[Federal Register: August 11, 2000 (Volume 65, Number 156)]
[Rules and Regulations]
[Page 49293-49342]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au00-7]
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Part II
Department of Labor
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Employment and Training Administration
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20 CFR Part 652 et al.
Workforce Investment Act; Final Rules
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 652 and Parts 660 through 671
RIN 1205-AB20
Workforce Investment Act
AGENCY: Employment and Training Administration (ETA), Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (DOL) is issuing a Final Rule
implementing provisions of titles I, III and V of the Workforce
Investment Act. Through these regulations, the Department implements
major reforms of the nation's job training system and provides guidance
for statewide and local workforce investment systems that increase the
employment, retention and earnings of participants, and increase
occupational skill attainment by participants, and as a result, improve
the quality of the workforce, reduce welfare dependency, and enhance
the productivity and competitiveness of the Nation. Key components of
this reform include streamlining services through a One-Stop service
delivery system, empowering individuals through information and access
to training resources through Individual Training Accounts, providing
universal access to core services, increasing accountability for
results, ensuring a strong role for Local Boards and the private sector
in the workforce investment system, facilitating State and local
flexibility, and improving youth programs.
DATES: This Final Rule will become effective on September 11, 2000.
ADDRESSES: All comments received during the comment period following
the publication of the Interim Final Rule (64 FR 18662, et seq., Apr.
15, 1999) are available for public inspection and copying during normal
business hours at the Employment and Training Administration, Office of
Career Transition Assistance, 200 Constitution Avenue, NW., Room S-
4231, Washington, DC 20210. Copies of the Final Rule are available in
alternate formats of large print and electronic file on computer disk,
which may be obtained at the above-stated address. The Final Rule is
also available on the WIA web site at http://usworkforce.org.
FOR FURTHER INFORMATION CONTACT: Mr. Eric Johnson, Office of Career
Transition Assistance, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room S-4231, Washington, DC 20210, Telephone: (202) 219-
7831 (voice) (this is not a toll-free number) or 1-800-326-2577 (TDD).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
This Final Rule does not add any new information collection
requirements to those of the Interim Final Rule. Certain sections of
this Final Rule, such as Secs. 667.300, 667.900, 668.800, and 669.570
contain information collection requirements. These requirements have
not been changed. Under the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Department of Labor submitted a copy of these sections to
the Office of Management and Budget for review. No comments were
received about and no changes have been made to the information
collection requirements.
We have prepared documents providing guidance on specific
information collection requirements. As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), we submitted these documents
to the Office of Management and Budget (OMB) for its review. Affected
parties do not have to comply with the information collection
requirements contained in this document until we publish in the Federal
Register the control numbers assigned by the Office of Management and
Budget. Publication of the control numbers notifies the public that OMB
has approved this information collection requirement under the
Paperwork Reduction Act of 1995. For further information contact: Ira
Mills, Departmental Clearance Officer, Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210, (202) 219-5095, ext.
143.
I. Background
A. WIA Principles
On August 7, 1998, President Clinton signed the Workforce
Investment Act of 1998 (WIA), comprehensive reform legislation that
supersedes the Job Training Partnership Act (JTPA) and amends the
Wagner-Peyser Act. WIA also contains the Adult Education and Family
Literacy Act (title II) and the Rehabilitation Act Amendments of 1998
(title IV). Guidance or regulations implementing titles II and IV will
be issued by the Department of Education.
WIA reforms Federal job training programs and creates a new,
comprehensive workforce investment system. The reformed system is
intended to be customer-focused, to help Americans access the tools
they need to manage their careers through information and high quality
services, and to help U.S. companies find skilled workers. This new law
embodies seven key principles. They are:
- Streamlining services through better integration at the
street level in the One-Stop delivery system. Programs and providers
will co-locate, coordinate and integrate activities and information, so
that the system as a whole is coherent and accessible for individuals
and businesses alike.
- Empowering individuals in several ways. First, eligible
adults are given financial power to use Individual Training Accounts
(ITA's) at qualified institutions. These ITA's supplement financial aid
already available through other sources, or, if no other financial aid
is available, they may pay for all the costs of training. Second,
individuals are empowered with greater levels of information and
guidance, through a system of consumer reports providing key
information on the performance outcomes of training and education
providers. Third, individuals are empowered through the advice,
guidance, and support available through the One-Stop system, and the
activities of One-Stop partners.
- Universal access. Any individual will have access to the
One-Stop system and to core employment-related services. Information
about job vacancies, career options, student financial aid, relevant
employment trends, and instruction on how to conduct a job search,
write a resume, or interview with an employer is available to any job
seeker in the U.S., or anyone who wants to advance his or her career.
- Increased accountability. The goal of the Act is to
increase employment, retention, and earnings of participants, and in
doing so, improve the quality of the workforce to sustain economic
growth, enhance productivity and competitiveness, and reduce welfare
dependency. Consistent with this goal, the Act identifies core
indicators of performance that State and local entities managing the
workforce investment system must meet--or suffer sanctions. However,
State and local entities exceeding the performance levels can receive
incentive funds. Training providers and their programs also have to
demonstrate successful performance to remain eligible to receive funds
under the Act. And participants, with their ITA's, have the opportunity
to make training choices based on program outcomes. To survive in the
market, training providers must make accountability for performance and
customer satisfaction a top priority.
- Strong role for local workforce investment boards and the
private sector, with local, business-led boards
acting as ``boards of directors,'' focusing on strategic planning,
policy development and oversight of the local workforce investment
system. Business and labor have an immediate and direct stake in the
quality of the workforce investment system. Their active involvement is
critical to the provision of essential data on what skills are in
demand, what jobs are available, what career fields are expanding, and
the identification and development of programs that best meet local
employer needs. Highly successful private industry councils under JTPA
exhibit these characteristics now. Under WIA, this will become the
norm.
- State and local flexibility. States and localities have
increased flexibility, with significant authority reserved for the
Governor and chief elected officials, to build on existing reforms in
order to implement innovative and comprehensive workforce investment
systems tailored to meet the particular needs of local and regional
labor markets.
- Improved youth programs linked more closely to local labor
market needs and community youth programs and services, and with strong
connections between academic and occupational learning. Youth programs
include activities that promote youth development and citizenship, such
as leadership development through voluntary community service
opportunities; adult mentoring and followup; and targeted opportunities
for youth living in high poverty areas.
Many States and local areas have already taken great strides in
implementing these principles, supported by grants from the Department
of Labor (DOL) to build One-Stop service delivery systems and school-
to-work transition systems. The Act builds on these reforms and ensures
that they will be available throughout the country.
We wish to emphasize that DOL considers the reforms embodied in the
Workforce Investment Act to be pivotal, and not ``business as usual.''
This legislation provides an unprecedented opportunity for major
reforms that can result in a reinvigorated, integrated workforce
investment system. States and local communities, together with
business, labor, community-based organizations, educational
institutions, and other partners, must seize this historic opportunity
by thinking expansively as they design a customer-focused,
comprehensive delivery system.
The success of the reformed workforce investment system is
dependent on the development of true partnerships and honest
collaboration at all levels and among all stakeholders. While the
Workforce Investment Act and these regulations assign specific roles
and responsibilities to specific entities, for the system to realize
its potential necessitates moving beyond current categorical
configurations and institutional interests. Also, it is imperative that
input is received from all stakeholders and the public at each stage of
the development of State and local workforce investment systems.
The cornerstone of the new workforce investment system is One-Stop
service delivery which unifies numerous training, education and
employment programs into a single, customer-friendly system in each
community. The underlying notion of One-Stop is the coordination of
programs, services and governance structures so that the customer has
access to a seamless system of workforce investment services. We
envision that a variety of programs could use common intake, case
management and job development systems in order to take full advantage
of the One-Stops' potential for efficiency and effectiveness. A wide
range of services from a variety of training and employment programs
will be available to meet the needs of employers and job seekers. The
challenge in making One-Stop live up to its potential is to make sure
that the State and Local Boards can effectively coordinate and
collaborate with the network of other service agencies, including TANF
agencies, transportation agencies and providers, metropolitan planning
organizations, child care agencies, nonprofit and community partners,
and the broad range of partners who work with youth.
B. Rule Format
The format, as well as the substance, of the Final Rule, reflects
the Administration's commitment to regulatory reform and to writing
regulations that are reader-friendly. We have attempted to make these
regulations clear and easy to understand, as well as to anticipate
issues that may arise and to provide appropriate direction. To this
end, the regulatory text is presented in a ``question and answer''
format. We have organized the regulations in a way that will help those
implementing the new system to recognize the various steps that must be
taken to develop the organization and services that make up the
workforce investment system. In many cases, the provisions of WIA are
not repeated in these regulations. In response to comments, however, we
determined that, in a number of instances, the regulations would
provide context and be more reader-friendly if the Act's provisions
were included in an answer rather than merely cross-referencing the
statute.
C. Prior Actions
Since the passage of the Workforce Investment Act in August of
1998, we have used a variety of means to initiate extensive
coordination with other Federal agencies that have roles and
responsibilities under WIA. In addition, the Department of Labor, the
Department of Education, the Department of Health and Human Services,
the Department of Transportation, and the Department of Housing and
Urban Development continue to meet on a regular basis to resolve issues
surrounding WIA implementation.
Before publishing the Interim Final Rule, we also requested and
received input from a broad range of sources about how to structure
guidance on how to comply with a number of WIA statutory provisions. We
solicited broad input on WIA implementation through a variety of
mechanisms: establishing a web site to encourage input; publishing a
Federal Register notice on September 15, 1998; conducting regional and
national panel discussions in October 1998; publishing a White Paper
announcing goals and principles governing implementation; posting
issues on the usworkforce.org web site; sharing a discussion draft of
regulatory issues with stakeholders; holding town hall meetings across
the country in December 1998; conducting several workgroups in December
1998; issuing draft Planning Guidance in December 1998; and conducting
a series of WIA Implementation Technical Assistance Conferences across
the country in March and April of 1999.
On April 15, 1999, the Interim Final Rule was published in the
Federal Register, at 64 FR 18662 through 18764, and a 90-day comment
period commenced. We continued to provide information by posting
questions and answers on the usworkforce.org web site; publishing a
series of consultation papers in April, May and August of 1999, on
defining and measuring performance, incentives and sanctions, customer
satisfaction, and continuous improvement; conducting a second round of
Town Hall meetings across the country in August of 1999; and hosting
``Voice of Experience'' forums in February and March of 2000 where
practitioners shared insights and suggestions for successful
implementation of WIA. An Interim Final Rule implementing section 188
nondiscrimination and equal
opportunity provisions of WIA, codified in 29 CFR part 37, was
published separately in the Federal Register, at 64 FR 61692 through
61738, Nov. 12, 1999. Comments received on those regulations will be
addressed in the preamble to that Final Rule.
We reviewed every comment received during the comment period
following publication of the Interim Final Rule, as well as the
experience of early implementing States, and suggestions received from
partners and stakeholders when considering whether the Final Rule
should differ from the Interim Final Rule. These comments are discussed
in the Summary and Explanation of the individual provisions of the
Final Rule. Section 506(c)(1) of the Act required the Secretary of
Labor to issue this Final Rule implementing provisions of the WIA under
the Department's purview by December 31, 1999. While we were unable to
meet this deadline, we have endeavored to issue this Final Rule as
expeditiously as possible without compromising the quality of the
document. Under Secretary of Labor's Order No. 4-75, the Assistant
Secretary for Employment and Training has been delegated the
responsibility to carry out WIA policies, programs, and activities for
the Secretary of Labor. We have determined that this Final Rule, as
promulgated, complies with the WIA statutory mandate to issue a Final
Rule and provides effective direction for the implementation of WIA
programs.
This section contains our response to comments received on the
Interim Final Rule during the comment period. The comments are
discussed at considerable length in order to make clear our
interpretation of WIA through these final regulations and of their
application to some of the challenges that may arise in implementing
the Act.
We have set regulations only where they are necessary to clarify or
to explain how we intend to interpret the WIA statute, to provide
context for interpretations or to provide a clear statement of the
Act's requirements. In several instances--for example, the Indian and
Native American Programs, and Migrant and Seasonal Farmworker
Programs--the regulations were developed in consultation with advisory
councils and are more comprehensive in order to assist those grantees.
Consistent with the Act, the Final Rule provides the States and local
governments with the primary responsibility to initiate and develop
program implementation procedures and policy guidance regarding WIA
administration.
There are a limited number of changes in the Final Rule because of
our commitment to allowing maximum flexibility at the State and local
level. Section 661.120 formalizes this flexibility in the regulations.
A number of comments suggested that we specify certain groups of
providers and participants and types of activities in numerous sections
of the regulations. Among others, these comments suggested revising the
regulations to: add new definitions, and additional State and local
planning requirements; require States and locals to consult with
specific organizations in order to fulfill the public comment process
requirements; and identify certain types of programs, providers or
participants, such as service learning opportunities, and
nontraditional employment and training opportunities for women and
dislocated homemakers, in matters where States and localities have
discretion to define terms and make other discretionary decisions. To
provide policy-making flexibility to States and local areas and to
avoid suggesting that any one group or activity is more important than
those not highlighted in the regulations, we have generally not made
those changes. However, we do believe that consultation with and
inclusion of these groups is important to obtaining the optimal
functioning of the cooperative system envisioned by WIA. We fully
expect that States and local areas will consult broadly before adopting
plans and policies; and that their workforce investment systems will be
structured to include all providers and programs that may help meet the
needs of their populations, and equitably serve all population segments
within their service areas.
In addition to the changes made based upon the comments received,
in order to clarify policy and interpretation and improve upon the
Rule's reader-friendly format, we have also made technical changes to
correct typographical errors, such as consistent capitalization,
abbreviations, grammatical corrections and citations, and for
consistency with the regulations implementing the nondiscrimination and
equal opportunity provisions of WIA section 188, which were first
published in the Federal Register on November 12, 1999 (64 FR 61692
through 61738, 29 CFR part 37).
When publishing a Final Rule following a comment period, it is
customary to publish only changes made to the rule, however, in order
to be more user-friendly, we are publishing the entire Rule, including
those parts that have not been changed, for WIA titles I and V. This
means that one document which contains all of the regulations and
commentary may be consulted rather than needing to compare various
documents. Similarly, the new Wagner-Peyser regulations at part 652
subpart C are republished in full.
Description of Regulatory Provisions
Part 660--Introduction to the Regulations for the Workforce Investment
Systems Under Title I of the Workforce Investment Act
Part 660 discusses the purpose of title I of the Workforce
Investment Act and explains the format of the regulations governing
title I.
A few commenters suggested we add the attainment of self-
sufficiency to the description of the purpose of title I in
Sec. 660.100.
Response: While we agree that the attainment of self-sufficiency is
an important goal of workforce investment systems under title I of the
Act, we have not added that phrase to the regulation since the current
language tracks section 106 of the Act.
Part 660 also provides definitions which are not found in the Act,
as well as some of the statutory definitions we felt should be added
for emphasis or clarification. Sections 101, 142, 166(b), 167(h) 301
and 502 of the Act contain additional definitions. We received several
comments on the definitions contained in Sec. 660.300. One commenter
suggested that we add ``youth'' to the definition of ``employment and
training activity''.
Response: The three terms, ``workforce investment activity,''
``employment and training activity,'' and ``youth activity,'' are
defined in section 101 of WIA. We have not added ``youth'' to the
definition of ``employment and training activity'' since employment and
training activities are a separate subset of workforce investment
activities under title I, Chapter 5 of the Act. Workforce investment
activities are the array of activities permitted under title I of WIA,
which include employment and training activities for adults and
dislocated workers, and youth activities.
A commenter requested that we define the term ``labor federation''
as used in relation to nomination requirements for labor representatives
to the State and Local Boards, stating ``[i]t is our understanding
that [this term] is intended to include AFL-CIO State Federations,
State Building and Construction Trades Councils, AFL-CIO Central
Labor Councils, and Local Building and Construction Trade Councils.''
Response: We have added a definition of the term ``labor
federation'', similar to that used in JTPA, which will include these
groups within that term.
We received several comments on the definition of ``literacy''. One
commenter suggested that the definition of ``literacy'' be expanded to
mean the ability to read, write and speak in English or an individual's
native language, if that is not English.
Response: In order to promote consistency among Federal Programs,
title I, section 101(19) of WIA defines ``literacy'' by stating that it
is the same definition used in title II, section 203(12) of the Act.
Section 660.300 of the regulations restates this definition for the
convenience of the reader. Literacy is defined as the ``ability to
read, write, and speak in English, compute and solve problems, at the
levels of proficiency necessary to function on the job, in the family
of the individual and in society.'' No change has been made to this
statutory definition.
Another commenter suggested that the term ``literacy'' be amended
to include computer literacy since it is an important and necessary
workplace skill.
Response: We agree that computer literacy is a key skill, however,
as stated above, no changes have been made to the definition of
``literacy'' since it is a statutory definition found in section
203(12) of title II of WIA.
Among the regulatory definitions, we have defined the term
``register'' in order to clarify that programs do not need to register
participants until they receive a core service beyond those that are
self-service or informational. This point in time also corresponds to
the point when the participants are counted for performance measurement
purposes. A few commenters suggested that the term ``register'' be
redefined to require all adults and dislocated workers who receive
services, including those who only receive self-service or
informational services, to be registered in order to track universal
participation in the workforce investment system.
Response: The process of registration is designed to signal when an
individual is counted against the core measures of performance title I
programs. Since the Act exempts informational and self-service
activities from the core measures, we are not requiring individuals who
only receive those services to be registered. However, States and local
areas are authorized to collect information beyond what is required at
the Federal level. In March 2000, we issued Training and Employment
Letter (TEGL) 7-99 which provides additional guidance on the point of
registration. This guidance can be found on the Internet at
www.usworkforce.org. Additional discussion of this issue is contained
in part 663 and part 664 of these regulations. Part 666 provides new
guidelines on when a service is determined to be self-service or
informational. Finally, while participants may not need to be
registered until they receive core services for performance measurement
purposes, recipients must collect equal opportunity data regarding any
individual who has submitted personal information in response to a
request by the recipient for such information. See 29 CFR 37.4
(definitions of ``applicant'' and ``registrant''), and
Sec. 37.37(b)(2).
Another commenter suggested that the term ``register'' be more
clearly defined, and requested a description of the differences between
registration, enrollment and participation.
Response: While we have not changed the definition of ``register,''
additional guidance on the registration process and its connection to
the performance accountability system can be found in TEGL 7-99, as
well as part 663 and part 664 of these regulations. In general,
``enrollment'' is not a term that is being used in the WIA title I
performance system. An individual who registers for services is
determined eligible and is counted against the core indicators of
performance. This registered individual is considered a participant
while receiving services (except followup services) funded under
subtitle B of WIA title I.
This commenter also suggested that we clarify that information on
citizenship and selective service status be collected at the time of
registration.
Response: In addition to any other statutory or regulatory
requirements, under WIA section 188(a)(5)--``Prohibition on
Discrimination Against Certain Non-Citizens''--participation in
programs or activities, or receiving financial assistance under WIA
title I, must be available to citizens and nationals of the United
States, lawfully admitted permanent resident aliens, refugees, asylees,
and parolees and other immigrants authorized to work in the United
States. Compliance with the non-discrimination provisions of WIA is
addressed in the Interim Final Regulations promulgated by the
Department's Civil Rights Center at 29 CFR part 37 (64 FR 61692,
November 12, 1999). A discussion of these provisions can be found in
the preamble discussion of 29 CFR 37.37(b)(2), at 64 FR 61705.
Section 189 of WIA provides that the Military Selective Service Act
(50 U.S.C. App. 453) must be complied with to receive any assistance or
benefit under title I. In order to allow the greatest possible
flexibility in the provision of services, we will not dictate specific
ways to comply with this straightforward requirement.
Several commenters suggested adding definitions of ``contract'' and
``commercial organization'' or ``for-profit entity'' and modifying the
definitions of ``grant,'' ``subrecipient,'' and ``vendor'' to ensure
consistency with the Federal Grant and Cooperative Agreement Act, (31
U.S.C. 6301), and to reduce confusion about what awards are subject to
the uniform procurement requirements at 29 CFR 95.40 through 95.48 and
29 CFR 97.36, and what awards are not subject to these requirements.
Response: We have decided not to add definitions of ``contract,''
``commercial organization'' or ``for-profit entity'', because these
terms are defined or discussed in the Department's rules on uniform
administrative requirements at 29 CFR parts 95 and 97 (the ``Common
Rules''), as well as in the Department's rules on audit requirements
for grantees in 29 CFR parts 96 and 99, all of which are incorporated
by reference at 20 CFR 667.200. We are modifying the definitions of
``subrecipient'' and ``vendor'' to cross-reference the discussion in
the DOL audit requirements, at 29 CFR 99.210, which contrasts the
differences between subrecipients and vendors. Since the definition of
``grant'' in Sec. 660.300, is already quite specific as to the types of
organizations which may be awarded grants, we consider changes to this
term to be unnecessary. We also are modifying the definition of
``recipient'' to indicate that the term refers to the entire legal
entity receiving the award, not just the particular component within
that entity which is designated in the award document. The modification
is consistent with the definition of ``recipient'' in the JTPA
regulations at 20 CFR 626.5 and the definition of ``grantee'' in the
Common Rule at 29 CFR 97.3. Also, we are reiterating the Common Rule's
definition of the term ``subgrant'' for the convenience of the reader.
Another commenter suggested defining the term ``obligation'' so
that Individual Training Account (ITA) commitments could be treated as
obligations for purposes of the reallotment and reallocation procedures
of 20 CFR Secs. 667.150 and 667.160, even though they might not meet
the standards of obligation used by particular State or local
governments.
Response: Section 667.150 of the regulations provides for recapture
by the Secretary of unobligated balances from States with unobligated
balances which exceed 20 percent of the amount allotted in the previous
program year, after adjustment for amounts reserved by a State for
administration and amounts transferred by the State between youth and
adult funds. Reallotment is then made to States which have obligated at
least 80 percent of the amounts allotted in the previous program year,
after adjustment for transfers and amounts reserved for administration.
Section 667.160 covers the recapture and reallocation of amounts within
the State using the same factors used in the Secretary's reallotment
process.
We have added a definition of ``obligation'' to Sec. 660.300 which,
for the purpose of reallotments under 20 CFR 667.150, specifically
excludes: (1) Amounts allocated to a single local area State or to a
balance of State local area administered by a unit of the State
government; and (2) inter-agency transfers and other actions treated by
the State as encumbrances against amounts reserved by the State under
WIA sections 128(a) and 133(a) for Statewide workforce investment
activities. These exclusions were also in effect under JTPA. The
purpose of these exclusions is to treat similar financial transactions
the same way in all States, even where a State only recognizes a
financial transaction as a legally enforceable ``obligation'' if it
involves an arms-length award to another party or if performance has
already occurred. We also are adding the definition of ``unobligated
balance,'' which appears at 29 CFR 97.3, for the convenience of the
reader.
With respect to the comment regarding defining commitments under
ITA's as obligations, we are not aware of any unique characteristics of
ITA's which necessitate expanding the definition of ``obligation''
provided in Sec. 660.300 of these regulations. Commitments under ITA's
should be treated the same way as similar commitments of the
recipient's or subrecipient's non-WIA funds, whether as obligations or
otherwise.
Other commenters suggested we include a definition of the term
``individual with a disability'' to encourage One-Stop center staff to
have a knowledge and sensitivity to the needs of such individuals.
Response: Since the provision of quality services to individuals
with disabilities is a key facet of the One-Stop service delivery
system, we have added the WIA title I, section 101(17) definition of
the term ``individual with a disability'' to Sec. 660.300.
One commenter was concerned that the definition of ``veteran''
contained in section 101(49) of the Act was too broad and raised
uncertainty as to which veterans were to be served under title I of
WIA. The commenter suggested that we replace the definition in the
Interim Final Regulations with the definition of ``veteran'' contained
in title 38 of the U.S. Code since it provides more specificity and
consistency between programs.
Response: Since the definition of ``veteran'' appears in title I of
WIA, we are not making any change in the Final Regulation. We encourage
States and local areas to take these definitions into account as they
undertake their responsibility to assure that the delivery of services
under WIA title I programs and activities authorized under the chapter
41 of U.S.C. title 38 partner program are coordinated through the One-
Stop service delivery system.
One commenter suggested that we add definitions of a sectoral
employment intervention strategy and the self-sufficiency standard. A
sectoral employment intervention strategy is an approach to community
economic development that connects members of low-income communities to
employment opportunities, self-sufficiency wages and/or advancement
opportunities by both redirecting training resources and education, and
facilitating direct linkages to employers in targeted regional
industries. The self-sufficiency standard defines the minimum amount of
cash resources needed for a family to meet its basic needs and be self-
sufficient.
Response: While we encourage State and Local Boards to develop
linkages between their workforce and economic development systems, we
do not think it is appropriate to highlight one strategy for achieving
such linkages. As for a definition of self-sufficiency, 20 CFR 663.230
requires State or Local Boards to set the criteria for determining
whether employment leads to self-sufficiency. At a minimum, such
criteria must provide that self-sufficiency means employment that pays
at least the lower living standard income level, defined in WIA section
101(24). No changes are being made to the regulations.
Part 661--Statewide and Local Governance of the Workforce Investment
System Under Title I of the Workforce Investment Act
Introduction
This part covers the critical underpinnings of how the Workforce
Investment system is organized under WIA at the State and Local levels.
Specifically, it consists of four subparts--General Governance
Provisions, State Governance Provisions, Local Governance Provisions
and Waiver Provisions. The General Governance subpart broadly describes
the WIA system and describes the roles of the governmental partners.
The State and Local Governance subparts cover the State and Local
Workforce Investment Boards and the designation process, including
alternative entities, and the planning requirements. The waiver subpart
discusses the processes for obtaining general and work-flex waivers.
Subpart A--General Governance Provisions
Subpart A describes the Workforce Investment system, and sets forth
the roles of the government partners in the system: the Federal
government, State governments and Local governments.
Section 661.120 provides authority to State and Local governments
to establish their own policies, interpretations, guidelines and
definitions relating to program operations under title I, as long as
they are not inconsistent with WIA, these regulations, and Federal
statutes and regulations governing One-Stop partner programs. The
reference to Federal statutes and regulations governing One-Stop
partner programs has been added to Sec. 661.120 (a) and (b) as a
reminder that State and local administration of the One-Stop system
must be consistent with the requirements of the Federal law applicable
to the partner's program. In the case of local governments such
policies, interpretation, guidelines and definitions may not be
inconsistent with State policies. This section has also been revised to
correct an inconsistency between terms used in the question and answer.
The question refers to ``Local and State governmental partners'' while
the answer refers to Local and State Boards. We do not intend to
exclude the Governors and local elective officials from the authority
to develop State and local policies relating to WIA title I, provided
those policies are consistent with the Act, regulations and, where
appropriate, other State policies. Therefore, paragraphs (a) and (b)
are revised to replace the phrases ``Local
Boards'' and ``State Boards'' with ``Local areas'' and ``States''
respectively so that they will not appear to be inconsistent with the
terms used in the question.
To assist with the State and local interpretations authorized under
Sec. 661.120, we have issued technical assistance guidance, with the
participation of other Federal agencies, as appropriate, to help States
and localities interpret WIA and the regulations. This guidance is not
intended to limit State flexibility, but rather is intended to provide
helpful models on which States and Local governments can rely to ensure
that their own interpretations are not inconsistent with the Act and
regulations. In our role as Federal partner we will continue to provide
technical assistance to States and localities, in collaboration with
other Federal agencies as appropriate, however we remain committed to
the principles in the statute which allow and encourage flexibility.
A commenter suggested that the standard against which State and
local policies, interpretations, etc. are measured under Sec. 661.120
should be whether they are ``consistent'' with WIA and the regulations
rather than ``not inconsistent.'' The commenter suggests that the
current language may send an inappropriate message about the need to
conform to statutory and regulatory requirements and may lead to
differing interpretations of some provisions.
Response: We don't agree that this provision should be changed. The
workforce investment system is a partnership between State, local and
Federal stakeholders. One of WIA's key principles is that States and
localities have increased authority to implement innovative workforce
investment strategies to best serve the needs of the labor market.
While we take very seriously our responsibility to ensure that State
and local policies, interpretations, guidelines and definitions do not
violate the provisions of the statute and these regulations, where
differing interpretations are legally possible we believe that States
and localities should have the flexibility to implement systems that
they feel are best suited to their particular needs. The current
regulation best serves this flexibility, because it does not imply that
there is only one ``consistent'' interpretation available. Therefore,
we have not changed the regulation.
Several commenters expressed differing views regarding the relative
roles of State and local partners in the One-Stop system. Some
commenters requested that we expressly state that States and localities
are equal partners in the One-Stop system, while others requested that
we clarify that States have clear authority to promulgate
interpretations and other guidance to State and local agencies.
Response: In our view, neither of these positions is absolutely
correct. The success of the workforce investment system depends on a
commitment, particularly among the governmental entities and the One-
Stop partners, to collaborate and form real partnerships. On many
matters, the State has the authority to set Statewide policies
applicable to local areas. However, WIA also gives certain
responsibilities and authority to local areas. Close coordination among
State and local government partners is essential to the success of the
system. The flexibility of the WIA system offers a unique opportunity
for leadership from both the State and local level to work
cooperatively with one another to address the specific workforce needs
of each community and benefit the State as a whole. We do not think it
would be productive to enumerate where each entity has authority, but
trust that in establishing the workforce investment system Governors
and chief executive officers will take their roles and responsibilities
seriously and work together to create a system that best helps their
community aid those in need.
According to one commenter, there may be confusion resulting from
the language in WIA section 117(d)(3)(B)(i) that holds chief elected
officials liable, as grant recipient, for misuse of local formula funds
(unless the Governor agrees to undertake such liability). The commenter
reported that some local areas were worried that this liability would
be interpreted as the personal liability of the elected official.
Response: While we have not changed the regulations, we wish to
clearly state our interpretation of this provision. We interpret this
provision as holding the chief elected officials (and the Governor,
when appropriate) liable in their official capacity and not holding
them personally liable for misuse of WIA funds.
Subpart B--State Governance Provisions
1. State Workforce Investment Board: Sections 661.200-661.210
describe the membership requirements and responsibilities of the State
Workforce Investment Board (State Board) and procedures for designating
an alternative entity to perform the functions of the State Board.
Section 661.200(a) requires that the State Board be established by the
Governor. Of course, the Governor must select the members of the State
Board in a nondiscriminatory fashion, in accordance with the
requirements of 29 CFR part 37. A correction is made to paragraph
661.200(i), to correct a cross-reference to provisions in part 662
identifying One-Stop partners.
WIA and these regulations provide significant flexibility to States
and local areas to develop policies, interpretations, guidelines and
definitions relating to program operations under WIA title I. Several
commenters requested that we require that State and local boards
include significant policies and interpretations in the State and local
plans or consult with specified parties when developing these policies
and interpretations. We do not believe we can mandate these
suggestions, but encourage State and local boards to include in the
plans any significant policies and interpretations etc., that are not
already required to be included. Moreover, under Secs. 661.200(j) and
661.305(d), the development of significant policies, interpretations,
guidelines and definitions, as an activity of the boards must be done
in an open manner. To emphasize this requirement, we have moved these
requirements to new Secs. 661.207 and 661.307, and have specified that
the development of significant policies, interpretations, guidelines
and definitions must be conducted in an open manner. We consider
policies and interpretations etc,. relating to eligibility requirements
and self-sufficiency standards to be the type of significant policies
and interpretations etc., that must be developed in an open manner.
One commenter recommended that we require that any newly
established State Board review and/or ratify any policies implemented
by the entity acting as the Board during the State's transition to WIA.
Response: We find this to be a helpful suggestion, but do not
believe it is appropriate to impose it as a mandatory requirement on
States. We believe that an effective State Board will periodically
review State policies as part of its oversight role. It seems natural
that a newly established Board might find the need to reconsider some
of the policies implemented by its predecessor. In that case,
Sec. 661.230(a) provides the State Board with the authority to submit a
modification to the State plan.
The greatest number of comments on part 661 related to State and
Local Board membership requirements. Many of the comments on State
Boards are equally applicable to Local Boards. We have consolidated our
discussion of State and Local Board membership
requirements in the following paragraphs.
We received a large number of comments about the requirement, at
Secs. 661.200(b) and 661.315(a), that at least two or more members of
the State and Local Boards be selected to represent the membership
categories set forth at WIA sections 111(b)(1)(C) (iii)-(v) and
117(b)(2)(A) (ii)-(v), and that the Local Board contain at least one
member representing each One-Stop partner. The comments reflect a
tension between the need to provide States and Local areas with the
flexibility needed to keep these Boards at a manageable size, with the
need for specificity as to what level of participation is guaranteed to
stakeholders in the Workforce Investment system. Many commenters felt
that the two or more member requirement led to large, unwieldy-sized
Boards and requested that this requirement be eliminated. Other
commenters sought clarification of the number of members of each
partner on the Local Board. Many commenters requested clarification
about whether an individual seated on the State or Local Board could
represent more than one entity or institution, particularly when
multiple grantees of a One-Stop partner program are located in a local
area.
Many commenters requested more specificity as to which entities are
entitled to a seat on the Boards. For example, many commenters felt
that the language in the preamble to the Interim Final Rule did not go
far enough in recommending that States consider appointing
representatives from both the designated State unit under section
101(a)(2)(B) of the Rehabilitation Act and from the State agency for
the blind to represent programs that provide vocational rehabilitation
services. These commenters recommended that we amend the regulations to
change this recommendation into a requirement that States appoint
representatives from both of these organizations. Others sought
specific appointment of members representing community-based
organizations (CBO's), mental health agencies, disabled youth and
disabled youth service providers, disabled adults, literacy providers,
non-labor construction workers, and other groups.
Response: In our view, no individual (other than the Governor) or
group is entitled to a ``seat'' on a State or Local Workforce
Investment Board. However, certain specified groups, including One-Stop
partner programs, are entitled to a ``voice'' on the Boards through a
representative.
A partner program may feel that it should have the right to choose
who sits on a State or Local Board as its representative. The
regulations cannot provide this power to the partners, because WIA
gives the authority to select State or Local Board members to the
Governor or chief elected official (CEO), respectively. However, the
Governor's and CEO's discretion to select individuals to serve as
representatives of partner programs and other entities on State and
Local Boards must be exercised in a manner that is consistent with the
requirements set forth in WIA and these regulations. For One-Stop
partner programs, the individual selected as the Local Board
representative may or may not be the specific individual that each
funded entity would prefer, but that individual must be an individual
with ``optimum policy-making authority'' within an entity that receives
funds or carries out activities under the partner program.
We recognize that the representation issue is a legitimate and
serious concern. It is exacerbated by equally legitimate concerns over
Board size, especially at the local level. We encourage as broad a
representation as possible on all WIA Boards, especially representation
of those entities identified as required partners in the Act. We expect
that local workforce investment areas will follow the regulations and
that States will ensure that all required partner programs have
appropriate and effective representation on Local Boards. We encourage
local parties to resolve issues of representation to their mutual
satisfaction, in accordance with the Act and regulations. We view this
generally as a matter of local implementation. We believe that
consultation between Governors or CEO's and partner programs, and other
organizations entitled to representation on the Boards, in the
selection of Board representatives will help to develop positive
relationships leading to more effective delivery of services, and we
encourage such consultations. The final regulations attempt to
facilitate this process by providing Local areas with flexibility for
finding the right mix of representatives on the Local Board, while
ensuring that the Board is an effective policy-making body by
protecting the rights of all participants in the system and by
stressing the requirement that members be individuals with optimum
policy-making authority.
To this end, we have made several changes to the interim final
rule. However, we did not change the requirement that each Board
contain two or more members representing the groups specified in WIA
sections 111(b)(1)(C) (iii)-(v) and 117(b)(2)(A) (ii)-(v). As indicated
in the preamble to the Interim Final Rule, we are constrained by
statutory language to follow this requirement. One commenter suggested
that the provision at 1 U.S.C. 1 may provide justification for a more
flexible interpretation of the membership requirement. While this
provision provides the general rule that statutory reference to plurals
includes the singular, we think that, in this instance, the context of
WIA section 111 and 117, indicates that the term ``representatives''
was intended to mean two or more. The requirement that the Local Board
contain at least one member representing each local One-Stop partner
program is consistent with this interpretation. As is does for the
other membership classes specified at WIA section 117(b)(2)(A) (ii)
through (v), the Local Board must contain two or members representing
the class of One-Stop partner programs identified at section
117(b)(2)(A)(vi). Because each One-Stop system will include many
partners, the requirement that the class is represented by two or more
members will neccesarily be met by one member representing each partner
program. Consequently, we have not changed this requirement.
We have made several changes to clarify what is meant by
representation on the State and Local Workforce Investment Boards. We
have made changes to accommodate the concerns of those commenters who
asked whether an individual seated on the Board could represent more
than one entity or institution. While such ``multiple entity''
representation may not be appropriate in all cases, we believe that
there may be instances when such representation may be an effective
tool for reducing Board size while still ensuring that all parties
entitled to representation receive effective representation. Therefore,
we have added new paragraphs to Secs. 661.200 and 661.315 to permit it
when appropriate. For example, where the same State agency has
authority for several One-Stop partner programs, such as a State
employment security agency which oversees the employment service and
unemployment insurance service, the head of the agency (or other
official with optimum policy-making authority) may be appointed to the
State Board to represent both of these programs. On the other hand,
such ``multiple entity'' representation will not be appropriate where
the individual so appointed does not have authority to make policy for
all of the programs that s/he purportedly represents. For example,
appointing a local business
person, who is a member of a veterans' organization, as representative
of the 41 U.S.C. chapter 38 veterans' program and of local business
and/or the local veterans' organization, will not satisfy the Local
Board membership requirements if the individual does not possess
optimum policy-making authority within the 41 U.S.C. chapter 38 program
and within the veterans' organization and within the business.
Similarly, if the State vocational rehabilitation agency (including the
vocational rehabilitation agency for the Blind) is primarily concerned
with the rehabilitation of individuals with disabilities under section
101(a)(2)(B)(i) of the Rehabilitation Act, then the head of that agency
must represent the vocational rehabilitation program on the State
Board. An individual from any other State agency would not be an
appropriate representative of the vocational rehabilitation program.
We have added a new Sec. 661.203, in which we have defined the
terms ``optimum policy-making authority'' and ``expertise relating to
[a] program, service or activity'' in order to assist States and Local
areas in determining when such representation is appropriate. A
representative with ``optimum policy making authority'' is an
individual who can reasonably be expected to speak affirmatively on
behalf of the entity he or she represents and to commit that entity to
a chosen course of action. In the case of a One-Stop partner program,
an individual who does not have ``optimum policy-making authority''
within an entity that receives funds or carries out activities under
the partner program cannot serve as that program's representative on
the Local Board. A representative with ``expertise relating to [a]
program, service or activity'' includes a person who is an official
with a One-Stop partner program and a person with documented expertise
relating to the One-Stop partner program.
Finally, we have added new Sec. 661.317 to clarify representation
when there are several Local grantees or operating entities of a
partner program in a One-Stop system. In such a case, the Local Board
membership requirements may be met by the appointment of one member to
represent all of the Local partner program entities. Also, Sec. 661.317
permits the chief elected official to solicit nominations from One-Stop
partner program entities to facilitate the selection of such
representatives. Soliciting nominations from partner program entities
may be useful to chief elected officials in identifying the individual
who will be able to represent the program most effectively in the work
of the Local Board. Of course, the chief elected official can opt to
appoint more than one member to represent this program, if he or she so
chooses and the selection criteria permit it.
To implement the policy described in the joint letter, dated March
24, 2000, from the Assistant Secretary of Labor for Employment and
Training, the Assistant Secretary of Education for Special Education
and Rehabilitative Services, and the Commissioner of the Rehabilitative
Services Administration regarding Vocational Rehabilitation (VR)
representation on State Boards, we have added a new paragraph (3) to
Sec. 661.200(i). Under this provision, if the director of the
designated State unit, as defined in section 7(8)(B) of the
Rehabilitation Act, does not represent the State Vocational
Rehabilitation Services program (VR program) on the State Board, then
the State must describe in its State Plan how the members of the State
Board representing the VR program will effectively represent the
interests, needs, and priorities of the VR program and how the
employment needs of individuals with disabilities in the State will be
addressed.
Other comments on the State and Local Board membership requirements
questioned the different descriptions relating to the creation of State
and Local Boards, the different processes for selecting the
chairpersons of the Boards, and suggested that we mandate that the
business majority requirement apply to any subcommittees of Boards.
Response: Section 661.200(a) describes the State Board as being
``established'' by the Governor, while Sec. 661.300(a) describes the
Local Board as being ``appointed'' by the CEO. These descriptions are
intended to simply reflect the terms used in the statute and are not
meant to imply an inferior or superior relationship. Section 661.200(g)
provides that the Governor must select a State Board chairperson from
the business representatives on the Board, while Sec. 661.320 provides
that the Local Board members elect a chairperson from the business
representatives. Because these different processes are specified in WIA
sections 111(c) and 117(b)(5), we have not changed the rule. With
regard to the business majority requirement, we agree with the
commenter that a strong role for business representatives is an
essential ingredient for successful Boards, but we do not think it is
appropriate that the regulations should dictate the internal structure
and day-to-day workings of the Boards. Within the framework required by
the statute and regulations, States and localities have the flexibility
to design Boards that best serve their needs.
A commenter suggested that we add sanctions provisions to make
clear that the Governor can refuse to appoint to the State Board a
representative of partners which have not cooperated in good faith with
the One-stop system at the local level.
Response: As the commenter pointed out, Sec. 661.310 addresses this
very issue at the local level. Under this section, one of the sanctions
for a partner failing to engage in good faith negotiations over the
terms of the local MOU is a loss of representation on the Local Board.
We expect that this provision, will be sufficient incentive for Local
Boards and One-stop partners to engage in good faith negotiation. If
experience does not bear this out, we will consider issuing additional
guidance in the future.
A commenter requested that we define the term ``labor federation''
as used in the nomination requirements for labor representatives to the
State and Local Boards, stating ``[i]t is our understanding that [this
term] is intended to include AFL-CIO State Federations, State Building
and Construction Trades Councils, AFL-CIO Central Labor Councils, and
Local Building and Construction Trade Councils.''
Response: We have added to 20 CFR 660.300 a definition of the term
``labor federation'', similar to that used in JTPA, which will include
groups such as those suggested within that term.
2. Alternative Entities: Because many of the comments relating to
alternative entities are applicable at both the State and local levels,
we have consolidated our discussion of this issue here. One commenter
expressed the view that the requirement in Secs. 661.210(c) and
661.330(b)(2), that the State and local plans must describe how the
Boards will ensure an ongoing role for any required membership groups
not represented on an alternative entity, is not supported by WIA.
Response: We find that the ongoing role requirement is a reasonable
interpretation of WIA requirements relating to Board membership and
responsibility. It is clear from the statute that Congress intended
that certain specified groups have a strong leadership role in the
State and local workforce investment systems, as expressed by the
representation requirements. The regulatory requirement that Boards
provide an ongoing role for any of those statutorily identified
entities which are not represented on the alternative entity is
consistent with this intent. The regulation does not specify the scope
of a group's ongoing role, but rather permits States and localities to
determine it as part of the public planning process. Therefore, we have
maintained this requirement. However, as described below, we have made
changes to this regulation to provide guidance as to how the ongoing
role requirement may be met.
There were several comments regarding the provision in
Secs. 661.210(d) and 661.330(c) about changes in the membership
structure of an alternative entity serving as the State Workforce
Investment Board or as a Local Workforce Investment Board. Two
commenters thought that the rule was overly restrictive about
permitting changes to alternative entities and suggested that we revise
the Interim Final Rule to permit incremental changes to these entities
so that at least some of the representational groups required by the
WIA Board membership requirements could be added to existing entities,
or that we permit incremental changes that increase the efficiency and
effectiveness of the workforce investment system. A commenter noted
that in single workforce investment areas states, where the State Board
is acting as the Local Board under WIA section 117(c)(4), the use of an
existing state board under the alternative entity provisions may
exclude even more partners from participation on the board at the local
level.
Response: We are sympathetic to these concerns, but believe that
permitting incremental changes to the boards will, in fact, act as a
disincentive to the creation of Workforce Investment Boards that
include all required representatives, by permitting inclusion of some
groups while still excluding other groups. By requiring the
establishment of a new WIA-compliant Board whenever the membership
structure of an alternative entity is significantly changed, other
excluded groups will be able ``to ride the coattails'' of the newly
added group. Therefore, because we remain committed to the goal of
encouraging fully compliant Workforce Investment Boards in each State
and local workforce investment area, the requirement that a new WIA-
compliant Board must be created when the membership structure of an
alternative entity is significantly changed has not been changed.
However, we have added language to clarify the type of situation in
which the membership structure of an alternative entity is considered
to have been significantly changed. Specifically, a significant change
in the membership structure is considered to have occurred when members
are added to represent groups not previously represented on the entity.
A significant change in the membership structure is not considered to
have occurred when additional members are added to an existing
membership category, when non-voting members (including a Youth
Council) are added, or when a member is added to fill a vacancy created
in an existing membership category. A change to the charter is not
itself grounds for disqualification of an alternative entity. The
relevant question is whether the organization or membership structure
has been changed. However, we continue to consider the need for a
change to the charter as a good indicator of a significant change in
the membership structure, and have clarified that this is true
regardless of whether the required change has been made.
Other commenters identified the need for additional guidance as to
what measures an alternative entity must take to ensure an ongoing role
in the State or Local Workforce Investment system for any of the WIA-
specified membership groups who are not represented on the alternative
entity. As discussed below in relation to the Migrant and Seasonal
Farmworker (MSFW) program, commenters have sometimes found that it is
difficult to ensure full and active participation in a One-Stop system
when a partner or other membership group is not represented on an
alternative entity.
Response: To address this problem, we have added language to
Sec. 661.210(c) and have added a new paragraph 661.330(b)(3) to
identify ways in which to ensure such an ongoing role. For example, the
Boards could provide for regularly scheduled consultations, may provide
an opportunity for input into the State or local plan or other policy
development, or may establish an advisory committee of unrepresented
groups. We also require that the alternative entity engage in good-
faith negotiation over the terms of the MOU, with all omitted partner
programs. We have made a change to more clearly identify those groups
which are specified for representation on State and local boards under
WIA but are not represented on the alternative entity as
``unrepresented membership groups''. This replaces the somewhat
ambiguous term ``such groups'' used in the Interim Final Rule.
3. State Workforce Investment Plan Requirements: Section 661.220
describes the requirements for submission of the State Workforce
Investment Plan and the process for review and approval of that plan. A
commenter pointed out that the reference to Wagner-Peyser Act State
Plan modifications in Sec. 661.230(c) was inaccurate. We have edited
Sec. 661.230(c)(2) to reference 20 CFR 652.212. Under her authority to
provide for an orderly transition from JTPA to WIA, the Secretary
permitted States to submit a transition plan during program year 1999
to allow the provision of WIA services with funds appropriated for JTPA
services. Such a plan would be approved for program year 1999, but
would not be considered an approved five-year Workforce Investment
Plan. To reflect this practice, a new paragraph (e)(3) is added to
Sec. 661.220 is added to clarify that a plan that is incomplete or does
not contain sufficient information to determine whether it is fully
compliant with the statutory and regulatory requirements of WIA and the
Wagner-Peyser Act is considered to be inconsistent with these
requirements for plan approval purposes.
A commenter requested that the provision of Sec. 661.230(e)(2)
describing the plan approval process be revised to more clearly
indicate that the portion of the plan describing Wagner-Peyser Act
activities, requirements and delivery of services is an integral part
of the plan and not a separate plan.
Response: We agree and have made the suggested change.
Some commenters remarked that they found that the State Plan
requirements focused on process and compliance rather than on strategic
planning issues.
Response: We believe that the State Plan guidelines seeks the
information needed to support broad strategic planning objectives while
ensuring compliance with the statutory requirements. We acknowledge
that it is difficult to balance these two goals. Based upon our
experience with early implementing States, we hope to amend the
planning guidelines to streamline them, but remain committed to
requiring that States submit the information we need to assess whether
the plan complies with the statute and regulations.
We received several comments on the need for specific public
comment periods for State Plans, consistent with Local Plan
requirements. Others felt that modifications as well as planning
documents should be subject a public comment period.
Response: We intend that the information contained in the State
Plan be subject to the broadest possible stakeholder involvement in
policy development and the broadest possible range of public comment.
The Interim Final Rule, at Sec. 661.230(d) already requires that plan
modifications undergo the same public review and
comment as the State plan. The Workforce Investment Act State planning
guidelines set forth the information needed for the Secretary to make
an informed judgment about whether a State Plan is consistent with WIA,
and the plan review process requires evidence of a public comment
period. We have clearly stated the need for an open and inclusive
planning process at both the State and local levels and we expect the
States to establish the appropriate time lines and procedures.
Consequently, no change in the rule is being made at this time,
although we will carefully review State plans for compliance with the
WIA public comment requirements.
Commenters suggested that we change Sec. 661.220(d) to require that
States submit to us all oral and written comments made during the
public comment process, including comments made on drafts, and
responses to those comments, that we review the responses as part of
our plan review process, and that we specify that failure to actively
consult with local areas is grounds for plan disapproval. Other
commenters suggested that we mandate a 30-day review period as part of
the State plan public comment process.
Response: Based upon our review of plans submitted by early
implementing States, we have found that requiring submission of
comments on State plans does not significantly help the plan review
process. Given the short time period for plan review and approval, we
are unable to provide any meaningful review to comments submitted with
the plan. We do not think it is necessary to impose a mandatory public
comment period on the States. We expect that States will undertake a
good faith effort to develop State plans through a meaningful public
process. We believe that our review of the State plan's description of
the process will enable us to ensure that the State planning process
complies with this requirement. A failure to develop the plan through
the public comment and consultation process described in the
regulations could be grounds for plan disapproval under the existing
standards. No change has been made to the regulation.
Section 661.240 contains provisions relating to unified plans,
submitted under the authority of WIA section 501. On January 14, 2000,
the Department, in partnership with the Departments of Agriculture,
Education, Health and Human Services, and Housing and Urban
Development, and with the assistance of the Office of Management and
Budget, issued joint unified planning guidance entitled State Unified
Plan, Planning Guidance for State Unified Plans Submitted Under Section
501 of the Workforce Investment Act of 1998. This document was
published in the Federal Register at 65 FR 2464 (Jan. 14, 2000). We
have revised Sec. 631.240(b) to add a new paragraph (2), that
specifically provides that States may submit unified plans that contain
the information required in the unified planning guidance in lieu of
the individual planning guidelines of the programs covered by the
unified plan.
One commenter remarked that the unified planning guidelines were
too narrowly focused to lead to effective unified planning. Other
comments on Sec. 661.240 requested that we hold unified plans to the
same public review and comment requirements as required of standalone
WIA State plans, that we explain how to resolve different planning
timetables for programs included in the unified plan, and that we
provide incentives to encourage States to submit unified plans.
Response: We believe that the unified planning guidance is an
important first step towards collaborative planning and effective
coordination of federal programs. Currently, it is the only planning
approach that streamlines existing non-statutory planning requirements.
We believe these streamlined planning requirements offer an incentive
encouraging States to undertake unified planning. While it may not go
as far as some would like, we believe that, as the Federal partners
work with the States to acquire more experience with unified planning,
we will be able to develop alternative approaches that could offer even
greater flexibility and burden reduction.
With regard to the substantive comments on Sec. 661.240, WIA
section 501(c)(1) provides that the portion of the unified plan
covering a particular program or activity is still subject to the
applicable planning requirements of the statute that authorizes the
program. Therefore, for unified plans containing the State WIA/Wagner-
Peyser Act plan, the WIA plan review and public comment requirements,
at Sec. 661.220(d) still apply. Similarly, while the WIA/Wagner-Peyser
Act portion of the unified plan is submitted on a five-year planning
cycle, the inclusion of a plan on a different planning cycle does not
change the plan for that program to a five-year plan. We believe that
the time saved through joint planning is itself a strong incentive
towards engaging in unified planning. Joint planning also benefits
States by leading to an improved use of State and Federal resources,
increased coordination at the local level, and burden reduction through
elimination of duplicate planning processes. These and other benefits
of unified planning are discussed in the unified planning guidance at
65 FR 2464, 2468.
4. Local Workforce Investment Area Designation Requirements:
Sections 661.250 through 661.280 discuss the requirements applicable to
the designation of local workforce investment areas (local areas).
Section 661.250 sets forth the process for designating local areas.
Commenters noted that this section did not refer to the provision, at
WIA section 116(b), that permits Governors of States which were single
service delivery area States under JTPA, as of July 1, 1998, to
designate the State as a single local workforce investment area.
Response: We interpret section 116(b) as limiting single local area
designations to only those States which were designated as a single
service delivery area State under JTPA, as of July 1, 1998. Section
661.250 is revised to by adding a new paragraph (d) to specifically
authorize Governors of States which were single service delivery area
States under JTPA, as of July 1, 1998, to designate the State as a
single local workforce investment area.
A commenter noted that the applicability of the automatic local
area designation provisions for units of general local government of
500,000 or more may depend upon the population statistics used in
making designations. An area may or may not be found to meet this
threshold population level depending on whether 1990 Census data or
more up-to-date estimates are used. The commenter suggested specifying
certain data, or specifically delegating the authority to determine
which data to use to the Governor.
Response: While we do not believe it is appropriate that we specify
the source of the data to be used in the regulations, we agree with the
suggestion to specify that the Governor has the authority to determine
which population data to use when making designation determinations.
Section 661.260 is amended to make this clear.
A commenter noted that Sec. 661.280(c) provides that, on appeal of
a denial of a request for designation, the Secretary can require that
an area be designated solely upon her finding that the area was not
afforded the procedural rights guaranteed by the statute. The commenter
suggested that, in that instance, a finding that the area meets the
requirements for designation should also be required before the State
can be ordered to designate the area.
Response: We think that Sec. 661.280(c) accurately restates the
provisions of
WIA section 116(a)(5) that the Secretary may require designation upon a
finding of either a denial of procedural rights or a finding that the
area meets the requirements for designation. No change has been made to
the regulation.
Section 661.290 describes the State's authority to require regional
planning by Local Boards. Paragraph (d) of this section provides that
regional planning may not substitute for or replace local planning
unless the Governor and all the affected CEO's agree to the
substitution or replacement. A commenter opined that WIA does not give
the Department the authority to undermine the State's authority to
require regional planning in this way.
Response: We do not agree that this regulation impermissibly
undermines the State's authority. Section 661.290(a) is consistent with
WIA section 116 by providing the State with authority to require Local
Boards to participate in a regional planning process. The agreement of
the local areas is not required for this. Requiring local area
agreement before regional planning can replace local planning may
reduce the ability of the State to unilaterally impose effective
regional planning, since the regional planning may overlap or duplicate
local planning. However, we believe that this provision fairly balances
the rights of States and localities. In our view, the most effective
regional planning will occur when all parties in the region are
committed to cooperating with one another.
Subpart C--Local Governance Provisions
This subpart covers the designation of Local Workforce Investment
areas and the responsibilities and membership requirements of Local
Boards. Because many issues relating to Local Boards and alternative
entities are equally applicable at the State and local level, comments
on these issues are discussed above, under subpart B.
1. Responsibilities of Chief Elected Officials: Section 300(a)
requires chief elected officials to appoint the Local Board in
accordance with State criteria established under WIA section 117(b).
Appointments to the Local Board must be made in a nondiscriminatory
fashion, in accordance with the requirements of 29 CFR part 37. A few
commenters found the provision in Sec. 661.300, authorizing the Local
Board and the chief elected official(s) in a local area to enter into
an agreement that describes the respective roles and responsibilities
of the parties to be confusing in light of the statement in 20 CFR
667.705 regarding liability of funds in local areas comprised of more
than one unit of general local government.
Response: Under 20 CFR 667.705, when a local area is comprised of
more than one unit of general local government, the liability of the
individual jurisdictions for funds provided to the local area must be
specified in a written agreement between the chief elected officials.
This is a mandatory provision. The agreement authorized in
Sec. 661.300(c) regarding a description of general roles and
responsibilities is optional. Chief elected officials are not required
to enter into such an agreement, but the agreement may be a useful tool
for specifying the division of duties among the chief elected officials
in the local area. No change has been made to the regulations.
A few commenters asked for clarification as to what extent a chief
elected official(s) may delegate their responsibilities under title I
of WIA.
Response: In general, the chief elected official(s) is authorized
to delegate their authority under title I of WIA to other entities such
as the Local Board or a local governmental agency. In multiple
jurisdiction local areas, the chief elected officials may delegate
certain roles as part of the agreement authorized in Sec. 661.300(c),
as discussed above. For example, WIA section 117(d)(3)(B)(i)(II)
specifically authorizes the chief elected official(s) to designate an
entity to serve as a local fiscal agent in order to assist in the
administration of grant funds at the local level. Similarly, the chief
elected official(s) may designate an entity to carry out their other
responsibilities. Under Sec. 661.300(c), the chief elected official(s)
may enter into an agreement with the Local Board that describes the
respective roles and responsibilities of the parties. However, the
chief elected official(s) remains liable for funds received under title
I of WIA unless they reach an agreement with the Governor to bear such
liability. This is the only situation in which the chief elected
official(s) is not liable for funds.
Some commenters requested a clarification of the role of the chief
elected official as a One-Stop partner.
Response: This issue is addressed in the preamble to 20 CFR part
662.
2. Local Boards as Service Providers: Section 117(f)(1) of WIA
places limitations on Local Boards' direct provision of core services,
intensive services, or training services. These limitations and waivers
of the limitation on providing training services are set forth in
Sec. 661.310. Commenters noted that Sec. 661.310(b) permits a waiver of
the prohibition on providing training services to be renewed only once.
Response: This limitation was inadvertent. We have revised this
paragraph to indicate that a waiver may be renewed more than once,
although no waiver may be for more than one-year at a time.
A commenter opined that the provision in Sec. 661.310(c) that
extended the service delivery restrictions of the Local Board to the
staff of the Board is not supported by WIA.
Response: We don't agree that this provision is inconsistent with
WIA. The limitation on the Local Board's authority to be a service
provider in Sec. 661.310(c) is meant to ensure that the Local Board
serves as the ``board of directors'' for the local area. This frees the
Board from the day-to-day functioning of the local workforce system and
allows the Local Board to focus on strategic planning, policy
development and oversight of the system. To permit the staff of the
Local Board to provide direct services on behalf of the Board would
undermine this principle.
However, we read the service delivery limitations in WIA section
117 as applying to the Local Board as an entity and not to the members
of the Board as individuals. Therefore, members of the Local Board may
not provide services in their capacity as a member of the Board.
However, if an individual member of the Board is also an employee of a
service provider, then as an employee of that service provider entity
s/he may provide services on behalf of that entity. Of course, this
must be consistent with federal, state and local conflict of interest
requirements. The same rules apply to the staff of the Local Board.
Members of the Local Board's staff may also be employees of the entity
administering the local area's WIA grant. We acknowledge that many
local areas use staff from inter-related agencies to provide support to
the Local Board as well as the administrative entity for the grant
recipient. When these roles are clearly defined, the fact that an
individual works for both the Local Board and the entity administering
the WIA grant does not preclude the entity from providing services.
3. Youth Council: Sections 661.330 and 661.335 describe the
membership requirements and responsibilities of the Youth Council.
Commenters suggested that we amend this section to require that
representatives of vocational rehabilitation agencies and members with
experience in nontraditional training employment for women be selected
for the Youth Council.
Response: We have not made the suggested change, because we do not
believe it is appropriate to specify certain groups for Youth Council
membership beyond those provided by statute. However, we agree that the
viewpoint of these groups could serve the Youth Council well. We
encourage chief elected officials to consider appointing such
representatives under the existing Youth Council membership categories.
One commenter suggested changes to Sec. 661.335(b)(4) which lists
``parents of eligible youth seeking assistance under subtitle B of
title I of WIA'' as required members of the youth council. The
commenter expressed a fear that it will be difficult to find parents of
participants and former participants who will be likely to make a
positive contribution to the youth council. The commenter asked whether
a local area will be penalized if it is unable to find parents and
participants to serve on the youth council and suggests changing
Sec. 661.335(b)(4) to read ``parents, that may include those of
eligible youth seeking assistance. . . .''
Response: We recognize the commenter's concern, however, the
regulation restates the language of WIA section 117 (h)(iv) and (v).
Therefore, these membership categories have been statutorily mandated
by Congress. We do not interpret the statutory standard to limit youth
council membership to parents of youth participants. Section 117(h)(iv)
of the Act requires the youth council to include members who are:
``parents of eligible youth seeking assistance under this subtitle.''
This statutory phrase is somewhat confusing, since it could be read as
requiring parents of eligible youth seeking assistance rather than
parents of participants who are receiving assistance. We interpret this
language to mean that the representatives for this membership category
must come from families who currently experience the barriers described
in WIA section 101(13)(A) and (B), and in Secs. 664.200 or 664.220, or
who have faced those barriers in the past. This interpretation allows
those families who have successfully overcome their barrers to
education and employment to have a voice on the youth council. We
believe that it is important that youth councils include the views of
parents, especially the views of parents of youth participating in WIA
youth programs. We feel it is important that the representatives for
this membership category possess a first-hand understanding of the
needs and barriers facing eligible youth and strongly encourage chief
elected officials to seek out parents of WIA youth participants. Just
as the Individual Training Account system in the adult and dislocated
worker programs empowers the customer to take an active role in the
training process, these membership categories empower the families most
affected by youth services to take an active role in designing and
improving the system. This interpretation, of course, does not prohibit
the appointment of other parents in the community under WIA section
117(h)(2)(B), which authorizes the appointment of ``other individuals
as the chairperson of the Local Board, in cooperation with the chief
elected official, determines to be appropriate.''
Similarly, this commenter also requested a change to
Sec. 661.335(b)(5), which lists ``Individuals, including former
participants, and members who represent organizations that have
experience relating to youth activities'' as required members of the
youth council. The suggestion would have Sec. 661.335(b)(5) state
``individuals, that may include former participants, and members who .
. .'' We have not made the commenter's change because the regulation
already uses the phrase ``individuals, including former participants .
. . .''
4. Local Workforce Investment Plan: Sections 661.345 through
661.355 describe requirements relating to the submission and
modification of local workforce investment plans.
A commenter disagreed with the provision, in Sec. 661.345(c), that
the Secretary performs the roles of the Governor in reviewing the local
plan developed in a single local workforce investment area State,
particularly regarding the review of the MOU's. The commenter compared
this process with the process in other States where the Governor
reviews locally developed MOU's submitted as part of the local plan.
The commenter emphasized that development and review MOU's should
remain as close as possible to the local level.
Response: We agree that successful implementation of the One-Stop
system in a single local workforce investment area State requires
strong local involvement. MOU's should be developed at the local level.
Section 661.350(c)(3) facilitates local involvement by ensuring that
the local chief elected officials in those States retain their roles in
the system. However, we believe that an independent review of local
plans is necessary. In a single workforce investment area State, where,
in essence, the State itself is the local area, we believe it is
appropriate that the Secretary undertake the role of providing
independent review of the local plan for the State. Since the MOU's are
required to be included in the local plan, the Secretary's review will
include review of the MOU's. No change has been made to the regulation.
With regard to the required local plan contents of Sec. 661.350,
several commenters suggested that we encourage States to require
additional items, such as a comprehensive assessment of activities in
the local area, a description of services available to displaced
homemakers, disadvantaged individuals and to other groups, a
description of nontraditional training and employment activities, a
local plan for the provision of supportive services, and to use a
``sectoral approach'' to link the needs of employers with the skills of
workers.
Response: The authority to require additional items in local plans,
beyond the requirements specified in Sec. 661.350, lies with the
Governor. We encourage Governors to consider the suggested items when
establishing those requirements.
A commenter requested that we add language to
Sec. 661.350(a)(3)(ii) to authorize the submission with the plan of a
status report on MOU's when some MOU's are still in negotiation. The
commenter stated that it appears that it will take some time to
negotiate all the necessary MOU's and asks that we recognize this and
permit the plan process to move forward.
Response: We recognize that the commenter may have a valid point.
Our experience with early implementing States has shown that the
negotiation of MOU's can be an involved process. However, because the
MOU's are the primary means for coordinating the services of the One-
Stop partners, they are the foundation of the entire workforce
investment system. The MOU's address issues with the partners such as
which services each partner will provide through the One-Stop system,
how the costs of the system will be allocated among the partners, how
customers will be referred by the One-Stop operator to the appropriate
partner, among others. Because the resolution of these issues forms the
building blocks of the One-Stop system, we are not prepared to change
the regulation at this time. We strongly encourage States and
localities to take the necessary steps to ensure that the negotiation
of these important documents will be done in a timely manner. However,
in recognition of the fact that some local areas may need additional
time to develop a fully approvable local plan, we have added a new
Sec. 661.350(d), authorizing Governors
to approve local plans on a transitional basis during program year
2000. Governors may use this authority to give transitional approval to
local areas that have not finalized their MOU's or other elements of
their plan. Such a conditional approval is considered to be a written
determination that the local plan is not approved, but will allow
implementation of WIA reforms as they finalize the transition from JTPA
to WIA. This authority is similar to, and derives from, the Department
of Labor's authority under WIA sec. 506(d), to approve incomplete State
plans on a transitional basis.
There were a few comments about the requirements for local plan
modifications at Sec. 661.355. One commenter suggested that we drop, as
unnecessary, the requirement in Sec. 661.355 that the Governor
establish procedures for modification of local plans.
Response: While the commenter may be correct that Governors already
know their responsibilities so this regulation is not needed, we
believe that there is value in clearly specifying the responsibility to
establish these procedures so that it is not inadvertently overlooked.
A commenter suggested that we amend the illustrative list of the
circumstances when a local plan modification may be required by the
Governor, at Sec. 661.355, to include changes to the membership
structure of the Local Board among those circumstances.
Response: The regulation as written already includes this factor.
The conditions under which a State plan modification is required, in
Sec. 661.230(b), also include changes to the membership structure of
the State Board.
Another commenter asked, regarding one of the existing
circumstances in which a local plan modification may be required--at
what point is a ``change in the financing available to support WIA
title I and partner-provided WIA services'' significant enough to
warrant a modification?
Response: When developing the local plan modification procedure
under Sec. 661.355, this is one of the questions the Governor should
consider. The answer is likely to be different for different states and
possibly for different areas. We do not think it is appropriate to
restrict the Governors' authority by setting a federal standard.
Subpart D--General Waivers and Work-Flex Waivers
Subpart D indicates the elements of WIA and the Wagner-Peyser Act
that may and may not be waived under either the general waiver
authority of WIA section 189(i) or the work-flex provision at WIA
section 192. In response to comments, we have made a technical
correction in Sec. 661.420, changing paragraph (g) to (f).
We received several comments about the exceptions to the
Secretary's waiver authority, described at Sec. 661.410, and work-flex
waiver authority, described at Sec. 661.430. Commenters requested that
the regulation be amended to specify that the Secretary will not
approve waivers of title I of the Rehabilitation Act, nor of the State
merit staffing requirements of the Wagner-Peyser Act, and deleting the
Older Americans Act from work-flex waiver authority.
Response: Regarding the Rehabilitation Act, the regulations make
clear that the Secretary's authority to approve waiver requests is
limited to requests for waiver of certain provisions of WIA and the
Wagner-Peyser Act. We cannot waive provisions of other statutes. While
we are not making the suggested change, we wish to make clear that the
Department does not intend, nor do we have authority to entertain or
grant waivers of title I of the Rehabilitation Act. Similarly, an
exception for the Wagner-Peyser Act State merit staffing requirement is
not necessary. Our authority to waive Wagner-Peyser Act provisions is
limited to requirements under sections 8 through 10 of that Act. The
requirement that Wagner-Peyser Act services be provided by State merit
staff employees derives from sections 3 and 5(b)(1) of the Wagner-
Peyser Act. Accordingly, we do not intend to, nor do we have authority
to entertain or grant waivers of the Wagner-Peyser Act merit staffing
requirement. Finally, we have retained the authority for Governors to
approve waivers of certain provisions of the Older Americans Act,
because WIA section 192(a)(3) specifically provides that authority.
Other commenters suggested that we define the existing exception
prohibiting waivers of provisions relating to worker rights,
participation and protections to prohibit waivers of provisions
relating to labor nominations and appointments to State and Local
Boards, opportunities for comment on State and local plans, and the
certification process for eligible training providers. The commenters
also requested that States be required to establish a public comment
process, that includes comment from organized labor, on proposed
waivers and a work-flex plan; and asked that we conduct periodic
evaluation of the impact of waivers and work-flex activities.
Response: We have not added the suggested definition of the worker
rights, participation and protection exceptions. First, we do not agree
that the suggested provisions fall within the scope of the worker
rights, participation and protection exceptions. Secondly, we do not
think it is appropriate to define the scope of these provisions by
regulation and believe it will be more effective to deal with waiver
requests as they occur. On the other hand, we believe that requests for
waivers of the provisions suggested by the commenters will likely fall
within other exceptions to waiver authority. Section 661.410(a)(9)
excludes waivers of requirements relating to procedures for review and
approval of plans, which would exclude a waiver of the public comment
requirements for State and local plans. Provisions related to the
establishment and function of Local Boards may not be waived. This will
prohibit waivers of the nomination and appointment requirements for
Local Boards. The eligible training provider requirements seem to fall
within the key principles of empowering individuals and increasing
accountability identified at Sec. 661.400(b)(2) and (4). Provisions
relating to the key principles may not be waived under Work-flex
authority, and will only be waived by the Secretary in extremely
unusual circumstances when the provision can be demonstrated to be
impeding reform.
We agree with the commenters' suggestion regarding the public
comment process for waiver plans and work-flex plans. Section
661.430(e) already requires that the State work-flex plan undergo a
public comment process, similar to that of the State five-year plan.
While WIA section 189(i) does not specifically require that a stand-
alone waiver plan go through a similar process (a waiver plan included
within the State five-year plan would undergo public review along with
the rest of that plan), the requirement for Local Board comment on the
waiver plan at WIA section 189(i)(4)(B)(v) and the sunshine provisions
for State and Local Board activities at WIA sections 111(g) and 117(e)
indicate clear Congressional intent that major decisions involving the
workforce investment system be made in a public and open manner. In our
view, the decision to request a waiver of statutory or regulatory
requirements is such a major decision. Accordingly, we have revised
Sec. 661.420(a)(5), to require a description of the process used to
ensure meaningful public comment, including comment by business and
organized labor, on the State waiver plan. Finally, we agree on the
need for evaluation of the waiver process. Although, we have not yet
made specific plans for such a review, we intend to do so in the future.
Part 662--Description of the One-Stop System Under Title I of the
Workforce Investment Act
Introduction
The establishment of a One-Stop delivery system for workforce
development services is a cornerstone of the reforms contained in title
I of WIA. This delivery system streamlines access to numerous workforce
investment and educational, and other human resource services,
activities and programs. The Act's requirements build on reform efforts
that are well established in all States through the Department's One-
Stop grant initiative. Rather than requiring individuals and employers
to seek workforce development information and services at several
different locations, which is often costly, discouraging and confusing,
WIA requires States and communities to integrate multiple workforce
development programs and resources for individuals at the ``street
level'' through a user friendly One-Stop delivery system. This system
will simplify and expand access to services for job seekers and
employers.
The Act specifies nineteen required One-Stop partners and an
additional five optional partners to coordinate activities and
streamline access to a range of employment and training services. WIA
requires coordination among all Department of Labor funded programs as
well as other workforce investment programs administered by the
Departments of Education, Health and Human Services, and Housing and
Urban Development. WIA also encourages participation in the One-Stop
delivery system by other relevant programs, such as those administered
by the Departments of Agriculture, Health and Human Services, and
Transportation, as well as the Corporation for National and Community
Service. In addition, local areas are authorized to add additional
partners as local needs may require. All of the Federal Agencies will
continue to work together to ensure effective communication and
collaboration at the Federal level in support of One-Stop service
delivery.
Subpart A--One-Stop Delivery System
1. Structure: Subpart A describes the structure of a One-Stop
delivery system. Section 662.100, describes the One-Stop system as a
seamless system of service delivery created through the collaboration
of entities responsible for separate workforce development funding
streams. The One-Stop system is designed to enhance access to services
and improve outcomes for individuals seeking assistance. The regulation
specifically defines the system as consisting of one or more
comprehensive, physical One-Stop centers in a local area. Core services
specified in WIA section 134(d)(2) must be provided at the One-Stop
center as must access to the other activities and programs provided
under WIA and by each One-Stop partner. In addition to the statutory
list of core services, States and locals are encourated to add
additional core services such as the provision of information relating
to the availability of work supports, including, Food Stamps, Medicaid,
Children's Health Insurance Program, child support, and the Earned
Income Tax Credit. In locating each comprehensive center, Local Boards
should coordinate with the broader community, including transportation
agencies and existing public and private sector service providers, to
ensure that the centers and services are accessible to their customers,
including individuals with disabilities.
In addition to the comprehensive centers, Sec. 662.100(d) describes
three other arrangements to supplement the comprehensive center. These
supplemental arrangements include: (1) A network of affiliated sites
that provide one or more of the programs, services and activities of
the partners; (2) a network of One-Stop partners through which the
partners provide services linked to an affiliated site and through
which all individuals are provided information on the availability of
core services in the local area; and (3) specialized centers that
address specific needs. In essence, this structure may be described as
a ``one right door and no wrong door'' approach. One-Stop partners have
an obligation to ensure that core services that are appropriate for
their particular populations are made available at one comprehensive
center, and through additional sites, as described in the local plan
and consistent with the local memorandum of understanding (MOU). If an
individual enters the system through one of the network sites rather
than the comprehensive One-Stop center, the individual may obtain
certain services at the network site and must be able to receive
information about how and where the other services provided through the
One-Stop system may be obtained.
Some commenters expressed concern that the description in
Sec. 662.100 emphasizes physical locations rather than the development
of systems. The commenters suggested that the regulations be expanded
to provide that, in addition to the comprehensive center, it is
expected that local areas will build a One-Stop system by developing
affiliate relationships with existing public and private sector
providers. The commenters further suggested that more examples should
be offered as to how the centers and affiliates may mix and match
services.
Response: The purpose of Sec. 662.100 is simply to describe the
general objectives of the One-Stop system and to identify the required
components of that system as well as the alternative designs specified
in WIA. While we agree that effective networks connecting the centers
and affiliates will generally be critical to the success of the One-
Stop system, WIA allows local areas significant flexibility in
tailoring the design of the system to best meet local needs. Therefore,
rather than include examples as part the requirements of this
regulation, we will disseminate information and provide technical
assistance about how different local areas have designed effective One-
Stop systems.
Commenters also requested clarification that physical co-location
at the centers was not required for all of the services provided by a
partner's program and that each partner was not required to be co-
located at the centers.
Response: The description of the One-Stop system in Sec. 662.100
and the requirements for the provision of services at the centers in
Sec. 662.250 make it clear that WIA requires the provision of specified
core services at the centers. However, Sec. 662.250(b) specifically
provides that the core services may be provided at the centers by the
partners in a variety of ways, including agreements with service
providers at the centers to provide the core services or the provision
of appropriate technology, as alternatives to the co-location of
personnel. The extent to which services in addition to the specified
core services are provided at the centers and how services are to be
provided are matters to be addressed in the local MOU's, and are not
specified by WIA. We believe the current provisions are clear on these
issues and have not made changes to the regulations.
Some commenters also expressed concern that the description of the
One-Stop system did not address access for individuals with
disabilities, and suggested that we reiterate the applicability of the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973 to the One-Stop system.
Response: Section 667.275(a)(3) specifically states that the ADA
and Section 504, as well as the nondiscrimination provisions of WIA
section 188, are applicable to the One-Stop system as well as the other
activities administered under title I of WIA. We believe that, as with
other uniform requirements, adding this statement to every affected
section of these regulations would be duplicative and potentially
confusing. The Department's regulations implementing the
nondiscrimination provisions in WIA section 188 (29 CFR part 37)
extensively address this issue.
Subpart B--One-Stop Partners
1. Responsibilities: Subpart B identifies the One-Stop partners and
their responsibilities in the One-Stop delivery system. The required
partners are entities that carry out the workforce development
programs. They are specifically identified in section 121(b)(1) of WIA
and Sec. 662.200. Section 662.200(b)(1)(i through vii) separately
specifies the programs under title I that are included as required
partners. Section 662.200(b)(2)-(12) also identifies the other required
programs, with some clarification of the particular provisions of
certain Acts (for example, the Vocational Rehabilitation Act and the
Carl D. Perkins Act) that authorize the required partner program.
Section 662.210 identifies additional partners that may be a part of
the One-Stop system.
One commenter suggested that the Governor has the authority under
WIA to require that additional partners be included in all the local
One-Stop delivery systems in the State and asks that the regulation
include such authority. The commenter cites section 112(b)(8)(A) of
WIA, which requires the State to describe in the State plan procedures
to assure coordination and avoid duplication among specified programs,
and section 117(b)(1) of WIA, which provides that the Governor
establish criteria for the appointment of members of local boards, as
the basis for this authority.
Response: We agree that the provisions cited by the commenter
authorize the State to require that additional partners participate as
partners in all of the One-Stop systems in the State. This includes the
program specified in WIA section 121(b)(2)(B)(i) through (iv) or any
other appropriate program under WIA section 121(b)(2)(B)(v). We have
added a new section 662.210(c) to clarify that the State does have this
authority. The State's authority to identify additional partners to be
included in all One-Stop systems does not affect the CEO's authority to
include locally-identified human resource programs as One-Stop
partners. Under WIA section 121(b)(2), the CEO and Local Board may
approve any appropriate Federal, State or local program, including
programs in the private sector, for participation as a partner in the
local One-Stop system.
Entities--Section 662.220 provides a general definition of the
``entity'' that carries out the specified programs and serves as the
partner. In light of the responsibilities of the partners, which are
described in Sec. 662.230 and which include decisions about the use and
administration of program resources, the regulation defines the
``entity'' as the grant recipient or other entity or organization
responsible for administering the program's funds in the local area.
The term ``entity'' does not include service providers that contract
with or are subrecipients of the local entity. Section 662.220(a)
provides that for programs that do not have local administrative
entities, the responsible State agency should be the One-Stop partner.
In addition, Sec. 662.220(b) (1) and (2) specifies the appropriate
entities to serve as partner for the Adult Education and Vocational
Rehabilitation programs. Entities that serve as the partner under the
Indian and Native American, Migrant and Seasonal Farmworker, and Job
Corps programs are identified in the parts of the regulations
applicable to those programs (parts 668, 669, and 670 respectively).
One commenter requested two clarifications about the partner
representing the Adult Education and Literacy programs under title II
of WIA. First, while the regulation specifies that the partner for
those programs is the State eligible entity or an eligible provider
designated by the State entity, the commenter suggested adding
authority for the State entity to designate a consortium of eligible
providers as the partner. Second, the commenter suggested clarifying
that the State eligible entity also has the authority to designate the
individual representing the partner on the local boards, not just the
entity.
Response: We agree that the State eligible entity may designate a
consortium of eligible providers to serve as the local One-Stop partner
and have modified the regulation to clarify this authority. However, we
assume that any consortium so designated would have mechanisms in place
so that it speaks with one voice on behalf of Adult Education and
Literacy programs on issues affecting the One-Stop system. We would not
expect that the designation of a consortium would require the Local
Board to separately negotiate with each member of the consortium about
how the responsibilities of the partner will be carried out.
The second issue is addressed in the preamble discussion of 20 CFR
part 661.
Another commenter noted that Sec. 662.220(b)(3) only defines
national programs under title I of WIA as required partners if such
programs are present in the local area and suggested that the
regulation apply the same condition to the other required partners.
Response: We agree that the responsibilities of a required partner
apply in those local areas where the required partner provides
services. We do not believe WIA was intended to require programs not
serving local areas to begin to provide services in such areas, but
instead to require collaboration through the One-Stop system in any
local area in which such services are provided. While we believe that
the vast majority of local areas are currently served by the required
partner programs, the regulation is modified to clarify this
requirement.
Several commenters also noted that several of the programs
identified as required partners may be administered by the same entity
in the State or local area and the regulation should indicate that one
individual from that entity may represent all such programs on the
local board.
Response: This issue is addressed in the preamble discussion of 20
CFR part 661.
Partner Responsibilities--Section 662.230 describes and elaborates
on the statutory responsibilities of the partners and identifies the
five provisions of the Act that describe these responsibilities. These
responsibilities include: (1) Making available through the One-Stop
system appropriate core services that are applicable to the partner's
program; (2) using a portion of funds available to the partner's
program, to the extent not inconsistent with the Federal law
authorizing the program, to create and maintain the One-Stop delivery
system and to provide core services; (3) entering into an MOU regarding
the operation of the One-Stop system; (4) participating in the
operation of the One-Stop system; and (5) provide representation on the
Local Board.
Several commenters expressed concerns about the required use of a
portion of the partners' funds to support the One-Stop system. Some
commenters suggested that certain authorizing laws, such as the Perkins
Vocational Education Act, would not permit such
use. Other commenters suggested that since the WIA statutory language
requires that partner funds be used to ``establish'' the One-Stop
system, the regulatory requirement be limited to initial start-up of
the system and not include any responsibility to use funds to
``maintain'' the system. In addition, some commenters were concerned
about whether we could enforce the use of funds requirement and
suggested that unless the partners contributed real resources, the
overall WIA vision would not be achieved.
Response: WIA section 134(d)(1)(B) specifically requires all of the
required partners to use a portion of their funds to support the One-
Stop system. We believe the language providing that the use of the
partners' funds not be inconsistent with the authorizing law may affect
the particular One-Stop activities the partner may support, but is not
intended to nullify this requirement. Several of the core services
(e.g., outreach) are authorized under all programs, and each partner
should collaborate to ensure that the local One-Stop system is
providing workforce investment activities that are of benefit to
participants in the partner's program. A portion of the partner's funds
is then used to support the system in providing those activities. The
details of the particular portion and use of those funds are to be
addressed in the MOU. These issues are further addressed in the
subsequent regulatory provisions of this subpart.
With respect to the responsibility to assist in maintaining the
system, we believe that the requirement in Sec. 662.230(a)(2)(i) that a
portion of funds be used to ``create and maintain'' the One-Stop system
is the appropriate interpretation of the statutory requirement in WIA
section134(d)(1)(B) that a partner use a portion of funds to
``establish'' the One-Stop delivery system. There is nothing in WIA or
the legislative history to suggest that ``establish'' refers to a one-
time start-up activity. To the contrary, all of the partners'
responsibilities apply as long as the One-Stop system is in operation
and include participation in the operation of the One-Stop system (WIA
section121(b)(1)(B)) and carrying out the MOU that includes the details
on the funding of the system (WIA sec. 121(c)). We do not believe that
Congress intended that the partners continue to participate in the
operation of the one-stop system, but that their responsibility to use
funds to support that system terminate as soon as some undefined start-
up period is completed. Rather, we believe the only reasonable
interpretation is that a required partner's responsibility to use a
portion of funds to support the system continues along with the
participation of the partner in the system. Therefore, we have not
changed this provision of the regulations.
With respect to enforcement of these requirements, we are working
with the other Federal agencies to ensure that all partner programs are
aware of and carry out these requirements. We believe that full
participation in the One-Stop system will be of great benefit to the
partners' programs and to their participants, and, therefore, these
requirements should be viewed as promoting a comprehensive and
effective system of service delivery for each local area.
Section 662.240 addresses the core services applicable to a
partner's program that are to be provided through the One-Stop system.
Section 662.400(a) lists the core services that are described in
section 134(d)(2) of WIA, and defines ``applicable'' to mean the
services from that list that are authorized and provided under the
partner programs. The extent to which core services are applicable to a
partner program, as well as the manner in which services are provided,
are determined by the program's authorizing statute.
Some commenters suggested we further define many of the listed core
services. For example, one suggestion was to require career counseling
to include a discussion of self-sufficiency standards to assist in
setting long-term employment goals. Another suggestion was to require
additional employment statistics information relating to high wage jobs
and employment laws. Other suggestions included adding computer
literacy to the initial assessment, and information relating to
employment righ