Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Proposed Rules 9517 

PART 39—AIRWORTHINESS 

DIRECTIVES 

1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

2. The FAA amends § 39.13 by adding 

the following new AD: 

Turbomeca S.A.: Docket No. FAA–2011– 

0115; Directorate Identifier 2010–NE– 

40–AD. 

Comments Due Date 

(a) We must receive comments by April 4, 

2011. 

Affected Airworthiness Directives (ADs) 

(b) None. 

Applicability 

(c) This AD applies to Turbomeca S.A. 

ARRIEL 2B and 2B1 turboshaft engines not 

modified by TU166 modification. These 

engines are installed on, but not limited to, 

Eurocopter AS 350 B3 and EC 130 B4 

helicopters. 

Reason 

(d) This AD results from: 

Several cases of Gas Generator (GG) 

Turbine Blade rupture occurred in service on 

ARRIEL 2 twin engine applications and 

recently one on a single engine helicopter. 

For the case occurring in flight on a single 

engine helicopter (ARRIEL 2B1 engine), the 

pilot performed an emergency autorotation, 

landing the helicopter without further 

incident. 

We are issuing this AD to prevent rupture 

of a GG turbine blade, which could result in 

an uncommanded in-flight shutdown and an 

emergency autorotation landing or accident. 

Actions and Compliance 

(e) Unless already done, do the following 

actions. 

(1) Accomplish TU166 modification in 

accordance with the instructions specified 

within Turbome ́ca Mandatory Service 

Bulletin (MSB) A292 72 3166 Version B, 

dated September 20, 2010, when the GG 

Turbine is replaced or when the engine or 

Module M03 is going through overhaul or 

repair, or within 1,300 cycles-in-service after 

the effective date of this AD, whichever 

occurs first. 

(2) Accomplishment, before the effective 

date of this AD, of TU166 modification in 

accordance with the instructions of 

Turbome ́ca MSB A292 72 3166 Version A, 

dated August 17, 2010, satisfies the 

requirement of paragraph (e)(1) of this AD. 

FAA AD Differences 

(f) This AD differs from the Mandatory 

Continuing Airworthiness Information 

(MCAI) and or service information by the 

following: 

(1) European Aviation Safety Agency 

(EASA) AD No. 2010–0198, dated October 1, 

2010, applies to the ARRIEL 2B1A engine. 

This AD does not apply to that model 

because it has no U.S. type certificate. 

(2) EASA AD No. 2010–198 has a 

compliance date of ‘‘but no later than 25 

months after the effective date of this AD. 

This AD has a compliance time of ‘‘1,300 

cycles-in-service,’’ based on average fleet 

usage data supplied by Turbomeca. 

Other FAA AD Provisions 

(g) The following provisions also apply to 

this AD: 

Alternative Methods of Compliance 

(AMOCs) 

(h) The Manager, Engine Certification 

Office, FAA, has the authority to approve 

AMOCs for this AD, if requested using the 

procedures found in 14 CFR 39.19. 

Related Information 

(i) Refer to MCAI EASA Airworthiness 

Directive 2010–0198, dated October 1, 2010, 

and Turbomeca S.A. Mandatory Service 

Bulletins A292 72 3166, Version A, dated 

August 17, 2010, and A292 72 3166 Version 

B, dated September 20, 2010, for related 

information. Contact Turbomeca S.A., 40220 

Tarnos, France; e-mail: noriadallas@turbomeca.com; telephone 33 05 59 

74 40 00, fax 33 05 59 74 45 15, or go to: 

http://www.turbomeca-support.com, for a 

copy of this service information. 

(j) Contact James Gray, Aerospace 

Engineer, Engine Certification Office, FAA, 

Engine & Propeller Directorate, 12 New 

England Executive Park, Burlington, MA 

01803–5299; e-mail: james.e.gray@faa.gov; 

telephone (781) 238–7742; fax (781) 238– 

7199, for more information about this AD. 

Issued in Burlington, Massachusetts, on 

February 14, 2011. 

Peter A. White, 

Acting Manager, Engine and Propeller 

Directorate, Aircraft Certification Service. 

[FR Doc. 2011–3684 Filed 2–17–11; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF LABOR 

Veterans’ Employment and Training 

Service 

20 CFR Part 1001 

RIN 1293–AA18 

Uniform National Threshold Entered 

Employment Rate for Veterans 

AGENCY: Veterans’ Employment and 

Training Service, Labor. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: The Veterans’ Employment 

and Training Service (VETS) of the 

Department of Labor (the Department) is 

proposing a rule to implement a 

uniform national threshold entered 

employment rate for veterans applicable 

to State employment service delivery 

systems. The Department undertakes 

this rulemaking in accordance with the 

Jobs for Veterans Act, which requires 

the Department to implement that 

threshold rate by regulation. 

DATES: To ensure consideration, 

comments must be received on or before 

April 19, 2011. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1293–AA18, by any one 

of the three following methods: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

Web site instructions for submitting 

comments. 

• Mail/Hand Delivery/Courier: 

Written comments, disk, and CD–ROM 

submissions may be mailed or delivered 

by hand delivery/courier to The 

Veterans’ Employment and Training 

Service, U.S. Department of Labor, 200 

Constitution Avenue, NW., Room 

S–1325, Washington, DC 20210. 

• Fax: Comments may be submitted 

by fax, with a cover page to the attention 

of Patrick Hecker, at (202) 693–4755 

(this is not a toll-free number). 

Instructions: Please submit your 

comments by only one method. All 

submissions received must include the 

agency name, as well as RIN 1293– 

AA18. The Department will post all 

comments received on http:// 

www.regulations.gov without making 

any change to the comments, including 

any personal information provided. The 

http://www.regulations.gov Web site is 

the Federal e-rulemaking portal and all 

comments posted there are available 

and accessible to the public. Therefore, 

the Department recommends that 

commenters safeguard their personal 

information such as Social Security 

Numbers, personal addresses, telephone 

numbers, and e-mail addresses. It is the 

responsibility of the commenter to 

safeguard his or her information. Also, 

please note that due to security 

concerns, postal mail delivery in 

Washington, DC, may be delayed. 

Therefore, in order to ensure that 

comments receive full consideration, 

the Department encourages the public to 

submit comments via the Internet as 

indicated above. 

Docket: The Department will make all 

the comments it receives available for 

public inspection during normal 

business hours at the above address. If 

you need assistance to review the 

comments, the Department will provide 

you with appropriate aids such as 

readers or print magnifiers. The 

Department will make copies of the 

proposed rule available, upon request, 

in large print or electronic file on 

computer disk. The Department will 

consider providing the proposed rule in 

other formats upon request. To schedule 

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9518 Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Proposed Rules 

an appointment to review the comments 

and/or obtain the proposed rule in an 

alternate format, contact the office of 

Gordon Burke at (202) 693–4730 

(VOICE) (this is not a toll-free number) 

or (202) 693–4760 (TTY/TDD). You may 

also contact Mr. Burke’s office at the 

address listed above. 

FOR FURTHER INFORMATION CONTACT: 

Patrick Hecker, State Grants Lead, 

Veterans’ Employment and Training 

Service, U.S. Department of Labor, 200 

Constitution Avenue, NW., Room 

S–1312, Washington, DC 20210, at 

Hecker.Patrick@dol.gov, or at (202) 693– 

4709 (this is not a toll-free number). 

SUPPLEMENTARY INFORMATION: The 

preamble to this proposed rule is 

organized as follows: 

I. Background—provides a brief description 

of the development of the proposed rule. 

II. Section-by-Section Review of the Proposed 

Rule—summarizes and discusses the 

proposed regulations. 

III. Administrative Information—sets forth 

the applicable regulatory requirements. 

I. Background 

On November 7, 2002, the Jobs for 

Veterans Act (JVA), Public Law 107–288 

(Nov. 7, 2002) was signed into law. 

Section 4(a)(1) of the JVA amended 38 

U.S.C. 4102A to require that the 

Secretary of Labor ‘‘establish, and 

update as appropriate, a comprehensive 

performance accountability system (as 

described in subsection (f)) and carry 

out annual performance reviews of 

veterans employment, training, and 

placement services provided through 

employment service delivery systems, 

including through disabled veterans’ 

outreach program specialists and 

through local veterans’ employment 

representatives in States receiving 

grants, contracts, or awards under this 

chapter.’’ 38 U.S.C. 4102A(b)(7). 

Section 4102A(f) referred to in the 

statutory quote above requires the 

establishment of performance standards 

and outcome measures to measure the 

performance of State employment 

service delivery systems. Section 

4101(7) of the statute defines 

‘‘employment service delivery system’’ 

to include ‘‘labor exchange services 

* * * offered in accordance with the 

Wagner-Peyser Act.’’ The Department 

interprets this definition to include the 

services delivered through the WagnerPeyser State Grants, funded by the 

Employment and Training 

Administration (ETA), as well as the 

services delivered through the Jobs for 

Veterans State Grants (JVSG), funded by 

VETS. In addition, the Department 

interprets this definition to exclude the 

services funded through the Workforce 

Investment Act of 1998 (WIA) (Pub. L. 

105–220). 

Under section 4102A(f), the standards 

and measures used to assess 

performance of veterans’ programs must 

be consistent with State performance 

measures applicable under section 

136(b) of the WIA. 38 U.S.C. 

4102A(f)(2)(A); see also WIA section 

136(b) (codified at 29 U.S.C. 2871(b)). 

The basic standards and measures 

applied by the Department to measure 

performance under WIA are referred to 

in the State employment service 

delivery systems as ‘‘common 

measures.’’ The current methods of 

calculating the common measures are 

specified in Training and Employment 

Guidance Letter (TEGL) No.17–05, 

issued on February 17, 2006. This TEGL 

can be accessed at http:// 

wdr.doleta.gov/directives/attach/ 

TEGL17-05.pdf. The common measures 

for adult workforce programs include a 

measure of the rate at which enrollees 

of State employment service delivery 

systems enter employment. This is 

referred to as the ‘‘entered employment 

rate’’ or EER. Under the common 

measures, there is a comparable EER 

specifically applicable to veterans and 

eligible persons. Application of that 

measure to all State employment service 

delivery systems is implemented each 

year through issuance of a Veterans’ 

Program Letter (VPL), most recently VPL 

08–10, issued on June 29, 2010, which 

established the reporting and 

performance measurement requirements 

for PY 2010. This VPL can be accessed 

at: http://www.dol.gov/vets/VPLS/ 

VPLDirectory.html. 

This Proposed Rule establishes a 

uniform national threshold only for the 

EER for veterans and eligible persons. If 

the calculation of the standards and 

measures applied by the Department to 

measure performance under WIA or 

under a successor program to WIA are 

revised in the future by the Department 

through issuance of policy guidance, the 

Proposed Rule provides that the revised 

method of calculating the EER for 

veterans and eligible persons will be 

used in calculating the uniform 

threshold EER for the purposes of the 

Proposed Rule. The method of 

calculating the uniform national 

threshold EER for veterans and eligible 

persons will be specified to State 

employment service delivery systems in 

the annual VPL, as mentioned above. 

As part of its responsibility for 

measuring the performance of veterans’ 

programs, the Department is required to 

establish a uniform national threshold 

EER to be used in determining whether 

a State is deficient with regard to its 

EER for veterans and eligible persons. 

Section 4102A(c)(3) of Title 38 provides: 

(A)(i) As a condition of a grant or contract 

under this section for a program year, in the 

case of a State that the Secretary determines 

has an entered employment rate for veterans 

that is deficient for the preceding program 

year, the State shall develop a corrective 

action plan to improve that rate for veterans 

in the State. (ii) The State shall submit the 

corrective action plan to the Secretary for 

approval, and if approved, shall 

expeditiously implement the plan. (iii) If the 

Secretary does not approve a corrective 

action plan submitted by the State under 

clause (i), the Secretary shall take such steps 

as may be necessary to implement corrective 

actions in the State to improve the enteredemployment rate for veterans in that State. 

(B) To carry out subparagraph (A), the 

Secretary shall establish in regulations a 

uniform national threshold enteredemployment rate for veterans for a program 

year by which determinations of deficiency 

may be made under subparagraph (A). (C) In 

making a determination with respect to a 

deficiency under subparagraph (A), the 

Secretary shall take into account the 

applicable annual unemployment data for the 

State and consider other factors, such as 

prevailing economic conditions, that affect 

performance of individuals providing 

employment, training, and placement 

services in the State. 

The purpose of this Proposed Rule is 

to establish the uniform national 

threshold EER, as required of the 

Secretary in 38 U.S.C. 4102A(c)(3)(B), 

for use in determining deficiencies in 

States’ performance in assisting veterans 

to meet their employment needs. The 

Proposed Rule also explains how the 

threshold will be used in the process of 

identifying those States to be reviewed 

for a potential determination of 

deficiency, and it identifies certain 

factors, in addition to the threshold, that 

will be included in the Department’s 

review to determine deficiency. 38 

U.S.C. 4102A(c)(3)(C). Finally, in those 

cases in which a State’s EER is 

determined to be deficient, the Proposed 

Rule identifies the procedure for the 

subsequent submission and review of a 

corrective action plan (CAP), the 

delivery of technical assistance (TA), 

and the initiation of the necessary steps 

to implement corrective actions to 

improve the State’s performance in 

assisting veterans to meet their 

employment needs. 38 U.S.C. 

4102A(c)(3)(A). 

VETS is the agency of the Department 

with principal responsibility for 

monitoring the performance of all State 

employment service delivery systems 

with respect to the services received and 

outcomes experienced by veterans. 

Since Program Year 2005 (July 1, 2005 

through June 30, 2006), VETS has been 

collecting data from each State on the 

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EER achieved for veterans and eligible 

persons, and annually VETS calculates 

the national EER for veterans and 

eligible persons. VETS is taking this 

rulemaking action to establish the 

uniform national threshold EER now 

since the common measures, including 

the EER for veterans and eligible 

persons, have been in place for several 

years in the State employment service 

delivery systems and there is empirical 

data and a rational basis for proposing 

a uniform national threshold EER for 

veterans and eligible persons. 

To establish the uniform national 

threshold, VETS has considered a 

variety of methodologies and has used 

actual EER results from Program Years 

2005 through (3rd Quarter) 2009 in 

order to test the validity of the 

methodologies. VETS’ goal was to 

establish a uniform national threshold 

that would meet five criteria: the 

threshold should produce reasonable 

results under varying economic 

conditions; the threshold should relate 

directly to the national EER because the 

national EER is the overall program 

performance measure related to entered 

employment rates; the threshold should 

identify State agencies whose EERs are 

demonstrably low; the threshold 

methodology should be easily explained 

and readily grasped; and the annual 

threshold-setting process should not 

conflict with or introduce confusion 

into the annual performance goal-setting 

process conducted between VETS and 

each State agency. 

VETS first developed and tested a 

two-step process setting the uniform 

national threshold EER for veterans and 

determining which, if any State agencies 

would be subject to a formal review to 

determine whether or not a Corrective 

Action Plan would be required. First, 

VETS would compare each State’s 

program year EER with the national EER 

for that program year. Then, the State’s 

program year EER would be compared 

to the State’s average EER for the prior 

three program years. Those two 

comparisons would provide the basis 

for identifying those States that would 

undergo further review of their program 

year EERs. By comparing each State’s 

program year EER to the national EER 

for the same program year while also 

comparing each State’s program year 

EER to its own average EER for the prior 

three program years, the process was 

intended to balance application of a 

standard criterion with application of a 

relative measure reflecting the variation 

among the States with respect to 

economic conditions and other relevant 

factors. However, empirical tests with 

State performance data from Program 

Years 2008 and 2009 demonstrated that 

this methodology did not produce 

reasonable results under the conditions 

created by the economic recession 

experienced during that period. 

Another formula that was developed 

and tested involved averaging of the 

annual national EERs, measuring the 

percentage of change over time, and 

using the resultant change percentage as 

the uniform national threshold EER; that 

benchmark would be used for 

comparisons of the change percentages 

in the program year EERs achieved by 

each State for the same time period. 

This methodology added complexity to 

the process, and testing also 

demonstrated that averaging tends to 

skew the resultant measure up or down. 

Therefore, VETS determined that the 

use of a method involving averaging 

adds complexity without producing 

reasonable results. 

VETS then looked at simpler designs 

for calculating and applying the uniform 

national threshold EER. One 

methodology used the national EER for 

the program year before the subject 

program year as the basis for calculating 

the threshold EER. The process would 

have involved simply setting the 

threshold at a particular percentage of 

the national EER from the prior year and 

comparing the State agencies’ actual 

achievements in the subject program 

year to that threshold percentage. 

However, testing at several different 

levels, that is, percentages, indicated 

that using the prior year’s national EER 

as the basis for a threshold also 

produces unreasonable results in years 

when there are relatively unusual 

declines or upturns in economic 

conditions. 

VETS then tested and selected a 

similar one-step methodology using the 

national EER for the subject program 

year as the basis for calculating the 

threshold EER. VETS chose to propose 

a 90% (of the national EER) level as the 

threshold for identifying the State 

agencies to be subject to a deficiency 

review each year because testing of that 

threshold level most completely 

satisfies the five criteria stated above. 

Testing of higher and lower threshold 

levels (e.g., 80 to 95% of the national 

EER) produced results that in one or 

more ways failed to satisfy those 

criteria. 

II. Section-by-Section Review of the 

Proposed Rule 

The Proposed Rule includes a total of 

eight sections. Sections 1001.160 

through 1001.162 address the general 

aspects of the Proposed Rule, such as 

purpose, scope and definitions. Sections 

1001.163 and 1001.164 address the two 

EER measures that are at the heart of the 

Proposed Rule: (a) A State’s program 

year EER, which will be reviewed 

annually for each State against the 

national threshold EER; and (b) the 

uniform national threshold EER, which 

is the benchmark used in the annual 

review of each State’s program year 

EER. VETS proposes to use the uniform 

national threshold EER as the criterion 

for evaluating each State’s program year 

EER because this methodology is 

reasonable, easy to understand, and 

likely to promote continuous 

improvement in the entered 

employment outcomes achieved for 

veterans and eligible persons. Section 

1001.165 states when the uniform 

national threshold EER will be 

published each year, and § 1001.166 

explains how the two proposed EER 

measures will be used in the process of 

determining whether or not a State 

agency will be subject to a CAP in order 

to receive its next-due Jobs for Veterans 

State grant. Section 1001.167 addresses 

other monitoring of compliance 

regarding services to veterans. 

What is the purpose and scope of this 

part? (§ 1001.160) 

Section 1001.160 briefly describes the 

purpose of this regulation and supplies 

the citation of the requirement in the 

JVA. It also identifies the service 

providers to which this regulation 

applies, that is, the agencies that 

comprise State employment service 

delivery systems. 

What definitions apply to this part? 

(§ 1001.161) 

Section 1001.161 defines the terms 

used in this proposed rule. For purposes 

of this Proposed Rule, the Department is 

interpreting the statutory term 

‘‘employment service delivery system’’ 

to include the employment service 

delivery infrastructure, personnel, and 

services provided through the combined 

funding of Wagner-Peyser State Grants 

and JVSGs, but excluding those delivery 

systems provided through WIA grants 

and governed by a separate performance 

system. A program year, which is the 

performance period applicable to State 

employment service delivery systems, is 

defined as the period from July 1 of a 

year through June 30 of the following 

year. A program year is numbered 

according to the calendar year during 

which it begins. 

How does the Department define 

veteran for purposes of this subpart? 

(§ 1001.162) 

The definition of veteran currently in 

effect for the State employment service 

delivery systems operating under the 

Wagner-Peyser and JVSG funding is 

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based on the definition of the term 

eligible veteran in 38 U.S.C. 4211(4), as 

referenced in 38 U.S.C. 4101(4). That 

definition of eligible veteran includes a 

criterion requiring the individual to 

have served over 180 days on active 

military duty. That definition of veteran 

currently applies to eligibility for JVSG 

services and also applies to the State 

employment service delivery systems 

(both the Wagner-Peyser and JVSG 

components) for program reporting 

purposes. 

The JVA enacted a new priority of 

service requirement for veterans and 

eligible spouses in all employment and 

training programs funded by the 

Department. The Department has 

implemented that requirement through 

issuance of a final rule on veterans’ 

priority of service at 20 CFR Part 1010. 

Section 1010.110 of that rule clarifies 

that the definition of veteran enacted for 

priority of service purposes at 38 U.S.C. 

4215(a)(1)(A) refers to the definition of 

veteran at 38 U.S.C. 101(2), which does 

not include the criterion requiring over 

180 days of active duty service. Section 

1010.330(c)(2)(i) of the priority of 

service rule further specifies that the 

latter, less restrictive, definition of 

veteran will be applied in the future for 

reporting the services received and the 

outcomes experienced by veterans and 

eligible spouses served by employment 

and training programs funded by the 

Department. 

In conjunction with issuance of the 

final rule on priority of service, the 

Department also published an 

Information Collection Request (ICR) 

which was approved by the Office of 

Management and Budget (OMB) under 

OMB Control Number 1205–0468. The 

reporting specifications authorized 

under that approval call for application 

of the less restrictive definition of 

veteran to the Wagner-Peyser 

component of State employment service 

delivery systems. The Department 

delayed implementing this new 

requirement in light of the impact of the 

current recession on the public 

workforce system, as well as the impact 

upon the system of the various 

initiatives in response to the recession, 

which were authorized under the 

American Recovery and Reinvestment 

Act. It is not certain when the 

Department will implement the new 

reporting specifications. 

To accommodate the anticipated 

addition of the less restrictive veteran 

definition for reporting by the WagnerPeyser component of State employment 

service delivery systems, the 

Department intends the proposed rule’s 

definition of veteran to have two stages. 

The first stage will begin with 

application of the rule to the first 

program year that begins following the 

effective date of the final rule. During 

the first stage, all the EER measures 

implemented under the proposed rule 

will reflect the more restrictive veteran 

definition. The second stage will begin 

two years after the program year for 

which data are first collected and 

reported on the less restrictive veteran 

definition. For example, if priority of 

service reporting first applies to 

Wagner-Peyser for PY 2011, the second 

stage of implementation of the proposed 

rule will first apply for PY 2013. During 

the second stage, all the EER measures 

implemented under the proposed rule 

will reflect the less restrictive veteran 

definition. During the second stage of 

implementation, any veteran who meets 

the more restrictive definition will be 

considered to meet the less restrictive 

definition. 

Applying the definition of veteran in 

two stages will enable immediate 

implementation of the uniform national 

threshold EER under the more 

restrictive veteran definition, while also 

establishing the necessary period for 

implementing the uniform national 

threshold EER using the less restrictive 

veteran definition. This addition of the 

new definition of veteran for the 

Wagner-Peyser component of State 

employment delivery systems will not 

increase the information collection 

burden for the States, nor will it alter 

the calculation, publication, or use of 

the EER for veterans and eligible 

persons, as described in the sections 

that follow. 

When the less restrictive definition of 

veteran takes effect for these regulations 

and is applied to the Wagner-Peyser 

component of State employment service 

delivery systems as required by the 

priority of service final rule and the 

accompanying reporting specifications, 

the more restrictive definition (i.e., 180+ 

days of active duty service) also will be 

retained. That is because the Secretary 

is required, by 38 U.S.C. 4107(c)(1), to 

report annually to the Senate and House 

Veterans’ Affairs Committees on 

employment and training services for 

veterans. The statutory requirement for 

that report specifies that it is to include 

information on the characteristics, 

services and outcomes of ‘‘eligible’’ 

veterans who meet the more restrictive 

veteran definition. Therefore, unless 

that specific reporting requirement is 

amended through legislative action, the 

Wagner-Peyser component of State 

employment service delivery systems 

will be reporting information for 

veterans about their characteristics 

(such as their veteran status), services 

received and outcomes experienced, 

under both definitions. 

What is the national entered 

employment rate (EER) and what is a 

State’s program year EER for purposes 

of this part? (§ 1001.163) 

This proposed section discusses the 

two EER measures that will be used in 

the evaluation process described by the 

proposed rule. Generally, an EER for 

veterans and eligible persons looks at 

the veterans and eligible persons who 

have participated in an employment 

service delivery system and then exited 

that system. The EER measures the 

number of these participants who are 

employed after exiting compared to the 

total number of the participants who 

exited. The calculation of the EER, as 

discussed above, is specified through 

Departmental policy guidance issued in 

TEGL No.17–05, which describes the 

calculation of all the common measures. 

The TEGL describes the entered 

employment rate as: 

Of those who are not employed at the date 

of participation: The number of adult 

participants who are employed in the first 

quarter after the exit quarter divided by the 

number of adult participants who exit during 

the quarter. 

This Proposed Rule uses this 

calculation of the EER as applied to 

veterans and eligible persons who 

participate in State employment service 

delivery systems, consistent with VPL 

08–10. This calculation is stated in 

proposed § 1001.163(b). 

Using this calculation method, VETS 

annually calculates the national EER for 

veterans and eligible persons. As stated 

in proposed § 1001.163(c), the 

calculation of the national EER for 

veterans and eligible persons measures 

the employment results for the group of 

veterans and eligible persons who are 

not employed at the date of their 

participation in the nationwide set of 

State employment service delivery 

systems and then exit those systems 

during the set of four exit quarters that 

is associated with the EER measure for 

a specific four-quarter reporting period. 

This nationwide perspective on the 

State employment service delivery 

systems looks at all the employment 

service delivery systems in each State 

together as one national employment 

service delivery system. The national 

EER for veterans and eligible persons 

currently is computed by: (1) Summing, 

for the set of four exit quarters, the total 

number of these veterans and eligible 

persons who are employed in the first 

quarter after their exit quarter; 

(2) summing, for the set of four exit 

quarters, the total number of these 

veterans and eligible persons who exit 

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during the exit quarters; and, (3) 

dividing the first sum by the second 

sum. This measure currently is 

compiled by the Labor Exchange 

Reporting System (LERS), implemented 

by ETA, and currently is displayed in 

the cell that appears in Row 6 at 

Column A–4 of the ETA 9002–D Report, 

as defined in the ETA 9002 and VETS 

200 DATA PREPARATION 

HANDBOOK; ET HANDBOOK NO. 406 

(OMB Approval No.: 1205–0240; 

Expiration Date: 03/31/2012). The 

national EER resulting from this 

calculation is expressed as a percentage 

that is rounded to the nearest tenth of 

a percent. 

A State’s program year EER is the EER 

for veterans and eligible persons 

achieved by a single State’s employment 

service delivery system for the program 

year under review. It is calculated using 

the same method as the national EER. A 

State’s program year EER is discussed in 

proposed § 1001.163(d). A State’s 

program year EER is expressed as a 

percentage that is rounded to the nearest 

tenth of a percent. For the balance of 

this preamble, a ‘‘State’s program year 

EER’’ also may be referred to simply as 

a ‘‘program year EER.’’ 

Section 1001.163(b) of the Proposed 

Rule specifies that the method of 

calculation of the EER for veterans and 

eligible persons is established based on 

policy guidance issued by the 

Department. As indicated above, that 

method of calculation currently is: (a) 

Established by TEGL No. 17–05; (b) 

implemented for reporting purposes by 

ET HANDBOOK NO. 406; and, (c) 

applied to State employment service 

delivery systems for veterans and 

eligible persons by VPL 08–10. If the 

Department revises the calculation of 

the EER in the future through new 

policy guidance, the revised method of 

calculation will apply to the calculation 

of the national EER and a State’s 

program year EER. 

What is the uniform national threshold 

EER, and how is it calculated? 

(§ 1001.164) 

The uniform national threshold EER 

is equal to 90% of the national EER for 

veterans and eligible persons (as defined 

in § 1001.163(c)). 

As discussed above for § 1001.163 of 

the Proposed Rule, the method of 

calculating the EER for veterans and 

eligible persons is established through 

policy guidance. The Department may 

revise the method of calculating the EER 

through the issuance of new policy 

guidance. If this occurs, the uniform 

national threshold EER will remain 90% 

of that newly-calculated national EER 

for veterans and eligible persons. 

VETS chose to propose the 90% (of 

the national EER) level as the threshold 

for identifying the State agencies to be 

subject to a deficiency review each year 

because testing of that threshold level 

(using the empirical data available) most 

completely satisfies the five criteria 

stated in the Background section above. 

Testing of higher and lower threshold 

levels (e.g., 80 to 95% of the national 

EER) using empirical data from prior 

years produced results that in one way 

or another failed to satisfy those criteria. 

When will the uniform national 

threshold EER be published? 

(§ 1001.165) 

Complete, final program year results 

for the entered employment outcomes 

achieved by each State agency typically 

are compiled by VETS during the month 

of October following the end of each 

program year (on June 30). For each 

program year, VETS will: (a) Finalize its 

calculation of the uniform national 

threshold EER; (b) finalize its 

calculation of each State’s program year 

EER; and, (c) when practicable, publish 

those results in December following the 

end of the program year. 

How will the uniform national threshold 

EER be used to evaluate whether a State 

will be required to submit a corrective 

action plan (CAP)? (§ 1001.166) 

The JVA requires that the Department 

develop a uniform national threshold 

EER by which determinations of 

deficiency may be made. 38 U.S.C. 

4102A(c)(3)(B). If the Department 

determines that a State’s program year 

EER is deficient, the State must develop 

a CAP. 38 U.S.C. 4102A(c)(3)(A)(i). The 

law requires the Secretary to take into 

account the annual unemployment data 

for the State and to consider other 

factors that may have affected the 

program year EER for veterans and 

eligible persons, such as prevailing 

economic conditions, before requiring a 

CAP. 38 U.S.C. 4102A(c)(3)(C). 

The Department proposes to use a 

simple comparison process to identify 

those State agencies that need to 

undergo further review to determine 

whether their program year EERs are 

deficient, resulting in the need for a 

CAP. First, the Department will 

compare each State’s program year EER 

with the uniform national threshold 

EER (90% of the national EER) for that 

program year. A State agency whose 

program year EER does not meet or 

exceed the uniform national threshold 

will be subject to a review by VETS to 

determine whether the program year 

EER is deficient. For those States whose 

program year EER is determined to be 

deficient, a CAP will be required. 

VETS’ review to determine deficiency 

will consider the degree to which the 

State’s program year EER fell short of 

the uniform national threshold EER for 

that program year, as well as the annual 

unemployment data for the State. The 

review also may include other relevant 

factors, including other measures of 

prevailing economic conditions and 

regional economic conditions, other 

measures of workforce program 

performance, and/or any information 

the State may submit. The review will 

include consultation with VETS field 

staff about findings from their on-site 

reviews and desk audits of the State 

agency’s implementation of policies and 

procedures for services to veterans. The 

review also may include consultation 

with staff affiliated with other agencies 

of the Department, as appropriate. 

The determination that a program 

year EER for any State is deficient will 

be made on the basis of this review. 

Once a State’s program year EER has 

been determined to be deficient, the 

governing statute envisions a 

cooperative relationship between that 

State and the Department. Evidence of 

that intent is the inclusion in the statute 

of specific authorization (at 38 U.S.C. 

4102A(g)) for the Secretary to provide 

technical assistance (TA) to any State 

whose program year EER is determined 

to be deficient, including TA in the 

development of a CAP. 

The following illustrates how the 

uniform national threshold EER and the 

State’s program year EER will be 

compared. In these examples, the 

program year hypothetically is Program 

Year (PY) 2009, the national EER is 

65.2%, and the uniform national 

threshold EER is 58.7%. 

1. State agency #1 achieved a program 

year EER of 63.5%. This State would be 

exempt from a deficiency review based 

solely on the statistics because its 

program year EER exceeds the uniform 

national threshold EER. 

2. State agency #2 achieved a program 

year EER of 58.7%. This State would be 

exempt from a deficiency review based 

solely on the statistics because its 

program year EER equals the uniform 

national threshold EER. 

3. State #3 achieved a program year 

EER of 58.0%. This State would be 

considered subject to a deficiency 

review because it failed to meet or 

exceed the uniform national threshold 

EER. 

If VETS’ review determines a State’s 

program year EER to be deficient, the 

State will be required, as a condition for 

receipt of the upcoming program year’s 

JVSG grant, to submit a CAP to the 

Grant Officer’s Technical Representative 

by June 30 of the year following the 

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calendar year in which the program year 

under review ended. For any State 

required to submit a CAP, VETS will 

provide TA in the development of the 

CAP. The Department’s review and (as 

required) comment on the CAP will be 

handled in conjunction with the 

Department’s review of that State’s 

annual application for funds under the 

JVSG program for the upcoming fiscal 

year (which begins on October 1 of the 

year following the calendar year in 

which the program year under review 

ended). Based on review of the CAP 

submitted, VETS may provide 

additional TA to the State. If the CAP is 

approved, the approval of the CAP will 

be transmitted in conjunction with the 

approval of that State’s JVSG funding for 

the upcoming fiscal year. The State then 

must expeditiously implement the CAP. 

If the CAP is not approved, VETS will 

take such steps as necessary to 

implement corrective actions to improve 

the State’s EER for veterans and eligible 

persons. If the State fails to cooperate 

with these corrective actions, VETS may 

take any actions available to remedy 

non-compliance under 20 CFR part 658, 

subpart H. These are the compliance 

measures available to the Assistant 

Secretary for Veterans’ Employment and 

Training through 20 CFR 1001.130(a). 

In addition to the procedures specified 

in these regulations, will the 

Department be conducting any other 

monitoring of compliance regarding 

services to veterans? (§ 1001.167) 

Yes. VETS, as the grantor agency for 

the JVSG, has primary responsibility for 

initiating comprehensive compliance 

and performance reviews of each State’s 

employment service delivery system 

with respect to the services received and 

outcomes experienced by veterans. The 

specific procedures prescribed in this 

Proposed Rule are distinct from, but 

related to, that overall monitoring 

responsibility. 

These procedures also relate in a 

somewhat different way to the joint 

monitoring of priority of service, to be 

conducted by VETS and ETA according 

to 20 CFR 1010.240(b). Specifically, if a 

State’s program year EER is determined 

to be deficient for a given program year, 

that fact would be one of the elements 

considered in monitoring priority of 

service, since failure to fully implement 

priority of service could be one of the 

contributors to a deficient program year 

EER. 

III. Administrative Information 

Regulatory Flexibility Analysis, 

Executive Order 13272, and Small 

Business Regulatory Enforcement 

Fairness Act 

The Regulatory Flexibility Act (RFA), 

5 U.S.C. Chapter 6, requires the 

Department to evaluate the economic 

impact of this proposed rule with regard 

to small entities. The RFA defines small 

entities to include small businesses, 

small organizations including not-forprofit organizations, and small 

governmental jurisdictions. The 

Department has determined, and has 

certified to the Chief Counsel for 

Advocacy, Small Business 

Administration, that the proposed rule 

does not impose a significant economic 

impact on a substantial number of such 

small entities, because this Rule would 

directly impact only States and the 

definition of small entities does not 

include States. 

Executive Order 12866 

Executive Order 12866 requires that 

for each ‘‘significant regulatory action’’ 

proposed by the Department, the 

Department conduct an assessment of 

the proposed regulatory action and 

provide OMB with the proposed 

regulation and the requisite assessment 

prior to publishing the regulation. A 

significant regulatory action is defined 

to include an action that will have an 

annual effect on the economy of $100 

million or more, and/or an action that 

raises a novel legal or policy issue. The 

uniform national threshold EER 

implemented by this proposed rule will 

not have an annual effect on the 

economy of $100 million or more. 

VETS estimates that the costs 

specifically attributable to submitting 

and implementing a CAP would be 

about one percent of a State agency’s 

annual grant amount. Although VETS 

has not had recent experience with a 

CAP and associated costs, past 

experience suggests that one percent 

would be a reasonable estimate. States’ 

JVSG grants average about $3 million 

per year, so a typical State agency 

would be expected to use an average of 

about $30,000 for CAP costs if a CAP 

were to be required. Based on an 

analysis of the number of States that in 

the past would have failed to meet the 

proposed uniform national threshold 

level, VETS estimates that there would 

be no more than four to six CAPS per 

year, and allowing for the possible 

inclusion of some of the State agencies 

from larger States whose funding levels 

exceed the average, VETS estimates that 

the upper range of the average annual 

total cost for CAPs will not exceed 

$200,000 to $300,000. Furthermore, if 

this estimate falls short of CAP 

development costs or if a CAP requires 

the State agency to fund additional 

services for which its JVSG is not 

adequate, the funds for developing the 

CAP or any additional services will be 

provided through VETS’ routine 

reallocation procedure, which requires 

no additional appropriation and thus 

would have no net effect on the 

economy. 

This Proposed Rule could raise a 

novel legal or policy issue arising out of 

legal mandates, the President’s 

priorities, or the principles set forth in 

the Executive Order. Therefore, the 

Department has submitted this Proposed 

Rule to OMB for review. 

Paperwork Reduction Act 

The purposes of the Paperwork 

Reduction Act of 1995 (PRA), 44 U.S.C. 

3501 et seq., include minimizing the 

paperwork burden on affected entities. 

The PRA requires certain actions before 

an agency can adopt or revise the 

collection of information, including 

publishing a summary of the collection 

of information and a brief description of 

the need for and proposed use of the 

information. This rule will not require 

new or additional information 

collections, as defined in the Act, from 

the affected entities. The Department 

has determined that a State’s obligation 

to develop and submit a CAP for 

approval does not qualify as a collection 

of information, as defined by 5 CFR 

1320.3(c), because after receiving a 

determination of deficiency from VETS 

that excludes the systemic factors 

beyond the State’s control, the State is 

required to develop and submit a CAP 

based on a self-diagnosis and 

prescription that addresses the unique 

set of deficiencies embodied in that 

State’s policies and procedures. 

Therefore, a CAP does not qualify as a 

‘‘collection of information’’ under 5 CFR 

1320.3(c), because it does not result 

from identical questions nor is the 

content across multiple CAPs in any 

way identical. In addition, a CAP does 

not qualify as ‘‘information’’ under 5 

CFR 1320.3(h) because the individuality 

of the information provided in each 

State’s CAP is consistent with a 

response to a ‘‘request for facts or 

opinions addressed to a single person,’’ 

which is excluded under 5 CFR 

1320.3(h)(6). 

Current reporting systems and 

requirements are not changed by this 

Proposed Rule. VETS will calculate the 

uniform national threshold EER using 

data from the existing approved data 

collection included in the ETA 9002 

and VETS 200 DATA PREPARATION 

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Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Proposed Rules 9523 

HANDBOOK; ET HANDBOOK NO. 406 

(OMB Approval No.: 1205–0240; 

Expiration Date: 03/31/2012). Therefore, 

this regulation does not impose on the 

State employment service delivery 

systems any new information collection 

that would require approval under the 

PRA. 

Executive Order 13132 

The Department has reviewed this 

proposed rule in accordance with 

Executive Order 13132 regarding 

federalism and has determined that it 

does not have ‘‘federalism implications.’’ 

The rule does not ‘‘have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ This proposed 

rule implements the uniform national 

threshold EER for veterans and eligible 

persons applicable to State employment 

service delivery systems. This proposed 

rule does nothing to alter either the 

relationship between the national 

government and the States, or the 

distribution of power and 

responsibilities among the various 

levels of government. Accordingly, this 

proposed rule does not have ‘‘federalism 

implications.’’ 

Unfunded Mandates Reform Act of 1995 

For purposes of the Unfunded 

Mandates Reform Act (UMRA) of 1995, 

this rule does not include any Federal 

mandate that may result in increased 

expenditures by State, local and Tribal 

governments, or by the private sector. 

As this proposed rule does not impose 

any unfunded Federal mandate, the 

UMRA is not implicated. As explained 

above, current reporting requirements 

on the States are not changed by this 

Proposed Rule. The Labor Exchange 

Reporting System (LERS) produces 

program year EER results for 52 of the 

54 reporting State employment service 

delivery systems and calculates the first 

step toward a national EER, based on 

inclusion of those 52 reporting units. 

For each program year, VETS will 

supplement the results available from 

the LERS by: (a) Incorporating the 

program year EER results for the two 

States that are piloting a separate 

reporting system; and, (b) calculating 

the uniform national threshold EER 

based on inclusion of the results for all 

54 reporting units. Therefore, this 

regulation does not impose any new 

reporting or calculation requirement 

upon the State employment service 

delivery systems. Some States may be 

required to institute corrective actions 

under this rule. However, such actions 

are required by statute. Moreover, the 

Department provides grant funds for the 

administration of the JVSG program 

which may be used for any costs 

associated with the imposition of a CAP. 

Executive Order 13045 

Executive Order 13045 concerns the 

protection of children from 

environmental health risks and safety 

risks. This proposed rule implements 

the uniform national threshold EER for 

veterans and eligible persons applicable 

to State employment service delivery 

systems funded by the Department. This 

proposed rule has no impact on safety 

or health risks to children. 

Executive Order 13175 

Executive Order 13175 addresses the 

unique relationship between the Federal 

Government and Indian Tribal 

governments. The order requires Federal 

agencies to take certain actions when 

regulations have ‘‘Tribal implications.’’ 

The order defines regulations as having 

‘‘Tribal implications’’ when they have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The Department has reviewed this 

proposed rule and concludes that it 

does not have Tribal implications for 

purposes of Executive Order 13175, as 

it does nothing to affect either the 

relationship or the distribution of power 

and responsibilities between the Federal 

Government and Indian Tribes. 

Environmental Impact Assessment 

The Department has reviewed this 

proposed rule in accordance with the 

requirements of the National 

Environmental Policy Act (NEPA) of 

1969 (42 U.S.C. 4321 et seq.), the 

regulations of the Council on 

Environmental Quality (40 CFR part 

1500), and the Department’s NEPA 

procedures (29 CFR part 11). The 

proposed rule will not have a significant 

impact on the quality of the human 

environment, and thus the Department 

has not prepared an environmental 

assessment or an environmental impact 

statement. 

Assessment of the Impact of Federal 

Regulations and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act, enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681), 

requires the Department to assess the 

impact of this rule on family well-being. 

A rule that is determined to have a 

negative effect on families must be 

supported with an adequate rationale. 

The Department has assessed this 

proposed rule and has determined that 

it will not have a negative effect on 

families. 

Privacy Act 

The Privacy Act of 1974 (5 U.S.C. 

552a) provides safeguards to individuals 

for their personal information which the 

Government collects. The Act requires 

certain actions by an agency that 

collects information on individuals 

when that information contains 

personally identifying information such 

as Social Security Numbers or names. 

Because this proposed rule does not 

require a new collection of personally 

identifiable information, the Privacy Act 

does not apply in this instance. 

Executive Order 12630 

This proposed rule is not subject to 

Executive Order 12630, Governmental 

Actions and Interference with 

Constitutionally Protected Property 

Rights, because it does not involve 

implementation of a policy with takings 

implications. 

Executive Order 12988 

This proposed rule has been drafted 

and reviewed in accordance with 

Executive Order 12988, Civil Justice 

Reform, and it will not unduly burden 

the Federal court system. The proposed 

regulation has been written so as to 

minimize litigation and provide a clear 

legal standard for affected conduct, and 

has been reviewed carefully to eliminate 

drafting errors and ambiguities. 

Executive Order 13211 

This proposed rule is not subject to 

Executive Order 13211, because it will 

not have a significant adverse effect on 

the supply, distribution, or use of 

energy. 

Plain Language 

The Department drafted this proposed 

rule in plain language. 

Catalog of Federal Domestic Assistance 

Number 

State employment service delivery 

systems consist of three formula grant 

programs, operating within an 

integrated service delivery 

infrastructure. Each of these three 

programs has been assigned a Catalog of 

Federal Domestic Assistance (CFDA) 

Number. The three programs are the 

Employment Service/Wagner-Peyser 

Funded Activities (CFDA #17.207), the 

Disabled Veterans’ Outreach Program 

(CFDA #17.801), and the Local Veterans’ 

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9524 Federal Register / Vol. 76, No. 34 / Friday, February 18, 2011 / Proposed Rules 

Employment Representative Program 

(CFDA #17.804). 

Signed at Washington, DC, this 10th day of 

February 2011. 

Raymond M. Jefferson, 

Assistant Secretary for Veterans’ Employment 

and Training. 

List of Subjects in 20 CFR Part 1001 

Employment, Grant programs—Labor, 

Veterans. 

For reasons stated in the preamble, 

the Department proposes to amend 20 

CFR Chapter IX as follows: 

PART 1001—SERVICES FOR 

VETERANS 

1. The authority citation for part 1001 

continues to read as follows: 

Authority: 29 U.S.C. 49k; 38 U.S.C. 

chapters 41 and 42. 

2. Add subpart G, consisting of 

§§ 1001.160 through 1001.167, to read 

as follows: 

Subpart G—Purpose and Definitions 

Sec. 

1001.160 What is the purpose and scope of 

this part? 

1001.161 What definitions apply to this 

part? 

1001.162 How does the Department define 

veteran for purposes of this subpart? 

1001.163 What is the national entered 

employment rate (EER) and what is a 

State’s program year EER for purposes of 

this part? 

1001.164 What is the uniform national 

threshold EER, and how will it be 

calculated? 

1001.165 When will the uniform national 

threshold EER be published? 

1001.166 How will the uniform national 

threshold EER be used to evaluate 

whether a State will be required to 

submit a corrective action plan (CAP)? 

1001.167 In addition to the procedures 

specified in these regulations, will the 

Department be conducting any other 

monitoring of compliance regarding 

services to veterans? 

Subpart G—Purpose and Definitions 

§ 1001.160 What is the purpose and scope 

of this part? 

(a) The purpose of this regulation is 

to fulfill the requirement of 38 U.S.C. 

4102A(c)(3)(B) to establish a uniform 

national threshold entered employment 

rate (EER) achieved for veterans and 

eligible persons by the State 

employment service delivery systems. 

The Department will use the threshold 

rate as part of its process for 

determining whether a State’s program 

year EER is deficient and whether a 

corrective action plan (CAP) will be 

required of a State employment service 

delivery system. 

(b) This regulation is applicable to all 

State agencies that are recipients of 

Wagner-Peyser State Grants, and/or Jobs 

for Veterans State Grants. 

§ 1001.161 What definitions apply to this 

part? 

Department means the United States 

Department of Labor, including its 

agencies and organizational units and 

their representatives. 

Eligible person, as defined at 38 

U.S.C. 4101(5), means: 

(1) The spouse of any person who 

died of a service-connected disability; 

(2) The spouse of any member of the 

Armed Forces serving on active duty 

who, at the time of application for 

assistance under this chapter, is listed, 

pursuant to 37 U.S.C. 556 and 

regulations issued thereunder by the 

Secretary concerned, in one or more of 

the following categories and has been so 

listed for a total of more than ninety 

days: 

(i) Missing in action, 

(ii) Captured in line of duty by a 

hostile force, or 

(iii) Forcibly detained or interned in 

line of duty by a foreign government or 

power; or 

(3) The spouse of any person who has 

a total disability permanent in nature 

resulting from a service-connected 

disability or the spouse of a veteran who 

died while a disability so evaluated was 

in existence. 

Employment service delivery system, 

as defined at 38 U.S.C. 4101(7), means 

a service delivery system at which or 

through which labor exchange services, 

including employment, training, and 

placement services, are offered in 

accordance with the Wagner-Peyser Act. 

Jobs for Veterans Act (JVA) means 

Public Law 107–288, 116 Stat. 2033 

(2002). 

Jobs for Veterans State Grant (JVSG) 

means an award of Federal financial 

assistance by the Department to a State 

for the purposes of the Disabled 

Veterans’ Outreach Program or the Local 

Veterans’ Employment Representative 

Program. 

Program year is the period from July 

1 of a year through June 30 of the 

following year and is numbered 

according to the calendar year in which 

it begins. 

§ 1001.162 How does the Department 

define veteran for purposes of this subpart? 

The Department applies two 

definitions of veteran for the purposes 

of this subpart and has established two 

stages for the implementation of these 

definitions. 

(a) The first stage of implementation 

begins with application of this subpart 

G to the first program year following 

[EFFECTIVE DATE OF THE FINAL 

RULE]. As of that date, Veteran is 

defined as it is in 38 U.S.C. 4211(4): 

(1) A person who served on active 

duty for a period of more than 180 days 

and was discharged or released 

therefrom with other than a 

dishonorable discharge; 

(2) Was discharged or released from 

active duty because of a serviceconnected disability; 

(3) As a member of a reserve 

component under an order to active 

duty pursuant to 10 U.S.C. 12301(a), (d), 

or (g), 12302, or 12304, served on active 

duty during a period of war or in a 

campaign or expedition for which a 

campaign badge is authorized and was 

discharged or released from such duty 

with other than a dishonorable 

discharge; or 

(4) Was discharged or released from 

active duty by reason of a sole 

survivorship discharge (as that term is 

defined in 10 U.S.C.1174(i)). 

(b) The second stage of 

implementation begins with the first 

day of the program year that begins two 

years after the first day of the program 

year that State grantees begin collecting 

and maintaining data as required by 20 

CFR 1010.330(c). As of that date, 

Veteran will be defined as it is for 

purposes of 38 U.S.C. 4215(a): 

(1) A person who served in the active 

military, naval, or air service, and who 

was discharged or released therefrom 

under conditions other than 

dishonorable, as specified in 38 U.S.C. 

101(2). 

(2) Active service includes full-time 

Federal service in the National Guard or 

a Reserve component, other than fulltime duty for training purposes. 

(c) During the second stage of 

implementation, any veteran who meets 

the definition specified in paragraph (a) 

of this section will be considered to 

meet the definition specified in 

paragraph (b) of this section. 

(d) The Department will notify State 

grantees when they are required to begin 

implementing 20 CFR 1010.330(c). 

§ 1001.163 What is the national entered 

employment rate (EER) and what is a 

State’s program year EER for purposes of 

this part? 

(a) For purposes of this part, the 

Department uses the EER for veterans 

and eligible persons. This is the EER as 

applied to veterans (as defined in 

§ 1001.162) and eligible persons (as 

defined in § 1001.161) who are 

participants in State employment 

service delivery systems. 

(b) The EER for veterans and eligible 

persons measures the number of the 

participants described in paragraph (a) 

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of this section who are employed after 

exiting an employment service delivery 

system compared to the total number of 

those participants who exited. The 

method of calculation will be 

established through policy guidance 

issued by the Department. 

(c) The national EER for veterans and 

eligible persons is the EER achieved by 

the national State employment service 

delivery system for those veterans and 

eligible persons who are participants in 

all of the State employment service 

delivery systems for the program year 

under review. The national EER 

resulting from this calculation is 

expressed as a percentage that is 

rounded to the nearest tenth of a 

percent. 

(d) A State’s program year EER is the 

EER for veterans and eligible persons (as 

calculated in paragraph (b) of this 

section) achieved by a single State’s 

employment service delivery system for 

those veterans and eligible persons who 

are included in the EER measure for that 

State’s employment service delivery 

system for the program year under 

review. The program year EER resulting 

from this calculation is expressed as a 

percentage that is rounded to the nearest 

tenth of a percent. 

§ 1001.164 What is the uniform national 

threshold EER, and how will it be 

calculated? 

(a) The uniform national threshold 

EER for a program year is equal to 90% 

of the national EER for veterans and 

eligible persons (as defined in 

§ 1001.163(c)). 

(b) The uniform national threshold 

EER resulting from this calculation is 

expressed as a percentage that is 

rounded to the nearest tenth of a 

percent. 

§ 1001.165 When will the uniform national 

threshold EER be published? 

When practicable, the Veterans’ 

Employment and Training Service 

(VETS) will publish the uniform 

national threshold EER for a given 

program year by the end of December of 

the calendar year in which that program 

year ends. 

§ 1001.166 How will the uniform national 

threshold EER be used to evaluate whether 

a State will be required to submit a 

corrective action plan (CAP)? 

(a) Comparison. Each State’s program 

year EER will be compared to the 

uniform national threshold EER for that 

program year. State agencies that do not 

achieve a program year EER that equals 

or exceeds the national threshold EER 

(90% of the national EER) for the year 

under review will be subject to a review 

by VETS to determine whether the 

program year EER is deficient. 

(b) Review. For each State whose 

program year EER is subject to review to 

determine deficiency, the review will 

consider the degree of difference 

between the State’s program year EER 

and the uniform national threshold EER 

for that program year, as well as the 

annual unemployment data for the State 

as compiled by the Bureau of Labor 

Statistics. 

(1) The review also may consider 

other relevant measures of prevailing 

economic conditions and regional 

economic conditions, as well as other 

measures of the performance of 

workforce programs and/or any 

information the State may submit. 

(2) The review will include 

consultation with VETS field staff about 

findings from their on-site reviews and 

desk audits of State agency 

implementation of policies and 

procedures for services to veterans, and 

also may include consultation with staff 

affiliated with other agencies of the 

Department, as appropriate. 

(c) Requirement of a CAP. A State 

whose program year EER is determined 

to be deficient will be required to 

submit a CAP to improve the State’s 

performance in assisting veterans to 

meet their employment needs as a 

condition of receiving its next-due 

JVSG. 

(1) Any State whose program year 

EER has been determined to be deficient 

will be notified by March 31 of the year 

following the calendar year in which the 

program year under review ended. 

(2) For any State that is required to 

submit a CAP, VETS will provide 

technical assistance (TA) regarding the 

development of the CAP. The CAP must 

be submitted to the Grant Officer’s 

Technical Representative by June 30 of 

the year following the calendar year in 

which the program year under review 

ended. 

(3) VETS will review the CAP 

submitted by the State and determine 

whether to approve it or to provide 

additional TA to the State. 

(i) If VETS approves the CAP, the 

State must expeditiously implement it. 

(ii) If VETS does not approve the CAP, 

it will take such steps as are necessary 

to implement corrective actions to 

improve the State’s EER for veterans and 

eligible persons. 

(4) If a State fails to cooperate with 

the actions imposed by the Department 

under paragraph (c)(3)(ii) of this section, 

the Assistant Secretary for Veterans’ 

Employment and Training may take any 

actions available to remedy noncompliance under 20 CFR 1001.130(a) 

(referring to the compliance measures 

discussed in 20 CFR part 658, subpart 

H). 

§ 1001.167 In addition to the procedures 

specified in these regulations, will the 

Department be conducting any other 

monitoring of compliance regarding 

services to veterans? 

Yes. VETS will continue to monitor 

compliance with the regulations related 

to veterans’ priority of service at 20 CFR 

1010.240(b) jointly with the 

Employment and Training 

Administration. If a State’s program year 

EER is determined to be deficient for a 

given program year, that deficiency 

would constitute information to be 

considered in monitoring priority of 

service, since failure to fully implement 

priority of service could be one of the 

contributors to a deficient program year 

EER. 

[FR Doc. 2011–3536 Filed 2–17–11; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 101 

[Docket No. FDA–2000–P–0102, FDA–2000– 

P–0133, and FDA–2006–P–0033] 

Health Claim; Phytosterols and Risk of 

Coronary Heart Disease 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Extension of enforcement 

discretion. 

SUMMARY: The Food and Drug 

Administration (FDA) is extending the 

period of time that it intends to exercise 

enforcement discretion, concerning the 

use of the health claim for phytosterols 

and risk of coronary heart disease 

(CHD), in a manner that is consistent 

with FDA’s February 14, 2003, letter of 

enforcement discretion to Cargill Health 

and Food Technologies. In the proposed 

rule for this health claim that published 

on December 8, 2010 (75 FR 76526), the 

Agency provided a period of 75 days 

from the date of publication of the 

proposed rule during which FDA 

intended to exercise its enforcement 

discretion for the use of such claim 

consistent with the 2003 letter. FDA is 

extending this period during which the 

Agency intends to exercise enforcement 

discretion to February 21, 2012. 

DATES: Submit either electronic or 

written comments by April 19, 2011. 

ADDRESSES: Submit electronic 

comments to http:// 

www.regulations.gov. Submit written 

WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS