[Federal Register: August 11, 2000 (Volume 65, Number 156)]
[Rules and Regulations]
[Page 49293-49342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au00-7]
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Part II
Department of Labor
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Employment and Training Administration
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20 CFR Part 652 et al.
Workforce Investment Act; Final Rules
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 652 and Parts 660 through 671
RIN 1205-AB20
Workforce Investment Act
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (DOL) is issuing a Final Rule
implementing provisions of titles I, III and V of the Workforce
Investment Act. Through these regulations, the Department implements
major reforms of the nation's job training system and provides guidance
for statewide and local workforce investment systems that increase the
employment, retention and earnings of participants, and increase
occupational skill attainment by participants, and as a result, improve
the quality of the workforce, reduce welfare dependency, and enhance
the productivity and competitiveness of the Nation. Key components of
this reform include streamlining services through a One-Stop service
delivery system, empowering individuals through information and access
to training resources through Individual Training Accounts, providing
universal access to core services, increasing accountability for
results, ensuring a strong role for Local Boards and the private sector
in the workforce investment system, facilitating State and local
flexibility, and improving youth programs.
DATES: This Final Rule will become effective on September 11, 2000.
ADDRESSES: All comments received during the comment period following
the publication of the Interim Final Rule (64 FR 18662, et seq., Apr.
15, 1999) are available for public inspection and copying during normal
business hours at the Employment and Training Administration, Office of
Career Transition Assistance, 200 Constitution Avenue, NW., Room S-
4231, Washington, DC 20210. Copies of the Final Rule are available in
alternate formats of large print and electronic file on computer disk,
which may be obtained at the above-stated address. The Final Rule is
also available on the WIA web site at http://usworkforce.org.
FOR FURTHER INFORMATION CONTACT: Mr. Eric Johnson, Office of Career
Transition Assistance, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room S-4231, Washington, DC 20210, Telephone: (202) 219-
7831 (voice) (this is not a toll-free number) or 1-800-326-2577 (TDD).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
This Final Rule does not add any new information collection
requirements to those of the Interim Final Rule. Certain sections of
this Final Rule, such as Secs. 667.300, 667.900, 668.800, and 669.570
contain information collection requirements. These requirements have
not been changed. Under the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Department of Labor submitted a copy of these sections to
the Office of Management and Budget for review. No comments were
received about and no changes have been made to the information
collection requirements.
We have prepared documents providing guidance on specific
information collection requirements. As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), we submitted these documents
to the Office of Management and Budget (OMB) for its review. Affected
parties do not have to comply with the information collection
requirements contained in this document until we publish in the Federal
Register the control numbers assigned by the Office of Management and
Budget. Publication of the control numbers notifies the public that OMB
has approved this information collection requirement under the
Paperwork Reduction Act of 1995. For further information contact: Ira
Mills, Departmental Clearance Officer, Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210, (202) 219-5095, ext.
143.
I. Background
A. WIA Principles
On August 7, 1998, President Clinton signed the Workforce
Investment Act of 1998 (WIA), comprehensive reform legislation that
supersedes the Job Training Partnership Act (JTPA) and amends the
Wagner-Peyser Act. WIA also contains the Adult Education and Family
Literacy Act (title II) and the Rehabilitation Act Amendments of 1998
(title IV). Guidance or regulations implementing titles II and IV will
be issued by the Department of Education.
WIA reforms Federal job training programs and creates a new,
comprehensive workforce investment system. The reformed system is
intended to be customer-focused, to help Americans access the tools
they need to manage their careers through information and high quality
services, and to help U.S. companies find skilled workers. This new law
embodies seven key principles. They are:
- Streamlining services through better integration at the
street level in the One-Stop delivery system. Programs and providers
will co-locate, coordinate and integrate activities and information, so
that the system as a whole is coherent and accessible for individuals
and businesses alike.
- Empowering individuals in several ways. First, eligible
adults are given financial power to use Individual Training Accounts
(ITA's) at qualified institutions. These ITA's supplement financial aid
already available through other sources, or, if no other financial aid
is available, they may pay for all the costs of training. Second,
individuals are empowered with greater levels of information and
guidance, through a system of consumer reports providing key
information on the performance outcomes of training and education
providers. Third, individuals are empowered through the advice,
guidance, and support available through the One-Stop system, and the
activities of One-Stop partners.
- Universal access. Any individual will have access to the
One-Stop system and to core employment-related services. Information
about job vacancies, career options, student financial aid, relevant
employment trends, and instruction on how to conduct a job search,
write a resume, or interview with an employer is available to any job
seeker in the U.S., or anyone who wants to advance his or her career.
- Increased accountability. The goal of the Act is to
increase employment, retention, and earnings of participants, and in
doing so, improve the quality of the workforce to sustain economic
growth, enhance productivity and competitiveness, and reduce welfare
dependency. Consistent with this goal, the Act identifies core
indicators of performance that State and local entities managing the
workforce investment system must meet--or suffer sanctions. However,
State and local entities exceeding the performance levels can receive
incentive funds. Training providers and their programs also have to
demonstrate successful performance to remain eligible to receive funds
under the Act. And participants, with their ITA's, have the opportunity
to make training choices based on program outcomes. To survive in the
market, training providers must make accountability for performance and
customer satisfaction a top priority.
- Strong role for local workforce investment boards and the
private sector, with local, business-led boards
acting as ``boards of directors,'' focusing on strategic planning,
policy development and oversight of the local workforce investment
system. Business and labor have an immediate and direct stake in the
quality of the workforce investment system. Their active involvement is
critical to the provision of essential data on what skills are in
demand, what jobs are available, what career fields are expanding, and
the identification and development of programs that best meet local
employer needs. Highly successful private industry councils under JTPA
exhibit these characteristics now. Under WIA, this will become the
norm.
- State and local flexibility. States and localities have
increased flexibility, with significant authority reserved for the
Governor and chief elected officials, to build on existing reforms in
order to implement innovative and comprehensive workforce investment
systems tailored to meet the particular needs of local and regional
labor markets.
- Improved youth programs linked more closely to local labor
market needs and community youth programs and services, and with strong
connections between academic and occupational learning. Youth programs
include activities that promote youth development and citizenship, such
as leadership development through voluntary community service
opportunities; adult mentoring and followup; and targeted opportunities
for youth living in high poverty areas.
Many States and local areas have already taken great strides in
implementing these principles, supported by grants from the Department
of Labor (DOL) to build One-Stop service delivery systems and school-
to-work transition systems. The Act builds on these reforms and ensures
that they will be available throughout the country.
We wish to emphasize that DOL considers the reforms embodied in the
Workforce Investment Act to be pivotal, and not ``business as usual.''
This legislation provides an unprecedented opportunity for major
reforms that can result in a reinvigorated, integrated workforce
investment system. States and local communities, together with
business, labor, community-based organizations, educational
institutions, and other partners, must seize this historic opportunity
by thinking expansively as they design a customer-focused,
comprehensive delivery system.
The success of the reformed workforce investment system is
dependent on the development of true partnerships and honest
collaboration at all levels and among all stakeholders. While the
Workforce Investment Act and these regulations assign specific roles
and responsibilities to specific entities, for the system to realize
its potential necessitates moving beyond current categorical
configurations and institutional interests. Also, it is imperative that
input is received from all stakeholders and the public at each stage of
the development of State and local workforce investment systems.
The cornerstone of the new workforce investment system is One-Stop
service delivery which unifies numerous training, education and
employment programs into a single, customer-friendly system in each
community. The underlying notion of One-Stop is the coordination of
programs, services and governance structures so that the customer has
access to a seamless system of workforce investment services. We
envision that a variety of programs could use common intake, case
management and job development systems in order to take full advantage
of the One-Stops' potential for efficiency and effectiveness. A wide
range of services from a variety of training and employment programs
will be available to meet the needs of employers and job seekers. The
challenge in making One-Stop live up to its potential is to make sure
that the State and Local Boards can effectively coordinate and
collaborate with the network of other service agencies, including TANF
agencies, transportation agencies and providers, metropolitan planning
organizations, child care agencies, nonprofit and community partners,
and the broad range of partners who work with youth.
B. Rule Format
The format, as well as the substance, of the Final Rule, reflects
the Administration's commitment to regulatory reform and to writing
regulations that are reader-friendly. We have attempted to make these
regulations clear and easy to understand, as well as to anticipate
issues that may arise and to provide appropriate direction. To this
end, the regulatory text is presented in a ``question and answer''
format. We have organized the regulations in a way that will help those
implementing the new system to recognize the various steps that must be
taken to develop the organization and services that make up the
workforce investment system. In many cases, the provisions of WIA are
not repeated in these regulations. In response to comments, however, we
determined that, in a number of instances, the regulations would
provide context and be more reader-friendly if the Act's provisions
were included in an answer rather than merely cross-referencing the
statute.
C. Prior Actions
Since the passage of the Workforce Investment Act in August of
1998, we have used a variety of means to initiate extensive
coordination with other Federal agencies that have roles and
responsibilities under WIA. In addition, the Department of Labor, the
Department of Education, the Department of Health and Human Services,
the Department of Transportation, and the Department of Housing and
Urban Development continue to meet on a regular basis to resolve issues
surrounding WIA implementation.
Before publishing the Interim Final Rule, we also requested and
received input from a broad range of sources about how to structure
guidance on how to comply with a number of WIA statutory provisions. We
solicited broad input on WIA implementation through a variety of
mechanisms: establishing a web site to encourage input; publishing a
Federal Register notice on September 15, 1998; conducting regional and
national panel discussions in October 1998; publishing a White Paper
announcing goals and principles governing implementation; posting
issues on the usworkforce.org web site; sharing a discussion draft of
regulatory issues with stakeholders; holding town hall meetings across
the country in December 1998; conducting several workgroups in December
1998; issuing draft Planning Guidance in December 1998; and conducting
a series of WIA Implementation Technical Assistance Conferences across
the country in March and April of 1999.
On April 15, 1999, the Interim Final Rule was published in the
Federal Register, at 64 FR 18662 through 18764, and a 90-day comment
period commenced. We continued to provide information by posting
questions and answers on the usworkforce.org web site; publishing a
series of consultation papers in April, May and August of 1999, on
defining and measuring performance, incentives and sanctions, customer
satisfaction, and continuous improvement; conducting a second round of
Town Hall meetings across the country in August of 1999; and hosting
``Voice of Experience'' forums in February and March of 2000 where
practitioners shared insights and suggestions for successful
implementation of WIA. An Interim Final Rule implementing section 188
nondiscrimination and equal
opportunity provisions of WIA, codified in 29 CFR part 37, was
published separately in the Federal Register, at 64 FR 61692 through
61738, Nov. 12, 1999. Comments received on those regulations will be
addressed in the preamble to that Final Rule.
We reviewed every comment received during the comment period
following publication of the Interim Final Rule, as well as the
experience of early implementing States, and suggestions received from
partners and stakeholders when considering whether the Final Rule
should differ from the Interim Final Rule. These comments are discussed
in the Summary and Explanation of the individual provisions of the
Final Rule. Section 506(c)(1) of the Act required the Secretary of
Labor to issue this Final Rule implementing provisions of the WIA under
the Department's purview by December 31, 1999. While we were unable to
meet this deadline, we have endeavored to issue this Final Rule as
expeditiously as possible without compromising the quality of the
document. Under Secretary of Labor's Order No. 4-75, the Assistant
Secretary for Employment and Training has been delegated the
responsibility to carry out WIA policies, programs, and activities for
the Secretary of Labor. We have determined that this Final Rule, as
promulgated, complies with the WIA statutory mandate to issue a Final
Rule and provides effective direction for the implementation of WIA
programs.
This section contains our response to comments received on the
Interim Final Rule during the comment period. The comments are
discussed at considerable length in order to make clear our
interpretation of WIA through these final regulations and of their
application to some of the challenges that may arise in implementing
the Act.
We have set regulations only where they are necessary to clarify or
to explain how we intend to interpret the WIA statute, to provide
context for interpretations or to provide a clear statement of the
Act's requirements. In several instances--for example, the Indian and
Native American Programs, and Migrant and Seasonal Farmworker
Programs--the regulations were developed in consultation with advisory
councils and are more comprehensive in order to assist those grantees.
Consistent with the Act, the Final Rule provides the States and local
governments with the primary responsibility to initiate and develop
program implementation procedures and policy guidance regarding WIA
administration.
There are a limited number of changes in the Final Rule because of
our commitment to allowing maximum flexibility at the State and local
level. Section 661.120 formalizes this flexibility in the regulations.
A number of comments suggested that we specify certain groups of
providers and participants and types of activities in numerous sections
of the regulations. Among others, these comments suggested revising the
regulations to: add new definitions, and additional State and local
planning requirements; require States and locals to consult with
specific organizations in order to fulfill the public comment process
requirements; and identify certain types of programs, providers or
participants, such as service learning opportunities, and
nontraditional employment and training opportunities for women and
dislocated homemakers, in matters where States and localities have
discretion to define terms and make other discretionary decisions. To
provide policy-making flexibility to States and local areas and to
avoid suggesting that any one group or activity is more important than
those not highlighted in the regulations, we have generally not made
those changes. However, we do believe that consultation with and
inclusion of these groups is important to obtaining the optimal
functioning of the cooperative system envisioned by WIA. We fully
expect that States and local areas will consult broadly before adopting
plans and policies; and that their workforce investment systems will be
structured to include all providers and programs that may help meet the
needs of their populations, and equitably serve all population segments
within their service areas.
In addition to the changes made based upon the comments received,
in order to clarify policy and interpretation and improve upon the
Rule's reader-friendly format, we have also made technical changes to
correct typographical errors, such as consistent capitalization,
abbreviations, grammatical corrections and citations, and for
consistency with the regulations implementing the nondiscrimination and
equal opportunity provisions of WIA section 188, which were first
published in the Federal Register on November 12, 1999 (64 FR 61692
through 61738, 29 CFR part 37).
When publishing a Final Rule following a comment period, it is
customary to publish only changes made to the rule, however, in order
to be more user-friendly, we are publishing the entire Rule, including
those parts that have not been changed, for WIA titles I and V. This
means that one document which contains all of the regulations and
commentary may be consulted rather than needing to compare various
documents. Similarly, the new Wagner-Peyser regulations at part 652
subpart C are republished in full.
Description of Regulatory Provisions
Part 660--Introduction to the Regulations for the Workforce Investment
Systems Under Title I of the Workforce Investment Act
Part 660 discusses the purpose of title I of the Workforce
Investment Act and explains the format of the regulations governing
title I.
A few commenters suggested we add the attainment of self-
sufficiency to the description of the purpose of title I in
Sec. 660.100.
Response: While we agree that the attainment of self-sufficiency is
an important goal of workforce investment systems under title I of the
Act, we have not added that phrase to the regulation since the current
language tracks section 106 of the Act.
Part 660 also provides definitions which are not found in the Act,
as well as some of the statutory definitions we felt should be added
for emphasis or clarification. Sections 101, 142, 166(b), 167(h) 301
and 502 of the Act contain additional definitions. We received several
comments on the definitions contained in Sec. 660.300. One commenter
suggested that we add ``youth'' to the definition of ``employment and
training activity''.
Response: The three terms, ``workforce investment activity,''
``employment and training activity,'' and ``youth activity,'' are
defined in section 101 of WIA. We have not added ``youth'' to the
definition of ``employment and training activity'' since employment and
training activities are a separate subset of workforce investment
activities under title I, Chapter 5 of the Act. Workforce investment
activities are the array of activities permitted under title I of WIA,
which include employment and training activities for adults and
dislocated workers, and youth activities.
A commenter requested that we define the term ``labor federation''
as used in relation to nomination requirements for labor representatives
to the State and Local Boards, stating ``[i]t is our understanding
that [this term] is intended to include AFL-CIO State Federations,
State Building and Construction Trades Councils, AFL-CIO Central
Labor Councils, and Local Building and Construction Trade Councils.''
Response: We have added a definition of the term ``labor
federation'', similar to that used in JTPA, which will include these
groups within that term.
We received several comments on the definition of ``literacy''. One
commenter suggested that the definition of ``literacy'' be expanded to
mean the ability to read, write and speak in English or an individual's
native language, if that is not English.
Response: In order to promote consistency among Federal Programs,
title I, section 101(19) of WIA defines ``literacy'' by stating that it
is the same definition used in title II, section 203(12) of the Act.
Section 660.300 of the regulations restates this definition for the
convenience of the reader. Literacy is defined as the ``ability to
read, write, and speak in English, compute and solve problems, at the
levels of proficiency necessary to function on the job, in the family
of the individual and in society.'' No change has been made to this
statutory definition.
Another commenter suggested that the term ``literacy'' be amended
to include computer literacy since it is an important and necessary
workplace skill.
Response: We agree that computer literacy is a key skill, however,
as stated above, no changes have been made to the definition of
``literacy'' since it is a statutory definition found in section
203(12) of title II of WIA.
Among the regulatory definitions, we have defined the term
``register'' in order to clarify that programs do not need to register
participants until they receive a core service beyond those that are
self-service or informational. This point in time also corresponds to
the point when the participants are counted for performance measurement
purposes. A few commenters suggested that the term ``register'' be
redefined to require all adults and dislocated workers who receive
services, including those who only receive self-service or
informational services, to be registered in order to track universal
participation in the workforce investment system.
Response: The process of registration is designed to signal when an
individual is counted against the core measures of performance title I
programs. Since the Act exempts informational and self-service
activities from the core measures, we are not requiring individuals who
only receive those services to be registered. However, States and local
areas are authorized to collect information beyond what is required at
the Federal level. In March 2000, we issued Training and Employment
Letter (TEGL) 7-99 which provides additional guidance on the point of
registration. This guidance can be found on the Internet at
www.usworkforce.org. Additional discussion of this issue is contained
in part 663 and part 664 of these regulations. Part 666 provides new
guidelines on when a service is determined to be self-service or
informational. Finally, while participants may not need to be
registered until they receive core services for performance measurement
purposes, recipients must collect equal opportunity data regarding any
individual who has submitted personal information in response to a
request by the recipient for such information. See 29 CFR 37.4
(definitions of ``applicant'' and ``registrant''), and
Sec. 37.37(b)(2).
Another commenter suggested that the term ``register'' be more
clearly defined, and requested a description of the differences between
registration, enrollment and participation.
Response: While we have not changed the definition of ``register,''
additional guidance on the registration process and its connection to
the performance accountability system can be found in TEGL 7-99, as
well as part 663 and part 664 of these regulations. In general,
``enrollment'' is not a term that is being used in the WIA title I
performance system. An individual who registers for services is
determined eligible and is counted against the core indicators of
performance. This registered individual is considered a participant
while receiving services (except followup services) funded under
subtitle B of WIA title I.
This commenter also suggested that we clarify that information on
citizenship and selective service status be collected at the time of
registration.
Response: In addition to any other statutory or regulatory
requirements, under WIA section 188(a)(5)--``Prohibition on
Discrimination Against Certain Non-Citizens''--participation in
programs or activities, or receiving financial assistance under WIA
title I, must be available to citizens and nationals of the United
States, lawfully admitted permanent resident aliens, refugees, asylees,
and parolees and other immigrants authorized to work in the United
States. Compliance with the non-discrimination provisions of WIA is
addressed in the Interim Final Regulations promulgated by the
Department's Civil Rights Center at 29 CFR part 37 (64 FR 61692,
November 12, 1999). A discussion of these provisions can be found in
the preamble discussion of 29 CFR 37.37(b)(2), at 64 FR 61705.
Section 189 of WIA provides that the Military Selective Service Act
(50 U.S.C. App. 453) must be complied with to receive any assistance or
benefit under title I. In order to allow the greatest possible
flexibility in the provision of services, we will not dictate specific
ways to comply with this straightforward requirement.
Several commenters suggested adding definitions of ``contract'' and
``commercial organization'' or ``for-profit entity'' and modifying the
definitions of ``grant,'' ``subrecipient,'' and ``vendor'' to ensure
consistency with the Federal Grant and Cooperative Agreement Act, (31
U.S.C. 6301), and to reduce confusion about what awards are subject to
the uniform procurement requirements at 29 CFR 95.40 through 95.48 and
29 CFR 97.36, and what awards are not subject to these requirements.
Response: We have decided not to add definitions of ``contract,''
``commercial organization'' or ``for-profit entity'', because these
terms are defined or discussed in the Department's rules on uniform
administrative requirements at 29 CFR parts 95 and 97 (the ``Common
Rules''), as well as in the Department's rules on audit requirements
for grantees in 29 CFR parts 96 and 99, all of which are incorporated
by reference at 20 CFR 667.200. We are modifying the definitions of
``subrecipient'' and ``vendor'' to cross-reference the discussion in
the DOL audit requirements, at 29 CFR 99.210, which contrasts the
differences between subrecipients and vendors. Since the definition of
``grant'' in Sec. 660.300, is already quite specific as to the types of
organizations which may be awarded grants, we consider changes to this
term to be unnecessary. We also are modifying the definition of
``recipient'' to indicate that the term refers to the entire legal
entity receiving the award, not just the particular component within
that entity which is designated in the award document. The modification
is consistent with the definition of ``recipient'' in the JTPA
regulations at 20 CFR 626.5 and the definition of ``grantee'' in the
Common Rule at 29 CFR 97.3. Also, we are reiterating the Common Rule's
definition of the term ``subgrant'' for the convenience of the reader.
Another commenter suggested defining the term ``obligation'' so
that Individual Training Account (ITA) commitments could be treated as
obligations for purposes of the reallotment and reallocation procedures
of 20 CFR Secs. 667.150 and 667.160, even though they might not meet
the standards of obligation used by particular State or local
governments.
Response: Section 667.150 of the regulations provides for recapture
by the Secretary of unobligated balances from States with unobligated
balances which exceed 20 percent of the amount allotted in the previous
program year, after adjustment for amounts reserved by a State for
administration and amounts transferred by the State between youth and
adult funds. Reallotment is then made to States which have obligated at
least 80 percent of the amounts allotted in the previous program year,
after adjustment for transfers and amounts reserved for administration.
Section 667.160 covers the recapture and reallocation of amounts within
the State using the same factors used in the Secretary's reallotment
process.
We have added a definition of ``obligation'' to Sec. 660.300 which,
for the purpose of reallotments under 20 CFR 667.150, specifically
excludes: (1) Amounts allocated to a single local area State or to a
balance of State local area administered by a unit of the State
government; and (2) inter-agency transfers and other actions treated by
the State as encumbrances against amounts reserved by the State under
WIA sections 128(a) and 133(a) for Statewide workforce investment
activities. These exclusions were also in effect under JTPA. The
purpose of these exclusions is to treat similar financial transactions
the same way in all States, even where a State only recognizes a
financial transaction as a legally enforceable ``obligation'' if it
involves an arms-length award to another party or if performance has
already occurred. We also are adding the definition of ``unobligated
balance,'' which appears at 29 CFR 97.3, for the convenience of the
reader.
With respect to the comment regarding defining commitments under
ITA's as obligations, we are not aware of any unique characteristics of
ITA's which necessitate expanding the definition of ``obligation''
provided in Sec. 660.300 of these regulations. Commitments under ITA's
should be treated the same way as similar commitments of the
recipient's or subrecipient's non-WIA funds, whether as obligations or
otherwise.
Other commenters suggested we include a definition of the term
``individual with a disability'' to encourage One-Stop center staff to
have a knowledge and sensitivity to the needs of such individuals.
Response: Since the provision of quality services to individuals
with disabilities is a key facet of the One-Stop service delivery
system, we have added the WIA title I, section 101(17) definition of
the term ``individual with a disability'' to Sec. 660.300.
One commenter was concerned that the definition of ``veteran''
contained in section 101(49) of the Act was too broad and raised
uncertainty as to which veterans were to be served under title I of
WIA. The commenter suggested that we replace the definition in the
Interim Final Regulations with the definition of ``veteran'' contained
in title 38 of the U.S. Code since it provides more specificity and
consistency between programs.
Response: Since the definition of ``veteran'' appears in title I of
WIA, we are not making any change in the Final Regulation. We encourage
States and local areas to take these definitions into account as they
undertake their responsibility to assure that the delivery of services
under WIA title I programs and activities authorized under the chapter
41 of U.S.C. title 38 partner program are coordinated through the One-
Stop service delivery system.
One commenter suggested that we add definitions of a sectoral
employment intervention strategy and the self-sufficiency standard. A
sectoral employment intervention strategy is an approach to community
economic development that connects members of low-income communities to
employment opportunities, self-sufficiency wages and/or advancement
opportunities by both redirecting training resources and education, and
facilitating direct linkages to employers in targeted regional
industries. The self-sufficiency standard defines the minimum amount of
cash resources needed for a family to meet its basic needs and be self-
sufficient.
Response: While we encourage State and Local Boards to develop
linkages between their workforce and economic development systems, we
do not think it is appropriate to highlight one strategy for achieving
such linkages. As for a definition of self-sufficiency, 20 CFR 663.230
requires State or Local Boards to 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, defined in WIA section
101(24). No changes are being made to the regulations.
Part 661--Statewide and Local Governance of the Workforce Investment
System Under Title I of the Workforce Investment Act
Introduction
This part covers the critical underpinnings of how the Workforce
Investment system is organized under WIA at the State and Local levels.
Specifically, it consists of four subparts--General Governance
Provisions, State Governance Provisions, Local Governance Provisions
and Waiver Provisions. The General Governance subpart broadly describes
the WIA system and describes the roles of the governmental partners.
The State and Local Governance subparts cover the State and Local
Workforce Investment Boards and the designation process, including
alternative entities, and the planning requirements. The waiver subpart
discusses the processes for obtaining general and work-flex waivers.
Subpart A--General Governance Provisions
Subpart A describes the Workforce Investment system, and sets forth
the roles of the government partners in the system: the Federal
government, State governments and Local governments.
Section 661.120 provides authority to State and Local governments
to establish their own policies, interpretations, guidelines and
definitions relating to program operations under title I, as long as
they are not inconsistent with WIA, these regulations, and Federal
statutes and regulations governing One-Stop partner programs. The
reference to Federal statutes and regulations governing One-Stop
partner programs has been added to Sec. 661.120 (a) and (b) as a
reminder that State and local administration of the One-Stop system
must be consistent with the requirements of the Federal law applicable
to the partner's program. In the case of local governments such
policies, interpretation, guidelines and definitions may not be
inconsistent with State policies. This section has also been revised to
correct an inconsistency between terms used in the question and answer.
The question refers to ``Local and State governmental partners'' while
the answer refers to Local and State Boards. We do not intend to
exclude the Governors and local elective officials from the authority
to develop State and local policies relating to WIA title I, provided
those policies are consistent with the Act, regulations and, where
appropriate, other State policies. Therefore, paragraphs (a) and (b)
are revised to replace the phrases ``Local
Boards'' and ``State Boards'' with ``Local areas'' and ``States''
respectively so that they will not appear to be inconsistent with the
terms used in the question.
To assist with the State and local interpretations authorized under
Sec. 661.120, we have issued technical assistance guidance, with the
participation of other Federal agencies, as appropriate, to help States
and localities interpret WIA and the regulations. This guidance is not
intended to limit State flexibility, but rather is intended to provide
helpful models on which States and Local governments can rely to ensure
that their own interpretations are not inconsistent with the Act and
regulations. In our role as Federal partner we will continue to provide
technical assistance to States and localities, in collaboration with
other Federal agencies as appropriate, however we remain committed to
the principles in the statute which allow and encourage flexibility.
A commenter suggested that the standard against which State and
local policies, interpretations, etc. are measured under Sec. 661.120
should be whether they are ``consistent'' with WIA and the regulations
rather than ``not inconsistent.'' The commenter suggests that the
current language may send an inappropriate message about the need to
conform to statutory and regulatory requirements and may lead to
differing interpretations of some provisions.
Response: We don't agree that this provision should be changed. The
workforce investment system is a partnership between State, local and
Federal stakeholders. One of WIA's key principles is that States and
localities have increased authority to implement innovative workforce
investment strategies to best serve the needs of the labor market.
While we take very seriously our responsibility to ensure that State
and local policies, interpretations, guidelines and definitions do not
violate the provisions of the statute and these regulations, where
differing interpretations are legally possible we believe that States
and localities should have the flexibility to implement systems that
they feel are best suited to their particular needs. The current
regulation best serves this flexibility, because it does not imply that
there is only one ``consistent'' interpretation available. Therefore,
we have not changed the regulation.
Several commenters expressed differing views regarding the relative
roles of State and local partners in the One-Stop system. Some
commenters requested that we expressly state that States and localities
are equal partners in the One-Stop system, while others requested that
we clarify that States have clear authority to promulgate
interpretations and other guidance to State and local agencies.
Response: In our view, neither of these positions is absolutely
correct. The success of the workforce investment system depends on a
commitment, particularly among the governmental entities and the One-
Stop partners, to collaborate and form real partnerships. On many
matters, the State has the authority to set Statewide policies
applicable to local areas. However, WIA also gives certain
responsibilities and authority to local areas. Close coordination among
State and local government partners is essential to the success of the
system. The flexibility of the WIA system offers a unique opportunity
for leadership from both the State and local level to work
cooperatively with one another to address the specific workforce needs
of each community and benefit the State as a whole. We do not think it
would be productive to enumerate where each entity has authority, but
trust that in establishing the workforce investment system Governors
and chief executive officers will take their roles and responsibilities
seriously and work together to create a system that best helps their
community aid those in need.
According to one commenter, there may be confusion resulting from
the language in WIA section 117(d)(3)(B)(i) that holds chief elected
officials liable, as grant recipient, for misuse of local formula funds
(unless the Governor agrees to undertake such liability). The commenter
reported that some local areas were worried that this liability would
be interpreted as the personal liability of the elected official.
Response: While we have not changed the regulations, we wish to
clearly state our interpretation of this provision. We interpret this
provision as holding the chief elected officials (and the Governor,
when appropriate) liable in their official capacity and not holding
them personally liable for misuse of WIA funds.
Subpart B--State Governance Provisions
1. State Workforce Investment Board: Sections 661.200-661.210
describe the membership requirements and responsibilities of the State
Workforce Investment Board (State Board) and procedures for designating
an alternative entity to perform the functions of the State Board.
Section 661.200(a) requires that the State Board be established by the
Governor. Of course, the Governor must select the members of the State
Board in a nondiscriminatory fashion, in accordance with the
requirements of 29 CFR part 37. A correction is made to paragraph
661.200(i), to correct a cross-reference to provisions in part 662
identifying One-Stop partners.
WIA and these regulations provide significant flexibility to States
and local areas to develop policies, interpretations, guidelines and
definitions relating to program operations under WIA title I. Several
commenters requested that we require that State and local boards
include significant policies and interpretations in the State and local
plans or consult with specified parties when developing these policies
and interpretations. We do not believe we can mandate these
suggestions, but encourage State and local boards to include in the
plans any significant policies and interpretations etc., that are not
already required to be included. Moreover, under Secs. 661.200(j) and
661.305(d), the development of significant policies, interpretations,
guidelines and definitions, as an activity of the boards must be done
in an open manner. To emphasize this requirement, we have moved these
requirements to new Secs. 661.207 and 661.307, and have specified that
the development of significant policies, interpretations, guidelines
and definitions must be conducted in an open manner. We consider
policies and interpretations etc,. relating to eligibility requirements
and self-sufficiency standards to be the type of significant policies
and interpretations etc., that must be developed in an open manner.
One commenter recommended that we require that any newly
established State Board review and/or ratify any policies implemented
by the entity acting as the Board during the State's transition to WIA.
Response: We find this to be a helpful suggestion, but do not
believe it is appropriate to impose it as a mandatory requirement on
States. We believe that an effective State Board will periodically
review State policies as part of its oversight role. It seems natural
that a newly established Board might find the need to reconsider some
of the policies implemented by its predecessor. In that case,
Sec. 661.230(a) provides the State Board with the authority to submit a
modification to the State plan.
The greatest number of comments on part 661 related to State and
Local Board membership requirements. Many of the comments on State
Boards are equally applicable to Local Boards. We have consolidated our
discussion of State and Local Board membership
requirements in the following paragraphs.
We received a large number of comments about the requirement, at
Secs. 661.200(b) and 661.315(a), that at least two or more members of
the State and Local Boards be selected to represent the membership
categories set forth at WIA sections 111(b)(1)(C) (iii)-(v) and
117(b)(2)(A) (ii)-(v), and that the Local Board contain at least one
member representing each One-Stop partner. The comments reflect a
tension between the need to provide States and Local areas with the
flexibility needed to keep these Boards at a manageable size, with the
need for specificity as to what level of participation is guaranteed to
stakeholders in the Workforce Investment system. Many commenters felt
that the two or more member requirement led to large, unwieldy-sized
Boards and requested that this requirement be eliminated. Other
commenters sought clarification of the number of members of each
partner on the Local Board. Many commenters requested clarification
about whether an individual seated on the State or Local Board could
represent more than one entity or institution, particularly when
multiple grantees of a One-Stop partner program are located in a local
area.
Many commenters requested more specificity as to which entities are
entitled to a seat on the Boards. For example, many commenters felt
that the language in the preamble to the Interim Final Rule did not go
far enough in recommending that States consider appointing
representatives from both the designated State unit under section
101(a)(2)(B) of the Rehabilitation Act and from the State agency for
the blind to represent programs that provide vocational rehabilitation
services. These commenters recommended that we amend the regulations to
change this recommendation into a requirement that States appoint
representatives from both of these organizations. Others sought
specific appointment of members representing community-based
organizations (CBO's), mental health agencies, disabled youth and
disabled youth service providers, disabled adults, literacy providers,
non-labor construction workers, and other groups.
Response: In our view, no individual (other than the Governor) or
group is entitled to a ``seat'' on a State or Local Workforce
Investment Board. However, certain specified groups, including One-Stop
partner programs, are entitled to a ``voice'' on the Boards through a
representative.
A partner program may feel that it should have the right to choose
who sits on a State or Local Board as its representative. The
regulations cannot provide this power to the partners, because WIA
gives the authority to select State or Local Board members to the
Governor or chief elected official (CEO), respectively. However, the
Governor's and CEO's discretion to select individuals to serve as
representatives of partner programs and other entities on State and
Local Boards must be exercised in a manner that is consistent with the
requirements set forth in WIA and these regulations. For One-Stop
partner programs, the individual selected as the Local Board
representative may or may not be the specific individual that each
funded entity would prefer, but that individual must be an individual
with ``optimum policy-making authority'' within an entity that receives
funds or carries out activities under the partner program.
We recognize that the representation issue is a legitimate and
serious concern. It is exacerbated by equally legitimate concerns over
Board size, especially at the local level. We encourage as broad a
representation as possible on all WIA Boards, especially representation
of those entities identified as required partners in the Act. We expect
that local workforce investment areas will follow the regulations and
that States will ensure that all required partner programs have
appropriate and effective representation on Local Boards. We encourage
local parties to resolve issues of representation to their mutual
satisfaction, in accordance with the Act and regulations. We view this
generally as a matter of local implementation. We believe that
consultation between Governors or CEO's and partner programs, and other
organizations entitled to representation on the Boards, in the
selection of Board representatives will help to develop positive
relationships leading to more effective delivery of services, and we
encourage such consultations. The final regulations attempt to
facilitate this process by providing Local areas with flexibility for
finding the right mix of representatives on the Local Board, while
ensuring that the Board is an effective policy-making body by
protecting the rights of all participants in the system and by
stressing the requirement that members be individuals with optimum
policy-making authority.
To this end, we have made several changes to the interim final
rule. However, we did not change the requirement that each Board
contain two or more members representing the groups specified in WIA
sections 111(b)(1)(C) (iii)-(v) and 117(b)(2)(A) (ii)-(v). As indicated
in the preamble to the Interim Final Rule, we are constrained by
statutory language to follow this requirement. One commenter suggested
that the provision at 1 U.S.C. 1 may provide justification for a more
flexible interpretation of the membership requirement. While this
provision provides the general rule that statutory reference to plurals
includes the singular, we think that, in this instance, the context of
WIA section 111 and 117, indicates that the term ``representatives''
was intended to mean two or more. The requirement that the Local Board
contain at least one member representing each local One-Stop partner
program is consistent with this interpretation. As is does for the
other membership classes specified at WIA section 117(b)(2)(A) (ii)
through (v), the Local Board must contain two or members representing
the class of One-Stop partner programs identified at section
117(b)(2)(A)(vi). Because each One-Stop system will include many
partners, the requirement that the class is represented by two or more
members will neccesarily be met by one member representing each partner
program. Consequently, we have not changed this requirement.
We have made several changes to clarify what is meant by
representation on the State and Local Workforce Investment Boards. We
have made changes to accommodate the concerns of those commenters who
asked whether an individual seated on the Board could represent more
than one entity or institution. While such ``multiple entity''
representation may not be appropriate in all cases, we believe that
there may be instances when such representation may be an effective
tool for reducing Board size while still ensuring that all parties
entitled to representation receive effective representation. Therefore,
we have added new paragraphs to Secs. 661.200 and 661.315 to permit it
when appropriate. For example, where the same State agency has
authority for several One-Stop partner programs, such as a State
employment security agency which oversees the employment service and
unemployment insurance service, the head of the agency (or other
official with optimum policy-making authority) may be appointed to the
State Board to represent both of these programs. On the other hand,
such ``multiple entity'' representation will not be appropriate where
the individual so appointed does not have authority to make policy for
all of the programs that s/he purportedly represents. For example,
appointing a local business
person, who is a member of a veterans' organization, as representative
of the 41 U.S.C. chapter 38 veterans' program and of local business
and/or the local veterans' organization, will not satisfy the Local
Board membership requirements if the individual does not possess
optimum policy-making authority within the 41 U.S.C. chapter 38 program
and within the veterans' organization and within the business.
Similarly, if the State vocational rehabilitation agency (including the
vocational rehabilitation agency for the Blind) is primarily concerned
with the rehabilitation of individuals with disabilities under section
101(a)(2)(B)(i) of the Rehabilitation Act, then the head of that agency
must represent the vocational rehabilitation program on the State
Board. An individual from any other State agency would not be an
appropriate representative of the vocational rehabilitation program.
We have added a new Sec. 661.203, in which we have defined the
terms ``optimum policy-making authority'' and ``expertise relating to
[a] program, service or activity'' in order to assist States and Local
areas in determining when such representation is appropriate. 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. In the case of a One-Stop partner program,
an individual who does not have ``optimum policy-making authority''
within an entity that receives funds or carries out activities under
the partner program cannot serve as that program's representative on
the Local Board. 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.
Finally, we have added new Sec. 661.317 to clarify representation
when there are several Local grantees or operating entities of a
partner program in a One-Stop system. In such a case, the Local Board
membership requirements may be met by the appointment of one member to
represent all of the Local partner program entities. Also, Sec. 661.317
permits the chief elected official to solicit nominations from One-Stop
partner program entities to facilitate the selection of such
representatives. Soliciting nominations from partner program entities
may be useful to chief elected officials in identifying the individual
who will be able to represent the program most effectively in the work
of the Local Board. Of course, the chief elected official can opt to
appoint more than one member to represent this program, if he or she so
chooses and the selection criteria permit it.
To implement the policy described in the joint letter, dated March
24, 2000, from the Assistant Secretary of Labor for Employment and
Training, the Assistant Secretary of Education for Special Education
and Rehabilitative Services, and the Commissioner of the Rehabilitative
Services Administration regarding Vocational Rehabilitation (VR)
representation on State Boards, we have added a new paragraph (3) to
Sec. 661.200(i). Under this provision, 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 members 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.
Other comments on the State and Local Board membership requirements
questioned the different descriptions relating to the creation of State
and Local Boards, the different processes for selecting the
chairpersons of the Boards, and suggested that we mandate that the
business majority requirement apply to any subcommittees of Boards.
Response: Section 661.200(a) describes the State Board as being
``established'' by the Governor, while Sec. 661.300(a) describes the
Local Board as being ``appointed'' by the CEO. These descriptions are
intended to simply reflect the terms used in the statute and are not
meant to imply an inferior or superior relationship. Section 661.200(g)
provides that the Governor must select a State Board chairperson from
the business representatives on the Board, while Sec. 661.320 provides
that the Local Board members elect a chairperson from the business
representatives. Because these different processes are specified in WIA
sections 111(c) and 117(b)(5), we have not changed the rule. With
regard to the business majority requirement, we agree with the
commenter that a strong role for business representatives is an
essential ingredient for successful Boards, but we do not think it is
appropriate that the regulations should dictate the internal structure
and day-to-day workings of the Boards. Within the framework required by
the statute and regulations, States and localities have the flexibility
to design Boards that best serve their needs.
A commenter suggested that we add sanctions provisions to make
clear that the Governor can refuse to appoint to the State Board a
representative of partners which have not cooperated in good faith with
the One-stop system at the local level.
Response: As the commenter pointed out, Sec. 661.310 addresses this
very issue at the local level. Under this section, one of the sanctions
for a partner failing to engage in good faith negotiations over the
terms of the local MOU is a loss of representation on the Local Board.
We expect that this provision, will be sufficient incentive for Local
Boards and One-stop partners to engage in good faith negotiation. If
experience does not bear this out, we will consider issuing additional
guidance in the future.
A commenter requested that we define the term ``labor federation''
as used in the nomination requirements for labor representatives to the
State and Local Boards, stating ``[i]t is our understanding that [this
term] is intended to include AFL-CIO State Federations, State Building
and Construction Trades Councils, AFL-CIO Central Labor Councils, and
Local Building and Construction Trade Councils.''
Response: We have added to 20 CFR 660.300 a definition of the term
``labor federation'', similar to that used in JTPA, which will include
groups such as those suggested within that term.
2. Alternative Entities: Because many of the comments relating to
alternative entities are applicable at both the State and local levels,
we have consolidated our discussion of this issue here. One commenter
expressed the view that the requirement in Secs. 661.210(c) and
661.330(b)(2), that the State and local plans must describe how the
Boards will ensure an ongoing role for any required membership groups
not represented on an alternative entity, is not supported by WIA.
Response: We find that the ongoing role requirement is a reasonable
interpretation of WIA requirements relating to Board membership and
responsibility. It is clear from the statute that Congress intended
that certain specified groups have a strong leadership role in the
State and local workforce investment systems, as expressed by the
representation requirements. The regulatory requirement that Boards
provide an ongoing role for any of those statutorily identified
entities which are not represented on the alternative entity is
consistent with this intent. The regulation does not specify the scope
of a group's ongoing role, but rather permits States and localities to
determine it as part of the public planning process. Therefore, we have
maintained this requirement. However, as described below, we have made
changes to this regulation to provide guidance as to how the ongoing
role requirement may be met.
There were several comments regarding the provision in
Secs. 661.210(d) and 661.330(c) about changes in the membership
structure of an alternative entity serving as the State Workforce
Investment Board or as a Local Workforce Investment Board. Two
commenters thought that the rule was overly restrictive about
permitting changes to alternative entities and suggested that we revise
the Interim Final Rule to permit incremental changes to these entities
so that at least some of the representational groups required by the
WIA Board membership requirements could be added to existing entities,
or that we permit incremental changes that increase the efficiency and
effectiveness of the workforce investment system. A commenter noted
that in single workforce investment areas states, where the State Board
is acting as the Local Board under WIA section 117(c)(4), the use of an
existing state board under the alternative entity provisions may
exclude even more partners from participation on the board at the local
level.
Response: We are sympathetic to these concerns, but believe that
permitting incremental changes to the boards will, in fact, act as a
disincentive to the creation of Workforce Investment Boards that
include all required representatives, by permitting inclusion of some
groups while still excluding other groups. By requiring the
establishment of a new WIA-compliant Board whenever the membership
structure of an alternative entity is significantly changed, other
excluded groups will be able ``to ride the coattails'' of the newly
added group. Therefore, because we remain committed to the goal of
encouraging fully compliant Workforce Investment Boards in each State
and local workforce investment area, the requirement that a new WIA-
compliant Board must be created when the membership structure of an
alternative entity is significantly changed has not been changed.
However, we have added language to clarify the type of situation in
which the membership structure of an alternative entity is considered
to have been significantly changed. Specifically, 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
Council) are added, or when a member is added to fill a vacancy created
in an existing membership category. A change to the charter is not
itself grounds for disqualification of an alternative entity. The
relevant question is whether the organization or membership structure
has been changed. However, we continue to consider the need for a
change to the charter as a good indicator of a significant change in
the membership structure, and have clarified that this is true
regardless of whether the required change has been made.
Other commenters identified the need for additional guidance as to
what measures an alternative entity must take to ensure an ongoing role
in the State or Local Workforce Investment system for any of the WIA-
specified membership groups who are not represented on the alternative
entity. As discussed below in relation to the Migrant and Seasonal
Farmworker (MSFW) program, commenters have sometimes found that it is
difficult to ensure full and active participation in a One-Stop system
when a partner or other membership group is not represented on an
alternative entity.
Response: To address this problem, we have added language to
Sec. 661.210(c) and have added a new paragraph 661.330(b)(3) to
identify ways in which to ensure such an ongoing role. For example, the
Boards could provide for regularly scheduled consultations, may provide
an opportunity for input into the State or local plan or other policy
development, or may establish an advisory committee of unrepresented
groups. We also require that the alternative entity engage in good-
faith negotiation over the terms of the MOU, with all omitted partner
programs. We have made a change to more clearly identify those groups
which are specified for representation on State and local boards under
WIA but are not represented on the alternative entity as
``unrepresented membership groups''. This replaces the somewhat
ambiguous term ``such groups'' used in the Interim Final Rule.
3. State Workforce Investment Plan Requirements: Section 661.220
describes the requirements for submission of the State Workforce
Investment Plan and the process for review and approval of that plan. A
commenter pointed out that the reference to Wagner-Peyser Act State
Plan modifications in Sec. 661.230(c) was inaccurate. We have edited
Sec. 661.230(c)(2) to reference 20 CFR 652.212. Under her authority to
provide for an orderly transition from JTPA to WIA, the Secretary
permitted States to submit a transition plan during program year 1999
to allow the provision of WIA services with funds appropriated for JTPA
services. Such a plan would be approved for program year 1999, but
would not be considered an approved five-year Workforce Investment
Plan. To reflect this practice, a new paragraph (e)(3) is added to
Sec. 661.220 is added to clarify that a plan that is incomplete or does
not contain sufficient information to determine whether it is fully
compliant with the statutory and regulatory requirements of WIA and the
Wagner-Peyser Act is considered to be inconsistent with these
requirements for plan approval purposes.
A commenter requested that the provision of Sec. 661.230(e)(2)
describing the plan approval process be revised to more clearly
indicate that the portion of the plan describing Wagner-Peyser Act
activities, requirements and delivery of services is an integral part
of the plan and not a separate plan.
Response: We agree and have made the suggested change.
Some commenters remarked that they found that the State Plan
requirements focused on process and compliance rather than on strategic
planning issues.
Response: We believe that the State Plan guidelines seeks the
information needed to support broad strategic planning objectives while
ensuring compliance with the statutory requirements. We acknowledge
that it is difficult to balance these two goals. Based upon our
experience with early implementing States, we hope to amend the
planning guidelines to streamline them, but remain committed to
requiring that States submit the information we need to assess whether
the plan complies with the statute and regulations.
We received several comments on the need for specific public
comment periods for State Plans, consistent with Local Plan
requirements. Others felt that modifications as well as planning
documents should be subject a public comment period.
Response: We intend that the information contained in the State
Plan be subject to the broadest possible stakeholder involvement in
policy development and the broadest possible range of public comment.
The Interim Final Rule, at Sec. 661.230(d) already requires that plan
modifications undergo the same public review and
comment as the State plan. The Workforce Investment Act State planning
guidelines set forth the information needed for the Secretary to make
an informed judgment about whether a State Plan is consistent with WIA,
and the plan review process requires evidence of a public comment
period. We have clearly stated the need for an open and inclusive
planning process at both the State and local levels and we expect the
States to establish the appropriate time lines and procedures.
Consequently, no change in the rule is being made at this time,
although we will carefully review State plans for compliance with the
WIA public comment requirements.
Commenters suggested that we change Sec. 661.220(d) to require that
States submit to us all oral and written comments made during the
public comment process, including comments made on drafts, and
responses to those comments, that we review the responses as part of
our plan review process, and that we specify that failure to actively
consult with local areas is grounds for plan disapproval. Other
commenters suggested that we mandate a 30-day review period as part of
the State plan public comment process.
Response: Based upon our review of plans submitted by early
implementing States, we have found that requiring submission of
comments on State plans does not significantly help the plan review
process. Given the short time period for plan review and approval, we
are unable to provide any meaningful review to comments submitted with
the plan. We do not think it is necessary to impose a mandatory public
comment period on the States. We expect that States will undertake a
good faith effort to develop State plans through a meaningful public
process. We believe that our review of the State plan's description of
the process will enable us to ensure that the State planning process
complies with this requirement. A failure to develop the plan through
the public comment and consultation process described in the
regulations could be grounds for plan disapproval under the existing
standards. No change has been made to the regulation.
Section 661.240 contains provisions relating to unified plans,
submitted under the authority of WIA section 501. On January 14, 2000,
the Department, in partnership with the Departments of Agriculture,
Education, Health and Human Services, and Housing and Urban
Development, and with the assistance of the Office of Management and
Budget, issued joint unified planning guidance entitled State Unified
Plan, Planning Guidance for State Unified Plans Submitted Under Section
501 of the Workforce Investment Act of 1998. This document was
published in the Federal Register at 65 FR 2464 (Jan. 14, 2000). We
have revised Sec. 631.240(b) to add a new paragraph (2), that
specifically provides that States may submit unified plans that contain
the information required in the unified planning guidance in lieu of
the individual planning guidelines of the programs covered by the
unified plan.
One commenter remarked that the unified planning guidelines were
too narrowly focused to lead to effective unified planning. Other
comments on Sec. 661.240 requested that we hold unified plans to the
same public review and comment requirements as required of standalone
WIA State plans, that we explain how to resolve different planning
timetables for programs included in the unified plan, and that we
provide incentives to encourage States to submit unified plans.
Response: We believe that the unified planning guidance is an
important first step towards collaborative planning and effective
coordination of federal programs. Currently, it is the only planning
approach that streamlines existing non-statutory planning requirements.
We believe these streamlined planning requirements offer an incentive
encouraging States to undertake unified planning. While it may not go
as far as some would like, we believe that, as the Federal partners
work with the States to acquire more experience with unified planning,
we will be able to develop alternative approaches that could offer even
greater flexibility and burden reduction.
With regard to the substantive comments on Sec. 661.240, WIA
section 501(c)(1) provides that the portion of the unified plan
covering a particular program or activity is still subject to the
applicable planning requirements of the statute that authorizes the
program. Therefore, for unified plans containing the State WIA/Wagner-
Peyser Act plan, the WIA plan review and public comment requirements,
at Sec. 661.220(d) still apply. Similarly, while the WIA/Wagner-Peyser
Act portion of the unified plan is submitted on a five-year planning
cycle, the inclusion of a plan on a different planning cycle does not
change the plan for that program to a five-year plan. We believe that
the time saved through joint planning is itself a strong incentive
towards engaging in unified planning. Joint planning also benefits
States by leading to an improved use of State and Federal resources,
increased coordination at the local level, and burden reduction through
elimination of duplicate planning processes. These and other benefits
of unified planning are discussed in the unified planning guidance at
65 FR 2464, 2468.
4. Local Workforce Investment Area Designation Requirements:
Sections 661.250 through 661.280 discuss the requirements applicable to
the designation of local workforce investment areas (local areas).
Section 661.250 sets forth the process for designating local areas.
Commenters noted that this section did not refer to the provision, at
WIA section 116(b), that permits Governors of States which were single
service delivery area States under JTPA, as of July 1, 1998, to
designate the State as a single local workforce investment area.
Response: We interpret section 116(b) as limiting single local area
designations to only those States which were designated as a single
service delivery area State under JTPA, as of July 1, 1998. Section
661.250 is revised to by adding a new paragraph (d) to specifically
authorize Governors of States which were single service delivery area
States under JTPA, as of July 1, 1998, to designate the State as a
single local workforce investment area.
A commenter noted that the applicability of the automatic local
area designation provisions for units of general local government of
500,000 or more may depend upon the population statistics used in
making designations. An area may or may not be found to meet this
threshold population level depending on whether 1990 Census data or
more up-to-date estimates are used. The commenter suggested specifying
certain data, or specifically delegating the authority to determine
which data to use to the Governor.
Response: While we do not believe it is appropriate that we specify
the source of the data to be used in the regulations, we agree with the
suggestion to specify that the Governor has the authority to determine
which population data to use when making designation determinations.
Section 661.260 is amended to make this clear.
A commenter noted that Sec. 661.280(c) provides that, on appeal of
a denial of a request for designation, the Secretary can require that
an area be designated solely upon her finding that the area was not
afforded the procedural rights guaranteed by the statute. The commenter
suggested that, in that instance, a finding that the area meets the
requirements for designation should also be required before the State
can be ordered to designate the area.
Response: We think that Sec. 661.280(c) accurately restates the
provisions of
WIA section 116(a)(5) that the Secretary may require designation upon a
finding of either a denial of procedural rights or a finding that the
area meets the requirements for designation. No change has been made to
the regulation.
Section 661.290 describes the State's authority to require regional
planning by Local Boards. Paragraph (d) of this section provides that
regional planning may not substitute for or replace local planning
unless the Governor and all the affected CEO's agree to the
substitution or replacement. A commenter opined that WIA does not give
the Department the authority to undermine the State's authority to
require regional planning in this way.
Response: We do not agree that this regulation impermissibly
undermines the State's authority. Section 661.290(a) is consistent with
WIA section 116 by providing the State with authority to require Local
Boards to participate in a regional planning process. The agreement of
the local areas is not required for this. Requiring local area
agreement before regional planning can replace local planning may
reduce the ability of the State to unilaterally impose effective
regional planning, since the regional planning may overlap or duplicate
local planning. However, we believe that this provision fairly balances
the rights of States and localities. In our view, the most effective
regional planning will occur when all parties in the region are
committed to cooperating with one another.
Subpart C--Local Governance Provisions
This subpart covers the designation of Local Workforce Investment
areas and the responsibilities and membership requirements of Local
Boards. Because many issues relating to Local Boards and alternative
entities are equally applicable at the State and local level, comments
on these issues are discussed above, under subpart B.
1. Responsibilities of Chief Elected Officials: Section 300(a)
requires chief elected officials to appoint the Local Board in
accordance with State criteria established under WIA section 117(b).
Appointments to the Local Board must be made in a nondiscriminatory
fashion, in accordance with the requirements of 29 CFR part 37. A few
commenters found the provision in Sec. 661.300, authorizing the Local
Board and the chief elected official(s) in a local area to enter into
an agreement that describes the respective roles and responsibilities
of the parties to be confusing in light of the statement in 20 CFR
667.705 regarding liability of funds in local areas comprised of more
than one unit of general local government.
Response: Under 20 CFR 667.705, when a local area is comprised of
more than one unit of general local government, the liability of the
individual jurisdictions for funds provided to the local area must be
specified in a written agreement between the chief elected officials.
This is a mandatory provision. The agreement authorized in
Sec. 661.300(c) regarding a description of general roles and
responsibilities is optional. Chief elected officials are not required
to enter into such an agreement, but the agreement may be a useful tool
for specifying the division of duties among the chief elected officials
in the local area. No change has been made to the regulations.
A few commenters asked for clarification as to what extent a chief
elected official(s) may delegate their responsibilities under title I
of WIA.
Response: In general, the chief elected official(s) is authorized
to delegate their authority under title I of WIA to other entities such
as the Local Board or a local governmental agency. In multiple
jurisdiction local areas, the chief elected officials may delegate
certain roles as part of the agreement authorized in Sec. 661.300(c),
as discussed above. For example, WIA section 117(d)(3)(B)(i)(II)
specifically authorizes the chief elected official(s) to designate an
entity to serve as a local fiscal agent in order to assist in the
administration of grant funds at the local level. Similarly, the chief
elected official(s) may designate an entity to carry out their other
responsibilities. Under Sec. 661.300(c), the chief elected official(s)
may enter into an agreement with the Local Board that describes the
respective roles and responsibilities of the parties. However, the
chief elected official(s) remains liable for funds received under title
I of WIA unless they reach an agreement with the Governor to bear such
liability. This is the only situation in which the chief elected
official(s) is not liable for funds.
Some commenters requested a clarification of the role of the chief
elected official as a One-Stop partner.
Response: This issue is addressed in the preamble to 20 CFR part
662.
2. Local Boards as Service Providers: Section 117(f)(1) of WIA
places limitations on Local Boards' direct provision of core services,
intensive services, or training services. These limitations and waivers
of the limitation on providing training services are set forth in
Sec. 661.310. Commenters noted that Sec. 661.310(b) permits a waiver of
the prohibition on providing training services to be renewed only once.
Response: This limitation was inadvertent. We have revised this
paragraph to indicate that a waiver may be renewed more than once,
although no waiver may be for more than one-year at a time.
A commenter opined that the provision in Sec. 661.310(c) that
extended the service delivery restrictions of the Local Board to the
staff of the Board is not supported by WIA.
Response: We don't agree that this provision is inconsistent with
WIA. The limitation on the Local Board's authority to be a service
provider in Sec. 661.310(c) is meant to ensure that the Local Board
serves as the ``board of directors'' for the local area. This frees the
Board from the day-to-day functioning of the local workforce system and
allows the Local Board to focus on strategic planning, policy
development and oversight of the system. To permit the staff of the
Local Board to provide direct services on behalf of the Board would
undermine this principle.
However, we read the service delivery limitations in WIA section
117 as applying to the Local Board as an entity and not to the members
of the Board as individuals. Therefore, members of the Local Board may
not provide services in their capacity as a member of the Board.
However, if an individual member of the Board is also an employee of a
service provider, then as an employee of that service provider entity
s/he may provide services on behalf of that entity. Of course, this
must be consistent with federal, state and local conflict of interest
requirements. The same rules apply to the staff of the Local Board.
Members of the Local Board's staff may also be employees of the entity
administering the local area's WIA grant. We acknowledge that many
local areas use staff from inter-related agencies to provide support to
the Local Board as well as the administrative entity for the grant
recipient. When these roles are clearly defined, the fact that an
individual works for both the Local Board and the entity administering
the WIA grant does not preclude the entity from providing services.
3. Youth Council: Sections 661.330 and 661.335 describe the
membership requirements and responsibilities of the Youth Council.
Commenters suggested that we amend this section to require that
representatives of vocational rehabilitation agencies and members with
experience in nontraditional training employment for women be selected
for the Youth Council.
Response: We have not made the suggested change, because we do not
believe it is appropriate to specify certain groups for Youth Council
membership beyond those provided by statute. However, we agree that the
viewpoint of these groups could serve the Youth Council well. We
encourage chief elected officials to consider appointing such
representatives under the existing Youth Council membership categories.
One commenter suggested changes to Sec. 661.335(b)(4) which lists
``parents of eligible youth seeking assistance under subtitle B of
title I of WIA'' as required members of the youth council. The
commenter expressed a fear that it will be difficult to find parents of
participants and former participants who will be likely to make a
positive contribution to the youth council. The commenter asked whether
a local area will be penalized if it is unable to find parents and
participants to serve on the youth council and suggests changing
Sec. 661.335(b)(4) to read ``parents, that may include those of
eligible youth seeking assistance. . . .''
Response: We recognize the commenter's concern, however, the
regulation restates the language of WIA section 117 (h)(iv) and (v).
Therefore, these membership categories have been statutorily mandated
by Congress. We do not interpret the statutory standard to limit youth
council membership to parents of youth participants. Section 117(h)(iv)
of the Act requires the youth council to include members who are:
``parents of eligible youth seeking assistance under this subtitle.''
This statutory phrase is somewhat confusing, since it could be read as
requiring parents of eligible youth seeking assistance rather than
parents of participants who are receiving assistance. We interpret this
language to mean that the representatives for this membership category
must come from families who currently experience the barriers described
in WIA section 101(13)(A) and (B), and in Secs. 664.200 or 664.220, or
who have faced those barriers in the past. This interpretation allows
those families who have successfully overcome their barrers to
education and employment to have a voice on the youth council. We
believe that it is important that youth councils include the views of
parents, especially the views of parents of youth participating in WIA
youth programs. We feel it is important that the representatives for
this membership category possess a first-hand understanding of the
needs and barriers facing eligible youth and strongly encourage chief
elected officials to seek out parents of WIA youth participants. Just
as the Individual Training Account system in the adult and dislocated
worker programs empowers the customer to take an active role in the
training process, these membership categories empower the families most
affected by youth services to take an active role in designing and
improving the system. This interpretation, of course, does not prohibit
the appointment of other parents in the community under WIA section
117(h)(2)(B), which authorizes the appointment of ``other individuals
as the chairperson of the Local Board, in cooperation with the chief
elected official, determines to be appropriate.''
Similarly, this commenter also requested a change to
Sec. 661.335(b)(5), which lists ``Individuals, including former
participants, and members who represent organizations that have
experience relating to youth activities'' as required members of the
youth council. The suggestion would have Sec. 661.335(b)(5) state
``individuals, that may include former participants, and members who .
. .'' We have not made the commenter's change because the regulation
already uses the phrase ``individuals, including former participants .
. . .''
4. Local Workforce Investment Plan: Sections 661.345 through
661.355 describe requirements relating to the submission and
modification of local workforce investment plans.
A commenter disagreed with the provision, in Sec. 661.345(c), that
the Secretary performs the roles of the Governor in reviewing the local
plan developed in a single local workforce investment area State,
particularly regarding the review of the MOU's. The commenter compared
this process with the process in other States where the Governor
reviews locally developed MOU's submitted as part of the local plan.
The commenter emphasized that development and review MOU's should
remain as close as possible to the local level.
Response: We agree that successful implementation of the One-Stop
system in a single local workforce investment area State requires
strong local involvement. MOU's should be developed at the local level.
Section 661.350(c)(3) facilitates local involvement by ensuring that
the local chief elected officials in those States retain their roles in
the system. However, we believe that an independent review of local
plans is necessary. In a single workforce investment area State, where,
in essence, the State itself is the local area, we believe it is
appropriate that the Secretary undertake the role of providing
independent review of the local plan for the State. Since the MOU's are
required to be included in the local plan, the Secretary's review will
include review of the MOU's. No change has been made to the regulation.
With regard to the required local plan contents of Sec. 661.350,
several commenters suggested that we encourage States to require
additional items, such as a comprehensive assessment of activities in
the local area, a description of services available to displaced
homemakers, disadvantaged individuals and to other groups, a
description of nontraditional training and employment activities, a
local plan for the provision of supportive services, and to use a
``sectoral approach'' to link the needs of employers with the skills of
workers.
Response: The authority to require additional items in local plans,
beyond the requirements specified in Sec. 661.350, lies with the
Governor. We encourage Governors to consider the suggested items when
establishing those requirements.
A commenter requested that we add language to
Sec. 661.350(a)(3)(ii) to authorize the submission with the plan of a
status report on MOU's when some MOU's are still in negotiation. The
commenter stated that it appears that it will take some time to
negotiate all the necessary MOU's and asks that we recognize this and
permit the plan process to move forward.
Response: We recognize that the commenter may have a valid point.
Our experience with early implementing States has shown that the
negotiation of MOU's can be an involved process. However, because the
MOU's are the primary means for coordinating the services of the One-
Stop partners, they are the foundation of the entire workforce
investment system. The MOU's address issues with the partners such as
which services each partner will provide through the One-Stop system,
how the costs of the system will be allocated among the partners, how
customers will be referred by the One-Stop operator to the appropriate
partner, among others. Because the resolution of these issues forms the
building blocks of the One-Stop system, we are not prepared to change
the regulation at this time. We strongly encourage States and
localities to take the necessary steps to ensure that the negotiation
of these important documents will be done in a timely manner. However,
in recognition of the fact that some local areas may need additional
time to develop a fully approvable local plan, we have added a new
Sec. 661.350(d), authorizing Governors
to approve local plans on a transitional basis during program year
2000. Governors may use this authority to give transitional approval to
local areas that have not finalized their MOU's or other elements of
their plan. Such a conditional approval is considered to be a written
determination that the local plan is not approved, but will allow
implementation of WIA reforms as they finalize the transition from JTPA
to WIA. This authority is similar to, and derives from, the Department
of Labor's authority under WIA sec. 506(d), to approve incomplete State
plans on a transitional basis.
There were a few comments about the requirements for local plan
modifications at Sec. 661.355. One commenter suggested that we drop, as
unnecessary, the requirement in Sec. 661.355 that the Governor
establish procedures for modification of local plans.
Response: While the commenter may be correct that Governors already
know their responsibilities so this regulation is not needed, we
believe that there is value in clearly specifying the responsibility to
establish these procedures so that it is not inadvertently overlooked.
A commenter suggested that we amend the illustrative list of the
circumstances when a local plan modification may be required by the
Governor, at Sec. 661.355, to include changes to the membership
structure of the Local Board among those circumstances.
Response: The regulation as written already includes this factor.
The conditions under which a State plan modification is required, in
Sec. 661.230(b), also include changes to the membership structure of
the State Board.
Another commenter asked, regarding one of the existing
circumstances in which a local plan modification may be required--at
what point is a ``change in the financing available to support WIA
title I and partner-provided WIA services'' significant enough to
warrant a modification?
Response: When developing the local plan modification procedure
under Sec. 661.355, this is one of the questions the Governor should
consider. The answer is likely to be different for different states and
possibly for different areas. We do not think it is appropriate to
restrict the Governors' authority by setting a federal standard.
Subpart D--General Waivers and Work-Flex Waivers
Subpart D indicates the elements of WIA and the Wagner-Peyser Act
that may and may not be waived under either the general waiver
authority of WIA section 189(i) or the work-flex provision at WIA
section 192. In response to comments, we have made a technical
correction in Sec. 661.420, changing paragraph (g) to (f).
We received several comments about the exceptions to the
Secretary's waiver authority, described at Sec. 661.410, and work-flex
waiver authority, described at Sec. 661.430. Commenters requested that
the regulation be amended to specify that the Secretary will not
approve waivers of title I of the Rehabilitation Act, nor of the State
merit staffing requirements of the Wagner-Peyser Act, and deleting the
Older Americans Act from work-flex waiver authority.
Response: Regarding the Rehabilitation Act, the regulations make
clear that the Secretary's authority to approve waiver requests is
limited to requests for waiver of certain provisions of WIA and the
Wagner-Peyser Act. We cannot waive provisions of other statutes. While
we are not making the suggested change, we wish to make clear that the
Department does not intend, nor do we have authority to entertain or
grant waivers of title I of the Rehabilitation Act. Similarly, an
exception for the Wagner-Peyser Act State merit staffing requirement is
not necessary. Our authority to waive Wagner-Peyser Act provisions is
limited to requirements under sections 8 through 10 of that Act. The
requirement that Wagner-Peyser Act services be provided by State merit
staff employees derives from sections 3 and 5(b)(1) of the Wagner-
Peyser Act. Accordingly, we do not intend to, nor do we have authority
to entertain or grant waivers of the Wagner-Peyser Act merit staffing
requirement. Finally, we have retained the authority for Governors to
approve waivers of certain provisions of the Older Americans Act,
because WIA section 192(a)(3) specifically provides that authority.
Other commenters suggested that we define the existing exception
prohibiting waivers of provisions relating to worker rights,
participation and protections to prohibit waivers of provisions
relating to labor nominations and appointments to State and Local
Boards, opportunities for comment on State and local plans, and the
certification process for eligible training providers. The commenters
also requested that States be required to establish a public comment
process, that includes comment from organized labor, on proposed
waivers and a work-flex plan; and asked that we conduct periodic
evaluation of the impact of waivers and work-flex activities.
Response: We have not added the suggested definition of the worker
rights, participation and protection exceptions. First, we do not agree
that the suggested provisions fall within the scope of the worker
rights, participation and protection exceptions. Secondly, we do not
think it is appropriate to define the scope of these provisions by
regulation and believe it will be more effective to deal with waiver
requests as they occur. On the other hand, we believe that requests for
waivers of the provisions suggested by the commenters will likely fall
within other exceptions to waiver authority. Section 661.410(a)(9)
excludes waivers of requirements relating to procedures for review and
approval of plans, which would exclude a waiver of the public comment
requirements for State and local plans. Provisions related to the
establishment and function of Local Boards may not be waived. This will
prohibit waivers of the nomination and appointment requirements for
Local Boards. The eligible training provider requirements seem to fall
within the key principles of empowering individuals and increasing
accountability identified at Sec. 661.400(b)(2) and (4). Provisions
relating to the key principles may not be waived under Work-flex
authority, and will only be waived by the Secretary in extremely
unusual circumstances when the provision can be demonstrated to be
impeding reform.
We agree with the commenters' suggestion regarding the public
comment process for waiver plans and work-flex plans. Section
661.430(e) already requires that the State work-flex plan undergo a
public comment process, similar to that of the State five-year plan.
While WIA section 189(i) does not specifically require that a stand-
alone waiver plan go through a similar process (a waiver plan included
within the State five-year plan would undergo public review along with
the rest of that plan), the requirement for Local Board comment on the
waiver plan at WIA section 189(i)(4)(B)(v) and the sunshine provisions
for State and Local Board activities at WIA sections 111(g) and 117(e)
indicate clear Congressional intent that major decisions involving the
workforce investment system be made in a public and open manner. In our
view, the decision to request a waiver of statutory or regulatory
requirements is such a major decision. Accordingly, we have revised
Sec. 661.420(a)(5), to require a description of the process used to
ensure meaningful public comment, including comment by business and
organized labor, on the State waiver plan. Finally, we agree on the
need for evaluation of the waiver process. Although, we have not yet
made specific plans for such a review, we intend to do so in the future.
Part 662--Description of the One-Stop System Under Title I of the
Workforce Investment Act
Introduction
The establishment of a One-Stop delivery system for workforce
development services is a cornerstone of the reforms contained in title
I of WIA. This delivery system streamlines access to numerous workforce
investment and educational, and other human resource services,
activities and programs. The Act's requirements build on reform efforts
that are well established in all States through the Department's One-
Stop grant initiative. Rather than requiring individuals and employers
to seek workforce development information and services at several
different locations, which is often costly, discouraging and confusing,
WIA requires States and communities to integrate multiple workforce
development programs and resources for individuals at the ``street
level'' through a user friendly One-Stop delivery system. This system
will simplify and expand access to services for job seekers and
employers.
The Act specifies nineteen required One-Stop partners and an
additional five optional partners to coordinate activities and
streamline access to a range of employment and training services. WIA
requires coordination among all Department of Labor funded programs as
well as other workforce investment programs administered by the
Departments of Education, Health and Human Services, and Housing and
Urban Development. WIA also encourages participation in the One-Stop
delivery system by other relevant programs, such as those administered
by the Departments of Agriculture, Health and Human Services, and
Transportation, as well as the Corporation for National and Community
Service. In addition, local areas are authorized to add additional
partners as local needs may require. All of the Federal Agencies will
continue to work together to ensure effective communication and
collaboration at the Federal level in support of One-Stop service
delivery.
Subpart A--One-Stop Delivery System
1. Structure: Subpart A describes the structure of a One-Stop
delivery system. Section 662.100, describes the One-Stop system as a
seamless system of service delivery created through the collaboration
of entities responsible for separate workforce development funding
streams. The One-Stop system is designed to enhance access to services
and improve outcomes for individuals seeking assistance. The regulation
specifically defines the system as consisting of one or more
comprehensive, physical One-Stop centers in a local area. Core services
specified in WIA section 134(d)(2) must be provided at the One-Stop
center as must access to the other activities and programs provided
under WIA and by each One-Stop partner. In addition to the statutory
list of core services, States and locals are encourated to add
additional core services such as the provision of information relating
to the availability of work supports, including, Food Stamps, Medicaid,
Children's Health Insurance Program, child support, and the Earned
Income Tax Credit. In locating each comprehensive center, Local Boards
should coordinate with the broader community, including transportation
agencies and existing public and private sector service providers, to
ensure that the centers and services are accessible to their customers,
including individuals with disabilities.
In addition to the comprehensive centers, Sec. 662.100(d) describes
three other arrangements to supplement the comprehensive center. These
supplemental arrangements include: (1) A network of affiliated sites
that provide one or more of the programs, services and activities of
the partners; (2) a network of One-Stop partners through which the
partners provide services linked to an affiliated site and through
which all individuals are provided information on the availability of
core services in the local area; and (3) specialized centers that
address specific needs. In essence, this structure may be described as
a ``one right door and no wrong door'' approach. One-Stop partners have
an obligation to ensure that core services that are appropriate for
their particular populations are made available at one comprehensive
center, and through additional sites, as described in the local plan
and consistent with the local memorandum of understanding (MOU). If an
individual enters the system through one of the network sites rather
than the comprehensive One-Stop center, the individual may obtain
certain services at the network site and must be able to receive
information about how and where the other services provided through the
One-Stop system may be obtained.
Some commenters expressed concern that the description in
Sec. 662.100 emphasizes physical locations rather than the development
of systems. The commenters suggested that the regulations be expanded
to provide that, in addition to the comprehensive center, it is
expected that local areas will build a One-Stop system by developing
affiliate relationships with existing public and private sector
providers. The commenters further suggested that more examples should
be offered as to how the centers and affiliates may mix and match
services.
Response: The purpose of Sec. 662.100 is simply to describe the
general objectives of the One-Stop system and to identify the required
components of that system as well as the alternative designs specified
in WIA. While we agree that effective networks connecting the centers
and affiliates will generally be critical to the success of the One-
Stop system, WIA allows local areas significant flexibility in
tailoring the design of the system to best meet local needs. Therefore,
rather than include examples as part the requirements of this
regulation, we will disseminate information and provide technical
assistance about how different local areas have designed effective One-
Stop systems.
Commenters also requested clarification that physical co-location
at the centers was not required for all of the services provided by a
partner's program and that each partner was not required to be co-
located at the centers.
Response: The description of the One-Stop system in Sec. 662.100
and the requirements for the provision of services at the centers in
Sec. 662.250 make it clear that WIA requires the provision of specified
core services at the centers. However, Sec. 662.250(b) specifically
provides that the core services may be provided at the centers by the
partners in a variety of ways, including agreements with service
providers at the centers to provide the core services or the provision
of appropriate technology, as alternatives to the co-location of
personnel. The extent to which services in addition to the specified
core services are provided at the centers and how services are to be
provided are matters to be addressed in the local MOU's, and are not
specified by WIA. We believe the current provisions are clear on these
issues and have not made changes to the regulations.
Some commenters also expressed concern that the description of the
One-Stop system did not address access for individuals with
disabilities, and suggested that we reiterate the applicability of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973 to the One-Stop system.
Response: Section 667.275(a)(3) specifically states that the ADA
and Section 504, as well as the nondiscrimination provisions of WIA
section 188, are applicable to the One-Stop system as well as the other
activities administered under title I of WIA. We believe that, as with
other uniform requirements, adding this statement to every affected
section of these regulations would be duplicative and potentially
confusing. The Department's regulations implementing the
nondiscrimination provisions in WIA section 188 (29 CFR part 37)
extensively address this issue.
Subpart B--One-Stop Partners
1. Responsibilities: Subpart B identifies the One-Stop partners and
their responsibilities in the One-Stop delivery system. The required
partners are entities that carry out the workforce development
programs. They are specifically identified in section 121(b)(1) of WIA
and Sec. 662.200. Section 662.200(b)(1)(i through vii) separately
specifies the programs under title I that are included as required
partners. Section 662.200(b)(2)-(12) also identifies the other required
programs, with some clarification of the particular provisions of
certain Acts (for example, the Vocational Rehabilitation Act and the
Carl D. Perkins Act) that authorize the required partner program.
Section 662.210 identifies additional partners that may be a part of
the One-Stop system.
One commenter suggested that the Governor has the authority under
WIA to require that additional partners be included in all the local
One-Stop delivery systems in the State and asks that the regulation
include such authority. The commenter cites section 112(b)(8)(A) of
WIA, which requires the State to describe in the State plan procedures
to assure coordination and avoid duplication among specified programs,
and section 117(b)(1) of WIA, which provides that the Governor
establish criteria for the appointment of members of local boards, as
the basis for this authority.
Response: We agree that the provisions cited by the commenter
authorize the State to require that additional partners participate as
partners in all of the One-Stop systems in the State. This includes the
program specified in WIA section 121(b)(2)(B)(i) through (iv) or any
other appropriate program under WIA section 121(b)(2)(B)(v). We have
added a new section 662.210(c) to clarify that the State does have this
authority. The State's authority to identify additional partners to be
included in all One-Stop systems does not affect the CEO's authority to
include locally-identified human resource programs as One-Stop
partners. Under WIA section 121(b)(2), the CEO and Local Board may
approve any appropriate Federal, State or local program, including
programs in the private sector, for participation as a partner in the
local One-Stop system.
Entities--Section 662.220 provides a general definition of the
``entity'' that carries out the specified programs and serves as the
partner. In light of the responsibilities of the partners, which are
described in Sec. 662.230 and which include decisions about the use and
administration of program resources, the regulation defines the
``entity'' as the grant recipient or other entity or organization
responsible for administering the program's funds in the local area.
The term ``entity'' does not include service providers that contract
with or are subrecipients of the local entity. Section 662.220(a)
provides that for programs that do not have local administrative
entities, the responsible State agency should be the One-Stop partner.
In addition, Sec. 662.220(b) (1) and (2) specifies the appropriate
entities to serve as partner for the Adult Education and Vocational
Rehabilitation programs. Entities that serve as the partner under the
Indian and Native American, Migrant and Seasonal Farmworker, and Job
Corps programs are identified in the parts of the regulations
applicable to those programs (parts 668, 669, and 670 respectively).
One commenter requested two clarifications about the partner
representing the Adult Education and Literacy programs under title II
of WIA. First, while the regulation specifies that the partner for
those programs is the State eligible entity or an eligible provider
designated by the State entity, the commenter suggested adding
authority for the State entity to designate a consortium of eligible
providers as the partner. Second, the commenter suggested clarifying
that the State eligible entity also has the authority to designate the
individual representing the partner on the local boards, not just the
entity.
Response: We agree that the State eligible entity may designate a
consortium of eligible providers to serve as the local One-Stop partner
and have modified the regulation to clarify this authority. However, we
assume that any consortium so designated would have mechanisms in place
so that it speaks with one voice on behalf of Adult Education and
Literacy programs on issues affecting the One-Stop system. We would not
expect that the designation of a consortium would require the Local
Board to separately negotiate with each member of the consortium about
how the responsibilities of the partner will be carried out.
The second issue is addressed in the preamble discussion of 20 CFR
part 661.
Another commenter noted that Sec. 662.220(b)(3) only defines
national programs under title I of WIA as required partners if such
programs are present in the local area and suggested that the
regulation apply the same condition to the other required partners.
Response: We agree that the responsibilities of a required partner
apply in those local areas where the required partner provides
services. We do not believe WIA was intended to require programs not
serving local areas to begin to provide services in such areas, but
instead to require collaboration through the One-Stop system in any
local area in which such services are provided. While we believe that
the vast majority of local areas are currently served by the required
partner programs, the regulation is modified to clarify this
requirement.
Several commenters also noted that several of the programs
identified as required partners may be administered by the same entity
in the State or local area and the regulation should indicate that one
individual from that entity may represent all such programs on the
local board.
Response: This issue is addressed in the preamble discussion of 20
CFR part 661.
Partner Responsibilities--Section 662.230 describes and elaborates
on the statutory responsibilities of the partners and identifies the
five provisions of the Act that describe these responsibilities. These
responsibilities include: (1) Making available through the One-Stop
system appropriate core services that are applicable to the partner's
program; (2) using a portion of funds available to the partner's
program, to the extent not inconsistent with the Federal law
authorizing the program, to create and maintain the One-Stop delivery
system and to provide core services; (3) entering into an MOU regarding
the operation of the One-Stop system; (4) participating in the
operation of the One-Stop system; and (5) provide representation on the
Local Board.
Several commenters expressed concerns about the required use of a
portion of the partners' funds to support the One-Stop system. Some
commenters suggested that certain authorizing laws, such as the Perkins
Vocational Education Act, would not permit such
use. Other commenters suggested that since the WIA statutory language
requires that partner funds be used to ``establish'' the One-Stop
system, the regulatory requirement be limited to initial start-up of
the system and not include any responsibility to use funds to
``maintain'' the system. In addition, some commenters were concerned
about whether we could enforce the use of funds requirement and
suggested that unless the partners contributed real resources, the
overall WIA vision would not be achieved.
Response: WIA section 134(d)(1)(B) specifically requires all of the
required partners to use a portion of their funds to support the One-
Stop system. We believe the language providing that the use of the
partners' funds not be inconsistent with the authorizing law may affect
the particular One-Stop activities the partner may support, but is not
intended to nullify this requirement. Several of the core services
(e.g., outreach) are authorized under all programs, and each partner
should collaborate to ensure that the local One-Stop system is
providing workforce investment activities that are of benefit to
participants in the partner's program. A portion of the partner's funds
is then used to support the system in providing those activities. The
details of the particular portion and use of those funds are to be
addressed in the MOU. These issues are further addressed in the
subsequent regulatory provisions of this subpart.
With respect to the responsibility to assist in maintaining the
system, we believe that the requirement in Sec. 662.230(a)(2)(i) that a
portion of funds be used to ``create and maintain'' the One-Stop system
is the appropriate interpretation of the statutory requirement in WIA
section134(d)(1)(B) that a partner use a portion of funds to
``establish'' the One-Stop delivery system. There is nothing in WIA or
the legislative history to suggest that ``establish'' refers to a one-
time start-up activity. To the contrary, all of the partners'
responsibilities apply as long as the One-Stop system is in operation
and include participation in the operation of the One-Stop system (WIA
section121(b)(1)(B)) and carrying out the MOU that includes the details
on the funding of the system (WIA sec. 121(c)). We do not believe that
Congress intended that the partners continue to participate in the
operation of the one-stop system, but that their responsibility to use
funds to support that system terminate as soon as some undefined start-
up period is completed. Rather, we believe the only reasonable
interpretation is that a required partner's responsibility to use a
portion of funds to support the system continues along with the
participation of the partner in the system. Therefore, we have not
changed this provision of the regulations.
With respect to enforcement of these requirements, we are working
with the other Federal agencies to ensure that all partner programs are
aware of and carry out these requirements. We believe that full
participation in the One-Stop system will be of great benefit to the
partners' programs and to their participants, and, therefore, these
requirements should be viewed as promoting a comprehensive and
effective system of service delivery for each local area.
Section 662.240 addresses the core services applicable to a
partner's program that are to be provided through the One-Stop system.
Section 662.400(a) lists the core services that are described in
section 134(d)(2) of WIA, and defines ``applicable'' to mean the
services from that list that are authorized and provided under the
partner programs. The extent to which core services are applicable to a
partner program, as well as the manner in which services are provided,
are determined by the program's authorizing statute.
Some commenters suggested we further define many of the listed core
services. For example, one suggestion was to require career counseling
to include a discussion of self-sufficiency standards to assist in
setting long-term employment goals. Another suggestion was to require
additional employment statistics information relating to high wage jobs
and employment laws. Other suggestions included adding computer
literacy to the initial assessment, and information relating to
employment rights to follow-up services.
Response: We believe many of the proposed elements would enhance
the provision of services. However, we believe they should be
disseminated as technical assistance rather than as regulatory
requirements. The purpose of this provision is to identify the list of
core services contained in the statute that must be made available
through the One-Stop system. The specific elements of these services is
a matter that may be addressed in the MOU and should be tailored to
meet local needs. Therefore, we have not made any changes to the
statutory list of core services under this regulation.
Availability of Services--Section 662.250 describes where and to
what extent the One-Stop partners must make available the applicable
core services. Since section 134(c) of WIA requires that core services
be provided, at a minimum, at one comprehensive physical center, the
regulation requires that the core services applicable to the partner's
program be made available by each partner at that comprehensive center.
To avoid duplication of services traditionally provided under the
Wagner-Peyser Act, this requirement is limited to those applicable core
services that are in addition to the basic labor exchange services
traditionally provided in the local area under the Wagner-Peyser
program. While a partner would not, for example, be required to
duplicate an assessment provided under the Wagner-Peyser Act, the
partner would be responsible for any needed assessment that includes
additional elements specifically tailored to participants under that
partner's program. We encourage partners to work together at the local
level to tailor the initial assessment so that the information taken
can provide a gateway to the partner program's more specific
requirements. However, it is important to note that the adult and
dislocated worker partner programs are required to make all of the core
services available at the center (see Sec. 662.250(a)).
Flexibility--Section 662.250(b) also provides significant
flexibility about how the core services are made available at the One-
Stop center by allowing for services to be provided through appropriate
technology at the center, through co-location of personnel, cross-
training of staff, or through contractual or other arrangements between
the partner and the service providers at the center.
Proportionate Responsibility: Section 662.250(c) provides that the
responsibility for the provision of and financing for applicable core
services is to be proportionate to the use of services at the center by
individuals attributable to the partners' programs. Section 662.250(d)
further provides that the individuals attributable to a partners'
program may include individuals referred through the center and
enrolled in the partner's program after the receipt of core services,
individuals enrolled prior to the receipt of core services, individuals
who meet the eligibility criteria for the partner's program and who
receive an applicable core service, or individuals who meet an
alternative definition described in the MOU. This ``proportionate
responsibility'' provision is intended to provide an equitable
principle for sharing cost and service responsibilities among the
partners. The regulation provides that the specific method for
determining proportionate responsibility (for example, surveys) must be
described in the MOU.
Additional Sites--Section 662.250(e) provides that, under the MOU,
core services may be provided at sites in addition to the comprehensive
center. Therefore, it is not required that partners provide core
services exclusively at a One-Stop center. If an individual seeks core
services at the One-Stop center rather than at the partner's site, they
should be made available to him or her without referral to another
location, but a partner is not required to route all of its
participants through the comprehensive One-Stop center.
There were a number of comments on these provisions about the
availability of core services and proportionate responsibility.
Commenters questioned whether the requirement that partners provide
core services at the One-Stop center went beyond the statute, and
whether proportionate responsibility was required by the statute.
Several commenters expressed concern that the concepts of proportionate
responsibility and attributable individuals did not provide clear
direction. In addition, some commenters requested clarification that
not all applicants for a partner's program would be attributable to
that program while others suggested the regulation should provide that
only individuals enrolled in the program should be attributable.
Finally, some commenters were concerned that proportionate
responsibility would require undue tracking and recordkeeping.
Response: We believe these regulatory provisions are appropriate
interpretations of WIA and the general cost principles enunciated in
the relevant OMB circulars. We believe that, read together, the
requirements of WIA section 134(c)(1), regarding the actual provision
of core services and the provision of access to other services, WIA
section 134(c)(2), regarding the accessibility of these services at a
physical center, and WIA section 121, requiring that the partners
provide the applicable core services, support the requirement that each
partner provide the applicable core services at the center. As noted
above, such core services may also be provided at other sites in the
One-Stop delivery system in addition to being provided at the center.
Section 662.250 does include provisions to ensure that there is
significant flexibility in the manner in which core services may be
provided at the center, and does not require partners to provide those
core services at the center that are traditionally provided by the
Wagner-Peyser program. The Department, in partnership with other
federal agencies will provide additional technical assistance to help
implement these requirements. We believe these requirements are
essential to ensure that basic information and services relating to
workforce development can truly be obtained at ``One-Stop'', and that
the partners effectively collaborate to provide a seamless system of
service delivery.
The principle of a partner's responsibility for the proportionate
use of these services by individuals attributable to the program of the
partner is derived from general cost principles of the OMB circulars,
as well our interpretation of the WIA provisions relating to the
required provision of applicable core services. As noted above, we
believe this is an equitable principle that is intended to ensure an
appropriate level of participation by the partners in a manner that is
fair to the partners. We do not want to prescribe how such
proportionate use is to be calculated, but simply to identify options
that we believe would be acceptable under the circulars for attributing
individuals to a program. The regulation does not require that a
particular option be used, only that the methods be described in the
MOU. Therefore, whether attribution is based on enrollment in the
program or some other basis is a matter to be determined locally among
the partners. Tracking and recordkeeping will also be affected by how
the local area chooses to determine proportionate use and we do not
believe such requirements need be unduly burdensome. Consistent with
our principle of writing these regulations to provide maximum State and
local flexibility, the regulation seeks to balance the need for Federal
guidance to ensure that the objectives of WIA are realized with the
need for flexibility at the State and local level to tailor specific
approaches to meet local needs. We do not want this flexibility to be
used to avoid implementing the changes in service delivery required
under WIA, but we also do not want to preclude innovative approaches to
implementing those changes. Therefore, we intend to retain the
regulatory requirements of this section and offer technical assistance
to facilitate implementation.
Access to Services--Section 662.260 provides that, in addition to
the provision of core services, the One-Stop partners must use the One-
Stop system to provide access to the partners' other activities and
programs. This access must be described in the MOU. This requirement is
essential to ensuring a seamless, comprehensive workforce development
system that identifies the service options available to individuals and
takes the critical next step of facilitating access to these services.
Several commenters suggested that we maintain a flexible
interpretation of the term ``access'' in Sec. 662.260 when referring to
the access to activities and services, other than the core services,
that a partner must provide through the One-Stop system. These
commenters expressed concern that a partner with a broad array of
services could not provide all services at a single One-Stop center,
and suggested that we encourage flexible delivery models, such as
outstationing of staff or electronic access, to meet this requirement.
Response: We have intentionally not defined what constitutes access
to these other activities and services in the regulation and the
regulation simply requires each local area to describe how access is
provided through the One-Stop system in the MOU. We believe access is
intended to go beyond the mere listing of a program and location, but
instead that the One-Stop will provide added value by assisting
customers to identify the services and programs that may best meet
their particular needs and by arranging to obtain such services. Co-
location of certain services at the center may be the most user-
friendly approach to providing access in some areas, while other areas
may rely more on electronic and other affiliate connections to ensure
access. That is a matter to be determined among the partners in the
local area through the MOU and this section of the regulation retains
that requirement.
2. Cost Sharing: Section 662.270 provides that the particular
arrangements for funding the services provided through the One-Stop
system and the operating costs of the One-Stop system must be described
in the MOU. Each partner must contribute a fair share of the operating
costs based on the use of the One-Stop delivery system by individuals
attributable to the partner's program. This is an equitable principle
and there are a number of methods that may be used for allocating costs
among partners that are consistent with this principle and the OMB
circulars. To promote efficiency and optimal performance, partner
contributions for the costs of the system may be re-evaluated annually
through the MOU process. This regulation identifies a number of
methodologies, including cost pooling, indirect cost allocation, and
activity based cost allocation plans, that may be used. The Department,
in consultation with other affected Federal agencies, issued guidance.
The guidance was published in the Federal Register on June 27, 2000.
There were numerous comments about this section. Many of the
comments about the requirement that each partner contribute a fair
share to the operation of the One-Stop system based on proportionate
use of the system by individuals attributable to the program of the
partner were the same as or similar to the comments on proportionate
responsibility under Sec. 662.250. Some commenters suggested that the
methodology for allocating costs of the One-Stop system be strengthened
and clarified. Some commenters suggested prescribing particular
approaches, such as requiring cost sharing only be based on real costs
directly attributable to the use of One-Stop center space and utilities
when the partners are co-located, while others suggested limiting the
methods for attributing individuals to a program to services received
after enrollment in the program. Some commenters suggested that the
regulation provide for pooling of overhead costs and proportionate
allocation of service costs. Some commenters expressed concern that the
multiple cost allocation methodologies identified in the regulation
were at odds with the proportionate use approach, while others
expressed concern that the proportionate use approach required
extensive recordkeeping and tracking. Some commenters stressed the need
for time to determine baseline percentages of how many people each
partner serves relative to the total traffic and suggested that we
provide additional guidance on developing baselines. A commenter
expressed concern that a proportionate cost allocation approach could
cause discord and undercut collaboration and co-location, while other
commenters expressed concern about whether this approach could be
enforced.
In addition, some commenters suggested clarifying that operating
costs include both administrative and programmatic costs. Other
commenters suggested that the regulations allow the fair share to be
contributed ``in-kind''. Some commenters suggested removing the
multiple methodologies described in the regulation while others
expressed concern that without more specific requirements title I
programs would end up paying all the costs.
Some commenters expressed concern that reliance on the OMB
circulars based on benefit to the program would be a barrier to One-
Stop delivery and suggested a new circular that would promote
integrated service delivery should be developed. A number of commenters
indicated that it was important that Federal agencies work together to
present a coherent message in support of sharing costs and integrating
programs and that technical assistance be provided to facilitate the
development of acceptable cost allocation methodologies.
Response: We believe that the ``fair share'' requirement of this
regulation is the appropriate interpretation of the WIA provisions
relating to the contributions of the One-Stop partners and the
applicable OMB circulars. The regulation is intended to identify each
partner's responsibility to contribute to the operation of the system
based on proportionate use, while allowing each local area significant
flexibility in providing how that contribution is to be determined.
While prescribing a more detailed methodology may provide clearer
direction and facilitate more rapid resolution of the cost allocation
issue at the local level, it would also significantly limit the ability
of each local area to tailor the arrangements to meet their particular
needs. Therefore, we believe that the ``fair share'' requirement is a
reasonable and flexible standard that should be retained and
supplemented by technical assistance that will inform local areas of
acceptable approaches in more detail. The cost allocation and resource
sharing guidance published in the Federal Register by the Department,
in consultation with the Federal partner agencies, on June 27, 2000,
addresses this issue in more detail.
The proportionate use standard is not intended to be rigid and we
do not believe the multiple methodologies identified in the regulation
are inconsistent with that standard. The various methodologies offer
different approaches that may be used in implementing these
requirements. As indicated with respect to Sec. 662.250, we do not
believe that this standard necessarily requires extensive tracking and
recordkeeping. The burdens attendant to the adoption of a particular
cost allocation method are a legitimate factor to be considered in
negotiating MOU's. We believe that local areas have the flexibility to
refine and modify the cost allocation procedures as more experience is
gained. For example, there is the flexibility to refine the development
of baselines on proportionate use over time, and such adjustments may
be facilitated if the funding arrangements in the MOU are revised
annually.
Contrary to the concern that the proportionate use standard will
promote discord and deter co-location and collaboration, we believe
that standard provides an equitable framework which should assist local
areas and partners in reaching agreement and within which a more
detailed methodology may be developed that supports the particular
design of the One-Stop system in each area. With respect to
enforcement, we are working with other Federal agencies to develop
models of acceptable methodologies and to assist in ensuring that
partners are aware of the opportunities of the One-Stop delivery system
and of their responsibilities under WIA.
On the question of the kinds of operating costs of the One-Stop
system for which the One-Stop partners must contribute, we believe
those costs are the common costs of operating the One-Stop system, and
could include such items as space and occupancy costs, utilities,
common supplies and equipment, a common receptionist, and other shared
staff. However, these common costs will vary depending on the design of
the One-Stop system and we intend to address these costs as part of the
technical assistance that we are developing in partnership other
federal agencies. Therefore, we have not modified the regulation to
further define these costs.
On the question of whether the contribution of the partners to the
operating costs of the One-Stop system may be ``in-kind,'' which we
understand to mean provided with resources other than cash, we
understand that the OMB circulars recognize the provision of noncash
resources as acceptable in meeting certain costs. However, the
contributions of partners may also consist of cash resources, or a
mixture of cash and noncash resources. Rather, the determination
regarding the forms of the contributions is a matter to be determined
locally through the MOU negotiation process, taking into account the
needs of the One-Stop system to ensure customer-friendly access to
services and the proportionate responsibility of and resources
available to the partners. We also intend to address this issue in the
technical assistance we will provide with other agencies and have not
modified the regulation.
On the issue of reliance on the OMB circulars, while the circulars
do set parameters that relate the allocation of costs to the benefit
received by a program, we believe they also allow flexibility to
develop cost allocation methodologies that support integrated service
delivery. We do not expect the issuance of a new circular to address
One-Stop delivery, but, as noted above, we are working with OMB and
other agencies to identify cost allocation methodologies that will be
useful in a One-Stop environment.
Finally, we agree with the comment about the importance of Federal
agencies working together in support of cost sharing and integrating
programs. There have been significant joint efforts to assist in
implementing WIA, including issuance of the streamlined unified
planning guidance, and other joint communications designed to assist
the partners in working together. This effort includes the joint
technical assistance being prepared on cost allocation methodologies
and additional ongoing activities intended to assist in the
implementation of the other elements of the One-Stop system.
Allocation Process--Section 662.280 clarifies that the requirements
of each partner's authorizing legislation continue to apply under the
One-Stop system. Therefore, while the overall effect of linking One-
Stop partners in the One-Stop system is to create universal access to
core services and to facilitate access to partner 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 the program. As noted above, consistent with this
principle, there are a variety of methods for allocating costs among
programs. This regulation is intended to clarify that participation in
the One-Stop delivery system is a requirement that is in addition to,
rather than in lieu of, the other requirements applicable to the
partner program under each authorizing law.
There were several comments suggesting that we reiterate in several
different sections of part 662 that the requirements of the laws
authorizing the programs of the partner continue to apply. For example,
commenters suggested that Sec. 662.260, on access to services and
Sec. 662.300, on MOU's, be revised to specifically provide that the
requirements of the laws authorizing the programs of the partner
continue to apply.
Response: We believe that Sec. 662.280 effectively describes the
continued applicability of the requirements of the authorizing laws and
have not repeated this language in other sections except where the
underlying statutory provision specifically makes reference to
consistency with the authorizing laws. We have made no change to the
regulations.
Subpart C--Memorandum of Understanding (MOU)
Subpart C describes the requirements relating to the local
Memorandum of Understanding MOU that governs the operation of the local
One-Stop system. Section 662.300 addresses the contents of the MOU that
must be executed between the Local Board, with the agreement of the
local elected official, and the One-Stop partners. The MOU must
describe the services to be provided through the One-Stop delivery
system, the funding of the services and the operating costs of the
system, the methods for referring individuals between the One-Stop
operators and the partners and the duration of and procedures for
amending the MOU. The MOU may also include other provisions about the
operation of the One-Stop system that the parties consider appropriate.
For example, the parties may use the MOU to address the coordination of
equal opportunity responsibilities such as the handling of
discrimination complaints or other grievances relating to the One-Stop
system.
Section 662.310 provides that the local areas may develop a single
umbrella MOU covering all partners and the Local Board, or separate
MOU's between partners and the Local Board. In many areas, the umbrella
approach may be the preferred means to facilitate a comprehensive and
equitable resolution of the operational issues relating to the One-
Stop, adding information specific to each individual partner
organization. The regulation also emphasizes that it is a legal
obligation for the partners and the Local Board to engage in good faith
negotiation and reach agreement on the MOU. The partners and the Local
Boards may seek the assistance of the appropriate State agencies, the
Governor, State Board or other appropriate parties in reaching
agreement. The State agencies, the State Board and the Governor may
also consult with the appropriate Federal agencies to address impasse
situations. If an impasse has not been resolved, in addition to any
programmatic remedies that may be taken, parties that fail to execute
an MOU may not be permitted to serve on the Local Board. In addition,
if the Local Board has not executed an MOU with all required parties,
the local area is not eligible for State incentive grants awarded for
local coordination.
Several commenters suggested that the regulation provide that only
required partners ``in the area'' must enter into the MOU and also
requested clarification as to whether optional partners were required
to enter into MOU's.
Response: We agree that a required One-Stop partner must enter into
an MOU only in those local areas in which the partner's program
provides services. However, that condition also applies to carrying out
the other responsibilities of a required partner, and, as described
above, we have modified section 662.220(a) to clarify that condition.
We do not believe it is necessary to repeat that condition in this
section. We also believe the intent of WIA section 121 is that optional
partners must be included in the MOU, or execute a separate MOU with
the Local Board, to become part of the One-Stop system. Since the MOU
describes the operational details of the One-Stop system, we believe
WIA intends that the MOU also be the vehicle for addressing the
specified issues of services, costs, and referrals with the optional
partners. WIA section 121(c) refers to One-Stop partners as parties to
the MOU without distinguishing between required and optional partners.
However, we note that the regulation similarly refers to One-Stop
partners generally and is not limited to required partners. We
therefore do not believe it necessary to modify the regulation.
Some commenters indicated that the involvement of the chief elected
official was critical to the successful development and implementation
of MOU's and expressed concern that while the agreement of the chief
elected official to the MOU was required under Sec. 662.300, the chief
elected official was not identified as a party to the MOU in
Sec. 662.310.
Response: We agree that the chief elected official has a
significant role to play in facilitating the development, completion
and operation of the MOU's. This role is explicit in WIA section
121(c), which provides that the Local Board is to develop and enter
into MOU's with the agreement of the chief elected official. This role
is included in Sec. 662.300 and we are adding similar language to
Sec. 662.310. In addition, the chief elected official will often have
authority over many of the title I One-Stop partners in the role of
grant recipient/fiscal agent for the adult, dislocated worker and youth
programs and may play an important role in ensuring that those partners
contribute to the effective development and implementation of MOU's.
Some commenters stated that strong guidance and support for MOU's
at the State level was essential and that a strategy should be
developed to monitor and evaluate MOU's at the State and local levels.
Other commenters suggested that local systems would benefit from MOU's
that offer incentives or penalties to required partners depending on
their performance relative to systemize performance. These commenters
also suggested that the regulations should provide incentives to
Governors to make MOU's and partnerships strong at the outset so that
regulatory effort need not be spent on developing sanctions and
penalties for those who fail to perform as intended. Several commenters
questioned whether the sanctions specified in the regulation for
failure to execute an MOU were consistent with WIA, arguing that WIA
requires that partners be represented on the Local Board without
reference to whether or not they have executed an MOU, while other
commenters suggested that exceptions to the sanctions be allowed by the
regulation where a party has exhibited good faith.
Response: We agree that the Governor and the State have a critical
role to play in facilitating the execution of local MOU's. That role is
reflected in the requirement in WIA section 112(b)(14) that the State
plan describe the strategy of the State for assisting local areas in
the development and implementation of fully operational One-Stop
delivery systems. The regulation also identifies a State role in
assisting local areas to reach agreements on the MOU. We do not believe
the regulations need to provide additional incentives for the State to
promote strong MOU's since the development of MOU's will generally be
critical to enabling local areas and the State to obtain the
performance outcome levels needed to qualify for Federal incentive
payments. The State also has a significant role since many of the
parties to the MOU will be State agencies under the direction of the
Governor. We believe it is important that the Governor work with those
agencies and with localities to ensure that effective MOU's are
executed and implemented. We agree, however, that the suggested
inclusion in the MOU of performance-based incentives or penalties,
whether based on the relative performance of partners or their shared
performance, may be useful in many local areas. We are willing to
assist in the development of performance-based provisions that meet
relevant legal requirements while promoting State and local objectives.
However, we do not believe the regulation needs to contain incentive or
penalty provisions since WIA and the regulations already provide for
the addition of provisions that the parties deem appropriate.
With respect to the sanctions identified in Sec. 662.310(c), we
believe it is reasonable to interpret the reference to representatives
of the One-Stop partners on the Local Board in WIA section
117(b)(2)(A)(vi) as referring to those One-Stop partners that meet the
requirements for being partners in the local One-Stop system, including
executing the MOU. Since the MOU is the vehicle through which the
partner's role in the local system is detailed, the inability to reach
agreement on that role means that an entity has not assumed the role of
a One-Stop partner in that local system for purposes of representation
on the Local Board.
On the question of allowing a ``good faith'' exception that would
permit local areas to be eligible for a State coordination incentive
grant even if the area has not executed an MOU with all required
partners, we believe that such grants are only intended to be awarded
to areas that demonstrate exemplary coordination activities that are in
addition to meeting the minimum requirements for coordination under
WIA. We believe that incentive grants are not intended to be awarded to
areas that are unable to meet the minimum requirement that the local
area have an MOU executed with all required partners, even if the Local
Board has acted in good faith in attempting to reach agreement.
We also believe it should be noted that the sanctions specified in
Sec. 662.310(c) are in addition to rather than in lieu of any other
remedies that may be applicable to the Local Board or to each of the
partners for failure to comply with the Federal statutory requirement
that they execute an MOU and have clarified this point in the
regulation.
Some commenters suggested that the regulation specify that the
details of the assessments of individuals seeking services through the
One-Stop system be described in the MOU and that we set parameters that
will help the States and localities reach agreement on assessment
goals, tools and processes.
Response: We agree that the MOU is a vehicle that local areas
should use to coordinate how assessments and other services are to be
carried out in the One-Stop system. We will work with other Federal
agencies and interested State and local partners to provide technical
assistance that promotes agreement on and enhances how assessments and
other services are delivered. However, we believe that WIA allows
States and localities significant flexibility in determining how,
consistent with the Federal authorizing laws, such services are carried
out and coordinated and, therefore, do not believe it is appropriate to
establish parameters for these services in the regulations.
Some commenters suggested that the regulation be modified to
require that the MOU's contain specific information on staffing
arrangements, including assignment and supervision of staff, staff
training and related personnel policies. In addition, these commenters
suggested that the regulation require written concurrence from
appropriate labor organizations when such arrangements affect their
members or a collective bargaining agreement. These commenters also
suggested that the MOU contain the assurances described in WIA section
181(b)(7) prohibiting the use of funds to assist, promote, or deter
union organizing.
Response: We believe the MOU may be an appropriate vehicle to
address certain personnel issues in many local areas. Section 652.216
of these regulations, governing the Wagner-Peyser Act, provides that
personnel matters for the State merit staffed employees funded under
the Wagner-Peyser Act are the responsibility of the State agency,
although, as part of the MOU, Wagner-Peyser funded employees may
receive guidance on the provision of labor exchange services from the
One-Stop operator. However, we do not believe it would be appropriate
to mandate that additional personnel issues be addressed in the MOU.
The determination of the extent to which such issues are addressed in
the MOU remains with the parties to the MOU under this regulation.
WIA section 181(b)(2)(B) provides that activities carried out with
funds under title I of WIA must not impair collective bargaining
agreements and that no activity inconsistent with the terms of a
collective bargaining agreement may be undertaken without the written
concurrence of the labor organization and employer concerned.
Therefore, to the extent an MOU provides that title I funds be used in
a manner inconsistent with a collective bargaining agreement, written
concurrence is required. However, we do not believe it is necessary to
restate this requirement in this section of the regulation since this
requirement applies to all activities undertaken with title I funds.
Similarly, the prohibition on the use of title I funds to assist,
promote or deter union organizing is applicable to the use of all WIA
title I funds. However, since this prohibition applies to all WIA-
funded activities, we do not believe that WIA requires that an
assurance regarding this prohibition be written into each MOU. Local
areas may be prudent in doing so, but the regulation has not been
modified to require that the MOU contain such a written assurance.
Several commenters suggested that the final rule require MOU's to
be available for public review and comment before execution,
particularly to training providers.
Response: WIA section 118(b)(2)(B) requires that the MOU's be part
of the local plan that is subject to public
review and comment requirements. We believe this requirement ensures
public review and that an additional regulatory requirement is
unnecessary. However, we do encourage local areas to provide
significant opportunities for public input regarding the form and
contents of the MOU as early in the process as is possible.
Several commenters suggested that, due to potential shifts in the
annual appropriations affecting the programs of the partners, the
regulation require annual review of the MOU's by the parties. Other
commenters suggested that due to the difficulty in reaching agreement
and the need for stability, the regulation clarify that multi-year
agreements are permissible.
Response: Section 662.300(b) provides, as does WIA section
121(c)(2)(A)(iv), that the duration of the MOU, and the procedures for
modification, must be addressed in the MOU itself and does not
prescribe an annual review process. Section 662.310(a) indicates that,
in light of the annual appropriations process, the financial agreements
``may'' be negotiated annually, but also allows a multi-year agreement.
We believe these provisions are appropriate interpretations of WIA and
have not modified the regulations.
Subpart D--One-Stop Operator
This subpart addresses the role and selection of One-Stop
operators. One-Stop operators are responsible for administering the
One-Stop centers and their role may range from simply coordinating
service providers in the center to being the primary provider of
services at the center. The role is determined by the chief elected
official. In areas where there is more than one comprehensive One-Stop
center, there may be separate operators for each center or one operator
for multiple centers. The operator may be selected by the Local Board
through a competitive process, or the Local Board may designate a
consortium that includes three or more required One-Stop partners as an
operator. The Local Board itself may serve as a One-Stop operator only
with the consent of the chief elected official and the Governor.
This subpart also addresses the ``grandfathering'' of existing One-
Stop operators. Section 662.430 provides some continuity for areas that
have already established One-Stop systems while ensuring that
fundamental features of the new One-Stop system are incorporated. A
local area does not have to comply with the One-Stop operator selection
procedures if the One-Stop delivery system, of which the operator is a
part, existed before August 7, 1998 (the date of the WIA's enactment).
However, that One-Stop system must be modified to meet the WIA
requirements about the inclusion of the required One-Stop partners and
the MOU.
Some commenters suggested that the regulations be modified to allow
for a system operator (rather than separate center operators) that may
be responsible for the coordination of the entire local one-stop
system, or the maintenance and development of the linkages and
technology between centers.
Response: While WIA section 121(d) refers to the operator primarily
in connection with the operation of centers, we believe that the law
does not preclude the expansion of that role to include additional
coordination responsibilities relating to the One-Stop system. The
particular role may vary depending on the design of the local system.
We have modified section 662.410(c) to include the possibility of
broader One-Stop operator coordination responsibilities.
Several commenters suggested that the regulations be modified to
clarify that the public must have the opportunity to review and comment
on documents relating to the selection of a One-Stop operator if a
competitive selection process is used.
Response: WIA section 117(e) contains a general sunshine provision
that requires the Local Board to make available on a regular basis
information regarding its activities, including information on the
designation and certification of One-Stop operators. This requirement
applies to whatever designation process is used by the local area,
whether it be competitive or an agreement with a consortium. Section
662.420(b) referred to this requirement only in connection with the
designation of the Local Board as the operator and the designation of
an existing operator. We have removed the reference in Sec. 662.420(b)
and have modified Sec. 662.410 to clarify that the Local Board's
sunshine provision, which is now described in Sec. 661.307, applies to
all designations and certifications of One-Stop operators.
Some commenters suggested that the regulation describe the various
financial assistance agreements that may be made with the One-Stop
operator following the selection process. Specifically, the commenters
suggested that the regulation identify grants, cooperative agreements,
and procurement contracts as the alternative arrangements and identify
the OMB circulars that apply to each arrangement.
Response: We believe that the fiscal and administrative rules
relating to the use of WIA title I funds, including the use of such
funds to support the One-Stop operator, are appropriately described in
20 CFR 667.200 and need not be restated in each section of the
regulations to which they are applicable.
Some commenters suggested that we should encourage the
grandfathering of One-Stop operators that were designated pursuant to a
collaborative process. These commenters also suggested that
Sec. 662.430 appears to impose more requirements on the grandfathering
of existing One-Stop operators than apply to new designations and that
those requirements should be uniform.
Response: We believes that WIA provides options for the designation
of One-Stop operators and intends for each local area to determine the
approach that best meets local needs. We will disseminate information
relating to the experience of local areas that have used each of the
allowable options. We will also modify this regulation to clarify that
the only difference between One-Stop systems that choose to grandfather
the One-Stop operator and systems that designate the operator pursuant
to competition or consortium agreement is the selection process. The
WIA requirements relating to the inclusion of required partners, the
provision of services, and the execution of the MOU's apply to all One-
Stop systems, including those with operators retained under the
grandfathering provision. Such systems must be modified, to the extent
necessary, to comply with all WIA requirements regarding the One-Stop
system. We have modified Sec. 662.430 to make these distinctions
clearer.
Part 663--Adult and Dislocated Worker Activities Under Title I of the
Workforce Investment Act
Introduction
This part of the regulations describes requirements relating to the
services that are available for adults and dislocated workers. The
required adult and dislocated worker services, described as core,
intensive, and training services, form the backbone of the One-Stop
delivery system for services to two workforce program customers, job
seekers and employers. The WIA goal of universal access to core
services is achieved, among other strategies, through close integration
of services provided by the Wagner-Peyser, WIA adult and dislocated
worker partners and other partners in the One-Stop center and system.
Intensive and
training services are available to individuals who meet the eligibility
requirements for the funding streams and who are determined to need
these services to achieve employment, or in the case of employed
individuals, to obtain or retain self-sufficient employment. Supportive
services, to enable individuals to participate in these other
activities, including needs-related payments for individuals in
training, may also be provided.
These regulations also introduce the Individual Training Account
(ITA), which is a key reform element of the Workforce Investment Act.
Individuals will now be able to take a proactive role in choosing the
training services which meet their needs. They will be provided with
quality information on providers of training and, armed with effective
case management, an ITA as the payment mechanism. These tools will
enable them to choose the training provider that best serves their
individual needs.
Along with part 664, this part contains most of the program service
requirements that apply to WIA title I formula funds. WIA provides
States and local areas with significant flexibility to deliver services
in ways that best serve the particular needs of each State and local
communities. These regulations support that principle; wherever
possible, program design options and categories of service are defined
broadly. States and local areas are reminded that they must use that
flexibility in a manner that broadens the opportunities available under
the Act to all customers. Recipients of financial assistance under WIA
title I must be mindful of their responsibilities under the
nondiscrimination provisions of section 188, and must not unfairly
exclude individuals from opportunities or otherwise make decisions
based upon race, color, religion, sex, national origin, age, political
affiliation or belief, disability status, or citizenship. The
Department published comprehensive regulations implementing section 188
at 29 CFR part 37. 20 CFR 667.275 makes clear that all recipients of
financial assistance under WIA title I must comply with 29 CFR part 37
when exercising the flexibility provided by WIA and this Final Rule.
Subpart A--One-Stop System
1. Role of the Adult and Dislocated Worker Programs in the One-Stop
System: Section 663.100 provides that the One-Stop system is the basic
delivery system for services to adults and dislocated workers. The
concept of a single system that provides universal access to certain
services to all individuals age 18 or older is a key tenet of the
Workforce Investment Act. The regulation reflects the emphasis in WIA
to consolidate and coordinate services. The grant recipient(s) for the
adult and dislocated worker program becomes a required partner of the
One Stop system, and is subject to 20 CFR 662.230 regarding required
partner responsibilities, including serving on the Local Board. Access
to services through the One-Stop system ensures that individual needs
are identified and, to the extent possible, met. The consolidation of
and access to services will result in improved services for both adults
and dislocated workers.
One comment on Sec. 663.100 noted that adult and dislocated worker
programs are separate activities with separate funding streams, and
asked whether they might each have separate representatives on the
Local Board.
Response: We understand that the heading for Sec. 663.100 may be
misleading, in that it may be read to imply that there is a single
program serving adults and dislocated workers, which is clearly not the
case. As accurately noted by the commenter, these are separate programs
with separate funding streams. Accordingly, we have revised the
headings and regulatory text in Secs. 663.100, 110 and 115 to pluralize
the word ``Program,'' to more accurately reflect the discrete nature of
the two programs. On the matter of separate representation for each of
these programs on the Local Board, we feel the rule already
sufficiently addresses this issue in the Local Governance provisions at
20 CFR 661.315, and 662.200(a), concerning the required One-Stop
partners. These sections make it clear that the Local Board must have
at least one member representing each One-Stop partner program--
including the Adult and Dislocated Worker programs. The CEO may select
one member to represent the Adult program and a different member to
represent the Dislocated Worker program. Or, under new paragraph
661.315(f), the CEO may select one member to represent both of those
programs, if that member meets all the criteria for representation for
each program. Accordingly, no change has been made to the Rule.
Another commenter observed that Individual Training Accounts were
the only method for providing training specifically referenced in
Sec. 663.100(b)(3) and suggested that the Final Rule also list all
training services, including contract training, OJT, and customized
training.
Response: The purpose of Sec. 663.100 is to highlight the key
facets of the Adult and Dislocated Worker programs in the One-Stop
delivery system, one of which is the establishment of ITAs. Since the
purpose of this provision is to highlight ITAs as an important
component of the new workforce investment system, rather than to
clarify the types of training that may be provided under the adult and
dislocated worker programs, no change is being made to the regulations.
Section 663.300 clarifies that training services are listed in WIA
section 134(d)(4), and that the list is not all-inclusive and
additional training services may be provided.
2. Registration and Eligibility: Sections 663.105 through
Sec. 663.115 address registration and basic eligibility requirements.
These sections provide general guidance in the regulation at
Sec. 663.105 on when adults and dislocated workers must be registered.
Sections 663.110 and 663.120 contain the basic eligibility criteria for
adults and dislocated workers, respectively.
Registration is an information collection process that documents a
determination of eligibility. It is also the point at which performance
accountability information begins to be collected. Individuals who are
seeking information and who, therefore, do not require a significant
degree of staff assistance, do not need to be registered. Accordingly,
of the core services listed in the Act, only staff assisted services
such as individualized job search services, career counseling, and job
development will automatically require registration. Additional core
services offered at the discretion of the State and Local Boards, and
not listed in the Act, may or may not require registration, depending
on the degree of staff assistance involved, and other established local
policies. Participation in any intensive or training service, whether
those specifically listed in the Act, or another offered at the State
or Local Board's discretion, will always require registration.
In addition to the responsibility to register participants, 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. See 29 CFR 37.4 (definition of ``applicant'') and
29 CFR 37.37(b)(2). The point at which such personal information should
be collected is within the recipient's discretion; however, the
recipient's request for and receipt of that information with regard to
a specific individual triggers the accompanying responsibility to
collect EO data at the same time. The EO data
must be maintained in a manner that allows the individuals from whom
the data was collected to be identified, and that ensure
confidentiality. This responsibility is separate from, and might not
arise at the same point in the process, as the registration
responsibility. We will issue further guidance on this data collection
requirement. Further, all requirements of WIA Section 188 and 29 CFR
part 37 must be followed during the registration and eligibility
determination process to ensure non-discrimination in the assessment
process.
Additional information needed to determine eligibility for
assistance other than Title I of WIA available at the One-Stop site may
also be determined at the same time. Program operators should determine
what information they need for cost allocation purposes and when they
can most efficiently collect it. Electronic records systems allow
information to be collected incrementally as higher levels of
assistance are provided.
One commenter felt that the rule at Sec. 663.105(b), which requires
registration for any service other than self-service or informational
activities, is in conflict with the goal of universal access.
Response: There has been confusion over the issue of precisely when
participants must be registered. For the core services listed in the
Act, only those core services that are not informational and for which
the participant requires significant staff-assistance, such as follow-
up services, individual job development, job clubs and screened
referrals, will require registration under title I of WIA. This
interpretation preserves the goal of universal access and makes the
services delivery process as customer-friendly as possible, consistent
with the legislative requirements of performance accountability. All
persons will have access to core employment-related information and
self-service tools without restrictions or additional eligibility
requirements. No change has been made to the Final Rule. Additional
information on the issue of registration under title I of WIA is
contained in Training and Employment Guidance Letter (TEGL) 7-99 which
can be accessed at www.usworkforce.org.
We received many comments expressing concern that there is no
mechanism in the regulations to ensure that unregistered individuals
receiving informational and self-help core services are benefitting
from those services. Two comments suggested that One-Stops should
either be required to track these individuals' outcomes or that the
Department itself engage in some sort of periodic tracking. Another
commenter questioned whether a State could collect this information
independent of a regulatory requirement to do so.
Response: While we have chosen not to require registration or
collection of outcomes information for those using only self-service or
informational activities, this does not preclude States and One-Stop
operators from collecting a variety of other information about service
use, customer outcomes consistent with rules governing confidentiality,
and/or customer satisfaction if they so choose. We strongly encourage
States and local areas to seek customer feedback regarding the quality
of services available, in order to further their continuous improvement
efforts. Finally, local areas may also choose to have less formal
tracking mechanisms which fall short of official registration,
including paper-based or electronic ``sign-in'' when individuals enter
the center. Realizing that some assessment of the value of these
services is important for determining what resources are devoted to
these types of activities we will convene a workgroup of Federal, State
and local representatives to discuss the issue of self-service measures
in the Fall of 2000. We anticipate that this workgroup will develop a
menu of optional self-service measures that States and local areas can
utilize.
We also received comments which argued that the existing data
collection requirements are too burdensome and should be limited. In
addressing the data collection requirements in the regulations, we have
attempted to strike a reasonable balance which satisfies our reporting
needs under WIA without over-burdening States and local areas. No
change has been made to the Final Rule in response to these comments.
We issued a Federal Register notice on WIA title I reporting
requirements on April 3, 2000. The purpose of the notice was to solicit
comments concerning the new management information and reporting system
including the WIA Standardized Record Data, the Quarterly Summary
Report and the Annual.
One commenter suggested that, in order to avoid redundancy,
individuals eligible for TAA, or NAFTA-TAA, or those referred from the
Worker Profiling and Reemployment Services initiative, should
automatically be eligible for dislocated worker services and should be
specifically included in Sec. 663.115 in the Final Rule.
Response: We agree that most workers certified as eligible for the
TAA and NAFTA-TAA programs will also meet the Act's definition of
dislocated workers. To determine dislocated worker eligibility, the
One-Stop operator must have sufficient information from which to make
that determination, and in States with common intake systems, no
further collection of registration information may be required in order
to determine eligibility. One of the key reforms of WIA is streamlining
customer services, and we would encourage local areas to examine
methods through which they can determine eligibility for multiple
programs at one time, through the coordination of One Stop Center
partner activities. We further recommend that TAA and NAFTA-TAA
certified workers who qualify as dislocated workers should also be
enrolled under Title I of WIA. By doing this, those TAA and NAFTA-TAA
workers who are determined to be in need of intensive, supportive or
training services would be able to receive any of these services that
cannot be provided under the TAA or NAFTA-TAA programs under Title I of
WIA. Procedures to govern these processes should be part of the MOU's
developed between WIA partners, in accordance with the dislocated
worker eligibility determination procedures described in
Sec. 663.115(b) of these regulations.
Acceptance of profiled and referred Unemployment Insurance (UI)
claimants as eligible dislocated workers is a decision to be made by
Governors and Local Boards consistent with the definition at WIA
Section 101(9). The policies and procedures established by Governors
and Local Boards may include a policy that the UI profiling methodology
and referral process meets the criteria in WIA Section 101(9). In such
instances, no further documentation would be needed to establish the
``unlikely to return'' criterion at WIA section 101(9)(A)(iii). Other
eligibility criteria could also be documented by the unemployment
compensation system through this process. Since acceptance of TAA,
NAFTA-TAA and UI profiling data to prove eligibility are matters for
State or local decision, no change has been made to the Final Rule.
One comment suggested that language be added to Sec. 663.105 in the
Final Rule permitting the use by One-Stops of intake application data
and other information collected by non-WIA funded providers for
registration and eligibility determination.
Response: We support the goal of developing common intake systems
that can be used across a variety of programs and which eliminate
redundancy of data collection and encourage States and local areas to
develop such systems. We
think that these activities are an essential part of the reforms
envisioned by WIA and the creation of the One-Stop system and can lead
to improved efficiency for program operators and better customer
service. One Stop partners must work cooperatively to develop
procedures, outlined in the MOU's, which will facilitate such
streamlining. At the Federal level we are working with other Federal
agencies to develop common definitions and data elements to facilitate
this process. Since the integration of intake systems is currently
permissible under the regulations as long as all necessary data is
collected, no change has been made in the Final Rule.
Another comment suggested State and Local Boards should be
prohibited from developing dislocated worker definitions that exclude
groups of workers based on their industry, occupation, or union
affiliation.
Response: In considering the procedures for determining
eligibility, we believe that need for services should be based on
individual circumstances, and that State and locally developed
definitions must be consistent with WIA section 101(9). There is no
language in that Section that we interpret as authorizing an
eligibility definition based on industry or union affiliation, thereby
allowing any exclusions based on the same. We strongly agree that
workers should not be prohibited from receiving services based on their
union affiliation. Blanket exclusions based on industry or occupation
are too general to accommodate individual needs and unique situations.
It should also be noted that the union representative as well as other
members of the Local Board have an opportunity to raise concerns
regarding consideration of such blanket eligibility decisions, through
the WIA ``sunshine provisions'' in sections 111 and 117 and described
in new Secs. 661.207 and 661.307, governing Board activity, and through
the required public comment process.
Many comments from the Vocational Rehabilitation system suggested
that eligibility for Vocational Rehabilitation services must remain a
distinct concept from eligibility determination for services under
Title I of WIA.
Response: While we acknowledge there are separate eligibility
criteria for the two programs, we see no need for additional regulatory
language on this issue. 20 CFR 662.280 clearly addresses this issue and
states that the eligibility requirements of each One-Stop partner's
program continue to apply. Additionally, the resources of each partner
may only be used to provide services that are authorized and provided
for under the partner's program, to individuals that are eligible under
such program. We encourage local One-Stops to maximize coordination
arrangements which promote convenient and accurate eligibility
determination for individuals with disabilities who may need Vocational
Rehabilitation services, while maintaining the integrity of the One-
Stop Center's integrated service strategy. One benefit of a closely
coordinated One-Stop system is increased administrative efficiency, as
well as more seamless service to the customer, through the use of
common intake systems. Moreover, we emphasize that under 29 CFR 37.7,
individuals with disabilities should be served through the same
channels as individuals without disabilities, receiving reasonable
accommodation as appropriate under 29 CFR 37.8.
Several commenters noted that, under Sec. 663.115, Governors and
Local Boards are allowed to develop policies and procedures for the
interpretation of the dislocated worker eligibility criteria, and asked
how disputes between these parties would be resolved.
Response: While we provide technical assistance on matters of
legislative and regulatory interpretation, we look to the State and
Local Boards to develop a process to avoid, and if necessary resolve
any disagreements. Under 20 CFR 661.120, local policies must be
consistent with established State policies, as well as the Act and the
regulations. Thus, while Local Boards may develop policies which
supplement State policies, they may not adopt policies which conflict
with State policies. No change has been made to the Final Rule.
One comment stated that dislocated worker programs serving union
members must consult the union in the design and implementation of
those programs.
Response: Unions are well-positioned to understand the needs of
their members and can be a valuable resource in the design of effective
dislocated worker programs. WIA requires that organized labor
participate in the development and design of available services to
dislocated workers, through their representation on State and Local
Boards. Additionally, the public, including the organized Labor
community, must have an opportunity to review and comment on the
proposed design of programs serving dislocated workers, as part of the
plan review and approval process. State and Local Boards are encouraged
to use input from all key stakeholders, including employees, their
representatives, and employers, and to work collaboratively with them
when designing services. It is up to the governance structure at the
Local level to set procedures to ensure this input is considered in
program planning. Accordingly, no change has been made to the Final
Rule.
One commenter requested that the regulations provide that where the
Local Board wishes to pursue training services not listed in the Act,
that such services must be identified in the Local Plan, and that a
review process that includes consultation with labor organizations
whose members have skills in the specific training being proposed by
the One-Stop operator, prior to funding such activities.
Response: The Act, at section 118(b), provides, among other things,
that the Local Plan identify the current and projected employment
opportunities in the local area, and the job skills necessary to obtain
such employment opportunities. Although the Act does not include
``formal'' consultation with labor organizations whose members have
skills like those in which training is proposed, such issues may be
addressed as part of the development of the Local Plan, and the public
plan review and approval process. Local Boards include representatives
of labor organizations who will participate in the development of the
Plan, and therefore in the design of training activities to be
conducted in the local area. Additionally, the Act, at section
118(b)(7), provides that the Local Plan include a public comment
process which includes an opportunity for representatives of labor
organizations to provide comments on the Plan, and input into the
development of the Local Plan, prior to its submission. In addition, 20
CFR 667.270 provides safeguards to ensure that participants in WIA
training activities do not displace other employees. No change to the
Final Rule is necessary.
Another commenter suggested that we amend the regulations to
require One-Stop operators to consult with the appropriate labor
organizations whose members have skills in the area in which the OJT or
customized training is proposed in the development of the training
contract. The comment does not limit this consultation to circumstances
where a collective bargaining agreement is in effect.
Response: WIA section 181(b)(2)(B) requires consultation, and
written concurrence of the labor organization and employer, where the
proposed training would impair an existing collective bargaining
agreement. It does not address consultation in other circumstances. We
believe, however,
that informal consultation with organized labor on the nature and scope
of proposed OJT or customized training can help to ensure its quality
and relevance. The labor representative(s) on the Local Board is in an
ideal position to establish policies about the consultation role of
organized labor and to help identify situations where appropriate labor
organizations should be consulted in the development of an OJT
contract. Accordingly, no change to the Final Rule is necessary.
One comment suggested that we define the term ``substantial
layoff,'' as found in WIA Section 101(9)(B)(i) and Sec. 663.115, to
include situations in which employers use layoff status to avoid their
WARN Act obligations to announce a plant closing or significant
permanent downsizing.
Response: The purpose of this comment is unclear. However, any
definition of the term ``substantial layoff'' for defining an eligible
dislocated worker under WIA section 101(9)(B)(i) is irrelevant to
employer obligations under the WARN Act. WIA provisions cannot be used
to enforce WARN Act employer notification obligations. We believe that
the definition of ``substantial layoff'' for WIA purposes is best left
to State and local areas to decide in light of their particular
economic conditions. We do not plan to further define ``substantial
layoff'' at this time.
The same commenter also suggested State and Local Boards be
encouraged to develop the broadest possible definition of a general
announcement of a plant closing, including information that is ``public
knowledge,'' despite the failure of the employer to acknowledge the
closing.
Response: Rapid response activity may be triggered by a variety of
information sources such as public announcements or press releases by
the employer or representatives of an employer, and other less formal
information developed by early warning networks, individual phone
calls, or other sources. A Rapid Response contact with an employer may
confirm a planned plant layoff or closing. ``Public knowledge'' is,
however, a very elusive concept and public funds are limited. It is
important to have a creditable source of information or confirmation
from the employer or some other clearly credible evidence of an
imminent dislocation event before triggering rapid response activities.
No change has been made to the Final Rule.
3. Displaced Homemaker Eligibility: Section 663.120 clarifies that
a displaced homemaker who has been dependent on the income of another
family member but is no longer supported by that income, is unemployed
or underemployed and is experiencing difficulty in obtaining or
upgrading employment, may receive assistance with funds available to
Local Boards for services to dislocated workers.
Several commenters recommended that we require State Plans to
further discuss the eligibility of displaced homemakers and the service
strategies for meeting this group's special needs.
Response: States are required to discuss displaced homemaker
service strategies as part of their State Plans (WIA Section
112(b)(17)(A)(iv)). This requirement is addressed in the WIA Planning
Guidance for Strategic Five Year State Plans. This requirement is also
addressed in, Final Unified Plan Guidance for the Workforce Investment
Act, published in the Federal Register Vol.65, No. 10 on January 14,
2000, which contains instructions for plan narrative discussions on how
special populations, including displaced homemakers, will be served.
Services to displaced homemakers are also addressed in 20 CFR
665.210(f), which provides that, among other things, implementing
innovative programs for displaced homemakers is an allowable Statewide
workforce investment activity. No changes have been made to the Final
Rule.
4. Title I Funds: Section 663.145 clarifies how title I adult and
dislocated worker funds are used to contribute to the provision of core
services, and to provide intensive and training services through the
One-Stop delivery system. All three types of services must be provided,
but the Local Boards determine the mix of the three services.
One commenter supported the requirement that all three types of
services, (core, intensive, and training), must be available through
the One-Stop delivery system, but wanted the regulations to limit the
provision of the ``discretionary'' services authorized under WIA
section 134(e)(1) to those that do not reduce the availability or
accessibility of other mandatory services to eligible participants
under the Act.
Response: While it is not entirely clear from the comment, we
assume that the commenter is referring only to those employment and
training activities labeled ``discretionary'' under WIA section
134(e)(1), and not to all ``permissible'' local activities under
section 134(e) of the Act. We agree that required activities for
eligible individuals take precedence over the permissible discretionary
activities described in Sec. 663.145(b), and that core, intensive and
training services, as defined in section 134(d)(2) through (4), must be
provided in each local area. However, to impose a hard and fast rule on
when each State or local area may provide discretionary activities,
reduces the flexibility of Boards to make more localized decisions,
which is contrary to the reforms of WIA. In the past, these kinds of
concerns were addressed through mandatory spending percentages for
various categories of services, such as the 50 percent for training
provision under the Job Training Partnership Act. The customized
screening and referral services listed in section 134(e)(1)(A) may
provide useful and necessary services to eligible participants and
could be very valuable in some labor markets. The customized employer
services listed in section 134(e)(1)(B) are to be provided on a fee-
for-service basis and should not result in any diminution of available
WIA funds. In either case, it is up to the States and Local Boards to
develop a mix of activities and services which will best serve the
customers of their area. The resources of all of the One-Stop partner
programs should be taken into account when determining the appropriate
mix of activities and services to be provided. Once a participant has
become part of the WIA system, she/he should be able to receive all the
services needed to reach an employment goal. We do not think it is
appropriate to attempt to set a rule that constrains the way in which
States and Local Boards provide that mix of services as long as
mandatory services are made available.
5. Sequence of Services: WIA provides for three levels of services:
core, intensive, and training, with service at one level being a
prerequisite to moving to the next level. The regulations establish the
concept of a tiered approach but allow significant flexibility at the
local level. We chose not to establish a minimum number of ``failed''
job applications or a minimum time period but, instead, the regulations
allow localities to establish gateway activities that lead from
participation in core to intensive and training services. Any core
service, such as an initial assessment or job search and placement
assistance, could be the gateway activity. In intensive services, the
gateway activity could be the development of an Individual Employment
Plan (IEP), individual counseling and career planning or another
intensive service. Key to these gateway activities is the
determination, made at the local level, that intensive or training
services are required for the participant to achieve the goal of
obtaining employment or, for employed participants, obtaining or
retaining self-sufficient employment. The three levels of services are
discussed separately in the regulations.
We received many comments concerning our general approach to
regulating participant progression through the sequence of services.
The commenters were uniformly pleased that the regulations did not
require a certain number of failed job search attempts or minimum
lengths of time in one service tier before an individual could be found
eligible for the next tier of services. Several commenters, however,
felt we should do even more to ensure that the Act is not interpreted
as a ``work first'' program. Some comments suggested that we should
preclude State and Local Boards from establishing minimum time periods
of participation in core and intensive services.
Response: While the regulations do not explicitly preclude State or
Local Boards from establishing minimum time periods within each tier of
services, we agree that mandatory waiting periods are not consistent
with customization of services according to each participant's unique
needs. Consistent with our intent to write regulations that maximize
State and local flexibility, however, we continue to support the idea
that local level program operators are best positioned to determine the
appropriate mix, and duration of services.
6. Core Services: Sections 663.150 to Sec. 663.165 discuss the core
services. All of the core services that are listed in the Act must be
made available in each local area through the One-Stop system. Follow-
up services must be available for a minimum of 12 months after
employment begins, to registered participants who are placed in
unsubsidized employment. We have made a technical correction to
Sec. 663.150, to conform with the statutory requirement that followup
services be made available ``as appropriate'' to the individual. This
means that the intensity of the followup services provided to
individuals may vary, depending upon the needs of the individual. Among
the core services available is information on targeted assistance
available through the One-Stop system for specific groups of workers,
such as Migrant and Seasonal Farm Workers, and veterans.
Core services also include assistance in establishing eligibility
for the Welfare-to-Work program, and programs of financial aid for
training and education programs. The specific form of this assistance
is determined at the local level based on the participant's needs and
in coordination with the other partner programs. This assistance may
include: referrals to specific agencies; information relating to, or
provision of, required applications or other forms; or specific on-site
assistance.
Another core service is the provision of information relating to
the availability of supportive services, including child care and
transportation available in the local area, and referral to such
services as appropriate. Local Boards are encouraged to establish
strong linkages with a variety of supportive service programs and work
supports, including child support, EITC, dependent care, housing, Food
Stamps, Medicaid programs, and the Children's Health Insurance Program,
that may benefit the customers they are serving at the One-Stop Center.
Such programs provide key supports for low-income working families and
families making the transition from welfare to self-sufficiency.
We also encourage Local Boards to establish strong linkages to
child support agencies and organizations serving fathers. WIA services
can help raise the employment and earnings of non-custodial fathers and
fathers living with their children so that they can better support
their children. Child support payments help low income single parents
stabilize and raise their income. At the same time, it is important for
One-Stop programs to be aware of the impact that child support
requirements may have on non-custodial parents who may seek services.
One commenter recommended that the provision of ``brokering
services,'' as presently performed by CBO's under JTPA be expressly
permitted under Part 663. These services include facilitating and
brokering relationships between low-income community residents, local
businesses, and specialized groups, as well as referrals to groups to
provide training and placement.
Response: While we agree that these brokering services are valuable
activities, decisions about program design, including the selection of
outreach, recruitment and referral activities, are within the purview
of the Local Board, operating within State policies. We expect that
Local Boards will consider a wide variety of services in designing
their WIA programs. We expect CBO's, as well as other stakeholders,
will be an integral part of program planning and design decisions
through their membership on the Local Board, their provision of input
through the public review process, and in many cases as customer
service providers. Accordingly, no change has been made to the Final
Rule.
Commenting on Sec. 663.150, one organization remarked on the
importance of ensuring that individuals seeking assistance through core
services be provided with opportunities for self-service, facilitated
self-help, and staff-assisted services.
Response: The service delivery options cited by the commenter are
activities specified in the Wagner-Peyser Act regulations at 20 CFR
652.207, to ensure universal access to Wagner-Peyser labor exchange
services for job seekers and employers. Although technically, these
three levels of service do not apply to core services provided with
funds other than Wagner-Peyser funds, practically, it makes sense to
have all three service levels available for all core services. Also, in
order to best serve the diverse needs of workforce investment
customers, both job seekers and employers, multiple service delivery
formats must be available. State and Local Plans are expected to
address WIA service delivery strategies. Local Plans should ensure that
the service delivery design reflects the needs of all customer groups
in the mix of self-service, informational and staff-assisted core
services. Since the issue is covered in the Wagner-Peyser regulations,
no change has been made to the Final Rule.
One commenter asked that the regulations provide a list of
available followup services which could be provided to all adults and
dislocated workers. The commenter also requested that the regulations
ensure that followup services are provided to all participants.
Response: The goal of follow-up services is to ensure job
retention, wage gains and career progress for participants who have
been referred to unsubsidized employment. While we do not think it is
necessary to specify or define followup services in Sec. 663.150(b), to
provide further guidance we discuss an illustrative list of possible
followup services below. Followup services must be made available for a
minimum of 12 months following the first day of employment. While
followup services must be made available, not all of the adults and
dislocated workers who are registered and placed into unsubsidized
employment will need or want such services. Also, as discussed above,
the intensity of appropriate followup services may vary among different
participants. Participants who have multiple employment barriers and
limited work histories may be in need of significant followup services
to ensure long-term success in the labor
market. Other participants may identify an area of weakness in the
training provided by WIA prior to placement that will affect their
ability to progress further in their occupation or to retain their
employment. Therefore, we have chosen not to change the regulatory
language that such services must be ``made available''.
Followup services could include, but are not limited to: additional
career planning and counseling; contact with the participant's
employer, including assistance with work-related problems that may
arise; peer support groups; information about additional educational
opportunities, and referral to supportive services available in the
community. In determining the need for post-placement services, there
may also be a review of the participant's need for supportive services
to meet the participant's employment goals. As provided in
Sec. 663.815, financial assistance, such as needs-related payments, for
employed participants is not an allowable follow-up service since,
under WIA section 134(e)(3)(A), needs-related payments are restricted
to unemployed persons who have exhausted or do not qualify for
unemployment compensation and who need the payments to participate in
training. We expect that the provision of training and supportive
services after entry into unsubsidized employment (``post-placement'')
will be limited, and will be part of the IEP, clearly documented in the
participant case file. Such post-placement training and supportive
services may be provided consistent with policies established by the
State or Local Board, and determined to be necessary on an individual
basis by the One Stop partner.
Several commenters noted there is no uniform understanding of
``assessment'' and that many One-Stop partners have different ideas of
what assessment should entail. Some comments also asked for examples or
additional guidance concerning best practices in this area.
Response: The purpose of assessment is to help individuals and
program staff make decisions about appropriate employment goals and to
develop effective service strategies for reaching those goals. We
strongly believe that meaningful service planning cannot occur in the
absence of effective assessment practices. We also believe there is no
single correct approach to conducting assessment--it could be
accomplished through the use of any number of formalized instruments,
through structured interviews, or through a combination of processes
developed at the local level. Further, assessments could be conducted
by the One-Stop operator, by a partner agency, or by an outside
organization on a contract basis.
Clarifying language has been added to the regulations at
Sec. 663.160 which states that initial assessment ``provides
preliminary information regarding the individual's skill levels,
aptitudes, interests, (re)employability and other needs.'' As a core
service, the initial assessment is necessarily a brief, preliminary
information gathering process that, among other things, will provide
sufficient information about an individual's basic literacy and
occupational skill levels to enable the One-Stop operator to make
appropriate referrals to services available through the One-Stop and
partner programs. Comprehensive assessment, which is an intensive
service, is a more detailed examination of these issues and may explore
any number of things relevant to the development of a person's IEP.
These might include some combination or all of the following:
educational attainment; employment history; more in-depth information
about basic literacy and occupational skill levels; interests;
aptitudes; family and financial situation; emotional and physical
health, including disabilities; attitudes toward work; motivation; and
supportive service needs. We expect that all partner agencies in the
One-Stop, under any applicable State policies, will work to achieve
consensus on the required components of the assessment system for the
One-Stop system at any local level. In doing so, they should take into
account any special assessment needs that may be experienced by
individuals with disabilities and other populations with multiple
barriers to employment. As we proceed with the implementation of WIA we
will consider gathering ``best practices'' on the delivery of
assessment services to share with the system.
One commenter suggested adding language to Sec. 663.160 mandating
that assessment and service strategies identified in IEPs conducted by
a non-WIA program, satisfy the conditions of WIA, thereby making
participants eligible for intensive and training services under the
Act.
Response: Because there are differences in the legal and program
requirements among the various programs that might provide assessments,
we do not think we can require that all assessments from any source be
accepted as valid for WIA. We do, however, support efforts to create
common intake systems and to share data across programs, thereby
eliminating duplication of effort for program staff or customers. We
also believe that assessments, evaluations, and service strategies
developed by partner agencies for individuals are the product of that
agency's unique expertise, and, therefore, should be given careful
consideration. We encourage Local Boards and partner agencies to
develop MOU's, with required and optional partners, that provide for
procedures to ensure that, where appropriate, partner assessments will
be accepted as valid for WIA, and WIA assessments will be accepted as
valid for partner programs. Of course, to be acceptable, an assessment,
from any source, must provide the information needed by the One-Stop
operator or the partner program. Local Boards and partner programs
should work together to develop assessment tools that will serve all
partner interests. If necessary for WIA purposes, the One-Stop operator
may choose to supplement assessment information provided from another
agency. Given the limited funding available, it is important to avoid
duplication of services. No changes have been made to the Final Rule in
this section.
Subpart B--Intensive Services
1. Intensive Services for Adults and Dislocated Workers: Section
663.200 discusses intensive services. It provides that intensive
services beyond those listed in the Act may also be provided. Out-of-
area job search expenses, relocation expenses, internships, and work
experience are specifically mentioned to clarify that they are among
the additional intensive services that may be provided. Intensive
services are intended to identify obstacles to employment through a
comprehensive assessment or individual employment plan in order to
determine specific services needed, such as counseling and career
planning, referrals to community services and, if appropriate,
referrals to training.
Several commenters supported Sec. 663.250 which provides that there
is no minimum amount of time for individuals to stay in core or
intensive services, stating that this approach maximizes local
flexibility and ensures that each person's needs are properly
addressed. In general, the comments received on subpart B related both
to expanding or limiting allowable intensive services, to listing
specific populations as among those potentially eligible for intensive
services, and to proposing definitions of ``self sufficiency.''
We received several comments on the definition of intensive
services at
Sec. 663.200(a). Two comments wanted nearly all of the specific
statutory language illustrating intensive services, at WIA Section
134(d)(3)(C), reiterated in this section. They also requested that
``orientation and mobility training for persons with disabilities'' be
added to the list of allowable intensive services. One commenter
recommended adding to the list of intensive services ``English as a
Second Language (ESL), Vocational Education integrated with ESL (VESL),
Functional Context Education Programs that integrate literacy or ESL
and job training.'' Another commenter asked that the Final Rule define
literacy to include reading and math literacy.
Response: Sec. 663.200(a) refers to the provisions at WIA Section
134(d)(3)(C) on the types of intensive services. The list of services
in this section is not intended to be all inclusive and may be expanded
by State Boards and Local Boards based on, among other things, local
conditions and the needs of the various populations within the local
area for such additional intensive services. Although the types of
services recommended by the commenters may have merit for certain
populations and would be permissible WIA-funded intensive services, we
believe that the determination of the specific types of intensive
services to be provided are matters for local decision-making and
should be an integral part of the State and Local Plan process.
Clearly, we expect State and Local Boards to consider the needs of the
local population, including individuals with disabilities and other
special needs populations, in the design and delivery of services which
respond to those needs. It is also expected that concerned parties will
have the opportunity to contribute to the planning and design of local
programs and services through either representation on the State and
Local Workforce Investment Boards or the open plan review and comment
process.
On the suggestion of including ESL, VESL and Functional Context
Education Programs that integrate literacy or ESL and job training as
intensive services, we note that WIA section 134(d)(4)(D), which
describes ``Training services,'' specifically includes adult education
and literacy activities provided in combination with other job skills
training. Such adult education and literacy training activities, when
combined with a job may include ESL, and other needed educational
services for participants, including reading and math literacy, as
determined by Local Board policies, and the individual assessment. As
indicated above, the list of intensive services is not all inclusive.
However, language skills independent of skills training would appear to
be of limited value in leading to (re)employability for individuals
without significant work histories and occupational skills. We expect
that basic language skills will be provided as a short-term
prevocational service when part of an Individual Employment Plan in
which such activities are followed by additional language skills
training as a ``training service,'' in accordance with procedures
established by the State or Local Board. Such determinations are for
State and local decision-making. No change has been made in the Final
Rule.
Several commenters expressed concern about the inclusion, at
Sec. 663.200(a), of internships and work experiences as intensive
services, rather than as training services. Some commenters were
concerned that participants could be exploited in unpaid work
experience and recommended that we establish time limits (e.g., not to
exceed 90 days) for such activities, and emphasize that labor standards
apply. One commenter thought that there may be a potential conflict
with Wage and Hour rules if work experience is in the private for-
profit sector and unpaid. Other commenters wanted to exclude work
experiences with private for-profit employers, limiting it to public
and private non-profit entities, and allow placement with private for-
profit employers only for on-the-job training (OJT), because of the
potential for abuse by employers that the commenter believes has
occurred in the past.
A few commenters indicated that since internships and work
experiences are designed to impart specific skill and behavioral
competencies they should be defined as ``training'' rather than
``intensive services.'' One comment suggested that, consistent with
prior JTPA provisions, work experience under WIA should be only for
those individuals with no significant work history. Another comment
asserted that, given the high cost of providing work experience,
participants could be best served by job readiness or some other
intensive service.
Two commenters indicated that internships and work experience must
be measured through outcomes, including training-related placements,
career ladders, and competencies. One of the commenters added that
these must be paid activities. One commenter recommended that the Final
Rule make clear that work experience could be with a public sector
employer, including a service or conservation corps.
Response: We understand the commenters' general concerns regarding
internships and work experience, particularly unpaid work experience.
We expect that work experience will be paid in most cases and labor
standards will apply in any situation where an employer/ employee
relationship, as defined by the Fair Labor Standards Act, exists. We
have revised Sec. 663.200(b) to clarify this policy.
We believe that the use of unpaid internships and work experiences
should be limited and based on a service strategy identified in an
Individual Employment Plan, and combined with other services. We expect
that such activities will be of limited duration, based on the needs of
the individual participant. State and Local Boards are responsible for
developing policies on the use, and duration, of both paid and unpaid
internships and work experiences as a service strategy. Similarly, we
expect that, along with other activities, State and Local Boards will
monitor and evaluate the effectiveness of intensive services, including
internships and work experience, in responding to the needs of
participants and the results on participant outcomes. While not
minimizing the commenters' concerns, there are good examples of local
programs using paid and unpaid work experience which respond to the
needs of participants, for example the School-to-Work Opportunities
initiative provided many young people the experience the needed to
secure higher paying, higher skilled employment.
On the issue of defining internships and work experience as
``training'' rather than ``intensive services,'' we believe that such
services may respond to the needs of particular clients which, when
combined with core services already received and other intensive
services, may result in positive employment outcomes without the need
for ``training'' services. For other clients, such experiences may
prove beneficial in identifying the need for, and referral to, needed
training services consistent with the Individual Employment Plan. No
change has been made in the Final Rule.
On the issue of limiting internships and work experience to the
public and private non-profit sectors, we feel that such a limitation
would unnecessarily restrict the employment opportunities for clients
seeking services and, to a degree, limit customer choice since the
majority of employment opportunities exist in the private for-profit
sector. Nothing in the rule prevents Local Boards from providing work
experience with community service or conservation
service corps programs. No change has been made to the Final Rule.
2. Delivery of Intensive Services: We received a few comments on
the provisions in Sec. 663.210 about how intensive services are to be
delivered. A few commenters wanted to revise Sec. 663.210(a) to address
special needs populations by adding at the end of the first sentence
``, including specialized One-Stop centers as authorized.,'' and, in
the second sentence inserting after ``service providers'' and before
``that''--``, which may include contracts with public, private for-
profit, and private non-profit service providers, and including
specialized service providers (i.e., community rehabilitation programs
for persons with disabilities).''
Response: Section 134(c)(3) of the Act authorizes specialized
centers as part of the One-Stop service delivery system. Language has
been added to Sec. 663.210(a) in the Final Rule to clarify that
intensive services may be provided through such specialized One-Stop
centers. Section 134(d)(3)(B)(ii) of the Act provides that intensive
services may be provided through contracts with service providers,
which may include contracts with public, private for-profit, and
private non-profit entities approved by the Local Board, and as noted,
language has been added in the Final Rule at Sec. 663.210(a) to reflect
the statutory provision on delivery of intensive services through
contracts with service providers, and have clarified that such service
providers may include specialized service providers. However, we have
not added the parenthetical phrase related to community rehabilitation
programs.
One commenter felt that the Final Rule must make clear that
intensive services cannot be provided through individual training
accounts or vouchers.
Response: We believe that the statutory and regulatory provisions
are sufficiently clear on how WIA-funded services are delivered to
participants. The Individual Training Account is a tool for providing
WIA title I funded training services under section 134(d)(4)(G). The
requirements for delivery of intensive services are described at WIA
section 134(d)(3)(B) and Sec. 663.210. Consistent with our policy of
providing flexibility to States and local areas, we believe the method
of delivery of intensive services is a matter of State and local
discretion, provided that the statutory and regulatory requirements are
met. Therefore, no change has been made to the Final Rule.
3. Participation in Intensive Services: Section 663.220 explains
that intensive services are provided to unemployed adults and
dislocated workers who are unable to obtain employment through core
services and require these services to obtain or retain employment, and
employed workers who need services to obtain or retain employment that
leads to self-sufficiency. Sections 663.240 through Sec. 663.250
specify that an individual must receive at least one intensive service,
such as the development of an Individual Employment Plan with a case
manager or individual counseling and career planning, before the
individual may receive training services and that there is no Federally
required minimum time for participation in intensive services. Each
person in intensive services should have a case management file, either
hard copy, electronic or both. Section 663.240 explains that the case
file must contain a determination of need for training services, as
identified through the intensive service received.
A number of commenters expressed concern that Sec. 663.220(a)
describes eligibility for unemployed individuals as simply requiring
that they are unable to obtain employment through core services while
Sec. 663.220(b) describes employed and/or dislocated workers as in need
of intensive services to obtain or retain employment that leads to
self-sufficiency. Commenters felt this appeared to set a double
standard and conflicted with the provisions of Titles II and IV of WIA
which clearly tie self-sufficiency to employment in all cases. The
commenters felt that these provisions might be interpreted to mean that
unemployed individuals may be put in jobs that do not lead to self-
sufficiency. Commenters recommended that the Final Rule provide that
States and Local Boards may set their own standards for employment,
e.g., using the Self-Sufficiency Standard for all job-seekers.
Response: We agree that the ultimate goal for all employment,
whether under WIA or any other program, should be self-sufficiency for
the job seeker. However, that is different from establishing
eligibility for adults and dislocated workers to receive intensive
services under WIA. The eligibility criteria set forth in Sec. 663.220
restates the statutory definition established in WIA section
134(d)(3)(A). The reference to employment leading to self-sufficiency
appears only in WIA section 134(d)(3)(A)(ii), governing the eligibility
of employed individuals to receive intensive services. A determination
that an employed or dislocated worker is in need of intensive services
to obtain or retain employment that allows for self-sufficiency is one
of the criteria for the receipt of such services. Although the statute
establishes slightly different eligibility criteria for unemployed and
employed adults and dislocated workers to receive intensive services,
we do not believe that there is a direct conflict with the provisions
of WIA Titles II and IV concerning self-sufficiency as it relates to
Adult Education and Literacy Programs and Vocational Rehabilitation
Programs, respectively.
While it is true that the difference in eligibility for intensive
services for unemployed and employed adults and dislocated workers
might be interpreted to mean that unemployed individuals can be put in
jobs which do not lead to self-sufficiency, we want to make clear that
the eligibility criterion is a service requirement and not an
employment outcome. Other provisions in WIA pertaining to wage and
benefit requirements, which appear at WIA section 181, labor standards,
at WIA section 181(b), employment in demand and growth occupations, at
WIA section 134(c)(4)(G)(iii), and employment in jobs with upward
mobility, at WIA section 195(1), to cite a few, all enhance
opportunities for employment which allows for self-sufficiency.
Additionally, the performance standard measures, at WIA section
136(b)(2)(A), will also be a spur to placing, and retaining,
participants in jobs with good, self-sufficient wages. As the
eligibility criteria are statutory requirements which the Secretary
does not have authority to change, no change has been made to the Final
Rule.
We agree with the suggestion the State and Local Boards be allowed
to set their own standards for employment, using the self-sufficiency
standard developed by the State or Local Boards for all employment.
There is nothing in the Act or Interim Final Rule that would preclude
such a policy as a goal for participant outcomes. Any such policy must
meet the minimum requirements in Sec. 663.230 for defining self-
sufficiency. While statutory language prevents us from mandating such a
policy, we do strongly recommend it. No change has been made to the
Final Rule.
One commenter suggested that leaving it solely to the One-Stop
operator to determine who is in need of more intensive or training
services could be problematic, particularly if the operator is a for-
profit entity which could financially benefit from limiting access to
intensive and training services.
Response: WIA contains provisions which address this commenter's
concerns. Section 121(d) of WIA provides that the Local Board, with the
agreement of the chief elected official
(CEO), is authorized to designate or certify One-Stop operators and to
terminate, for cause, the eligibility of such operators. The
eligibility provisions for One-Stop operators at WIA section
121(d)(2)(A) provide that such operators must be designated or
certified through a competitive process or through an agreement between
the Local Board and a consortium of entities that, at a minimum, must
include three or more of the One-Stop partners described at WIA section
121(b)(1). In addition, the One-Stop operators are subject to the
provisions of the local Memorandum of Understanding which must include,
among other things, methods for referral of individuals between the
One-Stop operator and the One-Stop partners, for the appropriate
services and activities. Potential problem areas may also be identified
through local program monitoring and oversight, requiring that action
be taken to correct identified deficiencies. Additionally, the
regulations, at 20 CFR 667.600, provide for the establishment of local
grievance procedures for handling complaints and grievances from
participants and other interested parties affected by the local
workforce investment system, including an opportunity for local level
appeal to the State. These and other provisions will help State and
Local Boards ensure the integrity of the new program. Accordingly, no
change has been made to the Final Rule.
We received a few comments about to the sequencing of intensive and
training services at Sec. 663.240.
One commenter supported the requirement that participants must
receive at least one intensive service such as development of
individual employment plan or individual counseling and career planning
before receiving training services. Another commenter wants an
Individual Employment Plan to be required for any worker seeking
intensive or training services.
Response: We agree that doing an Individual Employment Plan for
participants determined eligible for intensive services is a good idea,
and we recommend that an IEP be developed for every individual who uses
intensive or training services. However, the Act provides that the
development of an Individual Employment Plan is only one of the
intensive services that may be provided to individuals determined to be
in need of such services; it is not a condition to receive that
service. Accordingly, no change was made to the Final Rule.
One commenter acknowledged that the One-Stop partners, the Local
Board, and the CEO must participate in the development of policies for
eligibility beyond core services, but recommended that these policies
must also be available for public review and comment to assure fairness
in the selection process.
Response: We agree with the comment and believe that, although not
specifically required, such policies should be included in the Local
Plan and available for public review and comment. While we cannot
mandate their inclusion, we encourage Local Boards to include such a
policy in their local workforce investment plan development process. If
such policies are not included in the plan, their development, as an
activity of the Board, is subject to the sunshine provision at WIA
section 117(e) and new section 20 CFR 661.307. The sunshine provision
requires that the Board make information about its activities publicly
available through open meetings and minutes of meetings, on request.
These requirements also provide an opportunity for public input into
Local Board plans and policies. No changes have been made to the Final
Rule.
A few comments requested that a new sentence be added at the end
Sec. 663.220(b) to read: ``Persons with disabilities and other special
needs populations may also qualify for intensive services.''
Response: Eligibility for intensive services is open to all
unemployed adults and dislocated workers and all employed adults and
dislocated workers who meet the eligibility criteria and are determined
to be in need of such services. To single out specific populations in
the regulations would imply that there are different criteria for those
populations to receive intensive services, which is not the case.
Individuals with disabilities and other special needs populations may
as easily qualify for intensive services under the existing eligibility
criteria as any other person or group since the eligibility criteria
are based on need for the services. In addition, any barrier to
employment an individual may face (which may include a disability)
should be taken into account during the process of determining
eligibility for intensive services. We believe that the existing
language adequately addresses the statutory requirements, and is
consistent with the key principle to provide maximum flexibility to
States and local areas, that additional proscriptive language in
regulations is not needed.
4. Self-sufficiency: Section 663.230, discusses how ``self-
sufficiency'' should be determined. WIA requires a determination that
employed adults and dislocated workers need intensive or training
services to obtain or retain employment that allows for self-
sufficiency as a condition for providing those services. Recognizing
that there are different local conditions that should be considered in
this determination, the regulation provides maximum flexibility,
requiring only that self-sufficiency mean employment that pays at least
the lower living standard income level. State Boards or Local Boards
are empowered to set the criteria for determining whether employment
leads to self-sufficiency. Such factors as family size and local
economic conditions may be included in the criteria. It may often occur
that dislocated workers require a wage higher than the lower living
standard income level to maintain self-sufficiency. Therefore, the Rule
allows self-sufficiency for a dislocated worker to be defined in
relation to a percentage of the lay-off wage.
From our review of the comments received on Sec. 663.230, it
appears that there is some confusion with respect to the term ``self-
sufficiency'' and how it applies under WIA. A number of commenters are
clearly under the mistaken impression that the provisions of
Secs. 663.220(b) and 663.230 treat ``employment leading to self-
sufficiency'' as a performance outcome measure under WIA, which is not
the case. The commenters raised the point that the manner in which
self-sufficiency is defined could impact performance outcomes if
standards are set low in one area and higher in another. If such
measures will be used in comparisons across State and local lines,
setting higher standards for employment that leads to self-sufficiency
could negatively impact the outcomes achieved by the local system with
higher standards.
WIA section 136 establish the WIA performance accountability
system, including State and local performance measures intended to
assess the effectiveness of States and local areas in achieving
continuous improvement of WIA Title I-B funded workforce investment
activities. Although the core indicators of performance for WIA adult
and dislocated worker activities look at outcomes such as wage gain,
job retention and other factors in determining successful performance
of the programs; ``self-sufficiency'' is not one of the statutory core
indicators. Section 663.230 is not intended to imply that this is the
case.
Unlike predecessor employment and training programs, WIA opens up
employment and training services to
employed adults and dislocated workers. In doing so, the Act
establishes certain criteria that employed workers must meet in order
to receive services beyond core services. As indicated in our response
to the comments received on the ``Participation in Services'' sections,
the use of the term ``self-sufficiency'in Sec. 663.220(b) only applies
in the context of establishing eligibility for employed adults and
employed dislocated workers to receive intensive services under WIA. A
determination that an employed adult or dislocated worker is in need of
intensive services to obtain or retain employment that allows for self-
sufficiency is one of the criteria for the receipt of such services.
This provision serves as a ``limiter'' in determining service
eligibility for such employed workers, which helps ensure that
intensive services are provided to those employed adults or dislocated
workers most-in-need of such services, such as individuals employed in
low skill/low wage jobs and dislocated workers who may be working but
who have not achieved the wage replacement rate for self-sufficiency
defined by a State or Local Board for dislocated workers.
As indicated above, the regulations at Sec. 663.230 were developed
with the recognition that the ``self-sufficiency'' definition would
vary from State-to-State, and even from area-to-area within a State.
Therefore, the regulations provide that, for the purposes of
determining the eligibility of employed and dislocated workers for
intensive services, State and Local Boards are responsible for
establishing the criteria for determining whether employment leads to
self-sufficiency. Accordingly, the regulation provides maximum
flexibility, requiring only that self-sufficiency mean employment that
pays at least 100 percent of the lower living standard income level
(LLSIL).
In general, the majority of the comments received on Sec. 663.230
dealt with two areas: (1) recommendations on factors that should be
included in defining ``self-sufficiency,'' and (2) the need for a more
reliable measure of self-sufficiency than the LLSIL.
A few commenters asked why, since the LLSIL takes family size and
economic conditions into account, there was a need to require the use
of other factors in determining self-sufficiency. The commenters also
asked for clarification of the purpose of asking State and Local Boards
to set additional criteria for self-sufficiency, as well as the benefit
to a local system.
Response: Under JTPA, the LLSIL was used as one of the ceilings to
measure whether a participant was economically disadvantaged. Service
Delivery Areas had little discretion in setting local definitions
different from the statutory definition. Under WIA, in contrast, the
LLSIL is a floor to measure whether a job leads to self-sufficiency and
States and local areas have broad discretion to set a standard above
that floor. The Preamble to the Interim Final Rule clearly indicates
that factors such as family size and local economic conditions may be
included in criteria developed by a State or Local Board to define
self-sufficiency. The LLSIL also includes, and is adjusted using, these
and other factors. In acknowledging that conditions vary from place to
place, we have maintained maximum flexibility by allowing States and
Local Boards to determine what self-sufficiency means in their areas,
which may include other factors not included in determining the LLSIL.
As indicated above, State and Local Boards are responsible for
determining self-sufficiency and must develop criteria for making that
determination. The reason for authorizing the State and Local Boards to
develop criteria for making these determinations is that State and
Local Boards are best able to judge such factors as the cost of living
in a local area and the wages available in jobs in the local area.
Thus, they are best able to set a standard for self-sufficiency that
meet the needs of their local economy. The ``benefit'' to a local
system is the flexibility provided to develop such criteria, above the
established floor of the LLSIL, so that local conditions may be taken
into account. Therefore, no change has been made to the Final Rule.
A number of commenters stated that since the regulations use self-
sufficiency as a means to measure WIA success, it should be defined in
an individualized way. Further, data collection systems must be able to
account for higher living expenses experienced by persons with
disabilities in any determination of ``self-sufficiency''. One
commenter added that Federal and State work incentives used by people
with disabilities should not be viewed as lack of self-sufficiency.
Another commenter said that self-sufficiency must also include measures
for long-term success in the labor market.
One commenter noted that the regulations say that self-sufficiency
for employed dislocated workers may be defined relative to a percentage
of the layoff wage, and suggested specifying in the Final Rule that for
displaced homemakers, self-sufficiency may be defined as a percentage
of household income before displacement. One commenter indicated that
the definition for self-sufficiency must include discrete measures for
benefits, particularly health benefits. Also, the commenter suggested
that we provide guidance and technical assistance to State and Local
Boards to help them develop measures of self-sufficiency that are tied
to family wage/benefit levels needed to live in local communities.
Response: The regulations provide that State and Local Boards have
the responsibility for developing the criteria for determining whether
employment leads to self-sufficiency. With the exception of
establishing the minimum LLSIL requirement for such criteria, we have
refrained from establishing further criteria in the regulations to
provide maximum flexibility to State and Local Boards in developing
such criteria. That flexibility includes tailoring definitions of self
sufficiency to meet factors peculiar to an individual or group. The
State and Local Boards are in the best position to develop criteria
which reflect local economic conditions and other factors impacting on
the financial needs of the populations to be served, in defining self-
sufficiency for determining eligibility for intensive services.
Although the factors suggested by the commenters may have merit, and
serve as examples that Boards might consider, the development of such
criteria is subject to local decision-making and should be explored at
that level. We do, however, expect State and Local Boards to consider,
among other things, the needs of individuals with disabilities, and
other special needs populations with multiple barriers to employment,
in the development of such criteria. We have modified Sec. 663.230 to
reflect this expectation.
One commenter stated that the regulations must require Local Boards
to consult with organized labor and community based organizations in
the development of self-sufficiency measures, and wants the process for
establishing and updating self-sufficiency measures included in the
plan as well as all plan modifications.
Response: Organized labor and community-based organizations will
participate in the development of self-sufficiency measures by virtue
of their representation on State and Local Boards, along with other
representatives and local partners on the board. As with other policies
and procedures not specifically addressed in the Local Plan
requirements at WIA section 118, we believe that, although not
specifically required, such self-sufficiency policies should be
included in the Local Plan and available for public review and comment.
While we cannot mandate
inclusion, we encourage the Local Boards to include such a policy in
their plan development process. If such policies are not included in
the plan, they are, their development, as an activity of the Board, is
subject to the Sunshine Provision at WIA section 117(e) and new section
20 CFR 661.307.
One commenter, while appreciative that self-sufficiency as it
relates to intensive services is set at the lower living standard
income level, added that research has shown that a ``true'' standard
for self-sufficiency should be even higher, at 150 percent of the lower
living standard. The comment concluded that this level has a potential
for setting a high bar for measuring success under WIA--sending a
signal that the system has not succeeded when individuals end up in
minimum wage jobs. The commenter urged that the regulations require
that the Local Plans spell out how the local areas will define self-
sufficiency, so that it may be subject to public comment and review.
Another commenter felt that the LLSIL is not a reliable measure of
self-sufficiency, and recommended that the Bureau of Labor Statistics
(BLS) develop a new LLSIL that reflects the costs of self-sufficiency
for today's families, including the cost of child care. Until such a
measure is developed it was recommend that the self-sufficiency floor
be set at 150% of the LLSIL.
Response: As indicated earlier, ``self-sufficiency'' is an
eligibility criterion for the determination of need for intensive
services for employed workers. Also, the regulations set the floor for
self-sufficiency at employment that pay at least 100 percent of the
LLSIL. State and Local Boards may adjust the level upward in defining
employment that leads to self-sufficiency, based on, among other
things, local conditions and the needs of the populations to be served.
Our intent in drafting Sec. 663.230 was to give State and Local Boards
maximum flexibility to define ``self-sufficiency''. As indicated above,
we intended to use the LLSIL as a floor below which Boards cannot go in
their definition. We agree with the commenters that there are good
arguments that the ``real'' measure of self-sufficiency will be above
the LLSIL in most areas, sometimes significantly above it. We think
that one of the important purposes of the workforce investment system
is to help customers find jobs that will support them and their
families. We expect that State or local definitions will reflect this
reality and this purpose. We do not, however, wish to constrain State
and local discretion too far. Neither can we reasonably select a higher
floor that we can be sure will cover all of the variety of economic
conditions that exist in this diverse nation. Therefore, no change has
been made to the Final Rule.
One commenter wanted to know what action we will take if the State
Board and the Local Board decide to set different criteria for self-
sufficiency and they do not agree?
Response: It is entirely possible that self-sufficiency measures
developed by a State Board and a Local Board may, in some respects,
differ depending upon local conditions and other factors that may not
be present in other areas within the State. The regulations provide
maximum flexibility to State and Local Boards to address this issue. It
is also possible that the State board might establish some general
guidelines for use by Local Boards in developing such measures, with
latitude for the Local Boards to tailor the measures to their local
needs. However, since Local Boards must comply with the State policies,
State Boards are encouraged to adopt policies that Local Boards can
adapt. We do not anticipate that this will be a problem area, however,
if it does become one, we are available to provide technical assistance
upon request.
One commenter felt that using the minimum requirement of the LLSIL
will result in various definitions for different individuals, depending
on the size of the family, and suggested it is more reasonable to use a
percentage of the area's average annual income.
Response: We agree that the LLSIL is based on family size and will
result in different income levels for individuals, depending on family
size. The LLSIL is adjusted for regional, metropolitan, urban, and
rural differences and family size. The use of a single measure as
suggested would be an insufficient measure of self-sufficiency because
it would exclude other factors that impact on such a determination,
most importantly family size. We encourage State and Local Boards to
adopt definitions which reasonably reflects local economic conditions
and family needs, and made no change to the Final Rule.
One commenter would like the definition of low-income to be changed
to 100 percent of LLSIL, rather than 70 percent.
Response: The term ``low income individual'' is statutorily defined
at WIA section 101(25). We do not have authority to change this
statutory provision. However, Sec. 663.230 provides that, at a minimum,
self-sufficiency is at least 100 percent of LLSIL for determining if
employed adults and dislocated workers need intensive services. No
change has been made to the Final Rule.
We received comments on the definition of an Individual Employment
Plan at Sec. 663.245. One commenter recommended inserting, ``including
support services'' between the words ``appropriate combination of
services'' and ``for'' in order to ensure that the potential need for
supportive services is discussed and that appropriate information,
supportive services and referrals for services are provided. Another
commenter suggested replacing the word ``strategy'' with ``process'' to
convey a more interactive mode between case manager and client.
Response: Section 663.245, defining the Individual Employment Plan,
provides that these plans will identify the appropriate combination of
services for the participants to achieve their employment goals. The
``appropriate combination of services'' would, by definition, include
supportive services if determined appropriate, based on the need of the
individual participant. To single out a specific service in the
regulations would imply that the service is a plan element in all
cases, which is not the necessarily the case. A determination on the
need for services, and the appropriate service mix to respond to those
needs, are made at the local level on a case-by-case basis. On the
suggestion to replace ``strategy'' with ``process,'' while not wanting
to appear to quibble over the choice of words, we feel that, in this
case, the former is the more proactive word and conveys the idea of a
well planned approach for individual employment goals worked out in an
interactive way by the case manager and the participant, as envisioned
under WIA. No changes have been made to the Final Rule.
One commenter felt that the employment goals should include earning
a self-sufficiency wage. States should be encouraged to pursue
innovative strategies to meet that goal, as provided for in the Act,
including access to training and employment in nontraditional fields
for women, entrepreneurship training and asset-building instruction and
guidance.
Response: As indicated earlier, we think that self-sufficient
employment is an important goal for all employment whether under WIA or
any other program. The workforce investment system contemplated under
WIA encourages State and Local Boards to develop innovative approaches
in the design and delivery of services which respond to the needs of
all job seekers, including those suggested by the commenter. The Act,
however, only requires a determination that
employment leads to self-sufficiency when deciding whether an employed
adult or dislocated worker is eligible for intensive or training
services and we do not think we can require it as a precondition to all
employment. Therefore, no change has been made to the Final Rule.
Some comments addressed Sec. 663.250, which provides that there is
no minimum length of time a participant must spend in intensive
services.
One commenter recommended that, even though Sec. 663.250 places no
minimum time limit for participation in intensive services before
receiving training services, local One-Stop systems be urged to provide
sufficient intensive services to ensure that individuals are well
prepared for training and long term employment opportunities. Another
commenter said that States and Local Boards must be precluded from
establishing minimum and maximum time periods for participation in
intensive services.
Response: Section 663.250 recognizes that the duration of intensive
services will vary among individual participants. State and Local
Boards have the flexibility to develop policies on the delivery of
intensive services, which may include limits on the duration of
particular services, depending on the types of services provided and
the needs of the participant. We expect that the time spent in
intensive services will be sufficient for the participant to receive
needed services, consistent with employment goals, and have modified
Sec. 663.250 to reflect that expectation. We have not made a change in
the regulations in response to the comment suggesting we preclude
States or Local Boards from establishing minimum and maximum time
periods for participation in intensive services, since we want to
ensure State and local flexibility in this important area.
A commenter recommended that States be required to establish
measures for determining the ongoing effectiveness of intensive
services to assure that participants receive the maximum benefit.
Response: Under WIA sections 111 and 117, State and Local Boards
are required to monitor and evaluate the effectiveness of the WIA
program and we expect this to include monitoring the effectiveness of
intensive services to respond to the needs of participants and to
produce good participant outcomes. Additionally, the State, in
accordance with WIA section 136(e), must conduct ongoing evaluation
studies of Statewide title I-B workforce investment activities. Such
studies are intended to promote, establish, implement and utilize
methods for continuously improving such activities in order to achieve
high-level performance within, and high-level outcomes from, the
statewide workforce investment system. The State is required to
periodically prepare and submit reports of the evaluation studies to
State and Local Boards to promote efficiency and effectiveness of the
statewide system in improving the employability for job seekers and
competitiveness for employers. We think that these requirements meet
the intent of the commenter's request. No change has been made to the
Final Rule.
Subpart C--Training Services
1. Training Services: Training services are discussed in
Secs. 663.300 and 663.320. Training services are designed to equip
individuals to enter the workforce and retain employment. Under JTPA, a
dislocated worker participating in training under title III of JTPA is
deemed to be in training with the approval of the State Unemployment
Compensation Agency. With such approval, unemployment compensation
cannot be denied to the individual solely on the basis that the
individual is not available for work because he or she is in training.
Although there is no comparable provision in WIA, this JTPA provision
will remain in effect during the transition period under the
Secretary's authority to guide that transition from JTPA to WIA. We
will seek an amendment adding similar language to WIA which would deem
all adults participating in training under title I of WIA to be in
approved training for the purposes of unemployment compensation
qualification.
One commenter asked that we clarify in the Final Rule that, under
WIA, training may be provided to both employed and incumbent workers.
Response: While this statement is true on its face, we believe
there is confusion within the workforce development community about the
distinctions between ``employed'' and ``incumbent'' workers. The State
Board defines the term incumbent worker since incumbent worker training
is an allowable statewide activity under WIA section
134(a)(3)(A)(iv)(I). Funding for incumbent worker training must be
drawn from the State's combined adult, youth, and dislocated worker
``15-percent funds.'' As provided at 20 CFR 665.320(d)(2), the State
may also use a portion of its dislocated worker ``25-percent rapid
response funds'' to devise and oversee strategies for incumbent worker
training. These latter funds, however, may not be used to directly fund
the incumbent worker training itself. These individuals do not
necessarily have to meet the eligibility criteria for dislocated
workers contained at section 101(9) of the Act nor do they have to meet
the criteria for employed adults and dislocated workers under WIA
section 134(d)(4)(A).
``Employed'' adults and dislocated workers may also receive
training services through the One-Stop system under WIA when certain
conditions are met. These individuals must meet the statutory
definition of an eligible adult or dislocated worker and, to receive
intensive services, and ultimately training, an employed individual
must be determined by a One-Stop operator to be in need of such
services to obtain or retain employment that leads to self-sufficiency.
Funding for these activities comes from the ``formula'' funds provided
to the Workforce Investment Area.
One commenter felt that, in order to protect participants, any
training service that a Local Board offers that is in addition to those
listed in the Act must be identified in the Local Plan so that there
can be public review and comment. Similarly, any additional training
services that are offered after the approval of the Local Plan must
also be subject to public review and comment.
Response: We agree with the comment and believe that, although not
specifically required, the training services that the Local Board
intends to offer should be included in the Local Plan and available for
public review and comment. While inclusion is not mandated, we
encourage the Local Boards to include such information in their plan
development process. This allows the Local Board to communicate its
vision and its proposed priorities in the delivery of services, and
ensures that all interested parties have an opportunity to review and
comment on those proposed policies. We also agree with the comment that
the plan should contain policies concerning plan modifications,
including a definition of ``substantive change,'' and provide that when
such changes occur there should be a similar process allowing for
public review and comment. As indicated in earlier discussions on Local
Plan requirements, if such policies are not included in the plan, they
are, as an activity of the Board, subject to the sunshine provision at
WIA section 117(e) and new Sec. 661.307 and must be developed in an
open manner. No change has been made to the Final Rule.
Two commenters suggested that the regulations should list non-
traditional job training, including entrepreneurial training, asset
building, financial literacy training, micro enterprise
development, and vocational English as a Second Language training, as
well as other kinds of training services not specifically listed in the
Act.
Response: We support the provision of a wide variety of training
services for eligible customers of the workforce development system,
including all those mentioned by the commenter. As noted in the
regulations at Sec. 663.300, the list of training services in the Act
is not all-inclusive and additional services may be provided. We
believe that this language provides State and Local Boards the
flexibility necessary to offer training services appropriate to their
particular needs, without prescribing to the Local Boards what those
services should be. Accordingly, no change has been made in the Final
Rule.
2. Determining the Need for Training: Section 663.310 provides,
among other things, that the One-Stop operator or partner determines
the need for training based on an individual (1) meeting the
eligibility requirements for intensive services; (2) being unable to
obtain or retain employment through such services; and (3) being
determined after an interview, evaluation or assessment to be in need
of training. Section 663.310 requires that, to receive training, an
individual must select a program of services directly linked to
occupations in demand in the area, based on information provided by the
One-Stop operator or partner. If individuals are willing to relocate,
they may receive training in occupations in demand in another area.
We received numerous comments about the impact of training
eligibility criteria on individuals with disabilities. The commenters
were concerned about the requirement that eligible individuals must be
found to have the skills and qualifications to successfully participate
in the selected program of training services. Commenters felt that this
could limit the opportunities available for disabled persons.
Response: While we are sensitive to these concerns, we must point
out that this criterion is taken directly from the Act at section
134(d)(4)(ii), and is, therefore, a required element for all One-Stop
operators making training eligibility decisions. This criterion applies
only to training funded by WIA title I and not to training funded by
other WIA partners. We believe all training eligibility decisions
should be made on the basis of each individual's skills, abilities,
interests, and needs. It would, of course, be inappropriate to enroll
any individual, whether or not they are disabled, into training
programs for which they did not have the skills to be successful. We
also recognize that care must be taken not to stereotype persons with
barriers to employment, including disabilities, when evaluating their
skills, abilities, interests, and needs. Occasionally, some question
may arise as to whether a particular individual--such as a person with
disabilities--has the capacity to be successful in a given training
program, taking into consideration the availability of reasonable
accommodation or modification under 29 CFR 37.8. An advantage of the
One-Stop service delivery structure is that partner agencies with
specialized expertise will be available, when necessary, to assist with
determinations as to what training may fall within a particular
individual's skills and qualifications. We encourage One-Stop operators
and staff to take advantage of the unique expertise of these partners
when serving individuals with special needs. We also note that
individuals with a disability, or any others, who feel they have been
improperly assessed by One-Stop staff regarding their skills and
qualifications may appeal the decision using the appropriate local
grievance or complaints procedures established in accordance with WIA
section 181(c) and 20 CFR 667.700. No change has been made to the Final
Rule. An individual who feels that he or she has been discriminated
against because of his or her disability may file a complaint in
accordance with procedures for processing discrimination complaints, as
set forth in 29 CFR 37.70 through 37.80.
One comment suggested that Sec. 663.310 was not sufficiently
specific in linking training services to occupations in demand, as
required by the Act.
Response: The language used in the rule at Sec. 663.310(c) is
essentially the same as that found in the Act at
section134(d)(4)(A)(iii). Section 134(d)(4)(A)(iii), discussing
eligibility for training uses the phrase ``directly linked to the
employment opportunities in the local area or in another area. . . .''
In contrast, section 134(d)(4)(G)(iii), dealing with ITA's uses a
slightly different phrase, ``directly linked to occupations that are in
demand in the local area. . . .'' We assume that when Congress uses
different language, it means different things. In this case, we think
that the differences in phrasing mean that a person may be eligible to
receive training if she/he seeks training in an occupation in which
there are jobs available in the local area or in another local area to
which the person is willing to relocate. On the other hand, training
may not be financed through an ITA unless the training sought is in an
occupation in demand in the local area or in an area to which the
participant is willing to relocate. Thus, if a participant is found
eligible for training because he/she seeks training in an occupation in
which there are employment opportunities available but which is not
classified by the local area as an occupation in demand, the training
can only be provided if it can be arranged through one of the three
exceptions to ITA's. While it is possible that individual may not be
able to receive WIA-funded training because of this distinction, we
think that there will not be many cases where this occurs. Since
Sec. 663.310 correctly reflects the statutory language, no change has
been made to the Final rule. We do, however, encourage State and Local
Boards to consider a range of approaches for identifying ``employment
opportunities in the local area,'' including allowing participants to
demonstrate employer-identified job opportunities.
We received a number of comments about the effects of the
requirement that training programs selected must be directly linked to
demand occupations in the local area, or in another area to which the
individual is willing to relocate, on individual with disabilities.
Commenters felt that this could restrict persons with disabilities from
participating in the title I program and suggested granting a waiver of
the requirement in appropriate cases.
We think that the commenters' concerns about the occupations in
demand requirement are misplaced. As discussed above, the requirement
for training eligibility is that the training must be linked to an
employment opportunity available in the local community or in a place
to which the participant is willing to relocate. The phrase on which
the commenters focus, the occupations in demand requirement, is an
eligibility condition for receipt of an ITA. Thus, a participant may be
eligible for and receive training in any occupation (job) that is
available to the participant. If the job is not in an occupation in
demand, the participant may not be able to have the training funded
through an ITA, but may still receive the training through one of the
exceptions to ITA's, for example, through contracted training provided
by a CBO with demonstrated effectiveness in serving populations with
special needs. No change has been made to the regulations.
There were several other more general comments about the criteria
governing training eligibility. One commenter urged that training
services be linked with employment opportunities in high wage/high
skill demand occupations that provide career and upgrade opportunities.
Response: We agree that this is a worthy goal, and one which
promotes employment opportunities leading to economic self-sufficiency.
However, in order to ensure that State and Local Boards retain maximum
flexibility to establish training policies that best meet their unique
needs and circumstances, we have refrained from including additional
regulatory requirements. The regulations do contain other provisions
that impact on this issue. The provisions on performance
accountability, at 20 CFR 666.100, include measures on, among other
things, job retention, wage gains and credentialing which may serve as
an incentive to stress training in high wage and high skill demand
occupations. No change has been made in the Final Rule.
Similarly, another comment suggested that Sec. 663.310(c) be
modified to clarify that training should only be for employment
opportunities ``that provide a self-sufficiency wage.'' We agree, in
concept, that the ultimate goal for all employment, whether under WIA
or any other program, should be self-sufficiency for the job seeker. We
expect that State and Local Boards will consider a wide range of issues
including training for jobs that allow participants the opportunity to
attain self-sufficiency. Section 663.310, as written, is essentially a
recitation of the Act's training eligibility provisions. No change has
been made to the Final Rule.
One comment suggested that the One-Stop partners, the Local Board,
and the chief elected official must participate in the development of
training eligibility policies, and that those policies must also be
made available for public review and comment to assure fairness in the
selection process.
Response: We agree that the Local Board, which must include
representatives of the One-Stop partner agencies, is the entity
responsible for making policy at the local level. We also believe that,
although not specifically required, such policies should be included in
the Local Plan and available for public review and comment. We
encourage the Local Boards to include such a policy in their plan
development process. If such policies are not included in the plan,
their development, as an activity of the Board, is subject to the
sunshine provision at WIA section 117(e) and new section 20 CFR
661.307. No change has been made to the Final Rule.
Another commenter suggested that Title I of the Act ``radically''
and ``bureaucratically'' restricts access to job skills training, and
believed that the regulations require unemployed individuals to accept
any job available, regardless of whether that job enables the
participant to rise above the poverty level or not.
Response: We strongly disagree that the regulations require the
result suggested by the commenter. The intent is not to require
unemployed individuals to accept just any job. As we have stated above,
in responding to comments on eligibility for intensive services, the
different eligibility criteria for unemployed adults or dislocated
workers should in no way be construed to allow participants to be
placed in jobs that do not provide the opportunity for participants to
attain self-sufficiency. The regulations clearly state there are no
federally imposed minimum waiting periods before participants can
progress to the next tier of services. Neither is there a federally
imposed minimum number of failed job searches to demonstrate
eligibility for the next tier of services. Rather, the regulations
reflect our position that decisions regarding which services to
provide, and the timing of their delivery, are best made on a case-by-
case basis at the local level. Finally, we again note that neither the
Act nor the federal regulations mandate a ``work first'' system that
forces individuals into the first-available employment, regardless of
whether or not that employment leads to self-sufficiency. No change has
been made to the Final Rule.
3. Requirements When Other Grant Assistance is Available to
Participants: Section 663.320 implements the requirements of WIA
section 134(d)(4)(B), which limit the use of WIA funds for training
services to instances when there is no or insufficient grant assistance
from other sources available to pay for those costs. The statute
specifically requires that funds not be used to pay for the costs of
training when Pell Grant funds or grant assistance from other sources
are available to pay those costs. Section 663.320 is intended to give
effect to this WIA requirement and still give effect to title IV of the
Higher Education Act (HEA), as amended (20 U.S.C. 1087uu), which
prohibits taking into account either a Pell Grant or other Federal
student financial assistance when determining an individual's
eligibility for, or the amount of, any other Federal funding assistance
program.
Section 134(d)(4)(B) of WIA requires the coordination of training
costs with funds available under other Federal programs. To avoid
duplicate payment of costs when an individual is eligible for both WIA
and other assistance, including a Pell Grant, Sec. 663.320(b) requires
that program operators and training providers coordinate by entering
into arrangements with the entities administering the alternate sources
of funds, including eligible providers administering Pell Grants. These
entities should consider all available sources of funds, excluding
loans, in determining an individual's overall need for WIA funds. The
exact mix of funds should be determined based on the availability of
funding for either training costs or supportive services, with the goal
of ensuring that the costs of the training program the participant
selects are fully paid and that necessary supportive services are
available so that the training can be completed successfully. This
determination should focus on the needs of the participant; simply
reducing the amount of WIA funds by the amount of Pell Grant funds is
not permitted. Participation in a training program funded under WIA may
not be conditioned on applying for or using a loan to help finance
training costs.
With such coordination and arrangements, the WIA counselor is
likely to know the amount of WIA funds available to the WIA participant
when calculating the amount of financial assistance needed for the
participant to complete the training program successfully. The WIA
counselor needs to work with the WIA participant to calculate the total
funding resources available as well as to assess the full ``education
and education related costs'' (training and supportive services costs)
incurred if the participant is to complete the chosen program. This
also ensures both that duplicate payments of training costs are not
made and that the amount of WIA funded training is not reduced by the
amount of Federal student financial assistance in violation of 20
U.S.C. 1087uu.
It is important to note that the Pell Grant is not school-based;
rather, it is a portable grant for which preliminary eligibility can,
and should, be determined before the participant enrolls in a
particular school or training program. The Free Application for Student
Aid (FASA), which is used to establish Pell Grant eligibility, should
be readily available at all One-Stop centers for assistance in the
completion of these ``gateway'' financial aid applications.
Section 663.320(c) implements the requirements of WIA section
134(d)(4)(B)(ii). This section permits a WIA participant to enroll in a
training program with WIA funds while an application for Pell Grant
funds is pending, but requires that the local
workforce investment area be reimbursed for the amount of the Pell
Grant used for training if the application is approved. Since Pell
Grants are intended to provide for both tuition and other education-
related costs, the Rule also clarifies that only the portion provided
for tuition is subject to reimbursement.
In the limited cases where contracts are used rather than ITA's,
the contracts negotiated by the One-Stop center must prohibit training
institutions or organizations from holding the student liable for
outstanding charges. Otherwise, the performance agreements would be
undercut because the incentive for the institution or organization to
perform would be removed. Also, the practice of withholding Pell Grants
from students is prohibited by the U.S. Department of Education.
We received a few comments on Pell Grant issues. One commenter
stated that WIA section 134(d)(4)(B) does not require disbursement from
that portion of Pell paid to WIA participants for education-related
expenses. The commenter recommended that, although the issue was
discussed in the preamble to the Interim Final Rule, the rule should be
modified to state that the training provider must reimburse only for
``tuition portion'' of the Pell grant. The commenter also raised the
issue of the need for reimbursement arrangements for WIA funds used to
``underwrite the training'' with training provider while Pell funding
is pending. The commenter also requested clarification on whether
tuition costs include or exclude specifically required fees for lab,
supplies and other fees. Another commenter noted that the regulations
appear to assign the One-Stop operator the responsibility for making
arrangements with training providers to process reimbursements when WIA
participants enroll in training while their application for a Pell
Grant is pending. This precludes the other One-Stop partners from
having this responsibility. The commenter recommended that we replace
all references in the regulations that assign specific responsibilities
to the One-Stop operator with language that allows for flexibility.
Response: We will continue to work with the U.S. Department of
Education to address the coordination of Pell grant assistance with WIA
title I funded training assistance. We will provide additional guidance
to the WIA Workforce Development System through administrative
issuance. We are also pursuing a legislative amendment to make clear
the order of payment for training costs for individuals eligible for
both WIA activities and Pell Grant educational assistance. In the
meantime, we have adopted the changes suggested by the commenters.
Subpart D--Individual Training Accounts
1. Definition of an Individual Training Account: Sections 663.400
through 663.430 contain information about Individual Training Accounts
(ITA's). A key reform tenet of the Workforce Investment Act is that
adults and dislocated workers who have been determined to need training
may access training with an Individual Training Account which enables
them to choose among available training providers, thus bringing market
forces into federally funded training programs. Section 663.410
provides a definition for an ITA that seeks to provide maximum
flexibility to State and local program operators in managing ITA's.
These regulations do not establish the procedures for making payments,
restrictions on the duration or amounts, or policies regarding
exceptions to the limits of the ITA, rather they provide that authority
to the State or Local Boards.
One commenter felt that the accountability requirements in the Act
and regulations deny States and Local Boards the flexibility needed to
ensure that individuals have enough financial power over their use of
ITA's, but believes that this is a necessary result of the
accountability requirements of the Act and regulations. The commenter
suggested that, to accomplish the desired flexibility, Congress and the
Department must lower performance and accountability expectations.
Response: We believe the performance and accountability
expectations of the Act must be balanced against the flexibility
provided to the State and Local Boards to design their ITA programs.
The performance and cost information that training providers must
submit to be identified as an eligible provider of training services
under WIA section 122, combined with the negotiated local area
performance measures, are essential for ensuring high quality
individual and program-wide outcomes. Within this structure, we have
attempted to give State and Local Boards the maximum possible
discretion to develop ITA programs. No change has been made to the
Final Rule.
Procedures for making payments--State and Local Boards have the
authority to establish procedures for making payments for ITA's funded
under WIA section 134(d)(4)(g) and Sec. 663.410. There were a number of
comments about the nature of payments to training providers under
ITA's. Two commenters suggested that the regulations explicitly state
that payments to community colleges for a training program or program
segment must be made under the same terms that the colleges require of
other students, rather than incrementally. Other commenters supported
the current language in Sec. 663.410 that offers the flexibility for
incremental payments to training providers.
Response: We generally agree that the normal form and manner of
tuition payments to community colleges should not change as the result
of the use of ITA's. At the same time, we do not want to prohibit Local
Boards from adopting methods that tie payments to contractually agreed
upon benchmarks that can benefit both participants and training
providers, and support the achievement of performance measures. No
change has been made to the regulations.
One commenter, which favored retention of the regulatory language
authorizing interim payments, seemed to believe that such a payment
methodology would also apply to the supportive services that an ITA
participant might be receiving.
Response: We do not read the regulations to require that when a
Board chooses to make incremental payments for training, it is under an
obligation to pay for other associated services in that same manner.
Another commenter recommended that the regulations require an ITA
payment system that incorporates independent verification procedures
that will ensure that the training provider has measured and certified
the training received. That same commenter also suggested we establish
a payment system that is efficient and easy to use while providing the
strongest fiscal controls to prevent abuse.
Response: We have chosen not to impose a particular payment
procedures but we note that the process of identifying eligible
training providers in and of itself helps to ensure quality training.
We also encourage Local Boards to adopt other practices that promote
quality training, such as documentation by the training provider of the
delivery of training or the participant's achievement of agreed upon
benchmarks or outcomes, on-site and desk reviews of the training
provider and regular contact with the participant. We also agree that
payment systems should be designed to ensure strong fiscal
accountability and to
prevent fraud and abuse. No change has been made to the Final Rule.
Role of the case manager--WIA section 134(d)(4)(A)(ii) provides
that one of the eligibility criteria for adults and dislocated workers
to receive training services is that, after an interview, evaluation,
or assessment and case management, the participant has been determined
by a One-Stop operator to be in need of training services and to have
the skills and qualifications to successfully participate in the
selected program of training services. Commenters supported the role
that is described for case managers in Sec. 663.410, that is, assisting
the participant to select the eligible provider from which to purchase
training. One of these commenters further suggested that we emphasize
the need for skilled, professional case managers while another pointed
out that demonstration studies on the use of vouchers have found that
skill, professional case management was the key factor in determining
the effectiveness of vouchers
Response: We acknowledge the critical role of case managers and
urge, where necessary, States and/or local areas to arrange quickly for
staff training to ensure case managers have the understanding and
knowledge to carry out this role effectively. We believe, however, that
prescribing the role of case managers in the regulations is
inconsistent with our principle that the regulations should permit
State and Local Boards the maximum possible flexibility. The
regulations have not been changed.
National data collection and evaluation of the new ITA system:
There were also comments urging us to collect information on the actual
costs of training and to conduct evaluations of the relationship
between training and job placement, as well as the relationship between
the amount and duration of ITA's and the success of workers in securing
jobs that provide self-sufficiency. Additionally, the commenter asked
us to establish a system to collect information on outcomes for ITA's
including the relationship of training to job placement.
Response: We believe that both evaluations and analyses of JTPA
SPIR data have already demonstrated the strong relationship between
training, including training durations, and outcomes. The evaluations
that will be conducted of current ITA demonstrations will further
examine the issues raised by the commenters. Also, WIA section
136(d)(2)(A) requires States to report on entry into unsubsidized
employment that is related to the training provided to participants,
and section 136(d)(2)(C) requires States to report the cost of
workforce investment activities (which include training) relative to
the effect of the activities on the performance of participants, to the
Department as part of their annual report. We encourage State and Local
Boards, as part of their ongoing responsibility to manage performance,
to examine those same issues. In addition, we will continue to provide
technical assistance regarding various program design issues and the
implications and potential unintended consequences that must be
considered in making ITA policy decisions. No change has been made to
the Final Rule.
Two other commenters suggested that the regulations authorize the
use of ITA's to pay the full cost of customized training programs in
which tuition is not otherwise charged.
Response: The Act specifically identifies customized training as an
exception to ITA's. In general, customized training is provided based
on a specific training curriculum ``customized'' to the particular
worker skill needs of a specific employer or group of employers. While
participants may choose to participate in such training, there is no
provision for customer choice among training providers, rather there is
a single training provider who has been selected to ``customize'' the
training. Because there is no customer choice on the part of the
participant, ITA's are not an appropriate mechanism for customized
training. On the separate issue of the use of WIA funds to pay for the
full cost of customized training, we are constrained by section
101(8)(C) of the Act, which requires the employer to pay not less than
50 percent of the cost of the training. No change has been made to the
Final Rule.
2. Limitations on the amount and duration of ITA's: A number of
commenters raised concerns about the policies that State and Local
Boards might establish with respect to a dollar and/or duration
limitation for ITA's. Section 663.420 provides guidance for State and
Local Boards in their policy decisions to impose amount or duration
limits on ITA's. In general, although the regulations allow limits, we
expect that the limits will be realistic and will neither preclude
people from getting the training that they need nor providers from
participating in the system. In setting limits, State and Local Boards
need to consider the factors described above to be sure that the limits
are not too restrictive.
A commenter recommended that the limits on ITA's be as flexible as
possible to allow workers to invest in training that will lead to a
living wage and long-term self sufficiency and a second urged State and
Local Boards to consider the needs of different populations in setting
limits.
Response: Section 663.420(b)(1) allows State and Local Boards to
establish limits based on a participant's needs, which should include
the need for a job that leads to self-sufficiency. In addition,
Sec. 663.420(b)(2) allows State or Local Boards to set a range of
limits, an option which Boards may choose when considering the varying
needs of different population groups. These two options provide
considerable flexibility to the Local Board to support a policy that
provides for variations in the funding of ITA's. Thus, particular
occupational training that leads to self-sufficiency, or furthers other
goals of the workforce investment, could be set at different dollar
limits. Similarly, Local Boards could seek to ensure a large number of
providers of entry level skills training are available to aid
participants in avoiding transportation costs and long commutes during
training. While we agree with the comment, and do not want limits of
amount of duration to preclude people from getting the training they
need or training providers from participating in the system, in order
to preserve State and local flexibility, no change has been made to the
regulations.
To ensure that State and Local Board are able to make informed
decisions about how effectively different populations can be served
under an ITA system, commenters recommended that we encourage State and
Local Boards to gather data from training providers and other
stakeholders on the actual costs of and time needed for training. One
commenter focused this concern on low-income unemployed individuals.
The commenter asked that we include affirmative examples to States and
Local Boards in regulations or in guidance to ensure that such
limitations do not impede the success of intervention. Other commenters
suggested that there is evidence that previously established limits
have been too restrictive to effectively serve low income populations.
Response: We believe that is important for the eligible training
provider list to include sufficient numbers of training providers to
ensure that customer choice is a reality. This means that State and
Local Boards must develop ITA policies that ensure the marketplace can
operate and that a number of training providers across a
wide variety of occupations will believe it is in their best interests
to apply to become an eligible provider. If the number of training
providers seeking to be included on the eligible provider list is
sufficient to ensure healthy competition, then the need for extensive
cost analysis may be eliminated. No change has been made to the Final
Rule.
We have begun to develop additional information about ITA's,
including information drawn from a new ITA demonstration that will
explore a number of approaches to the administration of ITA's and
provide a laboratory for stakeholders and local operators to visit and
observe. We will use this information to provide guidance to the system
through conference workshops.
Numerous comments concerned Sec. 663.420, which gives the State or
Local Board the authority to establish limits on the dollar amount and
the duration of an ITA. Several commenters were concerned that cost and
duration limitations on ITA's will limit customer choice. They were
especially concerned that cost limitations would be set too low to
provide a range of eligible training providers from which to choose.
The commenters voiced concern that the cost limitations could be set at
amounts less than the actual cost of training services. They requested
that we provide regulations or guidance to ensure that ITA
administration does not become a limiting factor in serving job
seekers. Similarly, many commenters felt that limits on the amount and
duration of an ITA conflicted with Title I of the Rehabilitation Act
and limits informed choice of individuals with disabilities.
Response: We are also concerned that the dollar and duration
limitations could have the potential for limiting customer choice.
Consequently, Sec. 663.420(c) provides that these limitations should be
implemented in a manner that maximizes customer choice. We emphasize
that any limits established by a State or Local Board apply only to
training under Title I of WIA, not to training under Title I of the
Rehabilitation Act. We also note that, under WIA, access to training or
any other services is not an entitlement. Local Boards must exercise
discretion in establishing ITA's for eligible participants. The
regulations at Sec. 663.420(b) permit State and Local Boards to
establish ITA limitations in a number of different ways and provides
substantial discretion to allow for other circumstances such as the
availability of other funding, the contribution such training would
make to the overall workforce skill needs of the community, or the
needs of the individual participant to be taken into consideration.
We have added language to Sec. 663.420(c) to clarify that any ITA
limitations that are established may provide for exceptions to the
limitations in individual cases. We believe that more effective
programs will include this type of flexible limitation policies, so
that individuals are not excluded from training solely because of an
ITA limitation. In establishing guidance or limits on training funding,
a number of factors may be taken into consideration, such as the skill
shortages identified by local employers, the costs of training to
address these occupations in demand, and the training needs and
interests of the participants. The availability of other funding
resources should also be considered in the development of the training
portion of the Individual Development Plan, including Rehabilitation
Act funds, TANF, Pell Grants, and other Federal and State funding.
Coordination and cost sharing between Local Boards and Rehabilitation
Act grantees as well as other partners with training funds is a matter
for local negotiation and inclusion in the MOU. 20 CFR part 662
contains a detailed discussion of MOUs.
DOL's WIA title I performance accountability specifications do not
measure cost per participant, therefore, the setting of cost
limitations for ITA's will not have an impact on the performance
accountability system. The decision to establish cost and duration
limitations should be made after fully considering their benefits to
the overall workforce system and their effects on individuals and
populations in need of training. In making such decisions, State and
Local Boards should consider all public costs, not simply available WIA
funds, the value of such training in contributing to the
competitiveness of local businesses that may be ``at risk'' or may be
expanding and other economic development benefits.
One commenter suggested that the language in Sec. 663.420(a) which
gives the State or Local Board responsibility for establishing dollar
and duration limits be revised to give the Local Board the sole
responsibility.
Response: State and Local Boards both play an important role in the
ITA/eligible training provider systems. Local Boards have an important
familiarity with the local labor market and local training providers,
while the State plays an important leadership role in the establishment
of the workforce investment system as a whole--including the ITA/
eligible training provider system. As a result, no change has been made
to the Final Rule.
One commenter asked how disagreements between a State and Local
Board over the establishment of limits to ITA's would be resolved.
Response: The State Board's limits would prevail in such a case.
State or Local Boards should consider the range of costs and types of
training in demand by employers throughout the State in setting limits.
Policies concerning spending limits on ITA's should not unduly exclude
eligible providers or unduly limit customers' training options in any
geographical area of the State. Any cost limits established by State or
Local Boards apply only to WIA funds, and not to the total cost of
training. Where the cost of the desired training exceeds the
established State or Local Board limit for ITA's, an eligible
participant should still be able to access WIA ITA funds, when the WIA
training funds will be supplemented with funds from other sources--such
as Pell Grants, scholarships, severance pay and other sources. Section
Sec. 663.420 has been changed by adding a new paragraph (d) to reflect
the ability of participants to access ITA funds when the ITA funds will
not pay the full cost of training. This approach is supported by
Sec. 663.310(d) which provides that training services may be made
available to employed and unemployed adults and dislocated workers who
are unable to obtain sufficient grant assistance from other sources to
pay the cost of training and require WIA assistance in addition to
other sources of assistance.
Although discussing limits to ITA's, one commenter suggested that
State and Local Boards be required to establish criteria and written
policies governing access to and the distribution of ITA's and that the
process for developing these policies be required to include
consultation with appropriate labor organizations. Further, the
commenter suggested that such policies be available to the interested
parties, the general public and all individuals served through the One-
Stop system.
Response: The State is required, in 20 CFR 661.220(d), to provide
an opportunity for public comment on and input into the development of
the state plan prior to its submission. The required opportunity for
public comment requires that representatives of labor organizations, as
well as representatives of business and chief elected officials be
afforded the opportunity to comment. Similarly, Sec. 661.345(b)(2)
requires that the Local Board provide an opportunity for public comment
on and input to the development of the local workforce
investment plan, prior to its submission, be provided to
representatives of labor organizations and business. WIA section 117(e)
also requires the Local Board to provide information to the public on
Local Board activity.
We believe that access to and distribution of ITA's is based
broadly on the Local Board's policy decision about the amount of
funding to be devoted to training services and, more narrowly, on
individual participants' need for training and their eligibility for
it. We strongly encourage Local Boards to consult with a variety of
organizations, including organized labor, when making policy decisions
concerning ITA's. No change has been made to the Final Rule.
A commenter recommended that we should include a prohibition on
discrimination on the basis of union affiliation in the selection of
training programs.
Response: We believe that WIA section 122 and Subpart E of part
663, which provides further direction regarding eligible training
providers, establish sufficiently objective procedures to ensure
against discrimination in the selection of training offered either by
unions or by employer organizations. No change has been made to the
Final Rule.
Another commenter requested authority for training providers to
reject students with ITA's where they think the student will not
succeed in, or benefit by, the program.
Response: There is no requirement that eligible training providers
must accept any participant who seeks to enroll under the local
workforce investment area's ITA program. Further, we are not limiting
an eligible training provider's ability to set entrance criteria or
screening tests to determine that the participant is likely to success
in the particular training curriculum. We believe that the intensive
services provided to a participant, especially assessment and career
counseling in consultation with the case manger in developing a
realistic Individual Employment Plan, combined with customer-oriented
information on eligible training providers that reflects the entrance
criteria for the desired training curriculum, will be critical to the
participant's selection of appropriate training in which they can
achieve success and ultimately, job placement. No change has been made
to the regulations.
3. Exceptions to ITA's: The Act, at Sec. 134(d)(4)(G)(ii), and the
regulations at Sec. 663.430, provide that, under certain limited
circumstances, contracts for training rather than ITA's may be used.
Specifically, on-the-job training contracts with employers and
customized training contracts are authorized. Contracts may also be
used when there is an insufficient number of eligible providers in a
local area. This exception applies primarily to rural areas. The
exceptions to ITA's are to be used infrequently. The Act reforms the
local service delivery system by eliminating the current practice of
assigning participants to contracted training services and instead
establishing a system that maximizes customer choice in the selection
of training providers. When the Local Board determines there are an
insufficient number of eligible providers in the local area to
accomplish the purposes of a system of ITA's, and intends to use
contracts for services, there must be at least a 30 day public comment
period for interested providers.
Contracts for Special Populations--Section 663.430(b) also
authorizes contracts for training when the Local Board determines that
there are special populations that face multiple barriers to employment
and that there is a training services program of demonstrated
effectiveness offered by an eligible provider. Section 663.430(a)(3)
explains that an eligible provider in this case is a community based
organization (CBO) or other private organization. We have received many
suggestions about this exception and the extent to which it may be
used.
Response: Generally, it is our position that this exception is
intended to meet special needs and should be used infrequently. Those
training providers operating under the ITA exceptions still must
qualify as eligible providers, as required at Sec. 663.505. We believe
that effective eligible training providers, including CBO's and other
training providers, can and will compete for individual training
accounts and that providers should view the use of ITA's as an
opportunity to expand their customer base.
Numerous comments recommended that the list of special participant
populations be expanded to include individuals with disabilities who
require multiple services over extended periods of time. Other
commenters recommended that the list also be expanded to include older
individuals or low income older individuals. Two commenters disagreed,
in part, with the recommendation that individuals with disabilities be
included as a special participant populations. They made the point that
such individuals should not be automatically perceived as a special
participant population and excluded from benefitting from ITA's.
Response: The Act does not specifically list any of these
populations in section 134(d)(4)(F)(iv). The Act and Sec. 663.430(b)
do, however, list as one of the four special participant populations
defined in the Act ``Other hard-to-serve populations as defined by the
Governor involved.'' As a result, Governors have the authority to add
additional groups, such as individuals with disabilities, to the list
contained in the statute. Other provisions that assure that persons
with disabilities will have full and fair access to WIA services. For
example, section 188(a)(2) provides that no individual shall be
excluded from or denied benefits under any WIA title I program or
activity on the basis of disability. Regulations implementing this
provision are found at 29 CFR part 37. In addition, section 112(b)(17)
of the Act requires the Governor to describe, in the State Plan, how
the State will serve the employment and training needs of ``individuals
with multiple barrier to employment (including older individuals and
individuals with disabilities).'' We believe that this direction, which
is included in the WIA State Planning Guidance, provides sufficient
direction for consideration of these and other population groups not
specifically mentioned in section 134(d)(4)(F)(iv) of WIA. The
requirement for public comment on the plan in Sec. 661.220 of the
regulations allows interested parties the opportunity to promote the
interests of those two groups.
In addition, we would like to clarify that within the special
participant populations that are listed in the Act and that are
identified by the Governor, there will be individuals for whom an ITA
is the most appropriate avenue to employment. We encourage One-Stop
operators and intensive service providers to consider all training
options when working with special participant populations. It is
important that consumer reports reflect adequate information to
determine the appropriateness of training provided by an eligible
training provider with regard to accessibility, auxiliary aids and
services, etc., to enable customers with special needs to make an
informed choice.
One commenter recommended that the Governor be required to solicit
comments from key stakeholders, including business, organized labor,
and CBO's, when identifying additional populations.
Response: Section 112(b)(17)(A)(iv) of the Act requires the
Governor to have this information in the State plan, which is, of
course, subject to comment.
No change has been made to the Final Rule.
Criteria for ``Demonstrated Effectiveness'': Section 663.430(a)(3),
provides that when the exception for special populations is used, the
Local Board must have in place criteria it developed to determine
``demonstrated effectiveness,'' particularly as it applies to the
special participant population it proposes to serve. This determination
is in addition to meeting the requirements for qualifying as an
eligible training provider. The criteria listed in the regulation are
illustrative and Local Boards should develop specific criteria
applicable to their local areas.
One commenter suggested that, in selecting CBO's as training
providers through a contract for services to serve special participant
populations, State and Local Boards should be able to consider quality
training even if that training program is not included on the eligible
provider list.
Response: We cannot agree to that recommendation since WIA section
122 requires that all training providers meet the requirements for
inclusion on the eligible provider list. Section 122(f) lists two
exceptions to the requirement that deliverers of training services be
eligible training providers; on-the-job training and customized
training. We interpret these exceptions to be exclusive; providers of
all other training services must go through the eligible provider
process. No change has been made to the Final Rule.
One commenter felt that one of the criteria of demonstrated
effectiveness established in Sec. 663.430(a)(3), ``financial
stability,'' was too restrictive and should not be a factor in
considering CBO's which have a record of providing crucial services to
disadvantaged groups.
Response: In order to ensure the proper expenditure of Federal
funds, we believe the financial stability of a CBO or of any private
organization is relevant in a Local Board's determination when
selecting a training provider for special participant populations.
While financial stability is not the only factor that a Local Board may
consider, and may not be the decisive factor, it is reasonable for a
Local Board to consider the financial stability of an organization in
which it may invest scarce training funds. No change has been made in
the Final Rule.
The same commenter also recommended that we change
Sec. 663.430(a)(3)(ii) to establish, as an alternative to the listed
program measures, the criterion of a demonstrated ability to do
outreach to and serve populations that face multiple barriers.
Response: Section 663.430(a)(3) does not limit Local Boards to the
listed factors in establishing criteria for demonstrated effectiveness.
The Local Board may also consider the CBO's or private organization's
success in reaching out to disadvantaged populations. No change has
been made to the Final Rule.
Another commenter suggested expanding the criteria for demonstrated
performance to include the attainment of a self sufficiency wage.
Response: Although we have, in Sec. 663.230, established a minimum
definition of self-sufficiency--employment that pays at least the lower
living standard income level, as defined in WIA section 101(24)--the
criteria for determining whether employment leads to self-sufficiency
is left to the State and Local Boards. This means the criteria to be
applied could vary substantially from area to area. In addition, the
performance accountability system, established in section 136 of WIA,
does not refer to attainment of self-sufficiency. While, as we have
said above, we recognize the importance of self-sufficiency as a goal
for all employment and training activities and urge State and Local
Boards to adopt that standard, we are not prepared to impose that
standard on the system. However, Sec. 663.430(a)(3) does not limit the
ability of the State or Local Board to adopt additional criteria of
demonstrated effectiveness by including attainment of self-sufficiency
as a measure of demonstrated performance. No change has been made to
the regulations.
One commenter suggested expanding the criteria for demonstrated
performance to include the demonstrated ability to serve ``hard to
serve'' populations.
Response: We have modified Sec. 663.430(a)(3)(ii) to clarify that
the criteria listed in that section are among the ways available to
demonstrate effective delivery of services to hard to serve
populations.
4. Requirements for Consumer Choice: WIA section 134(d)(4)(F), and
the regulations, at Sec. 663.440, identify the information on training
providers that must be made available to One-Stop center customers.
They require Local Boards to make available, through the One-Stop
centers, the eligible training provider list as well as the performance
and cost information associated with each provider. Section 663.440(c)
provides additional guidance on how participants may use that
information to select a training provider and have an ITA established
on their behalf. We received a number of comments on the contents of
the information, the manner in which it would be made available, and
the level of authority the Local Board and the One-Stop operator will
have in establishing ITA's.
A commenter expressed concern that, if the same entities that
establish ITA's also offer training, they will have the potential to
steer individuals toward their own training services.
Response: The introduction of ITA's was intended to maximize
customer choice and reduce any forms of inappropriate referral
practices that may have existed. The limited circumstances in which
exceptions to ITA's are authorized are a further safeguard against the
recurrence of such practices. The Act, at Section 117(f)(1)(B), also
establishes stringent conditions that a Local Board must meet before a
Governor can consider a waiver of the general prohibition against a
Local Board's provision of training. Further, the Act, at section
134(d)(4)(F), requires Local Boards to make available through the One-
Stop centers the eligible training provider list and the program and
cost information associated with each eligible provider. The
availability of that information will allow participants to assume more
control over the choice of training provider. Finally, through its
monitoring and oversight role, the State may identify and review any
unusual patterns of eligible provider usage to determine if corrective
action is necessary. We believe these protections are sufficient to
avoid the practices the commenter fears. No change has been made to the
final regulations.
Another commenter asked how customer choice requirements apply to
incumbent workers.
Response: It is important to recognize the difference between
incumbent and employed workers. As we have explained above, incumbent
workers are individuals who are employed, however, not all incumbent
workers are also eligible for services to employed worker as described
in WIA sec. 134(d)(3)(A)(ii). Training for incumbent workers is
specifically authorized only as a Statewide Workforce Investment
Activity under WIA section 134(a)(3(A)(iv)(I) and Sec. 665.210(d). This
is an optional activity in which the States may decide to engage.
Generally, incumbent worker training is developed with an employer or
employer association to upgrade skills training of a particular
workforce. It usually takes place in the workplace or after work hours
for employees of a specific employer or employer association.
There is no requirement that all incumbent workers to be trained must
be determined to be in need of training services to obtain or retain
employment that allows for self-sufficiency. Frequently, such training
is part of an economic development or business retention strategy
developed by a State. In such cases, the employer is involved in the
arrangement of the training curricula and usually has a role in the
selection of the training provider. Since the training is usually
arranged by the employer with a specific training provider, there is no
customer choice on the part of the individual incumbent worker other
than whether or not to participate in the training. This issue is also
addressed in the preamble discussion of 20 CFR part 665.
In contrast, when a One-Stop operator determines that an employed
worker meets the eligibility criteria, established under WIA Sec.
134(d)(3)(A)(ii), for training with local (formula) funds, that worker
should is no different from any other worker found eligible for
training services and must enjoy the same degree of consumer choice as
any other person eligible for training. An Individual Employment Plan
would be developed for the employed worker as part of the intensive
services provided to the participant and a training plan, if so
indicated, developed in the same manner as for any other participant.
Since the customer choice requirements do not apply to incumbent worker
training, no change has been made to the regulations.
Availability of training funds--There were several comments about
the language in Sec. 663.440(c) which requires a One-Stop operator to
refer an eligible individual to a training program and establish an ITA
``unless the program has exhausted funds for the program year. . . .''
One commenter suggested that, to avoid the early exhaustion of program
funds, we should add language requiring the use other available State
and local resources, particularly for incumbent workers, before using
WIA funds for ITA's. Another commenter felt that the language infringed
upon a Local Board's authority to allocate funds among core, intensive
and training services, presumably by mandating the expenditure of funds
on training at the expense of core and intensive services.
Response: It is important to emphasize that, under section
134(d)(4)(B), the opportunity for an individual to enroll in a training
program does not rely exclusively on the availability of WIA training
funds. In all cases, the resources of partners as well as Federal,
State, local and personal funding sources should must also be taken
into account in the development of the Individual Employment Plan.
Thus, an eligible individual may receive intensive services and receive
assistance in making arrangements for training regardless of whether
the local WIA program has exhausted training funds for the program year
and is unable to provide an ITA. Since we have already discussed the
requirements to consider and use other funding sources in Sec. 663.320,
we do not think it is necessary to add an additional mandate that
operators consider other funding sources before approving training.
Section 195(2) of the Act establishes a ``maintenance of effort'' type
of requirement by mandating that WIA funds be used for activities that
are in addition to those already available in the local area, and
Sec. 663.310(d) specifies that training services may be made available
to eligible adults and dislocated workers who are unable to obtain
grant assistance from other sources. In an effective One-Stop system,
the One-Stop operator will have knowledge of additional resources and
will be able to coordinate WIA services with those of other partner
programs, thus increasing the opportunity to provide increased services
to customers of all the partner programs. Finally, incumbent worker
training activities are funded from statewide workforce investment
funds authorized under section 134(a)(3)(A)(iv)(I) and rather than
local training funds.
In response to the second comment, the ``exhausted funds'' language
of Sec. 663.440(c) is not intended to contradict, and must be read in
conjunction with, the Local Board's authority to determine the
appropriate mix of core, intensive and training services in the local
area, described in Sec. 663.145(a). In recognition of this, we have
changed Sec. 663.440(c) to clarify that a One-Stop operator must refer
an individual to training and establish an ITA except when the Local
Board determines that training funds have been exhausted.
The commenter also suggested that the costs of referral to training
be borne by the One-Stop operator.
Response: No change has been made in the regulations since
Sec. 663.440(d) already requires that the cost of that referral be paid
by the applicable Title I adult or dislocated worker program.
Another commenter suggested that in order to assure ``true''
customer choice, the consumer information provided by the Local Board
should include a listing of the types of jobs into which providers have
placed people and the wages earned in those jobs.
Response: WIA section 122(d) does not require eligible training
providers to submit specific information on jobs, although the Governor
or the Local Board may choose to include such a requirement; that same
section does, however, require the submission of information on wages
and permits requiring the submission of information on the percentage
of individuals who obtain employment in an occupation related to the
program (WIA sec.122(d)(1)(A)(i)(II)). We note, though, that the
information required by section 122(d) must be submitted for each
specific training program on the list of eligible training programs,
not for the eligible provider's full range of programs. Information on
the specific training program, along with information submitted at the
Governor's or Local Board's option on training-related placements, may
serve as a useful substitute for the specific job information the
commenter seeks. As discussed further in subpart E, WIA section
122(d)(3) sets conditions under which additional information may be
requested. No change has been made in the regulations.
Another commenter supported the requirement in Sec. 663.430(a)(2)
for a public comment period of 30 days before a Local Board can
determine that there is an insufficient number of eligible training
providers in the local area to accomplish the purposes of ITA's.
Response: The regulations retain that requirement.
Subpart E--Eligible Training Providers
Subpart E describes the methods by which organizations qualify as
eligible providers of training services under WIA. It also describes
the roles and responsibilities of Local Boards and the State in
managing this process. Although no single entity has full
responsibility for the entire process, the State must play a leadership
role in ensuring the success of the eligible provider system. The
Governor establishes minimum performance levels for initial
determination of non-Higher Education Act/registered apprenticeship
providers and for all subsequent eligibility determinations. The Local
Board may establish additional local performance levels for subsequent
eligibility determinations. The eligible provider process requires a
collaborative effort among the State, Local Boards, and other partners.
The regulations attempt to amplify and clarify the intent of the Act,
by linking statutory language on eligible providers in WIA section 122
with the provisions covering Individual Training Accounts
(ITA's) in WIA section 134. In Sec. 663.505, the regulations clarify
that all training providers, including those operating under the ITA
exceptions, must qualify as eligible providers, except for those
engaged in on-the-job and customized training (for which the Governor
may establish qualifying procedures, as discussed in Sec. 663.595).
Finally, in order to ensure the strong relationship between the
eligible provider process and program performance, Sec. 663.530
establishes a maximum eighteen month period for an organization's
initial determination as an eligible provider.
Before publication of the Interim Final Rule, some traditional
providers of training under previous workforce programs, such as
community-based organizations, expressed concern that they would face
difficulties in participating in this system. The regulations clarify
that such organizations have the opportunity to deliver training funded
under WIA, provided that they deliver services that customers value and
meet training performance requirements. It is important that States
provide access to these organizations in order to maximize customer
choice. States should provide access to a broad and diverse range of
providers, including CBO's, while maintaining the quality and integrity
of training services.
A commenter recommended that the Act and the regulations for
subpart E be changed to permit use of a competitive procurement
process, such as that permitted for youth providers in the Act, since
the identification of eligible training providers for adult training
services was viewed as ``overly complicated.''
Response: We recognize that the eligible training provider
requirements may present significant implementation challenges to
States and local areas. However, these requirements are essential to
the new system envisioned under WIA, in which consumer choice and
accountability are key principles. Although ITA's must be used for most
training services, contacts for training are permissible in certain
limited circumstances (discussed in Sec. 663.430): for customized or
on-the-job training (OJT); when there are a limited number of
providers, or for programs of demonstrated effectiveness offered by
CBO's or other private organizations for special participant
populations facing multiple barriers to employment. Under 20 CFR
661.350(b)(10), Local Boards are required to describe in their local
plan the competitive process to be used to award contracts for training
services when exceptions are made to the use of ITA's. No change has
been made to the Final rule.
Several commenters suggested that language should be added in
Sec. 663.500 and throughout the subpart to clarify that programs, not
providers, are made eligible, and that eligibility is not automatically
conferred on all of an eligible provider's programs.
Response: We agree that clarification is needed. We have added
language throughout the subpart (in Secs. 663.500, 663.510, 663.515,
663.535, 663.550, 663.565, 663.570, 663.585, and 663.590) to clarify
that:
- programs as well as providers must be eligible;
- providers are eligible to provide training services only
for the programs described in their applications;
- the Local Board and the Governor may require application
information on providers as institutions, in addition to information
regarding programs;
- application requirements for all programs not eligible
under the Higher Education Act nor registered under the National
Apprenticeship Act (regardless of the type of provider) fall under the
Governor's initial eligibility procedures;
- providers submit performance information on programs and
those programs that don't meet performance levels must be removed from
local lists;
- providers may continue to be eligible if at least one of
their programs is eligible (even if other of their programs are
determined ineligible and removed from the local and State lists); and
- State and local lists must include information on eligible
training programs as well as providers.
A number of commenters wanted us to add specific language in
Sec. 663.500 and throughout this subpart on the need to assure that
there is diversity in the types of programs offered and in entrance
requirements, that community-based organizations are included, and that
nontraditional employment for women be a suggested focus for new
training providers.
Response: Under Sec. 663.440(a), training services must be provided
in a manner that maximizes consumer choice. We agree with the
commenters that maximizing consumer choice requires that Governors and
Local Boards ensure that eligible training provider systems offer a
diverse array of high-quality programs that meet the varying career
interests, skill levels, and training needs of WIA customers, including
low income adults, dislocated workers, and other priority groups under
WIA. Governors and Local Boards are strongly encouraged to provide
outreach, technical assistance, and leadership to different types of
providers, including CBO's and providers of non-traditional employment
and training opportunities, in order to ensure a diverse array of high-
quality training options. In fact, 29 CFR 37.42 requires recipients
(including Governors and Local Boards) to conduct outreach efforts to
various populations. Community-based organizations, recognized at
Sec. 663.590 as being able to apply and be determined eligible, have,
in many local areas, proven to be a key source of quality programs. We
do not think it would be useful to try to prescribe a uniform rule to
cover the variety of State and local selection processes and criteria
that will exist. We encourage Governors and Local Boards to administer
the selection process in a manner that assures that significant numbers
of competent providers, offering a wide variety of programs are
available to customers, and have added language indicating this to
Sec. 663.500.
A number of commenters were concerned that the requirements in
section 122 of the Act and all of Secs. 663.500 through 663.595 of the
regulations would be in conflict with ``informed choice'' requirements
in title I of the Rehabilitation Act of 1973, as amended by title IV of
the Workforce Investment Act. Commenters noted that State Vocational
Rehabilitation (VR) agencies have their own vendor approval procedures,
maintain their own vendor lists, and that some organizations that work
with persons with disabilities may not be on a WIA eligible training
provider list.
Response: While VR agencies are required partners in the One-stop
system, participants in VR-funded services can select vendors,
including training providers, approved under the State VR agency's
procedures and policies. Only when VR participants also use WIA title I
funds must training services be from a provider and program eligible
under WIA title I.
Both title I of WIA and Section 102(d) of the Rehabilitation Act
(title IV of WIA) contain provisions that we believe are intended to
serve the same goal--providing participants with the opportunity and
the means to make informed choices about the services they receive.
Title I of WIA mandates that training be delivered in a manner that
maximizes consumer choice and requires the use of ITA's, provision of
descriptive and performance information on eligible providers and
programs, and delivery of intensive services, such as assessment and
case management. Similarly, section 102(d) of the Rehabilitation Act
requires State VR agencies to implement policies to
assure that individuals can exercise informed choice in decisions
related to assessment, selection of employment outcome, specific
vocational rehabilitation services, the entity that will provide
services, the employment setting in which services will be provided,
and the methods available for procuring services.
We encourage State VR agencies and WIA systems to harmonize and
coordinate their respective policies and procedures on informed
consumer choice and the creation of lists of, and information on,
eligible or approved providers of training services. Both systems could
explore, for example, common application requirements or approval
criteria for vendors of training services, expediting the application
or approval process to assure timely inclusion of vendors from the
partner system, providing outreach to their respective providers on how
they can become eligible or approved under the partner's system, and
creation of a common, accessible consumer information system on
programs and providers that can be used by participants in both WIA
title I and VR as they exercise their choice.
As we noted earlier, we encourage Governors and Local Boards to
ensure that the eligible training provider system provides access to a
broad diversity of programs that can accommodate the varying needs,
career interests and preferences of priority groups under WIA. We
encourage Governors and Local Boards to make sure that State and local
WIA procedures, while maintaining the quality and integrity of training
services, afford adequate and timely opportunities for applications
from training programs and providers serving individuals with
disabilities. Also, when developing initial and subsequent eligibility
procedures, under Secs. 663.515(c)(1)(I) and 663.535 (a)(1), Governors
must solicit and take into consideration the recommendations of
providers. We encourage Governors to extend this opportunity to
providers offering training services to individuals with disabilities.
Since we do not see a conflict between WIA's customer choice and VR's
informed choice requirements, no change has been made to the Final
rule.
Section 663.505--What are Eligible Providers--One commenter wanted
to ensure that Sec. 663.505 permits apprenticeship programs with
applications pending to be recognized as eligible training providers.
Response: Apprenticeship programs awaiting State or federal
approval can be recognized as eligible by Local Boards. However, since
such programs are not yet registered under the National Apprenticeship
Act, the provider would have to apply under the Governor's procedures
for initial eligibility, which requires the provision of performance
and cost information. No change has been made to the Final rule.
A commenter suggested that Sec. 663.505 (b)(2)(iii), be revised to
specifically mention service or conservation corps as other eligible
providers of training services.
Response: Service or conservation corps programs are among the
types of programs that could be eligible to provide adult training
services under State and local initial eligibility procedures. There
are many types of organizations that could apply and become eligible,
but we do not think it is appropriate to try to enumerate them all, or
to specify certain groups. No change has been made to the Final rule.
One commenter wanted us to ensure that CBO's, whose eligibility is
discussed in Sec. 663.505(b)(2)(v), are not left out as eligible
training providers simply because they are not ``automatically''
eligible under WIA section 122(b)(1).
Response: Since most CBO's and their programs are not HEA-eligible,
they will have to provide program performance and cost information in
initial applications and their programs will have to be determined
eligible by the Local Board. However, we anticipate that many CBO
programs will be able to meet performance requirements both initially
and subsequently, and thus will be included on local and State lists.
As noted earlier, we strongly encourage States and Local Boards to
provide outreach and technical assistance to providers such as CBO's,
to ensure that there is a wide array of providers and programs that can
both accommodate WIA participants' diverse training needs and career
interests and meet accountability requirements. Community-based
organizations, recognized at Sec. 663.590 as being able to apply and be
determined eligible, have proven able in many communities to meet these
skill needs and career interests while increasing participants'
earnings and employment. We encourage CBO's to take part in the
consultation process required under Secs. 663.515(c) and 663.535(a).
Under these provisions Governors must solicit and take into
consideration the recommendations of training service providers and
interested members of the public on both initial and subsequent
eligibility procedures. We believe that the regulations adequately
protect the interests of CBO's, thus, no change has been made to the
Final rule.
Section 663.508--Definition of a Program of Training Services--A
number of commenters felt that the definition of a program of training
services in Sec. 663.508 should be clarified. The commenters suggested
that a course or sequence of courses leading to a ``competency or skill
recognized by employers'' and ``a training regimen that provides
individuals with additional skills or competencies generally recognized
by employers'' were similar, but vague. Commenters wondered if one
definition applied to services for the unemployed while the other
applied to such services for the employed, and what the word
``generally'' was intended to convey. One commenter recommended that
the definition require that competencies and training regimen be
identified and approved prior to training, and several commenters
suggested that the competencies approved by labor organizations or
labor-management committees should be acceptable. Another commenter
suggested that the regulation clarify that the competencies and skills
could include increased literacy or increased English language
abilities.
Response: The definition of a program of training services was
intended to ensure that individuals using ITA's have access to a broad
array of training options, and that no arbitrary limits would be
established as the length, nature, location or outcomes of the
training, unless required under other parts of the Act or regulations
(such as requirements for on-the-job training and customized training
at Secs. 663.700-663.720). We did not intend to differentiate between
training programs for the employed or unemployed. Section 663.508 has
been revised to clarify that a program of training services can consist
of one or more courses or a training regimen, and that either of these
can lead to a formal credential (such as a degree or certificate) or to
the acquisition of skills and competencies recognized by employers for
a specific job or occupation, as well as general skills and
competencies necessary for a broad range of occupations, or job
readiness. Section 663.508 has also been changed to indicate that the
skills and competencies should be recognized by employers and
identified in advance. Such competencies may include literacy or
English language abilities. We encourage Local Boards and Governors to
develop application requirements that solicit information on the skills
and competencies to be taught and how
these are ``recognized'' by employers, labor-management committees, or
labor organizations, particularly when programs do not offer a formal
credential. We also encourage Governors and Local Boards to create
policies and procedures for initial and subsequent eligibility (and
data reporting) to accommodate situations in which WIA participants'
training plans do not require a full ``program,'' but rather only part
of a program or courses from different programs.
Section 663.510--State and Local Roles in Managing the Eligible
Provider Process--One commenter asked that Sec. 663.510 be modified to
ensure that the public is provided access to the provider list and
performance information, that the lists are provided upon request, and
that satellite and affiliate offices of the One-Stop system also
receive the list.
Response: Under Sec. 663.555, the State list and consumer reports
containing performance information must be made available throughout
the One-stop system as a core service to the general public, to WIA
participants, and to participants whose training is supported by other
One-Stop partners. We strongly encourage States and local One-Stop
systems to assure that the list is available in all satellite and
affiliate offices. In addition, under 29 CFR 37.9, the provider list
and performance information must be made available in alternate formats
to individuals with disabilities. Since the regulations already
accommodate the commenter's request, no change has been made to the
Final rule.
A number of comments criticized Sec. 663.510 for failing to address
States' and Local Boards' responsibility to ensure that available
training options include nontraditional occupational training for
women, small business development and other programs targeting
particular populations or industrial sectors for which there may be
high demand. Commenters asked that the Final Rule include language
requiring States and localities to ensure that the eligibility
determination process assures the availability of non-traditional
training options for women. One commenter wanted the regulations to
require States and Local Boards to conduct outreach to CBO's that
provide services to disadvantaged populations to help them apply for
certification and contracts.
Response: As noted earlier, in order to support informed customer
choice by WIA participants with diverse skill needs and career
interests, Local Boards and Governors should make every effort to
ensure there is a broad range of programs and providers identified on
State and local lists. We strongly encourage States and Local Boards to
conduct outreach and technical assistance to various types of providers
in order to enhance the likelihood that customers will have access to a
broad range of programs and providers. Since the State and Local Boards
are accountable for their own performance, they must ensure that
programs other than HEA and NAA programs included on the initial lists
and all programs included on subsequent lists have met minimally
acceptable levels of performance. Although we strongly encourage States
and Local Boards to take affirmative steps to make sure that programs
offering non-traditional training and programs offered by CBO's are
included on their eligible provider lists, ultimately, the programs
must meet State and local performance requirement to be included. We
cannot require States and Local Boards to include programs that do not
meet their legitimate performance standards. Thus, no change has been
made to the Final rule.
One commenter requested that the regulations clarify that cost and
performance information is required for all providers, as indicated, in
the commenter's view, by the requirement at Sec. 663.510(c)(3) that the
designated State agency disseminate the State list ``accompanied by
performance and cost information related to each provider * * *''
Response: The commenter is partially correct. For subsequent
eligibility, performance and cost information is required of all
programs. For initial eligibility of non-HEA and non-NAA programs and
providers, Sec. 663.515(c)(3)(ii) requires Local Boards to use the
Governor's procedures for determining eligibility and those procedures
must require that appropriate portions of cost and performance
information be provided. For initial eligibility of HEA and NAA
programs and providers, Sec. 663.515(b) provides that the application
contents are determined by Local Boards, which are not required to
request performance and cost information. Local Boards are not
precluded from requesting such information, but the Act does not permit
performance levels to be used in determining initial eligibility of HEA
and NAA programs. No change has been made to the Final rule.
One commenter was concerned that, as local lists are combined to
form a State list, as discussed in Sec. 663.510, some programs and
providers could be included for which a Local Board would not want to
allow customers to use title I training funds. The commenter further
recommended that the regulations give final authority to Local Boards
to choose what programs and providers to include on a local list.
Response: We recognize that Local Boards may have legitimate
concerns about the quality or integrity of a program or provider. Such
concerns may arise if a program from another area's performance is
unknown or lower than the levels set by the Local Board for subsequent
eligibility, if there have been, or continue to be, problems known to
the Local Board related to training program inputs (such as curriculum,
instruction, or equipment) or if the provider has not complied with
administrative or financial requirements. These problems may exist for
programs and providers included by other Local Boards or by the Local
Board itself. However, the Board must permit eligible participants to
choose from providers on the State list which must include: (1) HEA and
NAA programs which submit complete applications for initial eligibility
in accordance with the Local Board's requirements, (2) non-HEA, non-NAA
programs which meet the criteria in the Governor's procedures, and (3)
programs placed on the list by another Local Board and approved by the
State agency.
The Act, at section 122(e)(4)(b), requires that individuals
eligible to receive training have the opportunity to select any
eligible provider from any local area that is included on the State
list. Local Boards are required to make this list available to the
local One-Stop system. We believe that, to maximize customer choice,
Local Boards must ensure that participants are informed about the State
and local lists, encouraged to use them, and informed of their right to
choose any programs on the list. For individuals determined eligible
for training services, there are only three conditions a Local Board
can impose on participants using ITA's: the training must be in an
occupation for which there is demand, the individual must have the
qualifications to succeed in the program, and the selection occurs
after consultation with a case manager. Since Local Boards must allow
title I funds to be used in the programs selected by training
participants if these three conditions are met, Local Boards should
ensure that the participants select the provider that best suits their
individual needs especially when the provider is not located in the
local area. Local Boards are encouraged to consider:
- Enhancing the quality of information on programs and
providers.
High quality information can aid customers in making informed judgments
and steering clear of questionable programs or providers. We encourage
Local Boards to make recommendations on the types of information to be
collected as part of the Governor's procedures for initial eligibility
for non-HEA, non-NAA programs and providers and to ensure that their
own applications for HEA and NAA programs and providers solicit the
needed types of information and to obtain appropriate information to
determine subsequent eligibility. Extensive supplementary information
on providers and programs can also be included on the local list under
Sec. 663.575 and Local Boards and case managers can present additional
information during the decision-making process, or encourage WIA
customers themselves to acquire additional information on programs and
providers under consideration. Local Boards can also coordinate with
one another on the types of information required in initial
applications and in supplementary information, to assure that there are
high levels of information on programs in all local areas.
- Providing quality guidance and continuing case management.
Individuals eligible for training services select a program after
consultation with a case manager. States and Local Boards can take
steps to ensure that case managers: encourage individuals to fully
utilize the information available in the local or State list and in the
consumer reports; provide additional information beyond the lists and
consumer reports; assist individuals in doing their own research on
programs or providers; and help individuals identify specific options
and systematically compare them. If an individual does chose a
questionable program, case managers can monitor the individual's
progress and the training program's performance, in order to identify
and take action to avoid potential problems.
- Creating procedures to assure high performance. State and
Local Boards can create procedures to hold questionable providers
accountable for performance. For example, procedures could permit ITA's
to be paid incrementally upon completion of specific milestones.
Because the Act encourages broad customer choice, we do not think
it appropriate to change the regulations. State and Local Boards have
the flexibility to help individuals to make the best choice for their
circumstances.
A commenter wanted Sec. 663.510 to ensure that Local Boards have
the flexibility to set policy on providers and programs that reflects
local conditions and that the State cannot add its own providers to the
State list.
Response: WIA section 122(e)(2) makes it clear that, in compiling
the State list, the State has authority to include only providers and
programs submitted as part of local lists. The State has no authority
to include additional providers and programs. However, Local Boards
have only limited authority to determine which programs or providers
are included or excluded from the local list. Rather, the Local Board
must, for initial eligibility, include all HEA and NAA programs and
providers for which complete applications are submitted and include
non-HEA and non-NAA programs which meet the Governor's criteria, which
are not required to, but may, permit adjustments to performance levels
for local conditions. For subsequent eligibility, all programs must
meet minimum acceptable performance levels specified in the Governor's
procedures and adjusted according to the Governor's procedures for
local factors and the characteristics of the population served by the
providers. Local Boards have the flexibility to require higher, but not
lower, levels of performance. We encourage Local Boards to actively
participate in the development of the procedures for determining
initial and subsequent eligibility.
We recognize that, during both initial and subsequent eligibility,
there may be programs which a Local Board believes are valuable in
meeting local workforce needs that do not meet performance levels (or
other criteria) and, therefore, cannot be included on the local list.
To avoid this situation, we encourage local Boards to make their
recommendations on the Governor's initial eligibility procedures, an
opportunity which Governors are required to make available to Local
Boards under Sec. 663.515(c)(1)(I). As discussed earlier, in order to
ensure access to a broad array of programs that can meet customer's
diverse skill needs, career interests, and preferences, we also
encourage Local Boards, to provide outreach and technical assistance to
providers.
We recognize that, in other instances, a Local Board may
reluctantly have to include programs or providers which it believes are
questionable on the local list. To avoid individuals selecting
questionable programs or providers or to prevent any problems if they
are selected, we encourage Local Boards to explore the approaches
suggested above, for enhancing the quality of information, providing
high quality case management and guidance, and creating procedures to
enhance performance. Since the regulation accurately reflects the
statutory requirements, no change has been made to the Final rule.
One commenter was concerned that the Preamble and Sec. 663.510(b)
were inconsistent in discussing the need for setting performance levels
for initial eligibility.
Response: It was unclear what the commenter found inconsistent. The
Governor determines the initial eligibility procedures, including
appropriate of levels of performance, for non-HEA and non-NAA programs
and sets minimum acceptable levels for all programs for subsequent
eligibility (though such levels can be increased by the Local Board).
These provisions are included in Secs. 663.515 and 663.535.
Another commenter stated that the process for determining eligible
providers, as described in Sec. 663.510, should be as transparent as
possible, and allow qualified providers to become eligible while
setting sufficient thresholds to limit participation of unqualified
providers.
Response: We believe that the Act and regulations provide States
and Local Boards with the opportunity to set up systems that will be
transparent and achieve the goals suggested by the commenter. No change
has been made to the Final rule.
Some commenters questioned whether Secs. 663.510(c)(2) and
663.515(d) give too much authority to designated State agency by
authorizing it to verify performance information on providers' programs
submitted by the Local Board. One commenter felt that the regulations
exceed the language of the Act, which only requires that the State
determine if performance levels are met. Another commenter suggested
that the regulations should not shift this responsibility onto States
and that, if States have this responsibility, we should provide support
and technical assistance in carrying out verification. The commenter
also suggested that the Act appears to require a duplicative function
by Local Boards and the designated State agency in determining if
performance levels are met.
Response: We agree that the Act, in section 122(e)(2), specifies
that the State determines if performance levels are met for programs
submitted on local lists. However, we believe that the role of the
State agency in verifying performance information is implicit in the
statutory scheme, based on the State agency's authority to enforce
provisions of section 122(f)(1) on the intentional submission of
inaccurate performance information (which can only be determined as
inaccurate if there is a
way to verify the information submitted) and on the requirement that
providers submit verifiable program-specific information. We have
changed the language in Sec. 663.510(c)(2) to clarify that the State
agency must determine if programs meet performance levels, and, in so
doing, may verify the accuracy the performance information submitted.
We have also revised Sec. 663.515(d) to clarify that the designated
State agency determines if the performance levels are met for programs
Local Boards submit as part of their local list. In addition, since
State agency consultation with the Local Board is required under
section 122(f)(1) and verifiable information is required to be
submitted to the Local Board, we believe that the Act also provides
implicit authority to Local Boards to verify performance information
and to report suspected inaccuracies to the State agency. We have added
language in a new paragraph 663.510(e)(4) to clarify that Local Boards
may perform verification of performance information, under the
Governor's procedures. Technical assistance on verification and other
aspects of implementing WIA section 122 is being planned.
We agree that the roles of the State agency and Local Boards may
overlap in determining if programs meet performance levels and in
verifying performance information, and we encourage States and Local
Boards to work toward eliminating needless duplication. The Act does
not, however, authorize the State to review Local Boards'
determinations of programs that do not meet the performance levels and
are, therefore, neither included on local lists nor forwarded to the
State. No change has been made to this aspect of the Final rule.
Section 663.515--Initial Eligibility Process--One commenter
suggested that initial eligibility criteria for institutions offering
degree programs be accreditation or approval by the appropriate
authority and, for institutions that offer certificate programs,
appropriate licensing by the State.
Response: In determining initial eligibility, Local Boards have the
option to request information about accreditation and approval from
HEA-eligible and NAA-registered programs and providers as part of the
application and to include such information on the local list. However,
we do not believe that Act provides authority for any approval criteria
for HEA and NAA programs and their providers, as long as completed
applications are submitted and the program or provider meets the
eligibility criteria of WIA section 122(a)(2)(A) and (B). We note that
to be eligible under HEA title IV, providers must be accredited, and,
if a public institution, approved by appropriate State authorities. For
non-HEA and non-NAA programs and their providers, the Governor's
procedures could require that State licensing, or any other applicable
criteria, be used for both approval or information purposes. No change
has been made to the Final rule.
We encourage State WIA systems to work with State public education,
and licensing authorities to harmonize, coordinate, or strengthen
requirements for all types of programs and providers, since the
strictness and consistency of approval, licensing and accreditation for
providers and programs varies widely between--and even within--States.
Similarly, requirements for certificate programs, offered at both HEA-
eligible and non-HEA-eligible providers, vary widely in terms of
length, content, and rigor.
Another commenter asked that Secs. 663.515 and 663.535 require the
Governor to allow sufficient time for labor organizations and
businesses to provide comments on initial and subsequent eligibility
procedures and suggested a minimum of 30 days. The commenter also
wanted the regulations to require that State and local labor
federations be part of the consultation process.
Response: We view the comment and consultation provisions in this
section, as throughout the Act, as cornerstones of the new system
envisioned in the Act. To assure there is adequate time for comments,
while permitting as much State flexibility as possible, we have added
language at Secs. 663.515(c)(1)(iii) and 663.535(a)(3) to require
Governors to establish and adhere to a specific time period for the
consultation and comment process during the development of procedures
for initial and subsequent eligibility. We strongly encourage Governors
to take affirmative steps to include State and local labor federations
in the comment and consultation process, but we do not think additional
changes to the Final rule are warranted. Under the rule as written,
Governors are required to solicit and take into consideration the
recommendations of providers of training services, which may, in some
areas, include labor federations involved in providing apprenticeship
or other training, and must provide an opportunity for representatives
of labor organizations to submit comments on the procedures.
A commenter suggested that Governor's procedures for initial
eligibility require evidence that training providers have consulted
with labor organizations who represent workers having the skills in
which training is proposed.
Response: While such an activity may be desirable, the Act does not
provide authority to require Governors to include such a provision in
their initial eligibility procedures. The contents of applications for
initial and subsequent approval are left to the Governor's discretion,
after appropriate consultation. We encourage Governors to consider such
consultation requirements for initial eligibility, in order to assure
that programs are of high-quality and match current skill requirements.
We also encourage both Governors and Local Boards to consider including
information items in initial eligibility procedures and applications
that will help consumers identify if programs have been subject to
review and approval by appropriate labor and industry organizations. No
change has been made to the Final rule.
One commenter was concerned that the 30 days, permitted in section
122(e) of the Act, for the State agency to determine if programs
submitted by Local Boards meet the performance criteria for initial and
subsequent eligibility, was insufficient. The commenter recommended
that State agencies be given 90 days.
Response: We recognize that until State data collection and records
linkages systems are in place, States will have difficulty in meeting
the timing requirement for verifying information and for determining if
performance levels are met. Since the law specifies that the State
agency has only 30 days, the State may not be able to determine if such
levels are met on all programs' performance and the State may have to
develop a prioritizing or sampling system. However, we also recognize
that in a number of circumstances, timing problems will persist even
once such data systems are in place, since there are time lags in
accessing UI quarterly records for verifying program performance
information. We have added language in Sec. 663.530 to provide that, 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.
A number of commenters expressed suspicion that initial eligibility
procedures, by providing complete discretion to Governors and Local
Boards, would result in programs being determined eligible on the basis
of arbitrary performance and cost thresholds, and thus lead to ``creaming''
of programs and participants. Commenters expressed concern that the
regulations do not define an ``appropriate portion of performance and
cost information'' and ``appropriate levels of performance'' and asked
that we define these terms and offer examples of how States and Local
Boards could set up initial eligibility procedures to assure a diverse
provider system. Commenters suggested several other remedies: requiring
or allowing use of adjustment or weighting factors for the local area
and participant characteristics; encouraging use of data from outside
the JTPA system to ensure a wide array of performance information;
requiring Governors to set aside technical assistance funds to help
small, nonprofit CBO's with application and data collection activities;
requiring information on growth occupations and growing sectors in the
area; and requiring that CBO's be listed as examples of interested
members of the public to whom opportunities to comment should be
provided.
Response: We believe that the Act provides broad discretion to
Governors to determine initial and subsequent eligibility procedures.
Since we want to provide as much flexibility to States as possible, we
have not defined what constitute ``appropriate portions of performance
and cost information'' or ``appropriate levels of performance.''
However, we are concerned that all procedures and practices be fair and
not arbitrary, and that they be based on research, information from
past experience, and sound management approaches. We are also concerned
about practices that result in ``creaming'' of participants or lead to
a lack of training options that meet the diverse skill needs and career
interests of WIA participants. We plan to develop technical assistance
on development of initial and subsequent eligibility criteria.
As noted earlier, we strongly encourage outreach and technical
assistance by States and Local Boards to providers in order to assure
that WIA participants have access to a broad range of programs. Also,
we strongly encourage CBO's to take advantage of the public comment and
consultation required to be provided by the Governor in the development
of procedures for initial eligibility for non-HEA, non-NAA programs and
subsequent eligibility for all programs. No change has been made to the
Final rule.
One commenter requested clarification on how both initial and
subsequent eligibility under WIA fits with requirements of State and
national systems for accreditation, approval, and performance
information. Several commenters recommended that the WIA system for
collecting and disseminating performance information be used in other
systems.
Response: The Act recognizes the value of at least two other
national recognition systems, in the requirements for HEA and NAA
programs for initial eligibility. We encourage all One-Stop partners at
the State and local level to harmonize and coordinate performance
requirements and to enhance systems for certification, licensure, and
accreditation. We encourage all partners to avoid the creation of, or
resolve, duplicative or conflicting requirements regarding programs,
institutions, and data on individuals. We also support the creation of
unified data collection systems that can reduce administrative burden
while permitting information to be generated to meet reporting
requirements under many programs. We believe that WIA's requirements
will strengthen accountability and customer choice by supplementing
existing systems established through State and federal higher education
requirements and State licensing agencies. Information disseminated on
individual training programs' performance under WIA will be a
significant addition to the accountability systems currently in place,
and will provide the general public, program administrators and front-
line staff access to information that, in most parts of the Nation, has
never before been available. We encourage Governors and Local Boards to
consider ways to make use of performance and cost information already
available through these other systems. We do not think, however, that
WIA section 122 gives the authority to mandate this kind of
coordination; thus, no change has been made to the Final rule.
Section 663.530--Time Limit for Initial Eligibility--A number of
commenters expressed approval of the clear expression of how long
initial eligibility may last and supported the swift transition to
subsequent eligibility when all providers would be subject to the
performance requirements. One commenter, however, was concerned that
the requirement in Sec. 663.530 that initial eligibility be only 12 to
18 months will create problems for institutions eligible under the
Higher Education Act that will not be able to compile information in
time for subsequent eligibility determination.
Response: We agree that, in certain circumstances, providers will
have difficulty in collecting all the performance information required;
similarly, the designated State agency may have difficulty verifying
the information, particularly because of the lag time in using UI
quarterly records. However, because of the critical importance of
performance information for consumer choice and accountability, initial
eligibility should be extended only in very limited circumstances, such
as for new programs for which no data under the methodology the
Governor selects would be available within 12 to 18 months. In other
circumstances, Governors' procedures could permit an extension of
initial eligibility of up to six months, when insufficient data is
available. In such cases, it may be a good idea to partially assess
performance by using the information that is available even if it is
only partial information (such data on all students that recently left
a program even if no WIA client information is yet available) or by
using survey-based information until UI records can be used for
verification. We have added language to Sec. 663.530 to permit
Governor's procedures to extend initial eligibility in limited
circumstances.
Section 663.535--Subsequent Eligibility--One commenter wanted
Sec. 663.535 to be revised to clarify that the State agency can verify
information on performance and cost effectiveness for subsequent
eligibility.
Response: As discussed above, we have changed Sec. 663.510 to
clarify that the State, as well as the Local Board, may verify
performance information in the process of determining if performance
levels at initial and subsequent eligibility are met. The Act
authorizes the State agency to determine if the performance levels are
met for programs submitted by the Local Boards. The State does not have
a role in reviewing performance of programs not approved by the Local
Board and not included on local lists. However, there is nothing to
preclude Local Boards from delegating to the State agency the authority
to perform all initial determinations of eligibility of non-HEA and
non-NAA programs, and subsequent eligibility determination for all
programs, although responsibility for this process still remains with
the Local Board. The Act does not explicitly authorize the State agency
to determine ``cost-effectiveness,'' but rather requires that the
information on the costs of the training services be required in
applications for initial eligibility of non-HEA and non-NAA and for all
programs for subsequent eligibility. Although States and Local Boards
may choose to use the available cost and performance information to
determine the cost-effectiveness of training programs, the decision to
do so is a matter of State or local discretion. We have made no
additional change to the final regulations.
Several commenters were concerned that provider requirements at
Sec. 663.535 will not take into account the characteristics of the
population served and the difficulties in serving these populations.
Response: These concerns are addressed in our response to similar
comments on adjustments to performance levels in the discussion of
Sec. 663.540.
Section 663.540--Types of Performance and Cost Information Required
and Extraordinary Costs of Collecting Performance Information--One
commenter was concerned that federal requirements on confidentiality of
student records possibly presents a major problem for developing
information on students not funded with ITA's.
Response: We recognize that regulations and administrative guidance
for the Federal Educational Rights and Privacy Act (FERPA) under 20
U.S.C. Sec. 1232g, as issued by the U.S. Department of Education, may
need to address the issue of how States can assure that performance
information on all students in eligible programs can be developed,
particularly when UI quarterly records must be used, as required under
section 122 of WIA. We are working with the U.S. Department of
Education to identify how State WIA systems, State education systems,
and educational institutions can comply with FERPA and also generate
the information required under WIA and plan to issue joint guidance
that will assist States in complying with FERPA. No change has been
made to the Final rule.
One commenter recommended that the law and regulations be changed
so that information on all participants in a program, which may be
difficult to obtain, is not required.
Response: We believe that eliminating this information would
vitiate one of the key elements needed for maximizing customer choice.
As the commenter recognizes, the Act requires performance information
on all students in a program. State WIA systems are encouraged to work
with State public education and licensing authorities to harmonize,
coordinate, or strengthen information requirements in all systems. No
change has been made to the Final rule.
One commenter recommended that Governors be allowed to require
additional verifiable performance information describing the
demographics of the populations served in a training program, including
age, race, national origin, English proficiency, sex, and disability.
The commenter further recommended that all such information be included
in the consumer reports system.
Response: 29 CFR 37.37(b)(2) requires recipients, including
training providers, to ``record the race/ethnicity, sex, age, and where
known, disability status, of every applicant, registrant, eligible
applicant/registrant, participant, terminee, applicant for employment,
and employee.'' Governors should consider the merits of including such
information in the consumer reports system. No change has been made to
the Final rule.
Several commenters wanted the regulations to require Governors and
Local Boards to demonstrate how local area factors and population
characteristics are considered in determining performance levels for
subsequent eligibility as well as requiring that Governors and Local
Boards to demonstrate that the most disadvantaged are being served.
Response: Under Sec. 663.535(f), the Governor's procedures already
must ensure that Local Boards takes such factors into consideration. As
we have said above, Governors and Local Boards should assure that all
WIA participants who may have multiple barriers to employment have
access to programs that can effectively serve their needs. No change
has been made to the Final Rule.
A number of commenters noted that Sec. 663.540 does not define what
constitute ``extraordinary costs'' and that differences of opinion on
this matter should be an allowable basis to appeal denial or
termination of eligibility. Some commenters recommended that training
providers be given explicit authority to present to their Local Board
and Governor evidence of extraordinary costs and that a response should
be required within a reasonable period of time. They further suggested
that, if additional resources or cost-effective data collection methods
were not provided, the provider would be exempted from submitting the
performance information. One commenter recommended that providers
which, after presenting evidence of extraordinary costs involved in
providing performance information, receive neither additional resources
nor cost-effective information-collection methods, should be exempted
from submitting information on their programs' performance and that
such programs should remain eligible. By contrast, one commenter wanted
to assure there were limits on the amount of funds Governors must offer
to training providers who need additional funds to collect performance
information.
Response: The Act requires Governors to provide additional
resources or cost-effective methods of data collection when providers
experience extraordinary costs in providing required information, under
section 122(d)(1)(A)(ii), on program participants who receive
assistance under the adult or dislocated worker programs, or in
providing additional information under section 122(d)(2). In order to
assure that Governors provide such assistance, Sec. 663.540(c) has been
revised to require that the Governor establish procedures by which such
costs can be determined. While Governors must define the methodology to
be used in determining such costs and either provide the funds or
procedures to help defray or lower these costs when they are determined
to be extraordinary, we have not mandated that the Governor or Local
Board is required to defray all of the provider's extraordinary costs.
Reasonable parties may differ over whether information costs are
extraordinary and whether the State has undertaken reasonable means to
defray or lower such costs. States and local areas will have to devise
a system under which disputes regarding extraordinary costs can be
reasonably resolved. For example, a Local Board may base its initial
decision on the basic information required, while attempting to reach
agreement on the costs of the additional information. If a provider is
denied eligibility because it has not provided the required
information, section 663.565(b)(4) provides an opportunity for review
of that decision.
Section 663.555--Dissemination of the State List--Several
commenters want the state list of eligible training providers to be
made available to the public and not just individuals.
Response: Section 663.555 already provides that the list and
consumer reports are required to be widely disseminated and made
available as a core service throughout the One-Stop delivery systems in
the State. We believe that the One-Stop system is the appropriate way
to ensure wide access of the list, so no change has been made to the
Final rule.
Section 663.565--Loss of Eligibility and the Appeals Procedures--A
number of commenters recommended there be a time limit required for
prompt resolution of appeals and suggested 60 days as the limit.
Response: States must develop procedures that assure prompt
resolution of appeals. Unlike other provisions in WIA, for example,
section 181(c), which establish time limits for
the resolution of grievances or appeals, section 122(g) does not
establish a time limit on the appeal; it leaves the details of the
procedure to the Governor. We do not think we can mandate a time limit
where Congress has chosen to give the Governor the discretion to
fashion an appeal procedure. We do, however, strongly encourage States
to establish and adhere to time limits for such appeals and to make
those time limits consistent with the time limits in their other WIA
appeal procedures. No change has been made to the Final rule.
One commenter noted that the criteria for termination of
eligibility do not address situations in which institutions lose their
license to operate, when they or their programs lose accreditation, or
State educational agency approval, and when providers violate State or
local laws.
Response: The criteria for initial eligibility for non-HEA and non-
NAA programs are determined in the Governor's procedures and may cover
a number of different situations, such as when programs are in
violation of State and local laws or have lost their license to
operate. WIA section 122 does not mandate the detailed criteria to be
used in determining eligibility for providers and programs, but rather
permits Governors and Local Boards to set application information
requirements and determine that the information is complete. For
example, information on the status of a program or provider as eligible
under HEA, registered under NAA, and on accreditation or compliance
with various State and local laws could be required and included on the
State or local list). The only criteria in WIA for termination of
subsequent eligibility are limited to: not meeting performance levels,
intentionally submitting inaccurate information, and noncompliance with
the Act and its regulations. If a State or Local Board asks for
information about accreditation status or compliance with laws and the
provider submits inaccurate information, it may be subject to
termination under Sec. 663.565(b)(3). Because WIA is silent about what
happens if a provider's license accreditation status change during the
period between initial and subsequent eligibility determinations or
between annual subsequent eligibility determinations, we want to
clarify that Governors may set procedures for resubmission of initial
applications or other information in cases where the status of a
provider or its program has changed.
The same commenter noted that Sec. 663.565(b)(1) requires that
Local Boards must remove programs that do not meet performance levels
from the local list, while, under Sec. 663.565(b)(2), States only may
remove such programs from the State list, which could result in
incompatible State and local lists and in Local Boards being sued by
providers.
Response: The Local Board has the authority and the obligation,
under WIA section 122(c)(6)(A) and (e)(1), to deny initial eligibility
and subsequent eligibility if programs and providers fail to meet
performance levels. Since, under WIA section 122(c)(6)(B), Local Boards
may set higher performance standards for providers or programs to be
included on their local list, it is possible that one local area may
remove a program or provider while another places them on its local
list. In that case, the State Agency must decide whether or not to
remove the program or provider from the State list. The possibility of
being sued by providers exists at both the local and the State levels,
depending on which level is involved in denying or terminating
eligibility. No change has been made to the Final rule.
Sections 663.570 and 663.575--The Consumer Reports System and
Additional Local Information--A number of commenters asked that the
regulations require consumer reports to include information about wage
trends and projections, occupations that provide high wages, in
addition to information on growth occupations, or those in growing
sectors of the economy.
Response: We agree that such information is valuable to individuals
in determining which occupations and training to pursue. Section
663.570 encourages States and Local Boards to make program specific
information on wage trends and projections available in the consumer
reports. Section 663.575 permits Local Boards to supplement the
information on the State list with information on training linked to
occupations in demand in the local areas. This kind of information is
readily available since information on job vacancies, occupations in
demand, and the earnings and skill requirements of such occupations is
required as a core service available to the general public and to all
WIA clients under Sec. 663.240(b)(5). No change has been made to the
Final rule.
Several commenters asked that ``program entrance requirements'' be
added to the list of information that can be included in consumer
reports in Sec. 663.570 and further suggested that information be
required to be presented ``in user-friendly format and language, taking
into consideration the literacy levels, languages and developmental
stages of the communities to be served.'' In addition, a few commenters
asked that the regulations mention that information about
nontraditional occupational training and placement of women in
nontraditional jobs be specifically identified as appropriate
information related to the objectives of the Act.
Response: We agree that program entrance requirements and the use
of a user-friendly format and language are highly valuable to assist
adults or dislocated workers to fully understand the options available
in choosing a program of training services. States and Local Boards
should assure that as much information as possible is accessible to
anticipated users of ITA's and key populations who use such information
as part of the core services available in the local One-Stop system. It
is up to States and Local Boards to determine the types of information
to be required; we do not believe it is appropriate to specify required
information in the regulations. In making such determinations, we
encourage States and Local Boards to consider whether to highlight
information on specific types of programs, such as nontraditional
occupational training for women. No change has been made to the Final
rule.
Section 663.585--Providers Outside the Local Area and Reciprocal
Agreements with Other States--One commenter asked that we add language
to Sec. 663.585 on portability of apprenticeship skill credentials, to
assure that individuals registered in an apprenticeship program in one
State would be deemed registered in an accredited program in other
States.
Response: WIA does not address recognition of individuals'
registration status by apprenticeship programs in different States.
Rather, the Act permits reciprocal agreements among States so that
individuals with ITA's can use providers in other States. If such an
agreement had been made, the ability of individuals to participate in
other States' programs would depend on whether those programs were
included on the State list and the program's own policies regarding
recognition of skill attainments and credentials from other programs.
Questions of the portability of credentials in the apprenticeship
system are the province of the Bureau of Apprenticeship and Training.
No change has been made to the Final rule.
Section 663.590--Community-Based Organizations--One commenter
expressed gratitude that the regulations clarify that CBO's can be
determined eligible and they and their programs included on the State
and local lists.
Section 663.595--Requirements for Providers of OJT and Customized
Training--One commenter recommended that the Governor solicit comments
from business and labor organizations on the development of performance
information for OJT and customized training while another commenter
suggested that it was inadvisable to disseminate information on the
performance of employers, since many employers would be unwilling to
participate if their identity was to be made known to the general
public.
Response: There is nothing to preclude Governors from soliciting
comments from business and labor in developing these performance
requirements and learning if disseminating performance information
would be a deterrent to other employers and it would be consistent with
both the process for developing provider and program eligibility
procedures and the general intent of WIA to promote openness and
consultation to do so. Governors need to consider the impact of
requiring performance information in terms of employer participation,
particularly since employer-provided training has, in the past, been an
effective method for providing training. However, if the Governor
determines that performance information must be collected and the
criteria to be met, One-Stop operators must collect such information,
determine if performance criteria are met, and disseminate information
on employers that meet the criteria. We note that information does not
have to be disseminated on employers that do not meet Governor's
criteria under the current regulation. No change has been made to the
Final rule.
One commenter noted that the Preamble to the Interim Final rule,
page 18673, column three, lines 8-11, should have said that the
Governor has the option to require performance information of providers
of OJT and customized training.
Response: We agree that the Preamble was in error. It should have
said that Governors may require performance information.
Subpart F--Priority and Special Populations
1. Priority Under Limited Adult Funding: This subpart contains
requirements related to the statutorily-required priority for the use
of adult funds, authorized under WIA section 133(b)(2)(A) or (3), when
funds are limited. WIA section 134(d)(4)(E) states that in the event
that funds allocated to a local area for adult employment and training
activities are limited, priority shall be given to recipients of public
assistance and other low-income individuals for intensive services and
training services. The appropriate Local Board and the Governor must
direct the One-Stop operators in the local area with regard to making
determinations related to such priority. We assume that adult funding
is generally limited because there are not enough adult funds available
to provide services to all of the adults who could benefit from such
services. However, we also recognize that conditions are different from
one area to another and funds might not be limited in all areas.
Because of this, the regulation requires that all Local Boards must
consider the availability of funds in their area. In making this
determination, the availability of other Federal funding, such as TANF
and Welfare-to-Work funds, should be taken into consideration. Unless
the Local Board determines that funds are not limited in the local
area, the priority requirement will be in effect. States and Local
Boards must work together to establish the criteria that must be used
in making this determination. States and Local Boards also may
administer their priority for adult recipients of public assistance and
other low income adults so as not to preclude providing intensive and
training services to other individuals.
We received a substantial number of comments on the priority issue.
Many commenters voiced their support for interpretation that adult
funds will generally be limited and for clarifying the State's and
local areas' role in prioritizing the use of these funds for TANF
recipients and other low-income individuals. Many other commenters
believed that we should not write any regulations at all on this
section of the statute.
Response: We believe that the interpretation of this requirement is
of such importance that there must be regulations. Section 663.600
interprets the statutory language that provides States and Local Boards
with the authority to determine the criteria to be applied when making
the determination that there are sufficient funds available so that the
priority is not in effect. No change has been made to the Final rule.
Some commenters requested further guidance and technical assistance
regarding the process described at Sec. 663.600(b), (c), and (d) that
permits the priority for services to the recipients of public
assistance and low income individuals to be exercised while still
serving other eligible individuals. A number of these commenters
supported the ``cone of service'' concept that provides universal
service to the largest number of individuals and, through a process of
determining individuals' employment service needs and their
eligibility, leads to reduce numbers of individuals receiving services
as the services become more staff intensive, longer in duration, and
more costly. They asked that priority guidance be based on this
concept.
Response: In general, Sec. 663.600(d) clarifies that the process
for determining whether to apply the priority established under
paragraph (b) does not necessarily mean that only recipients on 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 are
specifically authorized to establish a process that gives priority for
services to recipients on public assistance and other low income
individuals and that also serves other individuals meeting eligibility
requirements.
We used the ``cone of service'' concept to illustrate an estimated
distribution of service needs by One-Stop customers. It was not
intended to convey a scheme of priority of service. The distribution of
service needs in a local area may vary from the pure ``cone'' in areas
with a number of job seekers with extensive barriers to employment or
in areas of highly educated, self-directed job seekers. The ``cone''
illustration is not intended to be applied as strict percentages of
service provision to the pool of eligibles candidates for services.
Rather each local area must assess the needs of its workforce and
determine the most appropriate distribution of services against
projected levels of service needs. However, recognizing the important
role that the adult and dislocated worker funds play in the One-Stop
system, Sec. 662. 250(a) requires these programs to provide all of the
required core services in each of the comprehensive One-Stop centers.
The fact that WIA adult funds may be used to provide core services on a
universal basis is one of the key reform elements of the legislation,
and augments the investment traditionally provided by the Wagner-Peyser
Act. No change has been made to the Final Rule.
Commenters expressed concern that the priority requirement would be
implemented by establishing an arbitrary minimum standard, such as
establishing a percentage of participants or funds that must be
targeted to TANF and other low-income job seekers, which could become a
``check off'' rather than a thoughtful balancing of needs. Commenters
also were concerned that an arbitrary percentage not be used to satisfy
the priority requirement.
Response: While the regulation requires that States and local areas
consider whether funds are limited, it gives them flexibility to
determine the criteria on which to base the determination, because
local areas vary widely in the characteristics of their work force. We
discourage States and local areas from setting an arbitrary percentage
of TANF and low-income job seekers to be served could result in
sufficiently skewing the distribution of services relative to the
workforce's needs that differences in the severity of service needs
would not necessarily be reflected in the process. We believe that the
present language in the regulations permits the maximum flexibility in
the design of the priority process and provides a sufficient framework
to implement priority of service for public assistance recipients and
low income individuals consistent with the Act. We expect that States
and local areas will take seriously the responsibility to develop
effective priority criteria, and believe that the public input
generated through the local planning process will result in criteria
that effectively serve the needs of the local area. No change has been
made to the Final rule.
Other commenters requested assurance in the regulations that if
local entities determine that there is not limited funding, that we
would not reevaluate their determination at a later date and find the
local area out of compliance.
Response: The regulations, at Sec. 661.350(a)(11), require that the
local workforce investment plan include a description of the criteria
to be used by the Governor and the Local Board, under Sec. 663.600, to
determine whether funds allocated to a local area for adult employment
and training activities under WIA Secs. 133(b)(2)(A) or (3) are
limited, and the process by which any priority will be applied by the
One-Stop operator(s). The local plan is subject to public comment as
well as review and approval by the Governor. Upon approval by the
Governor and local implementation of its priority determination, it is
expected that the local workforce staff will continue to monitor
workforce employment and training population needs and conditions to
ensure that the priority determination continues to be appropriate.
Later modifications to the plan would require public comment. No change
has been made to the Final rule. We recognize that this will be an area
of interest to the Department and national policymakers and as such,
State and local areas can expect that it will be evaluated during the
implementation studies.
Commenters suggested that we add language to the regulations that
would require the mix of individuals served by the local One-Stop
system to reflect the demographic characteristics of the eligible
population in the community and that the local plan provide an
interpretation of the priority as applied to the demographics of the
area.
Response: The Department has an obligation, as part of its
oversight responsibilities, to determine whether a particular function,
e.g., service delivery, is consistent with the intent of the Act and
regulations. Non-discrimination and equal opportunity requirements and
procedures, including complaint processing and compliance reviews, are
administered and enforced by our Civil Rights Center. Regulations
implementing the requirements of WIA section 188 are published at 29
CFR part 37. It should be noted that except where service to specific
populations is authorized by statute (such as in WIA section 166), it
is unlawful under WIA section 188(a)(2) and 29 CFR 37.6(b)(1)-(6) for
One-Stop systems to use demographic characteristics to determine which
individuals will receive services. However, under 29 CFR 37.42, One-
Stop systems must do outreach to various populations, to ensure that
members of those populations are aware of the programs and services
provided by the systems. No change has been made to the Final Rule.
We received a number of comments about the definition of ``public
assistance'' as it relates to individuals served under the priority
provision. Commenters stated the belief that while application of the
priority could result in improved access to persons with disabilities,
the potential for this increased access is dependent, to some degree,
on the application of a broad definition of public assistance. WIA
section 101(37), defines public assistance to mean ``Federal, State or
local government cash payments for which eligibility is determined by a
needs or income test.'' The commenters requested a definition that
specifically recognizes other forms of assistance such as Medicaid,
Medicare, Social Security Disability Income (SSDI) and Supplemental
Security Income (SSI) as well as ``other funding used heavily by
persons with disabilities.''
Response: A definition of the term ``public assistance'' developed
by States and local areas that includes the availability of other
Federal, State or local government cash payments to an individual based
on a needs or income test would be consistent with WIA requirements.
The statutory definition of ``public assistance'' at WIA sec. 101(37)
contains a two-part test. The program must provide ``cash payments''
and eligibility for the program must be determined by a ``needs or
income test.'' Under this definition, cash payments, such as SSI, state
payments to individuals with a disability, and local general relief
payments to homeless individuals would meet both parts of the statutory
definition of public assistance.
On the other hand, the statute would not permit a state or local
definition that included programs providing benefits that are not cash
payments, or programs that are not needs or income-based. For example,
SSDI payments are not income tested, and, therefore, cannot be
considered public assistance under WIA. However, as a practical matter,
SSDI beneficiaries may still qualify for priority under WIA. For
example, SSDI beneficiaries might be determined to be eligible under
the priority for WIA services as ``other low income individuals'' based
on their income, under 20 CFR 663.640, which provides for the
individual with a disability to be considered a low income individual
even if the family income does not meet the income eligibility criteria
when the individual's own income meets the income criteria. Similarly,
Medicaid and Medicare benefits are not considered public assistance as
defined under WIA. Medicare is a medical insurance for which
individuals are eligible based their having attained the age of 65 and
contributed to the fund during their employment. There is no needs or
income test to determine an individual's receipt of Medicare benefits.
Furthermore, while Medicaid eligibility is dependent upon an income
test, it fails to meet the second part of the WIA definition. Under
Medicaid, there is no cash payment provided to the individual, rather
payments representing reimbursements of medical expenses are paid
directly to the medical services provider. However, individuals
receiving Medicaid or Medicare payments may still be determined
appropriate for the WIA service priority as ``other low income
individuals'' based on their income. No change has been made to the
Final rule.
2. Welfare-to-Work and Temporary Assistance to Needy Families as
Part of One-Stop: At Sec. 663.620, the regulation discusses the
relationship of the Welfare-to-Work program and the Temporary
Assistance to Needy Families (TANF) program to the One-Stop delivery
system. Welfare-to-Work is a required partner to which the One-Stop
partner regulations apply. The TANF agency is specifically
suggested as an additional partner. Both programs can benefit from
close cooperation with the One-Stop delivery system because their
respective participants will have access to a much broader range of
services to promote employment retention and self-sufficiency.
A commenter suggested that Sec. 663.620(a), which provides that
Welfare-to-Work participants may be referred to receive WIA training,
should include a statement that such funding assistance is not
available under Welfare-to-Work or should clarify that Sec. 663.620 is
an exception to Sec. 663.310(d), if that is the intent.
Response: Section 663.310(d) provides that training services are
available to adults who ``are unable to obtain grant assistance from
other sources to pay the costs of such training'' and notes as an
example of other grant assistance, Federal Pell Grants. It is not
intended that this section limit ``other grant assistance'' to only
Federal Pell Grants, rather it is expected that access to other grant
funds that will maximize the availability of WIA funds so that the
broadest number of individuals may be served. ``Other grant
assistance'' funds would be considered as additional training resources
for individuals requiring training. Such funds could include not only
Federal Pell Grants, but also Welfare-to-Work grant funds (which, under
recent amendments may be used to provide limited occupational
training), State education grants and dislocated worker funds where
such an application is appropriate. The language in Sec. 663.310(d) has
been changed to provide Welfare-to-Work and other examples in addition
to the Pell Grant reference as appropriate to the eligibility of the
individual involved for other training fund assistance.
Subpart G--On-the-Job Training and Customized Training
Sections 663.700 through 663.720 are the regulatory provisions for
conducting on-the-job (OJT) and customized training activities. They
include specific information regarding general, contract, and employer
payment requirements. Unlike JTPA, WIA does not limit OJT to six
months. However, as specified in WIA Sec. 101(31)(C), it is limited in
duration as appropriate for the occupation being trained for. Section
663.705 establishes requirements that permit OJT contracts for employed
workers.
One commenter supported the brevity of the regulations related to
OJT. A second commenter apparently construed the language in
Sec. 663.700(a) that states that, ``A contract may be developed * * *''
to mean that the use of contracts for the development and delivery of
OJT is optional.
Response: The language in Sec. 663.700(a) has been changed to
clarify that OJT must be provided through a contractual arrangement as
an exception to the ITA requirement under WIA section
134(d)(4)(G)(ii)(I). We believe that written agreements are necessary
to ensure that the requirements of OJT are met. The regulations, in
Sec. 663.700 (b) and (c), establish minimal requirements for OJT
contracts. OJT contracts must ensure that participants are provided a
structured training opportunity in which to gain the knowledge and
competencies necessary to be successful in the occupation in which they
receive training.
That same commenter also suggested that the regulations be amended
to require that the OJT contract contain detailed information on the
skills and competencies to be acquired, the time frame for acquiring
them, and sufficient documentation to demonstrate that workers received
bonafide training and acquired the competencies.
Response: Generally, we believe that States and local areas should
have the flexibility to determine the information needed for inclusion
in the required OJT contracts. Therefore, we have not mandated that the
contracts contain documentation that the competencies are acquired.
However, in order to ensure that workers and employers have a common
understanding of the goals and purpose of the OJT assignment, we
believe that certain general terms should be reduced to writing.
Accordingly, we have amended Sec. 663.700(c) to require that the OJT
contract identify the occupation, the skills and competencies to be
learned and the length of time the training will be provided.
We received comments which recommended that the regulations require
local programs, in entering into OJT contracts or undertaking
customized training, give priority to employers who: offer wages and
benefits that lead to family self sufficiency; ensure long term self
sufficiency for their employees; exhibit a strong pattern of union
management cooperation; and after upgrading existing employees through
OJT, backfill vacancies with public assistance recipients and other low
income persons.
Response: We have chosen not to limit local options by specifically
identifying priorities for the selection of such employers. However,
Local Boards may consider these and other factors in selecting
employers to provide training opportunities that will assist in their
efforts to provide services that meet or exceed the performance
objectives regarding employment leading to self sufficiency and job
retention. No change has been made to the Final rule.
Commenters recommended that the regulations be revised to eliminate
from consideration for an OJT contract or for customized training any
employer which has violated: anti-discrimination statutes; labor and
employment laws; environmental laws; or health and safety laws.
Response: We concur that Federal grant funds should not be used to
engage employers that have violated Federal law. Such information
should be available under information requirements at 29 CFR 37.38(b).
We encourage States and Local Boards to require a written assurance by
a potential employer, that no such violations have occurred within some
reasonable period of time. It would also be appropriate to obtain
written assurance from the employer that the training to be provided
will be in accordance with WIA Sec. 181(a)(1)(A) and Sec. 667.272 for
wage and labor standards, and WIA Sec. 181(a)(2) and Sec. 667.274(a)
for health and safety standards.
29 CFR 37.20(a)(1) contains an assurance regarding
nondiscrimination and equal opportunity. Under 29 CFR 37.20(a)(2), this
assurance is considered incorporated by operation of law, and may be
incorporated by reference, in documents that make WIA Title I financial
assistance available, such as OJT contracts.
A commenter recommended that we add a requirement that employers be
required to retain, or transition to new upgraded jobs with wages and
benefits commensurate with their new skills, those workers who receive
customized retraining.
Response: WIA Sec. 181(b)(2) and 20 CFR 667.270 establish
safeguards for workers to ensure that participants in WIA employment
and training activities do not displace other employees. These
protections may affect immediate opportunities for workers receiving
customized training to ``transition to new upgraded jobs.'' However,
Local Boards may establish policies concerning the selection and non-
selection of employers for the OJT and customized training programs. We
encourage the development of policies that maximize the opportunities
presented by funding upgrade skill training on-site, which, upon
completion of the training, will result not only in a more highly
skilled workforce, but also in new entry level jobs for additional
program participants.
We have made no change to the regulations.
A commenter requested that the regulations require that a system be
in place to assure that customized training funds are used to
supplement rather than supplant an employer's own training.
Response: We do not believe it is necessary to require such a
system. With the limited funding available for training, issues of
maintenance of effort or substitution of public funds for training
previously funded by the employer will most likely be considered an
important factor in a local or state policy for the selection of
employers for customized training. We have made no change to the
regulations.
A commenter suggested that the performance outcomes of employers
who have OJT contracts should be considered public documents and made
available for review and comment. At the same time, the commenter
cautioned that the confidentiality of participant records must be
preserved.
Response: Performance information on providers of OJT and
customized training is collected and disseminated under the eligible
provider requirements of Sec. 663.595.
A commenter recommended that we modify the regulations to require
that local programs conduct retention services with individuals placed
in OJT to determine whether the OJT requirements and nondiscrimination
and other employment rights are satisfied.
Response: As discussed above, all OJT contracts are subject to the
worker protection requirements set forth in WIA sections 181(a)(1) (A)
and (B), (b) (2), (3), (4) and (5), and 188. In addition, we believe
that monitoring of OJT contractors must include review of selection
patterns and other areas of potential concern regarding trainees' civil
and other employment rights (consistent with the requirements of 29 CFR
37.54(d)(2)(ii)) to ensure the quality of the One-Stop operator's
selection of training opportunities. No change has been made to the
regulations.
A commenter suggested that to assure compliance with WIA section
181(b)(7), OJT and customized training contracts be required to include
a provision guarantees that customized training funds or subsidies will
not be used directly or indirectly to assist, promote or deter union
organizing.
Response: We don't believe it is appropriate to mandate the
inclusion of a particular provision in these contracts. However, we
have specifically identified this prohibition in new Sec. 663.730 to
ensure that this information is readily available to practitioners.
Several commenters urged that we drop the requirements in
Secs. 663.705 and 663.720, that in order for employed workers to be
determined eligible for OJT and for customized training they must not
be earning a self-sufficient wage as determined by the Local Board. The
commenters observed that there is no specific wage criterion on OJT and
customized training eligibility in WIA, and that it would limit
customized training available for skill upgrading for new technology
and new job skills noted in Sec. 663.720(c). The commenters believed
that such a limitation on customized training could also affect the
linkages with employers and economic development efforts.
Response: The Act, in sections 134 (d)(3)(A)(ii) and (d)(4)(A)(i),
provides that one of the eligibility criteria for intensive and
training services for employed individuals is that they need such
services in order to obtain or retain employment that allows for self-
sufficiency. These criteria enable employed adults in entry level jobs
to receive those services to initiate the steps toward a career or to
obtain those skills necessary to improve their earning capacity in
another job to assist them in attaining self-sufficiency. Therefore, no
change has been made to the Final rule. However, this eligibility
requirement does not apply to training provided as part of the
Statewide workforce investment activities under 20 CFR 665.210(d),
which provides for establishing and implementing innovative incumbent
workers training programs.
We received a comment requesting that we add language to the
regulations to assure that labor organizations who operate training
programs be considered eligible to operate customized training
programs.
Response: The definition of customized training, at Sec. 663.715,
does not limit providers of customized training to employers, but
provides that it be ``conducted with a commitment by the employer to
employ an individual on successful completion of the training, and * *
* for which the employer pays for not less than 50 percent of the
training.'' Neither the Act nor regulations preclude any specific
organization which meets the criteria established by local areas from
being a provider of a customized training program. Because a wide range
of programs and providers are available, we have decided not to
identify any specific type of program or provider in the regulations.
Subpart H--Supportive Services
1. Flexibility in the Provision of Supportive Services: The
regulations in subpart H define the scope and purpose of supportive
services and needs related payments and the requirements governing
their disbursement. Supportive services include 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. We also strongly encourage Local Boards
to establish linkages with programs such as child support, EITC, Food
Stamps, Medicaid, and the Children's Health Insurance Program, which
also serve as key supports for customers making the transition to self-
sufficiency. A fundamental principle of WIA is to provide local areas
with the authority to make policy and administrative decisions as well
as the flexibility to tailor the workforce investment system to meet
the needs of the local community. To ensure this flexibility, the
regulations afford local areas the discretion to provide supportive
services as they deem appropriate with limitations only in the areas
defined in the Act. Local Boards are required to develop policies and
procedures addressing coordination with other entities to ensure non-
duplication of resources and services, as well as any limits on the
amount and duration of such services. Attention should be given to
developing policies and procedures that ensure that the supportive
services provided are not available through other agencies and that
they are necessary for the individual to participate in title I
activities.
We received a comment suggesting that States must be encouraged to
provide incentive and performance rewards to those local areas which
provide substantial supportive services.
Response: States certainly may choose to spend Statewide reserve
funds on this type of incentive award. However, we believe that
amending the regulations to encourage States to provide incentive and
performance rewards to local areas for supportive services is not
consistent with the principle of granting discretion to Local Boards to
determine the appropriate mix of services, including provision of
supportive services, for their area based on their assessment of local
needs and resources. No change has been made to the regulations.
A comment asked that the local supportive services policy be
required to address service delivery and procedures for referrals.
Response: Although Local Boards are required to adopt policies that
ensure coordination of any supportive services provided, we have not
mandated that the policy specifically address the delivery of such
services. The inclusion of such a mandate, or the substitution of
``must'' for ``should'' with respect to referral procedures in the
context of this regulation would be inconsistent with the principle of
granting local discretion in the provision of supportive services. No
change has been made to the Final rule.
2. Needs-Related Payments: Sections 663.815 through 663.840 address
requirements relating to needs-related payments. Section 663.825, in
particular, deals with needs-related payments to dislocated workers.
Studies show that early entry into training for dislocated workers who
require it is a key factor in reducing the period of unemployment
during the adjustment process. Early intervention strategies and
policies are best implemented through quality rapid response assistance
which includes comprehensive core services, and the provision of other
reemployment assistance, including intensive and training services, as
soon as the need can be identified, preferably before layoff. The
statute authorizes all levels of assistance under title I of WIA to
many workers six months (180 days) before layoff, or at least as soon
as a layoff notice is received. Providing these workers with access to
quality information regarding all adjustment assistance available in
the community, including any deadlines that must be met, is critical
for workers to make intelligent reemployment choices. Thus, any
concerns that the enrolled in training requirement may limit the number
of dislocated workers who are eligible for needs-related payments can
be resolved through the use of early intervention strategies.
A commenter asked that the regulations be changed to require that
Local Boards must fund supportive services, and, particularly, needs-
related payments, when other resources are not available.
Response: WIA, at Section 134(e) (2) and (3) lists supportive
services and needs-related payments as permissible employment and
training activities. Although we agree that supportive services and
needs-related payments should be provided with WIA funds when other
funds are not available, we also recognize that WIA recognizes that
Local Boards or One-Stop operators may have to make hard decisions
about the use of limited WIA resources. To enable them to make these
hard decisions, WIA makes the provision of supportive services a
discretionary decision. It would be inconsistent with the Act and with
our principle of maximizing flexibility to create the requirement the
commenter requests. No change has been made to the regulations.
However, as a matter of policy, we will follow State and local policy
with respect to provision of needs-related payments to dislocated
worker program participants under national emergency grants operating
in a local area.
A commenter noted the different time requirements for training
enrollments for TAA and NAFTA-TAA, as compared to WIA, and asked that
the requirements be aligned to permit more complete assistance to
dislocated workers eligible for TAA and NAFTA-TAA.
Response: The eligibility requirements for TAA benefits and needs-
related payments are established by different authorizing statutes, and
may not be changed by these regulations. As also noted above, early
entry into training for dislocated workers needing it is a key
determinant in reducing an individual's period of unemployment.
We received two other comments about the eligibility requirements
for dislocated workers to receive needs-related payments found in
Sec. 663.825. One comment indicated that references to TAA seemed to be
intended for TRA. A second comment noted a missing reference to
training as an eligibility requirement for needs-related payments by
those dislocated workers who are unemployed and who did not qualify for
unemployment compensation or trade readjustment allowances.
Response: Section 663.825 has been revised to change the incorrect
reference to ``trade readjustment assistance'' to ``trade readjustment
allowances.'' However, difference in eligibility criteria for
individuals who did not qualify for unemployment insurance or trade
readjustment allowances is required by WIA section 134(e)(3).
One comment was received in regard to Sec. 663.840 asking that all
needs-related payments and support services ``packages'' be required to
be comparable to the applicable weekly level of the unemployment
compensation benefit.
Response: WIA sets a maximum level for needs-related payments, but
does not specify a minimum level. As noted previously, we do not think
it is appropriate to limit the flexibility granted to States and local
areas by statute.
Part 664--Youth Activities Under Title I
Introduction
The regulations for youth activities reflect the intent of the
legislation by moving away from one-time, short-term interventions and
toward a systematic approach that offers youth a broad range of
coordinated services. This includes opportunities for assistance in
academic and occupational learning; development of leadership skills;
and preparation for further education, additional training, and
eventual employment. Rather than supporting separate, categorical
programs, the regulations for youth activities are written to
facilitate the provision of a menu of varied services that may be
provided in combination or alone at different times during a youth's
development.
The youth council, (the local entity responsible for recommending
and coordinating youth policies and programs), a new entity created in
WIA, serves as a catalyst for this broad change. The regulations
support that legislative intent.
Flexibility for local program operators to conduct youth programs
is key to WIA and these regulations. We encourage local decision-making
in developing policy, youth program design within the statutory
framework, and determining appropriate program offerings for each
individual youth. We expect that these programs and activities will
provide needed guidance for youth that is balanced with appropriate
consideration of each youth's involvement in his or her training and
educational plan. Further, the regulations support strong connections
between youth program activities and the One-Stop service delivery
system, so that youth learn early in their development how to access
the services of the One-Stop system and continue to use those services
throughout their working lives.
Subpart A--Youth Councils
Subpart A explains the purpose of youth councils which are created
at section 117(h) of the Act and discussed in 20 CFR 661.335 and
661.340 of the local governance regulations in part 661. The youth
council is a new feature of the workforce investment system that helps
develop youth employment and training policy, brings a youth
development perspective to the establishment of that policy,
establishes linkages with other local youth services organizations, and
takes into account a range of issues that can have an impact on the
success of youth in the labor market.
There were several comments about the youth councils. One commenter
suggested requiring that the youth council include representatives from
organized labor, particularly from recognized apprenticeship programs
and teachers' unions.
Response: As stated in WIA section 117(h)(1), members of the youth
council are appointed by the Local Board in cooperation with the chief
elected officials(s) (CEO) in the local area. Among other categories of
youth council representatives, paragraph (2) of WIA section 117(h)
states that the youth council must include Local Board members
described in paragraph (A) or (B) of section 117(b)(2) with special
interest or expertise in youth policy. Therefore, union members
(including those who may be from recognized apprenticeship programs or
teachers' unions) who are members of the Local Board and have an
interest or expertise in youth issues may be appointed to the youth
council under this provision. Additionally, clause (B) of WIA section
117(h)(2) provides that the chairperson of the Local Board, in
cooperation with the CEO's, may appoint other ``appropriate''
individuals to the youth council. In short, the Act already provides
avenues through which representatives of organized labor may be
appointed to the youth council. Because we believe that local areas
should have as much discretion as possible in selecting members of the
youth council to best serve their communities, we do not feel it is
appropriate to prescribe requirements in addition to those in the Act.
No change has been made to the regulation.
Other commenters asked that we require that youth be included as
full members of these councils at all levels. A number of other
commenters encouraged us to require that youth with disabilities are
members of the youth councils
Response: While there is no specific requirement for the
appointment of youth, including youth with disabilities, to the youth
council, there is also no prohibition to naming them to the youth
council. In fact, 20 CFR 661.335(a) requires representation by
individuals with experience relating to youth activities and 20 CFR
661.335(c) authorizes the Local Board Chair and CEO to appoint such
other individuals as they determine appropriate. Either of these
provisions could support the appointment of youth, including
participants and youth with disabilities, to the youth council.
Furthermore, WIA section 129(c)(3)(C) and Sec. 664.400(f) provide that
Local Boards must ensure that youth participants are among the
individuals who are involved in both the design and the implementation
of its youth program. Youth with disabilities may, of course, be
included among the youth participants who are designated to be involved
in this process. We agree with the commenters that Local Boards should
seek to involve a diverse cross-section of its youth population in the
planning and design of activities, however, we feel that adding
additional youth council requirements beyond those already in the Act
and the regulations, is neither necessary nor appropriate. As discussed
above, we believe that local areas should have as much discretion as
possible, in selecting members of the youth council to best serve their
communities. The issue of youth council membership is also discussed in
20 CFR 661.335, as well as the preamble discussion of that section. No
change has been made to the regulations.
Section 664.110 discusses oversight responsibilities for youth
programs and activities. Working with the youth council, the Local
Board has responsibility for oversight of youth programs. As required
by WIA section 117(d)(4), Sec. 664.110(b) requires local program
oversight to be conducted in consultation with the CEO. In order to
make Sec. 664.110(c) consistent with Sec. 664.110(b), a commenter
recommended revising Sec. 664.110(c) to add that the Local Board should
consult with the CEO about delegating its responsibility for oversight
of youth programs to the youth council.
Response: We agree that it may be advantageous for Local Boards, in
consultation with local area CEO, to delegate the responsibility for
oversight of youth programs to youth councils which have expertise in
youth issues, as is permitted by Sec. 664.110. Section 664.110(c) has
been revised to reflect this comment.
A commenter requested that we provide guidance to youth councils on
identifying and certifying eligible non-traditional training providers
to ensure that youth are able to pursue non-traditional employment. The
commenter feels that more information is needed on non-traditional
training, specifically guidance on non-traditional employment for
women.
Response: We support the idea that local youth programs can benefit
by making non-traditional training opportunities available to
participants, and encourage States to consider non-traditional service
providers among the lists of service providers designated in local
areas. In addition, should the need arise, we will consider addressing
the issue of non-traditional training providers and eligible providers
list through subsequent guidance and technical assistance. At this
time, however, we do not see a need for additional guidance.
Subpart B--Eligibility for Youth Services
Subpart B provides regulations under which youth are determined
eligible for WIA youth services. A commenter requested that we amend
the criteria in Sec. 664.200 so that a low-income youth, regardless of
any other barriers may participate in the youth employment programs
funded through WIA. The commenter feels that youth served by their
agency do not meet the barrier to employment eligibility criteria to
allow them to participate in WIA youth activities.
Response: We cannot accommodate the commenter's concerns. The Act
specifically requires that, to be determined eligible, a low income
youth must have at least one of the barriers listed in section
101(13)(C) of the Act and Sec. 664.200(c) of the regulations.
We received a comment suggesting that we make the definition of
basic literacy skills at Sec. 664.205 consistent with the definition of
basic skills deficient in section 101(4) the Act, in order to eliminate
confusion.
Response: Section 664.205 is revised to better align the definition
of these two terms by using the same grade level criterion for both
terms. While we made changes to better align the definitions, the two
terms are not identical. Section 101(4) of the Act refers to a
definition of basic skills deficient for use as one of the categories
of youth not meeting the income eligibility test who may be served with
up to 5% of youth funds, as well as one of the standards for
determining ``out-of-school-youth.'' Section 664.205 addresses the
criterion for documenting general eligibility when determining whether
youth are deficient in basic literacy skills. The regulatory definition
of ``deficient in basic literacy skills'' is based on the statutory
definition of the term ``literacy'' found in WIA section 203 and cross-
referenced in WIA section 101(19). Therefore, the terms and their
definitions are not identical. However, Sec. 664.205(a) provides
authority for States and local areas to define the term ``deficient in
basic literacy skills,'' so long as certain minimum criteria are met.
The flexibility provided at Sec. 664.205(a) as revised, would allow
States and/or local areas which choose to do so to define the term in a
way in which an individual who is determined to be ``deficient in basic
literacy skills'' on the basis of the grade level criteria, will also
be considered to be ``basic skills deficient'' for purposes of
determining whether the out-of-school youth or 5% youth standards
are met.
Under section 101(13)(C)(vi) of the Act, a low income youth is
eligible for services if he or she requires additional assistance to
complete an educational program, or to secure and hold employment. We
envision that Local Boards will define this term, however, under
Sec. 664.210, if the State sets policy regarding this provision, the
policy must be described in the State Plan.
Section 664.215 requires that all youth participants be registered
by collecting information for supporting eligibility determinations, as
well as Equal Opportunity (EO) data. We received a number of comments
asking that we make the policy that all youth must be registered to
participate in youth programs consistent with the adult policy,
allowing the same exceptions to the registration requirement.
Response: While these commenters feel that the registration policy
for youth and adults should be the same, we believe that the policy for
youth should not be changed because the basic approach for serving
youth differs from adults. The difference in the registration criteria
for youth and adults arises from the way in which an applicant enters
each program. WIA section 129(c)(1) makes it clear that each youth
participant is to have an assessment and a service strategy, activities
which would also require registration under the Adult program. An adult
may enter the One-Stop and receive only informational or self-help
services, for which registration is not required. The more
individually-focused youth program does not envision these kinds of
activities as part of entry. (Of course, a youth may avail him/herself
of informational or self-help services through the One-Stop.)
Therefore, no change has been made to this section of the regulations.
EO data must be collected for 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 by
the recipient. See 29 CFR 37.4 (definition of ``applicant'') and 29 CFR
37.37. This includes all youth participants. We will issue further
guidance regarding this data collection requirement.
Section 129(c)(5) of the Act provides that up to five percent of
youth participants served in a local area may be individuals who do not
meet the income criterion for eligible youth, if they meet one or more
of the criteria specified in section 129(c)(5)(A) through (H) of the
Act, restated in the regulations at Sec. 664.220. Local Boards may
define the term ``serious barriers to employment'' and describe it in
the Local Plan. One commenter also supported WIA's requirements that
allow individuals with one or more disabilities, including learning
disabilities, to be eligible under the exception to permit five percent
of youth participants to be individuals who do not meet the income
criteria.
Section 664.240 explains that eligibility for free school lunches
is not a substitute for income eligibility under the Act. When drafting
the Interim Final Regulations, we received suggestions that program
operators be allowed to use eligibility for free lunch as a substitute
for determining eligibility under the Act, and encouraging us to seek a
technical amendment to include such a provision in the legislation.
Several commenters again made requests that we pursue a technical
amendment on the free lunch and reduced lunch eligibility issue and
suggested that eligibility for these programs be used to determine
eligibility for WIA youth services.
Response: We recognize the importance of this issue, yet lack
statutory authority to change the Act's income eligibility
requirements. Should such a change be made to the statute, Sec. 664.240
would be revised. We support a technical amendment in this area, and
have discussed the issue with Congressional staff.
Section 664.250 provides that a youth with a disability whose
family income exceeds maximum income levels under the Act may qualify
for services if the individual's own income meets the income criteria
established in WIA section 101(25)(F), or the eligibility criteria for
cash payments under any Federal, State or Local public assistance
program. (WIA section 101(25)(B).) One commenter strongly supported
WIA's recognition, in the Act and the regulations, of the need for
youth with disabilities to receive youth services.
Subpart C--Out of School Youth
Sections 664.300, 664.310, and 664.320 address issues related to
out-of-school youth. Section 101(33) of the Act defines ``out-of-school
youth'' as: eligible youth who are school dropouts or who have received
a secondary school diploma or its equivalent, but are basic skills
deficient, unemployed, or underemployed. ``School dropout'' is defined
in WIA section 101(39) and Sec. 664.310. Youth enrolled in alternative
schools are not school dropouts.
We received a number of comments requesting that we seek a
technical amendment to WIA that would allow youth attending alternative
schools to be included in the definition of ``school dropout.'' The
commenters felt that this would permit Local Boards to provide services
to more youth in alternative educational environments and to design
programs that take advantage of local resources and best meet the needs
of local youth.
Response: While we recognize the importance of local flexibility
and of serving youth in alternative school settings, we lack statutory
authority to change definitions established under the Act. However, we
have revised Sec. 664.310 to clarify that a youth's dropout status is
determined at the time of registration. Therefore, 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.
We also received comments suggesting that Sec. 664.310 should make
it clear that, for the purposes of determining whether a youth in an
alternative school can be considered out-of-school, their dropout
status should be determined at the point of intake.
Response: We agree. Section 664.310 is revised to clarify that
dropout status is determined at the time of registration.
At least thirty percent of the total youth allocation (except for
local area expenditures for administrative purposes) must be spent on
services for out-of-school youth. This 30 percent, like the remaining
70 percent, need not be spent proportionally between summer and year-
round activities. The Local Board, in consultation with the chief
elected official, determines the distribution of funds. There is no
separate summer program under WIA. Therefore, there is no exemption
from the 30 percent requirement for funds spent on summer employment
opportunities. A single allocation of youth funds, at least 30 percent
of which must be spent on out-of-school youth, is available to local
areas for year-round and summer employment opportunities.
Subpart D--Youth Program Design, Elements, and Parameters
The features of the youth program design are outlined in section
129(c) of the Act. While the Act specifies three program design
categories and ten
program elements, it permits individual program design flexibility in
determining the definition, scope, and characteristics of the elements.
A commenter suggested that, to avoid confusion, we should clarify
the number of youth elements that are required and the entity
responsible for providing the ten elements. The commenter also
suggested replacing the term ``local program'' in Sec. 664.410 with
either ``local workforce investment board'' or ``local workforce
investment area'' to identify the entity responsible for making the ten
elements available.
Response: WIA requires that Local Boards must ensure that all ten
elements are available for youth in their local area. To provide
further guidance to assist Local Boards, we added a new Sec. 664.400 to
define the composition of a local youth program and to address the
difference between local programs and local program operators. This
definition clarifies that a local youth program must include all the
youth activities in a local area, irrespective of the number of
operators or alternative services. In addition, we redesignated
Sec. 664.400 of the Interim Final Rule as Sec. 664.405 and have added a
provision which we discuss below.
Redesignated Sec. 664.405 discusses the three categories required
under WIA section 129(c)(1) which provide the framework for youth
program design. They are: (1) An objective assessment of each
participant; (2) individual service strategies; and (3) services that
prepare youth for postsecondary educational opportunities, link
academic and occupational learning, prepare youth for employment, and
provide connections to intermediary organizations linked to the job
market and employers.
A commenter asked us to clarify that the requirement, in WIA
section 123, that eligible providers of only the ten required program
elements be identified by awarding grants or contracts on a competitive
basis, does not apply to the design framework component of the program.
Response: Eligible providers of the ten program elements must be
identified as required by WIA section 123; however, we have added a new
paragraph (a)(4) to the redesignated Sec. 664.405 to clarify that this
requirement does not apply to the design framework of local youth
programs when the grant recipient/fiscal agent is the provider of the
design framework activity. A similar exception in Sec. 664.610 also
applies to the grant recipient/fiscal agent's provision of summer
employment activities.
A commenter requested that we clarify that developing a career goal
for each youth could be part of the individual's service strategy
rather than an immediate requirement to identify a career goal because
many young people 14 years and above do not know what they want to do.
Response: We agree that developing a career goal may be part of an
individual service strategy rather than an immediate requirement for
younger youth. However, setting goals for younger youth may reflect a
career interest. Goals may change as a youth ages and interests broaden
as a result of participation in workforce development activities.
Therefore, we believe local program operators should encourage younger
youth to identify career interests which may serve as a career goal. We
have added the phrase ``age-appropriate'' to redesignated
Sec. 664.405(a)(2) to clarify that the career goals selected should
appropriate for the age of the youth participant.
Redesignated Sec. 664.405(c) requires Local Boards to establish
linkages to entities that will foster the participation of eligible
youth. We received several comments stating that youth programs should
be designed to address the needs of teen parents (such as child care,
flexibility in schedule), to combat the occupational segregation which
contributes to low wages of women and that training should be evaluated
for access to non-traditional jobs and career paths for women and
girls. The commenters also suggested that we add language to this
section to provide for linking youth programs with educational
institutions, child care facilities, and other entities to meet women-
specific needs.
Response: The final regulations, in redesignated
Sec. 664.405(a)(3), provide for linking youth programs with other
entities to assist youth. Examples of linkages are listed in
Sec. 644.405(c), but the list is not exhaustive. Local Boards must
ensure that there are appropriate links to entities that will foster
the participation of eligible local area youth. Program operators may
link their programs to entities such as local high schools, alternative
schools, childcare agencies, vocational programs, and two-and four-year
postsecondary institutions that provide services to address the
specific needs of the targeted population, including teen parents, for
eligible youth services. We agree with the commenters about the
importance of these linkages in fostering the participation of eligible
youth, however, we do not want to be overly prescriptive, decreasing
the discretion of local areas in making such decisions. No change has
been made in the final regulations.
Section 129(c)(3) of the Act requires that Local Boards ensure that
eligible youth receive information and referrals, including information
on the full array of appropriate services available to them and
referrals to appropriate training and educational programs. Youth
program providers must ensure that eligible applicants who do not meet
the enrollment requirements of their program or who cannot be served by
their program are referred for additional assessment and program
placement. This language is included in redesignated Sec. 664.405(d) to
emphasize the importance of referrals as a part of overall youth
program design. To further promote the concept of seamless One-Stop
service delivery, One-Stop operators are encouraged to send those youth
assessments that are completed at the One-Stop center to other training
and educational programs to which the youth is referred.
Section 129(c)(2) of the Act lists 10 program elements that must be
generally available to youth through local programs. A commenter asked
for clarification on the number of youth elements required and whether
these elements must be provided to every youth participant.
Response: Section 664.410(a) makes it clear that the Local Board
must ensure that all ten elements are available for youth in their
local area. However, Sec. 664.410(b) provides that a local program is
not required to provide all ten program elements to every participant.
Local program operators must determine what program elements will be
provided to each youth participant based on the participant's objective
assessment and service strategy. We envision that each youth will
participate in more than one of the ten program elements required as
part of any local youth program and all youth must receive follow-up
services. For example, even if it is determined appropriate that a
youth participate in only summer employment activities, he or she would
still receive at least 12 months of followup services. Followup service
requirements are fully described in Sec. 664.450. Since the regulations
address this issue, no change is necessary.
Sections 664.420 through 664.470 further define and discuss five
program elements: leadership development, positive social behaviors,
supportive services, followup services, and work experiences.
Under WIA section 129(c)(2)(F) and Sec. 664.410, youth programs
must make leadership development opportunities available. The Act gives
the following examples of leadership activities:
community service and peer-centered activities encouraging
responsibility and other positive social behaviors during non-school
hours. Some additional examples of leadership development activities
are listed in Sec. 664.420 which elaborates on the definition of
leadership development opportunities. The development of leadership
abilities might address team work, decision making, personal
responsibility, and citizenship training, as well as positive social
behavior training in areas such as positive attitudinal development,
self-esteem building, cultural diversity training, and other skills and
attributes that would help youth to lead effectively, responsibly, and
by example.
One commenter suggested that the examples of leadership development
opportunities should include actual opportunities for youth to assume
leadership roles, such as: involving participants in program governance
and decision making, entrepreneurship training and peer leadership
opportunities.
Response: The examples of leadership development and positive
social behaviors in Sec. 664.420 are not intended to be all inclusive,
they are merely examples. Other kinds of leadership development
opportunities may be provided at the discretion of the Local Board. The
commenter provides good examples of the types of leadership development
opportunities Local Boards may want to consider when designing their
local youth programs. No change has been made in the final regulations.
A commenter suggested that the rules define ``positive social
behaviors'' and make it clear that positive social behaviors are
outcomes of leadership opportunities. The commenter recommended a new
definition of positive social behavior which includes some of the
following activities: maintaining healthy lifestyles, including being
drug and alcohol free; maintaining positive relationships with
responsible adults and peers; contributing to the well-being of one's
community; voting; being committed to learning and academic success;
remaining non-delinquent; and postponed and responsible parenting.
Response: We have added these suggestions to the list of positive
social behaviors in Sec. 664.430 because we think that the original
list of examples was too narrow to reflect the full range of positive
social behaviors. As a technical correction, we have removed the phrase
``but not limited to'' from this section. This does not change the
meaning of this provision. Here, as throughout the regulations, the
term ``include'' is used to indicate an illustrative, but not
exhaustive list of examples.
Another of the ten required program elements is supportive
services. Section 101(46) of the Act defines supportive services to
include services such as transportation, child care, dependent care,
housing, and needs-related payments, that are necessary to participate
in activities authorized under title I of the Act. Section 664.440
elaborates on the definition of supportive services as it applies to
youth. Such services may include: linkages to community services;
referrals to medical services; and assistance with work attire and
work-related tool costs, including such items as eye glasses and
protective eye gear. Child support, EITC, Food Stamps, Medicaid, and
the Children's Health Insurance Program are among the programs with
which Local Boards are encouraged to coordinate. We have made a slight
modification to this section which previously referred to assistance
with transportation, dependent care and housing ``costs''. We have
removed the reference to ``costs'' for the services since WIA title I
funds may be used to provide services such as on-site child care as
well as to directly provide or reimburse the costs of these services.
Section 664.450 requires that followup services be provided to all
youth participants for not less than 12 months after the completion of
participation, as appropriate. The appropriate scope of followup
services must be based on the needs of the individual participant.
Followup services have proved to be effective. Evaluation studies such
as Abt Associates' Final Report on the National JTPA Study, have shown
disappointing results for short-term job training programs for youth.
In contrast, programs such as STRIVE and the Children's Village have
shown much success with longer-term followup strategies. A 1993 study
by MDRC showed that the programs of the Center for Employment Training,
which feature close ties to the private sector and a strong job
placement component with followup with employers, increased the
earnings of enrollees by $3,000 a year over a control group during the
last two years of a four-year evaluation.
Section 664.450(a)(1) provides that followup may include leadership
development or supportive service activities, as well as other
allowable activities, and provides additional examples of permissible
followup services. The list is intended to present examples of followup
services; other types of followup services may be determined at the
local level.
Section 664.450(b) clarifies that all youth participants must
receive some form of followup services. Such services must be for a
minimum of 12 months. Followup services for youth who participate in
only summer employment activities may, however, be less intensive than
for those youth who participate in other types of activities. Program
operators are encouraged to consider the intensity of the services
provided and the needs of the individual youth in determining the
appropriate level of followup services.
A commenter suggested revising the sentence referring to less
intensive followup services for youth who have only participated in
summer employment opportunities, to say that the scope and intensity of
these followup services should be consistent with each participant's
individual service strategy.
Response: Section 664.450(b) already states that the types of
services provided and the duration of services must be determined based
on the needs of the individual. Therefore, we do not feel that further
clarification is required. Local programs will make the determination
on the intensity of followup services. However, we will provide
additional guidance on other aspects of this subject through our
regular system of communication to States and local areas for States
that may need technical assistance.
Sections 664.460 and 664.470 address work experiences for youth.
Work experiences are planned, structured learning experiences that take
place in a workplace for a limited period of time. The regulations do
not specify a particular time limit for work experiences. A commenter
requested that we place a maximum time limit on work experiences (no
more than 30 days), and require that all work experiences be paid, with
priority given to employers who have evidenced a commitment to training
for their own workers and union management approaches to training.
Response: We agree that Local Boards should make a point of
establishing work experiences opportunities for youth with employers
who have demonstrated quality approaches to training and labor
management, but do not think it is necessary to mandate this approach.
We believe, however, that establishing a regulatory time limit,
requiring that all work experiences be paid and giving priority to
select employers is inconsistent with principle of local flexibility in
designing programs. No change has been made in the final regulations.
As provided in Section 129(c)(2)(D) of the Act, work experiences
may be paid or unpaid, as appropriate. A commenter suggested that we
clarify that work experiences are appropriate and desirable activities
for many youth throughout the year.
Response: We agree and have added the suggested language to
Sec. 664.460(c).
Section 664.460 provides that work experiences may be in the
private for-profit sector, the nonprofit sector, or the public sector,
and gives examples of the types of activities that work experiences may
include, such as internships and job shadowing. A few commenters
recommended adding other examples to Sec. 664.600 to expand the types
of acceptable work experiences. They suggested that the definition of
work experiences should make it clear that paid or unpaid community
service programs, such as youth services or conservation corps, are
valid examples of work experiences, and suggested that language be
added to encourage Local Boards to maximize the use of paid work
experiences in summer conservation corps programs managed by qualified
State, local, non-profit or Federal agencies, as key element or
strategy. In addition, a commenter proposed that the regulations
encourage Local Boards to maximize collaboration with federal agencies
that operate summer youth conservation corps program.
Response: We agree that paid and unpaid community service programs
may be appropriate types of work experiences for youth, and have
amended the list of examples in Sec. 664.460(c) to include them.
However, while we agree that youth conservation corps may be one of the
programs in which WIA youth participants gain work experiences, we have
refrained from identifying particular types of program providers
throughout the regulations. Therefore, consistent with the principle of
maximizing State and local discretion, we have not specified this
program in the regulations.
A few commenters also endorsed the principle that decisions
regarding OJT for youth participants should be left to Local Boards.
Response: We agree that the decision about when to provide OJT to
youth under age 18 should remain a decision left to Local Boards. While
OJT is not an appropriate activity for most youth under age 18, local
programs may choose to use this service strategy for such youth based
on the needs identified in an individual youth's objective assessment.
Since Sec. 664.460(d) provides for local discretion in deciding when to
use OJT, based on a youth's service strategy, no change is made to the
regulations.
Section 664.470 provides that youth funds may be used to pay the
wages of youth in work experiences, including in the private, for-
profit sector, under conditions designed to protect youth and incumbent
workers when the purpose of the work experiences is to provide youth
with opportunities for career exploration and skill development and not
to benefit the employer. If an unpaid work experience creates an
employer/employee relationship, federal wage standards may apply. This
relationship is determined under the Fair Labor Standards Act.
One commenter asked that we clarify the statement that the purpose
of work experiences is not to benefit the employer although the
employers may, in fact, benefit from activities performed by the youth,
stating that Sec. 664.460 (c) is ambiguous.
Response: The intent of work experiences is to provide youth with
opportunities for career exploration and skill development and to
enhance their work readiness skills in preparation for employment.
While this is the primary objective of work experiences, we recognize
that the employer may also receive some benefit in the form of work
being done or of recruiting a potential new employee. We believe that
the regulations adequately explain this; therefore, no change has been
made to the regulations.
Subpart E--Concurrent Enrollment
Under the criteria of section 101(13) of the Act, an eligible youth
is an individual 14 through 21 years of age. Adults are defined in
section 101(1) of the Act as individuals age 18 and older. Section
664.500(b) clarifies that eligible youth who are 18 through 21 years
old may participate in youth and adult programs concurrently, as
appropriate for the individual. Such individuals must meet the
eligibility requirements under the applicable youth or adult criteria
for the services received. Local program operators must identify and
track the funding streams for services provided to individuals who
participate in youth and adult programs concurrently, ensuring non-
duplication of services.
A commenter asked that we make it clear that out-of-school youth
may enroll in adult programs under Titles I and Title II of the Act.
Response: We have revised paragraph (b) of Sec. 664.500 to clarify
that concurrent enrollment is allowable for youth served in the adult
program, dislocated worker program, adult education programs under
title II of WIA, and other programs, in order to broaden options for
serving youth.
A commenter suggested that youth co-enrolled in both youth and
adult programs should also be offered the complete services available
to youth.
Response: We think the regulations already cover this suggestion
since youth enrolled in youth programs must receive an individual
assessment and service strategy based on their need, regardless of
whether they are co-enrolled in an adult program. The service strategy
should consider all the service options available under both the youth
and adult programs.
Section 664.510 provides that ITA's are not an authorized use of
youth funds. One commenter stated that WIA is silent on the use of
ITA's for youth and this should be a State or local decision. This
commenter felt that since it is allowable to enroll 18 year old youth
in both youth and adult programs, the use of ITA's should be allowed as
an activity for 18-21 year old youth enrolled only in youth funded
activities. Another commenter asked that we reverse the rule
disallowing ITA's for youth participants not eligible for training
services under the adult and dislocated worker programs.
Response: The ITA is the currency of a market-based system that
enables adults and dislocated workers to select the service providers
most suited to their needs based on information about the past
performance of such providers. While the Act does not mention ITA's in
its youth provisions, it does require that providers of the ten
required youth program elements be competitively selected. The
competitive selection requirement effectively precludes the use of
ITA's since providers are selected by the Local Board, rather than by
the participant. Thus, because the supply of providers may be limited,
we interpret the Act to preclude ITA's for youth below age 18. Youth
aged 18 through 21 can access ITA's under the adult or dislocated
worker program, if appropriate. Accordingly, we have not changed this
section.
Subpart F--Summer Employment Opportunities
Subpart F provides clarification about summer employment
opportunities for youth. Commenters expressed concern that WIA does not
have a separate funding authorization for summer youth employment and
training programs. A commenter also felt that without a separate
authorization, the summer youth employment program could find
itself in some peril in the future and suggested that regulatory
language be added to preclude any diminution in this highly important
activity.
Response: The commenters are correct that the summer youth
employment and training program is no longer a separately funded
activity. Rather, summer employment opportunities are intended to be
part of a comprehensive array of services available to youth in a local
area. Although all Local Boards must offer summer employment
opportunities for eligible youth as one of the ten required program
elements listed in WIA section 129(c)(2) and Sec. 664.420, the
proportion of youth funds used for summer employment is determined by
the Local Board in consultation with the chief elected official.
Section 664.600 elaborates on the activities that must be included in
all summer employment opportunities, including direct linkages to
academic and occupational learning, as well as followup services for at
least 12 months. Accordingly, we believe it would be contrary to the
intent of the Act and inconsistent with local flexibility to regulate
the level of activity required for any of the ten program elements,
including the summer youth employment opportunities. We will, however,
work with States and local areas to assist them with making the
transition to providing summer employment activities as part of a
comprehensive system of youth services. For example, we issued Training
and Employment Guidance Letter (TEGL) 3-99 in January 2000, to provide
guidance to States and local areas on implementing comprehensive youth
services under title I of WIA during the summer of 2000. This guidance
is available on the Internet at www.usworkforce.org. Therefore, a
change in the regulations is not necessary.
A commenter also asked that a new paragraph (e) be added to
Sec. 664.600 to require each local area to report yearly on the number
of youth participants who are provided summer employment opportunities.
Response: Section 183 of the Act authorizes the Secretary to
monitor all recipients of financial assistance, which would include
grant recipients that operate summer employment activities. We are in
the process of developing a reporting system to collect information on
WIA participants, youth participants will be included in the reporting
system. This reporting system will include information on how many
youth participants participated in summer employment opportunities, as
well as the characteristics of those participants. Since this issue is
being addressed in the reporting arena, no change is made to these
regulations. In addition, Training and Employment Guidance Letter
(TEGL) 14-99, transmitting instructions for the WIA Transition Summer
Report addresses these issues. The TEGL was issued on June 12, 2000 and
can be found on the Internet at www.usworkforce.org.
We received numerous inquiries about whether the Act would allow
cities and counties to continue to operate their summer employment
opportunity activities.
Response: Section 664.610 provides that this practice is still
allowed when the local chief elected official is the grant recipient/
fiscal agent. It clarifies that if summer employment opportunities are
provided by entities other than the grant recipient/fiscal agent, then,
under WIA section 123, the providers must be selected by awarding a
grant or contract on a competitive basis, based on recommendations of
the youth council and on criteria contained in the State Plan. Thus, a
city or county may continue to operate the summer employment
opportunities component of the youth program, and is not required to
engage in a competitive selection process for that component, if it
acts as the grant recipient/fiscal agent for the Local Area. However,
under WIA section 123, providers must be selected on a competitive
basis if providers other than the grant recipient/fiscal agent provide
the summer employment opportunities component of the local youth
program.
A commenter also suggested that we clarify that local government
units operating summer youth employment opportunities as a consortium
may provide summer youth opportunities without competitive bidding.
Response: We agree and have revised Sec. 664.610 to specifically
recognize consortia of local governments.
One commenter requested that we allow the selection of private
sector unsubsidized employment opportunities to be excluded from the
competitive process.
Response: We agree and Sec. 664.610 has been revised accordingly.
Some commenters suggested that the description of summer youth
employment should make it clear that youth service and conservation
corps constitute valid summer employment opportunities. They also
recommended that we encourage Local Boards to maximize collaboration
with Federal agencies that operate summer youth conservation corps
programs.
Response: In our discussion of Sec. 664.460, we have identified
youth conservation corps and youth service corps as available work
experiences opportunities for youth. As such, placement with these
programs as part of summer employment opportunities may also be
appropriate. However, we do not believe it is necessary to specifically
identify these programs in the regulations.
The core indicators specified in section 136 of the Act apply to
the youth program as a whole, including all youth program activities.
This is consistent with the intent of the Act to move from a focus on
separate, categorical programs to a more systematic approach to
workforce investment and serving the needs of youth. Summer employment
opportunities, then, are to be viewed as one element among many
available to youth as a part of a menu of activities offered by the
Local Board. Section 664.620 indicates that participants in summer
activities, as part of the overall youth program, are required to be
included in the same core indicators of performance as the other youth
activities.
A commenter thought that performance measures in Title I and Title
II should be the same for youth because youth can be simultaneously
enrolled in both programs.
Response: We agree that performance measures for federal education
and training programs should be coordinated to the extent possible. We
have held discussions with the Department of Education to identify
similar performance measures which would apply to both Title I and
Title II programs and will continue our joint efforts to harmonize
performance measures across programs.
Subpart G--One-Stop Services to Youth
Subpart G explains that the chief elected official (as the local
grant recipient for the youth program), is a required One-Stop partner,
is subject to the One-Stop provisions related to required partners,
described in 20 CFR part 662, and is responsible for connecting the
youth program and its activities to the One-Stop system. In addition to
the provisions of 20 CFR part 662, links between the youth program and
the One-Stop system may include those that facilitate:
- The coordination of youth activities;
- Connections to the job market and employers;
- Access for eligible youth to information and services; and
- Other activities designed to achieve the purposes of the
youth program.
Under section 134(d)(2) of the Act, adults have access to core
services in One-Stop centers without regard to eligibility. Adults are
defined under the Act as persons aged 18 and above. Section 664.710 of
the regulations clarifies that local area youth, including youth under
age 18 who are not eligible under the title I youth program, may
receive services through the One-Stop centers; however, services for
such youth must be funded from sources that do not restrict eligibility
for services, such as the Wagner-Peyser Act. We believe that WIA's
intent is to introduce youth, particularly out-of-school youth, to the
services of the One-Stop system early in their development and to
encourage the use of the One-Stop system as an entry point to obtaining
education, training, and job search services.
Commenters suggested that One-Stop Centers should make significant
efforts to make their programs and services accessible to youth and
work with local school systems to reach eligible youth. One of the
commenters also suggested amending Sec. 664.700(b)(2) to add the local
school systems to the linkage requirement, and to require One-Stops to
provide materials at low literacy and developmentally diverse levels.
To better serve participants of all ages, staff should be trained on
the developmental stages of youth and adulthood. A commenter also
stated that it is important that, in all cases, written material and/or
electronically accessed information available at one-stop centers and
throughout the system be written at no more than a fifth grade reading
level and, where appropriate, also available in languages other than
English spoken by a majority of potential customers.
Response: While neither WIA nor its implementing regulations
require any sort of reading level analysis for EO purposes, local areas
may consider providing written materials at low literacy and
developmentally diverse levels. The WIA nondiscrimination regulations,
at 29 CFR 37.35, set forth the specific obligations to provide services
and information in languages other than English. The level that
triggers the obligation to prepare non-English materials and services
in advance is ``a significant number or proportion of the population
eligible to be served or likely affected.'' Since One-Stop centers must
adhere to the 29 CFR part 37 Civil Rights regulations when adopting
such policies, no changes to Sec. 664.700 are necessary.
Subpart I --Youth Opportunity Grant Programs
This subpart explains that competitive procedures for awarding
Youth Opportunity Grants will be established by the Secretary. It also
restates statutory language about the eligibility of Local Boards and
other entities in high poverty areas to apply for Youth Opportunity
Grants. Provisions of the Act regarding eligibility for services under
Youth Opportunity Grants and the process for establishing performance
measures are clarified in Secs. 664.800 to 664.830. We view these
grants as a distinct opportunity to provide a variety of needed
services to youth in high poverty areas, building on the current
successful activities and innovations already at work in many
communities.
Part 665--Statewide Activities Under Title I of the Workforce
Investment Act
Introduction
This part addresses the funds reserved at the State level for
statewide workforce investment activities under WIA sections 128(a) and
133(a)(2).
Subpart A--General Description
Subpart A provides a general description of Statewide activities
conducted with the up to 15 percent of the funds which the Governor may
reserve from the youth, adult and dislocated worker funding streams
(``15 percent funds''), and the up to an additional 25 percent of
dislocated worker funds which the Governor may reserve for Statewide
activities.
Section 665.110(b) explains that the 15 percent reserved funds may
be pooled and expended on workforce investment activities without
regard to the source of the funding. For example, funds reserved from
the adult funding stream may be used to carry out Statewide youth
activities and vice versa. We believe that the use of these funds can
provide critical leadership in the development and continuous
improvement of a comprehensive workforce investment system for each
State and, as a result, create a national system to which job seekers
and workers can look to for expert assistance, and employers can look
to for a qualified workforce. This issue is also addressed in 20 CFR
667.130(b).
We did not receive any comments on this subpart and no changes have
been made in the final regulations.
Subpart B--Required and Allowable Statewide Workforce Investment
Activities
Subpart B discusses required and optional activities conducted with
funds reserved from the three title I funding streams (youth, adults,
and dislocated workers).
1. Required Activities: Section 665.200 identifies the eight
activities each State is required to carry out with its reserved funds
from the three funding streams. The Governor must reserve funding for
these activities, but has discretion to determine the amount reserved,
up to the maximum 15 percent of each funding stream. One authorized use
of these funds is administration, subject to the five percent
administrative cost limitation at 20 CFR 667.210(a)(1). This paragraph
clarifies that while there is no specific amount that must be spent for
each of the seven activities that are required to be carried out with
the 15 percent funds, it is expected that the State will expend a
sufficient amount to ensure effective implementation of those
activities.
States are also required to provide additional assistance to local
areas that have high concentrations of eligible youth. This activity is
one way States can help local areas maximize the number of youth served
under title I of WIA. Another required activity, rapid response, is
discussed in subpart C of part 665.
Section 665.200(b) discusses the States' responsibility for
disseminating information about eligible providers of training services
for adults, dislocated workers and youth, including the statewide list
of eligible providers and information on performance and program cost.
One commenter stated that, when discussing statewide dissemination
strategies, the regulation should encourage States to disseminate
information in different languages, for different reading levels, and
to use radio and television public service announcements to reach as
wide and diverse an audience as possible.
Response: We agree with the commenter and encourage States to
develop dissemination strategies using multiple means, including those
suggested by the commenter, to provide information in such a way as to
reach the widest population. The Interim Final Regulation implementing
WIA's section 188 nondiscrimination provisions contains requirements
for the effective communication of information to individuals with
disabilities, including dissemination of information in different
languages and to various population groups.
29 CFR 37.9; 37.35; 37.42, (published at 64 FR 61692) (Nov. 12, 1999)).
We will work with
the Department of Labor's Civil Rights Center to issue guidance on
compliance with 29 CFR 37.35 to assist providers in meeting their
obligations to provide materials and services in languages other than
English. To permit maximum State and local flexibility, we have chosen
not to specify particular methods by which information on eligible
providers must be disseminated. However, we have added a new paragraph
(5) to Sec. 665.200(b) which requires that States assure that the
information listed in paragraphs (1) through (4) is widely available.
Section 665.200(c) discusses conducting evaluations (WIA section
136(e)) of workforce investment activities for adults, dislocated
workers and youth as one of the eight required Statewide activities.
One commenter suggested that ``high wages'' be specified as part of
``high-level outcomes'' which result from the improvements identified
in the evaluations.
Response: Section 665.200(c) discusses broad Statewide program
goals leading to high-level performance and outcomes and is not
intended to require specific measures to be used in achieving them, nor
to address individual participant outcomes. We believe that high wages
may be better addressed by the core performance indicators required by
WIA section 136 and discussed in 20 CFR 666.100, especially by the 6-
month post employment earnings measure, which, by definition, addresses
wages. Also, it is expected that the Governors will use additional
indicators of performance on a Statewide and local basis that may more
fully address the commenter's concern (see 20 CFR 666.110 and
666.300(b)). Finally, ``high wages'' is a relative term and, as such,
is difficult to define in a useful way, except on an individual basis
because it is a function of a particular occupation, local labor market
conditions, an individual worker's skills, experience, education level,
and other factors. What are high wages for one person may be low wages
for another. For these reasons, the final regulation is unchanged.
Another commenter expressed concern that, under a universal access
system and uniform performance standards, special populations with
significant barriers to employment will experience difficulties in
learning about, accessing and receiving appropriate services. The
commenter suggested that the final regulations encourage evaluations of
the delivery of workforce investment activities to economically
disadvantaged and other special populations.
Response: While we agree that the evaluation of activities,
including outreach, for these populations is important and should be
encouraged, we do not wish to limit the Governors' flexibility in
allocating and administering the funds reserved for these required
activities. 29 CFR 37.42, in the regulations implementing the WIA
nondiscrimination and equal opportunity provisions, contains further
obligations regarding outreach and universal access. Under WIA, the
Governors have been given the discretion to determine funding levels
for outreach and evaluation activities and whether the activities will
be targeted to specific organizations, populations or programs.
However, WIA section 136(e)(2) and Sec. 665.200(c) require Governors to
design the evaluations in conjunction with the State and Local
Workforce Investment Boards and to coordinate with Local Boards in
conducting the evaluation studies. Community-based organizations,
advocacy groups, and other stakeholders have a variety of opportunities
for participation in the workforce investment system decision-making
process. They are among the groups represented on State and Local
Boards. They may attend Local Board meetings, provide comments on
workforce investment plans, become eligible training providers, and
demonstrate effectiveness in the delivery of training programs. We
believe that the commenter's concerns should be, and will be, addressed
through this broad consultation process. However, Sec. 665.200(c) of
the final regulations is revised to include a reference to the
requirements of WIA section 136(e)(2), which was not included in the
Interim Final Rule.
Other commenters suggested that, for the purposes of awarding
incentive grants, the final regulations should define the term
``exemplary performance,'' used at Sec. 665.200(d)(3), in a way that
will reward local areas that assist a significant percentage of
individuals to meet their self-sufficiency standard (i.e., to earn
wages needed to cover costs for various family sizes and types, without
governmental assistance).
Response: We agree that consideration of the extent to which
programs lead to self-sufficiency is an important factor in measuring
program effectiveness and encourage States to look at this factor in
determining incentive grants. Under WIA, however, the Governor has the
discretion to develop additional indicators of performance by further
defining exemplary performance beyond the core performance measures
specified in the Act and regulations. As stated in 20 CFR 666.300, WIA
section 136(c)(1) authorizes the Governor, and not the Department, to
apply additional indicators of performance, such as self-sufficiency,
to local areas and to use them along with the core performance measures
as the basis for awarding Incentive Grants for exemplary performance.
As stated in 20 CFR 666.400(b), WIA section 134(a)(2)(B)(iii) further
provides that the authority to determine the criteria for exemplary
local performance that qualifies for incentive grants, as well as the
amount of funds used for these grants, lies with the Governor. To limit
the Governors' discretion in this area by requiring additional
indicators would not be in keeping with the letter and intent of WIA to
provide increased State and local flexibility. Consequently, this
provision remains unchanged in the final regulations and the States
retain the authority to exercise discretion in these matters.
Section 665.200(e) provides for technical assistance to local areas
that fail to meet local performance measures. A commenter indicated
that such technical assistance must include capacity building for Local
Board members to help improve services and performance.
Response: The State has the flexibility to develop technical
assistance strategies and, therefore, a State may decide to include
capacity building activities as part of its overall technical
assistance strategy. WIA section 134(a)(3)(A)(ii) and Sec. 665.210(b)
list capacity building activities as an allowable statewide activity.
Consistent with the WIA principle of maximizing State and local
flexibility, we believe that it would not be appropriate to limit
flexibility by specifying a particular type of technical assistance
activity that must be provided. While we agree that capacity building
for Board members is often a useful technical assistance strategy, we
are not prepared to require it in all cases. This provision remains
unchanged in the final regulation.
2. Optional Activities: Section 665.210 identifies activities which
each State is allowed to carry out with the 15 percent funds. For the
first time, States have the discretion to conduct research and
demonstration projects, and incumbent worker projects, including the
establishment and implementation of an employer loan program. We
encourage States to establish policies and definitions to determine
which workers, or groups of workers, are eligible for incumbent worker
projects. We have added the phrase ``or groups of
workers'' to Sec. 665.220 to clarify that groups of workers, in
addition to individual workers, may be determined eligible for
incumbent worker training, and that the eligibility determination for
the ``group'' does not have to be done on an individual basis. Section
665.220 makes clear that incumbent workers served under projects funded
with these reserve funds do not necessarily have to meet the
requirement that training leads to a self-sufficient wage. However,
because of different WIA requirements, employed adult or dislocated
workers served with local formula funds must meet the self-sufficiency
requirement.
Under their capacity-building function (one of the allowable
Statewide workforce investment activities), states may also conduct
activities and implement programs designed to promote access to and
coordination among supportive services and work supports administered
by other state agencies. Because supportive service and work support
programs are vital for low-income families making the transition to
self-sufficiency, efforts to integrate and coordinate such programs at
the state level will greatly enhance the capacity of One-Stop providers
to serve their participants successfully.
One commenter suggested that States consult and coordinate
allowable Statewide workforce investment activities with State labor
federations and appropriate labor organizations, especially in the case
of incumbent worker training. The same commenter also suggested that
States be required to provide assurances that capacity building and
technical assistance funds are used to enhance participation of all
stakeholders, including organized labor.
Response: We agree that State labor federations and other
appropriate labor organizations at the State and local level should be
involved in consulting and coordinating on allowable Statewide
workforce investment activities, including capacity building (which is
one of the allowable activities), and technical assistance (a required
activity for local areas that fail to meet performance levels).
Representatives of labor organizations have the opportunity for
consultation and coordination through their membership on State and
Local Boards, the opportunity for public comment during State and local
planning processes, as well as other opportunities provided under the
sunshine provisions of WIA (WIA sections 111(g) and 117(e), and 20 CFR
661.220(d) and 661.305(d)). We believe the commenter's concerns on
consultation and coordination will be addressed by these broad
consultation processes. This provision remains unchanged in the final
regulations.
One commenter suggested that States must consult on policies
governing incumbent worker training with organized labor
representatives, especially those whose members have the skills in
which training is proposed. In addition, the commenter suggested that
written concurrence on the training programs must be provided by the
unions whose members are being affected by these programs.
Response: We agree that written union concurrence is required,
under WIA section 181(b)(2)(B) and 20 CFR 667.270(b), where a training
program would impair or be inconsistent with an existing collective
bargaining agreement. We believe that general consultation on incumbent
worker training initiative policies will occur with organized labor
representatives through the processes described above. We strongly
encourage State and Local Boards to also consult with the specific
organized labor organizations whose members have the skills in which
incumbent worker training programs are being planned, as well as with
organized labor organizations whose members are affected by such
programs even where the is no question of impairment of collective
bargaining agreements. No changes have been made to the final
regulations.
Several commenters suggested that we add illustrative language to
the list of optional Statewide activities specified in Sec. 665.210 to
identify and encourage the selection of particular programs or types of
providers that may be funded with the State's 15 percent reserve funds.
Response: These suggestions are discussed in more detail below. As
a matter of policy, we agree that the commenters' suggestions would be
permissible uses of the 15 percent funds. However, we are not prepared
to single out any particular type of program or provider, consistent
with our overarching policy of providing State and local flexibility in
program design and implementation.
One commenter asked that the following language be added to
Sec. 665.210(b)(1) regarding staff development and training:
``particularly for non-profit community-based organizations that serve
disadvantaged populations to assist them in being certified as eligible
providers and to comply with data collection requirements.'' The
commenter also suggested that language in Sec. 665.210(e) should
specifically mention that the support provided to local areas for
identifying eligible training providers should include outreach efforts
to community-based organizations that serve disadvantaged (minority,
immigrant, low-income, disabled) populations.
Response: While we are not prepared to limit State and local
flexibility by imposing this requirement, we are committed to assisting
disadvantaged populations, such as low-income individuals or
individuals with disabilities, and agree that community-based
organizations are an important part of the workforce investment system
with their focus on serving these populations. Outreach to groups
serving disadvantaged population groups is an important part of the
Local Board's responsibility to provide universal access to WIA funded
activities. See 29 CFR 37.42. Therefore, we encourage Local Boards to
engage in outreach activities to community-based organizations. In
addition, community-based organizations will be represented on Local
Boards, will have the opportunity to attend Local Board meetings, and
provide comments on the eligible provider process and to demonstrate
effectiveness in the delivery of training programs. We expect States to
provide training activities for all organizations that have
traditionally been partners of the system. No change has been made in
the regulations.
Another commenter suggested that Sec. 665.210(b)(2) should
specifically list programs provided by State and local youth service
and conservation corps as examples of exemplary program activities.
Response: We believe that when a State is developing exemplary
program activities, it should include programs, such as those
suggested, that have proven successful in delivering employment and
training activities for youth, adults and dislocated workers. However,
we also recognize that the Governor has the authority to determine what
allowable activities will be conducted and how the 15 percent funds
will be used to conduct those activities. Since we do not believe it is
appropriate to prescribe how the States should spend those funds, no
change has been made in the final regulations.
A commenter noted that Secs. 665.200(b)(1) and 665.210(f) provide
for nontraditional training and employment in both required and
allowable Statewide workforce investment activities. The commenter
suggested that we should provide more specific guidance on how States
should provide opportunities for training for non-traditional
employment at the State and local levels.
Response: We agree that training for non-traditional employment is
an important component of the workforce investment system. While the
rule remains unchanged in the final regulations, we expect to issue
guidance to States and local areas on the provision of training for
non-traditional employment. In addition to implementing innovative
programs for displaced homemakers, and programs to increase the number
of individuals trained for and placed in non-traditional employments,
we also encourage states to implement programs to promote increase
employment of low-income fathers so they can support their children
more adequately.
One commenter indicated that Sec. 665.210(f) should list
entrepreneurship and asset-building initiatives as examples of
innovative programs for displaced homemakers.
Response: We encourage States to develop innovative programs, which
may include those specified by the commenter, when designing innovative
programs for displaced homemakers. However, we believe that the States
should have the flexibility to design programs which meet their
specific needs. The rule, therefore, remains unchanged in the final
regulations.
The same commenter suggested that Sec. 665.210(f) should specify
that when a State is implementing programs to increase the number of
individuals trained for and placed in non-traditional employment,
special attention should be given to low-income individuals and
recipients of public assistance.
Response: Although we agree that States should take steps to assure
that all training activities are available to low-income individuals
and public assistance recipients, we believe that States must have the
flexibility to design programs which increase the participation of all
individuals. We do not think it is appropriate to narrowly limit this
flexibility. Therefore, the regulation remains unchanged.
Another commenter suggested that the listing of required and
allowable Statewide workforce investment activities should specify that
the needs of older workers can be addressed with these resources.
Response: We agree that the Governor has the discretion to fund
activities for older workers and other specific groups. However, as
stated above, we believe the States should have the flexibility to
design programs which meet their needs. Consequently, we have not
specified this permissive use of funds in the final regulations.
One commenter suggested adding language to Sec. 665.210(b)(2) that
encourages States to continue exemplary programs funded through
targeted JTPA funds as they transition to WIA so that individuals
currently participating in such exemplary programs may continue to
receive services and avoid abrupt termination.
Response: While one of the reforms contained in WIA was the
elimination of the mandatory set-asides (such as the 5 percent set-
aside for older worker programs) in order to increase State
flexibility, we expect that programs under WIA will benefit from the
experience and expertise gained under JTPA. Further, WIA policy
guidance (in WIA Questions and Answers dated April 1999, Section I.,
Transition Issues, Number 1 at www.usworkforce.org) expresses our
intent that individuals who are receiving JTPA services continue to
receive services under WIA when a local area transitions to WIA so that
they may complete their JTPA service strategy without interruption.
These participant transition provisions have been added to subpart I of
part 667 of these regulations.
One commenter suggests that Sec. 665.210(d) either provide more
information on the reference to Empowerment Zones and Enterprise
Communities in relation to innovative incumbent worker initiatives, or
delete the reference entirely, because this reference could not be
located in the WIA legislation.
Response: WIA, at section 134(a)(3)(A)(iv)(II), specifically
authorizes programs targeted to Empowerment Zones and Enterprise
Communities. This is separate from the authority to operate innovative
incumbent worker initiatives. The Empowerment Zone and Enterprise
Community initiative is a joint effort of the U.S. Department of
Housing and Urban Development and the U.S. Department of Agriculture.
The initiative is designed to provide Federal tax incentives and
flexible grant assistance to distressed urban and rural areas, and is
framed around four key principles: economic opportunity; sustainable
community development; community-based partnerships; and a strategic
vision for change. Over 100 communities around the country have been
named Empowerment Zones or Enterprise Communities. More information on
this initiative can be found at www.hud.gov.
In order to clarify the statutory provisions in WIA section
134(a)(3)(A)(iv)(I) and (II), which separates the establishment and
implementation of programs targeted to Empowerment Zones and Enterprise
Communities from the implementation of innovative incumbent worker
training programs, we are breaking paragraph (d) of Sec. 665.210 into
two paragraphs to clarify that these are two separate allowable
activities.
One commenter suggested that Sec. 665.210(g) should specify
entrepreneurship and asset-building training as types of employment and
training activities which the State can use its reserve funds to
provide to adult and dislocated workers.
Response: WIA section 134(d)(4)(D) lists the types of training
services that may be provided to adult and dislocated workers,
including entrepreneurship training. (WIA section 134(d)(4)(D)(vi).)
However, as 20 CFR 663.300 makes clear, the list is not all-inclusive
and other training services may be provided. Therefore, the State, with
local input, has the flexibility to determine what types of training
programs will be made available to adult and dislocated workers. We
encourage States to consider various types of training programs,
including asset-building training, as long as it meets the training
program requirements in Sec. 663.508. We have structured
Sec. 665.210(g) broadly to provide States with maximum discretion about
the kinds of training activities they will assist with Statewide
activity funds. This provision remains unchanged in the final
regulations.
Section 665.220 sets standards for determining the eligibility of
incumbent workers served with Statewide funds. Commenters pointed out
that Sec. 665.220 contains no income requirements in the definition of
incumbent worker for Statewide workforce activities, but imposes a
``self-sufficient'' wage level in customized training for an eligible
employed individual at the local level under Sec. 663.720. They
suggested that the same requirements should hold at the State and local
levels.
Response: Section 665.220 reflects Congress' intent that States may
choose to treat incumbent workers served with Statewide reserve funds
differently from employed workers served with formula funds at the
local level, for whom specific eligibility requirements are imposed.
While WIA section 134(a) sets no eligibility requirements on State-
funded incumbent worker training, at the local level, WIA section
134(d)(3)(A)(ii) requires that employed workers be trained for jobs
which will provide them self-sufficiency. Thus, since the statutory
provisions are not the same, we have not made the regulatory provisions
the same, although the State has the option to define the two terms in
the same way. Consequently, this provision remains unchanged in the
final regulations.
Subpart C--Rapid Response Activities
Subpart C addresses the use of funds that must be reserved (up to
25 percent of dislocated worker funds allotted to States under section
132(b)(2)(B) of WIA) to provide rapid response assistance.
Section 665.300 describes what rapid response activities are and
who is responsible for providing them. Rapid response assistance begins
at the dislocation site as soon as a State has received a WARN notice,
a public announcement or other information that a mass dislocation or
plant closure is scheduled to take place. We believe that this early
intervention feature for dislocated workers, if provided in a
comprehensive and systematic manner through collaboration between the
State and Local Boards, One-Stop partners and other applicable
entities, is critical to enabling workers to minimize the duration of
unemployment following layoff. We strongly urge States and Local Boards
to implement processes that allow for core services to be an integral
part of rapid response assistance, preferably on-site, if the size of
the dislocation or other factors warrant it. Further, WIA defines
``dislocated worker'' at section 101(9) in a way that permits funds to
be used for intensive and training services for workers: (1) as soon as
they have layoff notices; or (2) six months (180 days) before layoff if
employed at a facility that has made a general announcement that it
will close within 180 days.
We believe that this is a critical period for workers, States,
Local Boards, One-Stop operators and partners to begin to make
important decisions. One important decision is whether there are enough
formula funds in the State (at the State or local levels) to adequately
serve the workers being dislocated, or whether national emergency grant
funds, authorized under WIA section 173 and discussed in 20 CFR part
671, must be requested in a timely manner so that all services are
available to the workers when they need them.
Section 665.320 provides details on rapid response activities that
may be provided in addition to the required activities described in
Sec. 665.310.
One commenter indicated that the current regulations do not include
language about the for-profit business sector participation in planning
and implementing Rapid Response activities. The commenter would like
the regulations to emphasize that there is an important role for
private for-profit businesses in this effort. A commenter thought the
Job Service Employer Committee (JSEC) employers can provide assistance
in designing rapid response services to help affected workers and
employers. Another commenter suggested that the regulations specify a
similar role for labor organizations. The commenter went on to state
that we should consider providing a portion of our incentive grant
funds for comprehensive rapid response services, including the
participation of the State labor federation in Statewide rapid
response.
Response: We agree that the Act provides many opportunities for
stakeholders and we encourage States to be as inclusive as possible in
planning and implementing their rapid response activities. Just as the
Act recognizes the important role of business and labor in the makeup
of State and Local Boards, the inclusion of both interests in the
design and operation of rapid response activities is equally important.
The State, however, is responsible, under WIA section 134(a)(2)(A)(i),
for providing rapid response activities and it is up to the State to
determine how it will plan for and implement those activities.
Consistent with our principle of providing States with maximum
discretion in the design of their programs, this provision remains
unchanged in the Final Rule.
On the issue of using incentive grant funds to encourage States to
include labor (or business) participation, we believe that the
commenter's suggestion has merit. However, we have chosen not to define
innovative programs in the regulations so that we can provide the
States the opportunity to experiment with a wide variety of programs.
We will develop guidelines (under 20 CFR 666.220) for incentive grants.
We may decide to provide examples of innovative programs, such as the
establishment of State labor liaisons with State rapid response
activities, in the application guidelines. This provision remains
unchanged in the final regulation.
Section 665.300(c) requires a State to establish a rapid response
dislocated worker unit to carry out Statewide rapid response
activities. One commenter suggested requiring the State to maintain an
identifiable dislocated worker unit or a State entity that has the
responsibility for carrying out rapid response activities and that such
responsibilities should not be devolved to other entities.
Response: States are required to establish a dislocated worker unit
and have ultimate responsibility for providing rapid response
activities under Sec. 665.300(b). However, WIA section 134(a)(2)(A)(i)
authorizes States, working in conjunction with the Local Boards and the
chief elected officials in the local areas, to designate an entity to
provide rapid response activities. The provision remains unchanged in
the final regulations.
A commenter wanted on-site contact, which is required by section
101(38)(A) of the Act and Sec. 665.310(a), to require contact with the
bargaining agent when an affected employer has a collective bargaining
agreement and that such on-site contact must take place within 48 hours
of the State receiving the notice/announcement of layoff. The commenter
also asserted that the bargaining agent must be contacted at the outset
and involved as a full partner in the development of programs and
services that affect its members.
Response: Section 665.310(a) does require that on-site contact be
made with the employer, representatives of the affected workers and
representatives of the local community. When employees are represented
by a labor organization, this provision requires contact with the
bargaining agent. WIA section 101(38)(A) also requires that on-site
contact be made with employers and employee representatives, and
provides that the contact must be made immediately after the State is
notified of a current or projected permanent closure or layoff, or in
the case of a disaster, immediately after the State is made aware of
mass job dislocation as a result of the disaster. We have added the
phrase ``immediate and'' to paragraph (a) of Sec. 665.310 to reiterate
this requirement in WIA section 101(38)(A). In addition, we believe
that the purpose of these requirements is to ensure the involvement of
both the employer and the workers or their representatives in planning
and implementing the entire range of services to the affected workers.
We encourage the State to coordinate with all interested parties,
including employee representatives, when developing programs and
services for the affected workers.
This same commenter suggested that the dislocated worker unit be
required to provide information to all workers and companies about the
opportunities available under the Trade Adjustment Assistance (TAA) and
the NAFTA-Transitional Adjustment Assistance (NAFTA-TAA) programs as
part of rapid response (19 U.S.C. Sec. 2271, et seq.).
Response: Section 665.310(b) requires that information and access
to unemployment compensation benefits, comprehensive One-Stop system
services, including information on TAA and NAFTA-TAA, be provided to
affected workers. Therefore, because the regulations already address
the commenter's concerns, no change has been made.
A commenter noted that Sec. 665.310(a)(5) provides that required
rapid response activities include ``available resources to meet the
short and long-term assistance needs of affected workers.'' The
commenter asked whether this means that rapid response funds must be
used to provide needs-related payments and, if so, asked that the
regulations be revised to reflect this. Another commenter argued that
States must not be allowed to use rapid response funds for core,
intensive or training services, but should maximize the integration of
these services with its rapid response activities at the local level.
Response: The requirement that Sec. 665.310(a)(5) imposes on States
is to assess available resources as part of the assessment of the other
factors specified in Sec. 665.310(a). This refers to the review of
funds and services available in the area to help the affected workers.
In addition, WIA sections 101(38) and 134(a)(2)(A)(i) describe the uses
of the funds set aside for rapid response, which is amplified in
Sec. 665.320. Under WIA section 134(a)(2)(A)(ii), the State may use
some of the rapid response funds to assist affected workers with direct
services, which could include intensive services, training, or needs-
related payments, if local resources cannot meet the needs of these
workers. These funds can be provided as ``State'' funds or as
additional local funding assistance beyond the initial formula
allocation for the area. In order to clarify this distinction, a new
section, Sec. 665.340, has been added to the final regulations. The new
Sec. 665.340 discusses the use of reserve funds to provide additional
assistance to local areas and makes it clear that a State must reserve
enough funds from its 25 percent funds to adequately fund its rapid
response unit.
A commenter indicated that the items listed in Sec. 665.320 are
positive and pro-active approaches to rapid response, however, the
commenter would like us to add an additional provision to Sec. 665.320
to require that labor organizations whose members are affected by a
layoff be consulted in the development and design of all rapid response
and dislocated worker programs.
Response: Section 665.320 provides a list of additional rapid
response activities that a State or designated entity may provide in
addition to the required rapid response activities in Sec. 665.310. To
the extent that a State or designated entity conducts any of the
activities listed in paragraphs (a)(1) through (3) of Sec. 665.320,
those activities must be conducted in conjunction with the groups
listed in paragraph (a) of Sec. 665.320, which includes labor
organizations. We encourage States to continue working in collaboration
with all interested parties when providing all rapid response
activities. This provision remains unchanged in the final regulations.
Section 665.330 addresses the linkage of rapid response assistance
and WIA title I assistance to NAFTA-TAA. This linkage is a requirement
under NAFTA-TAA and is an important feature of the One-Stop service
delivery system. One commenter indicated that unions whose members have
been affected by NAFTA must be consulted in the design and
implementation of programs to assist their members and that this same
provision must also apply to TAA participants as well.
Response: We believe that in providing rapid response, a State
should coordinate such efforts with all interested parties including
representatives of the affected workers. As discussed above, consistent
with our principle of providing States with maximum discretion in the
design of their programs, this provision remains unchanged in the final
regulations.
Section 665.330 requires rapid response to be available when the
Governor makes a preliminary finding that NAFTA-TAA certification
criteria have been met. A commenter suggested that the final rule
clearly state that the Secretary makes the final determination on
NAFTA-TAA eligibility for a group of workers covered by a petition.
Response: We agree that the clarification is appropriate. In order
to clarify the rule, we have revised this provision to indicate that
the requirement that rapid response be made available occurs when the
Governor makes a ``preliminary finding'' that the NAFTA-TAA
certification criteria have been met. (More information on preliminary
findings can be found at 19 U.S.C. Sec. 2331(b).) It is important to
restate our policy that rapid response should occur as soon as possible
after information on an actual or probable layoff has been received. If
a preliminary affirmative finding occurs after the rapid response, the
State may wish to provide additional information and assistance to the
workers. If rapid response has not occurred before a preliminary
affirmative finding by the Governor, the Governor must ensure that
rapid response is provided to the workers at that point.
Part 666--Performance Accountability Under Title I of the Workforce
Investment Act
Introduction
This part presents the performance accountability requirements
under title I of the Act. It largely summarizes the statutory language
in the Act, and establishes the framework for definitions, guidelines
and instructions that we will issue later to implement and carry out
the requirements of the Act. WIA's purpose is to provide workforce
investment activities that improve the quality of the workforce. We are
strongly committed to a system-wide continuous improvement approach,
grounded upon proven quality principles and practices.
The development and establishment of a performance accountability
system that reflects this commitment requires collaboration with
representatives of appropriate Federal agencies, and representatives of
States and political subdivisions, business and industry, labor
organizations, employees, eligible providers of employment and training
activities, including those serving hard to serve and non-traditional
participants, educators, and participants, with expertise regarding
workforce investment policies and workforce investment activities.
During the period since the passage of the Workforce Investment Act, we
have published a series of consultation papers to engage the system in
a dialogue and to seek input into the establishment of a performance
accountability system. On March 24, 1999, two consultation papers,
``Performance Accountability Measurement for the Workforce Investment
System'' and ``Reaching Agreement on State Adjusted Levels of
Performance,'' were published in the Federal Register Volume 64, No. 56
on March 24, 1999. On April 24, 1999, a third consultation paper,
``Incentives and Sanctions Under WIA,'' was published in the Federal
Register, Volume 64, No. 80. And, on August 5, 1999, the fourth and
fifth consultation papers, ``Continuous Improvement Under Title I of
the Workforce Investment Act of 1998'' and ``Customer Satisfaction
Under Title I of the Workforce Investment Act of 1998,'' were published
in the Federal Register, Volume 64, Number 150. In addition, we held
Town Hall meetings in 11 cities across the country in August of 1999 to
invite and listen to suggestions and concerns of the partners and
stakeholders on a range of issues including performance accountability.
The comments received in response to the publication of the five
consultation papers, plus the comments received in response to the
publication of the Interim Final Rule and the input from the Town Hall
meetings have been instrumental in the development and dissemination of
guidance to the system on performance accountability. The substance of
comments received in response to the publication of the Interim Final
Regulations are discussed in this preamble, and reflected in the final
regulations. We continue discussions with our other federal partner
agencies to expand agreement on common definitions and measures, and
further guidance will be made continually available, reflecting on-
going consultation with our partners and stakeholders.
Subpart A--State Measures of Performance
1. Indicators: Section 666.100 identifies the core indicators of
performance and the customer satisfaction indicators that States are
required to address in title I State Plans. The core indicators
represent four basic measures that will be applied to each of the three
programs serving adults, dislocated workers and eligible youth age 19
through 21, and three measures specifically for younger youth (age 14
through 18). There is one customer satisfaction measure for
participants and one for employers.
Several comments suggested changes to the core indicators of
performance to include part time employment, or to focus on non-
traditional employment. Other comments requested the addition of new
measures, for example for placement in non-traditional jobs, provision
of services to low income people, and the inclusion of part-time
employment as a placement measure. There were comments about the
addition of a youth measure relating to placement in employment that
creates a career path leading to long term self-sufficiency.
Response: The interest in more measures, or in measures for
specific target populations is anticipated in the Act and the
regulations, and States may develop those measures, as provided for in
the Act, at section 136((b)(2)(C), and in the regulations, at
Sec. 666.110, and as described in their State Plan. We believe that the
Act commits the development of additional measures to the Governor's
discretion and that we lack the authority to impose additional
performance standards. Those interested in State adoption of additional
performance standards have a variety of opportunities to have their
views heard through opportunities to comment on the State Plan and
through the Act's sunshine provisions. Therefore, no change to the
regulations was needed.
Some comments requested greater specificity and clarity for the
definitions of the measures.
Response: The language in Sec. 666.100(a) reflects the language in
section 136(b)(2) of the Act. In general, we feel that the statutory
language provides the basis for on-going consultation with partners and
stakeholders. Then, as appropriate, additional guidance can be
provided, such as the recent guidance on the measures provided in
Training and Employment Guidance Letters (TEGL), number 7-99 and 8-99.
However, in response to a specific comment that attainment of basic
skills was too general and not necessarily related to program services,
we clarified the measure for younger youth, at Sec. 666.100(a)(3)(i),
to reflect the basic program design for youth that establishes one or
more goals for participants each year. Attainment of basic skills
goals, and, as appropriate, work readiness or occupational skills
goals, is, therefore, a more accurate way to describe the measure, but
it is limited to no more than three goals per year. Use of the term
``goals'' in reference to these difference skills acknowledges that
obtaining skills, especially for younger youth, is an incremental
process. This concept is described in more detail in TEGL 7-99.
A number of comments noted that the core performance indicators are
not all directly related to the Vocational Rehabilitation program of
services under title IV of WIA, taking the position that Vocational
Rehabilitation performance indicators must remain separate from title I
WIA performance indicators.
Response: We feel that the language in Sec. 666.100(a) is
sufficiently clear that the core indicators of performance apply only
to adult, dislocated worker and youth programs under WIA title I
subtitle B. Nothing in this language suggests that these core
measurements replace or supercede measurements required by other
partner programs.
Three comments described the 15 core indicators of performance and
2 customer satisfaction indicators required in Sec. 666.100 as
excessive and too complex.
Response: The Act specifically identifies four core measures for
employment and training activities, including activities for youth 19-
21, with three additional measures for younger youth. It is clear that
States will be accountable for measuring performance for the Adult,
Youth and Dislocated Worker programs separately, just as there will be
separate measures of performance for the other partner programs. Our
intention in the regulations is to set out what the Act already
requires, but to do so in a way that makes clear how the Act's
performance indicators apply to the different population groups which
WIA serves.
The decision to measure customer satisfaction for job seekers and
workers separately from employers was made after considerable
consultation with the system. The two customer satisfaction measures
are intended to provide more meaningful feedback to the States and the
workforce investment system as a whole by acknowledging the different
expectations held by the two very different customer groups. We believe
that this is a reasonable and practical interpretation of the statutory
requirement to have customer satisfaction measures for employers and
participants.
Thus, the regulations were drafted to track the provisions in the
Act by applying the core measures to the different programs, and to
clarify that the application of the core measures, along with
satisfaction measures for each of the key customer groups, requires the
separate measurements identified in Sec. 666.100(a).
2. Additional indicators: Section 666.110 provides that Governors
may develop additional performance indicators and that these additional
indicators must be included in the State Plan.
One comment questioned whether the requirement that additional
indicators ``must'' be included in the State Plan was consistent with
the language in the Act, citing section 136(b)(2)(C) of WIA which
provides that ``A state may identify in the state plan additional
indicators for workforce investment activities authorized under this
subtitle.''
Response: We interpret this provision of WIA to authorize States to
establish additional indicators, without requiring that States do so.
However, if optional measures are established, they must be identified
in the State Plan. This is confirmed by the use of similar language in
WIA section 112(b)(3). Therefore, if a State wishes to establish
additional indicators, the State must identify them in the State Plan.
A number of comments suggested that there should be a performance
indicator for the self-service and informational activities so
important to the system and the customers.
Response: WIA section 136(b)(2)(A)(i) specifically excludes these
activities from the core measures. States and Local areas, however, are
dedicating considerable and growing resources to self-service and
informational activities in the One-Stop centers, and more and more of
the customers of the workforce investment system are taking advantage
of the information they can access on their own. Many will be doing so
by using the Internet from home or work or some other location, without
ever entering the One-Stop office. Efforts to identify and track the
users of these services, even at a modest cost per individual, can
become significant when we consider the huge numbers of customers who
access these services on their own. Further, the cost of information
and self-service activities for the individual served is generally very
low when compared to the cost of staff-assisted services. Thus, the
cost of identifying and tracking these customers could easily exceed
the actual cost of the service they received.
However, we realize that some assessment of the value of these
services is important for determining what resources are devoted to
these types of activities. We will convene a workgroup of Federal,
State and local representatives to discuss the issue of self-service
measures in the Fall of 2000. We anticipate that this workgroup will
develop a menu of optional self-service measures that States and local
areas can utilize.
3. Negotiations: Section 666.120(b) addresses the requirement that
States must submit expected or proposed levels of performance for the
core indicators and customer satisfaction indicators in their State
Plans. We received comments requesting clarification of the process for
negotiating levels of performance, especially with regard to the
factors that may be considered during the negotiations. Further
comments suggested the reestablishment of State baselines after one
year of WIA activity.
Response: The negotiation of performance levels for programs under
title I B will be part of the process of reviewing and approving State
Plans. To help clarify and reflect the goal of the process, we have
replaced the term ``adjusted level'' with the term ``negotiated level''
throughout the regulations to refer to the outcome of the process and
the resulting numerical levels of performance for each indicator that
will be used to determine whether sanctions will be applied or
incentive grant funds will be awarded.
In consultation with the system, and using the experience of early
implementing States, we developed a list of possible factors that may
be considered when negotiating levels of performance. The list, which
was published in TEGL 8-99, is not intended to be prescriptive or
exhaustive, but to suggest the kinds of information that might be
considered.
Thus, ``differences in economic conditions'' might include:
- the unemployment rate;
- the rate of job creation or loss; and/or
- the rate of new business start-ups.
The negotiations can take into account ``differences in participant
characteristics,'' which might include:
- indicators of welfare dependency;
- indicators of educational level;
- indicators of poor work history;
- indicators of basic skills deficiency;
- indicators of disability;
- indicators of age; and/or
- creation of a ``hardest-to-serve'' index.
The kinds of factors related to ``proposed service mix and
strategies'' might include:
- percentage of WIA Title I B funds to be used for core,
intensive, and training services;
- extent of follow-up services planned;
- extent and type of experimental or pilot programs planned;
and/or
- extent to which non-WIA Title I B funds are available for
training or other services.
Other factors that might be considered when proposing and
negotiating performance levels could include:
- community factors such as the availability of
transportation and daycare;
- policy objectives such as application of Malcolm Baldrige
criteria, pursuit of new or enhanced partnerships, or piloting of new
programs or activities.
ETA Regional Offices will work with the individual States to
identify baseline data, using experience under the Job Training
Partnership Act. The establishment of baselines, and the process for
proposing and negotiating levels of performance is addressed in
Training and Employment Guidance Letter No. 8-99. Those negotiated
levels of performance may be revised, as provided for in Sec. 666.130.
Some commenters suggested that incremental increases in negotiated
levels of performance not be the only way to consider and demonstrate
continuous improvement. Other comments observed that the continuous
improvement requirements were not well defined and did not encourage
the State and local partners and stakeholders to take a larger role in
defining system accountability.
Response: We agree that continuous improvement is desirable even in
areas not directly measurable by performance measures, like increasing
administrative efficiency. We have added language to Sec. 666.120(g) to
more clearly provide States with the opportunity to define areas
targeted for continuous improvement that may be in addition to the
indicators of performance required under Sec. 666.100.
4. Participants Included in Measures: Section 666.140 explains that
all individuals, except for those adults and dislocated workers who
receive services that are self-service or informational, must be
registered and included in the core indicators of performance. In
addition, Sec. 666.140(b) implements the requirement that a
standardized record must be completed for registered participants.
A number of comments took exception to the provision that all youth
must be registered and included in the measures of performance, but
that adults and dislocated workers who participate exclusively in self-
service or informational activities are excluded from registration and
are, therefore, not included in the performance accountability system.
Response: While these commenters feel that the registration policy
for youth and adults should be the same, we believe that the policy
should not be changed because of basic approach for serving youth
differs from adults. The difference in the registration criteria for
the Youth program and the Adult and Dislocated Worker programs arises
from the way in which an applicant enters each program. WIA section
129(c)(1) makes it clear that each youth participant is to have an
assessment and a service strategy, activities which would also require
registration under the Adult or Dislocated Worker programs. The Act
specifically excludes individuals who receive only self-service and
informational activities under the Adult and Dislocated Worker Programs
under WIA section 134 from the core measures of performance, and,
therefore, keeping records on the individuals taking advantage of the
services is not an issue. The more individually-focused youth program
does not envision these kinds of activities as part of the entry. (Of
course, a youth may avail him/herself of informational or self-help
services through the One-Stop.)
To help clarify the issue of registration, we have added a new
paragraph (a)(2) to Sec. 666.140 to explain that ``self-service and
informational activities'' are core services consisting of widely
available information that does not require significant staff
involvement with the individual in terms of resources or time. Many
customers of the workforce investment system do not require staff
assistance to access employment statistics or job listings, for example,
that are increasingly available on the Internet or in handouts or
brochures designed to be widely distributed to the general public.
We are, however, aware of the commenters' concerns that the system's
performance in serving these self-service customers also needs to be
measured. As discussed above, we will work with our partners to develop
optional self-service measures.
Other comments suggested a need to provide a system-wide
measurement for participants who received services under programs
operated by the partners, and a need to clarify when to measure
performance that could be applied across the system by all States.
Response: The comments about when an individual's participation is
considered to begin for purposes of the measurement of performance,
including the measurement for individuals served by partner programs,
were widely discussed during the consultations with partners and
stakeholders. WIA promotes the partnership of programs and activities
in local One-Stop systems, and the performance accountability system
must be able to reflect that desire for partnership without interfering
with it. The standardized record, referred to in Sec. 666.140(b), can
be used to document services and activities provided by any of the
partners in the local One-Stop system. Performance will be measured by
looking at outcomes and results achieved by each registered participant
following receipt of services under Title I B and any other services
provided by a partner in the local One-Stop system. This clarification
has been included in a new paragraph (c) to Sec. 666.140. The
performance measurement system in these regulations, including the
standardized record, has been developed in consultation with Federal
partners so it can be used (or modified for use) by other system
partners. Other partner programs, however, are not required to use or
conform to this performance measurement system, and multiple reports
may track and display the outcomes achieved by a single individual who
receives services under separate programs.
We have provided additional guidance in the instructions for the
standardized record, including guidance to clarify when to begin
measuring results achieved for those performance indicators that are to
be measured following the receipt of service in Training and Employment
Guidance Letter No. 7-99. This guidance was repeated in a document
published in the April 3, 2000, Federal Register, entitled, ``Workforce
Investment Act (WIA) Standardized Record Data (WIASRD), Quarterly
Summary Report, and Annual Report''.
5. Wage Record Data: Section 136(f)(2) requires States to use
quarterly wage records, consistent with State law, to measure progress
on the core indicators of performance, and authorizes the Secretary to
make arrangements to ensure that the wage records of any State are
available to other States. In order for States to meet this
requirement, Sec. 666.150(a) has been amended to authorize the
collection and other use of social security numbers from registered
participants and such other information as is necessary to accurately
track the results of the participants through wage records. The use of
quarterly wage records is essential to achieving full accountability
under the WIA performance accountability system, by ensuring high
quality, comparable data upon which to identify and reward high
performing States and localities, and, if necessary, to sanction low
performing States and localities. Matching participant social security
numbers against quarterly wage record information is the most effective
means by which timely and accurate data can be made available to the
system. For this reason, we interpret WIA section 136(f)(2)'s express
requirements that States use quarterly wage records and that the
Secretary arrange for State to State disclosure of quarterly wage
records for WIA performance purposes as indicating Congress' intent to
supersede the limitation on disclosure of social security numbers in
Social Security Act section 205(c)(2)(C)(viii)(I). Section 666.150(b)
clarifies that each State must describe its strategy for using
quarterly wage record data, including appropriate safeguards for
disclosure, in the State Plan.
We received comments that reliance on the UI wage data will be
plagued by problems of uncovered employment, out-of-state employment,
incomplete reporting, and other issues that may make comparisons
difficult.
Response: The requirement to use wage records is quite clear, but,
in consultation with partners and stakeholders, we have provided
guidance on when additional information may be used to supplement the
wage records in Training and Employment Guidance Letter No. 7-99.
Other comments urged specific regulatory language regarding the
confidentiality of wage records, both from commenters who wished to
access the data, as well as from commenters who wanted to ensure
protection for the employers and workers.
Response: UI wage records are owned and managed by the States, and
are subject to the rules and protections established by the States,
within general provisions of Federal law and guidance. We are working
with the State Agencies that have responsibility for these records to
ensure that information will be available as necessary, and that
protections will be provided in accordance with State law, without
attempting to mandate procedures. Therefore, no changes were made to
these regulations.
Subpart B--Incentives and Sanctions for State Performance
1. Incentive Process: Section 666.200 restates the eligibility
criteria for States to apply for an incentive grant. The process for
applying for incentive grants is described in Sec. 666.205, which
explains the timing of the applications, and Sec. 666.220, which
defines what must be included in an application. The process for
determining the amount of the incentive grant awards is discussed in
Sec. 666.230. These grants will be provided to States in recognition of
performance that exceeds negotiated levels, and the incentive grant
award process will be administered by the Secretary of Labor in
consultation with the Secretary of Education.
We received several comments about the implementation of the
performance requirements during the first year following implementation
of WIA. The comments suggested that incentives and sanctions be delayed
for a year.
Response: WIA establishes new requirements and expectations for the
workforce investment system that went into effect on July 1, 2000, but
that will not be the end of the process to reform and improve the
system. We are committed to working with the system to effectively
implement the Workforce Investment Act, including the principle of
increased accountability, and continue to seek input from the partners
and stakeholders about the best way to measure and acknowledge
performance. We do not see any programmatic advantage to delaying
implementation of the incentives and sanctions process. The Adult,
Youth and Dislocated Worker programs under WIA Title I B are replacing
programs under the Job Training Partnership Act that have
measured and reported performance for over 15 years. States that are
able to achieve good performance and satisfy their customers should be
recognized and should be able to apply for the incentives and rewards
Congress has authorized. Conversely, States that experience problems in
achieving positive outcomes for their customers deserve the assistance
authorized under the Act so that they may be able to modify and
improve. Thus, we see no reason to postpone awarding Incentive Grants.
We will provide technical assistance to the system and to the States
throughout the first year to help achieve the highest possible levels
of performance from the very beginning.
Some comments pointed out that the States are very different, and
that the principle of State and local flexibility means that not only
will performance vary from State to State, but the quality of the data
and the methods for capturing the data used to measure performance will
vary as well. For these reasons, the commenters took exception to
comparing a State's relative performance to other States' performance
when determining the amount that would be available under an incentive
grant award.
Response: The incentive grant awards will be made to those States
that exceed levels negotiated specifically for that State. The
incentive grant will not be awarded or denied on the basis of relative
performance; but the concept of comparing the performance of the States
is firmly and clearly rooted in the Act, which requires the Secretary
to disseminate State-by-State comparisons of the information. Also, as
described in Sec. 666.120(c)(4), one of the required factors in
developing the negotiated levels of performance for the State is a
comparison with other States. However, we believe that relative
performance is a legitimate factor to be considered in apportioning a
limited pool of incentive funds. Thus, the regulation explains that the
Secretary ``may consider'' a list of 6 possible factors, including
relative performance. We will be working with the States to make sure
that the data collection process is as consistent as possible, and will
consider this as a possible factor for establishing the amount of
awards when it is appropriate. No change has been made in the
regulation.
2. Sanctions: Section 666.240 explains that States failing to meet
for any program adjusted levels of performance for core indicators and
the customer satisfaction indicators for any program, in any year, will
receive technical assistance, if requested. If a State fails to meet
the required indicators for the same program for a second consecutive
year, the State may receive a reduction of as much as five percent of
the succeeding year's grant allocation.
We received several comments suggesting that the limited experience
in using wage records to measure performance, plus the energy and
resources being focused on the creation of new partnerships and the
establishment of new customer-focused, streamlined service designs, may
have a negative impact on performance, possibly exposing States to
sanctions. The comments proposed delaying the application of sanctions
until baseline data could be developed, and States would be better
prepared to negotiate realistic levels of performance against which
they would be measured.
Response: We recognize that the changes being undertaken with the
implementation of WIA should ultimately lead to higher performance and
a more sophisticated and accurate performance measurement system.
Nonetheless, as a result of consultation with partners and
stakeholders, we have clarified the process for determining acceptable
and unacceptable performance by establishing a range so that a State's
performance will be deemed to be acceptable if the actual performance
falls within 20 percent of the negotiated level. Therefore, sanctions
will not be considered unless actual performance is more than 20
percent below the negotiated level. This rule has been included as a
new provision at Sec. 666.240(d).
Subpart C--Local Measures of Performance
Section 666.300 explains that each local workforce investment area
will be subject to the same 15 core performance indicators and two
customer satisfaction indicators that States are required to address.
Governors may elect to apply additional performance indicators to local
areas. Section 666.310 states that local performance levels will be
based on the State adjusted levels of performance and negotiated by the
Local Board and chief elected official and the Governor to account for
variations in local conditions.
Some commenters were concerned that local programs and partners
were going to be faced with performance levels imposed as a result of
negotiations between the State and the Department, and suggested that
establishment of performance standards should be negotiated at the
local Workforce Board level first.
Response: The Governor's authority to identify and require
additional measures of performance is clearly spelled out in WIA
section 136(c)(1). The local levels of performance may be an important
factor the State takes into account when negotiating or re-negotiating
levels of performance with the Department. While we continue to support
collaboration and partnership between the State and local partners, how
that process occurs within the state is not a matter on which we can
limit the Governor's authority by regulation.
Subpart D--Incentives and Sanctions for Local Performance
Section 666.400(a) restates local area eligibility for State
incentive grants. Under section 666.400(b) the amount of funds
available for incentive grants and specific criteria to be used are
determined by the Governor. Section 666.420 also explains that local
areas failing to meet agreed-upon levels of performance will receive
technical assistance for any program year. Governors must take
corrective actions for local areas failing to meet the required
indicators for two consecutive years.
We received one comment on incentive grants being available to only
States or local Workforce Investment Areas. The commenter requested
that Indian and Native American grantees who meet or exceed their
performance standards during a program year be eligible to receive
incentive grants.
Response: The reasons why we do not provide incentive grants for
the WIA Indian and Native American program are addressed in the
Preamble discussion of comments on part 668, covering Indian and Native
American programs under the Workforce Investment Act.
Part 667--Administration Provisions
Introduction
This part establishes the administrative provisions that apply to
all WIA title I programs conducted at the Federal, State and local
levels, and to continued service to Job Training Partnership Act
enrollees.
Subpart A--Funding
Subpart A addresses fund availability. One commenter expressed
concern about the appeals processes associated with the selection of
grantees under the Indian and Native American (INA) and National
Farmworker Jobs Program (NFJP) (formerly known as the Migrant and
Seasonal Farmworker program).
Response: Section 667.105, which covers grant instruments and grant
award processes, is being modified in response to this comment. The only
remedy which may be provided to successful appellants from designation
actions is designation for the remainder of the grant period. However,
under Sec. 667.825(b), this remedy cannot be provided if less than six
months remains in the grant period. Due to the average length of
appeals, few appellants qualify for relief during the two-year grant
period. In order to improve the fairness and effectiveness of the
appeals process, we are modifying Sec. 667.105(c) to permit INA grants
to be awarded to a particular grantee without competition only once
during a four year period. Similar procedures are already included in
Sec. 667.105(d) for the MSFW program. It is DOL's position that the
successful appellant does have the right to compete for a grant award
for the second two years of a four year designation period, and we have
revised section 667.825 to provide that we will not give a waiver of
competition for the second two-year grant period in these situations.
Several commenters asked for information about the treatment of
summer youth funds for the years 1999 and 2000.
Response: JTPA funds for the 1999 summer youth employment program
were distributed in the same manner as in previous years and were
unaffected by WIA. Year 2000 WIA youth funds were available beginning
in April 2000 to States with approved WIA plans or approved Youth
transition plans addressing youth activities for PY 2000. Since this
issue is addressed in Sec. 667.100(b), no change has been made to the
regulations.
One commenter thought that WIA Youth funds should be distributed in
July instead of April because the summer youth employment program is
not authorized for the Summer of 2000.
Response: It is true that there is no longer a separate summer
youth employment program, but WIA summer employment opportunities are
an important component of local areas' comprehensive youth programs. We
wish to enable States and local areas that want to plan for and offer
WIA Youth services on the JTPA time schedule to do so under the
conditions indicated in Field Memorandum (FM) 52-99, dated September 9,
1999, which is accessible on the Internet at www.usworkforce.org. FM
52-99 permits a State to plan for and operate WIA youth programs before
we have approved the State's full five year strategic plan, which
covers all WIA activities. However, the State's WIA Youth Plan must
satisfy WIA criteria, which are more extensive than the criteria were
for the JTPA summer youth employment program. For example, 30% of the
youth funds in each local area must be used to serve out-of-school
youth.
We received many comments about expected reductions in State
allotments and within-State allocations due to the application of the
allotment and allocation factors prescribed by sections 128 and 133 of
WIA--the relative number of unemployed individuals, the relative excess
number of unemployed individuals, and the relative number of
disadvantaged individuals. Beginning with the third year of WIA,
workforce investment areas will be allocated at least 90 percent of the
average of the two preceding years' allocations of Adult funds and
Youth funds as a ``hold harmless''. (WIA sections 128(b)(2)(A)(ii) and
133(b)(2)(A)(ii)). However, many grantees expect to experience severe
funding reductions and possible service interruptions in their
workforce programs in the first two years of WIA.
Response: Consistent with the new hold-harmless policy we announced
in October 1999, we are addressing this problem by adding a new
section, Sec. 667.135, which permits States to apply Job Training
Partnership Act hold harmless provisions during the first two years of
WIA, and sets forth the WIA hold harmless procedures, which take effect
in subsequent years. We are making the JTPA hold harmless procedures
available for the first two years of WIA as a transition measure under
the authority of WIA section 506. States may elect to use JTPA hold
harmless procedures in allocating PY 2000 and PY 2001 funds to local
areas. A State that elects to use JTPA hold harmless procedures for PY
2000 and/or PY 2001 must allocate at least 90% of the average
allocation to each workforce investment area that received an
allocation under either JTPA or WIA for the two preceding fiscal years.
(JTPA sections 202(b)(2)(A) and 262(b)(2)(A)). States may use JTPA hold
harmless procedures even where the geographical boundaries of some or
all JTPA service delivery areas are different from those of the State's
WIA Workforce Investment Areas. This can be done for the PY 2000 WIA
allotment by (1) taking the amount allocated to WIA local areas, (2)
calculating the amount each local area would have received using the PY
1998 and PY 1999 JTPA allocations (JTPA proxy amounts), and (3)
calculating 90 percent of the average JTPA proxy amounts for each local
area. Under either the permitted JTPA hold harmless or the WIA hold
harmless provision, the amount needed to provide the increased
allocation(s) to the affected local areas is to be obtained by ratably
reducing the allocations to the other local areas.
Section 667.140 describes the authority of Local Boards to transfer
funds between programs. We received several comments suggesting that
the regulation authorize local areas to transfer funds between the
Youth funding stream and either Adult funds or Dislocated worker funds.
Response: The Act does not authorize transfers involving Youth
program funds. The regulation has not been changed.
Section 667.150, which covers allotments, recapture of unobligated
balances of allotments, and reallotments is being modified to exclude
certain amounts from coverage by the recapture provision, namely: (1)
amounts allocated to a single State local area or to a balance of State
local area administered by a unit of the State government; and (2)
inter-agency transfers and other actions treated by the State as
encumbrances against amounts reserved by the State under WIA sections
128(a) and 133(a) for Statewide workforce investment activities. The
reasons for this modification are discussed earlier in this preamble in
the discussion on the addition of a definition of ``obligation'' to
Sec. 660.300.
Section 667.170 sets forth our authority to perform a
responsibility review of potential grant applicants. We may review any
information that has come to our attention as part of an assessment of
applicant's responsibility to administer Federal funds. The
responsibility tests include the items set forth in paragraphs (a)(1)
through (a)(14). In this section, the term ``include'' is used as it is
throughout the Interim Final Rule, to indicate an illustrative, but not
exhaustive list of examples. One commenter requested clarification of
Sec. 667.170(a) about the identity of the party(ies) subject to the
responsibility review requirements, particularly with regard to the
taking of ``final agency action.''
Response: Section 667.170(a) refers to the organization that is the
direct recipient of a grant from the Department. The agency referred to
in the phrase ``final agency action'' in Sec. 667.170(a)(1) is the
awarding agency which awarded the funds in question in the debt
recovery action. No change has been made to the regulations.
Subpart B--Administrative Rules, Costs and Limitations
1. Fiscal and Administrative Rules: Subpart B specifies the rules
applicable to WIA grants in the areas of fiscal and administrative
requirements, audit
requirements, allowable cost/cost principles, debarment and suspension,
a drug-free workplace, restrictions on lobbying, and nondiscrimination.
This subpart also addresses State and Local Board conflict of interest
and program income requirements, procurement contracts and fee-for-
service use by employers, nepotism, responsibility review for grant
applicants, and the Governor's prior approval authority in subtitle B
programs.
We have updated references to the nondiscrimination regulations at
29 CFR part 37 in paragraph 667.200(f) and made three other changes to
Sec. 667.200 to correct inadvertent errors in the Interim Final Rule.
The first is to include commercial organizations among the types of
organizations listed in Sec. 667.200(a)(2), which specifies the covered
organizations identified at 29 CFR 95.1. The second change is to insert
a new paragraph (a)(7) in Sec. 667.200, to indicate that interest
income earned on funds received under this title is to be treated as
program income, as required by WIA section 195(7)(B)(iii) and to
renumber the existing paragraph (a)(7) as (a)(8).
The third change is to insert a new paragraph (c)(6) in
Sec. 667.200, which provides that the costs of claims against the
Government, including appeals to the Administrative Law Judges, are
unallowable costs. This provision clarifies our long-standing
application of the cost principles of OMB Circulars A-87 and A-122, and
A-21, which was inadvertently left out of the Interim Final Rule. The
provision distinguishes the allowable costs of informally resolving
findings from audits and monitoring reviews from the unallowable costs
of making formal claims against the Government at a later point in the
process.
Several comments suggested including specific requirements in
Sec. 667.200(a) about the use and contents of particular types of
agreements between particular types of organizations for providing
goods and services for WIA purposes. Section 667.200 incorporates the
uniform administrative requirements at 29 CFR Parts 95 and 97 into
these regulations by reference, including requirements covering
procurement actions by grantees and subrecipients. Most of these
comments want us to require grantees and subrecipients to increase the
opportunities for potential providers to compete to provide services to
grantees, subrecipients, and participants, including the operation of
One-Stop centers. One commenter wanted us to clarify whether the
uniform procurement requirements apply to the selection of one-stop
operators and service providers. Other commenters wanted us to require
DOL direct grantees to require their subgrantees to make all awards to
one-stop operators and service providers in accordance with the
Department's uniform procurement procedures. Another commenter wanted
us to say as little as possible on the subject due to the complexity of
local procurement rules and the inevitable conflicts which would result
from issuance of additional Federal requirements.
Response: We have, for many years, aggressively sought to maximize
competition throughout the JTPA system so that JTPA grantees and
subgrantees obtain the best possible workforce development and related
services (employment and training services) at the lowest possible
cost. Under WIA, vigorous competition to provide workforce services is
embedded in the design of the program through the use of ITA's. In
addition, use of generally applicable cost principles and
administrative requirements under Sec. 667.200 should assist grantees
and subrecipients to obtain the goods and services needed for operation
of the program with less administrative effort than was the case under
JTPA. Consequently, it is premature to begin regulating the details of
how grantees and subrecipients obtain goods and services for their own
WIA activities, as well as how they conduct the administrative
activities necessary to obtain and pay for training and supportive
services for participants. We have, therefore, decided that we will not
impose procedural requirements on awards of WIA-funded procurement
contracts and financial assistance on grantees and subrecipients,
beyond those generally applicable requirements which apply to all
Federal and non-Federal activities of the grantee or subrecipient. This
issue is also discussed in the preamble discussion of part 660. It
should be noted that the Act specifies a few circumstances in which a
competitive process is not needed, such as the designation or
certification of a One-Stop operator by a consortium of One-Stop
partners under WIA section 121(d)(2)(A)(ii). No change has been made to
the regulations.
We received a number of comments on cost allocation issues
particular to WIA and One-Stop organizations. One comment suggested
that we should seek the issuance of special cost principles for One-
Stops using cost allocation basis other than benefits received, or
other widely used basis.
Response: Our policy on WIA cost determination is to let the
parties involved negotiate appropriate cost allocation methodologies
which reflect local factors and local needs, and to refrain from
imposing program-wide regulations unless a general need exists.
However, we are working with the other WIA federal partner agencies,
such as the Department of Education, to develop joint guidance on this
issue.
One commenter thought it was inconsistent to require in
Sec. 667.200(a)(3) that procurement and other relationships between
governments be conducted on a cost-reimbursement basis, while also
requiring in Sec. 667.200(a)(6) that any excess of revenue over costs
earned by governmental or non-profit organizations be treated as
program income.
Response: Both the cost-reimbursement and program income provisions
are statutory in origin. The cost reimbursement provision in WIA
section 184(a)(3)(B) is similar to the Uniform Administrative Standards
provision in 29 CFR 97.22, allowable costs, which prohibits the use of
grant funds for any fee, or other increment over cost sought, by
governmental grantees and subgrantees. The program income provision in
WIA section 195(7)(A) ensures that any amount remaining on hand after
all receipts and expenditures have been accounted, regardless of the
source of the receipts, will be treated as program income and added to
available program resources, (see change to Sec. 667.200 noted above).
Both provisions seek to maximize grant resources by assuring that
governmental grantees only charge the grant for their actual costs and
return any excess funds to the program. Thus, there is no necessary
conflict between the two provisions.
One commenter proposed that we establish audit requirements for
contractors which are commercial organizations. Section 667.200(b)(2)
makes commercial organizations which are subrecipients subject to audit
requirements like those applicable to governmental and non-profit
recipients and subrecipients.
Response: Under 29 CFR part 96 (subpart B), the Department is
responsible for the audit of commercial organizations which are direct
recipients. There is no Federal requirement for audits of commercial
organizations which are vendors. If a grantee or subgrantee chooses to
require audits of such vendor organizations, they can do so by contract
if the parties agree that such requirements are necessary. No change
has been made to the regulations.
2. Administrative Costs: Section 667.210 restates the provisions in
section 128(b)(4) of the Act which set a State level administrative
cost limit of five percent of total funds allotted to the State by the
Department and a local administrative cost limit of 10% of funds
allocated by the State to the local area. It also provides that the
cost limitation applicable to awards under subtitle D will be specified
in the grant agreement. We received many comments on the administrative
cost limits. Almost all of the comments said that the limits were too
low and that they would jeopardize the program's prospects for success.
Comments addressed how particular groups would be especially burdened
by the cost limitations. Many INA and NFJP grantees, as well as
individuals and groups concerned about INA and NFJP programs, appeared
to believe that the Subtitle B cost limitations also applied to
Subtitle D INA and NFJP grants.
Response: Section 667.210(b) provides that the applicable cost
limitations for subtitle D programs will be identified in the award
document. The administrative cost limitation for INA and MSFW grants
under subtitle D of Title I may exceed the 10 percent limitation
applicable to Subtitle B activities. However, no such flexibility is
available for Subtitle B activities, since the Subtitle B cost
limitations are established by law. Accordingly, no changes were made
to paragraphs (a) and (b) of this section.
Paragraph (c), which excepts hardware and software costs of
participant tracking and monitoring systems from the administrative
cost limitation, has been removed from the final regulation. This
provision became unnecessary after administrative costs were redefined
in response to public comments and our own re-examination of how
administrative costs were defined in other DOL-funded programs and the
programs of other partner agencies whose programs were represented in
One-Stop centers.
Definition of Administrative Costs--Section 667.220 provides our
definition of Administrative Costs. To comply with the statutory
requirement for consultation with the Governors in developing this
definition, we have continuously consulted with representatives of the
Governors, and State and local stakeholders. In addition to the input
received through the consultation, we received suggestions about the
definition of administrative costs in various forums and by direct
communications from a number of different sources including comments on
the Interim Final Rule. The key theme which emerged from this public
consultation is that the function and intended purpose of an activity
should be used to determine whether the costs associated with it should
be charged to the program or administrative cost category. We received
a number of comments on this subject and on the WIA cost limitations,
to which it is closely related. In addition, we did some sampling
studies of how modifications of the definition of administrative costs
would affect WIA program administration generally and the ability of
the States and of Local Boards to comply with the cost limitations.
A common criticism of the administrative cost definition in the
Interim Final Rule was that redefining administrative costs and, in
particular, treating the cost of first tier supervision of direct
program staff as program costs would have little impact on total
administrative costs or compliance with the administrative cost
limitation. The same criticism was directed at the treatment of
computer hardware/software costs incurred for participant tracking and
monitoring as excepted from the administrative cost limitation. One
comment recommended saying that all staff costs associated with the
tracking and monitoring of participants should be classified as program
(non-administrative) costs; another commenter suggested that all
tracking and monitoring system development and utilization costs be
charged to program costs.
We received numerous suggestions on how particular categories of
costs should be defined. Many, but not all of these suggestions were
based on the effect such changes would have on compliance with the
administrative cost limitation. For example, one comment suggested
either treating all One-Stop or contractor costs as programmatic, or
retaining the 15 percent cost limitation under JTPA title III; several
comments recommended treating all costs incurred by One-Stop operators
and service providers as program costs regardless of the functions they
were performing. Several comments were directed to obtaining
clarification of the phrase ``direct provision of workforce investment
activities'' in Sec. 667.220(c)(1), and to associate the term with the
activities of One-Stop operators and service providers. Several
commenters suggested that the ``intended purpose'' language in
Sec. 667.220(c)(5) should be clarified so that administrative costs
would not have to be broken out from contracts with for-profit
organizations. One comment requested that a clear distinction be made
between tracking and monitoring costs on the one hand and program
monitoring costs on the other.
Several commenters suggested that other Federal agencies' criteria
for administrative costs in grants to other One-Stop partners are more
liberal than DOL's criteria, especially their criteria for costs
incurred by service providers and other contractors. A few commenters
suggested that no costs incurred by for-profit contractors should be
treated as administrative. One comment suggested that all continuous
improvement costs be charged to training (program) based on language in
Sec. 666.120(a) relating improvement to program participation rather
than systemic changes. Finally, one commenter suggested that all
reasonable administrative costs be funded, or that we reduce our level
of expectations with regard to oversight, procurement, and fiscal
requirements.
Response: Section 667.220 has been extensively revised as a result
of these comments, and of our own review of the effect of various
administrative cost definition proposals on efficiency and ease of
administration, as well as compliance with the cost limitations. As
part of the review process, a sample of subrecipients' costs were
compared under three different formulations of the administrative costs
definition. The revised definition provides that administrative costs
are only those costs incurred for overall program management purposes
by State and local workforce boards, direct WIA grant recipients, local
grant subrecipients, local fiscal agents, and One-Stop operators. The
only One-Stop operators' costs which are to be classified as
administrative costs are those for one or more of the functions
enumerated in Sec. 667.220(b) and discussed in the following paragraph.
All costs of vendors and subrecipients, other than local grant
subrecipients, are program costs with the single exception of awards to
such vendors and subrecipients which are solely for the purpose of
performing functions enumerated in the following paragraph. Thus,
incidental administrative costs incurred by a contractor whose
contract's intended purpose is to provide identifiable program services
do not have to be identified, broken out from other costs incurred
under the contract, and tracked against the administrative cost
limitation. Costs incurred under contracts whose intended purpose is
administrative have to be charged to the administrative cost category.
The enumerated administrative functions performed by the identified
administrative entities are the following: accounting and budgeting;
financial and cash management; procurement and purchasing; property
management; payroll and personnel management; general oversight, audit
and coordinating the resolution of findings from audits, reviews,
investigations, and incident reports; general legal services;
developing and operating systems and procedures, including information
systems, required for administrative functions; and oversight and
monitoring of administrative functions. Only these enumerated
administrative functions are to be charged as administrative costs. The
costs of first line supervisors of staff providing direct services to
participants are program costs. The discussion of this cost item has
been removed from this new definition because it is no longer needed.
Two types of costs that were specifically previously classified as
administrative costs, preparing program-level budgets and program
plans, and negotiating MOU's and other program-level agreements, are
now classified as program costs, even though they are often associated
with general organizational management. Costs of such activities as
information systems development and operation, travel, and continuous
improvement are charged to program costs or administration, according
to whether the underlying functions which they support are classified
as programmatic or administrative. For example, the costs of developing
an information system which serves both administrative functions and
the tracking and monitoring of participants would be allocated between
program costs and administrative costs in proportion to the utilization
of the system for each intended purpose.
We believe that these changes in the definition of administrative
costs not only address the varying concerns and perspectives expressed
in the comments, but also take advantage of the opportunities for
simplifying program administration offered by the changes in the way
program services will be delivered under WIA. Under WIA, the role of
the One-Stop center operator is broader than just that of provider of
programmatic services; it is also responsible for the operation of the
One-Stop center and the coordination of all activities within the
center. The definition of administrative costs in this Final Rule was
tested using a sample drawn from a group of JTPA subrecipients whose
administrative costs had previously been reviewed to test the Interim
Final Rule definition of administrative costs. The results showed a
significant reduction in the level of administrative costs at all but
one of the sampled sites. That site was one in which all JTPA
activities were provided by the subrecipient, which is quite unlike the
service delivery methodology envisioned by WIA. These results indicate
that local areas should be able to operate within the WIA cost
limitations, using the revised definition of administrative costs at
Sec. 667.220.
3. Eligibility Determinations: Our partners in the Veterans
Employment and Training Service indicated that workforce investment
programs may not be fully aware of special rules applying to veterans
when income is a factor in eligibility determination. Therefore, we
have added a new Sec. 667.255 which refers programs to 38 U.S.C. 4213,
which exempts military pay and certain other benefits from past income
for eligibility purposes.
4. Prohibited Activities: Sections 667.260 through 667.270 address
a number of prohibited activities that are located in various sections
of the Act. We have revised Sec. 667.266 to provide the appropriate
cross-reference to the nondiscrimination regulations at 29 CFR 37.6(f),
which implement the WIA limitations on the use of financial assistance
for sectarian activities. Section 667.269 specifies where the
procedures for resolution of violations of these prohibitions, as well
as the sanctions and remedies, may be found.
Section 667.260 prohibits the use of WIA funds for the purchase or
construction of facilities or buildings with certain exceptions. This
is an exception to the generally applicable cost principles,
incorporated by reference in Sec. 667.200(c), under which such costs
are allowable with prior grantor approval as direct costs, provided
they are not specifically prohibited, as they are here. We received
several comments asking that we clarify or expand the exception to the
purchase and construction ban under which the costs of repairs,
alterations, and renovations are allowable for grantee-owned buildings
acquired with JTPA, Wagner-Peyser, or UI grant funds to also cover
leased buildings. Several comments suggested permitting the use of WIA
funds for capital costs and current operating costs of leased and
``loaned'' buildings.
Response: WIA funds may be used for renovations and other capital
expenditures on grantee/subrecipient-owned or leased buildings in order
to provide reasonable accommodation under section 504 of the
Rehabilitation Act of 1973, the Americans with Disabilities Act,
section 188 of WIA, and the regulations implementing these statutory
provisions. WIA funds may also be used for repairs, alterations, and
other current operating costs incurred for this purpose.
In general, repairs and alterations are current operating costs;
use of WIA funds for such costs is not restricted in the statute or in
these regulations. Renovation costs are usually capital expenditures.
Capital expenditures, that is expenditures of $5,000 or more which
increase the value or a useful life of property, are subject to the
restrictions of Sec. 667.260(b), which apply to grantee/subrecipient-
owned real property. In response to the comments, this paragraph has
been clarified to explicitly cover renovations to grantee/subrecipient-
owned real property acquired with JTPA, Wagner-Peyser, or UI grant
funds. Neither the Act nor the regulation restricts the use of WIA
funds for capital expenditures or current operating costs of leased and
loaned properties. Consequently, these expenditures are allowable if
consistent with generally applicable grantee/subrecipient policy
relating to leased premises and lease cost adjustments for tenant
expenditures for improvements to the landlord's property, and if
consistent with the other provisions of Sec. 667.260(b).
One comment suggested that ETA consider an additional exception to
the prohibition of building or buying real property in the case of
capital leases.
Response: Consistent with the OMB allowable cost circulars, we
consider capital leases, for example, rental-purchase agreements and
leases with an option to purchase, to be purchases of property with
borrowed funds. They are leases in form only. Consequently, WIA funds
cannot be used for the costs of such an arrangement. Allocable
depreciation and interest costs would however, be allowable. No change
has been made to the regulations.
One comment suggested changing Sec. 667.262, which covers
employment generating activities (EGA), to include contacts with labor
organizations and resource centers, and contacts with joint labor-
management committees under permissible employer outreach and job
development activities.
Response: The regulation has been modified accordingly. We have not
acceded to a related suggestion that grantees specifically account for
EGA costs because we think this is not necessary in view of the fact
that the financial management standards included in 29 CFR Parts 95 and
97 already require recipients to be able to account for the source and
application of grant funds.
One comment suggested making an exception to the prohibition in
Sec. 667.264 against foreign travel in the case of cross-border
official business conducted by border State staff.
Response: We have not changed the regulation because the statute
explicitly prohibits foreign travel for programs under Title I, subpart
B.
Section 667.268 which prohibits the use of WIA funds to encourage
business relocation, provided several comments asking if there is a
national site where interested parties can obtain information relative
to the relocating establishment requirements of Sec. 667.268.
Response: No such site exists at present and we have no current
plans for establishing such a site.
A commenter suggested adding consultation with labor organizations
and councils to the pre-award review of new and expanded establishments
in Sec. 667.268.
Response: We have added a new paragraph(b)(2) to Sec. 667.268 to
provide for permissive consultation with labor organizations in the
affected area.
A comment, which concerned the applicability of the Davis-Bacon Act
to training activities, is not dealt with here because it is a subject
which is considered in connection with training program requirements
rather than general administrative requirements.
5. Impairment of Collective Bargaining Agreements: Section 667.270
lists the safeguards that ensure that participants in WIA activities do
not displace other employees. These include the prohibition on
impairment of existing contracts for services or collective bargaining
agreements that is contained in WIA section 181(b)(2). When an
employment and training activity described in WIA section 134 would be
inconsistent with a collective bargaining agreement, the Rule requires
that the appropriate labor organization and employer provide written
concurrence before the activity begins.
6. Nondiscrimination: Section 188 of the Act prohibits
discrimination on the basis of race, color, national origin, sex, age,
disability, religion, political affiliation or belief, participant
status, and against certain noncitizens. It also requires the Secretary
to issue regulations ``necessary to implement this section not later
than one year after the date on enactment'' of the Act. Interim Final
Regulations implementing this section were published at 29 CFR part 37
and are available at 64 FR 61692 (Nov. 12, 1999). We have revised
references to the section 188 regulations throughout this Final Rule to
specifically refer to 29 CFR part 37.
Section 667.275(a) provides that recipients must comply with the
section 188 nondiscrimination and equal opportunity provisions of the
Act and its implementing regulations at 29 CFR part 37. This provision
is substantially similar to that found in Sec. 627.210, the companion
section of the regulations implementing the JTPA. Slight modifications
have been made to the language to eliminate any possible confusion
about who is covered by section 188 and 29 CFR part 37. In the context
of those provisions, a recipient is any entity that receives financial
assistance, as defined in 29 CFR 37.4, under title I of the Act (except
for the ultimate beneficiary), whether the assistance comes directly
from the Department, through the Governor, or through another
recipient. A variety of terms not specifically listed in the definition
at 29 CFR 37.4, such as vendors or subrecipients, may be used to
identify such entities. However, any entity that receives financial
assistance under title I of WIA is a recipient and is, therefore,
subject to section 188 of WIA and its implementing regulations at 29
CFR part 37, and to Sec. 667.275 of this part, to the extent that those
entities participate in the One-Stop delivery system.
Several comments on Secs. 667.270 and 667.275 suggested enhancing
the protections afforded incumbent workers against displacement, and
the non-discrimination and equal opportunity protections afforded
participants through such means as the Department notifying employees
about these protections or requiring the States to do so, requiring
One-Stops to provide information on the availability of non-traditional
opportunities for women in order to reduce the incidence of gender-
tracking, specifying coverage of OJT or other employer-provider
services to individuals in these provisions, and banning the use of WIA
funds to subsidize new employees that an employer would have hired
without WIA support.
Response: We are not modifying the non-discrimination provisions
here because this subject is covered in much greater detail in the WIA
section 188 nondiscrimination regulations at 29 CFR part 37. We are not
modifying the incumbent workers protections provision of Sec. 667.270
because the maintenance of effort requirement which the commenter seeks
to impose on employers receiving WIA funds exceeds the protections
authorized by WIA section 181. Several of the commenters' requests are
discussed in more detail in other parts of this preamble.
Subpart C--Reporting Requirements
Section 667.300 indicates that we will issue instructions and
formats for financial, participant and performance reporting. A request
for public comment on the Department's WIA Standardized Record Data,
Quarterly Summary Report, and Annual Report was published in the
Federal Register on April 3, 2000. A copy of the notice can be found on
the Internet at www.usworkforce.org. We anticipate that DOL reporting
will be done electronically. We will issue reporting guidance which
discusses such specific matters as the anticipated lag-time in using UI
wage records at follow-up. Section 667.300 also provides that a grantee
may impose different reporting requirements on its subrecipients
including different forms, shorter due dates, etc. When a State is the
grantee and plans to impose different reporting requirements, it must
describe them in its State Plan. Some comments suggested that
flexibility be provided in imposing additional reporting requirements
on subrecipients.
Response: We have not changed the regulation since it already
permits grantees to impose different requirements on subrecipients,
provided they are consistent with the State WIA plan and produce the
information required for grantee reports.
Section 667.300(e), concerning the Annual Performance Progress
Report, specifies the situations under which a sanction, including a
possible reduction in the subsequent year's grant amount, may be
imposed. Two comments expressed concern that unspecified verification
procedures would be used for imposing sanctions and that there needed
to be flexibility in the imposition of sanctions.
Response: Specifications regarding sanctions have been issued in
ETA Training and Employment Guidance Letter 8-99, Negotiating
Performance Goals and Incentives and Sanctions Process under Title I of
WIA.
Other comments suggested the due date for financial reports be
extended past the 45 days stated in the regulation, but no specific
reason for an extended time period was given.
Response: We are unaware of any reason why additional time is
required for submitting reports. No change has been made to the
regulations.
Subpart D--Oversight and Monitoring
We have modified Sec. 667.410(b) to include a reference to 29 CFR
part 37 relating to the State's monitoring system. Subpart C of 29 CFR
part 37 contains additional provisions regarding
the Governor's nondiscrimination-related oversight responsibilities.
Subpart E--Resolution of Findings from Monitoring and Oversight Reviews
1. Resolution of Findings and Grant Officer Resolution Process:
This subpart addresses the resolution of findings that arise from
audits, investigations, monitoring reviews, and the Grant Officer
resolution process. The processes are essentially the same as they were
under JTPA. One comment raised the question of what findings resolution
process should be used where more than one process is available to, and
could be used by, the grantee to resolve findings relating to WIA
activities.
Response: Our position is that such matters are State matters; what
procedures to use is left to the States to determine. The exception is
that resolution of findings related to discrimination issues arising
under section 188 of WIA or 29 CFR part 37 must be conducted in
accordance with the procedures set forth in that part.
A commenter suggested allowing 90 days instead of 60 for commenting
on and taking appropriate corrective action on findings from monitoring
and investigative reports.
Response: We believe that 60 days is sufficient for taking the
required actions, based on our experience with other work and training
programs operated by governmental grantees.
Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
Section 667.600 describes the grievance and complaints procedures
required by WIA. We have revised Sec. 667.600(g)(1) to clarify that
complaints alleging discrimination must be handled in accordance with
procedures that meet the requirements of 29 CFR part 37. Paragraph
667.600(g)(2) gives the address of the Department of Labor's Civil
Rights Center, where individuals can send questions or complaints
alleging violation of WIA section 188. The address is: U.S. Department
of Labor, Civil Rights Center, 200 Constitution Avenue, NW, Room N4123,
Washington, DC 20210. Individuals may also contact the Civil Rights
Center by telephone at 202-219-6118 (voice) or 1-800-326-2577 (TTY/
TDD).
We received numerous comments on grievance procedure requirements
for States, local areas, and other direct recipients. Most concerned
assuring that participants and other potential greivants receive
sufficient notice of their rights in a format understandable to youth
or to persons with limited English proficiency. Some comments asked
that we impose a requirement on grantees and subrecipients that they
require One-Stops and other providers to notify participants of their
appeal rights. Other comments urged us to establish particular
requirements governing procedures to be used for assuring procedural
due process, conducting investigations, adjudicating complaints,
conducting discovery, providing for informal hearings, enforcement,
review by United States courts, protection against retaliation, and the
use of mediators. Some commenters sought clarification or greater
specificity in particular areas, such as coverage of employers of
participants, and particular sanctions available against non-compliant
employers. One comment objected to using the denial of procedural
rights as a ground for appeals of local area designations to the
Secretary under section 116(a)(5) of the Act.
Response: We are quite interested in assuring that all persons
affected by WIA are aware of their rights under the Act. We also want
to assure persons who believe their rights have been negatively
affected by WIA-related actions of non-Federal parties, as well as by
the Department of Labor and its Federal partners, have access to
appropriate remedies. In response to the comments on informing
participants who are youth or persons with limited English proficiency,
we are modifying the regulation by inserting a new paragraph
Sec. 667.600(b) to require States and local areas to assure that all
participants and other interested parties are notified of their appeal
rights in language which can be understood by youth and persons of
limited English proficiency. Such efforts must comply with the
requirements of 29 CFR 37.35 about the provision of services and
information in languages other than English. We cannot authorize
appeals to United States District courts by regulation because it
exceeds the authority Congress has given us. WIA section 187 specifies
that appeals of Administrative Law Judge (AJL) decisions be taken to
the appropriate United States Court of Appeals, (as provided in
Sec. 667.850). With regard to the other issues raised by commenters, we
have not modified the regulation. While we agree that State and local
grievance procedures should contain full due process protections, we
have not modified the regulations to include the specific protections
requested by commenters in the interest of affording States and local
areas flexibility to design effective grievance procedures that work in
their particular circumstances.
Subpart G--Sanctions, Corrective Actions, and Waiver of Liability
This subpart addresses sanctions and corrective actions, waiver of
liability, advance approval of contemplated corrective actions, as well
as the offset and State deduction provision. We have modified
Sec. 667.700(a) and (b) to clarify that the processes outlined in 29
CFR part 37 must be followed in matters involving claims of
discrimination. The only comments received on this subpart were on
Sec. 667.705(c), which requires CEO's of local governments comprising a
WIA local area to specify the joint liability of such local governments
in a written agreement. Two of the comments took opposing positions on
whether there should be any joint liability at all. The third comment
said the regulation should ``clarify'' the local governments' liability
for misuse of funds.
Response: Section 117(d)(3)(B)(i) of WIA designates local CEO's as
grant recipients and makes them liable for misuse of funds unless they
obtain the Governor's agreement to serve as recipient for their area
and assume their liability. The regulation interprets this provision to
mean that the local jurisdictions are liable for misuse of funds and
where multiple jurisdictions receive funding under a single grant, the
liability assumed by each local government must be clearly stated in a
written agreement between the parties. It is our intention in this
provision that the liability of the local governments in a multiple
jurisdiction local area be determined by those governments. We did not
to imply that governments in multiple jurisdiction local areas must be
``jointly and severally'' liable, although they may choose to share
liability in that manner. Therefore, we have dropped reference to the
phrase ``joint liability'' in Sec. 667.705(c) and replaced it with
``liability''.
Sections 667.700 and 667.710 have been revised to more accurately
specify the Grant Officer's and the Secretary's authority to impose
corrective actions, including plan revocations and reorganizations,
directly against local areas, and to terminate or suspend financial
assistance. As revised, Sec. 667.700(d) provides that if the Governor
does not promptly take corrective actions against a local area for
substantial violations of WIA and its regulations, the Grant Officer,
under WIA section 184(b)(3), may impose corrective actions directly
against the local area. Sections 667.700(c) and 667.710(c) provide that
if the Governor has failed to promptly take corrective actions against
a local area for not complying with the uniform administrative
requirements, or if the Governor has not monitored and certified
local area compliance with those requirements, the Grant Officer,
under WIA section 184(a)(7), may require the Governor to take the
necessary actions. If the Governor fails to take the corrective
actions required by the Grant Officer, the Secretary may immediately
suspend or terminate financial assistance under WIA section 184(e).
Subpart H--Administrative Adjudication and Judicial Review
This subpart specifies those actions which may be appealed to the
Department's Office of Administrative Law Judge (OALJ), and the rules
of procedure and timing of decisions for OALJ hearings. Section 667.825
sets forth special requirements that apply to reviews of NFJP and INA
grant selections. A change has been made to Sec. 667.105 (discussed
above, in subpart A), which relates to this provision. We have
corrected an error in Sec. 667.830(b), to provide that any appeal
accepted by the Administrative Review Board must be decided within 180
days of acceptance, as required by WIA section 186(c). Section 667.840
also provides for an alternate dispute resolution process. In addition,
Sec. 667.850 describes the authority for judicial review of a final
order of the Secretary.
One commenter recommended increasing DOL's burden of production in
OALJ appeals to require presentation of a prima facie case.
Response: We have not changed these procedural rules, which have
worked well over the years and have provided appellants procedural due
process.
Subpart I--Transition
Section 667.900 indicates that a Governor may reserve up to two
percent of Program Years 1998 and 1999 JTPA formula funds, of which not
less than 50% must be made available to local entities, for expenditure
on WIA transition planning activities. It specifies that the source of
funds may be any one or more of JTPA's titles or subtitles. It includes
a provision that expressly excludes funds so reserved from any
calculation of compliance with JTPA cost limitations. The Governor must
decide to make the funds available to one or more local entities. These
might include a local JTPA entity, a local entity established for the
purpose of operating WIA programs, or any other local entity.
One commenter suggested replacing the references to program years
1998 and 1999 with fiscal year references.
Response: We have replaced the reference to program years in
Sec. 667.900 with fiscal years.
Another comment suggested clarifying which local entities were to
receive transition funding from the State.
Response: This matter was not addressed in the statute and we not
aware of any reason for reducing State flexibility in this area.
Accordingly, we will not prescribe how transition funds are to be
allocated to local entities.
We have received a number of questions about how JTPA enrollees are
to be transitioned over to WIA. We have responded to several situations
in a Question and Answer format which can be found through our website
at http://usworkforce.org/q&a-transition.htm. In order to emphasize the
importance of ensuring a smooth transition from JTPA to WIA for
participants, we have added a new Sec. 667.910 clarifying that all JTPA
participants who are enrolled in JTPA must be grandfathered into WIA.
These participants can complete the JTPA services specified in their
individual service strategy, even if that service strategy is not
allowable under WIA, or if the participant is not eligible to receive
these services under WIA.
Part 668--Indian and Native American Programs under Title I of the
Workforce Investment Act
Introduction
This part establishes the operation of employment and training
programs for Indians and Native Americans under the authority of
section 166 of the Act. This part is broken into subparts dealing with:
purposes and policies; service delivery systems; customer services;
youth services; services to communities; grantee accountability;
planning and funding; administration; and miscellaneous provisions such
as waivers. In crafting these regulations, we have attempted to
organize part 668 in a way which is relatively easy to follow and as
comprehensive as possible without repeating major sections of the
general WIA administrative regulations contained in part 667. Cross-
references to that part are provided in the body of these regulations,
when appropriate.
During the comment period on the WIA Interim Final Rule, we
received written comments submitted by more than one hundred current
JTPA Indian and Native American grantees. In addition, we held several
``town hall'' meetings in ``Indian Country'' which produced additional
comments submitted in writing or presented orally in the course of
discussion of relevant issues. We also received input from the Native
American Employment and Training Council (the Advisory Council) and its
regulations work group. We will discuss the most frequently raised
issues first and then discuss the other comments.
We have condensed the remaining comments into several major areas
of general concern to most commenters. Issues involving administrative
cost limitations and representation on State and Local Workforce
Investment Boards are primary concerns of some section 166 grantees.
They are concerned with regulations outside of part 668, and so are
covered as part of the general discussion.
Administrative Cost Limitation
The issue which concerned commenters most was the administrative
cost rate, and its application to section 166 grantees under WIA.
Commenters expressed the concern that section 166 grantees would be
held to a 10% administrative cost limitation. They viewed this
limitation as providing inadequate funding for the administrative work
they have to do to administer their grants. They pointed out that the
WIA requirements for active partnership in local Workforce Investment
Areas and for negotiating One-Stop MOU's, place new administrative
burdens on section 166 grantees. Some commenters suggested that the
regulations adopt a 20% limitation on administrative costs.
Response: The provision on administrative cost limitations, at 20
CFR 667.210(b), does not specify a given administrative cost rate for
section 166 programs; rather it provides that each grantee's limit on
administrative costs will be identified in the grant document. The
regulations reflect our intent to provide section 166 grantees adequate
administrative funding through the grant negotiation process. Thus,
suggestions that we exempt amounts spent on indirect costs from the
administrative costs definition (and thus from any cost limits), or
that we fund indirect costs from a separate funding source which would
not be subject to any cost limits are not necessary to accomplish the
commenters' goals. We consider both suggestions to be either contrary
to Departmental practices or contrary to the funding formula(s)
contained in this Rule. However, to provide additional clarification,
we have added a new section to part 668 (Sec. 668.825) stating that
limits on administrative costs for section 166 grants will be negotiated
with the grantee and identified in the grant award document.
General Issues of Representation and Workforce Investment System
Governance
The rules relating to the participation of INA grantees in the
state and local workforce investment system generated many comments.
Below, we discuss issues relating to alternative entities and
representation on State Boards, Local Boards and Youth Councils.
Similar issues are discussed in relation to the National Farmworker
Jobs Program in the preamble to part 669, and for the workforce
investment system in general in the preamble to part 661.
Alternative Entities
Indian and Native American grantees expressed concern over the
effects of the designation of alternative entities under WIA on their
ability to play a partnership role in the local workforce investment
system. Although alternative entities are permitted by section 117(i)
of WIA, commenters feel that alternative entities violate WIA section
117(b)(2)(A)(vi) which mandates that each Local Board contain ``a
representative of each of the one-stop partners''. Since section
121(b)(1)(B)(i) of the Act identifies section 166 grantees as mandatory
(``required'') partners in the One-Stop System, most grantees feel this
requires that they be given a seat on their Local Board.
Response: We recognize that lack of representation on Local Boards
is a legitimate and serious concern. WIA section 117(i) does, however,
permit the use of alternative entities. We certainly encourage as broad
a representation as possible on all WIA boards or councils, especially
representation of those entities identified as ``required partners'' in
the Act. The Interim Final Rule, at 20 CFR 661.330(b)(2), addresses
this problem by requiring that, if an alternative entity is used, ``the
local workforce investment plan must explain the manner in which the
Local Board will ensure an ongoing role for any such group in the local
workforce investment system'' if that entity is not represented on the
board of an alternative entity. To clarify that the required partners
must be included among ``any such group'' ensured of an ongoing role,
we amended this provision, by replacing that phrase with the phrase
``the unrepresented membership group,'' and by inserting the phrase
``including all the partners'' following ``each of the categories of
required Local Board membership under WIA section 117(b).'' 20 CFR
661.330(b)(3) provides that the ongoing role requirement may be met by
providing for ongoing consultations with an unrepresented One-stop
partner program. It also provides that, as part of its ``ongoing role''
responsibility, the alternative entity must undertake good faith
negotiations with each unrepresented partner on the terms of its
Memorandum of Understanding (MOU) with the unrepresented partner.
We expect that local workforce investment areas will follow the
regulations and that the States will ensure that all partners have
appropriate and effective representation on Local Boards or alternate
entities. We encourage local parties to resolve issues of
representation to their mutual satisfaction, in accordance with the Act
and regulations.
Representation on State Boards
Several grantees expressed a belief that there is no requirement
for Native American representation on the State Workforce Investment
Boards. Others were concerned that Governors were appointing
individuals to represent INA grantees who did not have INA program
expertise. Although not specifically required in the statute, our
grantees have expressed the desire that the Final Rule include at least
the encouragement (if not the requirement) that all types of WIA
grantees (Indians, farmworkers, etc.) at least be represented on the
State Board by a member of that class of service provider.
Response: While the Act does not require that the interests of
section 166 grantees be represented by a representative appointed by
the grantee, section 111(b)(1)(C)(vi)(II) of the Act clearly requires
that those interests, and the interests of all One-Stop partner
programs, be represented on State Boards by either the lead State
agency officials with responsibility for the program or, if there is no
such official, by a representative with expertise in the program.
In many cases, there will not be a lead State agency with
responsibility for Indian and Native American programs, so the
interests of section 166 grantees will be represented by a person
having expertise in Indian and Native American programs. While we
encourage Governors to appoint a representative nominated by Indian and
Native American programs and Migrant and Seasonal Farmworker programs
to represent those programs on State Boards, we cannot require them to
do so. We have, however, revised the regulations in 20 CFR part 661 to
clarify the requirements for representation of One-Stop partner
programs on the State Board. Under new 20 CFR 661.203(b), the
representation of a One-stop partner program may be fulfilled by an
official from the program partner, such as the section 166 grantee, or
the Governor may appoint a representative in the State having
``documented expertise relating to'' the required partner program in
the State. An agency official or other individual representing a One-
stop partner program also must be an official with optimum policy-
making authority in the organization he or she represents. As defined
in 20 CFR 661.203(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. We think that these
new definitions will provide grantees with significant assurance of
appropriate and effective representation on the State Boards.
Representation on State and Local Boards as Employers
Several grantees have expressed the desire that the regulations be
revised to suggest that, where appropriate, tribal entities be included
on State and Local Boards as employers, which would be especially
appropriate for some tribes with significant economic development
activities which may make them a significant employer in their portion
of the State.
Response: While we see the merit in this approach and encourage
Governors and chief elected officials to consider it as an option, we
think the Act gives Governors and chief elected officials broad
discretion in selecting business members of State or Local Boards from
among those nominated. We do not think we can limit that discretion as
the grantees request. Thus, we have not made the suggested regulatory
change. However, we have revised 20 CFR 661.200 and 661.315 to
expressly authorize multiple representation by an individual appointed
to a State or Local Board. Therefore, where the Governor or CEO selects
an individual who meets the representation requirements for the 166
partner program and for business representation, the regulations
authorize that person to represent both groups.
Grantee Representation on Local Boards
Many grantees have commented that States and local areas are not
clear on the WIA representation requirements even where Local Boards
are newly created and must meet the representation requirements of the
Act. Questions have arisen about whether Local Boards must include all
section 166 grantees in their area, or just ``a
representative'' of Native American grantees. Commenting Native
American grantees urged that the regulations at 20 CFR 661.315(a) be
strengthened to specify that each individual section 166 grantee in a
local WIA is entitled to a seat on the local board. Some commenters
have suggested that the grantee should have the authority to select the
individual who is to represent them on the Board.
Response: While we agree that section 166 grantees must be
represented on the Local Board, we also recognize the problem, raised
by a number of other commenters, of the potentially large size of Local
Boards. We strongly encourage local elected officials to give
representation to all partner programs within their local area, but we
do not interpret WIA as requiring that each local grantee be
individually represented on the Local Board, in cases where there is
more than one grantee of a particular One-Stop partner program
operating in a local area. As discussed below, the part 661 regulations
now clarify that CEO's may appoint one individual to represent multiple
entities, but also clarify that CEO's may solicit nominations for
appointments from the grantees.
Nor are we able to change the regulations to permit a One-stop
partner program to choose who it wishes to represent it. While we
cannot require that the CEO select a representative nominated by the
grantee to represent it/them on the Local Board, there are significant
protections in the Act and regulations to assure that grantees are
properly represented. The CEO has discretion in determining who to
appoint to a Local Board. That discretion is, however, constrained by
the requirement in WIA section 117(b)(3) and in 20 CFR 661.315 that the
representative of a partner have ``optimum policymaking authority
within'' the partner entity. In cases where there is a single section
166 grantee in a local area, the CEO's discretion is quite limited. In
cases where there are more than one grantee in the local area, the
CEO's discretion is a little broader since, as provided in 20 CFR
661.317, the CEO is only required to appoint one representative of the
partner program. In either case, however, the interests of section 166
grantees must be represented by an individual who has optimum
policymaking authority and, therefore, can knowledgeably and
effectively represent the partners' interests.
Youth Councils
Commenters asked for clarification of the role of the youth
councils in the WIA process, and especially the role of section 166
grantees in the youth councils. For example, to what degree will the
youth council ``coordinate'' youth activities in a local area? Will
section 166 grantees who sit on the local board be entitled to sit on
the youth council if they provide services to youth, but don't get
supplemental youth services funding (such as an urban grantee)? To what
degree will a section 166 grantee which receives supplemental youth
services funding be required to ``coordinate'' its youth program with
or through the youth council?
Response: Neither the regulations in part 668, subpart D, nor the
regulations in 20 CFR part 664 currently address these issues.
Commenters basically asked for further definition of the whole area of
youth services, either in regulations or other administrative guidance.
Unlike the requirements for Local Board membership in WIA section
117(b), section 117(h) contains no entitlement for specific
organizational representation on a local youth council. However, as
stated in WIA section 117(h)(1), members of the youth council are
appointed by the Local Board in cooperation with the chief elected
official(s) in the local area. Among the categories of youth council
representatives, paragraph (2) of WIA section 117(h) provides that the
youth council must include Local Board members described in paragraph
(A) or (B) of section 117(b)(2) with special interest or expertise in
youth policy. Therefore, section 166 grantees who are members of the
Local Board and have an interest or expertise in youth issues may be
appointed to the youth council under this provision. Additionally, WIA
section 117(h)(2) requires that youth councils contain representatives
of youth service agencies and provides that the chairperson of the
Local Board, in cooperation with the CEO's, may appoint other
``appropriate'' individuals to the youth council. While we encourage
Local Boards and CEO's to create broadly representative youth councils,
including representatives of section 166 grantees which operate youth
programs, we do not read the Act to authorize us to require that
specific organizations be represented on the Youth Council. This is
another ``representation and implementation issue'' which involves the
operation of WIA at the local level. We prefer to allow local people to
resolve local issues on their own, in a mutually satisfactory manner.
Those section 166 grantees which serve reservation areas will have
to include a section on the provision of supplemental youth services in
their comprehensive services plan, as required by Secs. 668.420,
668.710, and 668.720. While the section 166 youth program is separate
from the WIA title I youth program, and is not subject to any mandatory
authority of the youth council, we encourage section 166 grantees to
coordinate their provision of supplemental youth services with other
providers of youth services in the local area.
Following is a discussion of a variety of other comments on the
Interim Final Rule. The comments are organized by the subparts of the
Interim Final regulations to which they pertain.
Subpart A--Purposes and Policies
Technical Corrections: The regulations work group pointed out that
the language in the second part of the definition of ``underemployed''
at Sec. 668.150 would seem to be limited to instances where the
individual is working below his or her education level, without regard
to the attainment or establishment of other work skills, knowledges, or
abilities. We agree with this observation and have modified the
definition to include reference to ``skill achievement''. We have also
made a grammatical modification to the question in Sec. 668.140, and
have added a new paragraph (d) to Sec. 668.140 to clarify that the
Department's regulations implementing the nondiscrimination provisions
in WIA section 188 (29 CFR part 37) apply to INA programs and
activities.
Subpart B--Service Delivery Systems Applicable to Section 166 Programs
Clarification of Designation Requirements for Potential Pub. L.
102-477 Participants: Section 668.200(b)(3) of the Interim Final Rule
provided that a new entity applying for a section 166 grant must have a
service area resulting in formula funding of at least $100,000,
including any amounts received for supplemental youth services, except
in the case where the entity is a tribe submitting a plan for
participation under Public Law 102-477, the Indian Employment, Training
and Related Services Demonstration Act of 1992 (25 U.S.C. 3401 et
seq.). In those cases, the total resources in the ``477 plan'' must add
up to at least $100,000 for the entity to be designated under section
166 of WIA.
When the regulations were drafted, we did not anticipate that any
extremely small entities (i.e., with service populations under a
hundred people) would submit ``477 plans'' and, as a result, apply for
WIA designation. However, during the first WIA
designation cycle, this possibility occurred. We have determined that
designating an entity which would receive only a few hundred or a few
thousand dollars in total WIA funds would not be cost effective, and
would serve to unduly fragment already scarce program resources. In
consultation with the designation work group of the Native American
Employment and Training Council, we have revised this requirement by
placing a minimum funding threshold of $20,000 in WIA formula funding
on entities applying for section 166 designation for the purpose of
``going 477'' (this minimum corresponds to the allotment of our
smallest current JTPA grantee). We applied this limit in the WIA
section 166 designation cycle for Program Years 2000-2001. We have,
however, provided for the possibility of an exception for those
entities which are close to the limit and which have demonstrated the
capability to operate an employment and training program successfully
under such related programs as Native Employment Works or the Indian
set-aside under the Welfare-to-Work Program.
Accordingly, Sec. 668.200(b)(3) is revised to provide that the
exception will apply to grantees wishing to participate in the
demonstration program if all resources to be consolidated total at
least $100,000, with at least $20,000 derived from section 166 funds as
determined by the most recent Census data. The revised regulation also
provides that exceptions to this $20,000 limit may be made for those
entities which are close to the limit and which have demonstrated the
capacity to administer Federal funds and operate a successful
employment and training program.
Clarification of Requirements for Designation
The issue of State-recognized tribes is a point of contention in
``Indian Country,'' because of the inconsistent nature of the process
of State recognition between different States. There are great
differences between State-recognized tribes which exercise certain
quasi-governmental authority and provide their members with services,
and those entities designated as State-recognized for purely political
or social/cultural purposes. The majority of commenters favored the
elimination of any priority for State-recognized tribes as such,
reasoning that they could still qualify as Indian-controlled
organizations.
Response: Section 166 does not include State-recognized tribes in
its definition of ``Indian, Indian Tribe and Tribal Organization.'' We
decided that the inclusion of State-recognized tribes as an independent
basis for qualifying for designation in Sec. 668.200(d)(5) is not
supported by section 166(b) of the Act, which refers to section 4 of
the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450 et seq.) for the definitions of Indians and Indian tribes. It also
appears to be in conflict with the underlying principles of section
166, as expressed in the Indian Self-Determination and Education
Assistance Act. However, there is also the need to comply with the
``grandfathering'' provision of Section 166(d)(2)(B), which addresses
the continued WIA eligibility of individuals who were eligible under
JTPA. We addressed the grandfathering issue in a provision of the
recently-issued SGA for designation of section 166 grantees for Program
Years 2000-2001, which reads as follows: ``It should be noted that,
pursuant to WIA section 166(d)(2)(B), individuals who were eligible to
participate under section 401 of JTPA on August 6, 1998, shall be
eligible to participate under WIA. Organizations serving such
individuals shall be considered `Indian controlled' for WIA section 166
purposes.'' We have rewritten Sec. 668.200 to eliminate the mention of
State-recognized tribes as specifically eligible for designation based
solely upon such status, but have adapted the above-quoted language, as
new paragraph 668.200(e), to permit existing State-recognized tribal
grantees to continue to serve their members. These changes continue the
eligibility of individuals who were eligible under JTPA as a result of
being members of State-recognized tribes, as well as establishing the
status of those State-recognized tribal grantees as ``Indian-controlled
organizations''.
Clarification of Designation Priority
The regulations work group pointed out that the designation
priorities in Sec. 668.210(a) do not specifically mention situations,
which occur primarily in Oklahoma, where grantees are designated to
serve only their own tribal members in a given county or counties.
Response: We agree and have revised that paragraph to indicate that
``populations'' (over which the grantee has jurisdiction) are also
included in addition to geographic areas.
Technical Correction to Sec. 668.240
Section 668.240 describes the process for applying for designation
as an INA grantee. We have added a new paragraph to this section
specifying that the assurance contained in the WIA nondiscrimination
regulations at 29 CFR 37.20 must be contained in the application for
financial assistance.
Funding Formula
A comment on the funding formula, found at Sec. 668.296, is
discussed below in subpart G, under the heading Cost of Living Factor.
Mandatory Quotas Based on Race and Population
In the implementation discussions held around the country, several
grantees recommended that we require that States with significant
Native American populations expend a percentage of their total State
WIA budgets on Native American clients which would correspond to their
percentage of State population, and that Local Workforce Investment
Boards not be allowed to refer all Native American applicants to the
local section 166 grantee for services.
Response: While we realize there is a shortage of resources in
``Indian Country,'' there is no legal authority in WIA which would
allow us to establish and enforce ``service quotas'' on any State or
Local Area. In addition, as described in WIA section 188(a)(2), it is
unlawful for recipients of WIA financial assistance to use race, color
or national origin, including tribal affilitation, to determine which
individuals will receive services. We certainly agree that the section
166 program is intended to provide additional services for Native
Americans and is not to be used as a substitute for Local Board
services to eligible Native Americans or as an excuse for not serving
that population. The concept of One-Stop and core services is based on
the provision of universal service, without regard to race or
ethnicity. A fair and effective way to address these concerns, while
ensuring that these nondiscrimination provisions are complied with, may
be to describe the provision of other services, in addition to WIA core
services, in the MOU. The regulations at 29 CFR part 37 provide
specific requirements on the issue of nondiscrimination.
Subpart C--Services to Customers
Clarification of Allowable Activities
The regulations work group suggested that the Interim Final Rule,
at Sec. 668.340(d)(8), appears to allow the attainment of a GED only in
conjunction with other training services, and not as a stand-alone
objective.
Response: To eliminate possible confusion or misinterpretation, we
have modified Sec. 668.340(d)(8) to indicate that the listed services
(including GED attainment) may be provided alone or in
combination with any other training or intensive service(s).
Technical Change to Sec. 668.350(e)
We have inserted the term ``WIA'' before ``funds'' to more clearly
indicate that the requirement that funds be used for activities in
addition to those otherwise available applies to WIA funds.
Clarification of Grantees' Role(s) in the One-Stop System
The requirements for negotiation of MOU's have been a source of
confusion to some grantees, especially the provision in Sec. 668.360
concerning the ``field office'' requirement. Grantees have asked for
further definition of this term, and have asked about the status of
grantees which have no ``field offices'' as such, but whose service
area includes all or part of several local workforce investment areas.
Grantees also raised questions about the provision of services, the
design of the One-Stop system, and the nature of the MOU within States
with only one local area.
Response: We agree that this is an issue requiring clarification,
and have changed the regulatory language in Sec. 668.360. We have
dropped the term ``field office'' and rewritten Sec. 668.360 to
indicate that an INA grantee is a required partner when the grantee
``provides substantial services,'' either by having a permanent, year-
round presence or by being present on a seasonal or part-time basis
(e.g., one day of the week or daily for four months of the year). The
regulation has been revised to refer to 20 CFR 661.330(b)(2), to assure
that in the cases where the INA grantee provides substantial services
in a local area that uses an alternate entities which does not include
a representative of the grantee, the INA grantee will have an ongoing
role in the workforce investment system. The revised regulation also
addresses the situation in which there is a significant Native American
presence in a local area in which the INA grantee does not provide
substantial services, but which is within the INA grantee's service
area. Language has been added encouraging the INA grantee to encourage
eligible individuals to use the services of the One-Stop. Issues of MOU
negotiation and/or representation will be addressed on an individual
basis. Here again, we hesitate to dictate specific representation
requirements for any given local area, preferring that all required
partners reach mutually satisfactory arrangements which implement the
inclusive spirit of the Act. We suggest that grantees, and other
partners, refer to the discussion of MOU issues in the preamble to part
662. The same MOU requirements apply to single local area States as
apply to States composed of multiple local areas.
Status of Community Service Employment
Commenters questioned the reason for elimination of Community
Service Employment (CSE) and lamented its demise, questioning what
would become of CSE participants when the transition to WIA occurred.
Response: WIA, at section 195(10), prohibits ``public service
employment,'' except as specifically authorized under title I of WIA.
This differs from JTPA which prohibited public service employment only
in the adult and youth programs. Although section 166 states that its
purpose is to ``promote the economic and social development of Indian,
Alaska Native, and Native Hawaiian communities * * *,'' this does not
provide specific authorization of Community Service Employment.
Grantees who are concerned about transitioning current CSE participants
should refer to 20 CFR 667.910 which provides that JTPA participants
who transition into WIA programs must be allowed to finish their JTPA
activity, in accordance with the terms of their Individual Employment
Plan, even if it is not authorized under WIA.
Subpart D--Supplemental Youth Services
Flexibility in the Supplemental Youth Services Funding Formula
Grantees raised questions about the supplemental youth services
funding formula, specifically about the formula's relation to
participant eligibility for program services. The grantees argued that,
since services are to be limited to ``(economically) disadvantaged
youth,'' the funding formula should be based on the number of
economically disadvantaged youth residing ``on or near'' the
reservation, rather than on the total number of youth, as is currently
the case.
Response: This suggestion appears logical, and we are looking into
the possibility of extracting (and the impact of implementing) such
information from the 1990 Census file we use to calculate the funding
formulas for the section 401 program. Section 668.440(a) has been
changed to reflect the possibility of altering the supplemental youth
services funding formula at a future date.
Lower Level of Supplemental Youth Services Funding Under WIA
One commenter was concerned that the projected funding for the
supplemental youth services program will be slightly less than what is
currently available for the JTPA title II-B program, which will make it
impossible to operate a year-round youth effort (since the current
allotment is not sufficient to finance the tribe's Summer Youth Program
under JTPA).
Response: While we recognize that reductions in available funding
may lead to reductions in service levels, the matter of allocations is
one of budget and not regulations. Also, there is no requirement in the
section 166 program that grantees operate a year-round youth effort, or
that they continue to operate a summer youth component. Section
668.450(a) provides that grantees may offer supplemental services to
youth throughout the school year, during the summer vacation, and/or
during other breaks in the school year at the grantees discretion. The
parameters of each supplemental youth services grantee's youth program
must be described in its Comprehensive Services Plan which is
applicable to each local area.
Expanded Availability of Supplemental Youth Services Funds
Several commenters noted that supplemental youth services funding
is only being made available to grantees who serve reservations, and
urged that we broaden the definition of ``on or near'' to include
urban/suburban/rural areas within a specified distance of a
reservation, and make non-tribal grantees serving these areas eligible
to receive supplemental youth services funds and to provide youth
services in those areas.
Response: When this issue was raised with the regulations work
group of the Advisory Council, it was the general consensus that no
changes be made to the way INA grantees are currently provided youth
services funding. The members of the work group did not feel that the
``on or near'' reference in the Act was intended to divert funds away
from reservations or from the tribes/grantees serving those
reservations. We agree with the regulations work group, and have made
no change in the final regulations.
Subpart E--Services to Communities
Technical Corrections
We have made a technical correction to move a misplaced phrase in
Sec. 668.500(b). In addition, we have moved Sec. 668.630(i) to
Sec. 668.350 as new paragraph (g), where a cross reference to 20 CFR
667.266, about limitations on sectarian activities set forth in 29 CFR
37.6(f), has been added.
Subpart G--Section 166 Planning/Funding Process
Clarification of Budget Justification Requirements for Administrative
Costs
Members of the Native American Employment and Training Council
suggested that Sec. 668.720(c) seems to require that a detailed
administrative budget must be submitted as part of the Comprehensive
Services Plan. This could present grantees with an extra planning
burden which had never been required under JTPA and is not in keeping
with other recent planning decisions which require that the grantee
justify the need for administrative costs based on actual costs.
Response: We agree that the regulation was drafted at an earlier
time, when the entire issue of administrative costs was viewed in a
different light by all parties involved. Accordingly, we have modified
Sec. 668.720(c) to remove the requirement that grantees submit a
detailed budget of proposed administrative costs and to indicate that
the grantees need to be prepared to justify the amount of proposed
administrative costs.
Cost of Living Factor
A commenter recommended that we build a cost-of-living factor into
the funding formula (which is described at Sec. 668.296) so that
grantees serving areas which are more costly could receive additional
funds to offset the high cost of living (primarily in urban areas).
Response: While we sympathize with those grantees trying to operate
programs in high cost areas, the Census data used in the formula and
the current regulatory funding formula(s) for adult and youth programs
do not provide for such cost-of-living adjustments. We see no fair way
to balance the higher cost of goods and services in an urban area
against the higher costs for transportation and other services incurred
by reservation and/or rural grantees serving areas which lack the
infrastructure of cities and suburban areas. No change has been made in
the final regulations.
Availability of Incentive Grants to Section 166 Grantees
Commenters questioned why ``incentive grants'' are not being made
available to section 166 grantees who exceed their planned performance
levels.
Response: The statutory language in WIA section 503, which
authorizes the Department to provide incentive grants, only applies to
States which exceed their State adjusted levels of performance. There
are no statutory provisions authorizing incentive grants for section
166 grantees, nor is there specific authorization to build such a
factor into the current funding formula(s). At this time, we have not
determined a fair way to account for the myriad of differences between
our grantees in a way that ensures an equal opportunity for any type of
performance incentive. We note that WIA section 166(c)(2)'s waiver of
competition is one form of recognizing successful performance.
Mandatory Cost Sharing Among Section 166 Grantees
One commenter suggested that costs associated with enrolled tribal
members be charged back to their tribes, or that tribes be required to
pay employment and training costs for their tribal members
participating in programs operated by urban grantees.
Response: Although we have never opposed individual grantees
working out funding reciprocity agreements on a voluntary basis, the
service area concept currently in place through the designation process
mandates that grantees serve those eligible clients residing in their
service areas, regardless of tribal affiliation. While other entities
have, from time to time suggested that we provide funds to tribes to
serve their own members only, regardless of where they may reside, we
feel that to operate the section 166 program in this manner would be
chaotic and ultimately unworkable, and would not be in the best
interests of Native American employment and training programs
authorized under the Workforce Investment Act. Moreover, as described
in WIA section 188(a)(2), it is unlawful for recipients of WIA
financial assistance to use race, color or national origin, including
tribal affilitation, to determine which individuals will receive
services.
Information To Be Contained in Plans
We have revised Sec. 668.740(a)(1) to clarify that plans must
include information specified in these regulations as well as
Departmental planning guidance.
Technical Correction To Remove Requirements Applicable Only to PY 1999
Finally, we have removed Sec. 668.200(a) which refers to
designation criteria for PY 1999. We have also removed from
Secs. 668.720(e) and 668.730(b) references to planning requirements
applicable only to PY 1999.
We received many other comments as part of this process. However,
they involved such topics as reporting requirements, including
frequency and specific data elements, section 166 performance measures
and standards, and the closeout of JTPA section 401 grants. While
important to the overall scope of program transition and
implementation, these issues are not covered in these regulations.
These and other programmatic details will be handled administratively
through DINAP Bulletins or other policy guidance, issued after
consultation with the grantee community.
Part 669--National Farmworker Jobs Program Under Section 167
New Name of the MSFW (WIA Sec. 167 & JTPA Sec. 402) Training Program
On August 27, 1999, the Secretary's Migrant and Seasonal Farmworker
Advisory Committee voted to name the job training portion of the
workforce investment program for farmworkers, ``The National Farmworker
Jobs Program (NFJP)''. We have incorporated the name in the definitions
section, Sec. 660.300, to establish the NFJP as the farmworker training
and assistance program that is a required One-Stop partner, and to
distinguish the NFJP from the other workforce investment grants and
activities funded under WIA section 167, such as the farmworker housing
assistance grants. We have adopted the NFJP name in the portions of the
20 CFR Part 669 regulations that apply exclusively to the NFJP, and the
NFJP name is used to identify the program in this preamble.
Introduction
The comments we received about the regulations governing the
operation of the National Farmworker Jobs Program under WIA section 167
primarily came from the current NFJP grantee community. The grantees
submitted written comments during the formal comment period.
Additionally, we consulted with the migrant and seasonal farmworker
grantee community during ETA's Seasonal Farmworker Program National
Conference and through the Secretary's Migrant and Seasonal Farmworker
Program Advisory Committee. The comments reflect a substantial level of
interest in how the regulations will impact the program as it
implements under the Workforce Investment Act. The commenters seek to
make the WIA regulations' impact on their ability to serve their
farmworker customers under WIA as positive for the farmworkers as
possible.
During these consultations, the NFJP grantees reported on their
initial experiences in seeking partnership participation on Workforce
Investment Boards in a number of states and local areas. The conditions
these NFJP grantees encountered in a significant number of locations, as
their state and local systems prepare for WIA implementation, are not
conducive to their successful participation in the local One-Stop
systems. As reported, the specific approach being taken by the
representatives from some State and Local Boards fails to recognize the
independent standing of the NFJP program partner as a party with which
the Local Board must negotiate a Memorandum of Understanding. A
required objective of the negotiations is to develop the arrangements,
including costs or cost sharing, for making the services of the Local
One-Stop Center available to the farmworker community the grantee
serves. We expect the terms for participating in a local One-Stop
service delivery system to develop rationally from the negotiations
when the task is approached in good faith by both parties.
The grantees reported that they most often encountered an adverse
negotiating climate in those States and local workforce investment
areas where the States have exercised their authority under the
alternative entity provisions of WIA sections 111(e) and 117(i) (20 CFR
661.210 and 661.330, respectively) by approving existing boards to
serve as the State and/or Local Workforce Investment Boards under WIA.
The grantees reported that some States and Boards exercise the
alternative entity option in a manner that seriously impairs the NFJP
grantee's ability to participate as a One-Stop partner by failing to
provide an opportunity for good faith negotiation over the terms of the
MOU. Consequently, the necessary arrangements for making the services
of the local One-Stop Centers available to the farmworker customers
served by the NFJP program grantee may be inadequately developed.
Through a motion unanimously passed by the Migrant and Seasonal
Farmworker Employment and Training Advisory Committee, MSFW grantees
communicated their concerns in a letter to Secretary Alexis Herman,
dated September 27, 1999. In their letter, the grantees made specific
recommendations for changes to the Interim Final Rule that may be
summarized as follows: (1) To clarify that the composition of State
Workforce Investment Boards must include representation from the
required partner; (2) where the State Board is established under the
alternative entity authority of WIA section 111(e), the States be
advised through policy guidance that representation of farmworker and
other subtitle D operators is the ``preferred response to the spirit of
the Act''; and (3) that where a Local Workforce Board is an approved
alternative entity, there must be a way to ensure that an ongoing role
is actually provided to the required partners that are not members of
the alternative entity, or provision for regulatory relief from the
required partner obligations should be available for the national
grantees. These issues and other comments are discussed below.
The NFJP and Workforce Investment System Governance
As discussed above, the rules relating to the participation of NFJP
grantees in the state and local workforce investment system generated
many comments from the NFJP community. Below, we discuss issues
relating to alternative entities and representation on State Boards and
Local Boards. Similar issues are discussed in relation to the WIA
section 168 Indian and Native American Program in the preamble to part
668, and for the workforce investment system in general in the preamble
to part 661.
General Representational Question Regarding the NFJP and Appointments
to State and Local Workforce Investment Boards
The answer to the representational issue raised by the Farmworker
Advisory Committee is found within the design of the One-Stop system
and in the requirement that it be operated through the collaboration of
the required partners. In order for a partner's participation to be
viable, the regulations provide that the partner must have
representation in the One-Stop system, either through Local Board
representation or, when the partner is not represented on an
alternative entity, through an on-going role in the workforce
investment system.
We are not able to change the regulations to permit One-stop
partner programs to choose whom they wish to represent them. Under WIA,
the authority to select State and local board members lies with the
Governor and local chief elected official, respectively. However, there
are objective standards to ensure that all parties have a voice in the
workforce investment system through bona fide representation. We expect
that Local Workforce Investment Areas will follow the regulations and
that States will ensure that all required partners have appropriate and
effective representation on Local Boards. The final regulations attempt
to facilitate this process by providing local areas with flexibility to
find the right mix of representatives on the Local Board, while
ensuring that the Board is an effective policy-making body by
protecting the rights of all participants in the system and by
stressing the requirement that members be individuals with optimum
policy-making authority. We believe that the party who may most
authoritatively speak for any partner program is an official of the
partner in the State or local area or a representative acceptable to
the partner. Consequently, for effective governance, official
representation of the partner program on the State and Local Workforce
Investment Boards will usually be by such a person.
As discussed in the preamble to 20 CFR part 661, above, changes
have been made to the regulations governing board membership to clarify
the role of One-stop partner representatives. For example, when there
is more than one partner program grantee in a local area, 20 CFR
661.317 permits the appointment of one member to represent the group of
grantees. This section also authorizes the chief elected official to
solicit nominations from One-Stop partner program entities to
facilitate the selection of such representatives. Of course, the chief
elected official can opt to appoint more than one member to represent
this program, if he or she so chooses and the selection criteria permit
it. Also, as discussed below, we have added new regulations defining
the terms ``optimal policy-making authority'' and ``expertise relating
to [a] program, service or activity.''
State Board Representation for Required National Program Partners
The Farmworker Advisory Committee commenters indicated that the
Interim Final Rule is unclear as to whether representation on the State
Boards is mandatory for all required partners such as the national
program partners. As a result, the commenters reported that many States
are claiming to represent the NFJP on the State's Workforce Investment
Board through a non-partner surrogate, possibly a State agency
representative having familiarity with farmworker or related
agricultural issues, such as the State Monitor Advocate or a
representative from the State's Farm Bureau.
Response: WIA section 111(b)(1)(C)(vi)(II) requires representation
of the Title I partner on the State Board by its provision for ``the
lead State agency officials with responsibility for the programs'' or
``a representative in the State with expertise relating to such
[section 121(b)] program.'' WIA section 111(b)(2) requires that Board
members who represent organizations, agencies or other entities be
individuals with ``optimum policy-making authority'' within the program
they represent. We believe WIA section 111(b)(1)(C)(vi)(II) is clear that
a State agency official may only be appointed to represent those One-stop
partner programs over which the official has ``responsibility.'' Where
there is no such state agency official, an individual with expertise
relating to the One-stop partner program must be appointed to represent
the program. We have revised the regulations in part 661 to clarify
this. Under new 20 CFR 661.203(b), the representation of a One-Stop
partner program may be fulfilled by an official from the program
partner, such as the NFJP grantee, or the Governor may appoint a
representative in the State having ``documented expertise relating to''
the required partner program in the State. For purposes of the NFJP, we
believe that documented expertise in the NFJP is shown by a minimum of
two years combined managerial level experience in the operation of the
NFJP or with an NFJP grantee association, and suggest that Governors
adopt this standard when selecting representatives for the NFJP
program.
Without the clarification that representation must be specific to
the required partner program, appointments made to represent the
interests of a required partner could include a person who may have no
vested interest to represent the partner. This condition, which leaves
the required national partners vulnerable to the consequences of
unqualified representation, is what the NFJP grantees reported has been
occurring initially in some States. An agency official or other
individual representing a One-stop partner program must be an official
with optimum policy-making authority in the organization he or she
represents. As defined in 20 CFR 661.205(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.
Local Boards Authorized by Governors Under the Alternative Entity
Provisions
Commenters reported that the national programs, possibly without
exception, are not included on a Local Workforce Investment Board where
the Local Board is an alternative entity approved by the Governor under
WIA section 117(i) (and under 20 CFR 661.330). This is to be expected
because the composition of Local Boards approved under the alternative
entity provision is derived from arrangements developed under JTPA, and
the JTPA did not provide for the participation of the national programs
in local workforce systems as now required by WIA. However, where the
membership of the approved alternative entity does not provide for the
representation required by WIA section 117(b), the Interim Final Rule
at Sec. 661.330(b)(2) required Local Boards to ``ensure an ongoing role
for any such group in the local workforce investment system'' which is
not represented on the alternative entity Local Board.
The commenters found that the use of the word ``group'' in the
Interim Final Rule, to be too generalized to make a clear requirement
that the local workforce investment plan must provide an ongoing role
for each unrepresented partner category whenever the membership
requirement of WIA section 117(b)(2) is not matched by the incumbent
membership of the alternative entity Local Board. At the National
Conference, the commenters described instances of alternative entity
boards refusing to negotiate MOU's with their NFJP program
representatives. They pointed out that in the instance of a required
partner, a Local Board cannot have established a working relationship
or demonstrated that it has provided for an ongoing role for the
unrepresented partner until it has attempted good faith negotiations of
an MOU with that partner.
Response: To clarify that the required partners must be included
among ``any such group,'' we have amended the local governance
provision at 20 CFR 661.330(b)(2), by replacing that phrase with the
phrase ``the unrepresented membership group,'' and by inserting the
phrase ``including all the partners'' following ``each of the
categories of required Local Board membership under WIA sec. 117(b).''
We have added a new paragraph (b)(3) to 20 CFR 661.330 which provides
that the ongoing role requirement may be met by providing for ongoing
consultations with an unrepresented One-stop partner program, such as
the NFJP grantee operating in the State of local area. It also provides
that, as part of its ``ongoing role'' responsibility, the alternative
entity must undertake good faith negotiations with each unrepresented
partner on the terms of its Memorandum of Understanding with the
unrepresented partner. We have added a corollary requirement to the
NFJP regulations by adding a new third sentence to Sec. 669.220(a)
requiring the NFJP grantee to negotiate with the Local Board on the
terms of its ongoing role in the workforce investment system.
Ensuring Fair Treatment When Negotiations Between a Partner and an
Alternative Entity Board Fail
In connection with the reports from NFJP grantees of the instances
where they had been approached by State and Local Boards with non-
negotiable terms or they were not offered an ongoing role, the grantee
commenters expressed their concern over how such practices might
influence the outcome of the next NFJP competition in the State. The
commenters explained that where the State does not foster an
environment supporting good faith negotiations between its State and
Local Boards and the non-governmental NFJP grantee, the consequent
nonparticipation by the NFJP grantee in the State's local workforce
investment systems could be viewed unfavorably. The commenters were
concerned that such a condition could result in an unfair rating of the
incumbent non-State agency grantee.
Response: To promote competitions that are perceived as fair and
merit-based in their treatment of all the eligible applicants, we have
revised Sec. 669.200 by adding to the eligible applicant criteria in
paragraph (a), the capacity to work effectively as a One-Stop system
partner. The manner by which applicants may demonstrate this capacity
is explained in a new paragraph (c). Where an incumbent grantee cannot
demonstrate its capacity to work as a One-Stop partner, it will be
found to lack the capacity to work as a One-Stop partner under
Sec. 669.200(a)(4) unless the policies or actions of a Local Board that
is established under the alternative entity provisions of WIA section
117(i) precluded such participation or contributed to the failure to
reach agreement on an MOU. Wherever a Local Board is an alternative
entity and fails to agree on terms for its MOU with the incumbent NFJP
grantee, despite good faith negotiations on the part of the grantee,
new paragraph (d) requires the Grant Officer to consider the impact of
the policies and actions of the alternative entity board on the
incumbent grantee's ability to participate in the One-Stop system and
determine whether the policies or actions contributed to the failed
participation of the incumbent NFJP grantee. Where the Grant Officer
finds the local policy actions of an alternative entity Board precluded
or failed to promote the participation of the incumbent NFJP grantee
through an MOU, and the eligible applicant is a State-controlled
entity, or is an entity represented on the alternative entity
Board within the State, the Grant Officer must consider this fact when
weighing the capacity of the competitors. Under this provision, the
Grant Officer has the discretion to determine that the incumbent has
the capacity to work effectively as a One-Stop partner. (The provisions
of Sec. 669.200 (d)(1) apply only when the incumbent grantee does not
have voting status in the alternative entity Local Board.)
The Judge Richey Court Order and the NFJP
Several non-NFJP commenters raised a question about the
relationship between the Judge Richey Court Order and the NFJP for
serving migrant and seasonal farmworkers under WIA section 167. The
comments basically inquire whether the NFJP is the program for
farmworkers under WIA, and, as such, whether it brings to an end the
system of monitor advocates created by the Order.
Response: These commenters seem to be unaware of the fact that the
NFJP has been authorized continuously since its creation under the
Economic Opportunity Act of 1964, and most recently under section 402
of JTPA. The NFJP supplements the workforce investment activities of
the States with services that respond to the unique needs of
farmworkers and their families. The NFJP is not a substitute for the
other WIA services that must be made available to the farmworker job
seekers in the State.
The States are required to make the services of the One-Stop
systems in the State available to all job seekers in an equitable
fashion. The services available from the Adult and Dislocated Workers
program, from the Job Service, and from all other DOL-funded Workforce
Investment System partners in the State, must be available to
farmworkers in an equitable fashion, appropriate to their needs as job
seekers as well as to their needs as farmworkers. Judge Richey's
decision in the case brought against the Employment Service required
the entire system to serve farmworkers equitably. That requirement has
not changed under WIA.
Subpart A--Purpose, Definitions, and Federal Administration
Technical Corrections to Definitions
The commenters noted several typographical errors and suggested
clarifications in the definitions for the farmworker program in
Sec. 669.110 of the Interim Final Rule.
Response: The word ``be'' is missing from the definition of ``work
experience'' in the Interim Final Rule and is added in the Final Rule.
The definition of ``farmwork'' is corrected by removing the reference
to the allocation formula. To correct for an omission, the definition
of ``allowances'' is amended to permit receipt of allowance payments to
participants enrolled in intensive services as well as in training
services.
Add Definition of ``Related Assistance''
Questions about the characterization of emergency assistance as a
form of related assistance in Sec. 669.360 led some commenters to ask
about the nature of related assistance and what other services it
includes.
Response: We have added a definition of ``related assistance'' in
Sec. 669.110. We discuss related assistance further in the discussion
below of ``Classification of Emergency Assistance and Other Named
Activities as Related Assistance.''
Eligibility
There were a variety of comments asking that we define certain
terms related to participant eligibility, in particular that we specify
which dependents of a farmworker are eligible for NFJP assistance and
that we add an adjustment for family-size to the definition of
``disadvantaged'' for eligibility purposes. Other comments raised a
variety of issues that include: clarification of the floating 12 month
eligibility determination period; allowing for exceptions to the
eligibility period for formerly institutionalized and hospitalized
applicants; identifying the qualifying farmwork occupations and
defining the farmwork thresholds--expressed in terms of income from
farmwork and time employed in farmwork--that must be met by an
applicant to qualify as a farmworker who is eligible for NFJP services.
Response: While most requests for clarification of eligibility
provisions will be addressed in the policy guidance on participant
eligibility to be provided by the Division of Seasonal Farmworker
Programs (DSFP), we have revised the definitions section in response to
these comments. We have added a definition of ``dependent'' to the
Final Rule to specify the family member relationships within the family
of an eligible farmworker who qualify for receipt of assistance from
the NFJP. Because of comments suggesting that the definition of
``disadvantaged'' needed to be clarified to consider family size when
making eligibility determinations, we have revised the definition of
``disadvantaged'' by adding ``adjusted for family size'' to be clear
that the requirement to be economically disadvantaged, as determined
under the poverty line or the Lower Living Standard Income Level, must
take family size into account.
The comments about the clarification of the floating 12 month
eligibility determination period, formerly institutionalized and
hospitalized applicants, identifying the qualifying farmwork
occupations and defining the farmwork thresholds topics will be
addressed in policy guidance on participant eligibility. Grantees
should refer to WIA nondiscrimination regulations, at 29 CFR 37.8, for
guidance on whether an extension of the eligibility period for formerly
institutionalized and hospitalized participants may be a form of
reasonable accomodation.
The commenters raised a related concern that allowance be made for
situations where a farmworker may be disqualified by the income of an
abusive spouse and the family unit may technically remain in place. The
commenters prefer that there be the flexibility available to
accommodate such situations where appropriate.
Response: We have revised the definition of ``disadvantaged'' to
recognize this concern by permitting consideration of circumstances
where, due to known instability of the family unit, the inclusion of
income from certain members would be inappropriate or unjust. We will
provide policy guidance in consultation with the grantee partners to
provide clarification for determining what is appropriate.
Additional Technical Corrections
We have removed the definition of ``Department'' from Sec. 669.110
since it appears in 20 CFR 660.300. In addition, we have added a new
paragraph (e) to Sec. 669.170 clarifying that the Department's
regulations implementing the nondiscrimination provisions in WIA
section 188 (29 CFR part 37) apply to NFJP grants.
Subpart B--MSFW Program's Service Delivery System
Clarification of the Areas of a State Where the NFJP Program Operates
Commenters reported that there was confusion between the NFJP
grantees and the States and Local Boards over the areas within the
States where the NFJP grantee is a mandatory partner in the local One-
Stop system. The grantees asked that the regulations be amended to
clarify that the NFJP is a One-Stop partner in those local workforce
investment areas where the NFJP operates by serving NFJP customers, not
necessarily where there is ``field office'' presence, as provided in
Sec. 669.220(a) of the Interim Final Rule.
Response: We have modified Sec. 669.220(a) to clarify that the NFJP
grantee is a required One-Stop partner for the local workforce
investment areas where it operates its NFJP program.
Subpart C--The National Farmworker Jobs Program Customers and Available
Program Services
Classification of Emergency Assistance and Other Named Activities as
Related Assistance
Commenters questioned the consistency of classifying emergency
assistance as a form of related assistance and of classifying certain
non-occupational training activities as training services.
Specifically, the commenters questioned the classification of
``workplace safety'' training and ``farmworker pesticide training'' as
training services in Sec. 669.410(a)(2) of the Interim Final Rule. The
commenters suggested that the designation of emergency assistance as a
form of related assistance, without further clarifying the nature of
related assistance, also contributed to the confusing organization of
the service classifications.
Response: Pesticide safety instruction for farmworkers means
educational instruction on health and safety information about
agricultural pesticides. To protect their health, farmworkers need to
have a general understanding of this information and a full
appreciation of the seriousness of these hazzards when approved
procedures are compromised or disregarded. The instruction typically
includes information on the hazzards associated with pesticide
exposure, the physical symptoms of toxic exposures, use of protective
equipment and the importance of adhering to the manufacturer's
instructions on when fields may be entered following application. These
activities are considered supportive services under JTPA and are often
provided under JTPA in a ``non-training related'' context that advance
the farmworker's welfare as a farmworker. These types of farmworker
``training'' activities are very short term instructional services.
They are not occupational skills training. Although they may be
provided to participants enrolled in intensive services or training
services, these activities are principally designed to assist
farmworkers who are continuing to be employed in farmwork. We agree
with the commenters that the classification of these non-skills-
training activities as training services and the classification of
emergency assistance as the only form of ``related assistance'' is
confusing.
To resolve the confusing classifications, we have decided to
combine the short-term, non-occupational skills training activities
with supportive services such as emergency assistance. This will form a
classification of congruous services that historically have been
provided to MSFW's and that are uniquely required by them. To
accomplish this, we have amended Sec. 669.310 to create a fourth basic
service component of the NFJP service delivery strategy, called
``related assistance services.'' Related assistance consists of short-
term forms of direct assistance to eligible farmworkers and their
family members. The related assistance services are ones that stabilize
farmworkers' agricultural employment. The activities include such
services as emergency assistance, English language instruction, short
duration basic education, workplace safety training, farmworker
pesticide safety instruction, and farmworker housing development
assistance. The services under related assistance encompass all the
activities formerly classified under JTPA as ``services-only.'' Related
assistance activities also include the non training-related
``enhancement-only'' services that were recognized under JTPA. These
forms of assistance predominantly assist farmworkers to maintain their
current lifestyle within the agricultural community by supporting them
in their endeavors to remain employed in farmwork, thereby contributing
collaterally to the economic stabilization of the agricultural
community. Related assistance services also may be used to support
farmworkers who have enrolled in either intensive or training services.
To establish the ``related assistance services'' category, we made
a number of changes. We added a definition of ``related assistance,''
as described above, in Sec. 669.110. Related assistance services are
identified in Sec. 669.310 as one of the four basic components of the
NFJP service delivery strategy. A new Sec. 669.430 is added to classify
the activities that are included in related assistance services as
described above. The description of training services in Sec. 669.410
has been revised to reflect that training services are activities
focusing on occupational training, including basic education activity.
A new Sec. 669.440 provides that related assistance services may be
provided at any time there is a need identified for any eligible
farmworker or family member. This includes farmworker youth enrolled in
the MSFW Youth program. Accordingly, we added a clause to Sec. 669.680
clarifying that the related assistance services available under
Sec. 669.430 are authorized under the MSFW Youth program. The need for
related assistance may be documented by the grantee or in a statement
by the farmworker that is acceptable to the grantee.
We also added a definition for ``farmworker housing development
assistance'' as requested by comments made at the National Conference.
Finally, a technical correction is made by adding the word ``grantee''
to Sec. 669.360(b) where it was omitted from the Interim Final Rule.
Work Experience Classification
We received a number of comments about the treatment of work
experience in the Interim Final Rule. The comments addressed two
issues. One issue is the authorization under Sec. 669.370(b)(3)(i) to
develop arrangements with private for-profit businesses to host work
experience activities. The commenters were concerned that this will
lead to abuse of program resources by providing favored businesses with
free, albeit unskilled, WIA-funded laborers. Commenters were also
concerned that the authorization for unpaid work experience contained
in the definition could lead to abuses.
Response: Unlike ETA's relationship with the States, the NFJP
grantees are the program operators in most instances. After considering
the commenters' concerns, we agree that a closer federal-level
oversight of work experience is appropriate to ensure the farmworker
program participants are adequately protected where the activity will
be unpaid or will be hosted by for-profit entities.
We have changed Sec. 669.370(b)(3)(i) to authorize NFJP work
experience in the for-profit sector only when there is a system
described in the approved grant plan for the use of for-profit
businesses to host the structured learning experience for NFJP
participants. Similarly, to reconcile the authorization for unpaid work
experience to the requirement in Sec. 669.370(b)(3)(ii), which
establishes a minimum compensation rate for paid work experience, we
have revised Sec. 669.370(b)(3)(ii) to require that the grantee's
unpaid work experience activity be described in the approved grant
plan. To be acceptable, the plan must show how the work experience
participation at a for-profit host or in an unpaid activity will
provide tangible benefits to the work experience participant. The plan
must show that such benefits will be commensurate
with the participant's contributions to the hosting agency.
We also received comments about the classification of work
experience as an intensive service under Sec. 669.370. A number of
commenters urged that work experience be considered a training service.
Some commenters explained that work experience is effectively used to
``train'' farmworker participants on the different working conditions
of non-agricultural work environments, since the participants have
developed the basic workplace-values from their farmwork experiences.
Response: In our view, work experience primarily functions as a
workplace-values activity, while training activities are about the
acquisition of specific occupational or job skills. Work experience
provides an opportunity for new entrants in the workforce to acquire,
through close supervision, an appreciation of workplace norms that may
include self-discipline, relating to others, attendance and
accountability, understanding compensation and learning to appreciate
and meet employers' reasonable expectations. The concept of intensive
services in WIA is more than sufficiently broad to encompass the full
range of activities traditionally undertaken as work experience. The
classification of work experience as a WIA intensive service does not
change the nature of work experience as it was authorized and operated
under the predecessor laws: the Job Training Partnership Act, the
Comprehensive Employment and Training Act and the Economic Opportunity
Act. As a practical matter, the grantees retain the same degree of
flexibility in designing service strategies for meeting the needs of
their customers, regardless of perceived differences caused by the
classification nomenclature used under WIA. The adult program under
Sec. 663.200(b) also classifies work experience as an intensive
service.
WIA section 134(d)(4)(D) does recognize ``job readiness training''
as a training service. Job readiness training provides, through
classroom lecture and role play, the development of the same set of
skills and understanding to be acquired through work experience. It is
generally offered as pre-vocational world-of-work skills that may
include showing up on time, work place attitudes and behaviors, and the
like. Job readiness training usually does not include an associated
work component, but it may.
For these reasons, we have made no change to the Final Rule about
the classification of work experience as an intensive service.
Subpart D--Performance Accountability, Planning and Waiver Provision
Administrative Costs Limitation
The issue on which we received the largest number of comments
during the formal comment period is the administrative costs
limitation. The Interim Final Rule, at 20 CFR 667.210(b), provides that
the administrative costs for the NFJP ``will be identified in the grant
or contract award document.'' In the guidance (Farmworker Bulletin No.
99-04) to grantees for preparation of their 1999 Program Year plans, we
established an administrative cost limitation policy for those grantees
implementing WIA for the 1999 Program Year. The policy limited the
amount budgeted for administration to 20 percent, with costs over 15
percent requiring justification satisfactory to the Grant Officer. It
was anticipated that, after WIA transition, the rates could be expected
to fall. The grantees have traditionally operated within a 20 percent
limitation for administrative costs, without having to justify the
administrative cost rates to the Department.
The grantees' comments on administrative costs limitations were
based on the historical context of this stated policy. They expressed
concern that a 10-15% administrative costs limitation was unjust
because of the state-wide scope of most NFJP operations and the
continuing need to participate in the business of the State Board and
to serve on and negotiate MOU's with numerous Local Boards.
Response: In order to provide clarification on this issue, we are
adding a new section, Sec. 669.555 to the Final Rule stating that
limits on administrative costs for NFJP grants will be negotiated with
the grantee and identified in the grant award document. In addition, 20
CFR 667.210 (b), which provides that the administrative costs
limitation for Subtitle D programs (INA and NFJP) will be identified in
the grant award document, is unchanged.
Part 670--Job Corps
Introduction
This part provides regulations for the Job Corps program,
authorized in title I, subtitle C of WIA. The regulations address the
scope and purpose of the Job Corps program and provide requirements
relating to selection of sites for Job Corps centers; selection and
funding of service providers; screening, selection and assignment of
eligible youth to Job Corps centers; operation of Job Corps centers;
and required services for Job Corps students. This part also provides
regulations covering new WIA requirements such as the establishment of
a business and community liaison, and an industry council for each Job
Corps center, and the focus on accountability, including specific
performance measures for Job Corps centers and service providers. Our
intent in these regulations is to incorporate the requirements of title
I, subtitle C of the Act, and to describe the programs and services
which must be available for Job Corps students, as well as the
requirements dictated by the unique residential environment of a Job
Corps center (such as provision of meals, transportation, recreational
activities and related services).
Subpart A--Scope and Purpose
Purpose
Subpart A describes the purpose of the program and provides
definitions. Section 670.100 explains that references in this part
referring to guidelines or procedures issued by the Secretary mean that
the Job Corps Director will issue such guidelines. Section 670.130
specifies that the Job Corps Director has been delegated authority to
carry out the Secretary's responsibilities under title I, subtitle C of
the Act for the operation of the Job Corps program. As section 670.100
explains, procedures guiding day-to-day operations are provided in a
Policy and Requirements Handbook (PRH). The PRH includes minimum
program requirements and expected outcomes for specific program
components, such as education and training, student support, and
administration. In addition, general guidance and best practices are
provided in a number of program areas in Job Corps Technical Assistance
Guides issued by the Job Corps Director.
Partnership
The regulatory provision on program purpose (Sec. 670.110)
incorporates the Act's intent that Job Corps will operate as a
national, residential program in partnership with States and local
communities. This partnering relationship is carried throughout various
sections of part 670, such as in requirements for Job Corps centers and
service providers to serve on local youth councils, to operate as a
One-Stop partner, and to work with employers.
During the development of the Interim Final Rule, several parties
noted that the regulations in this subpart provide that Job Corps is a
national program which operates in partnership with States,
communities, Local Boards, youth councils, One-Stop centers and
partners, and other youth programs. They argued that the language
relating to partnership with One-Stops was not strong enough in other
regulatory provisions governing services (such as outreach/admissions
and placement). They believed that the regulations should clearly state
that services would be provided by One-Stop centers or partners to the
extent practicable. Our intent in using language such as ``to the
extent practicable'' or ``to the fullest extent possible'' is not to
limit or discourage the development of linkages between Job Corps and
One-Stops, but to recognize (1) the language in section 145(a)(3) of
the Act which requires the Secretary to conduct outreach and screening
activities ``to the extent practicable'' through arrangements with
applicable One-Stop centers, community action agencies, business
organizations, labor organizations, and entities that have contact with
youth; (2) the requirements in section 147 of the Act for selection of
Job Corps center operators and other service providers (such as
outreach/admissions, placement, and provision of continued services )
on a competitive basis in accordance with Federal procurement law and
regulations; and (3) the language in sections 148(d) and 149(b) of the
Act which requires the Secretary to give priority to ``One-Stop
partners'' in selecting a provider for continued services for graduates
and to ``utilize One-Stop delivery systems to the fullest extent
possible'' for the placement of graduates into jobs. The use of these
phrases should not be interpreted as a limitation, but as a statement
of intent to enter into partnerships in all situations where it is
feasible to do so.
Subpart B--Site Selection and Protection and Maintenance of Facilities
Subpart B describes how sites for Job Corps centers are selected,
the handling of capital improvements and new construction on Job Corps
centers, and responsibilities for facility protection and maintenance.
The requirements in this subpart are not significantly different from
the corresponding requirements in the JTPA Job Corps regulations.
Subpart C--Funding and Selection of Service Providers
Subpart C describes entities which are eligible to receive funds to
operate Job Corps centers and to provide operational support services.
It also describes how contract center operators and operational support
service contractors are selected, emphasizing the requirements for
competitive contract awards. Section 670.300 specifically describes the
kinds of entities that are eligible to receive funds to operate centers
and provide training and operational support services as specified in
sections 147(a) and (d), 145(a)(3) and 149(b) of the Act.
One commenter suggested that Sec. 670.300 be revised to expand the
list of entities eligible to receive funds to operate centers and
provide training and operational support services by adding ``including
service or conservation corps'' to paragraphs (a)(1) and (a)(2) of that
section.
Response: We have not revised this section because these entities
were not specifically listed in the Act and the existing regulatory
language does not preclude service or conservation corps from
responding to requests for proposals (RFP's) for operation of Job Corps
centers or provision of training and support services.
New requirements, including consultation with the appropriate
Governor, center industry council, and Local Board in development of
requests for proposals for center operators, are included in
Sec. 670.310(a). In addition, Sec. 670.310(c), restates the criteria,
specified in WIA section 147(a)(2)(B), that must be included in center
requests for proposals. These criteria include an assessment of
providers' past performance, their ability to coordinate Job Corps
center activities with State and local activities (including One-Stop
centers), and their ability to provide vocational training that
reflects employment opportunities in areas where students will seek
jobs. Several commenters recommended adding a fifth criterion category
to Sec. 670.310(c) that would require that criteria for selection of
center operators include the degree to which the entity would provide
access to non-traditional jobs and career paths for women and girls.
Response: Each Job Corps center must offer training in occupational
areas which will enable all students--male and female--to get jobs in
their home communities after completing the program. In selecting their
occupational training, students go through an occupational exploration
program which provides exposure to all types of training offered by the
center as well as information on training requirements, qualifications
for job entry and average wages for each occupational area. Existing
regulatory language and policies regarding student services require
that young women be provided access to occupational training, including
training in non-traditional occupations. Accordingly, we have not
revised Sec. 670.310.
Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, and Enrollment
Subpart D describes who is eligible for Job Corps under WIA and
provides additional factors which must be considered in selecting an
eligible applicant for enrollment. This subpart also discusses who will
conduct outreach and admissions activities for the Job Corps, and the
responsibilities of those organizations. Section 670.450(a) describes
the new requirements of section 145(c) of WIA for an assignment plan
for Job Corps centers. Assignment plans will be developed and used to
establish a target for each Job Corps center for the percentage of
students enrolled who will come from the State or Department of Labor
region in which the center is located, and the regions surrounding the
center. In addition, Sec. 670.450(b) and (c) addresses the requirement
of section 145(d) of the Act which requires that students be assigned
to the center closest to their homes, with consideration given to the
special needs of applicants or their parents or guardians, as listed in
the regulation, when making assignments. Section 670.490 provides
authorization for extensions of enrollment of students for up to one
year in special cases, such as when additional time is required for a
student to complete an advanced program or to reasonably accommodate a
student's disability.
Several commenters supported the regulatory exclusion in
Sec. 670.400 of an upper age limit for an otherwise Job Corps eligible
individual with a disability. Several other commenters noted that
parenting and child care responsibility in the Job Corps program are
mentioned in Secs. 670.400 (eligibility), 670.410(c) (factors for
selection of applicants for enrollment), 670.460 (nonresidential
enrollment), and 670.550 (center responsibility to assist students with
child care needs), and suggested that the regulations be clarified to
require contractors to provide on-site or nearby child care for
students.
Response: WIA section 148(e) requires that ``The Secretary shall,
to the extent practicable, provide child care at or near Job Corps
centers, for individuals who require child care for their children in
order to participate in Job Corps.'' In response to Congressional
reports accompanying recent appropriations, some Job Corps centers now
have on-site child care programs operated by other Federally-funded
initiatives such as Head Start. However, provision of child care at or
near all Job Corps centers is not always feasible due to
space, center size and other factors such as their remote or rural
location. Where Job Corps centers do not have on-site child care, Job
Corps admissions counselors and center staff must work with students to
assist them in making off-center arrangements to make sure their
children are properly cared for during the time they are enrolled in
the program. Accordingly, these sections have not been revised.
Subpart E--Program Activities and Center Operations
Program Activities
Subpart E describes the services and types of training each Job
Corps center must provide, as well as center responsibilities in the
administration of work-based learning. This subpart also describes the
residential support services Job Corps centers must provide, and
centers' responsibility for student accountability. Under Sec. 670.520,
required residential support services include providing a safe, secure
environment, an ongoing counseling program, food service, access to
medical care, recreation, leadership programs for students and a
student welfare association. In addition, centers must account for the
whereabouts, participation, and status of students while they are
enrolled in Job Corps.
Section 670.555 discusses religious rights of students. Based on
comments received, Sec. 670.555 has been revised to clarify that
students may file a complaint under the procedures set forth in 29 CFR
part 37 if they believe their religious rights have been violated.
Behavior Management and Zero Tolerance for Violence and Drugs
Subpart E establishes requirements for Job Corps centers to have
student behavior management systems. Section 670.540 describes Job
Corps' zero tolerance policy for violence, drugs, and unauthorized
goods. The regulatory language in this section continues current
requirements for automatic dismissal of students who commit specific
offenses (the one strike and you're out policy) specified in the Policy
and Requirements Handbook (PRH) in Job Corps' zero tolerance policy.
The Secretary will issue procedures which continue this practice.
Section 670.540(b) also addresses the requirements of section 145(a)(2)
of the Act for drug testing of all students. Section 670.545 of this
subpart also contains requirements to ensure that students are provided
due process in disciplinary actions. This process includes center fact-
finding and behavior review boards, notification of potential penalties
and appeal procedures, including going to a regional appeal board.
Experimental, Research, and Demonstration Projects
Subpart E section 670.560 also addresses the authorization,
provided in section 156 of the Act, for experimental, research and
demonstration projects related to the Job Corps program.
Subpart F--Student Support
Subpart F includes authorization of leave for students from center
activities, and provisions of cash allowances, bonuses and clothing for
students. In addition to being eligible to receive transportation,
students are eligible for other benefits, including basic living
allowances to cover personal expenses, such as toiletries, snacks,
etc., in accordance with guidance issued by the Secretary. The
allowance and bonus system is structured to provide incentives for
specific accomplishments of students, such as vocational completion.
Students are also provided with a modest clothing allowance to enable
them to obtain clothes that are appropriate for class and for the
workplace.
Subpart G--Placement and Continued Services
Placement Services
Subpart G discusses placement services for graduates of the Job
Corps program in accordance with section 149 of the Act. The
regulations focus on graduates, which is a significant change from
previous Job Corps policy and practice, since placement services have
traditionally been provided for all students who leave Job Corps, no
matter how long they were enrolled or how much of the program they
completed. The regulatory language in subpart G is substantially
different from the language in the JTPA Job Corps regulations in order
to reflect this new emphasis on providers of services to graduates.
This subpart also discusses who provides placement services, and the
responsibilities of Job Corps placement agencies in placing graduates
in jobs.
The authority provided in section 149(d) of the Act, to allow for
placement of former students (non-graduates), is reflected in
Secs. 670.710 and 670.720; however, placement services are not required
for anyone other than graduates. Implementation of new requirements for
provision of 12 months of continued services for graduates and for 6
and 12 month follow-up tracking of graduates placed in jobs
(Sec. 670.980 (a)(4) and (a)(5)) will require a realignment of existing
financial resources to support these new initiatives. The ability to
provide placement services for former students in addition to the
required placement services for graduates will be contingent on having
the funding resources to do so. We anticipate that some funds used in
the past to provide placement services for all former enrollees will
have to be realigned to support the new required services for
graduates, therefore, it is likely that the level of placement services
for graduates and for former enrollees will differ.
Continued Services for Graduates
Subpart G discusses section 148(d) of the Act, which requires
provision of 12 months of continued service for graduates. Sections
670.740 and 670.750 discuss this requirement and who may provide those
services. Provision of 12 months of continued services is a new
requirement, which requires a new level of effort for Job Corps service
providers. As discussed above, this will likely divert some funding
resources which have been used in the past for provision of placement
services for all students. As we implement the new requirement for 12
months of continued services for graduates, we will use various
approaches in order to learn what these services should consist of and
how best to procure and provide them. We anticipate that provision of
continued services for graduates may be handled by placement and
support contractors, by Job Corps centers, and/or by One-Stops.
Subpart H--Community Connections
Subpart H describes new requirements for Job Corps representatives
to serve on local youth councils, as provided for in section 117(h) of
the Act, as well as for center business and community liaisons, and for
center industry councils, as provided for in WIA sections 153 and 154,
respectively. Section 670.800(f) describes the role and
responsibilities of center industry councils, as prescribed in section
154(c) of the Act, to analyze labor market information and identify job
opportunities in areas where students will seek employment and the
skills needed for those jobs, and to recommend changes in center
vocational training offerings as appropriate. The intent of this
subpart is to provide regulatory language to tie Job Corps centers more
closely to their local communities and local employers to ensure that
the vocational and other training students receive will enable them to
obtain meaningful jobs in their home communities upon graduation.
Subpart I--Administrative and Management Provisions
Student Benefits and Protections
Subpart I provides requirements relating to Tort Claims
(Secs. 670.900 and .905), Federal Employees Compensation Act (FECA)
benefits for students (Secs. 670.910 through 930), safety and health
(Sec. 670.935), and law enforcement jurisdiction on Job Corps center
property (Sec. 670.940).
Financial and Audit Responsibilities
Subpart I also discusses financial management responsibilities of
Job Corps center operators and other Job Corps service providers, as
well as Federal audit requirements.
Program Accountability and Performance Indicators
Subpart I also incorporates specific requirements relating to
performance assessment and accountability contained in section 159(c)
of the Act, as well as requirements for performance improvement plans,
as provided for in WIA section 159(f)(2), for Job Corps center
operators or other service providers who fail to meet expected levels
of performance. Sections 670.975 and 670.980 describe how performance
of the Job Corps program will be assessed and the required indicators
of performance. Indicators of performance include: placement rates of
graduates in jobs, including jobs related to vocational training
received; average wage at placement at six months and twelve months
after job entry; retention in employment six and twelve months after
job entry; the number of graduates who achieved job readiness and
employment skills; and the number who entered postsecondary or advanced
training programs.
Disclosure of Information and Resolution of Complaints
Subpart I includes requirements relating to student records and
disclosure of information about Job Corps students. It also contains
the procedures that center operators and service providers must follow
when resolving complaints and disputes of students and other parties.
Part 671--National Emergency Grants for Dislocated Workers
Introduction
Section 170 of WIA provides for technical assistance, and section
171 provides for demonstration, pilot, multiservice, research and
multistate projects. Although we have not regulated on these sections,
it is again important to note these activities for the general
workforce investment system.
Section 170(a) provides that the Secretary will provide, coordinate
and support the development of training, technical assistance, staff
development and other activities to States and localities, and in
particular, assist States in making transitions from carrying out JTPA
to carrying out activities under title I of WIA.
Section 170(b) provides that a portion of the funds reserved by the
Secretary under WIA section 132(a)(2) be used to: (1) Assist States
that do not meet the State performance measures for dislocated workers;
(2) assist other States, local areas and other entities involved in
providing assistance for dislocated workers and promote continuous
improvement to dislocated workers under title I of WIA; or (3) assist
staff who provide rapid response services, including training of those
staff in proven methods of promoting, establishing and assisting labor-
management or transition committees to plan for effective adjustment
assistance for workers impacted by dislocation events.
Section 171(a), (b) and (c) of WIA describe employment and training
projects which may be funded, as well as the processes for such
funding. Section 171(d) provides for dislocated worker demonstration
projects and pilot projects, multiservice and multistate projects. The
purpose of dislocated worker demonstration projects is to test
innovative approaches that address priorities established by the
Secretary, are consistent with the goals described in WIA, and
subsequently may prove beneficial in providing adjustment assistance to
larger dislocated worker populations. Generally, projects will be
funded as a result of competitive solicitations published in the
Federal Register, however, the Secretary may negotiate and fund
projects other than through such solicitations.
Part 671 describes the availability of a portion of the funds
reserved by the Secretary under WIA section 132(a)(2)(A) for assistance
to dislocated workers.
National Emergency Grants
Part 671 contains limited regulations about dislocated worker funds
reserved for national emergency grants. Section 173 of WIA authorizes
the Secretary to award discretionary funds to serve dislocated workers
in certain situations. These regulations describe circumstances under
which funds may be available, including to provide employment and
training assistance to workers affected by major economic dislocations
(such as plant closures, mass layoffs, closures or realignments of
military installations, dislocations due to federal policies, etc.);
and to provide assistance to Governors of States when FEMA has
determined that a major disaster, as defined in the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122 (1) and
(2)), has occurred in the area.
These regulations emphasize the importance of rapid response
assistance for the development of requests for national emergency
funds. We set a high priority on the early collection of information
about workers being laid off, so that requests for funds will be made
promptly when it is determined that there are insufficient State and
local formula funds available to meet the needs of workers being laid
off. This process ensures that there are funds available in the local
area when the workers first need the assistance. Early intervention to
assist workers being dislocated is critical to enable them to find or
qualify for new jobs as soon as possible after the dislocation occurs.
While these regulations highlight some of the key elements and
requirements for applying for national emergency funds, guidelines to
apply for national emergency funds will be published separately in the
Federal Register.
We received several comments on Sec. 671.120, including requests
that we add language to allow labor organizations the opportunity to
comment on and grieve decisions regarding eligible applications to the
Department, and that we add language that cites labor organizations as
an example of an organization with unique capabilities to respond to a
dislocation.
Response: WIA provides for labor organization membership on both
State and Local Boards. In addition, labor organizations are
represented on labor-management committees, where such committees are
formed. These boards and committees would be involved in the
development and review of National Emergency Grant requests and,
therefore, labor organizations, as well as other interested parties,
should have sufficient opportunity to comment on applications through
those roles. While we agree that labor organizations are often valuable
partners in, or operators of, dislocated worker programs, we have not
granted the request to specifically name them in the regulations.
Employers and other organizations may also be excellent partners or
operators. To list one group to the exclusion of others could be
considered unfair. Section 671.120(b) and (c), identifying ``other
private entities'' and ``other entities,'' respectively, as potential
eligible applicants for National Emergency Grants are sufficiently
inclusive of a wide variety of organizations, including labor
organizations.
Section 671.140(c)(1) describes the deadline for a National
Emergency Grant participant to be enrolled in training to be eligible
for needs-related payments under the grant. The current deadline is by
the end of the 6th week following the date of grant award. Comments
focused on extending this deadline. The commenters viewed the time
frame as overly restrictive, given the new requirements under WIA, such
as receipt of core and intensive services and the use of ITA's.
Response: This provision is based on prior years' JTPA
appropriations language, and is included to give States additional
flexibility, beyond the 13/8 week enrollment in training requirement at
WIA section 134(e)(3)(B), in the event that there is a lack of formula
or emergency grant funds in the State or local area at the time of the
dislocation. We have not granted the request to extend the deadline, as
this deadline is only to prevent a participant from losing their
eligibility for needs-related payments because funds are not available
in the State or local area to enroll the participant in training by the
13/8 week deadline. We have, however, revised the regulations to
include other exceptions ``as described in the National Emergency Grant
application guidelines''. Early intervention is critical in getting
workers back to work quickly, potential grant participants should be
receiving core and intensive services while a National Emergency Grant
application is being developed and reviewed, then enrolled in training
once the grant funds become available. While 20 CFR 663.160 and 663.240
require that an individual receive at least one core and one intensive
service, respectively; 20 CFR 663.165 and 663.250 provide that there is
no minimum time period in which an individual must participate in core
services before receiving intensive services, nor in intensive services
before moving to training services, that would hinder a grant
participants from meeting the six week time frame.
Part 652--Establishment and Functioning of State Employment Services
Introduction
In amending the Wagner-Peyser Act in title III of the Workforce
Investment Act (WIA) of 1998, Congress intended to encourage
coordination in the planning and delivery of Wagner-Peyser Act and WIA
title I services, while retaining State agency administration of a
separate Wagner-Peyser Act program and funding stream for the delivery
of services in a One-Stop environment. The amendments to the Wagner-
Peyser Act require the State agency to provide labor exchange services
delivered by State merit-staff employees as part of a One-Stop delivery
system, and to ensure that the delivery of services funded under the
Wagner-Peyser Act is coordinated with other One-Stop partner programs
in accordance with a five-year strategic plan.
Subpart A--Employment Service Operations
The rules governing the operation of the basic labor exchange
program have been located in 20 CFR part 652, subpart A for many years
and are well known to State agencies administering the Wagner-Peyser
Act. The rules governing Wagner-Peyser Act services in a One-Stop
delivery system environment, as required by WIA, are contained in
subpart C of 20 CFR part 652.
The final regulations at part 652 subpart A contain revisions that
update definitions and update references in administrative provisions.
Under the authority of the Wagner-Peyser Act, the Governor is
required to designate a State agency to administer funds authorized
under the Wagner-Peyser Act and to provide labor exchange services to
employers and job seekers, including unemployment insurance (UI)
claimants, veterans, migrant and seasonal farmworkers, and persons with
disabilities.
We received no written comments about the Interim Final Rule's
changes to subpart A. However, we have made some technical changes to
conform the regulations to WIA requirements. The words ``Planning and''
are removed from the heading of subpart A to reflect the previous
removal of Secs. 652.6 and 652.7 that discussed planning. Regulations
for State plans are now located in subpart C at Secs. 652.211 through
652.214. The definition of State Job Training Coordinating Council
(SJTCC), at Sec. 652.1, is removed. Citation errors are corrected in
the revision to Sec. 652.5.
Technical changes to Sec. 652.8, Administrative Provisions, consist
of revised references to specified federal regulations and OMB Circular
A-87 (Revised). We have made a technical change to Sec. 652.8(j)(1), to
clarify that Wagner-Peyser Act grantees are required to comply with all
applicable Federal nondiscrimination laws, including laws prohibiting
discrimination on the basis of the factors specified in the regulation.
As it is used in the WIA regulations, the term ``including'' in this
provision is used to indicate an illustrative, but not exhaustive list
of examples. Additionally, the term ``handicap'' has been changed to
``disability'' to correspond to the phrase normally used in laws
prohibiting discrimination on the basis of handicap or disability.
Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
Part 652, subpart C, describes requirements for the establishment
and functioning of State Wagner-Peyser Act services in a One-Stop
delivery system environment. Governors must designate a State agency
responsible for administering Wagner-Peyser Act funds as a distinct
funding source. The rule requires that the State agency retain
responsibility for, and oversight of, all Wagner-Peyser Act labor
exchange services provided through the One-Stop delivery system.
Employment Services in the One-Stop Delivery System
Funds allocated to States under section 7(a) of the Wagner-Peyser
Act must be used by the State agency to provide the three methods of
labor exchange services (self-service, facilitated self-help service,
and staff-assisted service) in at least one comprehensive physical
center in each local workforce investment area during normal and
customary hours of operation, and in accordance with a local Memorandum
of Understanding (MOU). Within the local area, there also may be
affiliated sites, as described in Sec. 652.202(b), that provide the
labor exchange services described at section 7(a) of the Wagner-Peyser
Act. In accordance with the local MOU, and, consistent with State and
Local Plans, these affiliated sites should be an important part of the
State's network of local sites that provide job seekers and employers
multiple access points to One-Stop partners' services through the One-
Stop delivery system. We have revised Secs. 652.202 and 652.207 to add
the word ``comprehensive'' which was omitted in error in the Interim
Final Rule. To ensure coordination of service delivery with title I of
WIA, we have revised Sec. 652.202(b)(1) to reference Sec. 652.207(b).
For the same reason, we have revised Sec. 652.202(b)(2) to reference 20
CFR 662.100. Finally, we emphasize that Wagner-Peyser Act funded
services must be available to and accessible by individuals with
disabilities.
Wagner-Peyser Act Funds
We received comments about funds authorized under section 7 of the
Wagner-Peyser Act. One commenter expressed concern that Sec. 652.205
had given State legislatures the authority to distribute funds under
section 7(c) of the Wagner-Peyser Act.
Response: Under section 4 of the Wagner-Peyser Act, the Governor is
required to designate or authorize the creation of a State agency
responsible for cooperating with the Secretary under the Wagner-Peyser
Act. The State agency, under the direction of the Governor, is
responsible for the distribution and oversight of all authorized funds
under section 7 of the Wagner-Peyser Act, as described in Sec. 652.203.
Section 7(c) of the Wagner-Peyser Act does not authorize State
legislatures to distribute Wagner-Peyser Act funds. Thus, no change
needs to be made to Sec. 652.205. While the State legislature may not
distribute the funds, it may have the authority to set priorities for
the uses of Wagner-Peyser funds.
Another commenter suggested that Sec. 652.206 clearly indicate the
limitations on the use of funds under section 7(b) of the Wagner-Peyser
Act.
Response: Since Sec. 652.204 references the specific activities
authorized for funds reserved by the Governor under section 7(b), no
change has been made to Sec. 652.206.
Wagner-Peyser Act Services
Wagner-Peyser Act funds must be used to provide core services and
may be used to provide applicable intensive services, as defined in
title I of WIA. One commenter asked that core and intensive services be
defined in the regulations and asked how it would be determined whether
to provide intensive services.
Response: Section 652.206 contains cross-references to the
definitions of core and intensive services, which are found on 20 CFR
663.150 and 663.200. The regulations allow the State agency discretion
in providing required core and applicable intensive Wagner-Peyser Act
services under section 7(a) of the Wagner-Peyser Act. Applicable
intensive services include services such as individual and group
counseling, job search and placement assistance, staff-assisted
referrals to jobs, and staff-assisted employer services. These services
must be provided consistent with the needs of job seekers and
employers, in accordance with a local MOU. State agencies must ensure
the availability of an appropriate mix of services, ranging from
electronic self-services to staff-assisted services, in their One-Stop
delivery systems. No change has been made to Sec. 652.206.
Two commenters suggested that Wagner-Peyser Act resources should be
used solely, or to the greatest extent possible, to provide the core
services delivered through the One-Stop delivery system.
Response: The rule, at 20 CFR 662.250, discusses the requirements
to provide core services funded under other One-Stop partner programs.
However, both the Wagner-Peyser Act and Sec. 652.206 permit the
expenditure of Wagner-Peyser Act funds on applicable intensive services
as well. Funding of core services authorized and traditionally provided
by the Wagner-Peyser program and other One-Stop partner programs should
be determined by the local MOU. No change has been made to the
regulations.
Services to UI Claimants
One commenter suggested that the term ``other activities'' referred
to at section 3(c)(3) of the Wagner-Peyser Act, be specified in the
regulations.
Response: We agree with the commenter and have revised Sec. 652.209
to specify what are considered ``other activities.'' These ``other
activities'' are: (1) coordination of labor exchange services with the
provision of UI eligibility services as required by section 5(b)(2) of
the Wagner-Peyser Act; and (2) administration of the work test and
provision of job finding and placement services as required by section
7(a)(3)(F) of the Wagner-Peyser Act.
The commenter also expressed concern about the availability of
Wagner-Peyser Act funds to provide reemployment services to UI
claimants who are required to participate in reemployment services as a
condition for receipt of benefits.
Response: Section 652.209 requires the provision of Wagner-Peyser
Act reemployment services to those UI claimants required by Federal or
State law to participate in reemployment services as a condition for
receipt of UI benefits, to the extent that funds are available. An
individual's requirement to participate in reemployment services also
may be met through the provision of services funded through sources
other than the Wagner-Peyser Act. States have discretion in determining
the sources of funding for services to these claimants. Moreover, UI
claimants who are not required to participate in reemployment services
as a condition for receipt of UI benefits, also may request
reemployment services provided under Sec. 652.210.
State Planning Requirements
One commenter identified the need to make clear that the detailed
Wagner-Peyser Act plan is part of the Strategic Five-Year Plan for
Title I of the Workforce Investment Act and the Wagner-Peyser Act
submitted by the Governor in accordance with WIA regulations at 20 CFR
661.220.
Response: We have made a technical change to Sec. 652.211 to
indicate that the State agency must prepare that portion of the
Strategic Five-Year Plan for Title I of the Workforce Investment Act
and Wagner-Peyser Act describing the delivery of services provided
under the Wagner-Peyser Act. Further, to correct an editorial error in
Sec. 652.214, the requirement on modifications to the State Plan to
adjust service strategies if performance goals are not met has been
moved to the list of requirements in Sec. 652.212(b).
Delivery of Wagner-Peyser Act Services by State Merit-Staff Employees
We received several comments about the Secretary's authority under
sections 3(a) and 5(b) of the Wagner-Peyser Act to require the delivery
of labor exchange services by merit-staff employees. Section 652.215 of
the final regulations reflects the Department's authority under the
Wagner-Peyser Act, affirmed in State of Michigan v. Alexis M. Herman,
81 F.Supp. 2d 840 (W.D. Mich. 1998), to require that job finding,
placement, and reemployment services funded under the Wagner-Peyser
Act, including services to veterans, be delivered by State merit-staff
employees.
Two commenters suggested that Sec. 652.215 be clarified to
stipulate that Wagner-Peyser Act services must be delivered by merit-
staff employees of a State agency. Three commenters suggested that the
interpretation of the merit-staffing requirement be broadened
specifically to include units of general local government.
Response: After carefully examining and considering all of the
comments received, we have revised Sec. 652.215 to make clear that
Wagner-Peyser Act services must be delivered by merit-staff employees
of a State agency. Since the beginning of the Federal-State Wagner-
Peyser Act program, we have required that annual State Wagner-Peyser
Act service plans include a merit system of personnel administration.
To ensure consistency in the application of merit personnel systems and
to promote greater statewide administrative efficiency, merit-staff
employees of the State agency must deliver Wagner-Peyser Act services,
as a condition for receipt of grants. We have determined that State
agency merit-staffing preserves and maintains competence, impartiality,
and nonpartisanship in the administration of Wagner-Peyser Act services
to job seekers and employers as part of the One-Stop delivery system.
Under section 3(a) of the Wagner-Peyser Act, prior to issuance of
the Interim Final Rule, the Department authorized demonstrations of the
effective delivery of Wagner-Peyser Act services utilizing non-State
agency employees in the States of Colorado, Massachusetts, and
Michigan. These three demonstrations were permitted as exceptions to
the long-standing policy described above in order to assess the
effectiveness of alternative delivery systems. We have determined that
these three demonstrations reflect a sufficient range of delivery
options utilizing non-State agency employees to determine whether using
such employees is an effective and efficient way to deliver Wagner-
Peyser services. Therefore, the Department is not authorizing other
States to demonstrate Wagner-Peyser Act service delivery using non-
State agency employees. Failure to comply with the State merit staffing
requirements of Sec. 652.215 may result in revocation of authority to
draw down Wagner-Peyser Act funds, disallowance of costs, and/or
decertification of a State to receive Wagner-Peyser Act funds.
One commenter suggested that the Department develop federal
procedures to ensure compliance with State merit-staffing requirements.
Response: We believe that State merit-staffing compliance is
ensured through the final regulations at 20 CFR part 652 and the
federal review guidelines contained in the Wagner-Peyser Act Review
Guide for Basic Labor Exchange Services (ETA Field Memorandum No. 14-
99, January 12, 1999). Thus, at this time, we do not believe there is a
need to issue further guidance.
Guidance by the One-Stop Operator
One commenter suggested that the provision in Sec. 652.216 which
limits the ability of a One-Stop operator, other than the State agency,
to provide only guidance to State agency merit-staff employees is
contrary to the concept of service integration by preventing the
operator from providing supervision to all employees in the One-Stop
center. Other commenters recommended that the regulations remain silent
on the issue of guidance. Another suggestion was that labor unions,
whose members and/or bargaining agreements are affected by the terms of
a local MOU that defines ``guidance,'' must provide written
concurrence.
Response: The focus of these comments was on whether the word
``guidance'' in Sec. 652.216 gives the One-Stop operator too little or
too much control over State agency employees. After careful
consideration of the comments, we are retaining the term ``guidance''
to describe the level of supervision of State merit-staff employees by
the One-Stop operator. This term best reflects the appropriate
relationship that should exist between a non-State agency One-Stop
operator and State merit-staff employees funded under the Wagner-Peyser
Act in the day-to-day operation of the One-Stop center. To ensure
consistency with collective bargaining agreements, we have revised
Sec. 652.216 to allow the One-Stop operator to provide guidance to
merit-staff employees of the State agency consistent with the
provisions of the Wagner-Peyser Act, the local MOU, and applicable
collective bargaining agreements.
Finally, a commenter indicated that the wording regarding
delegation to ``any other public agency'' contained in the
parenthetical phrase in Sec. 652.216 of the Interim Final Rule may
appear to be contradictory.
Response: We agree that the parenthetical phrase is unnecessary
since the State agency is solely responsible for personnel matters
pertaining to merit-staff employees of the State agency funded by the
Act. Thus, the parenthetical phrase is removed.
Additional Comments
We received a number of comments that did not pertain directly to
20 CFR part 652 subpart A or C, but which did refer to the Wagner-
Peyser Act. One was a question of whether priority of service to
veterans under the Wagner-Peyser Act has been maintained.
Response: The rule, at 20 CFR 652, Subpart B--Services to Veterans
is retained. Subpart B refers to 20 CFR part 1001 which contains
criteria for priority of service to veterans under the Wagner-Peyser
Act.
Another commenter asked whether the current migrant and seasonal
farmworkers' regulations for the Employment Service remain in effect.
Response: The requirements for services to migrant and seasonal
farmworkers and other requirements pertaining to the administration of
Wagner-Peyser Act services at 20 CFR parts 653 and 658 remain in
effect.
A commenter expressed concern about the lack of a limit on
administrative costs for Wagner-Peyser Act services as well as the lack
of a requirement to track the income of job seekers.
Response: The WIA amendments to the Wagner-Peyser Act did not
include a limitation on administrative costs or a requirement to track
the income of job seekers. The Employment Service system created by the
Wagner-Peyser Act has always been universally available to all job
seekers regardless of income. Nothing in WIA has changed this
requirement. Thus, we can see no need to track job seekers' income. We
intend, however, to develop a system of performance measures for
Wagner-Peyser funded labor exchange services and will soon publish for
comment a proposal describing such measures.
III. Regulatory Flexibility and Regulatory Impact Analysis
The Regulatory Flexibility Act of 1980, as amended in 1996 (5
U.S.C. chapter 6), requires the Federal government to anticipate and
minimize the impact of rules and paperwork requirements on small
entities. ``Small entities'' are defined as small businesses (those
with fewer than 500 employees, except where otherwise provided), small
non-profit organizations (those with fewer than 500 employees, except
where otherwise provided) and small governmental entities (those in
areas with fewer than 50,000 residents). We have assessed the potential
impact of this Final Rule by consulting with a wide range of small
entities, in order to identify and address any areas of concern. Based
on that assessment, we certify that the Final Rule, as promulgated,
will not have a significant impact on a substantial number of small
entities. We are transmitting a copy our certification to the Chief
Counsel for Advocacy of the Small Business Administration.
The WIA Final Rule implements major reforms to the nation's job
training system. The WIA will provide resources to States, localities,
and other entities, including small entities, to assist youth, adults,
and dislocated workers in preparing for, obtaining and retaining
employment. This Rule sets forth the rights, responsibilities and
conditions under which State and local governments may receive grants
to operate programs in local workforce investment areas with these
funds. Governments in local workforce investment areas are not small
governmental entities. These areas generally have a population of at
least 500,000 and are intended to replace existing service areas under
the Job Training Partnership Act (JTPA) which generally have a
population of at least 200,000. Consequently, we do not
foresee an adverse impact on small governmental entities. Nevertheless,
we have consulted extensively with State and local officials and their
representatives to insure that any potential effect would be minimal.
These consultations included two week-long conferences in which State
and local governmental participants worked in groups divided by
specialized area of interest, and the participation of State and local
governmental officials under the Intergovernmental Personnel Act.
As during the development of the Interim Final Rule, we also
provided a number of opportunities, through a variety of media, for the
input of small businesses, non-profits and any other interested
parties. These opportunities included town hall meetings spanning the
nation in eleven locations, and an interactive web site providing ETA
policy and responses to questions from the public. Additionally, in
order to solicit comments from the widest possible audience, we broadly
disseminated our developing policies through the publication of
consultation documents which were available on the Internet, published
in the Federal Register and distributed throughout the employment and
training community. These documents were published before all the
issues had been fully resolved so that stakeholders could truly have a
voice in the policy making process. In addition to the Interim Final
Rule, which was posted on our web site in addition to being published
in the Federal Register, we also used the Internet to publish guidance
about policy issues and to engage the system in discussions around
those issues.
The Final Rule provides significant flexibility to States and local
governments to design programs and to determine policy and spending
priorities for the use of WIA grant funds. This policy-making
flexibility is embodied in 20 CFR 661.120. The Rule provides States and
local governments with additional flexibility to design systems that
meet the specific needs of each State and local area through the
general and work-flex waiver provisions at 20 CFR 661.410 and 661.430.
We have taken steps to further ameliorate any potential burdens through
20 CFR 667.210 of the Final Rule, which provides that States and
localities may use a portion of their grant funds (up to five percent
at the State level and up to ten percent at the local level) for
management and administration of the grant, rather than for the direct
provision of services to participants. Because the WIA statutory limit
on administrative costs is lower than the existing JTPA limit, we
extensively consulted with States and localities about the regulatory
definition of these administrative costs to ensure that this cost
category is defined as flexibly as possible. We also initiated a pilot
study of ten JTPA service delivery areas (SDA's), to assess the Interim
Final Rule's definition of administrative costs. As a result of those
consultations and our study, we made significant adjustments to the
definition of administrative costs in the Final Rule in order to take
account of the practical realities of implementing and maintaining this
new system.
A portion of WIA funds is available to certain communities in
direct grants from the Department. We have consulted with
representatives of the migrant and seasonal farm worker community, and
Indian and Native American tribal governments to minimize any burdens
that provisions of the Rule would have on those communities. The Rule
also provides limited authority to these grantees to receive waivers of
certain provisions of the Rule, to lessen any burden on these
communities.
To further ameliorate any burden on WIA direct grantees, the Rule
permits direct grantees to use a portion of WIA funds for
administrative costs expenditure. Unlike formula funds, the
administrative cost limit for direct grantees is not specified in the
Rule but will be negotiated in the grant agreement to take into account
individual circumstances. Due to some confusion, new regulatory
provisions have been added to expressly state this. Similarly, the
period of availability for expenditure of grant funds is established in
the grant agreement rather than set by Rule to take into account
individual circumstances. Based on provisions such as these, we have
concluded that the Rule will not place undue burdens on small entities.
In addition, under the Small Business Regulatory Fairness Act (SBREFA)
(5 U.S.C. Chapter 8), we have determined that this Final Rule is not a
``major rule,'' as defined in 5 U.S.C. 804(2). We certify that this
Final Rule has been assessed in accordance with Pub. L. 105-227, 112
Stat. 2681, for its effect on family well-being.
IV. Executive Order 12866
Under Executive Order 12866, we have evaluated this Final Rule and
have determined its provisions are consistent with the statement of
regulatory philosophy and principles promulgated by the Executive
Order. The Department of Labor is required by statute to prescribe
regulations for the WIA program. We have made every reasonable effort
to obtain input in a purposeful manner from a variety of interested
parties (State and local government officials, community-based
organizations, Intergovernmental Organizations, other stakeholders, and
the general public). The WIA grants increase the resources available to
the public and private organizations that promote long-term employment
and self-sufficiency. We have determined the Final Rule will not have
an adverse effect in a material way on the nation's economy.
We have developed the Final Rule in close consultation with the
Department of Education, and with other interested Federal agencies.
Based on those consultations, we have determined that this Final Rule
will not create a serious inconsistency or otherwise interfere with any
action taken or planned by another Federal Agency.
This Final Rule implements the Workforce Investment Act, which is
the first major reform of the nation's job training and employment
system in over 15 years. Consequently, this Final Rule raises novel
policy issues. Therefore, this is a significant regulatory action which
has been reviewed by the Office of Management and Budget for the
purposes of Executive Order 12866.
V. Unfunded Mandates
The Final Rule has been reviewed in accordance with the Unfunded
Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and
Executive Order 12875. Section 202 of UMRA requires that a covered
agency prepare a budgetary impact statement before promulgating a rule
that includes any Federal mandate that may result in the expenditure by
State, local and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year.
If a covered agency must prepare a budgetary impact statement,
section 205 of UMRA further requires that it select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with the statutory requirements. In
addition, section 203 of UMRA requires a plan for informing and
advising any small government that may be significantly or uniquely
impacted.
We have determined that the WIA Final Rule will not mandate the
expenditure by the State, local, and Tribal governments, in the
aggregate, or by the private sector, of more than $100 million in any
one year. Accordingly, we have not prepared a budgetary impact
statement, specifically addressed the regulatory alternatives
considered, or prepared a plan for informing and
advising any significant or uniquely impacted small government.
VI. Executive Order 12988
This regulation has been drafted and reviewed in accordance with
Executive Order 12988, Civil Justice Reform, and will not unduly burden
the Federal court system. The regulation has been written so as to
minimize litigation and provide a clear legal standard for affected
conduct, and has been reviewed carefully to eliminate drafting errors
and ambiguities.
VII. Executive Order 13132
Federalism Impact Statement
There are some federalism implications in this rule, for example,
the regulations implementing sections 3(a) and 5(b) of the Wagner-
Peyser Act may have a direct effect on the States' personnel management
policies. Specifically, 20 CFR 652.215 and 652.216, reiterate, in
regulation, the long-standing policy of requiring that the delivery of
Wagner-Peyser Act labor exchange services be provided by State merit
staff employees in the context of the One-Stop delivery system. Since
the implementation of the Wagner-Peyser Act of 1933, there has been an
uninterrupted application of this requirement as a condition imposed
upon States for receipt of grants for the administration of Wagner-
Peyser Act services. The requirement that job finding, placement, and
reemployment services funded under the Wagner-Peyser Act, including
services to veterans, be delivered by merit-staff employees was
affirmed by the Federal District Court in Michigan v. Alexis M. Herman,
81 F.Supp. 2d 840 (W.D. Mich. 1998).
Throughout the development of the Interim Final Rule and the Final
Rule, we participated in numerous consultations with State and local
officials, including organizations representing elected officials,
about these particular provisions as well as the regulations in
general. These consultations began with the development of the Interim
Final Rule before the issuance of Executive Order 13132 and continued
throughout the rulemaking process. The groups consulted included the
National Governors Association, the U.S. Conference of Mayors, the
National Association of State Legislators, the Interstate Conference of
Employment Security Agencies, the National Association of Counties, the
National League of Cities, and the U.S. Conference of Black Mayors.
Perhaps because 20 CFR 652.215 and 652.216 merely reiterate the long-
standing policy of the Department, State and local government officials
and representatives did not raise any concerns with this on-going
policy. During these consultations we did receive questions regarding
the scope and duration of the three demonstrations authorized by the
Secretary, to which we promptly responded. Although not from State and
local government officials, we did receive some written comments on
these provisions. These are discussed and responded to in detail in the
preamble section on part 652.
After consulting with the groups specified above, and carefully
examining and considering all of the concerns raised, we have revised
20 CFR 652.215 to more clearly state our long-standing policy position
that Wagner-Peyser Act services must be delivered by merit-staff
employees of a State agency. Since the beginning of the Federal-State
Wagner-Peyser Act program, we have required that annual State Wagner-
Peyser Act service plans include a merit system of personnel
administration. To ensure consistency in the application of merit
personnel systems and to promote greater statewide administrative
efficiency, merit-staff employees of the State agency must deliver
Wagner-Peyser Act services, as a condition for receipt of grants. Under
20 CFR 652.216 non-merit staff employees are not prohibited from
providing guidance to merit staff employees. We have determined that
State merit-staffing preserves and maintains competence, impartiality,
and nonpartisanship in the administration of Wagner-Peyser Act services
to job seekers and employers as part of the One-Stop delivery system.
Under section 3(a) of the Wagner-Peyser Act, before issuance of the
Interim Final Rule, the Department authorized demonstrations of the
effective delivery of Wagner-Peyser Act services using non-State agency
employees in the States of Colorado, Massachusetts, and Michigan. These
three demonstrations were permitted as exceptions to the long-standing
policy described above in order to assess the effectiveness of
alternative delivery systems. We have determined that these three
demonstrations reflect a sufficient range of delivery options using
non-State agency employees to determine whether using such employees is
an effective and efficient way to deliver Wagner-Peyser services. No
additional demonstrations will be authorized.
We, therefore, have promulgated these regulations only after
extensive consultations as well as initiating actual demonstrations in
three States.
VIII. Effective Date
WIA became effective upon the date of enactment, August 7, 1998. We
determined, in accordance with 5 U.S.C. 553(b)(3)(B), that the
statutory mandate to promulgate regulations within 180 days of the
enactment of the statute constituted good cause for waiving notice and
comment proceeding in order for the timely issuance of regulations to
assist States in operating under WIA as early as possible. Congress
also recognized this urgency in section 506(c) of the Act, by
specifically authorizing the issuance of an Interim Final Rule. The
Interim Final Rule set a comment period to elicit any concerns raised
by the rule for consideration in the development of this Final Rule. We
provided a comment period of 90 days to provide a significant period
for public input into any revisions to part 652, and parts 660 through
671 for the Final Rule. We fully reviewed all comments received, and
considered the input provided by our State, local and Federal partners
through our many consultations. This Final Rule will become effective
on September 11, 2000.
IX. Catalog of Federal Domestic Assistance Number
The program is listed in the Catalog of Federal Domestic Assistance
at No. 17.255.
List of Subjects in 20 CFR Parts 652 and 660 through 671
Employment, Grant programs, Job training programs, Labor.
Signed at Washington, DC, this 24th day of July, 2000.
Alexis M. Herman,
Secretary of Labor.