in the:
(a) Development of the State Plan;
(b) Development and continuous improvement of a Statewide system of
activities that are funded under subtitle B of title I of WIA, or
carried out through the One-Stop delivery system, including--
(1) Development of linkages in order to assure coordination and
nonduplication among the programs and activities carried out by One-Stop
partners, including, as necessary, addressing any impasse situations in
the development of the local Memorandum of Understanding; and
(2) Review of local plans;
(c) Commenting at least once annually on the measures taken under
section 113(b)(14) of the Carl D. Perkins Vocational and Technical
Education Act;
(d) Designation of local workforce investment areas,
(e) Development of allocation formulas for the distribution of funds
for adult employment and training activities and youth activities to
local areas,
[[Page 40]]
as permitted under WIA sections 128(b)(3)(B) and 133(b)(3)(B);
(f) Development and continuous improvement of comprehensive State
performance measures, including State adjusted levels of performance, to
assess the effectiveness of the workforce investment activities in the
State, as required under WIA section 136(b);
(g) Preparation of the annual report to the Secretary described in
WIA section 136(d);
(h) Development of the Statewide employment statistics system
described in section 15(e) of the Wagner-Peyser Act; and
(i) Development of an application for an incentive grant under WIA
section 503. (WIA sec. 111(d).)
Sec. 661.207 How does the State Board meet its requirement to
conduct business in an open manner under the ``sunshine provision
'' of WIA section 111(g)?
The State Board must conduct its business in an open manner as
required by WIA section 111(g), by making available to the public, on a
regular basis through open meetings, information about the activities of
the State Board. This includes information about the State Plan prior to
submission of the plan; information about membership; the development of
significant policies, interpretations, guidelines and definitions; and,
on request, minutes of formal meetings of the State Board.
Sec. 661.210 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Investment Board?
(a) The State may use any State entity that meets the requirements
of WIA section 111(e) to perform the functions of the State Board.
(b) If the State uses an alternative entity, the State workforce
investment plan must demonstrate that the alternative entity meets all
three of the requirements of WIA section 111(e). Section 111(e) requires
that such entity:
(1) Was in existence on December 31, 1997;
(2)(i) Was established under section 122 (relating to State Job
Training Coordinating Councils) or title VII (relating to State Human
Resource Investment Councils) of the Job Training Partnership Act (29
U.S.C.1501 et seq.), as in effect on December 31, 1997, or
(ii) Is substantially similar to the State Board described in WIA
section 111(a), (b), and (c) andSec. 661.200; and
(3) Includes, at a minimum, two or more representatives of business
in the State and two or more representatives of labor organizations in
the State.
(c) If the alternative entity does not provide for representative
membership of each of the categories of required State Board membership
under WIA section 111(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 investment system. The State Board may
maintain an ongoing role for an unrepresented membership group,
including entities carrying out One-stop partner programs, by means such
as regularly scheduled consultations with entities within the
unrepresented membership groups, by providing an opportunity for input
into the State Plan or other policy development by unrepresented
membership groups, or by establishing an advisory committee of
unrepresented membership groups.
(d) If the membership structure of the alternative entity is
significantly changed after December 31, 1997, 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 WIA section 111(b).
(e) A significant change in the membership structure includes any
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. A significant change in the membership structure is
considered to have occurred when members are added to represent groups
not previously represented on the entity. A significant change in the
membership structure is not considered to have occurred when additional
members are added to an existing membership category, when non-
[[Page 41]]
voting members are added, or when a member is added to fill a vacancy
created in an existing membership category.
(f) In 20 CFR parts 660 through 671, all references to the State
Board also apply to an alternative entity used by a State.
Sec. 661.220 What are the requirements for the submission of the
State Workforce Investment Plan?
(a) The Governor of each State must submit a State Workforce
Investment Plan (State Plan) in order to be eligible to receive funding
under title I of WIA and the Wagner-Peyser Act. The State Plan must
outline the State's five year strategy for the workforce investment
system.
(b) The State Plan must be submitted in accordance with planning
guidelines issued by the Secretary of Labor. The planning guidelines set
forth the information necessary to document the State's vision, goals,
strategies, policies and measures for the workforce investment system
(that were arrived at through the collaboration of the Governor, chief
elected officials, business and other parties), as well as the
information required to demonstrate compliance with WIA, and the
information detailed by WIA and the WIA regulations, including 29 CFR
part 37, and the Wagner-Peyser Act and the Wagner-Peyser regulations at
20 CFR part 652:
(c) The State Plan must contain a description of the State's
performance accountability system, and the State performance measures in
accordance with the requirements of WIA section 136 and 20 CFR part 666.
(d) The State must provide an opportunity for public comment on and
input into the development of the State Plan prior to its submission.
The opportunity for public comment must include an opportunity for
comment by representatives of business, representatives of labor
organizations, and chief elected official(s) and must be consistent with
the requirement, at WIA section 111(g), that the State Board makes
information regarding the State Plan and other State Board activities
available to the public through regular open meetings. The State Plan
must describe the State's process and timeline for ensuring a meaningful
opportunity for public comment.
(e) The Secretary reviews completed plans and must approve all plans
within ninety days of their submission, unless the Secretary determines
in writing that:
(1) The plan is inconsistent with the provisions of title I of WIA
or the WIA regulations, including 29 CFR part 37. For example, a finding
of inconsistency would be made if the Secretary and the Governor have
not reached agreement on the adjusted levels of performance under WIA
section 136(b)(3)(A), or there is not an effective strategy in place to
ensure development of a fully operational One-Stop delivery system in
the State; or
(2) The portion of the plan describing the detailed Wagner-Peyser
plan does not satisfy the criteria for approval of such plans as
provided in section 8(d) of the Wagner-Peyser Act or the Wagner-Peyser
regulations at 20 CFR part 652.
(3) A plan which is incomplete, or which does not contain sufficient
information to determine whether it is consistent with the statutory or
regulatory requirements of title I of WIA or of section 8(d) of the
Wagner-Peyser Act, will be considered to be inconsistent with those
requirements.
Sec. 661.230 What are the requirements for modification of the
State Workforce Investment Plan?
(a) The State may submit a modification of its workforce investment
plan at any time during the five-year life of the plan.
(b) Modifications are required when:
(1) Changes in Federal or State law or policy substantially change
the assumptions upon which the plan is based.
(2) There are changes in the Statewide vision, strategies, policies,
performance indicators, the methodology used to determine local
allocation of funds, reorganizations which change the working
relationship with system employees, changes in organizational
responsibilities, changes to the membership structure of the State Board
or alternative entity and similar substantial changes to the State's
workforce investment system.
[[Page 42]]
(3) The State has failed to meet performance goals, and must adjust
service strategies.
(c) Modifications are required in accordance with the Wagner-Peyser
provisions at 20 CFR 652.212.
(d) Modifications to the State Plan are subject to the same public
review and comment requirements that apply to the development of the
original State Plan.
(e) State Plan modifications will be approved by the Secretary based
on the approval standard applicable to the original State Plan under
Sec. 661.220(e).
Sec. 661.240 How do the unified planning requirements apply to the
five-year strategic WIA and Wagner-Peyser plan and to other
Department of Labor plans?
(a) A State may submit to the Secretary a unified plan for any of
the programs or activities described in WIA section 501(b)(2). This
includes the following DOL programs and activities:
(1) The five-year strategic WIA and Wagner-Peyser plan;
(2) Trade adjustment assistance activities and NAFTA-TAA;
(3) Veterans' programs under 38 U.S.C. Chapter 41;
(4) Programs authorized under State unemployment compensation laws;
(5) [Reserved]
(6) Senior Community Service Employment Programs under title V of
the Older Americans Act.
(b) For purposes of paragraph (a) of this section:
(1) A State may submit, as part of the unified plan, any plan,
application form or any other similar document, that is required as a
condition for the approval of Federal funding under the applicable
program. These plans include such things as the WIA plan. They do not
include jointly executed funding instruments, such as grant agreements,
or Governor/Secretary Agreements or items such as corrective actions
plans.
(2) A state may submit a unified plan meeting the requirements of
the Interagency guidance entitled State Unified Plan, Planning Guidance
for State Unified Plans Under Section 501 of the Workforce Investment
Act of 1998, in lieu of completing the individual State planning
guidelines of the programs covered by the unified plan.
(c) A State which submits a unified plan covering an activity or
program described in subsection 501(b) of WIA that is approved under
subsection 501(d) of the Act will not be required to submit any other
plan or application in order to receive Federal funds to carry out the
activity or program.
(d) Each portion of a unified plan submitted under paragraph (a) of
this section is subject to the particular requirements of Federal law
authorizing the program. All grantees are still subject to such things
as reporting and record-keeping requirements, corrective action plan
requirements and other generally applicable requirements.
(e) A unified plan must contain the information required by WIA
section 501(c) and will be approved in accordance with the requirements
of WIA section 501(d).
[65 FR 49390, Aug. 11, 2000, as amended at 71 FR 35525, June 21, 2006]
Sec. 661.250 What are the requirements for designation of local
workforce investment areas?
(a) The Governor must designate local workforce investment areas in
order for the State to receive funding under title I of WIA.
(b) The Governor must take into consideration the factors described
in WIA section 116(a)(1)(B) in making designations of local areas. Such
designation must be made in consultation with the State Board, and after
consultation with chief elected officials. The Governor must also
consider comments received through the public comment process described
in the State workforce investment plan underSec. 661.220(d).
(c) The Governor may approve a request for designation as a
workforce investment 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 WIA section 116(a)(1)(B) and
recommends designation.
(d) The Governor of any State that was a single service delivery
area State under the Job Training Partnership Act as of July 1, 1998,
and only those
[[Page 43]]
States, may designate the State as a single local workforce investment
area State. (WIA sec.116.)
Sec. 661.260 What are the requirements for automatic designation of
workforce investment areas relating to units of local government with
a population of 500,000 or more?
The requirements for automatic designation relating to units of
local government with a population of 500,000 or more and to rural
concentrated employment programs are contained in WIA section 116(a)(2).
The Governor has authority to determine the source of population data to
use in making these designations.
Sec. 661.270 What are the requirements for temporary and subsequent
designation of workforce investment areas relating to areas that had
been designated as service delivery areas under JTPA?
The requirements for temporary and subsequent designation relating
to areas that had been designated as service delivery areas under JTPA
are contained in WIA section 116(a)(3).
Sec. 661.280 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce
investment area?
(a) A unit of local government (or combination of units) or a rural
concentrated employment program grant recipient (as described at WIA
section 116(a)(2)(B), which has requested but has been denied its
request for designation as a workforce investment area under Sec.Sec.
661.260 through 661.270, may appeal the decision to the State Board, in
accordance with appeal procedures established in the State Plan.
(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 667.640(a).
(c) The Secretary may require that the area be designated as a
workforce investment area, if the Secretary determines that:
(1) The entity was not accorded procedural rights under the State
appeals process; or
(2) The area meets the automatic designation requirements at WIA
section 116(a)(2) or the temporary and subsequent designation
requirements at WIA section 116(a)(3), as appropriate.
Sec. 661.290 Under what circumstances may States require Local
Boards to take part in regional planning activities?
(a) The State may require Local Boards within a designated region
(as defined at 20 CFR 660.300) to:
(1) Participate in a regional planning process that results in
regional performance measures for workforce investment activities under
title I of WIA. Regions that meet or exceed the regional performance
measures may receive regional incentive grants;
(2) Share, where feasible, employment and other types of information
that will assist in improving the performance of all local areas in the
designated region on local performance measures; and
(3) Coordinate the provision of WIA title I services, including
supportive services such as transportation, across the boundaries of
local areas within the designated region.
(b) Two or more States may designate a labor market area, economic
development region, or other appropriate contiguous subarea of the
States as an interstate region. In such cases, the States may jointly
exercise the State's functions described in this section.
(c) Designation of intrastate regions and interstate regions and
their corresponding performance measures must be described in the
respective State Plan(s). For interstate regions, the roles of the
respective Governors, State Boards and Local Boards must be described in
the respective State Plans.
(d) Unless agreed to by all affected chief elected officials and the
Governor, these regional planning activities may not substitute for or
replace the requirements applicable to each local area under other
provisions of the WIA. (WIA sec. 116(a).)
[[Page 44]]
Subpart C_Local Governance Provisions
Sec. 661.300 What is the Local Workforce Investment Board?
(a) The Local Workforce Investment Board (Local Board) is appointed
by the chief elected official in each local area in accordance with
State criteria established under WIA section 117(b), and is certified by
the Governor every two years, in accordance with WIA section 117(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.
(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,
develops the local workforce investment plan and performs the functions
described in WIA section 117(d). (WIA sec.117 (d).)
(e) If a local area includes more than one unit of general local
government in accordance with WIA section 117 (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, after a reasonable effort, the chief elected officials are unable to
reach agreement, the Governor may appoint the members of the local board
from individuals nominated or recommended as specified in WIA section
117(b).
(f) If the State Plan indicates that the State will be treated as a
local area under WIA title I, the Governor may designate the State Board
to carry out any of the roles of the Local Board.
Sec. 661.305 What is the role of the Local Workforce Investment Board?
(a) WIA section 117(d) specifies that the Local Board is responsible
for:
(1) Developing the five-year local workforce investment plan (Local
Plan) and conducting oversight of the One-Stop system, youth activities
and employment and training activities under title I of WIA, in
partnership with the chief elected official;
(2) Selecting One-Stop operators with the agreement of the chief
elected official;
(3) Selecting eligible youth service providers based on the
recommendations of the youth council, and identifying eligible providers
of adult and dislocated worker intensive services and training services,
and maintaining a list of eligible providers with performance and cost
information, as required in 20 CFR part 663, subpart E;
(4) Developing a budget for the purpose of carrying out the duties
of the Local Board, subject to the approval of the chief elected
official;
(5) Negotiating and reaching agreement on local performance measures
with the chief elected official and the Governor;
(6) Assisting the Governor in developing the Statewide employment
statistics system under the Wagner-Peyser Act;
(7) Coordinating workforce investment activities with economic
development strategies and developing employer linkages; and
(8) Promoting private sector involvement in the Statewide workforce
investment system through effective connecting, brokering, and coaching
activities through intermediaries such as the One-Stop operator in the
local area or through other organizations, to assist employers in
meeting hiring needs.
(b) The Local Board, in cooperation with the chief elected official,
appoints a youth council as a subgroup of the Local Board and
coordinates workforce and youth plans and activities with the youth
council, in accordance with WIA section 117(h) andSec. 661.335.
(c) Local Boards which are part of a State designated region for
regional planning must carry out the regional planning responsibilities
required by the State in accordance with WIA section 116(c) andSec.
661.290. (WIA sec. 117.)
Sec. 661.307 How does the Local Board meet its requirement to
conduct business in an open manner under the ``sunshine provision
'' of WIA section 117(e)?
The Local Board must conduct its business in an open manner as
required by WIA section 117(e), by making available to the public, on a
regular basis
[[Page 45]]
through open meetings, information about the activities of the Local
Board. This includes information about the Local Plan prior to
submission of the plan; information about membership; the development of
significant policies, interpretations, guidelines and definitions; and,
on request, minutes of formal meetings of the Local Board.
Sec. 661.310 Under what limited conditions may a Local Board
directly be a provider of core services, intensive services, or
training services, or act as a One-Stop Operator?
(a) A Local Board may not directly provide core services, or
intensive services, or be designated or certified as a One-Stop
operator, unless agreed to by the chief elected official and the
Governor.
(b) A Local Board is prohibited from providing training services,
unless the Governor grants a waiver in accordance with the provisions in
WIA section 117(f)(1). The waiver shall apply for not more than one
year. The waiver may be renewed for additional periods, but for not more
than one additional year at a time.
(c) The restrictions on the provision of core, intensive, and
training services by the Local Board, and designation or certification
as One-Stop operator, also apply to staff of the Local Board. (WIA sec.
117(f)(1) and (f)(2).)
Sec. 661.315 Who are the required members of the Local Workforce
Investment Boards?
(a) The membership of Local Board must be selected in accordance
with criteria established under WIA section 117(b)(1) and must meet the
requirements of WIA section 117(b)(2). The Local Board must contain two
or more members representing the categories described in WIA section
117(b)(2)(A)(ii)-(v), and special consideration must be given to the
entities identified in WIA section 117(b)(2)(A)(ii), (iv) and (v) in the
selection of members representing those categories. The Local Board must
contain at least one member representing each One-Stop partner.
(b) The membership of Local Boards may include individuals or
representatives of other appropriate entities, including entities
representing individuals with multiple barriers to employment and other
special populations, as determined by the chief elected official.
(c) Members who represent organizations, agencies or other entities
must be individuals with optimum policy making authority within the
entities they represent.
(d) A majority of the members of the Local Board must be
representatives of business in the local area. Members representing
business must be individuals who are owners, chief executive officers,
chief operating officers, or other individuals with optimum policymaking
or hiring authority. Business representatives serving on Local Boards
may also serve on the State Board.
(e) Chief elected officials must appoint the business
representatives from among individuals who are nominated by local
business organizations and business trade associations. Chief elected
officials must appoint the labor representatives 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). (WIA sec. 117(b).)
(f) 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 (e) of this
section, for each entity.
Sec. 661.317 Who may be selected to represent a particular One-Stop
partner program on the Local Board when there is more than one partner
program entity in the local area?
When there is more than one grant recipient, administrative entity
or organization responsible for administration of funds of a particular
One-stop partner program in the local area, the chief elected official
may appoint one or more members to represent all of those particular
partner program entities. In making such appointments, the local elected
official may solicit nominations from the partner program entities.
[[Page 46]]
Sec. 661.320 Who must chair a Local Board?
The Local Board must elect a chairperson from among the business
representatives on the board. (WIA sec. 117(b)(5).)
Sec. 661.325 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 WIA
section 117(b), and is certified by the Governor every two years, in
accordance with WIA section 117(c)(2). The criteria for certification
must be described in the State Plan. (WIA sec. 117(c).)
Sec. 661.330 Under what circumstances may the State use an
alternative entity as the Local Workforce Investment Board?
(a) The State may use any local entity that meets the requirements
of WIA section 117(i) to perform the functions of the Local Board. WIA
section 117(i) requires that such entity:
(1) Was established to serve the local area (or the service delivery
area that most closely corresponds to the local area);
(2) Was in existence on December 31, 1997;
(3)(i) Is a Private Industry Council established under section 102
of the Job Training Partnership Act, as in effect on December 31, 1997;
or
(ii) Is substantially similar to the Local Board described in WIA
section 117 (a), (b), and (c) and (h)(1) and (2); and,
(4) Includes, at a minimum, two or more representatives of business
in the local area and two or more representatives of labor organizations
nominated by local labor federations or employees in the local area.
(b)(1) If the Governor certifies an alternative entity to perform
the functions of the Local Board; the State workforce investment plan
must demonstrate that the alternative entity meets the requirements of
WIA section 117(i), set forth in paragraph (a) of this section.
(2) If the alternative entity does not provide for representative
membership of each of the categories of required Local Board membership
under WIA section 117(b), including all of the One-stop partner
programs, the local workforce investment plan must explain the manner in
which the Local Board will ensure an ongoing role for the unrepresented
membership group in the local workforce investment system.
(3) The Local Board may provide an ongoing role for an unrepresented
membership group, including entities carrying out One-stop partner
programs, by means such as regularly scheduled consultations with
entities within the unrepresented membership groups, by providing an
opportunity for input into the local plan or other policy development by
unrepresented membership groups, or by establishing an advisory
committee of unrepresented membership groups. The Local Board must enter
into good faith negotiations over the terms of the MOU with all entities
carrying out One-stop partner programs, including programs not
represented on the alternative entity.
(c) If the membership structure of an alternative entity is
significantly changed after December 31, 1997, the entity will no longer
be eligible to perform the functions of the Local Board. In such case,
the chief elected official(s) must establish a new Local Board which
meets all of the criteria of WIA section 117(a), (b), and (c) and (h)(1)
and (2).
(d) A significant change in the membership structure includes any
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. A significant change in the membership structure is
considered to have occurred when members are added to represent groups
not previously represented on the entity. A significant change in the
membership structure is not considered to have occurred when additional
members are added to an existing membership category, when non-voting
members (including a Youth
[[Page 47]]
Council) are added, or when a member is added to fill a vacancy created
in an existing membership category.
(e) In 20 CFR parts 660 through 671, all references to the Local
Board must be deemed to also apply to an alternative entity used by a
local area. (WIA sec. 117(i).)
Sec. 661.335 What is a youth council, and what is its relationship
to the Local Board?
(a) A youth council must be established as a subgroup within each
Local Board.
(b) The membership of each youth council must include:
(1) Members of the Local Board, such as educators, which may include
special education personnel, employers, and representatives of human
service agencies, who have special interest or expertise in youth
policy;
(2) Members who represent service agencies, such as juvenile justice
and local law enforcement agencies;
(3) Members who represent local public housing authorities;
(4) Parents of eligible youth seeking assistance under subtitle B of
title I of WIA;
(5) Individuals, including former participants, and members who
represent organizations, that have experience relating to youth
activities; and
(6) Members who represent the Job Corps, if a Job Corps Center is
located in the local area represented by the council.
(c) Youth councils may include other individuals, who the chair of
the Local Board, in cooperation with the chief elected official,
determines to be appropriate.
(d) Members of the youth council who are not members of the Local
Board must be voting members of the youth council and nonvoting members
of the Local Board.
Sec. 661.340 What are the responsibilities of the youth council?
The youth council is responsible for:
(a) Coordinating youth activities in a local area;
(b) Developing portions of the local plan related to eligible youth,
as determined by the chairperson of the Local Board;
(c) Recommending eligible youth service providers in accordance with
WIA section 123, subject to the approval of the Local Board;
(d) Conducting oversight with respect to eligible providers of youth
activities in the local area, subject to the approval of the Local
Board; and
(e) Carrying out other duties, as authorized by the chairperson of
the Local Board, such as establishing linkages with educational agencies
and other youth entities.
Sec. 661.345 What are the requirements for the submission of the
local workforce investment plan?
(a) WIA section 118 requires that each Local Board, in partnership
with the appropriate chief elected officials, develops and submits a
comprehensive five-year plan to the Governor which identifies and
describes certain policies, procedures and local activities that are
carried out in the local area, and that is consistent with the State
Plan.
(b) The Local Board must provide an opportunity for public comment
on and input into the development of the local workforce investment plan
prior to its submission, and the opportunity for public comment on the
local plan must:
(1) Make copies of the proposed local plan available to the public
(through such means as public hearings and local news media);
(2) Include an opportunity for comment by members of the Local Board
and members of the public, including representatives of business and
labor organizations;
(3) Provide at least a thirty (30) day period for comment, beginning
on the date on which the proposed plan is made available, prior to its
submission to the Governor; and
(4) Be consistent with the requirement, in WIA section 117(e), that
the Local Board make information about the plan available to the public
on a regular basis through open meetings.
(c) The Local Board must submit any comments that express
disagreement with the plan to the Governor along with the plan.
[[Page 48]]
Sec. 661.350 What are the contents of the local workforce investment plan?
(a) The local workforce investment plan must meet the requirements
of WIA section 118(b). The plan must include:
(1) An identification of the workforce investment needs of
businesses, job-seekers, and workers in the local area;
(2) An identification of current and projected employment
opportunities and job skills necessary to obtain such opportunities;
(3) A description of the One-Stop delivery system to be established
or designated in the local area, including:
(i) How the Local Board will ensure continuous improvement of
eligible providers of services and ensure that such providers meet the
employment needs of local employers and participants; and
(ii) A copy of the local Memorandum(s) of Understanding between the
Local Board and each of the One-Stop partners concerning the operation
of the local One-Stop delivery system;
(4) A description of the local levels of performance negotiated with
the Governor and the chief elected official(s) to be used by the Local
Board for measuring the performance of the local fiscal agent (where
appropriate), eligible providers, and the local One-Stop delivery
system;
(5) A description and assessment of the type and availability of
adult and dislocated worker employment and training activities in the
local area, including a description of the local ITA system and the
procedures for ensuring that exceptions to the use of ITA's, if any, are
justified under WIA section 134(d)(4)(G)(ii) and 20 CFR 663.430;
(6) A description of how the Local Board will coordinate local
activities with Statewide rapid response activities;
(7) A description and assessment of the type and availability of
youth activities in the local area, including an identification of
successful providers of such activities;
(8) A description of the process used by the Local Board to provide
opportunity for public comment, including comment by representatives of
business and labor organizations, and input into the development of the
local plan, prior to the submission of the plan;
(9) An identification of the fiscal agent, or entity responsible for
the disbursal of grant funds;
(10) A description of the competitive process to be used to award
grants and contracts for activities carried out under this subtitle I of
WIA, including the process to be used to procure training services that
are made as exceptions to the Individual Training Account process (WIA
section 134(d)(4)(G)),
(11) A description of the criteria to be used by the Governor and
the Local Board, under 20 CFR 663.600, to determine whether funds
allocated to a local area for adult employment and training activities
under WIA sections 133(b)(2)(A) or (3) are limited, and the process by
which any priority will be applied by the One-Stop operator;
(12) In cases where an alternate entity functions as the Local
Board, the information required atSec. 661.330(b), and
(13) Such other information as the Governor may require.
(b) The Governor must review completed plans and must approve all
such plans within ninety days of their submission, unless the Governor
determines in writing that:
(1) There are deficiencies identified in local workforce investment
activities carried out under this subtitle that have not been
sufficiently addressed; or
(2) The plan does not comply with title I of WIA and the WIA
regulations, including the required consultations, the public comment
provisions, and the nondiscrimination requirements of 29 CFR part 37.
(c) In cases where the State is a single local area:
(1) The Secretary performs the roles assigned to the Governor as
they relate to local planning activities.
(2) The Secretary issues planning guidance for such States.
(3) The requirements found in WIA and in the WIA regulations for
consultation with chief elected officials apply to the development of
State and local plans and to the development and operation of the One-
Stop delivery system.
(d) During program year 2000, if a local plan does not contain all
of the
[[Page 49]]
elements described in paragraph (a) of this section, the Governor may
approve a local plan on a transitional basis. A transitional approval
under this paragraph is considered to be a written determination that
the local plan is not approved under paragraph (b) of this section.
Sec. 661.355 When must a local plan be modified?
The Governor must establish procedures governing the modification of
local plans. Situations in which modifications may be required by the
Governor include significant changes in local economic conditions,
changes in the financing available to support WIA title I and partner-
provided WIA services, changes to the Local Board structure, or a need
to revise strategies to meet performance goals.
Subpart D_Waivers and Work-Flex Waivers
Sec. 661.400 What is the purpose of the General Statutory and
Regulatory Waiver Authority provided at section 189(i)(4) of the
Workforce Investment Act?
(a) The purpose of the general statutory and regulatory waiver
authority is to provide flexibility to States and local areas and
enhance their ability to improve the statewide workforce investment
system.
(b) A waiver may be requested to address impediments to the
implementation of a strategic plan, including the continuous improvement
strategy, consistent with the key reform principles of WIA. These key
reform principles include:
(1) Streamlining services and information to participants through a
One-Stop delivery system;
(2) Empowering individuals to obtain needed services and information
to enhance their employment opportunities;
(3) Ensuring universal access to core employment-related services;
(4) Increasing accountability of States, localities and training
providers for performance outcomes;
(5) Establishing a stronger role for Local Boards and the private
sector;
(6) Providing increased State and local flexibility to implement
innovative and comprehensive workforce investment systems; and
(7) Improving youth programs through services which emphasize
academic and occupational learning.
Sec. 661.410 What provisions of WIA and the Wagner-Peyser Act may
be waived, and what provisions may not be waived?
(a) The Secretary may waive any of the statutory or regulatory
requirements of subtitles B and E of title I of WIA, 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;
and
(b) The Secretary may waive any of the statutory or regulatory
requirements of sections 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.
(c) The Secretary does not intend to waive any of the statutory or
regulatory provisions essential to the key reform principles embodied in
the Workforce Investment Act, described inSec. 661.400, except in
extremely unusual circumstances where the provision can be demonstrated
as impeding reform. (WIA sec. 189(i).)
Sec. 661.420 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under WIA section 189(i)(4)?
(a) A Governor may request a general waiver in consultation with
appropriate chief elected officials:
[[Page 50]]
(1) By submitting a waiver plan which may accompany the State's WIA
5-year strategic Plan; or
(2) After a State's WIA Plan is approved, by directly submitting a
waiver plan.
(b) A Governor's waiver request may seek waivers for the entire
State or for one or more local areas.
(c) 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 Strategic Plan goals;
(2) Describes the actions that the State or local area, as
appropriate, has undertaken to remove State or local statutory or
regulatory barriers;
(3) Describes the goals of the waiver and the expected programmatic
outcomes if the request is granted;
(4) Describes the individuals affected by the waiver; and
(5) 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; and
(iv) Ensure meaningful public comment, including comment by business
and organized labor, on the waiver.
(d) The Secretary issues a decision on a waiver request within 90
days after the receipt of the original waiver request.
(e) 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 WIA section 189(i)(4) and Sec.Sec. 661.400 through
661.420; and
(3) The State has executed a Memorandum of Understanding 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.
(f) The Secretary will issue guidelines under which the States may
request general waivers of WIA and Wagner-Peyser requirements. (WIA sec.
189(i).)
Sec. 661.430 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 (work-flex) 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
WIA 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 WIA;
(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) Review and approval of local plans;
(ix) Worker rights, participation, and protection; and
(x) Any of the statutory provisions essential to the key reform
principles embodied in the Workforce Investment Act, described inSec.
661.400.
(2) Any of the statutory or regulatory requirements applicable to
the State under section 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; and
(3) Any of the statutory or regulatory requirements under the Older
Americans Act of 1965 (OAA) (42 U.S.C. 3001 et seq.), applicable to
State agencies on aging with respect to activities carried
[[Page 51]]
out using funds allotted under OAA section 506(a)(3) (42 U.S.C.
3056d(a)(3)), 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 agreements.
(b) A State's workforce flexibility plan may accompany the State's
five-year Strategic Plan or may be submitted separately. If it is
submitted separately, the workforce flexibility plan must identify
related provisions in the State's five-year Strategic Plan.
(c) 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;
(2) The statutory and regulatory requirements of title I of WIA that
are likely to be waived by the State under the workforce flexibility
plan;
(3) The statutory and regulatory requirements of sections 8 through
10 of the Wagner-Peyser Act that are proposed for waiver, if any;
(4) The statutory and regulatory requirements of the Older Americans
Act of 1965 that are proposed for waiver, if any;
(5) The outcomes to be achieved by the waivers described in
paragraphs (c)(1) to (4) of this section including, where appropriate,
revisions to adjusted levels of performance included in the State or
local plan under title I of WIA; and
(6) The measures to be taken to ensure appropriate accountability
for Federal funds in connection with the waivers.
(d) The Secretary may approve a workforce flexibility plan for a
period of up to five 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.
Sec. 661.440 What limitations apply to the State's Workforce
Flexibility Plan authority under WIA?
(a)(1) Under work-flex waiver authority a State must not waive the
WIA, Wagner-Peyser or Older Americans Act requirements which are
excepted from the work-flex waiver authority and described inSec.
661.430(a).
(2) Requests to waive statutory and regulatory requirements of title
I of WIA 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. 661.410 through 661.420.
(b) As required inSec. 661.430(c)(5), States must address the
outcomes to result from work-flex waivers as part of its workforce
flexibility plan. Once approved, a State's work-flex designation is
conditioned on the State demonstrating it has met the agreed-upon
outcomes contained in its workforce flexibility plan.
PART 662_DESCRIPTION OF THE ONE-STOP SYSTEM UNDER TITLE I OF THE
WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_General Description of the One-Stop Delivery System
Sec.
662.100 What is the One-Stop delivery system?
Subpart B_One-Stop Partners and the Responsibilities of Partners
662.200 Who are the required One-Stop partners?
662.210 What other entities may serve as One-Stop partners?
662.220 What entity serves as the One-Stop partner for a particular
program in the local area?
662.230 What are the responsibilities of the required One-Stop partners?
662.240 What are a program's applicable core services?
662.250 Where and to what extent must required One-Stop partners make
core services available?
662.260 What services, in addition to the applicable core services, are
to be provided by One-Stop partners through the One-Stop
delivery system?
[[Page 52]]
662.270 How are the costs of providing services through the One-Stop
delivery system and the operating costs of the system to be
funded?
662.280 Does title I require One-Stop partners to use their funds for
individuals who are not eligible for the partner's program or
for services that are not authorized under the partner's
program?
Subpart C_Memorandum of Understanding for the One-Stop Delivery System
662.300 What is the Memorandum of Understanding (MOU)?
662.310 Is there a single MOU for the local area or are there to be
separate MOU's between the Local Board and each partner?
Subpart D_One-Stop Operators
662.400 Who is the One-Stop operator?
662.410 How is the One-Stop operator selected?
662.420 Under what limited conditions may the Local Board be designated
or certified as the One-Stop operator?
662.430 Under what conditions may One-Stop operators designated to
operate in a One-Stop delivery system established prior to the
enactment of WIA be designated to continue to act as a One-
Stop operator under WIA without meeting the requirements of
Sec. 662.410(b)?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49398, Aug. 11, 2000, unless otherwise noted.
Subpart A_General Description of the One-Stop Delivery System
Sec. 662.100 What is the One-Stop delivery system?
(a) In general, the One-Stop delivery system is a system under which
entities responsible for administering separate workforce investment,
educational, and other human resource programs and funding streams
(referred to as One-Stop partners) collaborate to create a seamless
system of service delivery that will enhance access to the programs'
services and improve long-term employment outcomes for individuals
receiving assistance.
(b) Title I of WIA assigns responsibilities at the local, State and
Federal level to ensure the creation and maintenance of a One-Stop
delivery system that enhances the range and quality of workforce
development services that are accessible to individuals seeking
assistance.
(c) The system must include at least one comprehensive physical
center in each local area that must provide the core services specified
in WIA section 134(d)(2), and must provide access to other programs and
activities carried out by the One-Stop partners.
(d) While each local area must have at least one comprehensive
center (and may have additional comprehensive centers), WIA section
134(c) allows for arrangements to supplement the center. These
arrangements may include:
(1) A network of affiliated sites that can provide one or more
partners' programs, services and activities at each site;
(2) A network of One-Stop partners through which each partner
provides services that are linked, physically or technologically, to an
affiliated site that assures individuals are provided information on the
availability of core services in the local area; and
(3) Specialized centers that address specific needs, such as those
of dislocated workers.
(e) The design of the local area's One-Stop delivery system,
including the number of comprehensive centers and the supplementary
arrangements, must be described in the local plan and be consistent with
the Memorandum of Understanding executed with the One-Stop partners.
Subpart B_One-Stop Partners and the Responsibilities of Partners
Sec. 662.200 Who are the required One-Stop partners?
(a) WIA section 121(b)(1) identifies the entities that are required
partners in the local One-Stop systems.
(b) The required partners are the entities that are responsible for
administering the following programs and activities in the local area:
(1) Programs authorized under title I of WIA, serving:
(i) Adults;
(ii) Dislocated workers;
(iii) Youth;
(iv) Job Corps;
(v) Native American programs;
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(vi) Migrant and seasonal farmworker programs; and
(vii) Veterans' workforce programs; (WIA sec. 121(b)(1)(B)(i));
(2) Programs authorized under the Wagner-Peyser Act (29 U.S.C. 49 et
seq.); (WIA sec. 121(b)(1)(B)(ii));
(3) Adult education and literacy activities authorized under title
II of WIA; (WIA sec. 121(b)(1)(B)(iii));
(4) Programs authorized under parts A and B of title I of the
Rehabilitation Act (29 U.S.C. 720 et seq.); (WIA sec. 121(b)(1)(B)(iv));
(5) [Reserved]
(6) Senior community service employment activities authorized under
title V of the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
(WIA sec. 121(b)(1)(B)(vi));
(7) Postsecondary vocational education activities under the Carl D.
Perkins Vocational and Applied Technology Education Act (20 U.S.C. 2301
et seq.); (WIA sec. 121(b)(1)(B)(vii));
(8) Trade Adjustment Assistance and NAFTA Transitional Adjustment
Assistance activities authorized under chapter 2 of title II of the
Trade Act of 1974, as amended (19 U.S.C. 2271 et seq.) and Section
123(c)(2) of the Trade Adjustment Assistance Reform Act of 2002 (Pub. L.
107-210), respectively; see (WIA sec. 121(b)(1)(B)(viii));
(9) Activities authorized under chapter 41 of title 38, U.S.C.
(local veterans' employment representatives and disabled veterans
outreach programs); (WIA sec. 121(b)(1)(B)(ix));
(10) Employment and training activities carried out under the
Community Services Block Grant (42 U.S.C. 9901 et seq.); (WIA sec.
121(b)(1)(B)(x));
(11) Employment and training activities carried out by the
Department of Housing and Urban Development; (WIA sec.
121(b)(1)(B)(xi)); and
(12) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law); (WIA sec.
121(b)(1)(B)(xii).)
[65 FR 49398, Aug. 11, 2000, as amended at 71 FR 35523, June 21, 2006]
Sec. 662.210 What other entities may serve as One-Stop partners?
(a) WIA provides that other entities that carry out a human resource
program, including Federal, State, or local programs and programs in the
private sector may serve as additional partners in the One-Stop system
if the Local Board and chief elected official(s) approve the entity's
participation.
(b) Additional partners may include:
(1) TANF programs authorized under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.);
(2) Employment and training programs authorized under section
6(d)(4) of the Food Stamp Act of 1977 (7 U.S.C. 2015(d)(4));
(3) Work programs authorized under section 6(o) of the Food Stamp
Act of 1977 (7 U.S.C. 2015(o));
(4) Programs authorized under the National and Community Service Act
of 1990 (42 U.S.C. 12501 et seq.); and
(5) Other appropriate Federal, State or local programs, including
programs related to transportation and housing and programs in the
private sector. (WIA sec. 121(b)(2).)
(c) The State may require that one or more of the programs
identified in paragraph (b) of this section be included as a partner in
all of the local One-Stop delivery systems in the State.
Sec. 662.220 What entity serves as the One-Stop partner for a
particular program in the local area?
(a) The ``entity'' that carries out the program and activities
listed in Sec.Sec. 662.200 and 662.210 and, therefore, serves as the
One-Stop partner is the grant recipient, administrative entity or
organization responsible for administering the funds of the specified
program in the local area. The term ``entity'' does not include the
service providers that contract with or are subrecipients of the local
administrative entity. For programs that do not include local
administrative entities, the responsible State Agency should be the
partner. Specific entities for particular programs are identified in
paragraph (b) of this section. If a program or activity listed inSec.
662.200 is not carried out in a local area, the requirements relating to
a required One-Stop partner are not applicable to such program or
activity in that local One-Stop system.
(b)(1) For title II of WIA, the entity that carries out the program
for the
[[Page 54]]
purposes of paragraph (a) is the State eligible entity. The State
eligible entity may designate an eligible provider, or a consortium of
eligible providers, as the ``entity'' for this purpose;
(2) For title I, Part A, of the Rehabilitation Act, the entity that
carries out the program for the purposes of paragraph (a) of this
section is the designated State agency or designated unit specified
under section 101(a)(2) that is primarily concerned with vocational
rehabilitation, or vocational and other rehabilitation, of individuals
with disabilities; and
(3) Under WIA, the national programs, including Job Corps, the WIA
Indian and Native American program, the Migrant and Seasonal Farmworkers
program, and the Veterans' Workforce Investment program, are required
One-Stop partners. Local Boards must include them in the One-Stop
delivery system where they are present in their local area. In local
areas where the national programs are not present, States and Local
Boards should take steps to ensure that customer groups served by these
programs have access to services through the One-Stop delivery system.
Sec. 662.230 What are the responsibilities of the required
One-Stop partners?
All required partners must:
(a) Make available to participants through the One-Stop delivery
system the core services that are applicable to the partner's programs;
(WIA sec. 121(b)(1)(A).)
(b) Use a portion of funds made available to the partner's program,
to the extent not inconsistent with the Federal law authorizing the
partner's program, to:
(1) Create and maintain the One-Stop delivery system; and
(2) Provide core services; (WIA sec. 134(d)(1)(B).)
(c) Enter into a memorandum of understanding (MOU) with the Local
Board relating to the operation of the One-Stop system that meets the
requirements ofSec. 662.300, including a description of services, how
the cost of the identified services and operating costs of the system
will be funded, and methods for referrals (WIA sec. 121(c));
(d) Participate in the operation of the One-Stop system consistent
with the terms of the MOU and requirements of authorizing laws; (WIA
sec. 121(b)(1)(B).) and
(e) Provide representation on the Local Workforce Investment Board.
(WIA sec. 117(b)(2)(A)(vi).)
Sec. 662.240 What are a program's applicable core services?
(a) The core services applicable to any One-Stop partner program are
those services described in paragraph (b) of this section, that are
authorized and provided under the partner's program.
(b) The core services identified in section 134(d)(2) of the WIA
are:
(1) Determinations of whether the individuals are eligible to
receive assistance under subtitle B of title I of WIA;
(2) Outreach, intake (which may include worker profiling), and
orientation to the information and other services available through the
One-Stop delivery system;
(3) Initial assessment of skill levels, aptitudes, abilities, and
supportive service needs;
(4) Job search and placement assistance, and where appropriate,
career counseling;
(5) Provision of employment statistics information, including the
provision of accurate information relating to local, regional, and
national labor market areas, including--
(i) Job vacancy listings in such labor market areas;
(ii) Information on job skills necessary to obtain the listed jobs;
and
(iii) Information relating to local occupations in demand and the
earnings and skill requirements for such occupations;
(6) Provision of program performance information and program cost
information on:
(i) Eligible providers of training services described in WIA section
122;
(ii) Eligible providers of youth activities described in WIA section
123;
(iii) Providers of adult education described in title II;
(iv) Providers of postsecondary vocational education activities and
vocational education activities available to
[[Page 55]]
school dropouts under the Carl D. Perkins Vocational and Applied
Technology Education Act (20 U.S.C. 2301 et seq.); and
(v) Providers of vocational rehabilitation program activities
described in title I of the Rehabilitation Act of 1973 (29 U.S.C. 720 et
seq.);
(7) Provision of information on how the local area is performing on
the local performance measures and any additional performance
information with respect to the One-Stop delivery system in the local
area;
(8) Provision of accurate information relating to the availability
of supportive services, including, at a minimum, child care and
transportation, available in the local area, and referral to such
services, as appropriate;
(9) Provision of information regarding filing claims for
unemployment compensation;
(10) Assistance in establishing eligibility for programs of
financial aid assistance for training and education programs that are
not funded under this Act and are available in the local area; and
(11) Followup services, including counseling regarding the
workplace, for participants in workforce investment activities
authorized under subtitle (B) of title I of WIA who are placed in
unsubsidized employment, for not less than 12 months after the first day
of the employment, as appropriate.
[65 FR 49398, Aug. 11, 2000, as amended at 71 FR 35523, June 21, 2006]
Sec. 662.250 Where and to what extent must required One-Stop
partners make core services available?
(a) At a minimum, the core services that are applicable to the
program of the partner underSec. 662.220, and that are in addition to
the basic labor exchange services traditionally provided in the local
area under the Wagner-Peyser program, must be made available at the
comprehensive One-Stop center. These services must be made available to
individuals attributable to the partner's program who seek assistance at
the center. The adult and dislocated worker program partners are
required to make all of the core services listed inSec. 662.240
available at the center in accordance with 20 CFR 663.100(b)(1).
(b) The applicable core services may be made available by the
provision of appropriate technology at the comprehensive One-Stop
center, by co-locating personnel at the center, cross-training of staff,
or through a cost reimbursement or other agreement between service
providers at the comprehensive One-Stop center and the partner, as
described in the MOU.
(c) The responsibility of the partner for the provision of core
services must be proportionate to the use of the services at the
comprehensive One-Stop center by the individuals attributable to the
partner's program. The specific method of determining each partner's
proportionate responsibility must be described in the MOU.
(d) For purposes of this part, individuals attributable to the
partner's program may include individuals who are referred through the
comprehensive One-Stop center and enrolled in the partner's program
after the receipt of core services, who have been enrolled in the
partner's program prior to receipt of the applicable core services at
the center, who meet the eligibility criteria for the partner's program
and who receive an applicable core service, or who meet an alternative
definition described in the MOU.
(e) Under the MOU, the provision of applicable core services at the
center by the One-Stop partner may be supplemented by the provision of
such services through the networks of affiliated sites and networks of
One-Stop partners described in WIA section 134(c)(2).
Sec. 662.260 What services, in addition to the applicable core
services, are to be provided by One-Stop partners through the
One-Stop delivery system?
In addition to the provision of core services, One-Stop partners
must provide access to the other activities and programs carried out
under the partner's authorizing laws. The access to these services must
be described in the local MOU. 20 CFR part 663 describes the specific
requirements relating to the provision of core, intensive, and training
services through the One-Stop system that apply to the adult and the
dislocated worker programs authorized
[[Page 56]]
under title I of WIA. Additional requirements apply to the provision of
all labor exchange services under the Wagner-Peyser Act. (WIA sec.
134(c)(1)(D).)
Sec. 662.270 How are the costs of providing services through the
One-Stop delivery system and the operating costs of the system
to be funded?
The MOU must describe the particular funding arrangements for
services and operating costs of the One-Stop delivery system. Each
partner must contribute a fair share of the operating costs of the One-
Stop delivery system proportionate to the use of the system by
individuals attributable to the partner's program. There are a number of
methods, consistent with the equirements of the relevant OMB circulars,
that may be used for allocating costs among the partners. Some of these
methodologies include allocations based on direct charges, cost pooling,
indirect cost rates and activity-based cost allocation plans. Additional
guidance relating to cost allocation methods may be issued by the
Department in consultation with the other appropriate Federal agencies.
Sec. 662.280 Does title I require One-Stop partners to use their
funds for individuals who are not eligible for the partner's program
or for services that are not authorized under the partner's program?
No, the requirements of the partner's program continue to apply. The
Act intends to create a seamless service delivery system for individuals
seeking workforce development services by linking the One-Stop partners
in the One-Stop delivery system. While the overall effect is to provide
universal access to core services, the resources of each partner may
only be used to provide services that are authorized and provided under
the partner's program to individuals who are eligible under such
program. (WIA sec. 121(b)(1).)
Subpart C_Memorandum of Understanding for the One-Stop Delivery System
Sec. 662.300 What is the Memorandum of Understanding (MOU)?
(a) The Memorandum of Understanding (MOU) is an agreement developed
and executed between the Local Board, with the agreement of the chief
elected official, and the One-Stop partners relating to the operation of
the One-Stop delivery system in the local area.
(b) The MOU must contain the provisions required by WIA section
121(c)(2). These provisions cover services to be provided through the
One-Stop delivery system; the funding of the services and operating
costs of the system; and methods for referring individuals between the
One-Stop operators and partners. The MOU's provisions also must
determine the duration and procedures for amending the MOU, and may
contain any other provisions that are consistent with WIA title I and
the WIA regulations agreed to by the parties. (WIA sec. 121(c).)
Sec. 662.310 Is there a single MOU for the local area or are there
to be separate MOU's between the Local Board and each partner?
(a) A single ``umbrella'' MOU may be developed that addresses the
issues relating to the local One-Stop delivery system for the Local
Board, chief elected official and all partners, or the Local Board,
chief elected official and the partners may decide to enter into
separate agreements between the Local Board (with the agreement of the
chief elected official) and one or more partners. Under either approach,
the requirements described in this subpart apply. Since funds are
generally appropriated annually, financial agreements may be negotiated
with each partner annually to clarify funding of services and operating
costs of the system under the MOU.
(b) WIA emphasizes full and effective partnerships between Local
Boards, chief elected officials and One-Stop partners. Local Boards and
partners
[[Page 57]]
must enter into good-faith negotiations. Local Boards, chief elected
officials and partners may request assistance from a State agency
responsible for administering the partner program, the Governor, State
Board, or other appropriate parties. The State agencies, the State
Board, and the Governor may also consult with the appropriate Federal
agencies to address impasse situations after exhausting other
alternatives. The Local Board and partners must document the
negotiations and efforts that have taken place. Any failure to execute
an MOU between a Local Board and a required partner must be reported by
the Local Board and the required partner to the Governor or State Board,
and the State agency responsible for administering the partner's
program, and by the Governor or the State Board and the responsible
State agency to the Secretary of Labor and to the head of any other
Federal agency with responsibility for oversight of a partner's program.
(WIA sec. 121(c).)
(c) If an impasse has not been resolved through the alternatives
available under this section any partner that fails to execute an MOU
may not be permitted to serve on the Local Board. In addition, any local
area in which a Local Board has failed to execute an MOU with all of the
required partners is not eligible for State incentive grants awarded on
the basis of local coordination of activities under 20 CFR
665.200(d)(2). These sanctions are in addition to, not in lieu of, any
other remedies that may be applicable to the Local Board or to each
partner for failure to comply with the statutory requirement.
Subpart D_One-Stop Operators
Sec. 662.400 Who is the One-Stop operator?
(a) The One-Stop operator is the entity that performs the role
described in paragraph (c) of this section. The types of entities that
may be selected to be the One-Stop operator include:
(1) A postsecondary educational institution;
(2) An Employment Service agency established under the Wagner-Peyser
Act on behalf of the local office of the agency;
(3) A private, nonprofit organization (including a community-based
organization);
(4) A private for-profit entity;
(5) A government agency; and
(6) Another interested organization or entity.
(b) One-Stop operators may be a single entity or a consortium of
entities and may operate one or more One-Stop centers. In addition,
there may be more than one One-Stop operator in a local area.
(c) The agreement between the Local Board and the One-Stop operator
shall specify the operator's role. That role may range between simply
coordinating service providers within the center, to being the primary
provider of services within the center, to coordinating activities
throughout the One-Stop system. (WIA sec. 121(d).)
Sec. 662.410 How is the One-Stop operator selected?
(a) The Local Board, with the agreement of the chief elected
official, must designate and certify One-Stop operators in each local
area.
(b) The One-Stop operator is designated or certified:
(1) Through a competitive process,
(2) Under an agreement between the Local Board and a consortium of
entities that includes at least three or more of the required One-Stop
partners.identified atSec. 662.200, or
(3) Under the conditions described in Sec.Sec. 662.420 or 662.430.
(WIA sec.121(d), 121(e) and 117(f)(2))
(c) The designation or certification of the One-Stop operator must
be carried out in accordance with the ``sunshine provision'' at 20 CFR
661.307.
Sec. 662.420 Under what limited conditions may the Local Board be
designated or certified as the One-Stop operator?
(a) The Local Board may be designated or certified as the One-Stop
operator only with the agreement of the chief elected official and the
Governor.
(b) The designation or certification must be reviewed whenever the
biennial certification of the Local Board is made under 20 CFR
663.300(a). (WIA sec. 117(f)(2).)
[[Page 58]]
Sec. 662.430 Under what conditions may One-Stop operators designated
to operate in a One-Stop delivery system established prior to the
enactment of WIA be designated to continue as a One-Stop operator
under WIA without meeting the requirements ofSec. 662.410(b)?
Under WIA section 121(e), the Local Board, the chief elected
official and the Governor may agree to certify an entity that has been
serving as a One-Stop operator in a One-Stop delivery system established
prior to the enactment of WIA (August 7, 1998) to continue to serve as a
One-Stop operator without meeting the requirements for designation under
Sec. 662.410(b) if the local One-Stop delivery system is modified, as
necessary, to meet the other requirements of this part, including the
requirements relating to the inclusion of One-Stop partners, the
execution of the MOU, and the provision of services.(WIA sec. 121(e).)
PART 663_ADULT AND DISLOCATED WORKER ACTIVITIES UNDER TITLE I OF THE
WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_Delivery of Adult and Dislocated Worker Services Through the
One-Stop Delivery System
Sec.
663.100 What is the role of the adult and dislocated worker programs in
the One-Stop delivery system?
663.105 When must adults and dislocated workers be registered?
663.110 What are the eligibility criteria for core services for adults
in the adult and dislocated worker programs?
663.115 What are the eligibility criteria for core services for
dislocated workers in the adult and dislocated worker
programs?
663.120 Are displaced homemakers eligible for dislocated worker
activities under WIA?
663.145 What services are WIA title I adult and dislocated workers
formula funds used to provide?
663.150 What core services must be provided to adults and dislocated
workers?
663.155 How are core services delivered?
663.160 Are there particular core services an individual must receive
before receiving intensive services under WIA section
134(d)(3)?
663.165 How long must an individual be in core services in order to be
eligible for intensive services?
Subpart B_Intensive Services
663.200 What are intensive services for adults and dislocated workers?
663.210 How are intensive services delivered?
663.220 Who may receive intensive services?
663.230 What criteria must be used to determine whether an employed
worker needs intensive services to obtain or retain employment
leading to ``self-sufficiency''?
663.240 Are there particular intensive services an individual must
receive before receiving training services under WIA section
134(d)(4)(A)(i)?
663.245 What is the individual employment plan?
663.250 How long must an individual participant be in intensive services
to be eligible for training services?
Subpart C_Training Services
663.300 What are training services for adults and dislocated workers?
663.310 Who may receive training services?
663.320 What are the requirements for coordination of WIA training funds
and other grant assistance?
Subpart D_Individual Training Accounts
663.400 How are training services provided?
663.410 What is an Individual Training Account (ITA)?
663.420 Can the duration and amount of ITA's be limited?
663.430 Under what circumstances may mechanisms other than ITA's be used
to provide training services?
663.440 What are the requirements for consumer choice?
Subpart E_Eligible Training Providers
663.500 What is the purpose of this subpart?
663.505 What are eligible providers of training services?
663.508 What is a ``program of training services''?
663.510 Who is responsible for managing the eligible provider process?
663.515 What is the process for initial determination of provider
eligibility?
663.530 Is there a time limit on the period of initial eligibility for
training providers?
663.535 What is the process for determining the subsequent eligibility
of a provider?
663.540 What kind of performance and cost information is required for
determinations of subsequent eligibility?
663.550 How is eligible provider information developed and maintained?
663.555 How is the State list disseminated?
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663.565 May an eligible training provider lose its eligibility?
663.570 What is the consumer reports system?
663.575 In what ways can a Local Board supplement the information
available from the State list?
663.585 May individuals choose training providers located outside of the
local area?
663.590 May a community-based organization (CBO) be included on an
eligible provider list?
663.595 What requirements apply to providers of OJT and customized
training?
Subpart F_Priority and Special Populations
663.600 What priority must be given to low-income adults and public
assistance recipients served with adult funds under title I?
663.610 Does the statutory priority for use of adult funds also apply to
dislocated worker funds?
663.620 How do the Welfare-to-Work program and the TANF program relate
to the One-Stop delivery system?
663.630 How does a displaced homemaker qualify for services under title
I?
663.640 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?
Subpart G_On-the-Job Training (OJT) and Customized Training
663.700 What are the requirements for on-the-job training (OJT)?
663.705 What are the requirements for OJT contracts for employed
workers?
663.710 What conditions govern OJT payments to employers?
663.715 What is customized training?
663.720 What are the requirements for customized training for employed
workers?
663.730 May funds provided to employers for OJT of customized training
be used to assist, promote, or deter union organizing?
Subpart H_Supportive Services
663.800 What are supportive services for adults and dislocated workers?
663.805 When may supportive services be provided to participants?
663.810 Are there limits on the amounts or duration of funds for
supportive services?
663.815 What are needs-related payments?
663.820 What are the eligibility requirements for adults to receive
needs-related payments?
663.825 What are the eligibility requirements for dislocated workers to
receive needs-related payments?
663.830 May needs-related payments be paid while a participant is
waiting to start training classes?
663.840 How is the level of needs-related payments determined?
Authority: Section 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49402, Aug. 11, 2000, unless otherwise noted.
Subpart A_Delivery of Adult and Dislocated Worker Services Through the
One-Stop Delivery System
Sec. 663.100 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 organized
into three levels: core, intensive, and training.
(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 20 CFR part 662. Consistent with those
provisions:
(1) Core 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) The One-Stop centers also make intensive services available to
adults and dislocated workers, as needed, either by the One-Stop
operator directly or through contracts with service providers that are
approved by the Local Board.
(3) Through the One-Stop system, adults and dislocated workers
needing training are provided Individual Training Accounts (ITA's) 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
[[Page 60]]
on where to use their ITA's. (ITA's are more fully discussed in subpart
D of this part.)
Sec. 663.105 When must adults and dislocated workers be registered?
(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.
(b) Adults and dislocated workers who receive services funded under
title I other than self-service or informational activities must be
registered and determined eligible.
(c) EO data must be collected on every individual who is interested
in being considered for WIA 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 recipient.
Sec. 663.110 What are the eligibility criteria for core services
for adults in the adult and dislocated worker programs?
To be eligible to receive core 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 the dislocated worker programs, an eligible
adult must meet the criteria ofSec. 663.115. Eligibility criteria for
intensive and training services are found at Sec.Sec. 663.220 and
663.310.
Sec. 663.115 What are the eligibility criteria for core services
for dislocated workers in the adult and dislocated worker programs?
(a) To be eligible to receive core services as a dislocated worker
in the adult and dislocated worker programs, an individual must meet the
definition of ``dislocated worker'' at WIA section 101(9). Eligibility
criteria for intensive and training services are found at Sec.Sec.
663.220 and 663.310.
(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 WIA section
101(9). These policies and procedures may address such conditions as:
(1) What constitutes a ``general announcement'' of plant closing
under WIA section 101(9)(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 or ranch hands, under WIA
section 101(9)(C).
Sec. 663.120 Are displaced homemakers eligible for dislocated worker
activities under WIA?
(a) Yes, there are two significant differences from the eligibility
requirements under the Job Training Partnership Act.
(b) Under the dislocated worker program in JTPA, displaced
homemakers are defined as ``additional dislocated workers'' and are only
eligible to receive services if the Governor determines that providing
such services would not adversely affect the delivery of services to the
other eligible dislocated workers. Under WIA section 101(9), displaced
homemakers who meet the definition at WIA section 101(10) are eligible
dislocated workers without any additional determination.
(c) The definition of displaced homemaker under JTPA included
individuals who had been dependent upon public assistance under Aid for
Families with Dependent Children (AFDC) as well as those who had been
dependent on the income of another family member. The definition in WIA
section 101(10) includes only those individuals who were dependent on a
family member's income. Those individuals who have been dependent on
public assistance may be served in the adult program.
Sec. 663.145 What services are WIA title I adult and dislocated
workers formula funds used to provide?
(a) WIA title I formula funds allocated to local areas for adults
and dislocated workers must be used to provide core, intensive and
training services through the One-Stop delivery system. Local Boards
determine the most appropriate mix of these services, but
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all three types must be available for both adults and dislocated
workers. There are different eligibility criteria for each of these
types of services, which are described at Sec.Sec. 663.110, 663.115,
663.220 and 663.310.
(b) WIA title I funds may also be used to provide the other services
described in WIA section 134(e):
(1) Discretionary One-Stop delivery activities, including:
(i) Customized screening and referral of qualified participants in
training services to employment; and
(ii) Customized employment-related services to employers on a fee-
for-service basis that are in addition to labor exchange services
available to employers under the Wagner-Peyser Act.
(2) Supportive services, including needs-related payments, as
described in subpart H of this part.
Sec. 663.150 What core services must be provided to adults and
dislocated workers?
(a) At a minimum, all of the core services described in WIA section
134(d)(2) and 20 CFR 662.240 must be provided in each local area through
the One-Stop delivery system.
(b) Followup services 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. 663.155 How are core services delivered?
Core services must be provided through the One-Stop delivery system.
Core 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 core services when
approved by the chief elected official and the Governor in accordance
with the requirements of WIA section 117(f)(2) and 20 CFR 661.310.
Sec. 663.160 Are there particular core services an individual must
receive before receiving intensive services under WIA
section 134(d)(3)?
(a) Yes, at a minimum, an individual must receive at least one core
service, such as an initial assessment or job search and placement
assistance, before receiving intensive services. The initial assessment
provides preliminary information about the individual's skill levels,
aptitudes, interests, and supportive services needs. The job search and
placement assistance helps the individual determine whether he or she is
unable to obtain employment, and thus requires more intensive services
to obtain employment. The decision on which core services to provide,
and the timing of their delivery, may be made on a case-by-case basis at
the local level depending upon the needs of the participant.
(b) A determination of the need for intensive services underSec.
663.220, as established by the initial assessment or the individual's
inability to obtain employment through the core services provided, must
be contained in the participant's case file.
Sec. 663.165 How long must an individual be in core services in
order to be eligible for intensive services?
There is no Federally-required minimum time period for participation
in core services before receiving intensive services. (WIA sec.
134(d)(3).)
Subpart B_Intensive Services
Sec. 663.200 What are intensive services for adults and dislocated workers?
(a) Intensive services are listed in WIA section 134(d)(3)(C). The
list in the Act is not all-inclusive and other intensive services, such
as out-of-area job search assistance, literacy activities related to
basic workforce readiness, relocation assistance, internships, and work
experience may be provided, based on an assessment or individual
employment plan.
(b) For the purposes of paragraph (a) of this section, work
experience is 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 workplace may be 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, exists.
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Sec. 663.210 How are intensive services delivered?
(a) Intensive services must be provided through the One-Stop
delivery system, including specialized One-Stop centers. Intensive
services may be provided directly by the One-Stop operator or through
contracts with service providers, which may include contracts with
public, private for-profit, and private non-profit service providers
(including specialized service providers), that are approved by the
Local Board. (WIA secs. 117(d)(2)(D) and 134(d)(3)(B).)
(b) The Local Board may only be a provider of intensive services
when approved by the chief elected official and the Governor in
accordance with WIA section 117(f)(2) and 20 CFR 661.310.
Sec. 663.220 Who may receive intensive services?
There are two categories of adults and dislocated workers who may
receive intensive services:
(a) Adults and dislocated workers who are unemployed, have received
at least one core service and are unable to obtain employment through
core services, and are determined by a One-Stop operator to be in need
of more intensive services to obtain employment; and
(b) Adults and dislocated workers who are employed, have received at
least one core service, and are determined by a One-Stop operator to be
in need of intensive services to obtain or retain employment that leads
to self-sufficiency, as described inSec. 663.230.
Sec. 663.230 What criteria must be used to determine whether an
employed worker needs intensive services to obtain or retain
employment leading to ``self-sufficiency''?
State Boards or Local Boards must set the criteria for determining
whether employment leads to self-sufficiency. At a minimum, such
criteria must provide that self-sufficiency means employment that pays
at least the lower living standard income level, as defined in WIA
section 101(24). Self-sufficiency for a dislocated worker may be defined
in relation to a percentage of the layoff wage. The special needs of
individuals with disabilities or other barriers to employment should be
taken into account when setting criteria to determine self-sufficiency.
Sec. 663.240 Are there particular intensive services an individual
must receive before receiving training services under WIA
section 134(d)(4)(A)(i)?
(a) Yes, at a minimum, an individual must receive at least one
intensive service, such as development of an individual employment plan
with a case manager or individual counseling and career planning, before
the individual may receive training services.
(b) The case file must contain a determination of need for training
services underSec. 663.310, as identified in the individual employment
plan, comprehensive assessment, or through any other intensive service
received.
Sec. 663.245 What is the individual employment plan?
The individual employment plan is an ongoing strategy jointly
developed by the participant and the case manager that identifies the
participant's employment goals, the appropriate achievement objectives,
and the appropriate combination of services for the participant to
achieve the employment goals.
Sec. 663.250 How long must an individual participant be in intensive
services to be eligible for training services?
There is no Federally-required minimum time period for participation
in intensive services before receiving training services. The period of
time an individual spends in intensive services should be sufficient to
prepare the individual for training or employment. (WIA sec.
134(d)(4)(A)(i).)
Subpart C_Training Services
Sec. 663.300 What are training services for adults and dislocated
workers?
Training services are listed in WIA section 134(d)(4)(D). The list
in the Act is not all-inclusive and additional training services may be
provided.
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Sec. 663.310 Who may receive training services?
Training services may be made available to employed and unemployed
adults and dislocated workers who:
(a) Have met the eligibility requirements for intensive services,
have received at least one intensive service underSec. 663.240, and
have been determined to be unable to obtain or retain employment through
such services;
(b) After an interview, evaluation, or assessment, and case
management, have been determined by a One-Stop operator or One-Stop
partner, to be in need of training services and to have the skills and
qualifications to successfully complete the selected training program;
(c) Select a program of training services that is directly linked to
the employment opportunities either in the local area or in another area
to which the individual is willing to relocate;
(d) Are unable to obtain grant assistance from other sources to pay
the costs of such training, including such sources as Welfare-to-Work,
State-funded training funds, Trade Adjustment Assistance and Federal
Pell Grants established under title IV of the Higher Education Act of
1965, or require WIA assistance in addition to other sources of grant
assistance, including Federal Pell Grants (provisions relating to fund
coordination are found atSec. 663.320 and WIA section 134(d)(4)(B));
and
(e) For individuals whose 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 WIA section
134(d)(4)(E) andSec. 663.600. (WIA sec. 134(d)(4)(A).)
Sec. 663.320 What are the requirements for coordination of WIA
training funds and other grant assistance?
(a) WIA 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.
(b) Program 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. Training
providers must consider the availability of other sources of grants to
pay for training costs such as Welfare-to-Work, State-funded training
funds, and Federal Pell Grants, so that WIA funds supplement other
sources of training grants.
(c) A WIA participant may enroll in WIA-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 WIA
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 WIA 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 WIA participant for
education-related expenses. (WIA sec. 134(d)(4)(B).)
Subpart D_Individual Training Accounts
Sec. 663.400 How are training services provided?
Except under the three conditions described in WIA section
134(d)(4)(G)(ii) andSec. 663.430(a), the Individual Training Account
(ITA) is established for eligible individuals to finance training
services. Local Boards may only provide training services underSec.
663.430 if they receive a waiver from the Governor and meet the
requirements of 20 CFR 661.310 and WIA section 117(f)(1). (WIA sec.
134(d)(4)(G).)
Sec. 663.410 What is an Individual Training Account (ITA)?
The ITA is established on behalf of a participant. WIA title I adult
and dislocated workers purchase training services from eligible
providers they select in consultation with the case manager. Payments
from ITA's may be made in a variety of ways, including
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the electronic transfer of funds through financial institutions,
vouchers, or other appropriate methods. Payments may also be made
incrementally; through payment of a portion of the costs at different
points in the training course. (WIA sec. 134(d)(4)(G).)
Sec. 663.420 Can the duration and amount of ITA's be limited?
(a) Yes, the State or Local Board may impose limits on ITA's, such
as limitations on the dollar amount and/or duration.
(b) Limits to ITA's 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; 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 ITA's.
(c) Limitations established by State or Local Board policies must be
described in the State or Local Plan, respectively, but should 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.
Sec. 663.430 Under what circumstances may mechanisms other than
ITA's be used to provide training services?
(a) Contracts for services may be used instead of ITA's only when
one of the following three exceptions applies:
(1) When the services provided are on-the-job training (OJT) or
customized training;
(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 ITA's. 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 special participant populations that face multiple barriers to
employment, as described in paragraph (b) in this section. The Local
Board must develop criteria to be used in determining demonstrated
effectiveness, particularly as it applies to the special participant
population 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.
(b) Under paragraph (a)(3) of this section, special participant
populations that face multiple barriers to employment are populations of
low-income individuals that are included in one or more of the following
categories:
(1) Individuals with substantial language or cultural barriers;
(2) Offenders;
(3) Homeless individuals; and
(4) Other hard-to-serve populations as defined by the Governor.
Sec. 663.440 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
WIA section
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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 WIA section 122(h) (where applicable), and the
performance and cost information about eligible providers of training
services described in WIA sections 122 (e) and (h).
(c) An individual who has been determined eligible for training
services underSec. 663.310 may select a provider described in
paragraph (b) of this section after consultation with a case manager.
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 WIA.
Subpart E_Eligible Training Providers
Sec. 663.500 What is the purpose of this subpart?
The workforce investment system established under WIA emphasizes
informed customer choice, system performance, and continuous
improvement. The eligible provider process is part of the strategy for
achieving these goals. Local Boards, in partnership with the State,
identify training providers and programs whose performance qualifies
them to receive WIA funds to train adults and dislocated workers. In
order to maximize customer choice and assure that all significant
population groups are served, States and local areas should administer
the eligible provider process in a manner to assure that significant
numbers of competent providers, offering a wide variety of training
programs and occupational choices, are available to customers. After
receiving core and intensive services and in consultation with case
managers, eligible participants who need training use the list of these
eligible providers to make an informed choice. The ability of providers
to successfully perform, the procedures State and Local Boards use to
establish eligibility, and the degree to which information, including
performance information, on those providers is made available to
customers eligible for training services, are key factors affecting the
successful implementation of the Statewide workforce investment system.
This subpart describes the process for determining eligible training
providers.
Sec. 663.505 What are eligible providers of training services?
(a) Eligible providers of training services are described in WIA
section 122. They are those entities eligible to receive WIA title I-B
funds to provide training services to eligible adult and dislocated
worker customers.
(b) In order to provide training services under WIA title I-B, a
provider must meet the requirements of this subpart and WIA section 122.
(1) These requirements apply to the use of WIA title I adult and
dislocated worker funds to provide training:
(i) To individuals using ITA's to access training through the
eligible provider list; and
(ii) To individuals for training provided through the exceptions to
ITA's described atSec. 663.430 (a)(2) and (a)(3).
(2) These requirements apply to all organizations providing training
to adult and dislocated workers, including:
(i) Postsecondary educational institutions providing a program
described in WIA section 122(a)(2)(A)(ii);
(ii) Entities that carry out programs under the National
Apprenticeship Act (29 U.S.C. 50 et seq.);
(iii) Other public or private providers of a program of training
services described in WIA section 122(a)(2)(C);
(iv) Local Boards, if they meet the conditions of WIA section
117(f)(1); and
(v) Community-based organizations and other private organizations
providing training underSec. 663.430.
(c) Provider eligibility procedures must be established by the
Governor, as required by this subpart. Different
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procedures are described in WIA for determinations of ``initial'' and
``subsequent'' eligibility. Because the processes are different, they
are discussed separately.
Sec. 663.508 What is a ``program of training services''?
A program of training services is one or more courses or classes, or
a structured regimen, that upon successful completion, leads to:
(a) A certificate, an associate degree, baccalaureate degree, or
(b) The skills or competencies needed for a specific job or jobs, an
occupation, occupational group, or generally, for many types of jobs or
occupations, as recognized by employers and determined prior to
training.
Sec. 663.510 Who is responsible for managing the eligible provider
process?
(a) The State and the Local Boards each have responsibilities for
managing the eligible provider process.
(b) The Governor must establish eligibility criteria for certain
providers to become initially eligible and must set minimum levels of
performance for all providers to remain subsequently eligible.
(c) The Governor must designate a State agency (called the
``designated State agency'') to assist in carrying out WIA section 122.
The designated State agency is responsible for:
(1) Developing and maintaining the State list of eligible providers
and programs, which is comprised of lists submitted by Local Boards;
(2) Determining if programs meet performance levels, including
verifying the accuracy of the information on the State list in
consultation with the Local Boards, removing programs that do not meet
program performance levels, and taking appropriate enforcement actions,
against providers in the case of the intentional provision of inaccurate
information, as described in WIA section 122(f)(1), and in the case of a
substantial violation of the requirements of WIA, as described in WIA
section 122(f)(2);
(3) Disseminating the State list, accompanied by performance and
cost information relating to each provider, to One-Stop operators
throughout the State.
(d) The Local Board must:
(1) Accept applications for initial eligibility from certain
postsecondary institutions and entities providing apprenticeship
training;
(2) Carry out procedures prescribed by the Governor to assist in
determining the initial eligibility of other providers;
(3) Carry out procedures prescribed by the Governor to assist in
determining the subsequent eligibility of all providers;
(4) Compile a local list of eligible providers, collect the
performance and cost information and any other required information
relating to providers;
(5) Submit the local list and information to the designated State
agency;
(6) Ensure the dissemination and appropriate use of the State list
through the local One-Stop system;
(7) Consult with the designated State agency in cases where
termination of an eligible provider is contemplated because inaccurate
information has been provided; and
(8) Work with the designated State agency in cases where the
termination of an eligible provider is contemplated because of
violations of the Act.
(e) The Local Board may:
(1) Make recommendations to the Governor on the procedures to be
used in determining initial eligibility of certain providers;
(2) Increase the levels of performance required by the State for
local providers to maintain subsequent eligibility;
(3) Require additional verifiable program-specific information from
local providers to maintain subsequent eligibility.
Sec. 663.515 What is the process for initial determination of
provider eligibility?
(a) To be eligible to receive adult or dislocated worker training
funds under title I of WIA, all providers must submit applications to
the Local Boards in the areas in which they wish to provide services.
The application must describe each program of training services to be
offered.
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(b) For programs eligible under title IV of the Higher Education Act
and apprenticeship programs registered under the National Apprenticeship
Act (NAA), and the providers or such programs, Local Boards determine
the procedures to use in making an application. The procedures
established by the Local Board must specify the timing, manner, and
contents of the required application.
(c) For programs not eligible under title IV of the HEA or
registered under the NAA, and for providers not eligible under title IV
of the HEA or carrying out apprenticeship programs under NAA:
(1) The Governor must develop a procedure for use by Local Boards
for determining the eligibility of other providers, after
(i) Soliciting and taking into consideration recommendations from
Local Boards and providers of training services within the State;
(ii) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to submit
comments on the procedure; and
(iii) Designating a specific time period for soliciting and
considering the recommendations of Local Boards and provider, and for
providing an opportunity for public comment.
(2) The procedure must be described in the State Plan.
(3)(i) The procedure must require that the provider must submit an
application to the Local Board at such time and in such manner as may be
required, which contains a description of the program of training
services;
(ii) If the provider provides a program of training services on the
date of application, the procedure must require that the application
include an appropriate portion of the performance information and
program cost information described inSec. 663.540, and that the
program meet appropriate levels of performance;
(iii) If the provider does not provide a program of training
services on that date, the procedure must require that the provider meet
appropriate requirements specified in the procedure. (WIA sec.
122(b)(2)(D).)
(d) The Local Board must include providers that meet the
requirements of paragraphs (b) and (c) of this section on a local list
and submit the list to the designated State agency. The State agency has
30 days to determine that the provider or its programs do not meet the
requirements relating to the providers under paragraph (c) of this
section. After the agency determines that the provider and its programs
meet(s) the criteria for initial eligibility, or 30 days have elapsed,
whichever occurs first, the provider and its programs are initially
eligible. The programs and providers submitted under paragraph (b) of
this section are initially eligible without State agency review. (WIA
sec. 122(e).)
Sec. 663.530 Is there a time limit on the period of initial
eligibility for training providers?
Yes, under WIA section 122(c)(5), the Governor must require training
providers to submit performance information and meet performance levels
annually in order to remain eligible providers. States may require that
these performance requirements be met one year from the date that
initial eligibility was determined, or may require all eligible
providers to submit performance information by the same date each year.
If the latter approach is adopted, the Governor may exempt eligible
providers whose determination of initial eligibility occurs within six
months of the date of submissions. The effect of this requirement is
that no training provider may have a period of initial eligibility that
exceeds eighteen months. In the limited circumstance when insufficient
data is available, initial eligibility may be extended for a period of
up to six additional months, if the Governor's procedures provide for
such an extension.
Sec. 663.535 What is the process for determining the subsequent
eligibility of a provider?
(a) The Governor must develop a procedure for the Local Board to use
in determining the subsequent eligibility of all eligible training
providers determined initially eligible underSec. 663.515 (b) and (c),
after:
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(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.
(b) The procedure must be described in the State Plan.
(c) The procedure must require that:
(1) Providers annually submit performance and cost information as
described at WIA section 122(d)(1) and (2), for each program of training
services for which the provider has been determined to be eligible, in a
time and manner determined by the Local Board;
(2) Providers and programs annually meet minimum performance levels
described at WIA section 122(c)(6), as demonstrated utilizing UI
quarterly wage records where appropriate.
(d) The program's performance information must meet the minimum
acceptable levels established under paragraph (c)(2) of this section to
remain eligible;
(e) Local Boards may require higher levels of performance for local
programs than the levels specified in the procedures established by the
Governor. (WIA sec.122(c)(5) and (c)(6).)
(f) The State procedure must require Local Boards to take into
consideration:
(1) The specific economic, geographic and demographic factors in the
local areas in which providers seeking eligibility are located, and
(2) The characteristics of the populations served by programs
seeking eligibility, including the demonstrated difficulties in serving
these populations, where applicable.
(g) The Local Board retains those programs on the local list that
meet the required performance levels and other elements of the State
procedures and submits the list, accompanied by the performance and cost
information, and any additional required information, to the designated
State agency. If the designated State agency determines within 30 days
from the receipt of the information that the program does not meet the
performance levels established under paragraph (c)(2) of this section,
the program may be removed from the list. A program retained on the
local list and not removed by the designated State agency is considered
an eligible program of training services.
Sec. 663.540 What kind of performance and cost information is
required for determinations of subsequent eligibility?
(a) Eligible providers of training services must submit, at least
annually, under procedures established by the Governor underSec.
663.535(c):
(1) Verifiable program-specific performance information, including:
(i) The information described in WIA section 122(d)(1)(A)(i) for all
individuals participating in the programs of training services,
including individuals who are not receiving assistance under WIA section
134 and individuals who are receiving such assistance; and
(ii) The information described in WIA section 122(d)(1)(A)(ii)
relating only to individuals receiving assistance under the WIA adult
and dislocated worker program who are participating in the applicable
program of training services; and
(2) Information on program costs (such as tuition and fees) for WIA
participants in the program.
(b) Governors may require any additional verifiable performance
information (such as the information described at WIA section 122(d)(2))
that the Governor determines to be appropriate to obtain subsequent
eligibility, including information regarding all participating
individuals as well as individuals receiving assistance under the WIA
adult and dislocated worker program.
(c) Governors must establish procedures by which providers can
demonstrate if the additional information required under paragraph (b)
of this section imposes extraordinary costs on providers, or if
providers experience extraordinary costs in the collection of
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information. If, through these procedures, providers demonstrate that
they experience such extraordinary costs:
(1) The Governor or Local Board must provide access to cost-
effective methods for the collection of the information; or
(2) The Governor must provide additional resources to assist
providers in the collection of the information from funds for Statewide
workforce investment activities reserved under WIA sections 128(a) and
133(a)(1).
(d) The Local Board and the designated State agency may accept
program-specific performance information consistent with the
requirements for eligibility under title IV of the Higher Education Act
of 1965 from a provider for purposes of enabling the provider to fulfill
the applicable requirements of this section, if the information is
substantially similar to the information otherwise required under this
section.
Sec. 663.550 How is eligible provider information developed and
maintained?
(a) The designated State agency must maintain a list of all eligible
training programs and providers in the State (the ``State list'').
(b) The State list is a compilation of the eligible programs and
providers identified or retained by local areas and that have not been
removed under Sec.Sec. 663.535(g) and 663.565.
(c) The State list must be accompanied by the performance and cost
information contained in the local lists as required bySec.
663.535(e). (WIA sec. 122(e)(4)(A).)
Sec. 663.555 How is the State list disseminated?
(a) The designated State agency must disseminate the State list and
accompanying performance and cost information to the One-Stop delivery
systems within the State.
(b) The State list and information must be updated at least
annually.
(c) The State list and accompanying information form the primary
basis of the One-Stop consumer reports system that provides for informed
customer choice. The list and information must be widely available,
through the One-Stop delivery system, to customers seeking information
on training outcomes, as well as participants in employment and training
activities funded under WIA and other programs.
(1) The State list must be made available to individuals who have
been determined eligible for training services underSec. 663.310.
(2) The State list must also be made available to customers whose
training is supported by other One-Stop partners.
Sec. 663.565 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) If the provider's programs do not meet the established
performance levels, the programs will be removed from the eligible
provider list.
(1) A Local Board must determine, during the subsequent eligibility
determination process, whether a provider's programs meet performance
levels. If the program fails to meet such levels, the program must be
removed from the local list. If all of the provider's programs fail to
meet such levels, the provider must be removed from the local list.
(2) The designated State agency upon receipt of the performance
information accompanying the local list, may remove programs from the
State list if the agency determines the program failed to meet the
levels of performance prescribed underSec. 663.535(c). If all of the
provider's programs are determined to have failed to meet the levels,
the designated State agency may remove the provider from the State list.
(3) Providers determined to have intentionally supplied inaccurate
information or to have subsequently violated any provision of title I of
WIA or the WIA regulations, including 29 CFR part 37, may be removed
from the list in accordance with the enforcement provisions of WIA
section 122(f). A provider whose eligibility is terminated under these
conditions is liable to repay all adult and dislocated worker training
funds it received during the period of noncompliance.
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(4) The Governor must establish appeal procedures for providers of
training to appeal a denial of eligibility under this subpart according
to the requirements of 20 CFR 667.640(b).
Sec. 663.570 What is the consumer reports system?
The consumer reports system, referred to in WIA as performance
information, is the vehicle for informing the customers of the One-Stop
delivery system about the performance of training providers and programs
in the local area. It is built upon the State list of eligible providers
and programs developed through the procedures described in WIA section
122 and this subpart. The consumer reports system must contain the
information necessary for an adult or dislocated worker customer to
fully understand the options available to him or her in choosing a
program of training services. Such program-specific factors may include
overall performance, performance for significant customer groups
(including wage replacement rates for dislocated workers), performance
of specific provider sites, current information on employment and wage
trends and projections, and duration of training programs.
Sec. 663.575 In what ways can a Local Board supplement the
information available from the State list?
(a) Local Boards may supplement the information available from the
State list by providing customers with additional information to assist
in supporting informed customer choice and the achievement of local
performance measures (as described in WIA section 136).
(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; and
(3) Other appropriate information related to the objectives of WIA,
which may include the information described inSec. 663.570.
Sec. 663.585 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 another State(s) to permit providers of eligible training
programs in each State to accept individual training accounts provided
by the other State. (WIA secs. 122(e)(4) and (e)(5).)
Sec. 663.590 May a community-based organization (CBO) be included
on an eligible provider list?
Yes, CBO's may apply and they and their programs may be determined
eligible providers of training services, under WIA section 122 and this
subpart. As eligible providers, CBO's provide training through ITA's and
may also receive contracts for training special participant populations
when the requirements ofSec. 663.430 are met.
Sec. 663.595 What requirements apply to providers of OJT and
customized training?
For OJT and customized training providers, One-Stop operators in a
local area must collect such performance information as the Governor may
require, determine whether the providers meet such performance criteria
as the Governor may require, and disseminate a list of providers that
have met such criteria, along with the relevant performance information
about them, through the One-Stop delivery system. Providers determined
to meet the criteria are considered to be identified as eligible
providers of training services. These providers are not subject to the
other requirements of WIA section 122 or this subpart.
Subpart F_Priority and Special Populations
Sec. 663.600 What priority must be given to low-income adults and
public assistance recipients served with adult funds under title I?
(a) WIA states, in section 134(d)(4)(E), that in the event that
funds allocated to a local area for adult employment
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and training activities are limited, priority for intensive and training
services funded with title I adult funds must be given to recipients of
public assistance and other low-income individuals in the local area.
(b) Since funding is generally limited, States and local areas must
establish criteria by which local areas can determine the availability
of funds and the process by which any priority will be applied under WIA
section 134(d)(2)(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) States and local areas must give priority for adult intensive
and training services to recipients of public assistance and other low-
income individuals, unless the local area has determined that funds are
not limited under the criteria established under paragraph (b) of this
section.
(d) The process for determining whether to apply the priority
established under paragraph (b) of this section does not necessarily
mean that only the recipients of public assistance and other low income
individuals may receive WIA adult funded intensive and training services
when funds are determined to be limited in a local area. The Local Board
and the Governor may establish a process that gives priority for
services to the recipients of public assistance and other low income
individuals and that also serves other individuals meeting eligibility
requirements.
Sec. 663.610 Does the statutory priority for use of adult funds
also apply to dislocated worker funds?
No, the statutory priority applies to adult funds for intensive and
training services only. Funds allocated for dislocated workers are not
subject to this requirement.
Sec. 663.620 How do the Welfare-to-Work program and the TANF program
relate to the One-Stop delivery system?
(a) The local Welfare-to-Work (WtW) program operator is a required
partner in the One-Stop delivery system. 20 CFR part 662 describes the
roles of such partners in the One-Stop delivery system and applies to
the Welfare-to-Work program operator. WtW programs serve individuals who
may also be served by the WIA programs and, through appropriate linkages
and referrals, these customers will have access to a broader range of
services through the cooperation of the WtW program in the One-Stop
system. WtW participants, who are determined to be WIA eligible, and who
need occupational skills training may be referred through the One-Stop
system to receive WIA training, when WtW grant and other grant funds are
not available in accordance withSec. 663.320(a). WIA participants who
are also determined WtW eligible, may be referred to the WtW operator
for job placement and other WtW assistance.
(b) The local TANF agency is specifically suggested under WIA as an
additional partner in the One-Stop system. TANF recipients will have
access to more information about employment opportunities and services
when the TANF agency participates in the One-Stop delivery system. The
Governor and Local Board should encourage the TANF agency to become a
One-Stop partner to improve the quality of services to the WtW and TANF-
eligible populations. In addition, becoming a One-Stop partner will
ensure that the TANF agency is represented on the Local Board and
participates in developing workforce investment strategies that help
cash assistance recipients secure lasting employment.
Sec. 663.630 How does a displaced homemaker qualify for services
under title I?
Displaced homemakers may be eligible to receive assistance under
title I in a variety of ways, including:
(a) Core services provided by the One-Stop partners through the One-
Stop delivery system;
(b) Intensive or training services for which an individual qualifies
as a dislocated worker/displaced homemaker if the requirements of this
part are met;
(c) Intensive or training services for which an individual is
eligible if the requirements of this part are met;
(d) Statewide employment and training projects conducted with
reserve
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funds for innovative programs for displaced homemakers, as described in
20 CFR 665.210(f).
Sec. 663.640 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 WIA section 101(25)(B);
or
(b) Meets the income eligibility criteria for cash payments under
any Federal, State or local public assistance program. (WIA sec.
101(25)(F).)
Subpart G_On-the-Job Training (OJT) and Customized Training
Sec. 663.700 What are the requirements for on-the-job training (OJT)?
(a) On-the-job training (OJT) is defined at WIA section 101(31). 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 WIA participant in exchange for the
reimbursement of up to 50 percent of the wage rate to compensate for the
employer's extraordinary costs. (WIA sec. 101(31)(B).)
(b) The local program must not contract with an employer who has
previously exhibited a pattern of failing to provide OJT participants
with continued long-term employment with wages, benefits, and working
conditions that are equal to those provided to regular employees who
have worked a similar length of time and are doing the same type of
work. (WIA sec. 195(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. (WIA sec. 101(31)(C).)
Sec. 663.705 What are the requirements for OJT 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 inSec. 663.700 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. 663.710 What conditions govern OJT 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 the costs associated with the lower productivity of the
participants.
(b) Employers may be reimbursed up to 50 percent of the wage rate of
an OJT participant for the extraordinary costs of providing the training
and additional supervision related to the OJT. (WIA sec. 101(31)(B).)
(c) Employers are not required to document such extraordinary costs.
Sec. 663.715 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,
or in the case of incumbent workers, continue to employ, an individual
on successful completion of the training; and
(c) For which the employer pays for not less than 50 percent of the
cost of the training. (WIA sec. 101(8).)
Sec. 663.720 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:
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(a) The employee is not earning a self-sufficient wage as determined
by Local Board policy;
(b) The requirements inSec. 663.715 are met; and
(c) The customized training relates to the purposes described in
Sec. 663.705(c) or other appropriate purposes identified by the Local
Board.
Sec. 663.730 May funds provided to employers for OJT of customized
training be used to assist, promote, or deter union organizing?
No, funds provided to employers for OJT or customized training must
not be used to directly or indirectly assist, promote or deter union
organizing.
Subpart H_Supportive Services
Sec. 663.800 What are supportive services for adults and dislocated
workers?
Supportive services for adults and dislocated workers are defined at
WIA sections 101(46) and 134(e)(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 WIA title I. 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. Such 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 core services that must be available to adults
and dislocated workers through the One-Stop delivery system. (WIA sec.
134(d)(2)(H).)
Sec. 663.805 When may supportive services be provided to
participants?
(a) Supportive services may only be provided to individuals who are:
(1) Participating in core, intensive or training services; and
(2) Unable to obtain supportive services through other programs
providing such services. (WIA sec. 134(e)(2)(A) and (B).)
(b) Supportive services may only be provided when they are necessary
to enable individuals to participate in title I activities. (WIA sec.
101(46).)
Sec. 663.810 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. 663.815 What are needs-related payments?
Needs-related payments provide financial assistance to participants
for the purpose of enabling individuals to participate in training and
are one of the supportive services authorized by WIA section 134(e)(3).
Sec. 663.820 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 WIA section
134(d)(4).
Sec. 663.825 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 or NAFTA-TAA; and
(2) Be enrolled in a program of training services under WIA section
134(d)(4) by the end of the 13th week after the most recent layoff that
resulted in a
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determination of the worker's eligibility as a dislocated worker, or, if
later, by the end of the 8th week after the worker is informed that a
short-term layoff will exceed 6 months; or
(b) Be unemployed and did not qualify for unemployment compensation
or trade readjustment assistance under TAA or NAFTA-TAA.
Sec. 663.830 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. 663.840 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) For participants who were eligible for unemployment compensation
as a result of the qualifying dislocation, the payment may not exceed
the applicable weekly level of the unemployment compensation benefit; or
(2) For participants who did not qualify for unemployment
compensation as a result of the qualifying layoff, the weekly payment
may not exceed the poverty level for an equivalent period. The weekly
payment level must be adjusted to reflect changes in total family income
as determined by Local Board policies. (WIA sec. 134(e)(3)(C).)
PART 664_YOUTH ACTIVITIES UNDER TITLE I OF THE WORKFORCE INVESTMENT
ACT--Table of Contents
Subpart A_Youth Councils
Sec.
664.100 What is the youth council?
664.110 Who is responsible for oversight of youth programs in the local
area?
Subpart B_Eligibility for Youth Services
664.200 Who is eligible for youth services?
664.205 How is the ``deficient in basic literacy skills'' criterion in
Sec. 664.200(c)(1) defined and documented?
664.210 How is the ``requires additional assistance to complete an
educational program, or to secure and hold employment''
criterion inSec. 664.200(c)(6) defined and documented?
664.215 Must youth participants be registered to participate in the
youth program?
664.220 Is there an exception to permit youth who are not low-income
individuals to receive youth services?
664.230 Are the eligibility barriers for eligible youth the same as the
eligibility barriers for the five percent of youth
participants who do not have to meet income eligibility
requirements?
664.240 May a local program use eligibility for free lunches under the
National School Lunch Program as a substitute for the income
eligibility criteria under title I of WIA?
664.250 May a disabled youth whose family does not meet income
eligibility criteria under the Act be eligible for youth
services?
Subpart C_Out-of-School Youth
664.300 Who is an ``out-of-school youth''?
664.310 When is dropout status determined, particularly for youth
attending alternative schools?
664.320 Does the requirement that at least 30 percent of youth funds be
used to provide activities to out-of-school youth apply to all
youth funds?
Subpart D_Youth Program Design, Elements, and Parameters
664.400 What is a local youth program?
664.405 How must local youth programs be designed?
664.410 Must local programs include each of the ten program elements
listed in WIA section 129(c)(2) as options available to youth
participants?
664.420 What are leadership development opportunities?
664.430 What are positive social behaviors?
664.440 What are supportive services for youth?
664.450 What are follow-up services for youth?
664.460 What are work experiences for youth?
664.470 Are paid work experiences allowable activities?
Subpart E_Concurrent Enrollment
664.500 May youth participate in both youth and adult/dislocated worker
programs concurrently?
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664.510 Are Individual Training Accounts allowed for youth participants?
Subpart F_Summer Employment Opportunities
664.600 Are Local Boards required to offer summer employment
opportunities in the local youth program?
664.610 How is the summer employment opportunities element administered?
664.620 Do the core indicators described in 20 CFR 666.100(a)(3) apply
to participation in summer employment activities?
Subpart G_One-Stop Services to Youth
664.700 What is the connection between the youth program and the One-
Stop service delivery system?
664.710 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?
Subpart H_Youth Opportunity Grants
664.800 How are the recipients of Youth Opportunity Grants selected?
664.810 How does a Local Board or other entity become eligible to
receive a Youth Opportunity Grant?
664.820 Who is eligible to receive services under Youth Opportunity
Grants?
664.830 How are performance measures for Youth Opportunity Grants
determined?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49411, Aug. 11, 2000, unless otherwise noted.
Subpart A_Youth Councils
Sec. 664.100 What is the youth council?
(a) The duties and membership requirements of the youth council are
described in WIA section 117(h) and 20 CFR 661.335 and 661.340.
(b) The purpose of the youth council is to provide expertise in
youth policy and to assist the Local Board in:
(1) Developing and recommending local youth employment and training
policy and practice;
(2) Broadening the youth employment and training focus in the
community to incorporate a youth development perspective;
(3) Establishing linkages with other organizations serving youth in
the local area; and
(4) Taking into account a range of issues that can have an impact on
the success of youth in the labor market. (WIA sec. 117(h).)
Sec. 664.110 Who is responsible for oversight of youth programs in
the local area?
(a) The Local Board, working with the youth council, is responsible
for conducting oversight of local youth programs operated under the Act,
to ensure both fiscal and programmatic accountability.
(b) Local program oversight is conducted in consultation with the
local area's chief elected official.
(c) The Local Board may, after consultation with the CEO, delegate
its responsibility for oversight of eligible youth providers, as well as
other youth program oversight responsibilities, to the youth council,
recognizing the advantage of delegating such responsibilities to the
youth council whose members have expertise in youth issues. (WIA sec.
117(d); 117(h)(4).)
Subpart B_Eligibility for Youth Services
Sec. 664.200 Who is eligible for youth services?
An eligible youth is defined, under WIA sec. 101(13), as an
individual who:
(a) Is age 14 through 21;
(b) Is a low income individual, as defined in the WIA section
101(25); and
(c) Is within one or more of the following categories:
(1) Deficient in basic literacy skills;
(2) School dropout;
(3) Homeless, runaway, or foster child;
(4) Pregnant or parenting;
(5) Offender; or
(6) Is an individual (including a youth with a disability) who
requires additional assistance to complete an educational program, or to
secure and hold employment. (WIA sec. 101(13).)
Sec. 664.205 How is the ``deficient in basic literacy skills''
criterion inSec. 664.200(c)(1) defined and documented?
(a) Definitions and eligibility documentation requirements regarding
the ``deficient in basic literacy skills'' criterion inSec.
664.200(c)(1) may be established at the State or local level. These
[[Page 76]]
definitions may establish such criteria as are needed to address State
or local concerns, and must include a determination that an individual:
(1) Computes or solves problems, reads, writes, or speaks English at
or below the 8th grade level on a generally accepted standardized test
or a comparable score on a criterion-referenced test; or
(2) Is unable to compute or solve problems, read, write, or speak
English at a level necessary to function on the job, in the individual's
family or in society. (WIA secs. 101(19), 203(12).)
(b) In cases where the State Board establishes State policy on this
criterion, the policy must be included in the State plan. (WIA secs.
101(13)(C)(i), 101(19).)
Sec. 664.210 How is the ``requires additional assistance to
complete an educational program, or to secure and hold employment
'' criterion inSec. 664.200(c)(6) defined and documented?
Definitions and eligibility documentation requirements regarding the
``requires additional assistance to complete an educational program, or
to secure and hold employment'' criterion ofSec. 664.200(c)(6) may be
established at the State or local level. In cases where the State Board
establishes State policy on this criterion, the policy must be included
in the State Plan. (WIA sec. 101(13)(C)(iv).)
Sec. 664.215 Must youth participants be registered to participate in
the youth program?
(a) Yes, all youth participants must be registered.
(b) Registration is the process of collecting information to support
a determination of eligibility.
(c) Equal opportunity data must be collected during the registration
process on any individual who has submitted personal information in
response to a request by the recipient for such information.
Sec. 664.220 Is there an exception to permit youth who are not
low-income individuals to receive youth services?
Yes, up to five percent of youth participants served by youth
programs in a local area may be individuals who do not meet the income
criterion for eligible youth, provided that they are within one or more
of the following categories:
(a) School dropout;
(b) Basic skills deficient, as defined in WIA section 101(4);
(c) Are one or more grade levels below the grade level appropriate
to the individual's age;
(d) Pregnant or parenting;
(e) Possess one or more disabilities, including learning
disabilities;
(f) Homeless or runaway;
(g) Offender; or
(h) Face serious barriers to employment as identified by the Local
Board. (WIA sec. 129(c)(5).)
Sec. 664.230 Are the eligibility barriers for eligible youth the
same as the eligibility barriers for the five percent of youth
participants who do not have to meet income eligibility requirements?
No, the barriers listed in Sec.Sec. 664.200 and 664.220 are not
the same. Both lists of eligibility barriers include school dropout,
homeless or runaway, pregnant or parenting, and offender, but each list
contains barriers not included on the other list.
Sec. 664.240 May a local program use eligibility for free lunches
under the National School Lunch Program as a substitute for the
income eligibility criteria under title I of WIA?
No, the criteria for income eligibility under the National School
Lunch Program are not the same as the Act's income eligibility criteria.
Therefore, the school lunch list may not be used as a substitute for
income eligibility to determine who is eligible for services under the
Act.
Sec. 664.250 May a disabled youth whose family does not meet income
eligibility criteria under the Act be eligible for youth services?
Yes, even if the family of a disabled youth does not meet the income
eligibility criteria, the disabled youth may be considered a low-income
individual if the youth's own income:
(a) Meets the income criteria established in WIA section 101(25)(B);
or
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(b) Meets the income eligibility criteria for cash payments under
any Federal, State or local public assistance program. (WIA sec.
101(25)(F).)
Subpart C_Out-of-School Youth
Sec. 664.300 Who is an ``out-of-school youth''?
An out-of-school youth is an individual who:
(a) Is an eligible youth who is a school dropout; or
(b) Is an eligible youth who has either graduated from high school
or holds a GED, but is basic skills deficient, unemployed, or
underemployed. (WIA sec. 101(33).)
Sec. 664.310 When is dropout status determined, particularly for
youth attending alternative schools?
A school dropout is defined as an individual who is no longer
attending any school and who has not received a secondary school diploma
or its recognized equivalent. A youth's dropout status is determined at
the time of registration. A youth attending an alternative school at the
time of registration is not a dropout. An individual who is out-of
school at the time of registration and subsequently placed in an
alternative school, may be considered an out-of-school youth for the
purposes of the 30 percent expenditure requirement for out-of-school
youth. (WIA sec. 101(39).)
Sec. 664.320 Does the requirement that at least 30 percent of youth
funds be used to provide activities to out-of-school youth apply
to all youth funds?
(a) Yes, the 30 percent requirement applies to the total amount of
all funds allocated to a local area under WIA section 128(b)(2)(A) or
(b)(3), except for local area expenditures for administrative purposes
under 20 CFR 667.210(a)(2).
(b) Although it is not necessary to ensure that 30 percent of such
funds spent on summer employment opportunities (or any other particular
element of the youth program) are spent on out-of-school youth, the
funds spent on these activities are included in the total to which the
30 percent requirement applies.
(c) There is a limited exception, at WIA section 129(c)(4)(B), under
which certain small States may apply to the Secretary to reduce the
minimum amount that must be spent on out-of-school youth. (WIA sec.
129(c)(4).)
Subpart D_Youth Program Design, Elements, and Parameters
Sec. 664.400 What is a local youth program?
A local youth program is defined as those youth activities offered
by a Local Workforce Investment Board for a designated local workforce
investment area, as specified in 20 CFR part 661.
Sec. 664.405 How must local youth programs be designed?
(a) The design framework of local youth programs must:
(1) Provide an objective assessment of each youth participant, that
meets the requirements of WIA section 129(c)(1)(A), and includes a
review of the academic and occupational skill levels, as well as the
service needs, of each youth;
(2) Develop an individual service strategy for each youth
participant that meets the requirements of WIA section 129(c)(1)(B),
including identifying an age-appropriate career goal and consideration
of the assessment results for each youth; and
(3) Provide preparation for postsecondary educational opportunities,
provide linkages between academic and occupational learning, provide
preparation for employment, and provide effective connections to
intermediary organizations that provide strong links to the job market
and employers.
(4) The requirement in WIA section 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 component, such
as services for intake, objective assessment and the development of
individual service strategy, when these services are provided by the
grant recipient/fiscal agent.
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(b) The local plan must describe the design framework for youth
program design in the local area, and how the ten program elements
required inSec. 664.410 are provided 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) Job Corps representatives; and
(5) Representatives of other area youth initiatives, including those
that serve homeless youth and other public and private youth
initiatives.
(d) Local Boards must ensure that the referral requirements in WIA
section 129(c)(3) for youth who meet the income eligibility criteria are
met, including:
(1) Providing these youth with information regarding 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 youth to appropriate training and educational
programs that have the capacity to serve them either on a sequential or
concurrent basis.
(e) In order to meet the basic skills and training needs of eligible
applicants who do not meet the enrollment requirements of a particular
program or who cannot be served by the program, each eligible 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.
(f) Local Boards must ensure that parents, youth participants, and
other members of the community with experience relating to youth
programs are involved in both the design and implementation of its youth
programs.
(g) 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. (WIA section 129(c)(1).)
Sec. 664.410 Must local programs include each of the ten program
elements listed in WIA section 129(c)(2) as options available to
youth participants?
(a) Yes, local programs must make the following services available
to youth participants:
(1) Tutoring, study skills training, and instruction leading to
secondary school completion, including dropout prevention strategies;
(2) Alternative secondary school offerings;
(3) Summer employment opportunities directly linked to academic and
occupational learning;
(4) Paid and unpaid work experiences, including internships and job
shadowing, as provided in Sec.Sec. 664.460 and 664.470;
(5) Occupational skill training;
(6) Leadership development opportunities, which include community
service and peer-centered activities encouraging responsibility and
other positive social behaviors;
(7) Supportive services, which may include the services listed in
Sec. 664.440;
(8) Adult mentoring for a duration of at least twelve (12) months,
that may occur both during and after program participation;
(9) Followup services, as provided inSec. 664.450; and
(10) Comprehensive guidance and counseling, including drug and
alcohol abuse counseling, as well as referrals to counseling, as
appropriate to the needs of the individual youth.
(b) Local programs have the discretion to determine what specific
program services will be provided to a youth participant, based on each
participant's objective assessment and individual service strategy. (WIA
sec. 129(c)(2).)
Sec. 664.420 What are leadership development opportunities?
Leadership development opportunities are opportunities that
encourage
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responsibility, employability, and other positive social behaviors such
as:
(a) Exposure to postsecondary educational opportunities;
(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
(f) Citizenship training, including life skills training such as
parenting, work behavior training, and budgeting of resources. (WIA sec.
129(c)(2)(F).)
Sec. 664.430 What are positive social behaviors?
Positive social behaviors are outcomes of leadership opportunities,
often referred to as soft skills, which are incorporated by many local
programs as part of their menu of services. Positive social behaviors
focus on areas that may include the following:
(a) Positive attitudinal development;
(b) Self esteem building;
(c) Openness to working with individuals from diverse racial and
ethnic backgrounds;
(d) Maintaining healthy lifestyles, including being alcohol and drug
free;
(e) Maintaining positive 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) Postponed and responsible parenting; and
(i) Positive job attitudes and work skills. (WIA sec. 129(c)(2)(F).)
Sec. 664.440 What are supportive services for youth?
Supportive services for youth, as defined in WIA section 101(46),
may include the following:
(a) Linkages to community services;
(b) Assistance with transportation;
(c) Assistance with child care and dependent care;
(d) Assistance with housing;
(e) Referrals to medical services; and
(f) Assistance with uniforms or other appropriate work attire and
work-related tools, including such items as eye glasses and protective
eye gear. (WIA sec. 129(c)(2)(G).)
Sec. 664.450 What are follow-up services for youth?
(a) Follow-up services for youth may include:
(1) The leadership development and supportive service activities
listed in Sec.Sec. 664.420 and 664.440;
(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) Tracking the progress of youth in employment after training.
(b) 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 twelve (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. The scope of
these follow-up services may be less intensive for youth who have only
participated in summer youth employment opportunities. (WIA sec.
129(c)(2)(I).)
Sec. 664.460 What are work experiences for youth?
(a) Work experiences are planned, structured learning experiences
that take place in a workplace for a limited period of time. As provided
in WIA section 129(c)(2)(D) andSec. 664.470, work experiences may be
paid or unpaid.
(b) Work experience workplaces may be in the private, for-profit
sector; the non-profit sector; or the public sector.
(c) Work experiences are designed to enable youth to gain exposure
to the working world and its requirements. Work experiences are
appropriate and desirable activities for many youth throughout the year.
Work experiences should help youth acquire the personal attributes,
knowledge, and skills needed to obtain a job and advance in employment.
The purpose is to provide
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the youth participant with the opportunities for career exploration and
skill development and is not to benefit the employer, although the
employer may, in fact, benefit from the activities performed by the
youth. Work experiences may be subsidized or unsubsidized and may
include the following elements:
(1) Instruction in employability skills or generic workplace skills
such as those identified by the Secretary's Commission on Achieving
Necessary Skills (SCANS);
(2) Exposure to various aspects of an industry;
(3) Progressively more complex tasks;
(4) Internships and job shadowing;
(5) The integration of basic academic skills into work activities;
(6) Supported work, work adjustment, and other transition
activities;
(7) Entrepreneurship;
(8) Service learning;
(9) Paid and unpaid community service; and
(10) Other elements designed to achieve the goals of work
experiences.
(d) In most cases, on-the-job training is not an appropriate work
experiences activity for youth participants under age 18. Local program
operators may choose, however, to use this service strategy for eligible
youth when it is appropriate based on the needs identified by the
objective assessment of an individual youth participant. (WIA sec.
129(c)(2)(D).)
Sec. 664.470 Are paid work experiences allowable activities?
Funds under the Act may be used to pay wages and related benefits
for work experiences in the public; private, for-profit or non-profit
sectors where the objective assessment and individual service strategy
indicate that work experiences are appropriate. (WIA sec. 129(c)(2)(D).)
Subpart E_Concurrent Enrollment
Sec. 664.500 May youth participate in both youth and adult/dislocated
worker programs concurrently?
(a) Yes, under the Act, eligible youth are 14 through 21 years of
age. Adults are defined in the Act as individuals age 18 and older.
Thus, individuals ages 18 through 21 may be eligible for both adult and
youth programs. There is no specified age for the dislocated worker
program.
(b) Individuals who meet the respective eligibility requirements may
participate in adult and youth programs concurrently. Concurrent
enrollment is allowable for youth served in programs under WIA titles I
or II. Such individuals must be eligible under the youth or adult/
dislocated worker eligibility criteria applicable to the services
received. Local program operators may determine, for individuals in this
age group, the appropriate level and balance of services under the
youth, adult, dislocated worker, or other services.
(c) 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/dislocated worker programs
concurrently, and ensure that services are not duplicated.
Sec. 664.510 Are Individual Training Accounts allowed for youth
participants?
No, however, individuals age 18 and above, who are eligible for
training services under the adult and dislocated worker programs, may
receive Individual Training Accounts through those programs.
Requirements for concurrent participation requirements are set forth in
Sec. 664.500. To the extent possible, in order to enhance youth
participant choice, youth participants should be involved in the
selection of educational and training activities.
Subpart F_Summer Employment Opportunities
Sec. 664.600 Are Local Boards required to offer summer employment
opportunities in the local youth program?
(a) Yes, Local Boards are required to offer summer youth employment
opportunities that link academic and occupational learning as part of
the menu of services required inSec. 664.410(a).
(b) Summer youth employment must provide direct linkages to academic
and occupational learning, and may provide other elements and strategies
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as appropriate to serve the needs and goals of the participants.
(c) Local Boards may determine how much of available youth funds
will be used for summer and for year-round youth activities.
(d) The summer youth employment opportunities element is not
intended to be a stand-alone program. Local programs should integrate a
youth's participation in that element into a comprehensive strategy for
addressing the youth's employment and training needs. Youths who
participate in summer employment opportunities must be provided with a
minimum of twelve months of followup services, as required inSec.
664.450. (WIA sec. 129(c)(2)(C).)
Sec. 664.610 How is the summer employment opportunities element
administered?
Chief elected officials and Local Boards are responsible for
ensuring that the local youth program provides summer employment
opportunities to youth. The chief elected officials (which may include
local government units operating as a consortium) are the grant
recipients for local youth funds, unless another entity is chosen to be
grant recipient or fiscal agent under WIA section 117(d)(3)(B). If, in
the administration of the summer employment opportunities element of the
local youth program, providers other than the grant recipient/fiscal
agent, are used to provide summer youth employment opportunities, these
providers must be selected by awarding a grant or contract on a
competitive basis, based on the recommendation of the youth council and
on criteria contained in the State Plan. However, the selection of
employers who are providing unsubsidized employment opportunities may be
excluded from the competitive process. (WIA sec. 129(c)(2)(C).)
Sec. 664.620 Do the core indicators described in 20 CFR 666.100(a)
(3) apply to participation in summer employment activities?
Yes, the summer employment opportunities element is one of a number
of activities authorized by the WIA youth program. WIA section 136(b)(2)
(A)(ii) and(B) provides specific core indicators of performance for
youth, and requires that all participating youth be included in the
determination of whether the local levels of performance are met.
Program operators can help ensure positive outcomes for youth
participants by providing them with continuity of services.
Subpart G_One-Stop Services to Youth
Sec. 664.700 What is the connection between the youth program and
the One-Stop service delivery system?
(a) The chief elected official (or designee, under WIA section
117(d)(3)(B)), as the local grant recipient for the youth program is a
required One-Stop partner and is subject to the requirements that apply
to such partners, described in 20 CFR part 662.
(b) In addition to the provisions of 20 CFR part 662, 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.Sec. 664.400 and 664.410; and
(4) Other activities designed to achieve the purposes of the youth
program and youth activities as described in WIA section 129(a). (WIA
secs. 121(b)(1)(B)(i); 129.)
Sec. 664.710 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, One-Stop services for non-eligible youth must be
funded by programs that are authorized to provide services to such
youth. For example, basic labor exchange services under the Wagner-
Peyser Act may be provided to any youth.
[[Page 82]]
Subpart H_Youth Opportunity Grants
Sec. 664.800 How are the recipients of Youth Opportunity Grants
selected?
(a) Youth Opportunity Grants are awarded through a competitive
selection process. The Secretary establishes appropriate application
procedures, selection criteria, and an approval process for awarding
Youth Opportunity Grants to applicants which can accomplish the purpose
of the Act and use available funds in an effective manner in the
Solicitation for Grant Applications announcing the competition.
(b) The Secretary distributes grants equitably among urban and rural
areas by taking into consideration such factors as the following:
(1) The poverty rate in urban and rural communities;
(2) The number of people in poverty in urban and rural communities;
and
(3) The quality of proposals received. (WIA sec.169(a) and (e).)
Sec. 664.810 How does a Local Board or other entity become eligible
to receive a Youth Opportunity Grant?
(a) A Local Board is eligible to receive a Youth Opportunity Grant
if it serves a community that:
(1) Has been designated as an empowerment zone (EZ) or enterprise
community (EC) under section 1391 of the Internal Revenue Code of 1986;
(2) Is located in a State that does not have an EZ or an EC and that
has been designated by its Governor as a high poverty area; or
(3) Is one of two areas in a State that has been designated by the
Governor as an area for which a local board may apply for a Youth
Opportunity Grant, and that meets the poverty rate criteria in section
1392 (a)(4), (b), and (d) of the Internal Revenue Code of 1986.
(b) An entity other than a Local Board is eligible to receive a
grant if that entity:
(1) Is a WIA Indian and Native American grant recipient under WIA
section 166; and
(2) Serves a community that:
(i) Meets the poverty rate criteria in section 1392(a)(4), (b), and
(d) of the Internal Revenue Code of 1986; and
(ii) Is located on an Indian reservation or serves Oklahoma Indians
or Alaska Native villages or Native groups, as provided in WIA section
169 (d)(2)(B). (WIA sec. 169(c) and (d).)
Sec. 664.820 Who is eligible to receive services under Youth
Opportunity Grants?
All individuals ages 14 through 21 who reside in the community
identified in the grant are eligible to receive services under the
grant. (WIA sec. 169(a).)
Sec. 664.830 How are performance measures for Youth Opportunity
Grants determined?
(a) The Secretary negotiates performance measures, including
appropriate performance levels for each indicator, with each selected
grantee, based on information contained in the application.
(b) Performance indicators for the measures negotiated under Youth
Opportunity Grants are the indicators of performance provided in WIA
sections 136(b)(2)(A) and (B). (WIA sec. 169(f).).
PART 665_STATEWIDE WORKFORCE INVESTMENT ACTIVITIES UNDER TITLE I
OF THE WORKFORCE INVESTMENT ACT--Table of Contents
Subpart A_General Description
Sec.
665.100 What are the Statewide workforce investment activities under
title I of WIA?
665.110 How are Statewide workforce investment activities funded?
Subpart B_Required and Allowable Statewide Workforce Investment
Activities
665.200 What are required Statewide workforce investment activities?
665.210 What are allowable Statewide workforce investment activities?
665.220 Who is an ``incumbent worker'' for purposes of Statewide
workforce investment activities?
Subpart C_Rapid Response Activities
665.300 What are rapid response activities and who is responsible for
providing them?
665.310 What rapid response activities are required?
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665.320 May other activities be undertaken as part of rapid response?
665.330 Are the NAFTA-TAA program requirements for rapid response also
required activities?
665.340 What is meant by ``provision of additional assistance'' in WIA
section 134(a)(2)(A)(ii)?
Authority: Section 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49415, Aug. 11, 2000, unless otherwise noted.
Subpart A_General Description
Sec. 665.100 What are the Statewide workforce investment activities
under title I of WIA?
Statewide workforce investment activities include Statewide
employment and training activities for adults and dislocated workers, as
described in WIA section 134(a), and Statewide youth activities, as
described in WIA section 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 workforce investment funds. Descriptions of these policies and
strategies must be included in the State Plan. (WIA secs. 129(b),
134(a).)
Sec. 665.110 How are Statewide workforce investment activities funded?
(a) Except for the Statewide rapid response activities described in
paragraph (c) of this section, Statewide workforce investment activities
are supported by funds reserved by the Governor under WIA section
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 WIA sections 129(b), 134(a)(2)(B) or 134(a)(3)(A) (which
are described in Sec.Sec. 665.200 and 665.210), 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
WIA section 133(a)(2) and may be used to provide the activities
authorized at section 134(a)(2)(A) (which are described in Sec.Sec.
665.310 through 665.330). (WIA secs. 129(b), 133(a)(2), 134(a)(2)(B),
and 134(a)(3)(A).)
Subpart B_Required and Allowable Statewide Workforce Investment
Activities
Sec. 665.200 What are required Statewide workforce investment
activities?
Required Statewide workforce investment activities are:
(a) Required rapid response activities, as described inSec.
665.310;
(b) Disseminating:
(1) The State list of eligible providers of training services
(including those providing non-traditional training services), for
adults and dislocated workers;
(2) Information identifying eligible providers of on-the-job
training (OJT) and customized training;
(3) Performance and program cost information about these providers,
as described in 20 CFR 663.540; and
(4) A list of eligible providers of youth activities as described in
WIA section 123;
(c) States must assure that the information listed in paragraphs
(b)(1) through (4) of this section is widely available.
(d) Conducting evaluations, under WIA section 136(e), of workforce
investment activities for adults, dislocated workers and youth, in order
to establish and promote methods for continuously improving such
activities to achieve high-level performance within, and high-level
outcomes from, the Statewide workforce investment system. Such
evaluations must be designed and conducted in conjunction with the State
and Local Boards, and must include analysis of customer feedback,
outcome and process measures in the workforce investment system. To the
maximum extent practicable, these evaluations should be conducted in
coordination with Federal evaluations carried out under WIA section 172.
(e) Providing incentive grants:
(1) To local areas for regional cooperation among Local Boards
(including Local Boards for a designated region, as described in 20 CFR
661.290);
(2) For local coordination of activities carried out under WIA; and
(3) For exemplary performance by local areas on the performance
measures.
[[Page 84]]
(f) Providing technical assistance to local areas that fail to meet
local performance measures.
(g) Assisting in the establishment and operation of One-Stop
delivery systems, in accordance with the strategy described in the State
workforce investment plan. (WIA sec. 112(b)(14).)
(h) Providing additional assistance to local areas that have high
concentrations of eligible youth.
(i) Operating a fiscal and management accountability information
system, based on guidelines established by the Secretary after
consultation with the Governors, chief elected officials, and One-Stop
partners, as required by WIA section 136(f). (WIA secs. 129(b)(2),
134(a)(2), and 136(e)(2).)
Sec. 665.210 What are allowable Statewide workforce investment
activities?
Allowable Statewide workforce investment activities include:
(a) State administration of the adult, dislocated worker and youth
workforce investment activities, consistent with the five percent
administrative cost limitation at 20 CFR 667.210(a)(1).
(b) Providing capacity building and technical assistance to local
areas, including Local Boards, One-Stop operators, One-Stop partners,
and eligible providers, which may include:
(1) Staff development and training; and
(2) The development of exemplary program activities.
(c) Conducting research and demonstrations.
(d) Establishing and implementing:
(1) Innovative incumbent worker training programs, which may include
an employer loan program to assist in skills upgrading; and
(2) Programs targeted to Empowerment Zones and Enterprise
Communities.
(e) Providing support to local areas for the identification of
eligible training providers.
(f) Implementing innovative programs for displaced homemakers, and
programs to increase the number of individuals trained for and placed in
non-traditional employment.
(g) Carrying out such adult and dislocated worker employment and
training activities as the State determines are necessary to assist
local areas in carrying out local employment and training activities.
(h) Carrying out youth activities Statewide.
(i) Preparation and submission to the Secretary of the annual
performance progress report as described in 20 CFR 667.300(e). (WIA
secs. 129(b)(3) and 134(a)(3).)
Sec. 665.220 Who is an ``incumbent worker'' for purposes of
Statewide workforce investment activities?
States may establish policies and definitions to determine which
workers, or groups of workers, are eligible for incumbent worker
services under this subpart. An incumbent worker is an individual who is
employed, but an incumbent worker does not necessarily have to meet the
eligibility requirements for intensive and training services for
employed adults and dislocated workers at 20 CFR 663.220(b) and 663.310.
(WIA sec. 134(a)(3)(A)(iv)(I).)
Subpart C_Rapid Response Activities
Sec. 665.300 What are rapid response activities and who is
responsible for providing them?
(a) Rapid response activities are described in Sec.Sec. 665.310
through 665.330. They encompass the activities necessary to plan and
deliver services to enable dislocated workers to transition to new
employment as quickly as possible, following either a permanent closure
or mass layoff, or a natural or other disaster resulting in a mass job
dislocation.
(b) The State is responsible for providing rapid response
activities. Rapid response is a required activity carried out in local
areas by the State, or an entity designated by the State, in conjunction
with the Local Board and chief elected officials. The State must
establish methods by which to provide additional assistance to local
areas that experience disasters, mass layoffs, plant closings, or other
dislocation events when such events substantially increase the number of
unemployed individuals.
(c) States must establish a rapid response dislocated worker unit to
carry
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out Statewide rapid response activities. (WIA secs. 101(38),
112(b)(17)(A)(ii) and 134(a)(2)(A).)
Sec. 665.310 What rapid response activities are required?
Rapid response activities must include:
(a) Immediate and on-site contact with the employer, representatives
of the affected workers, and the local community, which may include an
assessment of the:
(1) Layoff plans and schedule of the employer;
(2) Potential for averting the layoff(s) in consultation with State
or local economic development agencies, including private sector
economic development entities;
(3) Background and probable assistance needs of the affected
workers;
(4) Reemployment prospects for workers in the local community; and
(5) Available resources to meet the short and long-term assistance
needs of the affected workers.
(b) The provision of information and access to unemployment
compensation benefits, comprehensive One-Stop system services, and
employment and training activities, including information on the Trade
Adjustment Assistance (TAA) program and the NAFTA-TAA program (19 U.S.C.
2271 et seq.);
(c) The provision of guidance and/or financial assistance in
establishing a labor-management committee voluntarily agreed to by labor
and management, or a workforce transition committee comprised of
representatives of the employer, the affected workers and the local
community. 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;
(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 WIA-authorized services to affected
workers. Typically, such support will last no longer than six months;
and
(3) Providing a list of potential candidates to serve as a neutral
chairperson of the committee.
(d) The provision of emergency assistance adapted to the particular
closing, layoff or disaster.
(e) The provision of assistance to the local board and chief elected
official(s) to develop a coordinated response to the dislocation event
and, as needed, obtain access to State economic development assistance.
Such coordinated response may include the development of an application
for National Emergency Grant under 20 CFR part 671. (WIA secs. 101(38)
and 134(a)(2)(A).)
Sec. 665.320 May other activities be undertaken as part of rapid
response?
Yes, a State or designated entity may provide rapid response
activities in addition to the activities required to be provided under
Sec. 665.310. In order to provide effective rapid response upon
notification of a permanent closure or mass layoff, or a natural or
other disaster resulting in a mass job dislocation, the State or
designated entity may:
(a) In conjunction, with other appropriate Federal, State and Local
agencies and officials, employer associations, technical councils or
other industry business councils, and labor organizations:
(1) Develop prospective strategies for addressing dislocation
events, that ensure rapid access to the broad range of allowable
assistance;
(2) Identify strategies for the aversion of layoffs; and
(3) Develop and maintain mechanisms for the regular exchange of
information relating to potential dislocations, available adjustment
assistance, and the effectiveness of rapid response strategies.
(b) In collaboration with the appropriate State agency(ies), collect
and analyze information related to economic dislocations, including
potential closings and layoffs, and all available resources in the State
for dislocated workers in order to provide an adequate basis for
effective program management, review and evaluation of rapid response
and layoff aversion efforts in the State.
[[Page 86]]
(c) Participate in capacity building activities, including providing
information about innovative and successful strategies for serving
dislocated workers, with local areas serving smaller layoffs.
(d) Assist in devising and overseeing strategies for:
(1) Layoff aversion, such as prefeasibility studies of avoiding a
plant closure through an option for a company or group, including the
workers, to purchase the plant or company and continue it in operation;
(2) Incumbent worker training, including employer loan programs for
employee skill upgrading; and
(3) 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
recruitment activities.
Sec. 665.330 Are the NAFTA-TAA program requirements for rapid
response also required activities?
The Governor must ensure that rapid response activities under WIA
are made available to workers who, under the NAFTA Implementation Act
(Public Law 103-182), are members of a group of workers (including those
in any agricultural firm or subdivision of an agricultural firm) for
which the Governor has made a preliminary finding that:
(a) A significant number or proportion of the workers in such firm
or an appropriate subdivision of the firm have become totally or
partially separated, or are threatened to become totally or partially
separated; and
(b) Either:
(1) The sales or production, or both, of such firm or subdivision
have decreased absolutely; and
(2) Imports from Mexico or Canada of articles like or directly
competitive with those produced by such firm or subdivision have
increased; or
(c) There has been a shift in production by such workers' firm or
subdivision to Mexico or Canada of articles which are produced by the
firm or subdivision.
Sec. 665.340 What is meant by ``provision of additional assistance
'' in WIA section 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.
665.310 and 665.320, the remainder of the funds may be used by the State
to provide funds to local areas, that experience increased numbers of
unemployed individuals due to natural disasters, plant closings, mass
layoffs or other events, for provision of direct services to
participants (such as intensive, training, and other services) if there
are not adequate local funds available to assist the dislocated workers.
PART 666_PERFORMANCE ACCOUNTABILITY UNDER TITLE I OF THE WORKFORCE
INVESTMENT ACT--Table of Contents
Subpart A_State Measures of Performance
Sec.
666.100 What performance indicators must be included in a State's plan?
666.110 May a Governor require additional indicators of performance?
666.120 What are the procedures for negotiating annual levels of
performance?
666.130 Under what conditions may a State or DOL request revisions to
the State negotiated levels of performance?
666.140 Which individuals receiving services are included in the core
indicators of performance?
666.150 What responsibility do States have to use quarterly wage record
information for performance accountability?
Subpart B_Incentives and Sanctions for State Performance
666.200 Under what circumstances is a State eligible for an Incentive
Grant?
666.205 What are the time frames under which States submit performance
progress reports and apply for incentive grants?
666.210 How may Incentive Grant funds be used?
666.220 What information must be included in a State Board's application
for an Incentive Grant?
666.230 How does the Department determine the amounts for Incentive
Grant awards?
666.240 Under what circumstances may a sanction be applied to a State
that fails
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to achieve negotiated levels of performance for title I?
Subpart C_Local Measures of Performance
666.300 What performance indicators apply to local areas?
666.310 What levels of performance apply to the indicators of
performance in local areas?
Subpart D_Incentives and Sanctions for Local Performance
666.400 Under what circumstances are local areas eligible for State
Incentive Grants?
666.410 How may local incentive awards be used?
666.420 Under what circumstances may a sanction be applied to local
areas for poor performance?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Source: 65 FR 49402, Aug. 11, 2000, unless otherwise noted.
Subpart A_State Measures of Performance
Sec. 666.100 What performance indicators must be included in a
State's plan?
(a) All States submitting a State Plan under WIA title I, subtitle B
must propose expected levels of performance for each of the core
indicators of performance for the adult, dislocated worker and youth
programs, respectively and the two customer satisfaction indicators.
(1) For the Adult program, these indicators are:
(i) Entry into unsubsidized employment;
(ii) Retention in unsubsidized employment six months after entry
into the employment;
(iii) Earnings received in unsubsidized employment six months after
entry into the employment; and
(iv) Attainment of a recognized credential related to achievement of
educational skills (such as a secondary school diploma or its recognized
equivalent), or occupational skills, by participants who enter
unsubsidized employment.
(2) For the Dislocated Worker program, these indicators are:
(i) Entry into unsubsidized employment;
(ii) Retention in unsubsidized employment six months after entry
into the employment;
(iii) Earnings received in unsubsidized employment six months after
entry into the employment; and
(iv) Attainment of a recognized credential related to achievement of
educational skills (such as a secondary school diploma or its recognized
equivalent), or occupational skills, by participants who enter
unsubsidized employment.
(3) For the Youth program, these indicators are:
(i) For eligible youth aged 14 through 18:
(A) Attainment of basic skills goals, and, as appropriate, work
readiness or occupational skills goals, up to a maximum of three goals
per year;
(B) Attainment of secondary school diplomas and their recognized
equivalents; and
(C) Placement and retention in postsecondary education, advanced
training, military service, employment, or qualified apprenticeships.
(ii) For eligible youth aged 19 through 21:
(A) Entry into unsubsidized employment;
(B) Retention in unsubsidized employment six months after entry into
the employment;
(C) Earnings received in unsubsidized employment six months after
entry into the employment; and
(D) Attainment of a recognized credential related to achievement of
educational skills (such as a secondary school diploma or its recognized
equivalent), or occupational skills, by participants who enter post-
secondary education, advanced training, or unsubsidized employment.
(4) A single customer satisfaction measure for employers and a
single customer satisfaction indicator for participants must be used for
the WIA title I, subtitle B programs for adults, dislocated workers and
youth. (WIA sec. 136(b)(2).)
(b) After consultation with the representatives identified in WIA
sections 136(i) and 502(b), the Departments of
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Labor and Education will issue definitions for the performance
indicators established under title I and title II of WIA. (WIA sec. 136
(b), (f) and (i).)
Sec. 666.110 May a Governor require additional indicators of
performance?
Yes, Governors may develop additional indicators of performance for
adults, youth and dislocated worker activities. These indicators must be
included in the State Plan. (WIA sec. 136(b)(2)(C).)
Sec. 666.120 What are the procedures for negotiating annual levels
of performance?
(a) We issue instructions on the specific information that must
accompany the State Plan and that is used to review the State's expected
levels of performance. The instructions may require that levels of
performance for years two and three be expressed as a percentage
improvement over the immediately preceding year's performance,
consistent with the objective of continuous improvement.
(b) States must submit expected levels of performance for the
required indicators for each of the first three program years covered by
the Plan.
(c) The Secretary and the Governor must reach agreement on levels of
performance for each core indicator and the customer satisfaction
indicators. In negotiating these levels, the following must be taken
into account:
(1) The expected levels of performance identified in the State Plan;
(2) The extent to which the levels of performance for each core
indicator assist in achieving high customer satisfaction;
(3) The extent to which the levels of performance promote continuous
improvement and ensure optimal return on the investment of Federal
funds; and
(4) How the levels compare with those of other States, taking into
account factors including differences in economic conditions,
participant characteristics, and the proposed service mix and
strategies.
(d) The levels of performance agreed to under paragraph (c) of this
section will be the State's negotiated levels of performance for the
first three years of the State Plan. These levels will be used to
determine whether sanctions will be applied or incentive grant funds
will be awarded.
(e) Before the fourth year of the State Plan, the Secretary and the
Governor must reach agreement on levels of performance for each core
indicator and the customer satisfaction indicators for the fourth and
fifth years covered by the plan. In negotiating these levels, the
factors listed in paragraph (c) of this section must be taken into
account.
(f) The levels of performance agreed to under paragraph (e) of this
section will be the State negotiated levels of performance for the
fourth and fifth years of the plan and must be incorporated into the
State Plan.
(g) Levels of performance for the additional indicators developed by
the Governor, including additional indicators to demonstrate and measure
continuous improvement toward goals identified by the State, are not
part of the negotiations described in paragraphs (c) and (e) of this
section. (WIA sec. 136(b)(3).)
(h) State negotiated levels of performance may be revised in
accordance withSec. 666.130.
Sec. 666.130 Under what conditions may a State or DOL request
revisions to the State negotiated levels of performance?
(a) The DOL guidelines describe when and under what circumstances a
Governor may request revisions to negotiated levels. These circumstances
include significant changes in economic conditions, in the
characteristics of participants entering the program, or in the services
to be provided from when the initial plan was submitted and approved.
(WIA sec. 136(b)(3)(A)(vi).)
(b) The guidelines will establish the circumstances under which a
State will be required to submit revisions under specified
circumstances.