ETA
Final Rule
Workforce Investment Act; Interim Final Rule
[04/15/99]
Volume 64, Number 72, Page 18661-18710
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_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Employment and Training Administration
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20 CFR Part 652, et al.
Workforce Investment Act; Interim Final Rule
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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: Interim Final Rule; request for comments.
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SUMMARY: The Department of Labor (DOL) is issuing an Interim Final Rule
implementing provisions of titles I, III and V of the Workforce
Investment Act. Through these regulations, the Department implements
the first major reform of the nation's job training system in more than
15 years. Key components of this reform include streamlining services
through a One-Stop service delivery, 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 Interim Final Rule will become effective on May 17, 1999.
Comment Period: Comments must be submitted by July 14, 1999. The
Department cannot guarantee that comments received after this date will
be considered. Comments that are less than 10 pages in length may be
transmitted via a facsimile at (202) 219-0323 provided that submission
of written text follows. Commenters wishing acknowledgment of receipt
of their comments must submit them by certified mail, return receipt
requested. Also, comments may be sent electronically using the Internet
web page at http://usworkforce.org.
ADDRESSES: Submit written comments to the Employment and Training
Administration, Workforce Investment Act Implementation Taskforce, 200
Constitution Avenue, NW, Room S5513, Washington, DC 20210, Attention:
Eric Johnson.
All comments will be available for public inspection and copying
during normal business hours at the Employment and Training
Administration, Workforce Investment Act Implementation Taskforce, 200
Constitution Avenue, NW, Room S5513, Washington, DC 20210. Copies of
the Interim 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 Interim Final Rule is also available on
the WIA website at http://usworkforce.org
In compliance with 28 U.S.C. 2112(a), the Employment and Training
Administration designates the Associate Solicitor for Employment and
Training Services, Office of the Solicitor, U.S. Department of Labor,
200 Constitution Avenue, NW, Room N-2101, Washington, DC 20210, as the
recipient of petitions to review this Interim Final Rule.
FOR FURTHER INFORMATION CONTACT: Mr. Eric Johnson, Workforce Investment
Act Implementation Taskforce Office, U.S. Department of Labor, 200
Constitution Avenue, NW, Room S5513, Washington, DC 20210, Telephone:
(202) 219-0316 (voice) (this is not a toll-free number) or 1-800-326-
2577 (TDD).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
Certain sections of this Interim Final Rule, such as Secs. 667.300,
667.900, 668.800, and 669.570 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Labor has submitted a copy of these
sections to the Office of Management and Budget for its review.
Comments must be submitted by May 17, 1999 to: Desk Officer for the
Department of Labor, Employment Training Administration, Office of
Management and Budget, 725 17th Street, NW (Rm 10235), Washington DC
20503. Affected parties do not have to comply with the information
collection requirements in this document until DOL publishes in the
Federal Register the control numbers assigned by the Office of
Management and Budget (OMB). Publication of the control numbers
notifies the public that OMB has approved this information collection
requirement under the Paperwork Reduction Act of 1995. An OMB control
number (1205-0398) was issued for the WIA state planning guidance
authorized under 20 CFR 661.220, and published at 64 FR 9402 (Feb. 25,
1999).
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. The 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.
The 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:
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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
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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.
<bullet> 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.
<bullet> 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.
<bullet> 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 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.
The Department wishes to emphasize that it considers the reforms
embodied in the Workforce Investment Act to be pivotal, and not
``business as usual.'' This legislation provides 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. It is
envisioned 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. Early Implementation
Many States have expressed interest in which features of WIA may be
phased-in after approval of the State workforce investment plan, and
how long they will have before they must be in full compliance.
<bullet> The planning guidance (which was published in the Federal
Register on February 25, 1999) and regulations specify that States may
submit a State workforce investment plan to the Department for approval
at any time between April 1, 1999 and April 1, 2000. For those States
that plan to transition to WIA prior to July 1, 2000, and do not have
all policies, procedures and systems fully developed, the State may
submit a Transition Plan that outlines when the State expects to have
each of the WIA components (for example, the One-Stop system, or the
Individual Training Account system) fully operational. All components
must be in place by July 1, 2000. Under this option, the Department
will conditionally approve the State workforce investment plan. The
State workforce investment plan will be fully approved once all of the
WIA components are in place. This option provides some flexibility for
early implementing States, while ensuring that full implementation is
completed for all States by July 1, 2000.
<bullet> States and local areas may use the current waiver
authority and allowable activities under JTPA, to plan for and
implement WIA reforms. Activities that are allowable during this phase
include: (1) Strategic planning; (2) establishment of State and local
workforce investment boards; (3) consultation with One-Stop partners;
(4) establishment of ITA systems; and (5) establishment of consumer
report systems.
<bullet> Because JTPA title II youth funds are available for
obligation on April 1, 1999, the Calendar Year 1999 Summer Youth
Employment and Training Program, and JTPA title II-C youth program
allocations have been made and are to be allocated by States to local
areas under the JTPA rules. The Department will issue transition
guidance which will provide further direction and specification.
<bullet> A 90 percent hold harmless provision for within-State
allocations for the youth and adult funding streams, that is based on
allocations in the first two years of WIA operation, becomes effective
in the third year a State operates under WIA. Structured to facilitate
creation of new local areas by freeing States from allocation formulas
established under JTPA, there is no hold harmless provision effective
in the first two years of a state's WIA implementation that would cover
the transition period from JTPA. The lack of a hold harmless provision
during this period could result in some instability during the early
stages of WIA implementation. However, Governors do have options
available to promote stability. For program year 1999 only, the
Governor may elect to utilize the
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JTPA hold harmless provision. However, in doing so, the two year hold
harmless is delayed for one year. Therefore, if a State elects to use
this option, the two year hold harmless would apply for PY 2000 and
2001 unless Congress decides to address this area with a technical
amendment. Also, Governors may use some of their 15 percent State
reserve funds to assist local areas that are negatively impacted by the
WIA funding formulas, or choose to adopt an adult or youth within-State
allocation formula that incorporates additional targeting factors,
provided for in sections 128 and 133 of WIA.
C. Rule Format
The format, as well as the substance, of the Interim Final Rule,
reflects the Administration's commitment to regulatory reform and to
writing regulations that are reader-friendly. The Department has
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. The Department has organized the
regulations in a way that will help those who must implement the new
system to recognize the various steps they must take as they 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. As requested by some interested parties, however, in a
number of instances, it was determined that 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.
Section 506(c)(1) of the Act requires the Secretary of Labor to
issue this Interim Final Rule implementing provisions of the WIA under
the Department's purview within 180 days of enactment. WIA also
requires that final regulations be published by December 31, 1999.
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.
Given the short time frame imposed, the Department has employed a
variety of means to initiate extensive coordination with other Federal
agencies that have roles and responsibilities under the Workforce
Investment Act. 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 the
development of the Interim Final Rule and WIA implementation.
The Department also requested and received input from a broad range
of sources regarding guidance on how to comply with a number of WIA
statutory provisions. The Department solicited broad input on WIA
implementation through a variety of mechanisms: establishing a website
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
website; 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; and issuing draft
Planning Guidance in December 1998.
A number of the suggestions received are discussed in the Summary
and Explanation of the individual provisions of the Interim Final Rule.
However, because of the large volume of suggestions received and the
short time allowed for preparation of the regulations, as well as the
fact that suggestions continue to be received, it was not possible to
address each one. Where input has not been addressed, it will be
considered along with comments on the Interim Final Rule before
publication of the Final Rule. Also, the Department will ensure that
there are other opportunities for public input and dialogue on the
important issues surrounding implementation of the Workforce Investment
Act prior to the publication of the Final Rule.
The Department has determined that this Interim Final Rule, as
promulgated, complies with the WIA statutory mandate and provides
effective direction for the implementation of WIA programs. ETA will
review all comments received in the development of and response to the
Interim Final Rule, as well as the experience of early implementing
States, in considering what further action is necessary in promulgating
a Final Rule.
II. Summary and Explanation
This section describes and explains the specific provisions of the
Interim Final Rule. The explanatory text, in general, adheres closely
to the corresponding WIA statutory and regulatory language. A
supporting rationale is provided in those instances where the Rule
promulgates specific provisions to fulfill the requirements of the WIA
statute.
The Department has set regulations only where they are necessary to
clarify or to explain how the Department intends 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 Interim 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. The
Department has not defined what constitutes many of the activities
under the Act in order to provide policy-making flexibility to States
and local areas. Section 661.120 formalizes this flexibility in the
regulations.
Description of Regulatory Provisions
The Rule adds 12 new parts to the Code of Federal Regulations, and
a new subpart to the existing Wagner-Peyser Act regulations. Parts 660-
672 are organized by subject matter; for example, 661 describes State
and local system design, 667 contains administrative requirements
applicable to WIA title I funds, and 669 describes requirements
particularly applicable to Migrant and Seasonal Farmworker programs.
This discussion section follows that organizational structure.
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, explains the format of the regulations governing title
I, and provides definitions which are not found in the Act. Sections
101, 142, 166(b), 167(h) 301 and 502 of the Act contain additional
definitions. Among the regulatory definitions, the Department has
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 EEO data must be collected, when the
eligibility definition begins, and when the participants are counted
for performance measurement purposes.
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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, State
Governance, Local Governance Provisions and Waiver Provisions. The
General Governance subpart broadly describes the WIA system and sets
forth the roles of the governmental partners. The State and local
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
1. 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. The workforce
investment system is the method of delivery of workforce investment
activities to individuals under title I of WIA, and is composed of
State and local workforce investment boards, local workforce investment
areas, and the One-Stop system. Through the One-Stop system, the
workforce investment system is a gateway to a wide variety of
employment, training, educational and other human resource programs. In
the Department's view, close cooperation and coordination among the
Federal, State and local government partners are essential to the
system's success in providing services to those who need them. Sections
661.110 and 661.120, describe, in general terms, the roles of the
government partners. The Department sees one of its roles as Federal
partner as providing leadership, guidance and support to the system, so
that State and local governmental partners can better respond to the
needs of customers. To that end, the WIA regulations are intended to
provide a framework in which States and local partners may design
systems and deliver services in ways that best achieve the goals of WIA
based on particular need. Thus, whenever possible, items such as design
options and categories of service are not narrowly defined in the
regulations. Section 660.120 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 or the regulations,
and, in the case of local governments, not inconsistent with State
policies. To assist with such interpretations, the Department, with the
participation of other Federal agencies, as appropriate, will issue
technical assistance guidance to help States and localities interpret
WIA and the regulations. Such 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.
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 regarding
designation of an alternative entity to perform the functions of the
State Board. The role of the State Board is to assist the Governor in
the development of the State workforce investment plan (State Plan) and
to carry out the additional functions described in WIA section 111(d).
Section 661.200 describes the membership requirements of the State
Board. This section clarifies that State Boards must contain two or
more members from each of the representative categories described in
sections 111(b)(1)(C)(iii)-(v) of WIA. These categories are labor
organizations, individuals and organizations that have experience with
youth activities, and individuals and organizations that have
experience and expertise in the delivery of workforce investment
activities. The Rule requires that, in appointing representatives with
experience in workforce investment activities, special consideration be
given to chief executive officers of community colleges and community-
based organizations in the State. The Department acknowledges the
special expertise that the community college system brings to the
workforce investment system. The Department foresees a strong role for
community colleges across states and in local areas and encourages
states and local areas to appoint presidents and executive officers of
the state community college system and local community colleges to the
State and Local Workforce Investment Boards. The Department also
emphasizes the importance of including the director of the state agency
responsible for TANF on the State Board, in order to foster linkages
between WIA and TANF, and to facilitate participation of TANF in One-
Stop systems in the state.
The Department also received suggestions concerning the
representation of the State Vocational Rehabilitation Services program,
a required One-Stop partner, on the State Board. Individuals with
disabilities represent a large untapped potential workforce, and the
workforce needs of this group is of significant importance to the
Department and other Federal agencies. To signal the importance of this
issue, the Presidential Taskforce on Employment of Adults with
Disabilities was formed in 1998. In light of this emphasis on
increasing the employment rate for individuals with disabilities as
well as the complexity of the organizational requirements applicable to
this program, the director of the designated State unit under section
101(a)(2)(B)(ii)(II) of the Rehabilitation Act, if a State has such a
unit, should be considered the lead State agency official with
responsibility for the State's vocational rehabilitation program and,
therefore, should serve on the State Board. In addition, a program
operated by a State agency for the blind or by a designated State unit
for the blind should be considered a separate program for purposes of
appointing members to the State Board under WIA section 111. Among the
contributions the unit head(s) would make as a member of the State
Board is assisting in the development of the State performance
measures. The expertise of the unit head(s) would be particularly
useful since the Department, in coordination with the Department of
Education, will be working on the development of an additional
performance indicator focusing on individuals with disabilities that
may be used by States under title I of WIA. The Department of Labor and
the Department of Education will work with the States as they develop
and implement their State plans to ensure the effective delivery of
services under the WIA to individuals with disabilities. The Department
will also be conducting a study of WIA implementation that will include
a review of the manner and extent to which Vocational Rehabilitation
programs are integrated in the workforce investment system, and how
effectively the system serves individuals with disabilities.
As discussed below, regarding local workforce investment board
(Local Board) membership requirements, the
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Department received substantial input expressing concern that the
statutory membership requirements relating to the State and local
boards will lead to large, unmanageable State and Local Boards. In
contrast, others thought larger boards would be better in representing
a wider array of interests. The Department recognizes this concern,
and, although constrained by the statutory requirements that each
category of membership contain more than one representative and a
business majority, the Department has avoided adding additional
requirements relating to the number of members required. The Department
believes that problems associated with large board size can be
addressed in a number of ways, such as the use of committees. The
Department will be providing technical assistance on creative
approaches State and Local Boards may wish to consider in addressing
this issue.
2. Alternative Entities: The Department believes that changing from
existing JTPA boards and councils to State Boards meeting the
requirements of WIA section 111(b) is essential to the reforms of WIA.
The Department encourages all States to create new, fully functional
State Boards as early as possible, and is committed to providing
assistance to States to make such changes. In order to accommodate
States that have already begun to reform their boards prior to the
enactment of WIA, the statute provides an option to use an existing
entity to carry out the functions of the State Board. Section 661.210
describes the requirements relating to the appointment of this
alternative entity. Because of questions regarding the application of
these requirements, paragraph (b) of Sec. 661.210 makes clear that an
alternative entity must meet each of the three criteria set forth in
WIA section 111(e). The three criteria are that the entity: (1) Was in
existence on December 31, 1997; (2)(a) was established pursuant to
section 122 or title VII of the Job Training Partnership Act, as in
effect on December 31, 1997, or (b) is substantially similar to the
State Board as described in subsections (a), (b), and (c) of WIA
section 111; and (3) includes representatives of business in the state
and representatives of labor organizations in the state. An entity
which fails to meet any one of the criteria is not eligible to perform
the functions of the State Board. A key requirement for an alternative
entity that was not created under JTPA, is that it be substantially
similar to the Boards required under WIA. The Department considered
various ways to define the term ``substantially similar'' but, in the
end, decided to leave the term undefined. All groups required for
membership on Workforce Investment Boards are equally important and the
Department sees alternative entities as a transitional phase during
which states can operate until a new Board is appointed.
While an alternative entity need not contain the identical
membership structure required of State Boards, in the Department's view
it is important that each of the groups listed in WIA section 111(b)
have a role in the workforce investment system if the system is to be
successful. Therefore, the Rule requires that if the Governor
identifies an alternative entity, the State Plan must explain how the
State will ensure the ongoing participation of any omitted membership
groups in the functions of State workforce investment system. While
this Rule does not mean that omitted groups must be seated on an
alternative entity, it does require that the State Plan describe how
these groups will have an opportunity for meaningful input into
decisions made by the State Board.
Paragraph (d) of Sec. 661.210 amplifies the requirement that an
alternative entity must have been established by and in existence on
December 31, 1997. Because of this requirement, modifications to the
alternative entity are not allowed; a change to the membership
structure after December 31, 1997 will invalidate the entity's
eligibility as an alternative entity. The membership structure is not
considered to be changed when an existing member leaves the board and a
replacement member is appointed. However, the membership structure is
considered to be changed when a change is made to the organizational
structure of the State Board that requires a change (whether the change
is formally made or not) in the State Board's charter or to a similar
document that defines the organizational structure of the State Board,
such as appointing members of a category not previously represented. In
such a case, the entity would no longer be eligible to perform the
functions of the State Board and a new entity, meeting all the
requirements of section 111 of WIA must be created. This prevents
piecemeal modification of alternative entities that would add certain
section 111(b) membership categories but not others.
3. State Workforce Investment Plan Requirements: Sections 661.220
and 661.230, describe the requirements for submission, approval and
modification of the State workforce investment plan. The State Plan
must be submitted in accordance with planning guidelines to be issued
by the Secretary, and must be developed through an open public comment
process. The State Plan must document the timeline and the steps taken
to ensure the opportunity for meaningful public comment. The Department
intends 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 planning guidelines
set forth the information needed for the Secretary to make an informed
judgment as to whether a State Plan is consistent with WIA. The Rule
restates the statutory language regarding the process for State Plan
approval. All plans must be approved within 90 days unless the
Secretary determines in writing that the State Plan is inconsistent
with the provisions of title I of WIA and its implementing regulations
or it does not satisfy the State Plan approval requirements of the
Wagner-Peyser Act and its implementing regulations. This reflects
changes made by the technical corrections added in the Omnibus
Appropriations Act for FY 1999, which clarified that the State plan
will not be approved if it fails to meet the requirements of either WIA
or the Wagner-Peyser Act rather than only when it fails to meet both.
Failure to have completed negotiations with the Secretary of Labor on
performance measures means the plan is not consistent with title I of
WIA. A state's failure to have an effective strategy in place to ensure
the development of a fully operational One-Stop delivery system in the
state also means the state plan is not consistent with WIA title I. An
important part of this strategy is an impasse procedure designed to
facilitate collaboration and coordination between One-Stop partners at
the local level.
4. State Plan Modifications: Section 661.230 provides the approval
process for State Plan modifications. It clarifies that modifications
may be made at any time during the life of the State Plan, and must be
made upon certain conditions. Because the State Plan is a five year
strategic plan and designed to be a living document, it is likely that
assumptions based upon such things as State or Federal policy, economic
conditions, performance goals, State and local organizational
structures and/or State and local needs may change during the course of
the State Plan. The provision for a five year State Plan was intended
to reduce paperwork burdens on the States. Accordingly, only
significant changes require a modification. Examples are: changes in
performance indicators, changes in the
[[Page 18667]]
methodology used to determine local allocation of funds, or changes to
the membership structure of the State Board or alternative entity.
Modifications triggered by significant changes will be subject to the
same review process as the original State Plan. While it is impossible
to foresee all such changes that may occur during a five year period,
through timely modifications of the State Plan, State strategies can
continue to guide Local Board policy development. The Secretary must
approve all State Plan modifications unless the disapproval criteria in
Sec. 661.220 are met.
5. Local Workforce Investment Area Designation Requirements:
Sections 661.250 through 661.280 discuss the requirements applicable to
the designation of local workforce investment areas. The Rule tracks
the statutory language regarding the State Board recommendation and
Governor's approval process for designation. It refers to the statutory
provisions regarding automatic designation of areas with a population
of 500,000 or more (that request designation) at section 116(a)(2) of
WIA and temporary and subsequent designation of JTPA service delivery
areas meeting certain performance criteria (that request designation)
at section 116(a)(3) of WIA. The statute prohibits the Department from
further regulating on the standards and criteria for temporary and
subsequent designation and requires the Department to provide the
States with technical assistance to make the designations. The
regulations restate the statutory language regarding the rights of
areas to appeal the denial of a request for automatic or temporary and
subsequent designation as a local workforce investment area.
6. Regional Planning Activities: Section 661.290 describes the
circumstances in which the State may require Local Boards to take part
in regional planning activities. This provision permits States to
undertake methods to improve performance across area boundaries by
requiring local areas to engage in a regional planning process to share
employment-related information and to coordinate the provision of local
services pursuant to that regional planning. The regulation follows the
statutory language regarding the requirements for regional planning,
and permits regional planning to occur across State boundaries. Section
661.290 clarifies that Local Boards which are part of State-designated
regional planning areas must participate in regional planning
activities. However, to strike a balance, the regulation also provides
that regional planning and performance requirements may not substitute
for the local planning and performance requirements unless the affected
chief elected officials and the Governor agree to that substitution.
Subpart C--Local Governance Provisions
This Subpart covers the designation of local workforce investment
areas and the responsibilities and membership requirements of local
boards.
1. Role of the Local Workforce Investment Board: Under WIA, the
Local Board, in partnership with the chief elected official, is
responsible for setting policy and overseeing workforce investment
programs for a workforce investment area. Sections 661.300 and 661.305
reiterate the roles and responsibilities of Local Boards. There was
some concern expressed that the Local Board activities be carried out
in an open manner which encourages public comment and participation.
The Department responds to these concerns by restating the WIA section
117(e) ``sunshine provision'' in Sec. 661.305(d).
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. In response to requests for
clarification, Sec. 661.310(c) specifies that the prohibition related
to providing core, intensive and training services by the Local Board
also applies to the staff of the Local Board. This regulation also
cites the statutory provision allowing a Local Board to be designated
or certified as a One-Stop operator only with the agreement of the
chief elected official and the Governor.
3. Membership Requirements: Section 661.315 of the regulations
addresses the membership requirements for the Local Board that are
contained in section 117(b) of WIA. There were suggestions on several
issues related to the required membership of the Local Board,
particularly as to how the terms ``representatives'' and ``including''
would be defined.
Representatives: Some parties expressed the view that the term
``representatives,'' as used in section 117(b)(2)(A) (ii)-(v) of WIA,
requires that there be multiple representatives from each of the
specified entities. While others wanted a more restrictive definition,
the regulations specify that the Local Board must contain two or more
members representing the categories described in section 117(b)(2)(A)
(ii)-(v) of WIA. These categories cover different types of local
educational entities, labor organizations, community-based
organizations (including those representing individuals with
disabilities and veterans), and economic development agencies.
Including: There also were many questions on the meaning of the
term ``including'' as it is used in WIA section 117(b). Some expressed
the view that each of the entities following the word ``including'' in
section 117(b)(2)(A)(ii), (iv), and (v) of WIA must be a required
member of the Local Board, while others disagreed with this
interpretation. The regulations address this issue by requiring that
special consideration be given to including representatives of
community colleges in the selection of members representing local
educational entities; to including representatives of organizations
representing individuals with disabilities and veterans, in selection
of members representing community-based organizations; and
representatives of private sector economic development entities in
selecting representatives of economic development agencies. The
regulations do not mandate a membership seat for each such entity.
Board Size: The Department heard many concerns that the statutory
membership requirements relating to Local Boards will lead to large,
unwieldy, and unmanageable Local Boards. The Department recognizes this
concern, and while the Department is constrained by the statutory
requirements that each category of membership contain more than one
representative and that the board contain a business majority, the
Department has not added additional regulatory requirements on the
number of members required. The Department believes that problems
associated with large board size can be addressed in a number of ways,
such as through the use of committees. The Department will provide
technical assistance on creative approaches State and Local Boards may
wish to consider in addressing this issue.
4. Alternative Entity: The Department believes that changing from
existing JTPA Private Industry Councils to local workforce investment
boards is essential to the reforms of WIA. The Department strongly
encourages all eligible areas to create new, fully functional Local
Boards as early as possible, and is committed to providing assistance
to facilitate such changes. However, the Department recognizes that the
statute provides an option to use an existing entity to carry out the
functions of the Local Board. Section 661.330 describes the
requirements relating to the appointment of such an alternative entity.
Because of questions regarding
[[Page 18668]]
the application of these requirements, paragraph (a) of Sec. 661.330
makes clear that an alternative entity must meet each of the four
criteria set forth in WIA section 117(i), including the requirement
that the alternative entity must have been established by December 31,
1997. An entity which fails to meet any one of these criteria is not
eligible to perform the functions of the Local Board.
While an alternative entity need not contain the identical
membership structure as that required of Local Boards, section
117(i)(1)(c)(ii) does require the alternative entity to be
substantially similar to the Local Boards. In the Department's view it
is extremely important that each of the groups listed in section
117(b)(2) have an active role in the workforce investment system if the
system is to be successful. Therefore, the Rule requires that the
alternative entity be identified in the State Plan and the local
workforce investment plan, and that these workforce investment plans
explain the manner in which the Local Board will ensure the ongoing
participation of any omitted membership groups in the local workforce
investment area. While this Rule does not require that such groups be
seated on the Board, it does require the State and local workforce
investment plans to describe the means by which such groups will have
periodic regular meaningful opportunities for input into decisions made
by the Local Board.
Paragraph (c) of Sec. 661.330 amplifies the requirement that an
alternative entity must have been established by and in existence on
December 31, 1997. Because of this requirement, modifications of the
alternative entity are not allowed; any change to the membership
structure will invalidate the entity's eligibility as an alternative
entity. The membership structure is not considered to be changed when
an existing member leaves the Local Board and a replacement member is
appointed. However, it is considered to be changed when a change is
made to the organizational structure of the Local Board that requires a
change (whether the change is formally made or not) in the Local
Board's charter or to a similar document that defines the
organizational structure of the Local Board, such as appointing members
of a category not previously represented. In that case, the entity is
no longer eligible to perform the functions of the Local Board and a
new entity, meeting all the requirements of section 117 of WIA must be
created. This prevents piecemeal modification of alternative entities
that would add certain WIA section 117(b)(2) membership categories, but
not others.
5. Youth Council: Section 117(h) of WIA establishes youth councils
as a subgroup of the Local Boards. Youth councils are an innovative new
entity intended to broaden participation in the design and delivery of
youth services at the local level. Section 661.335 describes the
relationship of the youth council to the Local Board as well as the
membership requirements and Sec. 661.340 explains the responsibilities
of the youth council, as described in section 117(h) of WIA.
6. Local Workforce Investment Plan: Sections 661.345 and 661.350
describe the requirements for the submission of the local workforce
investment plan (Local Plan) and the contents of the Local Plan.
Section 661.350 enumerates the Local Plan components outlined in WIA
section 118(b). The Local Plan also must include information on the
process for directing the One-Stop operators to give priority to low-
income individuals and recipients of public assistance in the event
that adult funds are limited, as required by WIA section 134(d)(4)(E).
This priority is discussed in more detail under Sec. 663.600.
Section 118 of WIA indicates that Local Plans cover a five year
period. Some parties suggested that modifications to the local plan
will likely be needed within the five year span. The Department
concurs, and the regulations permit the Governor to require local plan
modifications and, at Sec. 661.355, offer a few examples of when such
modifications might be required by the Governor. Section 661.355 states
that the Governor must establish procedures for Local Plan
modifications.
Subpart D--Waivers and Workflex
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 or the Work Flex provision. The purpose of the general
statutory and regulatory waiver authority provided by section 189(i)(4)
and workforce flexibility waiver authority provided at section 192 is
to give flexibility to States and local areas in the design and
implementation of consolidated workforce development programs under
WIA. The regulations specify that the Secretary does not intend to
waive any of the key elements of the reform principles embodied in the
Act (listed in the background section of this preamble and in
Sec. 661.400), except in extremely unusual circumstances. It also
specifies that the provisions that incorporate the reform principles
embodied in the Act may not be waived under the Work Flex authority.
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 already underway 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 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 these 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. The regulation, at Sec. 662.100, describes the One-
Stop system as a seamless system of service delivery that is 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
[[Page 18669]]
assistance. The regulation specifically defines the system as
consisting of one or more comprehensive, physical One-Stop centers in a
local area that provides the core services specified in WIA section
134(d)(2) and that provide access to the other activities and programs
provided under WIA and by each One-Stop partner. In locating each
comprehensive center, Local Boards should coordinate with the broader
community, including transportation agencies, to ensure that the
centers are accessible to their customers. In addition to the
comprehensive centers, the regulation notes that WIA allows for 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. If an individual enters the system through one of the network
sites rather than the comprehensive One-Stop center, the individual may
still obtain certain services at the network site and information about
how and where all the other services provided through the One-Stop
system may be obtained.
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. The regulation at Sec. 662.200(a)(1)(i through vii)
separately specifies the funding streams under title I that are
included as required partners. The regulations also identify the other
required programs, with some clarification of the particular sections
of certain Acts (for example, the Vocational Rehabilitation Act and the
Carl D. Perkins Act) that authorize the program that must participate.
Section 662.210 identifies additional partners that may be a part of
the One-Stop system at local option.
Entities--The regulation at Sec. 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 below and include decisions regarding 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. The regulation notes
that for programs that do not have local administrative entities, the
responsible State agency may be the One-Stop partner. In addition, the
regulation specifies the appropriate entity 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, Job Corps, and Youth programs are identified in
the sections of the regulations applicable to those programs.
Partner Responsibilities--This subpart also describes and
elaborates on the statutory responsibilities of the partners. The
regulation at Sec. 662.230 identifies the five provisions of the Act
that describe these responsibilities. One of the key responsibilities
of each partner is to make available at the comprehensive center
through the One-Stop system appropriate core services that are
applicable to the partner's program. The regulation at Sec. 662.240
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.
Availability of Services--The regulation at Sec. 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 applicable core services
attributable 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 expected to be responsible for
any needed assessment that includes additional elements specifically
tailored to participants under the partner's program. However, the
adult and dislocated worker program partners are required to make all
of the core services available at the center.
Flexibility--The regulations also provide significant flexibility
regarding how the core services are to be 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.
2. Proportional Responsibility: The regulation also 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. The
regulation 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 Memorandum of Understanding
(MOU), described in subpart C. This ``proportionate responsibility''
provision is intended to provide an equitable principle for sharing
responsibility 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--The regulation provides that core services may be
provided at sites in addition to the comprehensive center under the
MOU. Therefore, it is not required that partners provide applicable
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.
Access to Services--The regulation at Sec. 662.260 provides that,
in addition to the provision of core services, the One-
[[Page 18670]]
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.
3. Cost Sharing: The regulation at Sec. 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 administrative costs of the system may be
re-evaluated annually through the memorandum of understanding process.
The 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, intends to issue guidance or technical
assistance relating to cost allocation methods to assist in this area.
Allocation Process--The regulation at Sec. 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, 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. In sum, 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.
Subpart C--Memorandum of Understanding
Subpart C describes the operation of the local One-Stop system.
Section 662.300 addresses the Memorandum of Understanding (MOU) that
must be executed between the Local Board and the One-Stop partners.
Section 662.310 states 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. 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 the 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 after
exhausting other alternatives. If an impasse has not been resolved,
parties that fail to execute an MOU may not be permitted to serve on
the Local Board. In addition, if a 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.
Subpart D--One-Stop Operator
This subpart addresses the role and selection of One-Stop
operators. The 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 Local Board. 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.
The regulations provide 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); if the One-Stop
system includes all of the required One-Stop partners; and if an MOU is
executed consistent with the requirements of the Act.
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. Along
with Wagner-Peyser labor exchange services, the required adult and
dislocated worker services, described as core, intensive, and training
services, form the backbone of the One-Stop delivery system. The WIA
goal of universal access to core services is achieved 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 are expected 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 and an ITA as the payment mechanism, they will have the
opportunity to choose the training provider that best meets their
needs.
Subpart A--One-Stop System
1. Role of the Adult and Dislocated Worker Program in the One-Stop
System: The regulation at Sec. 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 is a required
partner and is subject to Sec. 662.210
[[Page 18671]]
regarding required partner responsibilities. 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.
2. Registration and Eligibility: Sections 663.105 through 663.120
address registration and basic eligibility requirements. In response to
concerns regarding the timing of eligibility determination for services
in a One-Stop system, the Department has provided 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.
Individuals who are primarily seeking information and do not seek
direct, one-on-one staff assistance, do not need to be registered.
However, when an individual seeks more than minimal assistance from
staff in taking the next steps toward self-sufficient employment, then
eligibility must be determined. Registration is the point at which
information that is used in performance measurement begins to be
collected. In addition, equal employment opportunity data must be
collected on individuals when any assessment or discretionary decision
regarding a specific individual is made. Such assessments or decisions
include: Decisions regarding service or program eligibility, either
positive or negative; and decisions made on the part of any workforce
investment system employee which lead to a targeting of services for
the individual. The Department will issue further guidance regarding
this data collection. Additional information needed to determine
eligibility for other assistance available at the One-Stop site may
also be determined at the same time. Program operators should determine
the information that 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.
3. Displaced Homemaker Eligibility: In response to inquiries
regarding assistance to displaced homemakers, the regulation at
Sec. 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.
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.
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. There was a great deal of
concern expressed about how this tiered approach would be implemented.
Many were particularly concerned that the Department might require a
``failed'' job search or a minimum time period in one level of service
before moving on to the next level. The regulations establish the
concept of a tiered approach but allow significant flexibility at the
local level. The Department, in response to the comments received, did
not establish a minimum number of ``failed'' job applications or a
minimum time period but, instead, allows 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, 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 or retaining self-sufficient employment. The three levels
of services are discussed separately in the regulations.
6. Core Services: The regulations at Secs. 663.150 to 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. Followup services must be available for a minimum of 12 months
after employment begins, to registered participants who are placed in
unsubsidized employment. 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. The Department encourages Local Boards to
establish strong linkages with a variety of supportive service
programs, including Food Stamps, Medicaid programs, and CHIP. Such
programs provide key supports for low-income working families and
families making the transition from welfare to self-sufficiency.
The Department also encourages 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 child
support requirements on non-custodial parents who may receive services.
Subpart B--Intensive Services
1. Intensive Services for Adults and Dislocated Workers: The
regulation at Sec. 663.200 discusses intensive services. The regulation
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.
2. 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
[[Page 18672]]
to self-sufficiency. The regulations at Secs. 663.240 through 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.
3. Self-sufficiency: This regulation, at Sec. 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 must 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.
Subpart C--Training Services
1. Training Services: Training services are discussed at
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. The
Department 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.
2. Determining the Need for Training: The regulations at
Sec. 663.310 provide 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.
3. Requirements When Other Grant Assistance is Available to
Participants. Section 663.320 implements the requirements of WIA
section 134(d)(4)(B), which limits the use of WIA funds for training
services to instances when there is no or inadequate 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 the costs. This section 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 application for determining
eligibility and ultimately the amount of the grant, 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
[[Page 18673]]
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.
Subpart D--Individual Training Accounts
1. Definition of an Individual Training Account: Information
regarding Individual Training Accounts (ITA) is contained in
Secs. 663.400 through 663.430. 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. The regulation at Sec. 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 of the ITA, or policies regarding exceptions to the limits, but
provide that authority to the State or Local Boards. However, this
authority to restrict the duration of ITA's or restrict funding amounts
should not be used to establish limits that arbitrarily exclude
eligible providers.
2. Exceptions to ITA's: The Act at section 134(d)(4)(G)(ii) and
Sec. 663.430 of the regulations 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--Contracts for training are also
authorized when the Local Board determines that there are special
populations that face multiple barriers to employment, as identified in
Sec. 663.430(b), 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. The
Department has received many suggestions about this exception and the
extent to which it may be used. 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. The Department believes 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.
Criteria for ``Demonstrated Effectiveness''--The regulation at
Sec. 663.430(a)(3) provides that when the exception for special
populations is used, the Local Board must apply criteria it develops 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 provisions in the regulation are
illustrative and Local Boards should develop specific criteria
applicable to their local areas.
Subpart E--Eligible Training Providers
1. 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 section 134 provisions covering Individual Training Accounts. 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 should 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, the regulation at Sec. 663.530 establishes a
maximum eighteen month period for an organization's initial
determination as an eligible provider.
The Department heard concern that some traditional providers of
training under previous workforce programs, such as community-based
organizations, would face difficulties in participating in this system.
The regulations clarify that such organizations have the opportunity to
deliver training funded under WIA, provided 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 set of providers, including CBO's, while maintaining the
quality and integrity of training services.
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 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. The
Department assumes 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, the
Department also recognizes 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
[[Page 18674]]
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.
A substantial number of parties expressed views on the priority
issue. Many believed that the Department should not write any
regulations that would, in effect, establish a nationwide priority.
Some believed that the Department should not write any regulations at
all on this section of the statute. However, the Department believes
that the interpretation of this requirement is of such importance that
there must be regulations. This section reiterates 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. Section 663.610 clarifies that the statutory priority only
applies to adult funds for intensive and training services, and not to
dislocated worker funds.
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.
Subpart G--On-the-Job Training and Customized Training
1. 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. The Department received input advocating
OJT regulations which do not restrict the duration of OJT and which
permit eligible employed workers to also receive this training. Unlike
JTPA, OJT is not limited to six months. However, as specified in WIA
section 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.
Some parties called for minimal regulations in this area; however,
there were a few who suggested the need for information regarding
documentation requirements to avoid audit exceptions. Section 663.710
provides that employers are not required to document the extraordinary
costs associated with providing OJT, and no further documentation
requirements are established. Instead, program operators should put
emphasis on the development and/or selection of OJT assignments that
meet the identified needs of the participants.
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 the requirements governing their disbursement. 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.
2. Needs-Related Payments: There were a number of issues regarding
the eligibility requirements for dislocated workers to receive needs-
related payments that came to our attention, including the concern that
training enrollment requirements restrict the numbers of individuals
eligible to receive this income support which they need to participate
in training. 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, many of the concerns raised can be resolved through the
use of early intervention strategies. The Department has decided to
issue only limited regulations on needs-related payments eligibility at
Sec. 663.815 through Sec. 663.840.
Part 664--Youth Activities Under Title I
Introduction
The youth regulations attempt to reflect the intent of the
legislation by moving away from one-time, short-term interventions and
moving to a systematic approach that offers youth a broad range of
coordinated services. Such offerings include opportunities for
assistance in both academic and occupational learning; developing
leadership skills; and preparing for further education, additional
training, and eventual employment. Rather than supporting separate,
categorical programs, the youth regulations 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.
Legislation creating the youth council, the local entity
responsible for recommending and coordinating youth policies and
programs, intends that the youth council be a catalyst for such broad
change. The regulations support that legislative intent.
Flexibility for local program operators in conducting youth
programs is key to the legislation and these regulations. The
Department encourages local decision making in terms of policy, youth
program design within the statutory framework, and determining
appropriate program offerings for each individual youth. It is the
Department's expectation that these offerings will provide needed
guidance for youth that is balanced with appropriate
[[Page 18675]]
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
1. This subpart explains the purpose of youth councils. 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 such 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. Working with the youth council,
the Local Board has responsibility for oversight of youth programs. It
may be advantageous for Local Boards to delegate responsibility for
oversight of youth programs to youth councils which have expertise in
youth issues, as is permitted by Sec. 664.110.
Subpart B--Eligibility for Youth Services
1. Definition of Sixth Eligibility Barrier: 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.'' The regulation
at Sec. 664.210 envisions that Local Boards will define this term,
however, if State policy is set regarding this provision, the policy
must be described in the State Plan.
2. Registering Youth Participants: Section 664.215 provides that
all youth participants be registered by collecting information for
supporting eligibility determinations, as well as EEO data. The EEO
data must be collected on individuals when any assessment or
discretionary decision regarding an individual is made. Such
assessments include decisions regarding service or program eligibility,
either positive or negative, and decisions made on the part of any
workforce investment system employee which lead to a targeting of
services for the individual. The Department will issue further guidance
regarding this data collection requirement.
3. Non-Income Eligible Youth: 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 income criteria for eligible youth,
provided that they meet one or more of the criteria specified in
section 129(c)(5) of the Act and the regulations at Sec. 664.220. Local
Boards may define the term ``serious barriers to employment'' and
describe it in the Local Plan.
4. Eligibility under the National School Lunch Program: Eligibility
for free school lunches is not a substitute for income eligibility
under the Act. The Department received suggestions that program
operators be allowed to use eligibility for free lunch as a substitute
for determining eligibility under the Act, and encouraging the
Department to seek a technical amendment that would include such a
provision in the legislation. The Department recognizes the importance
of this issue, yet lacks statutory authority to change the Act's income
eligibility requirements.
5. Eligibility of Youth with Disabilities: Section 664.250 provides
that a disabled individual 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).)
Subpart C--Out of School Youth
1. Defining 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. Youth enrolled in alternative schools are not school
dropouts. The Department received a number of requests that it seek a
technical amendment that would allow youth attending alternative
schools to be included in the definition of ``dropout,'' noting 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.
While recognizing the importance of local flexibility and of serving
youth in alternative school settings, the Department lacks statutory
authority to change definitions established under the Act. Section
664.310 of the regulations clarifies this issue.
2. Funds for Summer Activities for Out-of-School Youth: The
Department received a number of inquiries asking if summer activities
are exempt from the requirement that 30 percent of youth funds be spent
on services for out-of-school youth. Transition guidance will address
how the 30% requirement applies to the Program Year 1999 JTPA summer
funds. Section 664.320 clarifies that there is no exemption from this
requirement for summer activities. There is no separate summer program
under the Act. A single allocation of youth funds is available to local
areas for year-round and summer activities. Thirty percent of the total
youth allocation must be spent on services for out-of-school youth.
This 30 percent, like the remaining 70 percent, may or may not be
proportional between summer and year-round activities, as determined by
the Local Board in consultation with the chief elected official.
Subpart D--Youth Program Design, Elements, and Parameters
1. Program Design: Features of the youth program design are
outlined in section 129(c) of the Act. While there are three program
design categories and ten program elements are required, there is
individual program design flexibility and flexibility in determining
the definition, scope, and characteristics of the elements.
Program Design Categories--Under section 129(c)(1), three
categories 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.
Linkages to Entities--Youth councils and programs are required to
establish linkages to entities that will foster the participation of
eligible youth. Suggested linkages are included in Sec. 664.400(c).
Information and Referrals--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 was included in
Sec. 664.400(d) of the regulations to emphasize the importance of
referrals as
[[Page 18676]]
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.
2. Program elements: Section 129(c)(2) of the Act lists 10 program
elements that must be generally available to youth through local
programs. The Department received requests for clarification that not
all of the 10 youth program elements must be provided to every youth
participant, and this interpretation is included in Sec. 664.410(b).
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; however, it is envisioned 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.
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.
Leadership Development--The Act states that youth programs must
provide leadership development opportunities, and gives the following
examples of such 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 outlined 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 positive social behavior training in areas such as positive
attitudinal development, self esteem building, issues of cultural
diversity, and other skills and attributes that would help youth to
lead effectively, responsibly, and by example.
Supportive Services--The Act states that youth programs must
provide 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 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.
Followup Services--The Act states that followup services will be
provided for not less than 12 months after the completion of
participation, as appropriate. 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. This
section also 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.
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. Meanwhile, 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 Center for
Employment Training, which features 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.
Work Experiences--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. No specific time period is specified. As provided in
section 129(c)(2)(D) of the Act, work experiences may be paid or
unpaid, as appropriate. Section 664.460 states 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 On-the-Job Training (OJT). While OJT
is likely not an appropriate activity for most youth under age 18, it
may be used as a service strategy for such youth based on the needs
identified in an objective assessment of an individual youth
participant. Section 664.470 provides that youth funds may be used to
pay the wages of youth in work experience. 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.
Subpart E--Concurrent Enrollment
1. Concurrent Enrollment in Youth and Adult Programs: Under the
Act, an eligible youth is an individual 14 through 21 years of age.
Adults are defined in the Act as individuals age 18 and older. The
Department received suggestions that local program operators be allowed
to decide whether youth or adult services are appropriate for
individuals aged 18 through 21 based on individual participant
assessments and service strategies. The Department encourages local
flexibility in serving both youth and adult participants, and thus
included this clarification in the regulations. 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.
2. Individual Training Accounts for Youth: Section 664.510 states
that ITA's are not an authorized use of youth funds. The ITA is the
currency of a market-based system that enables adults to select the
service providers most suited to their needs based on information about
the past performance of such providers. Under the Act, ITA's are not
authorized for youth below age 18. Providers of youth services are
competitively selected based on predetermined criteria, the judgment of
Local Boards, and recommendations of youth councils about the
providers' ability to meet the needs of youth
[[Page 18677]]
participants. Youth aged 18 through 21 can access ITA's under the adult
or dislocated worker program, if appropriate.
Subpart F--Summer Employment Opportunities
1. Summer Employment Activities: This subpart provides
clarification about summer youth employment. 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. 664.410, 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. Numerous inquiries were received about
whether the Act would allow cities and counties to continue to operate
their summer activities. Section 664.610 provides that this practice is
still allowed, and clarifies that if summer employment opportunities
are provided by entities other than the grant recipient/fiscal agent,
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.
2. Application of Performance Indicators: In terms of performance
measurement, the Department received requests for clarification on
whether all of the core indicators listed in the Act apply to the
summer program element as well as to youth activities that are longer
in duration. It is important to note that the core indicators specified
in section 136 of the Act apply to 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 summer activities, as part
of the overall youth program, are required to meet the same core
indicators of performance as the other youth activities.
Subpart G--One-Stop Career Center Services to Youth
1. The Connection between the Title I Youth Program and the One-
Stop Delivery System: This subpart explains that the chief elected
official (as the local grant recipient for the youth program), as a
required One-Stop partner, is subject to the One-Stop provisions
related to such partners described in part 662 of the regulations and
is responsible for connecting the youth program and its activities to
the One-Stop system. In addition to the provisions of part 662,
connections between the youth program and the One-Stop system may
include those that facilitate:
<bullet> The coordination of youth activities;
<bullet> Connections to the job market and employers;
<bullet> Access for eligible youth to information and services; and
<bullet> Other activities designed to achieve the purposes of the
youth program.
The Department received requests for clarification on connecting
youth program activities to the One-Stop delivery system; however, some
parties felt that the youth program, as a One-Stop partner, should not
be made to conform to the same One-Stop partner requirements as other
partners. The Rule attempts to clarify the role of the youth program in
the One-Stop center through a cross-reference to the One-Stop
regulations found in 20 CFR, part 662.
2. Universal Access to One-Stop Centers for Youth under 18: 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 Wagner-Peyser. The Department believes that the
intent of the Act 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.
Subpart H--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 regarding 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 at Secs. 664.800 to 664.830. The Department
views 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
workforce investment activities under sections 128(a) and 133(2) of
WIA.
Subpart A--General Description
This subpart provides a general description of Statewide activities
conducted with up to 15 percent reserved from youth, adult and
dislocated worker funding streams (``15 percent funds''), and up to an
additional 25 percent of dislocated worker funds reserved for Statewide
activities from annual allotments to the State.
1. 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. The Department believes 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 for expert assistance, and employers can
look for a qualified workforce.
Subpart B--Required and Allowable Statewide Workforce Investment
Activities
This subpart 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 which 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 use
of these funds is administration, subject to the five percent
administrative cost
[[Page 18678]]
limitation at 20 CFR 667.210(a)(1). This section clarifies that while
there is no specific amount for each of the seven of the eight required
activities 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. The eighth required activity, rapid
response, is discussed in subpart C.
2. Optional Activities: Section 665.210 also 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. Section
665.220 makes clear that employed (incumbent) workers served under
projects funded with these reserve funds are not required to meet the
requirements that training is needed to lead to a self-sufficient wage
applicable to employed adult or dislocated workers served with local
formula funds.
Subpart C--Rapid Response Activities
This subpart 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.
1. Section 665.300 describes what are rapid response activities and
who is responsible for providing them. Rapid response assistance
commences at the site of dislocation 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. The Department
believes 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. The Department strongly
urges 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 a dislocated worker at section 101(9)
in a way that permits formula 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) prior to layoff if employed at a facility
that has made a general announcement that it will close within 180
days.
The Department believes 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
sufficient formula funds in the State (at the State or local levels) to
adequately serve the workers being dislocated, or whether national
emergency grant funds must be requested in a timely manner so that all
services are available to the workers when they need them.
2. In response to numerous concerns regarding whether rapid
response funds may be used beyond those types of required rapid
response assistance described in the Act and Sec. 665.310, the
Department has elaborated on the authorized rapid response activities
in the regulation at Sec. 665.320. These additional activities were
recommended by experts consulted on this topic.
3. Section 665.330 addresses the linkage of rapid response
assistance and WIA title I assistance to NAFTA-Transitional Adjustment
Assistance (NAFTA-TAA). This linkage is an important feature of the
One-Stop delivery system, and a requirement under NAFTA-TAA.
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. This part of the regulations primarily
summarizes the statutory language in the Act and clarifies a few key
areas based on input the Department has received. WIA's purpose is to
provide workforce investment activities that improve the quality of the
workforce. The Department is strongly committed to a systemwide
continuous improvement approach, grounded upon proven quality
principles and practices. The regulations identify some of the major
issues where further guidance will be provided.
Subpart A--State Measures of Performance
1. Indicators: Section 666.100 identifies the 15 core indicators of
performance and the two customer satisfaction indicators that States
are required to address in title I grant applications. The 15 core
indicators represent the four core indicators that will be applied
separately for the three population categories (adult, dislocated
workers and eligible youth age 19 through 21) for a total of 12
indicators and the three youth indicators. There is one customer
satisfaction indicator for participants and one for employers. Section
666.110 clarifies that Governors may develop additional performance
indicators to be negotiated with Local Boards and that these additional
indicators must be included in the State Plan.
2. Definitions: Section 666.100(b) also explains that the
Departments of Labor and Education will issue more detailed definitions
for the title I and title II indicators after further consultation with
representatives identified in section 502(b) of WIA. The Departments
will consult further on the indicator definitions, including taking
into account factors such as the degree of difficulty and expense of
collecting data and reporting on the measures.
3. Negotiations: As noted at Sec. 666.120(a), the Department will
provide further guidance on each of these areas after additional
consultation. 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 for years one through
three of the State Plan. The Department may require States to express
levels of improvement as a percentage improvement over the previous
year's actual performance. The Department recognizes that continuous
improvement is more than incremental increases in performance and will
develop a comprehensive and rigorous approach to integrate continuous
improvement at all levels of the workforce investment system. The
Department received input that underscored this need to view continuous
improvement as a system building activity, not a compliance activity.
4. Participants Included in Measures: The Department was requested
to clarify when a customer becomes a participant for the purpose of
applying the core indicators of performance. Section 666.140 explains
that all individuals, except for those adults and dislocated workers
who receive services that are self-service or primarily informational,
must be registered and included in the core indicators of performance.
The Department will issue guidance to further specify which activities
and services require registration and which ones do not. In addition,
Sec. 666.140(b) implements the requirement that a standardized record
must be completed for registered participants.
5. Wage Record Data. Section 136(f)(2) of the Act requires States
to use quarterly wage records, consistent with State law, to measure
progress on the core indicators of performance. Section
[[Page 18679]]
666.150 clarifies that each State must describe its strategy for using
quarterly wage record data for performance measurement in the State
Plan. The State Plan must also identify the entities that may have
access to the wage record data for this purpose. In addition,
Sec. 666.150(c) defines ``quarterly wage record information'' (1) as
wages paid to an individual, (2) the individual's social security
number (or numbers if more than one), (3) the employer's name, address,
State where located, and (4) the Federal employer identification number
(when known). As requested, the Department will continue to explore the
implications and provide guidance for complying with the
confidentiality requirements at section 444 of the General Education
Act (20 U.S.C. 1232g (as added by the Family Educational Rights and
Privacy Act of 1974). Furthermore, the Department will continue to take
into account concerns about possible violations of State unemployment
compensation laws, confidentiality and privacy statutes and wage record
collection systems. The Department will issue further guidance about
the use of quarterly wage records.
Subpart B--Incentives and Sanctions for State Performance
1. Criteria: Section 666.200 restates the eligibility criteria for
States to apply for an incentive grant. Section 666.210 addresses the
use of incentive funds for one or more innovative programs consistent
with requirements of title I of WIA, title II of WIA and the Carl D.
Perkins Vocational and Applied Technology Education Act.
2. Timing: There were suggestions that the Department postpone the
incentive program until a State's second year progress report is
received. Additional time has also been requested to enable the
workforce investment system to have a year of performance information
to assist in establishing baseline levels and to learn more about using
the unemployment compensation wage records for performance measurement
and about the data and reporting systems for title II Adult Education
and Literacy programs and Carl D. Perkins programs. The Department
recognizes these concerns and is considering available options. The
regulations do not address the timing issue.
3. Awards: Section 666.230 explains that the Secretary of Labor
will consult with the Secretary of Education and issue annual
instructions listing the amounts of incentive funds available to each
eligible State and giving application instructions. The list will be
developed after annual performance reports are received and will be
based on the reported performance. It also describes the factors that
will be taken into account in determining the amount of Incentive Grant
awards.
4. 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.
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.
Subpart D--Incentives and Sanctions for Local Performance
Section 666.400(a) restates local area eligibility for State
incentive grants. Section 666.400(b) states that 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.
Part 667 Administration Provisions
Introduction
This part establishes administrative provisions which apply to WIA
programs conducted at the Federal, State and local levels. These
regulations are written to clarify what was written in the Act and to
assemble all of the administrative requirements from the various parts
of the Act and other applicable sources in order to facilitate the
administrative management of WIA programs.
Subpart A--Funding
This subpart addresses fund availability. Questions have been
raised about to reallotment and reallocation focused on procedures and
amounts. The regulation clarifies that the amount reserved for the
costs of administration is excluded from the calculation of unobligated
balances upon which reallotment/reallocation are to be based. The
regulation also emphasizes that any amount to be recaptured and the
reallotment/reallocation are to be separately determined for each of
the three funding streams. Thus, for example, it is possible that a
State may be subject to recapture of youth funds while receiving a
reallotment of adult funds. The Department will provide additional
guidance on these processes.
Subpart B--Administrative Rules, Costs and Limitations
1. Fiscal and Administrative Rules: This subpart 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. Section
667.170 sets forth the Department's authority to perform a
responsibility review of potential grant applicants. The Department may
review any information that has come to its 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.
2. Administrative Costs: Administrative Cost Limits: Section
667.210 restates the provision 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. In addition, this regulation includes
a provision which excludes from the administrative cost limitation
calculation the acquisition
[[Page 18680]]
costs of hardware and software used for tracking and monitoring
participants, and for collecting, storing and disseminating information
required as a core service under the Act.
Definition of Administrative Costs: Section 667.220 provides the
Department's definition of Administrative Costs. To comply with the
statutory requirement for consultation with the Governors in developing
this definition, the Department consulted with representatives of the
Governors and included both State and local stakeholders in the
discussion. In addition to the input received through the consultation,
the Department received suggestions related to the definition of
administrative costs in various forums and by direct communications
from a number of different sources. The key theme which emerged 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.
The Department received input regarding what to include and what to
exclude from the definition of administrative costs. There were
specific recommendations that costs of information technology and costs
associated with continuous improvement activities be excluded from the
administrative cost category. These suggestions helped the Department
as it framed the regulation which defines administrative costs.
The Department valued this consultation and carefully considered
all input and crafted its definition to incorporate this function-based
approach. The regulation enumerates those functions of State Boards,
Local Boards and boards of chief elected officials which are classified
as administrative and indicates that those costs and the costs of like
activities/functions performed by One-Stop operators are classified as
administrative costs. The regulation also includes additional cost
classification guidance to clarify areas where questions have arisen
concerning the allocation of costs between the program and
administrative categories. The regulation provides the system with the
flexibility needed to allocate costs to the program or administrative
cost category based on the purpose or nature of the activity or
function. As a result, the locus of responsibility and intended purpose
of the function, whether direct or indirect, determines the appropriate
cost category.
3. Prohibited Activities: Sections 667.260 through 270 address a
number of prohibited activities that are located in various sections of
the Act. The regulation clarifies the Department's interpretation that
the Act's prohibition on employment generating activities, economic
development and other similar activities does not apply when they are
directly related to training of eligible participants. It is not
intended that such activities must benefit individually identified
participants to be allowable, rather, such approaches as first source
hiring agreements that promise to benefit participants as a group would
suffice. The Rule includes a list of activities that may be provided as
allowable economic development or similar activities. This list is not
meant to be exclusive. There may be other activities of a similar
nature that are directly related to training for eligible individuals
that are permissible under WIA. 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. With respect to the
prohibition of WIA support of inducing relocation of a business, the
regulation provides a process for a preaward review to ensure that
funds are not spent in violation of the provision. Section 667.269
specifies where the procedures for resolution of violations of these
prohibitions, as well as the related sanctions and remedies, can be
found.
Sectarian Facilities: Section 667.266 restates the Act's
prohibition on the employment of participants in the construction,
operation, or maintenance of a facility that is used for sectarian
instruction or as a place of religious worship, and describes the Act's
limited exception to this prohibition.
4. 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.
5. Labor Protections: Section 667.272 requires that individuals
engaged in on-the-job training or employed in activities under Title I
of WIA must be paid at the same rate, including the same periodic wage
increases, as other workers who are similarly situated in similar
occupations by the same employer and who have similar training,
experience and skills. Wage rates must be in accordance with applicable
law, and must be at least equal to the rate specified in section
6(a)(1) of the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C.
206(a)(1)) or the applicable State or local minimum wage law, whichever
is higher. The determination of whether an individual is ``employed''
in a WIA activity for purposes of this provision, including
participation in paid or unpaid work experience, must be made in
accordance with the requirements of the FLSA. Questions regarding the
application of FLSA to participants in WIA activities should be
directed to the DOL, Employment Standards Administration, Wage and Hour
Division.
Section 677.274 mandates that all Federal and state health and
safety standards and state workers' compensation laws applicable to the
working conditions of similarly situated workers are equally applicable
to the working conditions of participants in programs and activities
under Title I of WIA. Paragraph (b)(2) clarifies the application state
workers' compensation laws to individuals engaged in work experience.
If a State workers' compensation law does not apply to a participant in
work experience, insurance coverage must be secured for injuries
suffered by the participant in the course of such work experience.
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. The Department
anticipates the publication of an Interim Final Rule to implement the
nondiscrimination and equal opportunity provisions of the Act prior to
July 1, 1999 (63 FR 62003, November 9, 1998). The Rule will be located
at 29 CFR part 37.
The provisions of WIA sec.188 are substantially similar to sec. 167
of JTPA, as amended. As a consequence, the Department anticipates
little difference between 29 CFR part 37 and the regulation
implementing sec. 167.
Section 667.275(a) provides that recipients must comply with the
nondiscrimination and equal opportunity provisions of the Act and its
implementing regulations. This provision is substantially similar to
that found in Sec. 627.210, the companion section of the regulations
implementing
[[Page 18681]]
the JTPA. A slight modification has been made to the language to
eliminate any possible confusion about who is covered by sec. 188. The
term recipient, as used in Sec. 671.275, has the same broad meaning as
that found in other civil rights regulations (for example, in 29 CFR
parts 31, 32, and 34), and that meaning will be carried over to 29 CFR
part 37. In the context of Sec. 667.275, a recipient is any entity that
receives funds 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. Some entities may
be identified as vendors or subrecipients, or some other term. However,
for the purpose of Sec. 667.275, these entities are considered
recipients and subject to section 188 and its implementing regulations.
Section 667.275 generally follows the language in Sec. 667.210, but
provides for the exception found in sec. 188(a)(3). This exception
allows for using funds under title I of WIA to employ participants in
maintenance of a part of a religious facility that is not primarily or
inherently devoted to sectarian instruction or religious worship, in a
case in which the organization operating the facility is part of a
program or activity providing services to participants.
Subpart C--Reporting Requirements
There were suggestions and questions related to the mechanics of
reporting. In response, Sec. 667.300 indicates that the Department will
issue instructions and formats for financial, participant and
performance reporting. We anticipate that reporting will be done
electronically. 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. 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.
Subpart D--Oversight and Monitoring
This subpart includes regulations which provide for both Federal
and State oversight responsibilities. For formula grants, the
Department's monitoring of the States will be conducted primarily at
the State level and may include a sample of subrecipients. The
regulation emphasizes the requirement that States funded under this
program develop a Statewide monitoring system. States must be able to
demonstrate that the monitoring system meets certain regulatory
requirements. One way to so demonstrate is to make a monitoring plan
available for Federal review. The regulation which specifies the
oversight roles and responsibilities of WIA grant recipients and
subrecipients reflects the statutory language of sections 183 and 184
of the Act.
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.
2. Nondiscrimination: To avoid confusion about which procedures
apply to nondiscrimination findings, the regulation specifies that
findings arising from investigations or reviews conducted under
nondiscrimination laws are to be resolved in accordance with section
188 of the Act and the applicable Department of Labor nondiscrimination
regulations. While 29 CFR part 34 is currently in effect, the
Department will issue a new 29 CFR part 37 to specifically implement
the provisions of section 188 of WIA. Therefore, States which do not
fully or partially implement WIA before July 1, 2000 will be subject to
the rules of 29 CFR, part 34 during PY 99. All States that implement
early, including those which implement under a transition plan, will be
subject to the new rules at 29 CFR, part 37, during PY 99.
Subpart F--Grievance Procedures, Complaints, and State Appeals
Processes
There were recommendations for and against the application of
grievance procedures to One-Stop partners not funded by the Department.
In response, the regulations allow such partners to file a grievance or
complaint when they are affected by the WIA system, but do not attempt
to address any grievance or complaint that might arise about their own
programs. Grievance procedures available in partners' programs are
those available under the law authorizing that program. A person who
believes that a partner may have violated WIA may use the grievance
procedure available under WIA.
1. Grievance Procedures: Section 667.600 describes those elements
required for local area, State and other direct recipient grievance
procedures. It also specifies that complaints of discrimination follow
the resolution process at sec. 188 and Department of Labor
nondiscrimination regulations. The regulation specifies the two
situations in which the Department will investigate and/or review
allegations that arise through local, State and other direct recipient
grievance procedures. In particular, as part of the State's
responsibilities, it must provide an opportunity for a timely review of
local level grievance adjudications.
2. Complaints and Appeals: Sections 667.630-650 address complaints
and reports of criminal activity, and the additional appeal processes
which a State must have for its WIA programs for nondesignation of
local areas, termination of eligibility or denial of training
providers, and testing and sanctions for use of controlled substances.
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.
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 MSFW and INA
grant selections. These rules are similar to those currently in effect
under JTPA. 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.
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 states the Department's position to exclude
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
[[Page 18682]]
of operating WIA programs, or any other local entity. Additional
information and guidance on the process of transition will be
forthcoming.
Part 668--Indian and Native American Programs
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 the section 166 regulations, the Department
attempted to represent the program from the grantees' perspectives, and
to provide an organization 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.
Need for Regulations
There are several reasons why these regulations exist separately,
and why they contain the areas regulated. The primary reason separate
regulations are drafted for the section 166 program is that it is
clearly the intent of Congress and the Administration that there be a
supplemental employment and training program under WIA solely for
Indians and Native Americans, with requirements, policies, and
procedures unique to that customer group. The current grantee community
stated a desire to have regulations which are as self-contained as
possible. Therefore, some material covered under the regulations
implementing the State workforce investment system is repeated in these
regulations, but usually not in the depth contained in part 667. Cross-
references direct the grantee to sections where greater detail is
provided.
Subject Areas Covered
The specific subject areas covered by these regulations, and cited
above, are being regulated because the language of section 166 does not
cover the detailed operation of the program. Statements of policy are
made to clearly delineate the Department's position with respect to the
section 166 program and the nature of the relationship between the
Department and its section 166 grantees. Areas such as those concerning
the designation of section 166 grantees must be regulated in order to
clarify the statutory provisions, and it is desirable to clearly define
these procedures and requirements for ease of compliance by those who
are or wish to be part of the system. The subparts in this Interim
Final Rule represent a logical sequence, from policies and purposes
through miscellaneous provisions, generally representing the reality of
program implementation as experienced by the typical grantee. This
sequence reflects grantee comments. The primary vehicle for soliciting
input on these regulations is the Native American Employment and
Training Council. Drafts of areas under consideration for regulation
were circulated to the grantee community by the Council, in their
statutorily-mandated advisory role. Input received from grantees came
either through the Council or directly to ETA's Division of Indian and
Native American Programs (DINAP), either in writing (including faxes),
orally (over the telephone), or via E-Mail. There were also discussion
sessions held at the three multi-regional meetings in Washington, DC,
Albuquerque, and Maui, as well as at the Advisory Council meeting in
November in Washington, DC. Each of these meetings generated
suggestions which were considered in crafting the present regulations.
Input was also received through individual members of the Work Group,
which is a body composed of Council members and other select grantee
program directors, and is an official Council subcommittee. All in all,
well over 50 parties submitted views on various aspects of the draft
regulations. The most significant input is synopsized below.
Areas Not Covered
Because a Final Rule will be effective for PY 2000, this Rule was
designed to address issues that affect grantees who implement in PY
1999. The Department will issue program direction and administrative
guidance to assist implementing grantees. These areas are as follows:
1. Transition to WIA: Although several sections allude to the
transition, no detailed instructions are included in this Rule. Because
this event will occur only once for each grantee, the Department
decided that the conversion from JTPA to WIA would be more
appropriately covered in administrative guidance to be completed and
distributed to grantees at a later date. This includes the closeout of
JTPA grants.
2. Public Law 102-477: A separate subpart was suggested to address
the various aspects of the demonstration under Pub. L. 102-477, The
Indian Employment, Training and Related Services Demonstration Act of
1992, including procedures for transitioning from a JTPA/WIA grantee to
a ``477 tribe.'' Because no separate regulations are authorized for the
demonstration, and participation is limited by law to Federally-
recognized tribes and Alaska Native entities, it was decided that such
a subpart would be inappropriate. However, Sec. 668.930 clearly states
that grantees who qualify may participate under Pub. L. 102-477. The
Department considers this to be an adequate reference for these
regulations.
3. Supplemental Youth Services: The Department believes that
establishing a separate subpart for youth services adequately covers
the provision of youth services for these regulations, but it
recognizes that further instruction in the creation and submission of
these youth plans will be necessary. In order to provide the
flexibility needed to adapt to these changes as they occur, the
Department believes it is appropriate at this time to provide policies
and procedures for the youth program in program guidance and policy
documents.
4. Performance Measures and Standards: While performance measures
and standards are referenced in Sec. 668.460 and Sec. 668.620, these
regulations do not specify which measures may or must be used, or how
accompanying performance standards will be derived. The development of
revised performance measures and levels for Native American employment
and training grantees has been on-going for several years under JTPA,
and will continue under WIA. This effort is considered to be on a
``separate track'' from the development of regulations, whether under
JTPA or WIA. When section 166 performance measures and standards are
finalized, they will be transmitted to the grantees in a separate
administrative issuance, and will not appear in regulations.
Subpart A--Purposes and Policies.
1. Self-determination: In Sec. 668.120, the Department clearly
commits to the principles of self-determination and sovereignty, and
names DINAP as the ``single organizational unit'' required in the Act
to administer section 166 programs. In addition to the language in the
Act, which the Department thought it appropriate to repeat by
paraphrasing, the Department has added a statement on helping customers
achieve personal and economic self-sufficiency. The Department
considers this statement to be one of the prime purposes of all
[[Page 18683]]
Federal employment and training efforts, and especially appropriate to
the Native American population.
2. Consultation: The operating principle of ``partnership'' is
embodied in these regulations at Sec. 668.130, which paraphrases
section 166 (h)(2) of the Act.
3. Definitions: These regulations do not repeat definitions covered
in the Act or in the main definitions section at Sec. 660.300. The term
``underemployed'' is defined in this section of the regulation because
it is not defined elsewhere, and the definition of ``family income'' is
specific to Indian and/or Alaska Native circumstances. The Department
has made clarifications to the definition of ``family income'' for
section 166 purposes. The regulations include a section from the Alaska
Native Claims Settlement Act (ANCSA) (43 U.S.C. 1626(c)) concerning the
treatment of income for Alaska Natives which is applicable by law to
all Federally-funded programs.
4. Applicable Regulations: To create a more ``user friendly''
document, the Department added Sec. 668.140 to the Rule, which
describes what other regulations affect upon section 166 program
operation.
Subpart B--Service Delivery Systems
1. Designation: The current JTPA designation procedures,
eligibility requirements, competition hierarchies, etc., are retained
in this Interim Final Rule for PY 1999. WIA section 166 requires that
grantees be selected on a competitive basis except where a waiver of
competition is granted due to successful performance. The requirements
for the selection of grantees through the designation process are set
forth in Sec. 668.200--Sec. 668.280. In order to be selected as an INA
grantee, an entity must have legal status as a government or agency of
a government, a private non-profit corporation or a consortium
containing one of these groups; it must have the ability to administer
federal funds as determined under Sec. 668.220; and it must meet
certain eligible population requirements. To be consistent with the
goal of the Indian Self-Determination and Education Assistance Act and
to provide Indians with the opportunity to achieve ``self-determination
essential to their social and economic well-being,'' the rule, at
Sec. 668.210, gives priority in the competitive designation process to
federally-recognized Indian tribes, Alaskan Native entities and
consortia of these entities. However, as part of the competitive
selection process, no entity may be designated as an INA grantee unless
it demonstrates that it has the ability to administer federal funds, as
defined in Sec. 668.220. The Department believes that this process is
consistent with the mandates of the Indian Self-Determination and
Education Assistance Act and with the requirement that grants,
contracts, and cooperative agreements be made on a competitive basis.
The Department is establishing a new designation threshold for PY
2000 and beyond in Sec. 668.200(b)(3), with allowances made for smaller
grantees wishing to participate in the demonstration under Pub. L. 102-
477. Also for PY 2000, the dates for submission of the Notice of Intent
and any additional required supporting documentation, contained in
Secs. 668.240 and 668 .250, are different from those for PY 1999,
primarily to allow both applicants and the Department more time to
implement the designation process, especially in the event of more than
one applicant competing for a given service area. An area of frequent
comment involved the current JTPA criteria for designation as a Native
American grantee, specifically the issues of size and the competition
hierarchy. Most of the suggestions received were from smaller
Federally-recognized tribes, either without the currently required
1,000 Indian or Native American population in their service area or
without a significant reservation land base from which to claim a
Hierarchy 1 preference. There were suggestions that the Department
abandon the numbers altogether, and instead assign a dollar threshold
which would be a better indication of grantee viability. For the PY
2000 designation and beyond, the Department has chosen $100,000 as the
minimum funding threshold. This includes any supplemental youth
services funds awarded to the grantee. In response to requests from
some smaller grantees, the Department has included in
Sec. 668.200(b)(3) a statement ``grandfathering in'' those current
grantees which do not meet the $100,000 threshold for PY 2000 and
beyond. Also in response to suggestions received from some smaller,
non-JTPA tribes wishing to participate in the demonstration under Pub.
L. 102-477, the Department made the $100,000 limit applicable to total
resources to be included in the ``477 plan.'' This will enable the
smaller Federally-recognized tribes to receive their own WIA funding
and participate in the demonstration authorized by P.L. 102-477, if
their total employment and training funds to be included in the plan
equal or exceed that dollar threshold. There were also suggestions that
the Department attempt to accommodate Congressionally mandated service
areas, States and counties identified in statute as comprising the
service area of a specific tribe into the hierarchy system, which these
draft regulations attempt to do. The Department will continue to review
this issue as it develops the Final Rule.
2. Geographic Coverage: To address problems which have arisen under
JTPA, Sec. 668.294 states the Department's position on covering
specific geographic areas for which there are no viable entities
willing or able to provide services under section 166 of WIA. The
Department will make every effort to fund suitable grantees for each
area. If a suitable grantee cannot be found, the funds for that service
area will be used for technical assistance or distributed among other
grantees.
3. Funding Formula(s): As under JTPA, the WIA rule allocates funds
for Native American grantees by geographic service area, based upon the
funding formula set forth in Sec. 668.300. The Department has chosen to
allocate funds by formula rather than base grant amounts upon the
levels proposed in grant applications for several reasons. First, other
than a requirement that the Department consult with the grantee
community on ``developing a funding distribution plan,'' the Act is
silent as to how funds are to be distributed among selected grantees.
The legislative history does not indicate any Congressional intent to
deviate from the Department's traditional method of funding by a
geographic allocation formula. The Department believes that experience
in funding by formula under JTPA for over 15 years has demonstrated
success in ensuring sufficient funds for a high level of service to
customers. Once a grantee demonstrates that it meets the minimum
threshold for designation, including the ability to administer funds
under Sec. 668.220, the funding formula ensures that sufficient funds
are available so that selected grantees can operate a viable,
successful program. For these reasons, it is the Department's view that
the proposed allocation formula of Sec. 668.300 is consistent with the
requirement that grants, contracts and cooperative agreements be made
on a competitive basis. The current JTPA section 401 funding formula is
retained in this Rule, pending further discussions on the subject
during the formulation of the Final Rule during 1999. Also included in
Sec. 668.296 are the hold-harmless provisions, carry-in limitations,
and the 1% set-aside for technical assistance and training (TAT)
contained in the current JTPA regulations or policy.
[[Page 18684]]
Subpart C--Services to Customers
1. Services to Customers: The same basic JTPA section 401
eligibility criteria are being retained for the section 166 program.
The allowable services are taken straight from the Act, and listed in
this subpart for clarity and to further promote the ``user friendly''
approach of the regulations. Indian-specific activities, such as
support of the Tribal Employment Rights Office (TERO), have been
included, as well as the allowability of sequential enrollment or
enrollment of participants in more than one WIA program.
2. Restrictions on Allowable Activities: Because of the importance
of some of these restrictions, such as the prohibition on using WIA
funds for economic development in the section 166 program, the
Department included Sec. 668.350 in these regulations rather than
merely referring to similar sections in the State workforce investment
system regulations. Section 668.350 lists these restrictions, primarily
from WIA sections 181 and 195.
3. Interaction with One-Stop Centers: Section 668.360 recognizes
that section 166 grantees are ``mandatory partners,'' in the One-Stop
delivery system, and reiterates the statutory requirement for a
memorandum of understanding (MOU) between the section 166 grantee and
the Local Board. This section outlines the provisions the MOU must
contain, and the circumstances under which the Local Board may engage
the section 166 grantee in these negotiations. Because of the remote
location(s) of some section 166 grantees (their distance from the
nearest One-Stop center) and other logistical problems, especially for
tribes serving rural areas, the Department recognizes that successfully
executing a meaningful MOU with the Local Board may not always be
possible. Thus, Sec. 668.910 allows Federally-recognized tribes to
request a waiver of section 121 requirements with the agreement of the
Local Board. Although financial contribution to the operation of a One-
Stop center is a matter of local negotiation, the funding and audit
issues involving the restrictions on the uses of section 166 funds must
be taken into consideration. The primary argument against having to
financially support the One-Stop centers is that the State is already
funded to serve Native Americans, at least for core services, and all
requests for intensive and training services would probably be referred
to the Native American grantee. The INA Rules specify the INA grantee's
responsibility as a One-Stop partner. This part does not relieve the
One-Stop system of its responsibility to serve Native Americans in the
same manner as it serves all other individuals or specialized groups.
Some parties also expressed concern that any funds provided to another
agency which could not be directly tied to the provision of services to
Native Americans could result in a disallowed cost to the INA grantee.
In response to suggestions, the Department took a closer look at
section 121 of WIA and attempted to write regulations in such a way
that interaction with One-Stop systems would adhere to statutory
requirements, but not dictate the exact nature of section 166 grantee
interaction with the One-Stop system. Additional questions which were
raised concerning the limitation on section 166 funds, that they only
be used for the benefit of Native Americans. Questions dealt with
financial support of a One-Stop center, and how this prohibition would
be documented for audit purposes. Section 668.340 clearly states that
no expenditures of section 166 funds may be made for individuals not
eligible under section 166. Part 662 contains specific language that
addresses One-Stop arrangements, including a similar provision
providing that a partner's resources may only be used to provide
services to individuals eligible under the partner's authorizing
statute. This section also requires the grantees to describe the
process for negotiating the MOU with their Local Board in their Two
Year Plan.
4. Payments to Participants: Section 668.370 contains the same
requirements about minimum wage coverage, the payment of allowances,
the applicability of labor standards, and limitations on participant
wages that were in effect under JTPA in 20 CFR part 632. The Department
considers it important, for ease of reference by the grantees, to
clearly state these requirements in regulations rather than cross-
referencing the Act or other statutes. The Department also included a
statement in Sec. 668.370 specifically allowing the payment of
incentive bonus payments to participants who meet or exceed established
goals, to avoid audit questions which have arisen under JTPA section
401 activities.
5. Grantee Capacity Building: Section 668.380 reflects the
Department's intention to provide section 166 grantees with technical
assistance and training as required by section 166(h)(5) of the Act.
Subpart D--Supplemental Youth Services
It is significant that this is a separate subpart. Although this
program is only available to certain types of entities, and eligible
grantees will cover the provision of supplemental youth services in
their Two Year Plan rather than in a separate document, the Department
received suggestions for a separate youth subpart for clarity's sake.
The Department agrees that supplemental youth services warrants a
separate subpart in this Rule. In part 668, the youth requirements are
covered in subpart D, with a minimum of definition beyond that provided
in the Act, except for the funding formula (Sec. 668.440) and the
provisions making the hold harmless factor, the reallocation
provisions, and provisions concerning the use of funds not claimed by
grantees applicable to youth funds as well. Section 668.460 covers the
applicability of performance measures and standards to the supplemental
youth program. A number of suggestions received from ``urban'' grantees
indicated their desire to receive supplemental youth services funding.
However, after further review, the Department decided that the language
of the statute did indeed limit recipients of these funds to those
entities serving Indian/Alaska Native/Native Hawaiian youth residing on
or near a reservation. The regulations clarify additional details
concerning the provision of supplemental youth services, such as the
requirement that most participants be low-income individuals, that the
definition of ``eligible youth'' applies to section 166 programs, that
performance measures and standards are applicable to the supplemental
youth programs, and that the funding provisions for the adult program
(reallocation, carry-in limits, use of funds, etc.) also apply to youth
programs.
Subpart E--Services to Communities
Not contained in the current JTPA section 401 regulations, this
subpart, addressing services to communities, was included for purposes
of clarification, following the recommendations of the Work Group. The
regulations discuss the kinds of services that can be provided to
communities and employers, such as customized training and child care.
Many of these services, especially to communities at large, have been
provided under JTPA for some time, but have not been discussed
previously in regulations. Some of the provisions found here, however,
appear in 20 CFR part 632 in various places, such as the reference to
the Indian Financing Act of 1974, contained in Sec. 668.520.
[[Page 18685]]
Subpart F--Accountability for Services and Expenditures
1. Contents of Subpart: This subpart reflects one of the Act's key
reform principles of strengthened accountability, and contains sections
on various aspects of grantee ``accountability,'' including the nature
of the INA grantee's accountability to the Native American community,
to the Department, and to the individual participants. Sections covered
here include reporting, performance measures and standards, the
prevention of fraud and abuse, grievance systems, and equal access
provisions which are similar to the corresponding JTPA section 401
provisions. Several of the regulatory provisions, such as those at
Sec. 668.630(c) and (d) (gifts and nepotism), are unique to the Native
American grantee program.
2. Service Preference: There has always been a controversy in
Indian programs, dating back to JTPA and its predecessor, the
Comprehensive Employment and Training Act (CETA), concerning the
ability of a tribe to grant preference to its own tribal members at the
expense of, or to the exclusion of, other Native Americans residing in
its service area. These regulations clearly state that these
exclusionary practices are prohibited. However, in response to grantee
concerns, the regulations state that grantees may still identify target
populations to be served (for example, the disabled, Temporary
Assistance to Needy Families (TANF) recipients, substance abusers) and
have this priority approved in the Two Year Plan.
Subpart G--Planning/Funding Process
This subpart contains details about plan formulation and
submission, including the statutory requirement for a Two Year Plan for
delivering comprehensive WIA services. Also included here are the
Department's procedures for plan review and approval, and the
requirements for subsequent plan modification. These procedures are
being added to make the regulations more ``user friendly,'' and because
there are changes from the procedures used under JTPA, such as the
change from a one-year plan to a two-year plan, and the dropping of a
requirement for a separate summer plan.
Subpart H--Administrative Requirements
1. Contents of Subpart: This subpart describes in detail the
systems each grantee must have in place to properly administer a
section 166 program under WIA. It also addresses cost allocation and
allowability, audit requirements, applicable cost principles, cash
management requirements, and the treatment of program income. Much of
this subpart consists of cross-references to the appropriate general
administrative sections of 20 CFR part 667, or to other Departmental or
Federal regulations.
2. Administrative Cost Limits: By far the majority of suggestions
received involved the issue of the administrative cost limit under WIA.
Section 166 of the Act is silent on the level of administrative costs
permitted. Many felt that the 10 percent (10%) limit on local workforce
investment areas in title I would place a tremendous strain on even the
largest programs, while making it impossible for smaller grantees to
operate at all (97 out of 183 JTPA section 401 grantees receive less
than $100,000 annually). The grantees who submitted suggestions all
wanted at least the 20% administrative cost limit currently in place
for JTPA, section 401, and the INA Welfare-to-Work (INA WtW) programs.
To allay concerns over adjusting to new rates, Sec. 667.210(b) provides
that the INA administrative cost ceiling is to be established in the
grant agreement. Any adjustments to the 10 percent limit will be
addressed in the grant agreement, and will be based on the particular
needs of the grantee.
Subpart I--Miscellaneous Program Provisions
Covered in this subpart are the regulatory and statutory waiver
provisions under section 166(h)(3) of WIA, which were not available
under JTPA. This includes the requirements for documenting a waiver and
circumstances under which section 121 requirements may be waived, and
provisions which may not be waived. Also covered are the allowability
of participation in the demonstration under Pub. L. 102-477, and an
elaboration of the role of the Native American Employment and Training
Council. The latter section was added to clearly state the role of the
Council in the consultative process, and to support its activities.
Part 669--Migrant and Seasonal Farmworker Programs under Section
167
Introduction
This part provides the program and administrative requirements for
the operation of the Migrant and Seasonal Farmworker (MSFW) program,
including the MSFW Youth program under section 127(b)(1)(A)(iii). Part
669 is organized in five subparts addressing: purpose and definitions;
the MSFW program's service delivery system; MSFW customers and
available program services; performance accountability, planning and
waiver authority; and the MSFW youth program.
The MSFW program is administered nationally in the Department by
using a limited competitive process to select applicants for grant
awards. The selected grantees operate the grant programs in most States
and Puerto Rico. The vehicle for soliciting and receiving comments
during the development of the MSFW regulations is the Migrant and
Seasonal Farmworker Employment and Training Advisory Committee. At the
Committee's first meeting on November 5 and 6, 1998, two workgroups of
volunteers from the grantee community were formed to assist the
Department in developing the policies underlying these regulations. The
members met to develop an initial discussion draft and continued
providing comments by e-mail.
Subpart A--Purpose, Definitions, and Federal Administration
This subpart covers the statement of purpose at Sec. 669.100, and
provides applicable farmworker-specific definitions and Federal
administrative requirements.
1. Definitions: The definitions in this subpart are those unique to
this program. The major issues requiring definition are ``allowances,''
``capacity enhancement,'' and ``emergency assistance.'' (Other terms
are defined for clarification.)
Allowances--The MSFW program permits payments of allowances to
enable individuals to participate in classroom training. The economic
condition of most farmworkers does not permit their participation in
full-time training without on-going financial assistance. The
definition of ``allowances'' establishes when allowance payments are
permitted and the maximum hourly rate. Grantees may use a lower rate.
Capacity Enhancement--Section 167 of WIA authorizes the Department
to provide funds for capacity enhancement as part of technical
assistance activities. The Rule provides that capacity enhancement
includes staff training for grantee staff members. The MSFW program has
a history of using discretionary funds to finance some of the costs of
grantee staff development activities. The definition authorizes the
continuation of such activities.
Emergency Assistance--Some parties expressed a need for reducing
the administrative burdens relating to providing emergency assistance
to farmworkers. These services are unique
[[Page 18686]]
for the MSFW program and address urgent needs of a short duration, such
as medical, housing or food support required by MSFWs moving along the
migrant stream. When applying for emergency assistance, farmworkers
must provide personal and family information to demonstrate
eligibility. The general program eligibility requirement of having to
produce verifying source documentation such as annual tax returns that
one would normally leave at home, frustrates grantees' attempts to
respond to urgent needs of farmworkers. To rectify this problem, the
regulation provides that when a person applies for emergency services
only, an expedited eligibility determination process may be used. The
process is expedited by exempting the grantee from requiring
documentary evidence to support the farmworker's eligibility except
regarding work authorization and compliance with Selective Service
registration requirements. The farmworker's eligibility is established
by a self-certification. This abbreviation of the application
requirement for receipt of emergency assistance is consistent with the
low unit cost of these services.
2. Federal Administration: Sections 669.120 and 669.130 provide
that the Department's administration of the MSFW program will be under
its national office, working directly with the operational grantees.
Section 669.140 restates the Department's obligation to provide
technical assistance. Sections 669.150 and 669.160 ensure consultation
with the Secretary's Migrant and Seasonal Farmworker Employment and
Training Advisory Committee. The MSFW Advisory Committee was
established in 1998 under the Federal Advisory Committee Act (FACA) for
this purpose, and it is intended that the Committee will advise the
Department on a variety of MSFW program matters. Since WIA does not
require the use of an Advisory Committee for the MSFW program, this
section establishes by regulation the FACA consultative process for the
MSFW program.
Subpart B--MSFW Program's Service Delivery System
This subpart contains provisions on the grantee selection process.
1. Eligible Entities: Section 167(b) of the Act requires that
organizations seeking to operate MSFW programs demonstrate their
familiarity with and an understanding of the target population. This
capacity is critical to the entity's ability to effectively provide the
services needed by MSFW's.
2. General Approach to Service Delivery: Grantees expressed concern
that, without regulatory clarification, some Local Boards would refuse
to recognize the MSFW grantee as a required partner in the One-Stop
delivery system established under title I of the WIA. These regulations
and those for the title I Adult and Dislocated Worker programs, clearly
state that MSFW grantees are required partners in those local areas
where grantee offices are located.
Grantees indicated that the regulations should provide for
equitable availability of all WIA services to all farmworkers entering
the One-Stop center doors. The primary service providers under Wagner-
Peyser and the title I Adult and Dislocated Worker programs have a
general responsibility to make their core, intensive and training
services available to all eligible farmworkers on a basis that is
equitable with other customer groups. The MSFW program has a specific
responsibility to supplement the level of those services by offering
farmworkers the services available under the MSFW program that are
tailored for farmworkers. Although the services available from the MSFW
program must include the general core services of the local One-Stop
centers, the MSFW program provides services developed especially for
addressing the unique needs of MSFW's.
To fulfill the required partner requirement, the MSFW grantee and
the One-Stop centers must develop the coordination necessary for the
effective delivery of One-Stop core services to farmworkers. This is to
be achieved through the agreements negotiated between the MSFW grantee
and the Local Boards. The resulting agreements, including appropriate
cost sharing arrangements, are to be described in the Memorandum of
Understanding. MSFW grantees have stressed the importance of having an
operational structure under the regulations to establish good-faith
negotiation of the MOU's. Without protections for ensuring the
integrity of the MOU negotiations, these grantees believed that their
participation at many One-Stop centers would be jeopardized. The
specific environment expected is one that ensures the MSFW grantees
have a level playing field for negotiating with the Local Boards. Both
part 662 and Sec. 669.220 make it clear that Local Boards and MSFW
grantees must enter into good faith negotiations to develop an
equitable assignment of roles, responsibilities and costs between them.
MSFW grantees have made it clear that they want to be recognized as
required One-Stop partners only where it is geographically appropriate
to their operations, stressing the importance of limiting the required
MOU's within the States to those appropriate to the MSFW grantee's
circumstances. This is due to the potential administrative burden in
many States because of the large number of Local Boards with which
MOU's would have to be negotiated. There is a clear preference for a
regulatory provision permitting the negotiation of a single, Statewide
MOU or limiting the required MOU's to those Local Boards where it is
clearly meaningful, such as with those areas in which the MSFW grantee
operates.
The regulations provide an operating structure for MOU
negotiations. Section 669.350 states the MSFW grantees' obligations for
providing the core services of the local One-Stop center to the
farmworkers it serves. A corollary requirement exists for the Local
Board under Sec. 662.410(b). Basically, the process for addressing how
respective obligations will be fulfilled is the negotiation of the MOU,
as required for all local partners in a One-Stop delivery system. The
regulation clarifies that the MOU's negotiated by the MSFW grantees
shall provide the terms of necessary financial or in-kind compensation
for services exchanged between the MSFW grantee and the Local Board.
The matter of establishing an appropriate environment for negotiating
MOU's is addressed in this section. It provides for ETA to determine
when the MSFW grantee is responsible for failed negotiation of MOU's
with Local Boards. Under the regulations for the One-Stop delivery
system, any failure to execute a MOU with a required partner must be
reported by the Local Board to the Governor, and by the Governor to the
Secretary of Labor and to any other head of a Federal agency with
responsibility for oversight of a partner's program. The regulation
limits the required MOU's to those Local Boards located in areas where
there is a grantee field office. This limitation establishes that the
MSFW grantees are not required to negotiate MOU's with Local Boards
serving geographic areas that are inappropriate for the MSFW program,
such as areas where the MSFW program will not be operating. The
Department encourages MSFW grantees to develop working relationships
through electronic or other means for an appropriate purpose such as
referral, in areas with large concentrations of MSFWS which are not
served by a grantee field office.
3. Termination: Section 669.230 provides the grounds for
terminating an MSFW grantee. The regulation provides authority for the
Grant Officer to initiate
[[Page 18687]]
termination when there is a need to protect funds and when there is a
substantial or persistent violation of requirements. It also outlines
the procedures for emergency termination.
4. Discretionary Account: Section 669.240(b) authorizes the
continuation of a discretionary account. Historically, the Department
has been authorized to reserve up to six percent of the funds
appropriated each year for the MSFW program to fund discretionary
activities. These activities support those needs of MSFWs that are not
met by the basic job training program. Such activities include grants
to support housing programs for farmworkers, and ETA-sponsored
technical assistance for grantees such as conferences, direct mini-
grants for specific grantee needs, and other technical assistance
activities. The delivery of technical assistance to grantee staff is
consistent with the provision of ``capacity enhancement,'' described
above. The funds also support the costs of the Secretary's Migrant and
Seasonal Farmworker Advisory Committee. Section 669.240(b) continues
this limited discretionary authority to use up to six percent of the
funds appropriated under section 167.
Subpart C--MSFW Program Customers and Available Program Services
This subpart describes who is eligible for services provided under
section 167 of WIA, the program responsibilities, and the nature and
scope of the program activities authorized under the Act.
1. Eligibility: Section 669.320 summarizes applicant eligibility
terms defined in section 167 (h) of the Act.
2. Customer Approach: Customer choice is a primary focus of WIA.
The regulations are necessary to ensure that farmworkers have an
opportunity to make choices about the services and training available
to them. To meet these objectives, it is necessary to provide guidance
to the MSFW grantees on serving their farmworker customers. This is
achieved by providing services through a case management approach,
which may include core, intensive, and training services, and related
assistance and supportive services (Sec. 669.330). As provided in 20
CFR part 663, prior to intensive services, a participant must receive
at least one core service, and prior to training services, a
participant must receive at least one intensive service. The
regulations provide, however, that the delivery of intensive services
(Sec. 669.370) and training services (Sec. 669.410) may be combined
under a single structure or continuum. To meet immediate needs of
farmworkers and their families, Sec. 669.360 authorizes grantees to
provide emergency assistance--for example, services such as health care
and housing assistance. This is an example of features within the MSFW
program and these regulations to address the special needs of MSFW's.
It illustrates how this MSFW program supplements through its diversity
of approaches, the types of services available to farmworkers under the
Adult and Dislocated Worker programs.
3. Intensive Services: Many farmworkers have special needs and
require additional resources that the MSFW grantees are funded to
provide. Accordingly, MSFW grantees provide intensive services, which
may include individual employment plans, and may be based on objective
assessments and periodic reviews of participant employment and training
needs. Section 669.370 indicates the kinds of intensive services that
are appropriate for MSFW's. This approach may differ from the service
delivery design of a local One-Stop center because the MSFW program is
intended to offer opportunities for MSFWs to redirect their lives by
learning the skills and knowledge required for employment in higher
skilled occupations. Usually, when farmworkers seek employment
assistance from an MSFW grantee, they are trying to abandon seasonal
farmwork (but not necessarily all agricultural employment) with its
inherent uncertainty, poverty and other hardships. Helping farmworkers
to overcome the barriers they face when seeking to attain better
employment may require the concurrent provision of intensive and
training services.
4. Objective Assessment and Individual Employment Plan: These two
case management instruments may be utilized for participants seeking
services beyond core services, and provide the means to achieve a
sustained customer focus. The description of objective assessment is
covered at Sec. 669.380. The description of objective assessment is
provided to clarify the range of resources available and to suggest
that assessment should be an ongoing process. Customer focus is
maintained through the use of an individual employment plan (IEP), a
tool to identify the intensive services, training, and support services
necessary to lead to economic self-sufficiency. The most important
aspects of the IEP are that it is jointly developed between the
customer and the service provider and that it should be continuously
relied upon to guide the participant's participation to a successful
conclusion. The IEP is a record of the participant's employment,
training, and supportive services needs, and a mutually developed
strategy for reaching the participant's goals. Regulatory guidance is
necessary to ensure that the minimum standards expected by ETA and the
grantee community, are understood and achieved in developing and
maintaining IEP's for MSFW's.
5. Training Services: In addition to the training services
authorized under section 134(d)(4)(D) and section 167(d) of the Act,
experience has shown that additional training services, such as
training in housing development assistance or workplace safety, are
occasionally required to assist farmworker customers. Section 669.410
authorizes MSFW grantees to provide such services. Section 669.420 also
regulates the minimum requirements for OJT contracts under the MSFW
program.
Subpart D--Performance Accountability, Planning and Waiver
Authority
This subpart addresses program administration, consultation with
grantees and awarding of grants.
1. Performance Standards and Measures: Section 669.500 provides
that the core performance indicators applicable to the formula programs
under title I will also apply to the MSFW program. This section also
authorizes the MSFW program to develop performance measures that are in
addition to the core indicators of performance. The levels of
performance for each indicator will take into account the
characteristics of the participants to be served and the economic
conditions in the area served by the grantee and negotiated as part of
the grantee plan approval.
2. Funding and Planning Documents: Sections 669.510 through 669.540
describe the grant planning process. To reduce administrative effort at
both the Federal and grantee levels, Sec. 668.510 requires that the
plans submitted cover a two-year (biennial) period even though funding
is available on an annual basis. This represents a change from past
requirements for single year plans and affords an opportunity for
strategic planning and continuous improvement. Section 669.520
establishes the minimum requirement for the MSFW grant plan. Other
requirements may be added by the Solicitation for Grant Application
(SGA) for any given biennial period.
3. Unilateral Modifications: Section 669.540 authorizes the
Department to unilaterally increase or reduce grant funding levels in
response to Congressional action. The section also establishes the
limitations under which grantees may unilaterally modify grant
[[Page 18688]]
plans and provide authority for bilateral modifications.
4. Cost Classification and Reporting: Section 669.550 describes
cost classification and reporting procedures and addresses compliance
with the administrative cost limitations.
5. Waivers: The general waiver authority in WIA does not apply to
the MSFW program. However, waiver authority may prove beneficial for
addressing unforseen circumstances encountered by MSFW program
grantees. The regulations at Secs. 669.560 and 669.570 provide MSFW
program grantees with limited regulatory waiver authority to waive
certain provisions of the WIA regulations.
Subpart E--The MSFW Youth Program
This subpart includes 669.600 through 669.680 which provide the
introduction to the MSFW youth program by stating its purpose and its
relationship to the MSFW program under section 167. Regulations at
Secs. 669.630 through 669.660 provide the qualifying process for
receiving a MSFW youth grant.
1. Designation of Grantees: The section 167 MSFW youth program will
be administered through grant agreements with eligible entities,
selected through a competitive process. Sections 669.630 and 668.640
describe the eligibility criteria for designation and the process by
which an entity may apply for designation as a MSFW youth program
grantee. To be designated, an organization must submit a youth program
plan in response to the Departments's Solicitation for Grant
Applications. MSFW grantees expressed concern that a separate
competition for youth grants would lead to instances where two
different MSFW grantees were operating in the same areas. To respond to
this concern, MSFW grantees operating within the same service area will
be afforded special consideration in the grant competition.
2. Allocation of Funds: Section 669.650 regulates the funding of
the MSFW youth program on a competitive basis by providing that the
allocation of funds will be based on the merits of the proposal. In
addition, the process may utilize allocation methods that promote a
geographical distribution of funds that supports a balanced funding of
both large and small scale competitive applications. The grantees also
expressed concern that a larger jurisdictions would have a competitive
advantage. To allay concerns over the potential for irregular
distributions among jurisdictions and grantees due to relative
differences in size, the regulations provide that the Department will
use a means for geographical distribution that promotes acceptance of
both large and small scale applications under the competition.
3. Grant Plans: Section 669.660 describes the planning documents
required in an applicant's response to the Department's SGA and the
applicable submission dates, respectively.
4. Eligibility: Section 669.670 establishes the eligibility
criteria for farmworker youth who wish to participate in the MSFW youth
program. They are youth age 14 through 21, who are economically
disadvantaged.
5. Allowable Activities and Services: Section 669.680 authorizes
the MSFW youth program activities. Specific activities are authorized
by references to sections of the WIA and by described youth activities.
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. The
Department's 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
1. Purpose: This subpart indicates that part 670 contains
regulatory provisions that apply to the Job Corps program, describes
the purpose of the program, and provides definitions. It also specifies
that the Job Corps Director is delegated authority to carry out the
responsibilities of the Secretary under title I, subtitle C of the Act
related to the operation of the Job Corps program, and that references
in this part referring to ``guidelines'' or ``procedures issued by the
Secretary'' mean that the Job Corps Director will issue such
guidelines. 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 for in a number of program areas in Job Corps Technical
Assistance Guides issued by the Job Corps Director.
2. Partnership: The program purpose incorporates the Act's intent
that Job Corps will operate as a national, residential program in
partnership with States and local communities. The partnership theme is
carried throughout various sections of part 670 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.
Several parties noted that the regulations provide in this subpart
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, but argued that the earlier
proposed language relating to partnership with One-Stop was not strong
enough in other statements indicating services (such as outreach/
admissions and placement) would be provided by One-Stop centers or
partners to the extent practicable. The 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-Stop, 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 section 148(e)
and section 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
[[Page 18689]]
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
This subpart describes how sites for Job Corps centers are
selected, the handling of capital improvements and new construction on
Job Corps centers, and responsibilities for facility protection and
maintenance. The requirements in this subpart are not significantly
different from the corresponding requirements in the JTPA Job Corps
regulations.
Subpart C--Funding and Selection of Service Providers
This subpart 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. 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), describes requirements to be included in center
requests for proposals to assess providers' past performance as well as
their ability to coordinate Job Corps center activities with State and
local activities (including One-Stop centers), and to provide
vocational training that reflects employment opportunities in areas
where students will seek jobs. These requirements are described in
section 147(a)(2)(B) of the Act.
Subpart D--Recruitment, Eligibility, Screening, Selection and
Assignment, and Enrollment
1. This subpart describes who is eligible for Job Corps under WIA
and provides additional factors which are 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 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, this subpart addresses the requirement of section
145(d) of the Act that students must be assigned to centers closest to
their homes, with consideration given to the special needs of
applicants or their parents or guardians when making assignments.
Subpart E--Program Activities and Center Operations
1. Program Activities: This subpart 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. Required residential support services include providing
a safe, secure environment, an ongoing counseling program, food
service, access to medical care, recreation, and leadership programs
for students. In addition, centers must account for the whereabouts,
participation, and status of students while they are enrolled in Job
Corps.
2. Behavior Management and Zero Tolerance for Violence and Drugs:
This subpart 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 Job Corps'
zero tolerance policy. The Secretary will issue procedures which
continue this practice. Section 670.540 also addresses the requirements
of section 145(a)(2) of the Act for drug testing of all students. This
subpart also contains requirements to ensure students are provided due
process in disciplinary actions. This process will include center fact-
finding and review boards, and appeal procedures.
3. Experimental, Research, and Demonstration Projects: This subpart
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
This subpart includes authorization of leave for students from
center activities, and provisions of cash allowances and 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
1. Placement Services: This subpart discusses placement services
for graduates of the Job Corps program in accordance with section 149
of the Act. The regulation focuses 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 this subpart is
substantially different from what is contained in the JTPA Job Corps
regulations to reflect the emphasis in title I, subtitle C on provision
of services for graduates. The authority provided in section 149(d) of
the Act, to allow for placement of former students (non-graduates), is
reflected in Sec. 670.710, but placement services are not required for
anyone other than graduates. The ability to provide placement services
for former students as well as for graduates will be contingent on
having the funding resources to do so. It is, therefore, likely that
the level of placement services for graduates and for former enrollees
will differ. This subpart also discusses who will provide placement
services, and the responsibilities of Job Corps placement agencies in
placing graduates in jobs.
2. Continued Services for Graduates: This subpart 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 continued
services is a new requirement, and a new level of effort for Job Corps
service providers, and will likely divert some funding resources which
have been used in the past for provision of placement services for all
students.
[[Page 18690]]
Subpart H--Community Connections
1. This subpart describes new requirements for Job Corps
representatives to serve on local youth councils, as provided for in
section 117(h) of the Act, for center business and community liaisons,
and for center industry councils. Section 670.800(d) describes the role
of center industry councils, as prescribed in section 154(b) 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 when they graduate.
Subpart I--Administrative and Management Provisions
1. Student Benefits and Protections: This subpart provides
requirements relating to Tort Claims, Federal Employees Compensation
Act (FECA) benefits for students, safety and health, and law
enforcement jurisdiction on Job Corps center property.
2. 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 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 and six 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.
3. Financial and Audit Responsibilities: This subpart also
discusses financial management responsibilities of Job Corps center
operators and other Job Corps service providers, as well as Federal
audit requirements.
4. Disclosure of Information and Resolution of Complaints: This
subpart includes requirements relating to student records and
disclosure of information about Job Corps students; and procedures for
resolution of complaints and disputes of students and other parties by
center operators and service providers.
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 the Department has not regulated on these
sections, it is 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, to assist States in making transitions from carrying out
JTPA to carrying out activities under title I of WIA.
Section 170(b) provides for a portion of the funds reserved by the
Secretary under WIA section 132(a)(2) to 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 to 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 regarding 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.
1. National Emergency Grants: Part 671 contains limited regulations
regarding 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. The Department sets a high priority on the early collection of
information regarding workers being laid off, receiving requests for
funds when there are insufficient State and local dislocated formula
funds available to meet the needs of workers being laid off--to ensure
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.
Part 652--Establishment and Functioning of State Employment
Services
Introduction
This part implements the amendments to the Wagner-Peyser Act (the
Act) made by WIA. The WIA amendments add regulations at 20 CFR part
652, subpart C and make technical changes to subpart A.
[[Page 18691]]
Subpart A--Employment Service Planning and Operations
In subpart A, the Department removes references to JTPA, and
replaces them with WIA. It also updates definitions and removes and
reserves two sections. These WIA amendments to the Act are effective
July 1, 1999.
A comprehensive reading of WIA shows that Congress intended to
ensure a central role for the Wagner-Peyser Act State agency designated
to administer funds authorized under the Act to provide job finding and
placement services to job seekers, including unemployment insurance
(UI) claimants, veterans, migrant and seasonal farm workers, disabled
individuals, and employers in the State One-Stop delivery system. The
regulations governing the operation of the basic labor exchange program
have been located at 20 CFR part 652, subpart A for many years and they
are well known to State agencies administering the Wagner-Peyser Act.
The Workforce Investment Act changes the environment in which the
existing rules are applied. It does not amend the statutory provisions
underlying the rules. The Department determined that it would not be
appropriate to add new rules resulting from amendments to the Wagner-
Peyser Act to 20 CFR part 652, subpart A, but that it is important the
new rules be linked with the existing rules. Therefore, the Department
restricted amendments to the Wagner-Peyser Act regulations at 20 CFR
part 652, subpart A to only those reference citations required by the
Workforce Investment Act. The Department will raise no issue under 20
CFR part 652 with States solely on the basis that they operate under
JTPA during PY 1999. The operations rules governing Wagner-Peyser Act
services required by WIA are reflected in part 20 CFR 652, subpart C.
Subpart C--Wagner-Peyser Act Services in a One-Stop Delivery System
Environment
Section 652, subpart C, Secs. 652.200 through 652.216, describe the
requirements for the establishment and functioning of State Wagner-
Peyser Act services in a One-Stop delivery system environment. The
State must maintain Wagner-Peyser Act funds under the authority of the
Governor as a separate funding source to ensure a statewide delivery
system of public labor exchange services. These regulations specify
that the Wagner-Peyser Act agency retains responsibility for, and
oversight of, all Wagner-Peyser Act services provided through the One-
Stop delivery system, and explain that funds allocated to States under
section 7(a) must be used to deliver Wagner-Peyser Act services through
the One-Stop delivery system. Each of the three tiers of labor exchange
service must be available: self-service, facilitated self-help service,
and staff-assisted service. Sections 652.209 and 210 strengthen the
relationship between the Wagner-Peyser Act State agency and the UI
agency by requiring that reemployment services be provided,
commensurate with available resources and in conjunction with other
One-Stop partners, to those UI claimants who are required under any
Federal or State UI law to receive the services as a condition of
receiving unemployment benefits. The regulations reflect the
Department's interpretation of the Wagner-Peyser Act, affirmed in State
of Michigan v. Alexis M. Herman, (W.D. MI, Southern Div.) to require
that job finding, placement and reemployment services funded under the
Act, including services to veterans, be delivered by public merit-staff
employees.
The Department is issuing these regulations after carefully
considering and reacting to input received from the public. The
preponderance of input focused on two themes: the relationship between
the Wagner-Peyser Act State Agency and the One-Stop delivery system
centers, and the preservation of the merit system for public employees.
A range of suggestions were received regarding the relationship
between Wagner-Peyser Act services and the One-Stop delivery system.
These regulations emphasize the State Agency's role as a One-Stop
partner in delivering services seamlessly to job seekers and employers
as a part of the One-Stop delivery system. State agencies have
flexibility to deliver labor exchange services appropriate to local
needs in accordance with a Memorandum of Understanding entered into
with the local workforce investment board.
Some parties responding to merit-staff issues expressed concern
that merit-staff employees might potentially come under the direction
of an individual who is employed by a different agency or entity. In
response to this concern, the Department has written the regulations at
Sec. 652.215 and Sec. 652.216 to emphasize the retention of merit
system protections for public employees, and limit the One-Stop
operator to providing guidance to employees funded under the Wagner-
Peyser Act in accordance with an agreed-upon MOU.
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). ETA has assessed the potential
impact of this Interim 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, the Agency certifies that the Interim Final
Rule, as promulgated, will not have a significant impact on a
substantial number of small entities.
The WIA Interim 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
such 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, the Department does not
foresee an adverse impact on small governmental entities. Nevertheless,
the Department has 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.
The Department 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 12 town hall
meetings spanning the nation in ten locations,
[[Page 18692]]
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, ETA broadly disseminated its
developing policies through the publication of a White Paper, among
other documents, which were available on the Internet, published in the
Federal Register and distributed throughout the employment and training
community.
The Interim 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 Sec. 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 Secs. 661.410 and 661.430.
The Department has taken steps to further ameliorate any potential
burdens through Sec. 667.210 of the Interim 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 cost is lower than the existing JTPA
limit, States and localities were also extensively consulted regarding
the regulatory definition of these administrative costs to ensure that
this cost category is defined as flexibly as possible. The Rule
requires the reporting of costs in only two categories--program and
administrative--and excludes certain information technology costs from
the administrative cost category.
A portion of WIA funds is available for direct grants from the
Department. ETA has 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 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. 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, the Department has concluded that the Rule
will not place undue burdens on small entities. In addition, under to
the Small Business Regulatory Fairness Act (SBREFA) (5 U.S.C. Chapter
8), the Department has determined that this Interim Final Rule is not a
``major rule,'' as defined in 5 U.S.C. 804(2). The Department certifies
that this Interim 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
Pursuant to Executive Order 12866, the Department has evaluated
this Interim Final Rule and has 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 within 180 days
of enactment. Within this limited time frame, the Department has 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. The Department has
determined the Interim Final Rule will not have an adverse effect in a
material way on the nation's economy.
The Department has developed the Interim Final Rule in close
consultation with the Department of Education, and with other
interested Federal agencies. Based on that consultation, the Department
has determined that this Interim Final Rule will not create a serious
inconsistency or otherwise interfere with any action taken or planned
by another Federal Agency.
This Interim Final Rule implements the Workforce Investment Act,
which is the only major reform of the nation's job training and
employment system in over 15 years. Consequently, this Interim Final
Rule raises novel policy issues. Therefore, the Department finds it to
be 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 Interim 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.
The Department has determined that the WIA Interim 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, the Department has 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. Effective Date and Absence of Notice and Comment
The Department has 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 constitutes good cause
for waiving notice and comment proceedings. Furthermore, WIA became
effective upon the date of enactment, August 7, 1998. It is critical
that the Department quickly issue regulations to assist States which
wish to begin operating under WIA as early as possible. Congress also
recognized this urgency in sec. 506(c) of the Act, by specifically
authorizing the Department to issue an Interim Final Rule. Accordingly,
the Department finds that the issuance of a Proposed Rule, rather than
an Interim Final Rule, would be contrary to the public interest. This
Interim Final Rule will become effective on May 17, 1999. The
Department is committed to meeting the statutory deadline to issue a
Final Rule by December 31, 1999. This Interim Final Rule sets a comment
period to elicit any concerns raised by the rule for
[[Page 18693]]
consideration in the development of the Final Rule. The Department has
provided a comment period of 90 days to provide a significant period
for public input into any revisions to parts 652 and 660 through 671
for the Final Rule.
VII. 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
Grant programs, labor, employment, job training programs.
Signed at Washington, DC, this 31st day of March 1999.
Alexis M. Herman,
Secretary of Labor.
Raymond L. Bramucci,
Assistant Secretary of Labor, Employment and Training Administration.
For the reason stated in the preamble, 20 CFR Ch. V is amended as
follows:
1. Parts 660 through 671 are added and Part 652 is amended to read
as follows:
PART 660--INTRODUCTION TO THE REGULATIONS FOR WORKFORCE INVESTMENT
SYSTEMS UNDER TITLE I OF THE WORKFORCE INVESTMENT ACT
Sec.
Sec. 660.100 What is the purpose of title I of the Workforce
Investment Act of 1998?
Sec. 660.200 What do the regulations for workforce investment
systems under title I of the Workforce Investment Act cover?
Sec. 660.300 What definitions apply to the regulations for
workforce investment systems under title 1 of WIA?
Authority: Sec. 506(c), Pub. L. 105-220; 20 USC 9276(c).
Sec. 660.100 What is the purpose of title I of the Workforce
Investment Act of 1998?
The purpose of title I of the Workforce Investment Act of 1998
(hereafter referred to as WIA) is to provide workforce investment
activities that increase the employment, retention and earnings of
participants, and increase occupational skill attainment by
participants, which will improve the quality of the workforce, reduce
welfare dependency, and enhance the productivity and competitiveness of
the Nation's economy. These goals are achieved through the workforce
investment system. (WIA sec. 106.)
Sec. 660.200 What do the regulations for workforce investment systems
under title I of the Workforce Investment Act cover?
The regulations found in 20 CFR parts 660--671 set forth the
regulatory requirements that are applicable to programs operated with
funds provided under title I of WIA. This part 660 describes the
purpose of that Act, explains the format of these regulations and sets
forth definitions for terms that apply to each part. Part 661 contains
regulations relating to Statewide and local governance of the workforce
investment system. Part 662 describes the One-Stop system and the roles
of One-Stop partners. Part 663 sets forth requirements applicable to
WIA title I programs serving adults and dislocated workers. Part 664
sets forth requirements applicable to WIA title I programs serving
youth. Part 665 contains regulations relating to Statewide activities.
Part 666 describes the WIA title I performance accountability system.
Part 667 sets forth the administrative requirements applicable to
programs funded under WIA title I. Parts 668 and 669 contain the
particular requirements applicable to programs serving Indians and
Native Americans and Migrant and Seasonal Farmworkers, respectively.
Parts 670 and 671 describe the particular requirements applicable to
the Job Corps and other national programs, respectively.
Sec. 660.300 What definitions apply to the regulations for workforce
investment systems under title I of WIA?
In addition to the definitions set forth at WIA sec. 101, the
following definitions apply to the regulations set forth in 20 CFR
parts 660--671:
Department or DOL means the U.S. Department of Labor, including its
agencies and organizational units.
Designated region means a combination of local areas that are
partly or completely in a single labor market area, economic
development region, or other appropriate contiguous subarea of a State,
that is designated by the State under WIA section 116(c), or a similar
interstate region that is designated by two or more States under WIA
section 116(c)(4).
Employment and training activity means a workforce investment
activity that is carried out for an adult or dislocated worker.
EEO data means data on race and ethnicity, age, sex, and disability
required by regulations implementing sec. 188 of WIA governing
nondiscrimination.
ETA means the Employment and Training Administration of the U.S.
Department of Labor.
Grant means an award of WIA financial assistance by the U.S.
Department of Labor to an eligible WIA recipient.
Grantee means the direct recipient of grant funds from the
Department of Labor. A grantee may also be referred to as a recipient.
Literacy means an individual's ability to read, write, and speak in
English, and to compute, and solve problems, at levels of proficiency
necessary to function on the job, in the family of the individual, and
in society.
Local Board means a local workforce investment board established
under WIA sec. 117, to set policy for the local workforce investment
system.
Outlying area means the United States Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, the
Republic of the Marshall Islands, the Federated States of Micronesia,
and the Republic of Palau.
Participant means an individual who has registered under 20 CFR
663.105 or 20 CFR 664.215 and has been determined to be eligible to
participate in and who is receiving services (except for follow up
services) under a program authorized by WIA title I. Participation
commences on the first day, following determination of eligibility, on
which the individual begins receiving core, intensive, training or
other services provided under WIA title I.
Recipient means an entity to which a WIA grant is awarded directly
from the Department of Labor to carry out a program under title I of
WIA. The State is the recipient of funds awarded under WIA secs.
127(b)(1)(C)(i)(II), 132(b)(1)(B) and 132(b)(2)(B).
Register means the process for collecting information to determine
an individual's eligibility for services under WIA title I. Individuals
may be registered in a variety ways, as described in 20 CFR 663.105 and
20 CFR 664.215.
Secretary means the Secretary of the U.S. Department of Labor.
Self certification means an individual's signed attestation that
the information he/she submits to demonstrate eligibility for a program
under title I of WIA is true and accurate.
State Board means a State workforce investment board established
under WIA sec. 111.
State means each of the several States of the United States, the
District of Columbia and the Commonwealth of Puerto Rico. The term
``State'' does not include outlying areas.
Subrecipient means an entity to which a subgrant is awarded and
which is accountable to the recipient (or higher tier subrecipient) for
the use of the funds provided.
Vendor means an entity responsible for providing generally required
goods or services to be used in the WIA
[[Page 18694]]
program. These goods or services may be for the recipient's or
subrecipient's own use or for the use of participants in the program.
Wagner-Peyser Act means the Act of June 6, 1933, as amended,
codified at 29 U.S.C. 49 et seq.
Workforce investment activities mean the array of activities
permitted under title I of WIA, which include employment and training
activities for adults and dislocated workers, as described in WIA
section 134, and youth activities, as described in WIA section 129.
Youth activity means a workforce investment activity that is
carried out for youth.
PART 661--STATEWIDE AND LOCAL GOVERNANCE OF THE WORKFORCE
INVESTMENT SYSTEM UNDER TITLE I OF THE WORKFORCE INVESTMENT ACT
Subpart A--General Governance Provisions
Sec. 661.100 What is the workforce investment system?
Sec. 661.110 What is the role of the Department of Labor as the
Federal governmental partner in the governance of the workforce
investment system?
Sec. 661.120 What are the roles of the local and State governmental
partner in the governance of the workforce investment system?
Subpart B--State Governance Provisions
Sec. 661.200 What is the State Workforce Investment Board?
Sec. 661.205 What is the role of the State Board?
Sec. 661.210 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Investment Board?
Sec. 661.220 What are the requirements for the submission of the
State workforce investment plan?
Sec. 661.230 What are the requirements for modification of the
State workforce investment plan?
Sec. 661.240 How do the unified planning requirements apply to the
five-year strategic WIA and Wagner-Peyser plan and to other
Department of Labor plans?
Sec. 661.250 What are the requirements for designation of local
workforce investment areas?
Sec. 661.260 What are the requirements for automatic designation of
workforce investment areas relating to units of local government
with a population of 500,000 or more?
Sec. 661.270 What are the requirements for temporary and subsequent
designation of workforce investment areas relating to areas that had
been designated as service delivery areas under JTPA?
Sec. 661.280 What right does an entity have to appeal the
Governor's decision rejecting a request for designation as a
workforce investment area?
Sec. 661.290 Under what circumstances may States require Local
Boards to take part in regional planning activities?
Subpart C--Local Governance Provisions
Sec. 661.300 What is the Local Workforce Investment Board?
Sec. 661.305 What is the role of the Local Workforce Investment
Board?
Sec. 661.310 Under what limited conditions may a Local Board
directly be a provider of core services, intensive services, or
training services, or act as a One-Stop Operator?
Sec. 661.315 Who are the required members of the Local Workforce
Investment Boards?
Sec. 661.320 Who must chair a Local Board?
Sec. 661.325 What criteria will be used to establish membership of
the Local Board?
Sec. 661.330 Under what circumstances may the State use an
alternative entity as the local workforce investment board?
Sec. 661.335 What is a youth council, and what is its relationship
to the Local Board?
Sec. 661.340 What are the responsibilities of the youth council?
Sec. 661.345 What are the requirements for the submission of the
local workforce investment plan?
Sec. 661.350 What are the contents of the local workforce
investment plan?
Sec. 661.355 When must a local plan be modified?
Subpart D--Waivers and Work-Flex
Sec. 661.400 What is the purpose of the general statutory and
regulatory waiver authority provided at section 189(i)(4) of the
Workforce Investment Act?
Sec. 661.410 What provisions of WIA and the Wagner-Peyser Act may
be waived, and what provisions may not be waived?
Sec. 661.420 Under what conditions may a Governor request and the
Secretary approve a general waiver under section 189(i)(4)?
Sec. 661.430 Under what conditions may the Governor submit a
workforce flexibility plan?
Sec. 661.440 What limitations apply to the State's Workforce
Flexibility Plan authority under WIA?
Authority: Sec. 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Subpart A--General Governance Provisions
Sec. 661.100 What is the workforce investment system?
Under title I of WIA, the workforce investment system provides the
framework for delivery of workforce investment activities at the State
and local levels to individuals who need those services, including job
seekers, dislocated workers, youth, incumbent workers, new entrants to
the workforce, veterans, persons with disabilities, and employers. Each
State's Governor is required, in accordance with the requirements of
this Part, to establish a State Board; to designate local workforce
investment areas; and to oversee the creation of Local Boards and One-
Stop service delivery systems in the State.
Sec. 661.110 What is the role of the Department of Labor as the
Federal governmental partner in the governance of the workforce
investment system?
(a) Successful governance of the workforce investment system will
be achieved through cooperation and coordination of Federal, State and
local governments.
(b) The Department of Labor sees as one of its primary roles
providing leadership and guidance to support a system that meets the
objectives of title I of WIA, and in which State and local partners
have flexibility to design systems and deliver services in a manner
designed to best achieve the goals of WIA based on their particular
needs. These regulations provide the framework in which State and local
officials can exercise such flexibility within the confines of the
statutory requirements. Wherever possible, system features such as
design options and categories of services are not narrowly defined, and
are subject to State and local interpretation.
(c) The Secretary, in consultation with other Federal Agencies, as
appropriate, may publish guidance on interpretations of statutory and
regulatory provisions. State and local policies, interpretations,
guidelines and definitions that are consistent with interpretations
contained in such guidance will be considered to be consistent with the
Act for purposes of Sec. 661.120 of this subpart.
Sec. 661.120 What are the roles of the local and State governmental
partner in the governance of the workforce investment system?
(a) Local Boards should establish policies, interpretations,
guidelines and definitions to implement provisions of title I of WIA to
the extent that such policies, interpretations, guidelines and
definitions are not inconsistent with the Act or the regulations or
with State policies.
(b) State Boards should establish policies, interpretations,
guidelines and definitions to implement provisions of title I of WIA to
the extent that such policies, interpretations, guidelines and
definitions are not inconsistent with the Act and regulations.
[[Page 18695]]
Subpart B--State Governance Provisions
Sec. 661.200 What is the State Workforce Investment Board?
(a) The State Board is a board established by the Governor in
accordance with the requirements of WIA section 111 and this section.
(b) The membership of the State Board must meet the requirements of
WIA section 111(b). The State Board must contain two or more members
representing the categories described in WIA sections
111(b)(1)(C)(iii)-(v), and special consideration must be given to chief
executive officers of community colleges and community based
organizations in the selection of members representing the entities
identified in WIA section 111(b)(1)(C)(v).
(c) The Governor may appoint any other representatives or agency
officials, such as agency officials responsible for economic
development and juvenile justice programs in the State.
(d) Members who represent organizations, agencies or other entities
must be individuals with optimum policy making authority within the
entities they represent.
(e) A majority of members of the State Board must be
representatives of business. Members who represent business must be
individuals who are owners, chief executive officers, chief operating
officers, or other individuals with optimum policy making or hiring
authority, including members of Local Boards.
(f) The Governor must appoint the business representatives from
among individuals who are nominated by State business organizations and
business trade associations. The Governor must appoint the labor
representatives from among individuals who are nominated by State labor
federations.
(g) The Governor must select a chairperson of the State Board from
the business representatives on the board.
(h) The Governor may establish terms of appointment or other
conditions governing appointment or membership on the State Board.
(i) For the programs and activities carried out by one-stop
partners, as described in WIA section 121(b) and 20 CFR 662.210, the
State Board must include:
(1) The lead State agency officials with responsibility for such
program, or
(2) In any case in which no lead State agency official has
responsibility for such a program service, a representative in the
State with expertise relating to such program, service or activity.
(j) The State Board must conduct its business in an open manner as
required by WIA section 111(g), by making available to the public, on a
regular basis through open meetings, information about the activities
of the State Board, including information about the State Plan prior to
submission of the plan, information about membership, and on request,
minutes of formal meetings of the State Board. (WIA section 111)
Sec. 661.205 What is the role of the State Board?
The State Board must assist the Governor in the:
(a) Development of the State Plan;
(b) Development and continuous improvement of a Statewide system of
activities that are funded under subtitle B of title I of WIA, or
carried out through the One-Stop delivery system, including--
(1) Development of linkages in order to assure coordination and
nonduplication among the programs and activities carried out by One-
Stop partners, including, as necessary, addressing any impasse
situations in the development of the local memorandum of understanding;
and
(2) Review of local plans;
(c) Commenting at least once annually on the measures taken under
section 113(b)(14) of the Carl D. Perkins Vocational and Technical
Education Act;
(d) Designation of local workforce investment areas,
(e) Development of allocation formulas for the distribution of
funds for adult employment and training activities and youth activities
to local areas, as permitted under WIA sections 128(b)(3)(B) and
133(b)(3)(B);
(f) Development and continuous improvement of comprehensive State
performance measures, including State adjusted levels of performance,
to assess the effectiveness of the workforce investment activities in
the State, as required under WIA section 136(b);
(g) Preparation of the annual report to the Secretary described in
WIA section 136(d);
(h) Development of the Statewide employment statistics system
described in section 15(e) of the Wagner-Peyser Act; and
(i) Development of an application for an incentive grant under WIA
section 503. (WIA section 111(d).)
Sec. 661.210 Under what circumstances may the Governor select an
alternative entity in place of the State Workforce Investment Board?
(a) The State may use any State entity that meets the requirements
of WIA section 111(e) to perform the functions of the State Board.
(b) If the State uses an alternative entity, the State workforce
investment plan must demonstrate that the alternative entity meets all
three of the requirements of WIA section 111(e). Section 111(e)
requires that such entity:
(1) Was in existence on December 31, 1997;
(2)(i) Was established under section 122 (relating to State Job
Training Coordinating Councils) or title VII (relating to State Human
Resource Investment Councils) of the Job Training Partnership Act (29
U.S.C. 1501 et seq.), as in effect on December 31, 1997, or
(ii) Is substantially similar to the State Board described in WIA
section 111(a), (b), and (c) and Sec. 661.200; and
(3) Includes, at a minimum, two or more representatives of business
in the State and two or more representatives of labor organizations in
the State.
(c) If the alternative entity does not provide for representative
membership of each of the categories of required State Board membership
under WIA section 111(b), the State Plan must explain the manner in
which the State will ensure an ongoing role for any such group in the
workforce investment system.
(d) If the membership structure of the alternative entity is
significantly changed after December 31, 1997, the entity will no
longer be eligible to perform the functions of the State Board. In such
case, the Governor must establish a new State Board which meets all of
the criteria of WIA section 111(b). A significant change in the
membership structure does not mean the filling of a vacancy on the
alternative entity, but does include any change in the organization of
the alternative entity or in the categories of entities represented on
the alternative entity which requires a change to the alternative
entity's charter or a similar document that defines the formal
organization of the alternative entity.
(e) In 20 CFR parts 660 through 671, all references to the State
Board also apply to an alternative entity used by a State.
Sec. 661.220 What are the requirements for the submission of the State
Workforce Investment Plan?
(a) The Governor of each State must submit a State Workforce
Investment Plan (State Plan) in order to be eligible to receive funding
under title I of WIA and the Wagner-Peyser Act. The State Plan must
outline the State's five year strategy for the workforce investment
system.
[[Page 18696]]
(b) The State Plan must be submitted in accordance with planning
guidelines issued by the Secretary of Labor. The planning guidelines
set forth the information necessary to document the State's vision,
goals, strategies, policies and measures for the workforce investment
system (that were arrived at through the collaboration of the Governor,
chief elected officials, business and other parties), as well as the
information required to demonstrate compliance with WIA, and the
information detailed by WIA and these regulations and the Wagner-Peyser
Act and the Wagner-Peyser regulations at 20 CFR part 652.
(c) The State Plan must contain a description of the State's
performance accountability system, and the State performance measures
in accordance with the requirements of WIA section 136 and 20 CFR part
666.
(d) The State must provide an opportunity for public comment on and
input into the development of the State Plan prior to its submission.
The opportunity for public comment must include an opportunity for
comment by representatives of business, representatives of labor
organizations, and chief elected official(s) and must be consistent
with the requirement, at WIA section 111(g), that the State Board makes
information regarding the State Plan and other State Board activities
available to the public through regular open meetings. The State Plan
must describe the State's process and timeline for ensuring a
meaningful opportunity for public comment.
(e) The Secretary reviews completed plans and must approve all
plans within ninety days of their submission, unless the Secretary
determines in writing that:
(1) The plan is inconsistent with the provisions of title I of WIA
or these regulations. For example, a finding of inconsistency would be
made if the Secretary and the Governor have not reached agreement on
the adjusted levels of performance under WIA section 136(b)(3)(A), or
there is not an effective strategy in place to ensure development of a
fully operational One-Stop delivery system in the State; or
(2) The portion of the plan describing the detailed Wagner-Peyser
plan does not satisfy the criteria for approval of such plans as
provided in section 8(d) of the Wagner-Peyser Act or the Wagner-Peyser
regulations at 20 CFR part 652.
Sec. 661.230 What are the requirements for modification of the State
workforce investment plan?
(a) The State may submit a modification of its workforce investment
plan at any time during the five-year life of the plan.
(b) Modifications are required when:
(1) Changes in Federal or State law or policy substantially change
the assumptions upon which the plan is based.
(2) There are changes in the Statewide vision, strategies,
policies, performance indicators, the methodology used to determine
local allocation of funds, reorganizations which change the working
relationship with system employees, changes in organizational
responsibilities, changes to the membership structure of the State
Board or alternative entity and similar substantial changes to the
State's workforce investment system.
(3) The State has failed to meet performance goals, and must adjust
service strategies.
(c) Modifications are required in accordance with the Wagner-Peyser
provisions at 20 CFR 652.210.
(d) Modifications to the State Plan are subject to the same public
review and comment requirements that apply to the development of the
original State Plan.
(e) State Plan modifications will be approved by the Secretary
based on the approval standard applicable to the original State Plan
under Sec. 661.220(e).
Sec. 661.240 How do the unified planning requirements apply to the
five-year strategic WIA and Wagner-Peyser plan and to other Department
of Labor plans?
(a) A State may submit to the Secretary a unified plan for any of
the programs or activities described in WIA section 501(b)(2). This
includes the following DOL programs and activities:
(1) The five-year strategic WIA and Wagner-Peyser plan;
(2) Trade adjustment assistance activities and NAFTA--TAA;
(3) Veterans' programs under 38 U.S.C. Chapter 41;
(4) Programs authorized under State unemployment compensation laws;
(5) Welfare-to-Work (WtW) programs; and
(6) Senior Community Service Employment Programs under title V of
the Older Americans Act.
(b) For purposes of paragraph (a) of this section, a State may
submit, as part of the unified plan, any plan, application form or any
other similar document, that is required as a condition for the
approval of Federal funding under the applicable program. These plans
include such things as the WIA plan, or the WtW plan. They do not
include jointly executed funding instruments, such as grant agreements,
or Governor/Secretary Agreements or items such as corrective actions
plans.
(c) A State which submits a unified plan under paragraph (a) of
this section will not be required to submit additional planning
materials as a condition for approval to receive Federal funds.
(d) Each portion of a unified plan submitted under paragraph (a) of
this section is subject to the particular requirements of Federal law
authorizing the program. All grantees are still subject to such things
as reporting and record-keeping requirements, corrective action plan
requirements and other generally applicable requirements.
(e) A unified plan must contain the information required by WIA
section 501(c) and will be approved in accordance with the requirements
of WIA section 501(d).
Sec. 661.250 What are the requirements for designation of local
workforce investment areas?
(a) The Governor must designate local workforce investment areas in
order for the State to receive funding under title I of WIA.
(b) The Governor must take into consideration the factors described
in WIA section 116(a)(1)(B) in making designations of local areas. Such
designation must be made in consultation with the State Board, and
after consultation with chief elected officials. The Governor must also
consider comments received through the public comment process described
in the State workforce investment plan under Sec. 661.220(d).
(c) The Governor may approve a request for designation as a
workforce investment area from any unit of general local government,
including a combination of such units, if the State Board determines
that the area meets the requirements of WIA section 116(a)(1)(B) and
recommends designation. (WIA section 116.)
Sec. 661.260 What are the requirements for automatic designation of
workforce investment areas relating to units of local government with a
population of 500,000 or more?
The requirements for automatic designation relating to units of
local government with a population of 500,000 or more and to rural
concentrated employment programs are contained in WIA section
116(a)(2).
Sec. 661.270 What are the requirements for temporary and subsequent
designation of workforce investment areas relating to areas that had
been designated as service delivery areas under JTPA?
The requirements for temporary and subsequent designation relating
to areas that had been designated as service
[[Page 18697]]
delivery areas under JTPA are contained in WIA section 116(a)(3).
Sec. 661.280 What right does an entity have to appeal the Governor's
decision rejecting a request for designation as a workforce investment
area?
(a) A unit of local government (or combination of units) or a rural
concentrated employment program grant recipient (as described at WIA
section 116(a)(2)(B), which has requested but has been denied its
request for designation as a workforce investment area under
Secs. 661.260-661.270, may appeal the decision to the State Board, in
accordance with appeal procedures established in the State Plan.
(b) If a decision on the appeal is not rendered in a timely manner
or if the appeal to the State Board does not result in designation, the
entity may request review by the Secretary of Labor, under the
procedures set forth at 20 CFR 667.640(a).
(c) The Secretary may require that the area be designated as a
workforce investment area, if the Secretary determines that:
(1) The entity was not accorded procedural rights under the State
appeals process; or
(2) The area meets the automatic designation requirements at WIA
section 116(a)(2) or the temporary and subsequent designation
requirements at WIA section 116(a)(3), as appropriate.
Sec. 661.290 Under what circumstances may States require Local Boards
to take part in regional planning activities?
(a) The State may require Local Boards within a designated region
(as defined at 20 CFR 660.300) to:
(1) Participate in a regional planning process that results in
regional performance measures for workforce investment activities under
title I of WIA. Regions that meet or exceed the regional performance
measures may receive regional incentive grants;
(2) Share, where feasible, employment and other types of
information that will assist in improving the performance of all local
areas in the designated region on local performance measures; and
(3) Coordinate the provision of WIA title I services, including
supportive services such as transportation, across the boundaries of
local areas within the designated region.
(b) Two or more States may designate a labor market area, economic
development region, or other appropriate contiguous subarea of the
States as an interstate region. In such cases, the States may jointly
exercise the State's functions described in this section.
(c) Designation of intrastate regions and interstate regions and
their corresponding performance measures must be described in the
respective State Plan(s). For interstate regions, the roles of the
respective governors, State Boards and Local Boards must be described
in the respective State Plans.
(d) Unless agreed to by all affected chief elected officials and
the Governor, these regional planning activities may not substitute for
or replace the requirements applicable to each local area under other
provisions of the WIA. (WIA section 116(a).)
Subpart C--Local Governance Provisions
Sec. 661.300 What is the Local Workforce Investment Board?
(a) The Local Workforce Investment Board (Local Board) is appointed
by the chief elected official in each local area in accordance with
State criteria established under WIA section 117(b), and is certified
by the Governor every two years, in accordance with WIA section
117(c)(2).
(b) In partnership with the chief elected official(s), the Local
Board sets policy for the portion of the Statewide workforce investment
system within the local area.
(c) The Local Board and the chief elected official(s) may enter
into an agreement that describes the respective roles and
responsibilities of the parties.
(d) The Local Board, in partnership with the chief elected
official, develops the local workforce investment plan and performs the
functions described in WIA section 117(d). (WIA section 117 (d).)
(e) In the case in which a local area includes more than one unit
of general local government in accordance with WIA section 117
(c)(1)(B), the chief elected officials of such units may execute an
agreement to describe their responsibilities for carrying out the roles
and responsibilities. If, after a reasonable effort, the chief elected
officials are unable to reach agreement, the Governor may appoint the
members of the local board from individuals nominated or recommended as
specified in WIA section 117(b).
(f) In the case in which the State Plan indicates that the State
will be treated as a local area under WIA title I, the Governor may
designate the State Board to carry out any of the roles of the Local
Board.
Sec. 661.305 What is the role of the Local Workforce Investment Board?
(a) WIA section 117(d) specifies that the Local Board is
responsible for:
(1) Developing the five-year local workforce investment plan (Local
Plan) and conducting oversight of the One-Stop system, youth activities
and employment and training activities under title I of WIA, in
partnership with the chief elected official;
(2) Selecting One-Stop operators with the agreement of the chief
elected official;
(3) Selecting eligible youth service providers based on the
recommendations of the youth council, and identifying eligible
providers of adult and dislocated worker intensive services and
training services, and maintaining a list of eligible providers with
performance and cost information, as required in 20 CFR part 663,
subpart E;
(4) Developing a budget for the purpose of carrying out the duties
of the Local Board, subject to the approval of the chief elected
official;
(5) Negotiating and reaching agreement on local performance
measures with the chief elected official and the Governor;
(6) Assisting the Governor in developing the Statewide employment
statistics system under the Wagner-Peyser Act;
(7) Coordinating workforce investment activities with economic
development strategies and developing employer linkages; and
(8) Promoting private sector involvement in the Statewide workforce
investment system through effective connecting, brokering, and coaching
activities through intermediaries such as the One-Stop operator in the
local area or through other organizations, to assist employers in
meeting hiring needs.
(b) The Local Board, in cooperation with the chief elected
official, appoints a youth council as a subgroup of the Local Board and
coordinates workforce and youth plans and activities with the youth
council, in accordance with WIA sec. 117(h) and Sec. 661.335.
(c) Local Boards which are part of a State designated region for
regional planning must carry out the regional planning responsibilities
required by the State in accordance with WIA section 116(c) and
Sec. 661.290.
(d) The Local Board must conduct business in an open manner as
required by WIA section 117(e), by making available to the public, on a
regular basis through open meetings, information about the activities
of the Local Board, including information about the local plan before
submission of the plan, and about membership, the designation and
certification of One-Stop operators, and the award of grants or
contracts to eligible providers of
[[Page 18698]]
youth activities, and on request, minutes of formal meetings of the
Local Board. (WIA sec. 117.)
Sec. 661.310 Under what limited conditions may a Local Board directly
be a provider of core services, intensive services, or training
services, or act as a One-Stop Operator?
(a) A Local Board may not directly provide core services, or
intensive services, or be designated or certified as a One-Stop
operator, unless agreed to by the chief elected official and the
Governor.
(b) A Local Board is prohibited from providing training services,
unless the Governor grants a waiver in accordance with the provisions
in WIA section 117(f)(1). The waiver shall apply for not more than one
year and may be renewed for not more than one additional year.
(c) The restrictions on the provision of core, intensive, and
training services by the Local Board, and designation or certification
as One-Stop operator, also apply to staff of the Local Board. (WIA sec.
117(f)(1) and (f)(2).)
Sec. 661.315 Who are the required members of the Local Workforce
Investment Boards?
(a) The membership of Local Board must be selected in accordance
with criteria established under WIA section 117(b)(1) and must meet the
requirements of WIA section 117(b)(2). The Local Board must contain two
or more members representing the categories described in WIA section
117(b)(2)(A)(ii)-(v), and special consideration must be given to the
entities identified in WIA section 117(b)(2)(A)(ii), (iv) and (v) in
the selection of members representing those categories. The Local Board
must contain at least one member representing each One-Stop partner.
(b) The membership of Local Boards may include individuals or
representatives of other appropriate entities, including entities
representing individuals with multiple barriers to employment and other
special populations, as determined by the chief elected official.
(c) Members who represent organizations, agencies or other entities
must be individuals with optimum policy making authority within the
entities they represent.
(d) A majority of the members of the Local Board must be
representatives of business in the local area. Members representing
business must be individuals who are owners, chief executive officers,
chief operating officers, or other individuals with optimum
policymaking or hiring authority. Business representatives serving on
Local Boards may also serve on the State Board.
(e) Chief elected officials must appoint the business
representatives from among individuals who are nominated by local
business organizations and business trade associations. Chief elected
officials must appoint the labor representatives from among individuals
who are nominated by local labor federations (or, for a local area in
which no employees are represented by such organizations, other
representatives of employees). (WIA sec. 117(b).)
Sec. 661.320 Who must chair a Local Board?
The Local Board must elect a chairperson from among the business
representatives on the board. (WIA sec. 117(b)(5).)
Sec. 661.325 What criteria will be used to establish membership of the
Local Board?
The Local Board is appointed by the chief elected official(s) in
the local area in accordance with State criteria established under WIA
section 117(b), and is certified by the Governor every two years, in
accordance with WIA section 117(c)(2). The criteria for certification
must be described in the State Plan. (WIA sec. 117(c).)
Sec. 661.330 Under what circumstances may the State use an alternative
entity as the local workforce investment board?
(a) The State may use any local entity that meets the requirements
of WIA section 117(i) to perform the functions of the Local Board. WIA
section 117(i) requires that such entity:
(1) Was established to serve the local area (or the service
delivery area that most closely corresponds to the local area);
(2) Was in existence on December 31, 1997;
(3)(i) Is a Private Industry Council established under to section
102 of the Job Training Partnership Act, as in effect on December 31,
1997; or
(ii) Is substantially similar to the Local Board described in WIA
section 117 (a), (b), and (c) and (h)(1) and (2); and
(4) Includes, at a minimum, two or more representatives of business
in the local area and two or more representatives of labor
organizations nominated by local labor federations or employees in the
local area.
(b)(1) If the Governor certifies an alternative entity to perform
the functions of the Local Board; the State workforce investment plan
must demonstrate that the alternative entity meets the requirements of
WIA section 117(i), set forth in paragraph (a) of this section.
(2) If the alternative entity does not provide for representative
membership of each of the categories of required Local Board membership
under WIA section 117(b), 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.
(c) If the membership structure of an alternative entity is
significantly changed after December 31, 1997, the entity will no
longer be eligible to perform the functions of the Local Board. In such
case, the chief elected official(s) must establish a new Local Board
which meets all of the criteria of WIA section 117(a), (b), and (c) and
(h)(1) and (2). A significant change in the membership structure does
not mean the filling of a vacancy on the alternative entity, but does
include any change in the organization of the alternative entity or in
the categories of entities represented on the alternative entity that
requires a change to the alternative entity's charter or a similar
document that defines the formal organization of the alternative
entity.
(d) In these regulations, all references to the Local Board must be
deemed to also apply to an alternative entity used by a local area.
(WIA sec. 117(i).)
Sec. 661.335 What is a youth council, and what is its relationship to
the Local Board?
(a) A youth council must be established as a subgroup within each
Local Board.
(b) The membership of each youth council must include:
(1) Members of the Local Board, such as educators, employers, and
representatives of human service agencies, who have special interest or
expertise in youth policy;
(2) Members who represent service agencies, such as juvenile
justice and local law enforcement agencies;
(3) Members who represent local public housing authorities;
(4) Parents of eligible youth seeking assistance under subtitle B
of title I of WIA;
(5) Individuals, including former participants, and members who
represent organizations, that have experience relating to youth
activities; and
(6) Members who represent the Job Corps, if a Job Corps Center is
located in the local area represented by the council.
(c) Youth councils may include other individuals, who the chair of
the Local Board, in cooperation with the chief elected official,
determines to be appropriate.
[[Page 18699]]
(d) Members of the youth council who are not members of the Local
Board must be voting members of the youth council and nonvoting members
of the Local Board.
Sec. 661.340 What are the responsibilities of the youth council?
The youth council is responsible for:
(a) Coordinating youth activities in a local area;
(b) Developing portions of the local plan related to eligible
youth, as determined by the chairperson of the Local Board;
(c) Recommending eligible youth service providers in accordance
with WIA section 123, subject to the approval of the Local Board;
(d) Conducting oversight with respect to eligible providers of
youth activities in the local area, subject to the approval of the
Local Board; and
(e) Carrying out other duties, as authorized by the chairperson of
the Local Board, such as establishing linkages with educational
agencies and other youth entities.
Sec. 661.345 What are the requirements for the submission of the local
workforce investment plan?
(a) WIA section 118 requires that each Local Board, in partnership
with the appropriate chief elected officials, develops and submits a
comprehensive five-year plan to the Governor which identifies and
describes certain policies, procedures and local activities that are
carried out in the local area, and that is consistent with the State
Plan.
(b) The Local Board must provide an opportunity for public comment
on and input into the development of the local workforce investment
plan prior to its submission, and the opportunity for public comment on
the local plan must:
(1) Make copies of the proposed local plan available to the public
(through such means as public hearings and local news media);
(2) Include an opportunity for comment by members of the Local
Board and members of the public, including representatives of business
and labor organizations;
(3) Provide at least a thirty (30) day period for comment,
beginning on the date on which the proposed plan is made available,
prior to its submission to the Governor; and
(4) Be consistent with the requirement, in WIA section 117(e), that
the Local Board make information about the plan available to the public
on a regular basis through open meetings.
(c) The Local Board must submit any comments that express
disagreement with the plan to the Governor along with the plan.
Sec. 661.350 What are the contents of the local workforce investment
plan?
(a) The local workforce investment plan must meet the requirements
of WIA section 118(b). The plan must include:
(1) An identification of the workforce investment needs of
businesses, job-seekers, and workers in the local area;
(2) An identification of current and projected employment
opportunities and job skills necessary to obtain such opportunities;
(3) A description of the One-Stop delivery system to be established
or designated in the local area, including:
(i) How the Local Board will ensure continuous improvement of
eligible providers of services and ensure that such providers meet the
employment needs of local employers and participants; and
(ii) A copy of the local memorandum(s) of understanding between the
Local Board and each of the One-Stop partners concerning the operation
of the local One-Stop delivery system;
(4) A description of the local levels of performance negotiated
with the Governor and the chief elected official(s) to be used by the
Local Board for measuring the performance of the local fiscal agent
(where appropriate), eligible providers, and the local One-Stop
delivery system;
(5) A description and assessment of the type and availability of
adult and dislocated worker employment and training activities in the
local area, including a description of the local ITA system and the
procedures for ensuring that exceptions to the use of ITA's, if any,
are justified under WIA section 134(d)(4)(G)(ii) and 20 CFR 663.430;
(6) A description of how the Local Board will coordinate local
activities with Statewide rapid response activities;
(7) A description and assessment of the type and availability of
youth activities in the local area, including an identification of
successful providers of such activities;
(8) A description of the process used by the Local Board to provide
opportunity for public comment, including comment by representatives of
business and labor organizations, and input into the development of the
local plan, prior to the submission of the plan;
(9) An identification of the fiscal agent, or entity responsible
for the disbursal of grant funds;
(10) A description of the competitive process to be used to award
grants and contracts for activities carried out under this subtitle I
of WIA, including the process to be used to procure training services
that are made as exceptions to the Individual Training Account process
(WIA sec. 134(d)(4)(G)),
(11) A description of the criteria to be used by the Governor and
the Local Board, under 20 CFR 663.600, to determine whether funds
allocated to a local area for adult employment and training activities
under WIA sections 133(b)(2)(A) or (3) are limited, and the process by
which any priority will be applied by the One-Stop operator;
(12) In cases where an alternate entity functions as the Local
Board, the information required at Sec. 661.330(b), and
(13) Such other information as the Governor may require.
(b) The Governor must review completed plans and must approve all
such plans within ninety days of their submission, unless the Governor
determines in writing that:
(1) There are deficiencies identified in local workforce investment
activities carried out under this subtitle that have not been
sufficiently addressed; or
(2) The plan does not comply with title I of WIA and these
regulations, including the required consultations and public comment
provisions.
(c) In cases where the State is a single local area:
(1) The Secretary performs the roles assigned to the Governor as
they relate to local planning activities.
(2) The Secretary issues planning guidance for such States.
(3) The requirements found in WIA and in these regulations for
consultation with chief elected officials apply to the development of
State and local plans and to the development and operation of the One-
Stop delivery system.
Sec. 661.355 When must a local plan be modified?
The Governor must establish procedures governing the modification
of local plans. Situations in which modifications may be required by
the Governor include significant changes in local economic conditions,
changes in the financing available to support WIA title I and partner-
provided WIA services, changes to the Local Board structure, or a need
to revise strategies to meet performance goals.
Subpart D--Waivers and Work-Flex
Sec. 661.400 What is the purpose of the General Statutory and
Regulatory Waiver Authority provided at section 189(i)(4) of the
Workforce Investment Act?
(a) The purpose of the general statutory and regulatory waiver
authority is to provide flexibility to States and local areas and
enhance their
[[Page 18700]]
ability to improve the statewide workforce investment system.
(b) A waiver may be requested to address impediments to the
implementation of a strategic plan, including the continuous
improvement strategy, consistent with the key reform principles of WIA.
These key reform principles include:
(1) Streamlining services and information to participants through a
One-Stop delivery system;
(2) Empowering individuals to obtain needed services and
information to enhance their employment opportunities;
(3) Ensuring universal access to core employment-related services;
(4) Increasing accountability of States, localities and training
providers for performance outcomes;
(5) Establishing a stronger role for Local Boards and the private
sector;
(6) Providing increased State and local flexibility to implement
innovative and comprehensive workforce investment systems; and
(7) Improving youth programs through services which emphasize
academic and occupational learning.
Sec. 661.410 What provisions of WIA and the Wagner-Peyser Act may be
waived, and what provisions may not be waived?
(a) The Secretary may waive any of the statutory or regulatory
requirements of subtitles B and E of title I of WIA, except for
requirements relating to:
(1) Wage and labor standards;
(2) Non-displacement protections;
(3) Worker rights;
(4) Participation and protection of workers and participants;
(5) Grievance procedures and judicial review;
(6) Nondiscrimination;
(7) Allocation of funds to local areas;
(8) Eligibility of providers or participants;
(9) The establishment and functions of local areas and local
boards; and
(10) Procedures for review and approval of State and Local plans;
and
(b) The Secretary may waive any of the statutory or regulatory
requirements of sections 8 through 10 of the Wagner-Peyser Act (29
U.S.C. 49g--49i) except for requirements relating to:
(1) The provision of services to unemployment insurance claimants
and veterans; and
(2) Universal access to the basic labor exchange services without
cost to job seekers.
(c) The Secretary does not intend to waive any of the statutory or
regulatory provisions essential to the key reform principles embodied
in the Workforce Investment Act, described in Sec. 661.400, except in
extremely unusual circumstances where the provision can be demonstrated
as impeding reform. (WIA sec. 189(i).)
Sec. 661.420 Under what conditions may a Governor request, and the
Secretary approve, a general waiver of statutory or regulatory
requirements under section 189(i)(4)?
(a) A Governor may request a general waiver in consultation with
appropriate chief elected officials:
(1) By submitting a waiver plan which may accompany the State's WIA
5-year strategic Plan; or
(2) After a State's WIA Plan is approved, by directly submitting a
waiver plan.
(b) A Governor's waiver request may seek waivers for the entire
State or for one or more local areas.
(c) A Governor requesting a general waiver must submit to the
Secretary a plan to improve the Statewide workforce investment system
that:
(1) Identifies the statutory or regulatory requirements for which a
waiver is requested and the goals that the State or local area, as
appropriate, intends to achieve as a result of the waiver and how those
goals relate to the Strategic Plan goals;
(2) Describes the actions that the State or local area, as
appropriate, has undertaken to remove State or local statutory or
regulatory barriers;
(3) Describes the goals of the waiver and the expected programmatic
outcomes if the request is granted;
(4) Describes the individuals affected by the waiver; and
(5) Describes the processes used to:
(i) Monitor the progress in implementing the waiver;
(ii) Provide notice to any Local Board affected by the waiver; and
(iii) Provide any Local Board affected by the waiver an opportunity
to comment on the request.
(d) The Secretary issues a decision on a waiver request within 90
days after the receipt of the original waiver request.
(e) The Secretary will approve a waiver request if and only to the
extent that:
(1) The Secretary determines that the requirements for which a
waiver is requested impede the ability of either the State or local
area to implement the State's plan to improve the Statewide workforce
investment system;
(2) The Secretary determines that the waiver plan meets all of the
requirements of WIA section 189(i)(4) and Secs. 661.400-661.420 of this
subpart; and
(3) The State has executed a memorandum of understanding with the
Secretary requiring the State to meet, or ensure that the local area
meets, agreed-upon outcomes and to implement other appropriate measures
to ensure accountability.
(g) The Secretary will issue guidelines under which the States may
request general waivers of WIA and Wagner-Peyser requirements. (WIA
sec. 189(i).)
Sec. 661.430 Under what conditions may the Governor submit a Workforce
Flexibility Plan?
(a) A State may submit to the Secretary, and the Secretary may
approve, a workforce flexibility (work-flex) plan under which the State
is authorized to waive, in accordance with the plan:
(1) Any of the statutory or regulatory requirements under title I
of WIA applicable to local areas, if the local area requests the waiver
in a waiver application, except for:
(i) Requirements relating to the basic purposes of title I of WIA;
(ii) Wage and labor standards;
(iii) Grievance procedures and judicial review;
(iv) Nondiscrimination;
(v) Eligibility of participants;
(vi) Allocation of funds to local areas;
(vii) Establishment and functions of local areas and local boards;
(viii) Review and approval of local plans;
(ix) Worker rights, participation, and protection; and
(x) Any of the statutory provisions essential to the key reform
principles embodied in the Workforce Investment Act, described in
Sec. 661.400.
(2) Any of the statutory or regulatory requirements applicable to
the State under sec. 8 through 10 of the Wagner-Peyser Act (29 U.S.C.
49g-49i), except for requirements relating to:
(i) The provision of services to unemployment insurance claimants
and veterans; and
(ii) Universal access to basic labor exchange services without cost
to job seekers; and
(3) Any of the statutory or regulatory requirements under the Older
Americans Act of 1965 (OAA) (42 U.S.C. 3001 et seq.), applicable to
State agencies on aging with respect to activities carried out using
funds allotted under OAA section 506(a)(3) (42 U.S.C. 3056d(a)(3)),
except for requirements relating to:
(i) The basic purposes of OAA;
(ii) Wage and labor standards;
(iii) Eligibility of participants in the activities; and
(iv) Standards for agreements.
(b) A State's workforce flexibility plan may accompany the State's
five-year
[[Page 18701]]
Strategic Plan or may be submitted separately. If it is submitted
separately, the workforce flexibility plan must identify related
provisions in the State's five-year Strategic Plan.
(c) A workforce flexibility plan submitted under paragraph (a) of
this section must include descriptions of:
(1) The process by which local areas in the State may submit and
obtain State approval of applications for waivers;
(2) The statutory and regulatory requirements of title I of WIA
that are likely to be waived by the State under the workforce
flexibility plan;
(3) The statutory and regulatory requirements of sections 8 through
10 of the Wagner-Peyser Act that are proposed for waiver, if any;
(4) The statutory and regulatory requirements of the Older
Americans Act of 1965 that are proposed for waiver, if any;
(5) The outcomes to be achieved by the waivers described in
paragraphs (c) (1) to (4) of this section # including, where
appropriate, revisions to adjusted levels of performance included in
the State or local plan under title I of WIA; and
(6) The measures to be taken to ensure appropriate accountability
for Federal funds in connection with the waivers.
(d) The Secretary may approve a workforce flexibility plan for a
period of up to five years.
(e) Before submitting a workforce flexibility plan to the Secretary
for approval, the State must provide adequate notice and a reasonable
opportunity for comment on the proposed waiver requests under the
workforce flexibility plan to all interested parties and to the general
public.
(f) The Secretary will issue guidelines under which States may
request designation as a work-flex State.
Sec. 661.440 What limitations apply to the State's Workforce
Flexibility Plan authority under WIA?
(a)(1) Under work-flex waiver authority a State must not waive the
WIA, Wagner-Peyser or Older Americans Act requirements which are
excepted from the work-flex waiver authority and described in
Sec. 661.430(a).
(2) Requests to waive statutory and regulatory requirements of
title I of WIA applicable at the State level may not be granted under
work-flex waiver authority granted to a State. Such requests may only
be granted by the Secretary under the general waiver authority
described at Secs. 661.410-661.420 of this subpart.
(b) As required in Sec. 661.430(c)(5), States must address the
outcomes to result from work-flex waivers as part of its workforce
flexibility plan. Once approved, a State's work-flex designation is
conditioned on the State demonstrating it has met the agreed-upon
outcomes contained in its workforce flexibility plan.
PART 662--DESCRIPTION OF THE ONE-STOP SYSTEM UNDER TITLE I OF THE
WORKFORCE INVESTMENT ACT
Subpart A--General Description of the One-Stop Delivery System
Sec.
662.100 What is the One-Stop delivery system?
Subpart B--One-Stop Partners and the Responsibilities of Partners
662.200 Who are the required One-Stop partners?
662.210 What other entities may serve as One-Stop partners?
662.220 What entity serves as the One-Stop partner for a particular
program in the local area?
662.230 What are the responsibilities of the required One-Stop
partners?
662.240 What are a program's applicable core services?
662.250 Where and to what extent must required One-Stop partners
make core services available?
662.260 What services, in addition to the applicable core services,
are to be provided by One-Stop partners through the One-Stop
delivery system?
662.270 How are the costs of providing services through the One-
Stop delivery system and the operating costs of the system to be
funded?
662.280 Does title I require One-Stop partners to use their funds
for individuals who are not eligible for the partner's program or
for services that are not authorized under the partner's program?
Subpart C--Memorandum of Understanding for the One-Stop Delivery System
662.300 What is the Memorandum of Understanding?
662.310 Is there a single MOU for the local area or are there to be
separate MOU's between the Local Board and each partner?
Subpart D--One-Stop Operators
662.400 Who is the One-Stop operator?
662.410 How is the One-Stop operator selected?
662.420 Under what limited conditions may the Local Board be
designated or certified as the One-Stop operator?
662.430 Under what conditions may existing One-Stop delivery
systems be certified to act as the One-Stop operator?
Authority: Section 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Subpart A--General Description of One-Stop Delivery System
Sec. 662.100 What is the One-Stop delivery system?
(a) In general, the One-Stop delivery system is a system under
which entities responsible for administering separate workforce
investment, educational, and other human resource programs and funding
streams (referred to as One-Stop partners) collaborate to create a
seamless system of service delivery that will enhance access to the
programs' services and improve long-term employment outcomes for
individuals receiving assistance.
(b) Title I of WIA assigns responsibilities at the local, State and
Federal level to ensure the creation and maintenance of a One-Stop
delivery system that enhances the range and quality of workforce
development services that are accessible to individuals seeking
assistance.
(c) The system must include at least one comprehensive physical
center in each local area that must provide the core services specified
in WIA section 134(d)(2), and must provide access to other programs and
activities carried out by the One-Stop partners.
(d) While each local area must have at least one comprehensive
center (and may have additional comprehensive centers), WIA section
134(c) allows for arrangements to supplement the center. These
arrangements may include:
(1) A network of affiliated sites that can provide one or more
partners' programs, services and activities at each site;
(2) A network of One-Stop partners through which each partner
provides services that are linked, physically or technologically, to an
affiliated site that assures individuals are provided information on
the availability of core services in the local area; and
(3) Specialized centers that address specific needs, such as those
of dislocated workers.
(e) The design of the local area's One-Stop delivery system,
including the number of comprehensive centers and the supplementary
arrangements, must be described in the local plan and be consistent
with the memorandum of understanding executed with the One-Stop
partners.
Subpart B--One-Stop Partners and the Responsibilities of Partners
Sec. 662.200 Who are the required One-Stop partners?
(a) WIA section 121(b)(1) identifies the entities that are required
partners in the local One-Stop systems.
[[Page 18702]]
(b) The required partners are the entities that carry out:
(1) Programs authorized under title I of WIA, serving:
(i) Adults;
(ii) Dislocated workers;
(iii) Youth;
(iv) Job Corps;
(v) Native American programs;
(vi) Migrant and seasonal farmworker programs; and
(vii) Veterans' workforce programs; (WIA sec. 121(b)(1)(B)(i).)
(2) Programs authorized under the Wagner-Peyser Act (29 U.S.C. 49
et seq.); (WIA sec. 121(b)(1)(B)(ii).)
(3) Adult education and literacy activities authorized under title
II of WIA; (WIA sec. 121(b)(1)(B)(iii).)
(4) Vocational rehabilitation programs authorized under parts A and
B of title I of the Rehabilitation Act (29 U.S.C. 720 et seq.); (WIA
sec. 121(b)(1)(B)(iv).)
(5) Welfare-to-work programs authorized under sec. 403(a)(5) of the
Social Security Act (42 U.S.C. 603(a)(5) et seq.); (WIA sec.
121(b)(1)(B)(v).)
(6) Senior community service employment activities authorized under
title V of the Older Americans Act of 1965 (42 U.S.C. 3056 et seq.);
(WIA sec. 121(b)(1)(B)(vi).)
(7) Postsecondary vocational education activities under the Carl D.
Perkins Vocational and Applied Technology Education Act (20 U.S.C. 2301
et seq.); (WIA sec. 121(b)(1)(B)(vii).)
(8) Trade Adjustment Assistance and NAFTA Transitional Adjustment
Assistance activities authorized under chapter 2 of title II of the
Trade Act of 1974 (19 U.S.C. 2271 et seq.); (WIA sec.
121(b)(1)(B)(viii).)
(9) Activities authorized under chapter 41 of title 38, U.S.C.
(local veterans' employment representatives and disabled veterans
outreach programs); (WIA sec. 121(b)(1)(B)(ix).)
(10) Employment and training activities carried out under the
Community Services Block Grant (42 U.S.C. 9901 et seq.); (WIA sec.
121(b)(1)(B)(x).)
(11) Employment and training activities carried out by the
Department of Housing and Urban Development; (WIA sec.
121(b)(1)(B)(xi).) and
(12) Programs authorized under State unemployment compensation laws
(in accordance with applicable Federal law); (WIA sec.
121(b)(1)(B)(xii).)
Sec. 662.210 What other entities may serve as One-Stop partners?
(a) WIA provides that other entities that carry out a human
resource program, including Federal, State, or local programs and
programs in the private sector may serve as additional partners in the
One-Stop system if the Local Board and chief elected official(s)
approve the entity's participation.
(b) Additional partners may include:
(1) TANF programs authorized under part A of title IV of the Social
Security Act (42 U.S.C. 601 et seq.);
(2) Employment and training programs authorized under section
6(d)(4) of the Food Stamp Act of 1977 (7 U.S.C. 2015(d)(4));
(3) Work programs authorized under section 6(o) of the Food Stamp
Act of 1977 (7 U.S.C. 2015(o));
(4) Programs authorized under the National and Community Service
Act of 1990 (42 U.S.C. 12501 et seq.); and
(5) other appropriate programs, including programs related to
transportation and housing. (WIA section 121(b)(2).)
Sec. 662.220 What entity serves as the One-Stop partner for a
particular program in the local area?
(a) The ``entity'' that carries out the program and activities
listed in Secs. 662.200 and 662.210 of this subpart, and, therefore,
serves as the One-Stop partner is the grant recipient, administrative
entity or organization responsible for administering the funds of the
specified program in the local area. The term ``entity'' does not
include the service providers that contract with or are subrecipients
of the local administrative entity. For programs that do not include
local administrative entities, the responsible State Agency should be
the partner. Specific entities for specific programs are identified in
paragraph (b) of this section.
(b)(1) For title II of WIA, the entity that carries out the program
for the purposes of paragraph (a) of this section is the State eligible
entity. The State eligible entity may designate an eligible provider as
the ``entity'' for this purpose;
(2) For title I, Part A, of the Rehabilitation Act, the entity that
carries out the program for the purposes of paragraph (a) of this
section is the designated State agency or designated unit specified
under section 101(a)(2) that is primarily concerned with vocational
rehabilitation, or vocational and other rehabilitation, of individuals
with disabilities; and
(3) Under WIA, the national programs, including Job Corps, the WIA
Indian and Native American program, the Migrant and Seasonal
Farmworkers program, and the Veterans' Workforce Investment program,
are required One-Stop partners. Local Boards must include them in the
One-Stop delivery system where they are present in their local area. In
local areas where the national programs are not present, States and
Local Boards should take steps to ensure that customer groups served by
these programs have access to services through the One-Stop delivery
system.
Sec. 662.230 What are the responsibilities of the required One-Stop
partners?
All required partners must:
(a) Make available to participants through the One-Stop delivery
system the core services that are applicable to the partner's programs;
(WIA section 121(b)(1)(A).)
(b) Use a portion of funds made available to the partner's program,
to the extent not inconsistent with the Federal law authorizing the
partner's program, to:
(1) Create and maintain the One-Stop delivery system; and
(2) Provide core services; (WIA sec. 134(d)(1)(B).)
(c) Enter into a memorandum of understanding (MOU) with the Local
Board relating to the operation of the One-Stop system that meets the
requirements of Sec. 662.300, including a description of services, how
the cost of the identified services and operating costs of the system
will be funded, and methods for referrals (WIA sec. 121(c));
(d) Participate in the operation of the One-Stop system consistent
with the terms of the MOU and requirements of authorizing laws; (WIA
sec. 121(b)(1)(B).) and
(e) Serve as a representative on the local workforce investment
board. (WIA sec. 117(b)(2)(A)(vi).)
Sec. 662.240 What are a program's applicable core services?
(a) The core services applicable to any One-Stop partner program
are those services described in paragraph (b) of this section, that are
authorized and provided under the partner's program.
(b) The core services identified in section 134(d)(2) of the WIA
are:
(1) Determinations of whether the individuals are eligible to
receive assistance under subtitle B of title I of WIA;
(2) Outreach, intake (which may include worker profiling), and
orientation to the information and other services available through the
One-Stop delivery system;
(3) Initial assessment of skill levels, aptitudes, abilities, and
supportive service needs;
(4) Job search and placement assistance, and where appropriate,
career counseling;
(5) Provision of employment statistics information, including the
provision of
[[Page 18703]]
accurate information relating to local, regional, and national labor
market areas, including--
(i) Job vacancy listings in such labor market areas;
(ii) Information on job skills necessary to obtain the listed jobs;
and
(iii) Information relating to local occupations in demand and the
earnings and skill requirements for such occupations;
(6) Provision of program performance information and program cost
information on:
(i) Eligible providers of training services described in WIA
section 122;
(ii) Eligible providers of youth activities described in WIA
section 123;
(iii) Providers of adult education described in title II;
(iv) Providers of postsecondary vocational education activities and
vocational education activities available to school dropouts under the
Carl D. Perkins Vocational and Applied Technology Education Act (20
U.S.C. 2301 et seq.); and
(v) Providers of vocational rehabilitation program activities
described in title I of the Rehabilitation Act of 1973 (29 U.S.C. 720
et seq.);
(7) Provision of information on how the local area is performing on
the local performance measures and any additional performance
information with respect to the One-Stop delivery system in the local
area;
(8) Provision of accurate information relating to the availability
of supportive services, including, at a minimum, child care and
transportation, available in the local area, and referral to such
services, as appropriate;
(9) Provision of information regarding filing claims for
unemployment compensation;
(10) Assistance in establishing eligibility for--
(i) Welfare-to-work activities authorized under section 403(a)(5)
of the Social Security Act (42 U.S.C. 603(a)(5)) available in the local
area; and
(ii) Programs of financial aid assistance for training and
education programs that are not funded under this Act and are available
in the local area; and
(11) Followup services, including counseling regarding the
workplace, for participants in workforce investment activities
authorized under subtitle (B) of title I of WIA who are placed in
unsubsidized employment, for not less than 12 months after the first
day of the employment, as appropriate.
Sec. 662.250 Where and to what extent must required One-Stop partners
make core services available?
(a) At a minimum, the core services that are applicable to the
program of the partner under Sec. 662.220, and that are in addition to
the basic labor exchange services traditionally provided in the local
area under the Wagner-Peyser program, must be made available at the
comprehensive One-Stop center. These services must be made available to
individuals attributable to the partner's program who seek assistance
at the center. The adult and dislocated worker program partners are
required to make all of the core services listed in Sec. 662.240
available at the center in accordance with 20 CFR 663.100(b)(1).
(b) The applicable core services may be made available by the
provision of appropriate technology at the comprehensive One-Stop
center, by co-locating personnel at the center, cross-training of
staff, or through a cost reimbursement or other agreement between
service providers at the comprehensive One-Stop center and the partner,
as described in the MOU.
(c) The responsibility of the partner for the provision of core
services must be proportionate to the use of the services at the
comprehensive One-Stop center by the individuals attributable to the
partner's program. The specific method of determining each partner's
proportionate responsibility must be described in the MOU.
(d) For purposes of this part, individuals attributable to the
partner's program may include individuals who are referred through the
comprehensive One-Stop center and enrolled in the partner's program
after the receipt of core services, who have been enrolled in the
partner's program prior to receipt of the applicable core services at
the center, who meet the eligibility criteria for the partner's program
and who receive an applicable core service, or who meet an alternative
definition described in the MOU.
(e) Under the MOU, the provision of applicable core services at the
Center by the One-Stop partner may be supplemented by the provision of
such services through the networks of affiliated sites and networks of
One-Stop partners described in WIA section 134(c)(2).
Sec. 662.260 What services, in addition to the applicable core
services, are to be provided by One-Stop partners through the One-Stop
delivery system?
In addition to the provision of core services, One-Stop partners
must provide access to the other activities and programs carried out
under the partner's authorizing laws. The access to these services must
be described in the local MOU. 20 CFR part 663 describes the specific
requirements relating to the provision of core, intensive, and training
services through the One-Stop system that apply to the adult and the
dislocated worker programs authorized under title I of WIA. Additional
requirements apply to the provision of all labor exchange services
under the Wagner-Peyser Act. (WIA sec. 134(c)(1)(D).)
Sec. 662.270 How are the costs of providing services through the One-
Stop delivery system and the operating costs of the system to be
funded?
The MOU must describe the particular funding arrangements for
services and operating costs of the One-Stop delivery system. Each
partner must contribute a fair share of the operating costs of the One-
Stop delivery system proportionate to the use of the system by
individuals attributable to the partner's program. There are a number
of methods, consistent with the requirements of the relevant OMB
circulars, that may be used for allocating costs among the partners.
Some of these methodologies include allocations based on direct
charges, cost pooling, indirect cost rates and activity-based cost
allocation plans. Additional guidance relating to cost allocation
methods may be issued by the Department in consultation with the other
appropriate Federal agencies.
Sec. 662.280 Does title I require One-Stop partners to use their funds
for individuals who are not eligible for the partner's program or for
services that are not authorized under the partner's program?
No. The requirements of the partner's program continue to apply.
The Act intends to create a seamless service delivery system for
individuals seeking workforce development services by linking the One-
Stop partners in the One-Stop delivery system. While the overall effect
is to provide universal access to core services, the resources of each
partner may only be used to provide services that are authorized and
provided under the partner's program to individuals who are eligible
under such program. (WIA sec. 121(b)(1).)
Subpart C--Memorandum of Understanding of the One-Stop Delivery
System
Sec. 662.300 What is the Memorandum of Understanding?
(a) The Memorandum of Understanding (MOU) is an agreement developed
and executed between the Local Board, with the agreement of the
[[Page 18704]]
chief elected official, and the One-Stop partners relating to the
operation of the One-Stop delivery system in the local area.
(b) The MOU must contain the provisions required by WIA section
121(c)(2). These provisions cover services to be provided through the
One-Stop delivery system; the funding of the services and operating
costs of the system; and methods for referring individuals between the
One-Stop operators and partners. The MOU's provisions also must
determine the duration and procedures for amending the MOU, and may
contain any other provisions that are consistent with WIA title I and
these regulations agreed to by the parties. (WIA sec. 121(c).)
Sec. 662.310 Is there a single MOU for the local area or are there to
be separate MOU's between the Local Board and each partner?
(a) A single ``umbrella'' MOU may be developed that addresses the
issues relating to the local One-Stop delivery system for the Local
Board and all partners, or the Local Board and the partners may decide
to enter into separate agreements between the Local Board and one or
more partners. Under either approach, the requirements described in
Sec. 662.310 apply. Since funds are generally appropriated annually,
financial agreements may be negotiated with each partner annually to
clarify funding of services and operating costs of the system under the
MOU.
(b) WIA emphasizes full and effective partnerships between Local
Boards and One-Stop partners. Local Boards and partners must enter into
good-faith negotiations. Local Boards and partners may request
assistance from a State agency responsible for administering the
partner program, the Governor, State Board, or other appropriate
parties. The State agencies, the State Board, and the Governor may also
consult with the appropriate Federal agencies to address impasse
situations after exhausting other alternatives. The Local Board and
partners must document the negotiations and efforts that have taken
place. Any failure to execute an MOU between a Local Board and a
required partner must be reported by the Local Board and the required
partner to the Governor or State Board, and the State agency
responsible for administering the partner's program, and by the
Governor or the State Board and the responsible State agency to the
Secretary of Labor and to the head of any other Federal agency with
responsibility for oversight of a partner's program. (WIA sec. 121(c).)
(c) If an impasse has not been resolved through the alternatives
available under this section any partner that fails to execute an MOU
may not be permitted to serve on the Local Board. In addition, any
local area in which a Local Board has failed to execute an MOU with all
of the required partners is not eligible for State incentive grants
awarded on the basis of local coordination of activities under 20 CFR
665.200(d)(2).
Subpart D--One-Stop Operators
Sec. 662.400 Who is the One-Stop operator?
(a) The One-Stop operator is the entity that performs the role
described in paragraph (c) of this section. The types of entities that
may be selected to be the One-Stop operator include:
(1) A postsecondary educational institution;
(2) An Employment Service agency established under the Wagner-
Peyser Act on behalf of the local office of the agency;
(3) A private, nonprofit organization (including a community-based
organization);
(4) A private for-profit entity;
(5) A government agency; and
(6) Another interested organization or entity.
(b) One-Stop operators may be a single entity or a consortium of
entities and may operate one or more One-Stop centers. In addition,
there may be more than one One-Stop operator in a local area.
(c) The agreement between the Local Board and the One-Stop operator
shall specify the operator's role. That role may range between simply
coordinating service providers within the center to being the primary
provider of services within the center. (WIA sec. 121(d).)
Sec. 662.410 How is the One-Stop operator selected?
(a) The Local Board, with the agreement of the chief elected
official, must designate and certify One-Stop operators in each local
area.
(b) The One-Stop operator is designated or certified:
(1) Through a competitive process, or
(2) Under an agreement between the Local Board and a consortium of
entities that includes at least three or more of the required One-Stop
partners identified at Sec. 662.200. (WIA sec. 121(d).)
Sec. 662.420 Under what limited conditions may the Local Board be
designated or certified as the One-Stop operator?
(a) The Local Board may be designated or certified as the One-Stop
operator only with the agreement of the chief elected official and the
Governor.
(b) The designation or certification must be made publicly, in
accordance with the requirements of the ``sunshine provision'' in WIA
section 117(e), and must be reviewed whenever the biennial
certification of the Local Board is made under 20 CFR 663.300(a). (WIA
sec. 117(f)(2).)
Sec. 662.430 Under what conditions may existing One-Stop delivery
systems be certified to act as the One-Stop operator?
Under WIA section 121(e), the Local Board, the chief elected
official and the Governor may agree to certify an entity as a One-Stop
operator under the following circumstances:
(a) A One-Stop delivery system, consistent with the scope and
meaning of the term in WIA section 134(c), existed in the local area
prior to August 7, 1998;
(b) The certification is consistent with the requirements of:
(1) WIA section 121(b) and;
(2) the Memorandum(s) of Understanding; and
(c) The certification must be made publicly, in accordance with the
``sunshine provision'' at WIA section 117(e). (WIA section 121(e).)
PART 663--ADULT AND DISLOCATED WORKER ACTIVITIES UNDER TITLE I OF
THE WORKFORCE INVESTMENT ACT
Subpart A-- Delivery of Adult and Dislocated Worker Services Through
the One-Stop Delivery System
Sec.
663.100 What is the role of the adult and dislocated worker program
in the One-Stop delivery system?
663.105 When must adults and dislocated workers be registered?
663.110 What are the eligibility criteria for adults in the adult
and dislocated worker program?
663.115 What are the eligibility criteria for dislocated workers in
the Adult and Dislocated worker program?
663.120 Are displaced homemakers eligible for dislocated worker
activities under WIA?
663.145 What services are WIA title I adult and dislocated workers
formula funds used to provide?
663.150 What core services must be provided to adults and
dislocated workers?
663.155 How are core services delivered?
663.160 Are there particular core services an individual must
receive before receiving intensive services under WIA section
134(d)(3)?
663.165 How long must an individual be in core services in order to
be eligible for intensive services?
Subpart B--Intensive Services
663.200 What are intensive services for adults and dislocated
workers?
663.210 How are intensive services delivered?
[[Page 18705]]
663.220 Who may receive intensive services?
663.230 What criteria must be used to determine whether an employed
worker needs intensive services to obtain or retain employment
leading to ``self-sufficiency?
663.240 Are there particular intensive services an individual must
receive prior to receiving training services under WIA section
134(d)(4)(A)(i)?
663.245 What is the individual employment plan?
663.250 How long must an individual participant be in intensive
services to be eligible for training services?
Subpart C--Training Services
663.300 What are training services for adults and dislocated
workers ?
663.310 Who may receive training services?
663.320 What are the requirements for coordination of WIA training
funds and other grant assistance?
Subpart D--Individual Training Accounts
663.400 How are training services provided?
663.410 What is an Individual Training Account?
663.420 Can the duration and amount of ITA's be limited?
663.430 Under what circumstances may mechanisms other than ITA's be
used to provide training services?
663.440 What are the requirements for consumer choice?
Subpart E--Eligible Training Providers
663.500 What is the purpose of this subpart?
663.505 What are eligible providers of training services?
663.508 What is a ``program of training services''?
663.510 Who is responsible for managing the eligible provider
process?
663.515 What is the process for initial determination of provider
eligibility?
663.530 Is there a time limit on the period of initial eligibility
for training providers?
663.535 What is the process for determination of the subsequent
eligibility of a provider?
663.540 What kind of performance and cost information is required
for determinations of subsequent eligibility?
663.550 How is eligible provider information developed and
maintained?
663.555 How is the State list disseminated?
663.565 May an eligible training provider lose its eligibility?
663.570 What is the consumer reports system?
663.575 In what ways can a Local Board supplement the information
available from the State list?
663.585 May individuals choose training providers located outside
of the local area?
663.590 May a community-based organization (CBO) be included on an
eligible provider list?
663.595 What requirements apply to providers of OJT and customized
training?
Subpart F--Priority and Special Populations
663.600 What priority must be given to low-income adults and public
assistance recipients served with adult funds under title I?
663.610 Does the priority for use of adult funds also apply to
dislocated worker funds?
663.620 How do the Welfare-to-Work program and the TANF program
relate to the One-Stop delivery system?
663.630 How does a displaced homemaker qualify for services under
title I?
663.640 May a disabled individual whose family does not meet income
eligibility criteria under the Act be eligible for priority as a low
income adult?
Subpart G--On-the-Job Training (OJT) and Customized Training
663.700 What are the requirements for on-the-job training (OJT)?
663.705 What are the requirements for OJT contracts for employed
workers?
663.710 What conditions govern OJT payments to employers?
663.715 What is customized training?
663.720 What are the requirements for customized training for
employed workers?
Subpart H--Supportive Services
663.800 What are supportive services for adults and dislocated
workers?
663.805 When may supportive services be provided to participants?
663.810 Are there limits on the amounts or duration of funds for
supportive services?
663.815 What are needs-related payments?
663.820 What are the eligibility requirements for adults to receive
needs-related payments?
663.825 What are the eligibility requirements for dislocated
workers to receive needs-related payments?
663.830 May needs-related payments be paid while a participant is
waiting to start training classes?
663.840 How is the level of needs-related payments determined?
Authority: Section 506(c), Pub. L. 105-220; 20 U.S.C. 9276(c).
Subpart A--Delivery of Adult and Dislocated Worker Services through
the One-Stop Delivery System
Sec. 663.100 What is the role of the adult and dislocated worker
program in the One-Stop delivery system?
(a) The One-Stop system is the basic delivery system for adult and
dislocated worker services. Through this system, adults and dislocated
workers can access a continuum of services. The services are organized
into three levels: core, intensive, and training.
(b) The chief elected official or his/her designee(s), as the local
grant recipient(s) for the adult and dislocated worker programs, is a
required One-Stop partner and is subject to the provisions relating to
such partners described in 20 CFR part 662. Consistent with those
provisions:
(1) Core services for adults and dislocated workers must be made
available in at least one comprehensive One-Stop center in each local
workforce investment area. Services may also be available elsewhere,
either at affiliated sites or at specialized centers. For example,
specialized centers may be established to serve workers being
dislocated from a particular employer or industry, or to serve
residents of public housing.
(2) The One-Stop centers also make intensive services available to
adults and dislocated workers, as needed, either by the One-Stop
operator directly or through contracts with service providers that are
approved by the Local Board.
(3) Through the One-Stop system, adults and dislocated workers
needing training are provided Individual Training Accounts (ITA's) and
access to lists of eligible providers of training. These lists contain
quality consumer information, including cost and performance
information for each of the providers, so that participants can make
informed choices on where to use their ITA's. (ITA's are more fully
discussed in subpart D of this part.)
Sec. 663.105 When must adults and dislocated workers be registered?
(a) Registration is the process for collecting information for
supporting a determination of eligibility. This information may be
collected through methods that include electronic data transfer,
personal interview, or an individual's application.
(b) Adults and dislocated workers who receive services funded under
title I other than self-service or informational activities must be
registered and determined eligible.
(c) EEO data must be collected on individuals during the
registration process.
Sec. 663.110 What are the eligibility criteria for adults in the adult
and dislocated worker program?
To be an eligible adult in the adult and dislocated worker program,
an individual must be 18 years of age or older. To be eligible for the
dislocated worker program, an eligible adult must meet the criteria of
Sec. 663.115 of this subpart.
[[Page 18706]]
Sec. 663.115 What are the eligibility criteria for dislocated workers
in the adult and dislocated worker program?
(a) To be an eligible dislocated worker in the adult and dislocated
worker program, an individual must meet the definition of ``dislocated
worker'' at WIA section 101(9).
(b) Governors and Local Boards may establish policies and
procedures for One-Stop operators to use in determining an individual's
eligibility as a dislocated worker, consistent with the definition at
WIA section 101(9). These policies and procedures may address such
conditions as:
(1) What constitutes a ``general announcement'' of plant closing
under WIA section 101(9)(B)(ii) or (iii); and (2) What constitutes
``unemployed as a result of general economic conditions in the
community in which the individual resides or because of natural
disasters' for determining the eligibility of self-employed
individuals, including family members and farm or ranch hands, under
WIA section 101(9)(C).
Sec. 663.120 Are displaced homemakers eligible for dislocated worker
activities under WIA?
(a) Yes. There are two significant differences from the eligibility
requirements under the Job Training Partnership Act.
(b) Under the dislocated worker program in JTPA, displaced
homemakers are defined as ``additional dislocated workers'' and are
only eligible to receive services if the Governor determines that
providing such services would not adversely affect the delivery of
services to the other eligible dislocated workers. Under WIA section
101(9), displaced homemakers who meet the definition at WIA section
101(10) are eligible dislocated workers without any additional
determination.
(c) The definition of displaced homemaker under JTPA included
individuals who had been dependent upon public assistance under Aid for
Families with Dependent Children (AFDC) as well as those who had been
dependent on the income of another family member. The definition in WIA
section 101(10) includes only those individuals who were dependent on a
family member's income. Those individuals who have been dependent on
public assistance may be served in the adult program.
Sec. 663.145 What services are WIA title I adult and dislocated
workers formula funds used to provide?
(a) WIA title I formula funds allocated to local areas for adults
and dislocated workers must be used to provide core, intensive and
training services through the One-Stop delivery system. Local Boards
determine the most appropriate mix of these services, but all three
types must be available for both adults and dislocated workers.
(b) WIA title I funds may also be used to provide the other
services described in WIA section 134(e):
(1) Discretionary One-Stop delivery activities, including:
(i) Customized screening and referral of qualified participants in
training services to employment; and
(ii) Customized employment-related services to employers on a fee-
for-service basis that are in addition to labor exchange services
available to employers under the Wagner-Peyser Act.
(2) Supportive services, including needs-related payments, as
described in subpart H of this part.
Sec. 663.150 What core services must be provided to adults and
dislocated workers?
(a) At a minimum, all of the core services described in WIA section
134(d)(2) and 20 CFR 662.220 must be provided in each local area
through the One-Stop delivery system.
(b) Followup services must be made available, for a minimum of 12
months following the first day of employment, to registered
participants who are placed in unsubsidized employment.
Sec. 663.155 How are core services delivered?
Core services must be provided through the One-Stop delivery
system. Core services may be provided directly by the One-Stop operator
or through contracts with service providers that are approved by the
Local Board. The Local Board may only be a provider of core services
when approved by the chief elected official and the Governor in
accordance with the requirements of WIA section 117(f)(2) and 20 CFR
661.310.
Sec. 663.160 Are there particular core services an individual must
receive before receiving intensive services under WIA section
134(d)(3)?
(a) Yes. At a minimum, an individual must receive at least one core
service, such as an initial assessment or job search and placement
assistance, before receiving intensive services. The initial assessment
determines the individual's skill levels, aptitudes, and supportive
services needs. The job search and placement assistance helps the
individual determine whether he or she is unable to obtain employment,
and thus requires more intensive services to obtain employment. The
decision on which core services to provide, and the timing of their
delivery, may be made on a case-by-case basis at the local level
depending upon the needs of the participant.
(b) A determination of the need for intensive services under
Sec. 663.220, as established by the initial assessment or the
individual's inability to obtain employment through the core services
provided, must be contained in the participant's case file.
Sec. 663.165 How long must an individual be in core services in order
to be eligible for intensive services?
There is no Federally-required minimum time period for
participation in core services before receiving intensive services.
[WIA section 134(d)(3).]
Subpart B--Intensive Services
Sec. 663.200 What are intensive services for adults and dislocated
workers?
(a) Intensive services are listed in WIA section 134(d)(3)(C). The
list in the Act is not all-inclusive and other intensive services, such
as out-of-area job search assistance, literacy activities related to
basic workforce readiness, relocation assistance, internships, and work
experience may be provided, based on an assessment or individual
employment plan.
(b) For the purposes of paragraph (a) of this section, work
experience is a planned, structured learning experience that takes
place in a workplace for a limited period of time. Work experience may
be paid or unpaid, as appropriate. A work experience workplace may be
in the private for profit sector, the non-profit sector, or the public
sector.
Sec. 663.210 How are intensive services delivered?
(a) Intensive services must be provided through the One-Stop
delivery system. Intensive services may be provided directly by the
One-Stop operator or through contracts with service providers that are
approved by the Local Board. (WIA secs. 117(d)(2)(D) and 134(d)(3)(B).)
(b) The Local Board may only be a provider of intensive services
when approved by the chief elected official and the Governor in
accordance with WIA section 117(f)(2) and 20 CFR 661.310.
Sec. 663.220 Who may receive intensive services?
There are two categories of adults and dislocated workers who may
receive intensive services:
(a) Adults and dislocated workers who are unemployed, have received
at least one core service and are unable to obtain employment through
core
[[Page 18707]]
services, and are determined by a One-Stop operator to be in need of
more intensive services to obtain employment; and
(b) Adults and dislocated workers who are employed, have received
at least one core service, and are determined by a One-Stop operator to
be in need of intensive services to obtain or retain employment that
leads to self-sufficiency, as described in Sec. 663.230.
Sec. 663.230 What criteria must be used to determine whether an
employed worker needs intensive services to obtain or retain employment
leading to ``self-sufficiency''?
State Boards or Local Boards must set the criteria for determining
whether employment leads to self-sufficiency. At a minimum, such
criteria must provide that self-sufficiency means employment that pays
at least the lower living standard income level, as defined in WIA
section 101(24). Self-sufficiency for a dislocated worker may be
defined in relation to a percentage of the layoff wage.
Sec. 663.240 Are there particular intensive services an individual
must receive prior to receiving training services under WIA section
134(d)(4)(A)(i)?
(a) Yes. At a minimum, an individual must receive at least one
intensive service, such as development of an individual employment plan
with a case manager or individual counseling and career planning,
before the individual may receive training services.
(b) The case file must contain a determination of need for training
services under Sec. 663.310, as identified in the individual employment
plan, comprehensive assessment, or through any other intensive service
received.
Sec. 663.245 What is the individual employment plan?
The individual employment plan is an ongoing strategy jointly
developed by the participant and the case manager that identifies the
participant's employment goals, the appropriate achievement objectives,
and the appropriate combination of services for the participant to
achieve the employment goals.
Sec. 663.250 How long must an individual participant be in intensive
services to be eligible for training services?
There is no Federally-required minimum time period for
participation in intensive services before receiving training services.
(WIA section 134(d)(4)(A)(i).)
Subpart C--Training Services
Sec. 663.300 What are training services for adults and dislocated
workers?
Training services are listed in WIA section 134(d)(4)(D). The list
in the Act is not all-inclusive and additional training services may be
provided.
Sec. 663.310 Who may receive training services?
Training services may be made available to employed and unemployed
adults and dislocated workers who:
(a) Have met the eligibility requirements for intensive services,
have received at least one intensive service under Sec. 663.240, and
have been determined to be unable to obtain or retain employment
through such services;
(b) After an interview, evaluation, or assessment, and case
management, have been determined by a One-Stop operator or One-Stop
partner, to be in need of training services and to have the skills and
qualifications to successfully complete the selected training program;
(c) Select a program of training services that is directly linked
to the employment opportunities either in the local area or in another
area to which the individual is willing to relocate;
(d) Are unable to obtain grant assistance from other sources to pay
the costs of such training, including Federal Pell Grants established
under title IV of the Higher Education Act of 1965, or require WIA
assistance in addition to other sources of grant assistance, including
Federal Pell Grants (provisions relating to fund coordination are found
at Sec. 663.320 and WIA section 134(d)(4)(B)); and
(e) For individuals whose services are provided through the adult
funding stream, are determined eligible in accordance with the State
and local priority system, if any, in effect for adults under WIA
section 134(d)(4)(E) and Sec. 663.600. [WIA section 134(d)(4)(A).]
Sec. 663.320 What are the requirements for coordination of WIA
training funds and other grant assistance?
(a) WIA funding for training is limited to participants who:
(1) Are unable to obtain grant assistance from other sources to pay
the costs of their training; or
(2) Require assistance beyond that available under grant assistance
from other sources to pay the costs of such training. Program operators
and training providers must coordinate funds available to pay for
training as described in paragraphs (b) and (c) of this section.
(b) Program operators must coordinate training funds available and
make funding arrangements with One-Stop partners and other entities to
apply the provisions of paragraph (a) of this section. Training
providers must consider the availability of Pell Grants and other
sources of grants to pay for training costs, so that WIA funds
supplement other sources of training grants.
(c) A WIA participant may enroll in WIA-funded training while his/
her application for a Pell Grant is pending as long as the One-Stop
operator has made arrangements with the training provider and the WIA
participant regarding allocation of the Pell Grant, if it is
subsequently awarded. In that case, the training provider must
reimburse the One-Stop operator the WIA funds used to underwrite the
training for the amount the Pell Grant covers. Reimbursement is not
required from the portion of Pell Grant assistance disbursed to the WIA
participant for education-related expenses. (WIA section 134(d)(4)(B).)
Subpart D--Individual Training Accounts
Sec. 663.400 How are training services provided?
Except under the three conditions described in WIA section
134(d)(4)(G)(ii) and Sec. 663.430(a), the Individual Training Account
(ITA) is established for eligible individuals to finance training
services. Local Boards may only provide training services under
Sec. 663.430 if they receive a waiver from the Governor and meet the
requirements of 20 CFR 661.310 and WIA section 117(f)(1). (WIA section
134(d)(4)(G).)
Sec. 663.410 What is an Individual Training Account?
The ITA is established on behalf of a participant. WIA title I
adult and dislocated workers purchase training services from eligible
providers they select in consultation with the case manager. Payments
from ITA's may be made in a variety of ways, including the electronic
transfer of funds through financial institutions, vouchers, or other
appropriate methods. Payments may also be made incrementally; through
payment of a portion of the costs at different points in the training
course. (WIA section 134(d)(4)(G).)
Sec. 663.420 Can the duration and amount of ITA's be limited?
(a) Yes. The State or Local Board may impose limits on ITA's, such
as limitations on the dollar amount and/or duration.
(b) Limits to ITA's may be established in different ways:
[[Page 18708]]
(1) There may be a limit for an individual participant that is
based on the needs identified in the individual employment plan; or
(2) There may be a policy decision by the State Board or Local
Board to establish a range of amounts and/or a maximum amount
applicable to all ITA's.
(c) Limitations established by State or Local Board policies must
be described in the State or Local Plan, respectively, but should not
be implemented in a manner that undermines the Act's requirement that
training services are provided in a manner that maximizes customer
choice in the selection of an eligible training provider.
Sec. 663.430 Under what circumstances may mechanisms other than ITA's
be used to provide training services?
(a) Contracts for services may be used instead of ITA's only when
one of the following three exceptions applies:
(1) When the services provided are on-the-job training (OJT) or
customized training;
(2) When the Local Board determines that there are an insufficient
number of eligible providers in the local area to accomplish the
purpose of a system of ITA's. The Local Plan must describe the process
to be used in selecting the providers under a contract for services.
This process must include a public comment period for interested
providers of at least 30 days;
(3) When the Local Board determines that there is a training
services program of demonstrated effectiveness offered in the area by a
community-based organization (CBO) or another private organization to
serve special participant populations that face multiple barriers to
employment, as described in paragraph (b) in this section. The Local
Board must develop criteria to be used in determining demonstrated
effectiveness, particularly as it applies to the special participant
population to be served. The criteria may include:
(i) Financial stability of the organization;
(ii) Demonstrated performance in measures appropriate to the
program including program completion rate; attainment of the skills,
certificates or degrees the program is designed to provide; placement
after training in unsubsidized employment; and retention in employment;
and
(iii) How the specific program relates to the workforce investment
needs identified in the local plan.
(b) Under paragraph (a)(3) of this section, special participant
populations that face multiple barriers to employment are populations
of low-income individuals that are included in one or more of the
following categories:
(1) Individuals with substantial language or cultural barriers;
(2) Offenders;
(3) Homeless individuals; and
(4) Other hard-to-serve populations as defined by the Governor.
Sec. 663.440 What are the requirements for consumer choice?
(a) Training services, whether under ITA's or under contract, must
be provided in a manner that maximizes informed consumer choice in
selecting an eligible provider.
(b) Each Local Board, through the One-Stop center, must make
available to customers the State list of eligible providers required in
WIA section 122(e). The list includes a description of the programs
through which the providers may offer the training services, the
information identifying eligible providers of on-the-job training and
customized training required under WIA section 122(h) (where
applicable), and the performance and cost information about eligible
providers of training services described in WIA sections 122(e) and
(h).
(c) An individual who has been determined eligible for training
services under Sec. 663.310 may select a provider described in
paragraph (b) of this section after consultation with a case manager.
Unless the program has exhausted funds for the program year, the
operator must refer the individual to the selected provider, and
establish an ITA for the individual to pay for training. For purposes
of this paragraph, a referral may be carried out by providing a voucher
or certificate to the individual to obtain the training.
(d) The cost of referral of an individual with an ITA to a training
provider is paid by the applicable adult or dislocated worker program
under title I of WIA.
Subpart E--Eligible Training Providers
Sec. 663.500 What is the purpose of this subpart?
The workforce investment system established under WIA emphasizes
informed customer choice, system performance, and continuous
improvement. The eligible provider process is part of the strategy for
achieving these goals. Local Boards, in partnership with the State,
identify training providers whose performance qualifies them to receive
WIA funds to train adults and dislocated workers. After receiving core
and intensive services and in consultation with case managers, eligible
participants who need training use the list of these eligible providers
to make an informed choice. The ability of providers to successfully
perform, the procedures State and Local Boards use to establish
eligibility, and the degree to which information, including performance
information, on those providers is made available to customers eligible
for training services, are key factors affecting the successful
implementation of the Statewide workforce investment system. This
subpart describes the process for determining eligible training
providers.
Sec. 663.505 What are Eligible Providers of Training Services?
(a) Eligible providers of training services are described in WIA
section 122. They are those entities eligible to receive WIA title I-B
funds to provide training services to eligible adult and dislocated
worker customers.
(b) In order to provide training services under WIA title I-B, a
provider must meet the requirements of this subpart and WIA section
122.
(1) These requirements apply to the use of WIA title I adult and
dislocated worker funds to provide training:
(i) To individuals using ITA's to access training through the
eligible provider list; and
(ii) To individuals for training provided through the exceptions to
ITA's described at Sec. 663.430(a)(2) and (a)(3).
(2) These requirements apply to all organizations providing
training to adult and dislocated workers, including:
(i) Postsecondary educational institutions providing a program
described in section 122(a)(2)(A)(ii);
(ii) Entities that carry out programs under the National
Apprenticeship Act (29 U.S.C. 50 et seq.);
(iii) Other public or private providers of a program of training
services described in WIA section 122(a)(2)(C);
(iv) Local Boards, if they meet the conditions of WIA section
117(f)(1), and
(v) Community-based organizations and other private organizations
providing training under Sec. 663.430.
(c) Provider eligibility procedures must be established by the
Governor, as required by this subpart. Different procedures are
described in WIA for determinations of ``initial'' and ``subsequent''
eligibility. Because the processes are different, they are discussed
separately.
Sec. 663.508 What is a ``program of training services''?
A program of training services is:
(a) One or more courses or classes that, upon successful
completion, leads to:
[[Page 18709]]
(1) A certificate, an associate degree, or baccalaureate degree, or
(2) A competency or skill recognized by employers, or
(b) A training regimen that provides individuals with additional
skills or competencies generally recognized by employers.
Sec. 663.510 Who is responsible for managing the eligible provider
process?
(a) The State and the Local Boards each have responsibilities for
managing the eligible provider process.
(b) The Governor must establish eligibility criteria for certain
providers to become initially eligible and must set minimum levels of
performance for all providers to remain subsequently eligible.
(c) The Governor must designate a State agency (called ``designated
State agency'') to assist in carrying out WIA section 122. The
designated State agency is responsible for:
(1) Developing and maintaining the State list of eligible
providers, which is comprised of lists submitted by Local Boards;
(2) Verifying the accuracy of the information on the State list, in
consultation with the Local Boards, removing providers who do not meet
program performance levels, and taking appropriate enforcement actions,
against providers in the case of the intentional provision of
inaccurate information, as described in WIA section 122(f)(1), and in
the case of a substantial violation of the requirements of WIA, as
described in WIA section 122(f)(2);
(3) Disseminating the State list, accompanied by performance and
cost information relating to each provider, to One-Stop operators
throughout the State.
(d) The Local Board must:
(1) Accept applications for initial eligibility from certain
postsecondary institutions and entities providing apprenticeship
training;
(2) Carry out procedures prescribed by the Governor to assist in
determining the initial eligibility of other providers;
(3) Carry out procedures prescribed by the Governor to assist in
determining the subsequent eligibility of all providers;
(4) Compile a local list of eligible providers, collect the
performance and cost information and any other required information
relating to providers;
(5) Submit the local list and information to the designated State
agency;
(6) Ensure the dissemination and appropriate use of the State list
through the local One-Stop system;
(7) Consult with the designated State agency in cases where
termination of an eligible provider is contemplated because inaccurate
information has been provided; and
(8) Work with the designated State agency in cases where the
termination of an eligible provider is contemplated because of
violations of the Act.
(e) The Local Board may:
(1) Make recommendations to the Governor on the procedures to be
used in determining initial eligibility of certain providers;
(2) Increase the levels of performance required by the State for
local providers to maintain subsequent eligibility;
(3) Require additional verifiable program-specific information from
local providers to maintain subsequent eligibility.
Sec. 663.515 What is the process for initial determination of provider
eligibility?
(a) For postsecondary educational institutions that are eligible to
receive assistance under title IV of the Higher Education Act, and that
provide a program that leads to an associate or baccalaureate degree or
certificate, and for entities carrying out apprenticeship programs
registered under the National Apprenticeship Act to be initially
eligible to receive adult or dislocated worker training funds under
title I of WIA, the institution or entity must submit an application to
the Local Board(s) for the local area(s) in which the provider desires
to provide training services that describes each program of training
services, as defined in Sec. 663.508, that leads to such a degree or
certificate or is registered under the National Apprenticeship Act.
(b) Local Boards determine the procedures to use in making an
application under paragraph (a) of this section. The Local Board
procedures must specify the timing, manner, and contents of the
required application.
(c) For other providers,
(1) The Governor must develop a procedure for use by Local Boards
for determining the eligibility of other providers, after
(i) Soliciting and taking into consideration recommendations from
Local Boards and providers of training services within the State; and
(ii) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to
submit comments on the procedure.
(2) The procedure must be described in the State Plan.
(3)(i) The procedure must require that the provider must submit an
application to the Local Board at such time and in such manner as may
be required, which contains a description of the program of training
services;
(ii) If the provider provides a program of training services on the
date of application, the procedure must require that the application
include an appropriate portion of the performance information and
program cost information described in Sec. 663.540 of this subpart, and
that the program meet appropriate levels of performance;
(iii) If the provider does not provide a program of training
services on that date, the procedure must require that the provider
meet appropriate requirements specified in the procedure. (WIA section
122(b)(2)(D).)
(4) Programs of training services provided by postsecondary
educational institutions that do not lead to an associate or
baccalaureate degree or certificate and apprenticeship programs that
are not registered under the National Apprenticeship Act must be
determined initially eligible under the provisions of this paragraph
(c).
(d) The Local Board must include providers that meet the
requirements of paragraphs (a) and (c) of this section on a local list
and submit the list to the designated State agency. The State agency
has 30 days to verify the information relating to the providers under
paragraph (c) of this section. After the agency verifies that the
provider meets the criteria for initial eligibility, or 30 days have
elapsed, whichever occurs first, the provider is initially eligible as
a provider of training services. The providers submitted under
paragraph (a) of this section are initially eligible without State
agency review. (WIA section 122(e).)
Sec. 663.530 Is there a time limit on the period of initial
eligibility for training providers?
Yes. Under WIA section 122(c)(5), the Governor must require
training providers to submit performance information and meet
performance levels annually in order to remain eligible providers.
States may require that these performance requirements be met one year
from the date that initial eligibility was determined, or may require
all eligible providers to submit performance information by the same
date each year. If the latter approach is adopted, the Governor may
exempt eligible providers whose determination of initial eligibility
occurs within six months of the date of submissions. The effect of this
requirement is that no training provider may have a period of initial
eligibility that exceeds eighteen months.
[[Page 18710]]
Sec. 663.535 What is the process for determination of the subsequent
eligibility of a provider?
(a) The Governor must develop a procedure for the Local Board to
use in determining the subsequent eligibility of all eligible training
providers determined initially eligible under Sec. 663.515 (a) and (c),
after:
(1) Soliciting and taking into consideration recommendations from
Local Boards and providers of training services within the State, and
(2) Providing an opportunity for interested members of the public,
including representatives of business and labor organizations, to
submit comments on such procedure.
(b) The procedure must be described in the State Plan.
(c) The procedure must require that:
(1) Providers annually submit performance and cost information as
described at WIA sections 122(d)(1) and (2), for each program of
training services for which the provider has been determined to be
eligible, in a time and manner determined by the Local Board;
(2) Providers annually meet minimum performance levels described at
WIA section 122(c)(6).
(d) The provider's performance information must meet the minimum
acceptable levels established under paragraph (c)(2) of this section to
remain eligible;
(e) Local Boards may require higher levels of performance for local
providers than the levels specified in the procedures established by
the Governor. (WIA sections 122(c)(5) and (c)(6).)
(f) The State procedure must require Local Boards to take into
consideration:
(1) The specific economic, geographic and demographic factors in
the local areas in which providers seeking eligibility are located, and
(2) The characteristics of the populations served by providers
seeking eligibility, including the demonstrated difficulties in serving
these populations, where applicable.
(g) The Local Board retains those providers on the local list that
meet the required performance levels and other elements of the State
procedures and submits the list, accompanied by the performance and
cost information, and any additional required information, to the
designated State agency. If the designated State agency determines
within 30 days from the receipt of the information that the provider
does not meet the performance levels established under paragraph (c)(2)
of this section, the provider may be removed from the list. A provider
retained on the local list and not removed by the designated State
agency is considered an eligible provider of training services.
Sec. 663.540 What kind of performance and cost information is required
for determinations of subsequent eligibility?
(a) Eligible providers of training services must submit, at least
annually, under procedures established by the Governor under
Sec. 663.535(c):
(1) Verifiable program-specific performance information, including:
(i) The information described in WIA section 122(d)(1)(A)(i) for
all individuals participating in the programs of training services,
including individuals who are not receiving assistance under WIA
section 134 and individuals who are receiving such assistance; and
(ii) The information described in WIA section 122(d)(1)(A)(ii)
relating only to individuals receiving assistance under the WIA adult
and dislocated worker program who are participating in the applicable
program of training services; and
(2) Information on program costs (such as tuition and fees) for WIA
participants in the program.
(b) Governors may require any additional verifiable performance
information (such as the information described at WIA section
122(d)(2)) that the Governor determines to be appropriate to obtain
subsequent eligibility, including information regarding all
participating individuals as well as individuals receiving assistance
under the WIA adult and dislocated worker program.
(c) If the additional information required under paragraph (b) of
this section imposes extraordinary costs on providers, or if providers
experience extraordinary costs in the collection of information,
(1) The Governor or Local Board must provide access to cost-
effective methods for the collection of the information; or
(2) The Governor must provide additional resources to assist
providers in the collection of the information from funds for Statewide
workforce investment activities reserved under WIA sections 128(a) and
133(a)(1).
(d) The Local Board and the designated State agency may accept
program-specific performance information consistent with the
requirements for eligibility under title IV of the Higher Education Act
of 1965 from a provider for purposes of enabling the provider to
fulfill the applicable requirements of this section, if the information
is substantially similar to the information otherwise required under
this section.
Sec. 663.550 How is eligible provider information developed and
maintained?
(a) The designated State agency must maintain a list of all
eligible training providers in the State (the ``State list'').
(b) The State list is a compilation of the eligible providers
identified or retained by local areas and that have not been removed
under Sec. 663.535(c) and 663.565.
(c) The State list must be accompanied by the performance and cost
information contained in the local lists as required by
Sec. 663.535(e). (WIA section 122(e)(4)(A).)
Sec. 663.555 How is the State list disseminated?
(a) The designated State agency must disseminate the State list and
accompanying performance and cost information to the One-Stop delivery
systems within the State.
(b) The State list and information must be updated at least
annually.
(c) The State list and accompanying information form the primary
basis of the One-Stop consumer reports system that provides for
informed customer choice. The list and information must be widely
available, through the One-Stop delivery system, to customers seeking
information on training outcomes, as well as participants in employment
and training activities funded under WIA and other programs.
(1) The State list must be made available to individuals who have
been determined eligible for training services under Sec. 663.310.
(2) The State list must also be made available to customers whose
training is supported by other One-Stop partners.
Sec. 663.565 May an eligible training provider lose its eligibility?
(a) Yes. A training provider must deliver results and provide
accurate information in order to retain its status as an eligible
training provider.
(b) If the provider does not meet the established performance
levels, it will be removed from the eligible provider list.
(1) A Local Board must determine, during the subsequent eligibility
determination process, whether a provider meets performance levels. If
the provider fails to meet such levels, the provider must be removed
from the local list.
(2) The designated State agency upon receipt of the performance
information accompanying the local list, may remove a provider from the
State list if the agency determines the provider failed to meet the
levels of performance prescribed under Sec. 663.535(c).
(3) Providers determined to have intentionally supplied inaccurate
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